Judge sides with corrections board in FOIA case; board threatens attorney general with sanctions
In an order that was surprising only for how quickly it was issued, a Pulaski County circuit judge ruled today against attorney General Tim Griffin in his lawsuit against the state Board of Corrections.
Circuit Judge Tim Fox said in his order that Griffin was in violation of the legal and ethical duties of his position and gave the attorney general 30 days to correct his errors or face dismissal of the lawsuit. Griffin sued the corrections board last Friday, alleging it had violated the Arkansas Freedom of Information Act multiple times.
That suit was seen by some as Griffin retaliating against the board for pushing back against Gov. Sarah Sanders’ plan to add hundreds of beds to Arkansas prisons as quickly as possible without approval from the corrections board. Last week, the board voted to suspend Sanders’ corrections secretary, Joe Profiri, and obtained a court order upholding the its constitutional ability to do so. The board hired a Little Rock attorney to represent it, saying Griffin had a conflict of interest.
Griffin in turn sued the corrections board, saying the board had illegally hired outside counsel and violated the FOIA in the process. Griffin’s lawsuit named himself, in his official capacity as attorney general, as the plaintiff and the individual members of the Board of Corrections as defendants.
In a motion filed earlier today, the board said that they would be filing a motion for sanctions against Griffin and Senior Assistant attorney General Christine Cryer based on a lack of factual support for the FOIA lawsuit and Griffin and Cryer’s conflicts of interest in suing the individual corrections board members. (The board’s filing today was not the actual motion for sanctions, but a request that Judge Fox shorten or waive the usual 21-day waiting period required to file such a motion.)
The board’s motion argued that Griffin and Cryer have conflicts of interest because they filed the FOIA suit against the individual board members while simultaneously representing those same board members in other pending litigation. According to court records, the attorney General’s Office represents the Board of Corrections and/or its chairman, Benny Magness, in at least three cases pending in state court. In federal court, Cryer is listed as an attorney of record for all of the individual board members in a case brought by Arkansas Department of Corrections inmates over the prisoners’ access to healthcare during the COVID-19 pandemic.
Fox’s order did not focus on when the corrections board members could file a motion for sanctions and instead took Griffin to task for the procedural and ethical mess that the attorney general’s lawsuit had created.
Fox’s first pointed out that the attorney general is legally required to perform such duties as required by law, including that the attorney general “shall be the attorney for all state officials, departments, institutions, and agencies.” After quoting an Arkansas Court of Appeals decision that held that the attorney general’s office may represent two state entities in a lawsuit against one another “only when the attorney General is not any actual party to the litigation,” Fox laid bare exactly why Griffin’s lawsuit was flawed.
“The case at this junction, from a procedural standpoint, is that the attorney General has sued his own clients, in violation of his duties and responsibilities legislatively mandated to him by the [legislature],” Fox wrote. Moreover, Fox said, “by using his discretion to apparently not invoke the special counsel procedure, [Griffin] is apparently attempting to deliberately deprive his state clients of any legal representation of any nature or kind.”
The “special counsel procedure” refers to a state statute that requires the attorney general to authorize, with approval from the governor, the hiring and payment of an outside attorney to represent a state entity. Griffin has repeatedly complained in recent days that the Board of Corrections was not authorized to hire a private attorney in its lawsuit against Sanders and Profiri regarding its constitutional authority. Fox’s order makes clear just how ridiculous Griffin’s argument on this point is.
Because Griffin “is in clear violation of his mandated constitutional and statutory duty” to either represent the board or invoke the special-counsel procedure,” Fox wrote, “the court is unable to proceed with the merits of this action at this time.”
Clearly, Fox said, the board is “entitled to legal counsel.”
Ultimately, Fox gave Griffin 30 days from today’s order “in which to comply with his constitutional and statutory duty” to either reach an agreement with the board members concerning the authorization and payment of their current special counsel, Abtin Mehdizadegan, or assist the board in obtaining other special counsel to represent them. If Griffin fails to do one of these two things within the 30-day period, Fox ruled, “this case will be dismissed without prejudice” based on Griffin’s violation of his legal duties.
As to Griffin and Cryer’s alleged ethical breaches stemming from their concurrent lawsuit against the board members while representing those board members in other lawsuits, Fox “leaves such issues to the [board members] to address” by filing a complaint with the Arkansas Committee on Professional Conduct if the members wish to do so.
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