Columns » Max Brantley

Held in contempt

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Among the important elections this year is a race for the Arkansas Supreme Court between Appeals Court Judge Karen Baker and Pulaski Circuit Judge Tim Fox.

Judicial ethics rules being what they are, it's hard for candidates to differentiate themselves. Both candidates have experience and records with laudable decisions; Baker has a marginally better reversal rate. Baker has also demonstrated a strong empathy for equal treatment of women, worth mentioning in a state where more than a century of judicial and political paternalism lingers. Baker also authored an important ruling that put the brakes on a huge power plant in western Arkansas.

Now the "but" — my experience on a case when Baker sat as a chancellor in Conway in 1997.

The issue was a divorce case involving one of the most powerful men in Conway, Charles Morgan, the leader of Acxiom Corp. The divorce case, which the Times was covering, touched on corporate financial issues. When Morgan moved to close the record in the case, I filed an objection. The judge never acknowledged my motion. Perhaps influenced by the public interest in the case, Morgan moved to settle the divorce case. He and his wife came to terms in an order signed barely a week after my open court motion. The file remained sealed. I asked Judge Baker to open it. She said my request was moot, though, by law, it was not. The legal offense, in my view, was that the judge sealed the entire file, even though the hearing that Morgan feared might reveal sensitive information never was held. The judge sealed the boilerplate original divorce pleading. She sealed her final divorce decree. You can look through tens of thousands of divorce cases in Arkansas and not find a single one handled with the secrecy Baker ordered in this case.

I contested her finding of mootness. The judge ignored my pleading for five months. Her staff would not talk to me about the status of my motion. After yet another letter reminding her of her duty to rule, she finally relented. She brusquely dismissed the open court motion, more than a year after it had been filed. She said there was little value in hearing evidence in private if the order that resulted could be open to public scrutiny. She said further that the initial pleading and the final divorce decree in this case "do not concern any public interest and at the request of all litigants should remain private."

So the law, as interpreted by a future Supreme Court justice, is that anybody seeking and receiving a divorce is entitled to total secrecy if they ask. The case is of no public interest.

Other issues have arisen in this race. Both candidates have reached out for partisan support, including money, for a non-partisan job. More troubling has been the work of Baker's supporters to criticize Fox for his landmark ruling that a church-driven state effort to prevent gay people from being foster parents was unconstitutional. With a related case pending on adoption by unmarried couples, the unavoidable inference is that Baker's backers believe she is unfriendly to this modest advancement in human rights. Maybe that's not so.

For my part, Baker's preference for secrecy in a case that involved a local bigshot is enough. Open court is a bedrock of our system. It encourages fairness through accountability. A ruling against open court isn't a recommendation for promotion.

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