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Only the full Arkansas Supreme Court can appoint members to the state’s judicial disciplinary commission, according to an opinion issued Monday.
The opinion arose from disagreement over the powers of the chief justice. Although newly installed Chief Justice Karen Baker partly concurred in the opinion, her actions last week prompted her colleagues to declare that she cannot on her own appoint anyone to the commission.
Justice Courtney Hudson did not participate in the decision, but the unanimity of the six other jurists was deceptive. Justice Shawn Womack concurred but continued to hold his belief, first expressed in a 2021 decision, that the nine-member Judicial Discipline and Disability Commission “is unconstitutional as it is currently structured.”
Baker unilaterally appointed three members to the commission on Jan. 1, the day she was sworn into office, according to the opinion.
Her colleagues wrote: “The Chief Justice did not notify, let alone consult, the court about those purported appointments, and the Chief Justice did not cite any provision granting her the unilateral authority to make such appointments. Nor does any such authority exist.”
Monday’s opinion rendered Baker’s appointments void. The court reappointed Circuit Judge Earnest Brown of Pine Bluff to a term expiring June 30, 2030, and appointed Circuit Judge Thomas Smith of Bentonville, replacing Court of Appeals Judge Cindy Thyer, and Circuit Judge Troy Braswell of Conway, replacing former Circuit Judge Mark Lindsay. Smith term will expire in 2030 and Braswell’s in 2029, according to the opinion.
Baker partially dissented regarding Braswell’s appointment but did not indicate a reason.
Baker spurred a revolt among five justices last week by trying to fire 10 court employees, which resulted in an administrative order that she didn’t have the authority to unilaterally fire the workers and saying she didn’t consult with her fellow justices in doing so. Those employees returned to work on Monday, the Arkansas Democrat-Gazette reported.
In Monday’s opinion, which did not indicate an author, the justices wrote that Amendment 66 to the Arkansas Constitution and state law “clearly vest the Supreme Court as a whole with the responsibility for appointing three judges to the JDDC, and long-standing custom and practice confirm that we have acted accordingly.”
The opinion noted the chief justice can only unilaterally appoint someone to the disciplinary commission when a vacancy occurs midterm due to a commission member’s retirement, becoming no longer eligible or otherwise becoming unable to serve, “and only then if the appointing authority [the full court] has failed to timely act.”
