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Judicial chutzpah



We maintain a list of egregious Arkansas Supreme Court opinions, for amusement and reference. A good laugh is healthy, and Supreme Court justices are elected.

There was a famous one-sentence opinion — “Too hot to handle,” roughly – by which the Court more or less upheld a controversial state law forbidding the teaching of evolution. The U.S. Supreme Court had sport with that one, speculating aloud on the cat that had gotten the Arkansas justices' tongues. A few years later, an Arkansas Supreme Court majority determined to keep a populist constitutional amendment off the ballot found that the amendment was both “too long” and “too short.” The Court's latest opinion on the state Freedom of Information Act now joins the list.

A four-member majority made a soothing announcement — “We liberally interpret the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner. Furthermore, this court broadly construes the Act in favor of disclosure.” — and with that behind them, proceeded to construe the Act narrowly, supporting secrecy, and accommodating the wishes of unlaudable special interests who find it advantageous to keep the people uninformed. More such “favorable consideration” will just about do in the people's right to know. As it is, the FOIA has been seriously weakened; a dissenter, Associate Justice Tom Glaze, so noted.

The case involved electronic correspondence between a former Pulaski County comptroller, now charged with embezzlement, and a representative of a company that did business with the county. The two mingled business and pleasure freely, the company rep being also the comptroller's paramour. Records of their correspondence, conducted and preserved by public officials in a public office using public equipment on public time, were sought by the Arkansas Democrat-Gazette under the FOIA. But Pulaski County wants the records kept secret, for reasons unclear to anyone besides County Judge Buddy Villines, and the Supreme Court has come to his assistance.

Another dissenter, Justice Annabelle Clinton Imber, wrote of the majority's finding: “Contrary to traditional rules of statutory construction, the majority declines to apply a plain reading of the FOIA and adopts secondary sources and case law from other jurisdictions to resolve the issue of whether the e-mails are a ‘public record.' “Rather than look at the Arkansas law, the Court majority examined laws in other states, a book by a secrecy-prone law professor, and, we're told, an old grocery list found in Chief Justice Hannah's shirt pocket. Justice Corbin claims to have seen a precedent in the crop circles of Northeast Arkansas.

In the end, it was a minority of Glaze, Imber and Justice Paul Danielson who favored disclosure. Hannah, Corbin, Brown and Gunter voted to leave off the light that Villines extinguished.

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