State of Justice: October 2024
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Arkansas Supreme Court refers its justice to disciplinary body
A majority of the Arkansas Supreme Court dismissed a lawsuit filed by one of its justices, Justice Courtney Hudson, and referred her for investigation. Hudson originally filed the lawsuit to block the release of email exchanges between her and Lisa Ballard, the former executive director of the Supreme Court’s Office of Professional Conduct (OPC). Justice Hudson claimed the emails were exempt from disclosure under FOIA laws. Ballard was fired in May for reasons that are unknown. Hudson won in the lower court, but the state supreme court overturned the lower court’s preliminary injunction and ordered the release of the emails. Justice Karen Baker wrote a scathing dissent from the majority, arguing that the court had acted outside its legal authority by ordering the release of the defendant. The state supreme court heard the case directly without an intermediate appeal.
The emails were first requested by Mark Friedman, an Arkansas Business Editor, from the Administrative Office of the Courts (AOC). Friedman requested all email exchanges Ballard sent after January 2023. Between August, when the FIOA request was filed, and the September 5 deadline for release, the justices internally debated whether they had any exempt documents under the “working papers exemption” and if OPC or AOC were the proper custodian of these records. The justices voted 5-2 to order the release of the records before the September 5 deadline. After the vote, the chief justice reminded the other justices about the “working papers exemption” if they wanted to reconsider. Hudson then received support from the general counsel for the Arkansas attorney general, confirming that the emails would be exempt under the “working papers exemption.” Despite all records preventing the release of the emails, the majority used their “superintending control” to directly intervene and order the release. Hudson released the emails shortly after. However, the justices still referred Hudson to a disciplinary investigation.
Notably, the emails were not salacious. Hudson, as the court’s designated liaison to the OPC, was expected to have extensive communication with Ballard. Ballard represented Hudson in her divorce proceedings, but that matter did not come up in the email exchanges. Indeed, most of the emails concerned budget issues, leave policies, and administrative matters, such as relocating the office. Ballard stated throughout the investigation that she felt she was being singled out.
North Carolina conservatives launch bogus ethics violations against Justice Allison Riggs
North Carolina conservative leaders add another play to their book when it comes to attacking the state supreme court’s Democratic justices. State senators Buck Newton (R), Amy Galey (R), and Danny Britt (R) claim Justice Riggs violated the Judicial Code of Conduct in recent campaign ads. In her ads, Riggs highlights the stakes for reproductive rights in the state if Republican gubernatorial candidate Mark Robinson is elected, as well as the power of the next justice’s vote in any decision. Robinson previously expressed support for a total abortion ban.
In their letter to the Judicial Standards Commission, the legislators claimed that Riggs had blatantly violated the code due to her ad. However, the code only bars candidates from discussing current matters before the court, and there is currently no litigation about this issue before the court. Instead, the code protects judges up for election and their ability to engage in “constitutionally protected political activity.”
This follows the ongoing politicization of the judicial standards commission and the commission’s bogus investigation into Justice Anita Earls. Last year, during budget negotiations, the legislature made a series of changes to the Judicial Standards Commission. The changes to the commission gave Republican political leaders more control and oversight of the commission. It also gave them the power to appoint four members to the commission, giving them almost full control.
Former North Carolina Supreme Court Chief Justice orchestrated the 2020 election denial
The House Select Committee to Investigate the January 6 Attack’s report revealed that former North Carolina Supreme Court Chief Justice Mark Martin played a role in orchestrating the January 6 and fake electors lawsuits. Martin left the state supreme court in 2019 and then served as Dean of Regent University Law School in Virginia. Televangelist Pat Robertson founded Regent. Shortly after taking that role, Marin appeared on Robertson’s network defending Trump. Because of this platform, Martin began to connect with other ultraconservative political figures like former AZ state representative Mark Finchem, a known Trump ally. In a memo to the Trump campaign, Finchem credited Martin with his “plenary theory,” calling special sessions to investigate voter fraud and halt election result certification.
Martin was critical of having republican attorneys file lawsuits directly with the Supreme Court. He also served as a liaison to other conservative legal figures, including the Texas Attorney General’s office, and was instrumental in persuading them to file a lawsuit. Former Texas Attorney General Ken Paxton even retained lawyers who previously worked with Martin as special counsel for the lawsuit. The committee learned that Trump and his allies often relied on Martin as a legal validator for other entities, such as the Department of Justice. The investigation also revealed that Martin assisted in thinking about the Vice President’s potential role in overturning the election. Records confirmed that Trump called Martin on January 6, before the Senate reconvened to finish the certification.
Maine Supreme Judicial Court justice could face sanctions for ethics violations
In our February 2024 State of Justice issue, AFJ Action previously covered an ethics complaint filed against Maine Supreme Judicial Court Justice Catherine Connors. The complaint centered on the court’s January 2024 decision, reversing a 2017 decision that found that if mortgage lenders sent a defective default notice due to mistakes on the document, it would render the mortgage default enforceable. The decision was seen as a victory for consumers. Then, in 2024, the court, under a new majority including Connors, reversed that decision and found that the lender does not lose the right to enforce the mortgage.
A complaint was filed against Connors because she represented and litigated on behalf of banks and lenders prior to her appointment to the court. Connors’ objectivity on these issues was questioned during her confirmation process. One state representative even asked Connors to recuse herself in cases involving these lenders. However, once the case was before the court, Connors participated in oral arguments.
Now, the Committee on Judicial Conduct has determined that Connors violated the judicial code of conduct. The committee does not officially order discipline. It is charged with investigating complaints against judges. The committee sent its findings to Chief Justice Valerie Stanfill on the supreme court. The court will determine if Connors faces any discipline.
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Application process ongoing for the Arizona Supreme Court
The Arizona Commission of Appellate Appointments is accepting applications through November 1 to replace retiring Justice Robert Brutinel. Brutinel joined the court after he was appointed by Gov. Jan Brewer (R). The mandatory retirement age in Arizona is 70, but Brutinel is stepping down at 66. His last day on the bench is October 31. Gov. Katie Hobbs (D) will select Brutinel’s successor from a slate of three finalists presented to her by the appointment commission.
New chief justice takes over on the Nebraska Supreme Court
Gov. Jim Pillen (R) appointed Justice Jeffrey Funke as the state’s next chief justice on the Nebraska Supreme Court. Funke will replace retiring Chief Justice Mike Heavican. Heavican’s last day on the bench will be October 31. Funke was one of the four finalists selected by the Judicial Nominating Commission to be sent to Pillen. Others under consideration were Judge David Garven, Judge PaTricia Freeman, and Judge Ryan Post. Funke’s elevation to chief justice means Pillen will have the opportunity to appoint a justice to replace Funke.
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National – More abortion ballot measures are set to pass. Then, state courts will have their say.
As abortion remains in the national political spotlight, state courts are poised to impact the landscape of reproductive healthcare more than ever. Ballot initiatives attempting to secure the right to abortion in state constitutions are the newest craze. State courts are in a unique position to shape what those measures will look like on the ballot. With litigation surrounding these initiatives, state courts may change the language or implementation.
Colorado – Animal rights activists protest for elephants ahead of Colorado Supreme Court hearing
The Colorado Supreme Court will determine if animals may retain the right to habeas corpus. The Nonhuman Rights Project is an animal rights group. The group challenged the Cheyenne Mountain Zoo’s custody of its five elephants. A district court previously ruled in favor of the zoo, finding that the Nonhuman Rights Project lacked standing to file a lawsuit on behalf of the elephants.
Colorado – Colorado Supreme Court to analyze revisions to child neglect law
Colorado recently revised its child neglect law and expanded existing law to allow a child to be considered neglected if the child is born affected by alcohol or drug exposure, which could impact the child’s health or welfare. A lower court ruled that the government must provide more than speculation or potential for the symptoms to manifest if a child is born without any complications. Attorneys for the state government appealed that decision to the state supreme court.
Colorado – Colorado Supreme Court weighs meaning of ‘personal identifying information’
The Colorado Supreme Court will determine if businesses may also be covered under the same protection as individuals (humans) in Colorado’s identity theft law and if businesses have “personal identifying information.” Personal identifying information typically includes identifiers such as social security numbers, birthdates, or biometric information. The case centers around Jesus Rodriguez-Morelos, who volunteered with a local non-profit to help migrants and undocumented individuals, but falsely identified himself as an organizational director and offered unauthorized classes. Rodriguez-Morelos used the organization’s financial information at the end of his course and offered the class in the organization’s name. The court of appeals found no identity theft because the organization is not an individual. The state supreme court will now determine the scope of theft and misrepresentation.
Colorado – Colorado Supreme Court tiptoes around prior edict forbidding prison plus probation
In 2019, the Colorado Supreme Court ruled in Allman v. Colorado that individuals cannot be sentenced to both prison and probation for a single charge; however, they may be sentenced to either one or the other. During a resentencing for a charge that previously violated Allman, Bradford Wayne Snedeker was resentenced to 20 years of probation. His attorney challenged that resentencing, stating that Snedeker had already served the prison portion and should not have to complete additional probation under the new precedent. Now, the state supreme court will determine the scope and application of Allman’s ruling and whether this charge is applicable.
Connecticut – CT Supreme Court to weigh ‘wrongful life’ claim alleging ‘reprehensible’ act by fertility specialist
After taking a 23andMe test, two individuals who were born by sperm donation recently learned they were related after a reproductive health specialist used his own sperm instead of a donor’s. The two individuals then sued the specialist for negligence. A lower court previously dismissed their case, finding in favor of the specialist. The lower court described this as a wrongful life suit rather than a negligence suit. Wrongful life suits are not recognized in Connecticut. Wanting to hold that specialist accountable, they are taking their case to the state supreme court. The state supreme court will determine if the specialist may be found liable and held accountable for their damages.
Florida – The two Florida Supreme Court justices up for a retention vote explained
Justices Renatha Francis and Meredith Sasso are up for retention election in Florida this year. Both are appointees under Gov. Ron DeSantis. Use this election guide to learn more about the merit selection and retention election process used in Florida and about the justices’ backgrounds.
Hawaii – Hawaii’s high court takes on appeal of HMSA case
A Hawaiian doctor filed a case against the Hawaii Medical Services Association, a Blue Cross Blue Shield insurance provider, because the insurer did not cover procedures or care, like prescription coverage, that he found to be medically necessary for his patients. The doctor identified over 30 cases where his patients were denied medically necessary coverage and care, worsening their condition and health. If the state supreme court rules in favor of the doctor, this decision could significantly alter the state’s healthcare landscape.
Idaho – Neighborhood urges Idaho Supreme Court to block Boise homeless shelter
A homeless shelter already under construction in Boise may not be finished due to challenges to the city council’s permit approval for the shelter’s construction. The Planning and Zoning Commission initially denied the shelter because planning and zoning could not create additional conditions for the shelter to be built and solve unanswered questions, like a security plan for the building. The shelter appealed to the city council. From there, the council held public hearings and reversed the commission’s denial. In the council’s approval process, they created additional conditions and solved unanswered questions in subsequent public hearings. Now, neighborhood residents and businesses contend the council cannot overturn the commission under city code. The shelter maintains it had the right to appeal the denial as it did. The state supreme court will determine if the council erred in taking up the appeal, rehearing, and granting the permit.
Indiana – Indiana Supreme Court to hear oral arguments in public records dispute
Christopher Nardi sued the Indiana Election Division in a public records dispute. Nardi tried to obtain three records; two were privileged, and the third was publicly available; however, the division took the third record down from public view. Nardi filed a grievance, but was unsuccessful in obtaining any of the documents. Nardi sued Secretary of State officials J. Bradley King and Angela Nussmeyer. Nardi obtained a redacted document that addressed his concerns in the trial court, but sought payment for his lawyers’ fees based on being the prevailing party in the litigation. The state supreme court will review whether Nardi prevailed enough in his case to be compensated for his fees.
Iowa – Iowa Supreme Court hears landowner case against Summit pipeline surveys
Iowa residents are fighting a carbon pipeline being constructed on their land. Kent Kasischke wanted to block a pipeline company from coming onto his private property to survey land. Kasischke is appealing a lower court’s finding that he could not interfere with the process. The Iowa Utilities Commission previously issued a permit and granted eminent domain to the pipeline company. Now, Kasischke is asking the court to limit the law or find it unconstitutional. He claims that the current statute is too broad and grants too much authority to private companies. Kasischke further argues that without the statute, companies would need to go through the condemnation process.
Kentucky – Park Hills’ Our Lady of Lourdes Church wants to build grotto; Attorney General supports in lawsuit
The Kentucky Attorney General is weighing in on a dispute before the state supreme court centered on a church’s right to build a religious shrine on its property. The construction is being challenged by a group of residents who claim the city did not have the authority to permit the construction. The residents lost in the trial court but won in the statewide court of appeals. The church appealed the decision to the state supreme court. Oral arguments have not been scheduled.
National – Voters to Weigh Judicial Retirement Age, Term Limits, Discipline
On November 5, New Hampshire residents will vote on whether to raise the retirement age for judges from 70 to 75. The measure was introduced by former chief justice and current state Rep. Bob Lynn (R). He served as chief justice for a year before retiring due to the mandatory retirement age. Voters in other states are also poised to impact their state courts. Arizona has a ballot measure that could potentially eliminate the ability to hold its judges accountable through retention elections and eliminate judicial term limits. Colorado voters will decide if a disciplinary body is needed for their state’s judiciary following a scandal involving a former chief justice and other officials.
North Carolina – NC Supreme Court candidates face off over partisanship, politics, and philosophy
Learn about the two candidates vying for the North Carolina Supreme Court in this local candidate forum.
The Ohio Supreme Court could strike down a law prohibiting a person from consuming alcohol and carrying a concealed weapon at a bar. The case centers on a man charged with shooting another man in the neck after getting into a bar fight. During his appeal process for his conviction, a court of appeals found the law to violate the Second Amendment and ruled in favor of the man. This decision would be the first major gun rights case in Ohio since the U.S. Supreme Court case New York State Rifle & Pistol Association, Inc. v. Bruen, which redefined states’ ability to regulate gun safety measures. It could have significant implications for gun regulation, public safety, and law enforcement.
Texas – Meet the candidates for Place 6 on the Texas Supreme Court on November 5 ballot
Learn about the candidates on the ballot for the Texas Supreme Court.
Texas – Texas Supreme Court to Hear Arguments in Parental Rights Case
The Texas Supreme Court will hear a case impacting a woman whose parental rights were terminated in a protective order for her children. A trial judge terminated Christine Stary’s parental rights after she was accused of injuring the youngest child. Stary appealed the case, claiming she was not given a proper opportunity to defend herself or present evidence of domestic violence from her husband. She lost at the appellate level. Now, the state supreme court will review her case.
Wisconsin – Wisconsin Supreme Court to begin hearing cases on abortion access, elections commission
On November 11, the Wisconsin Supreme Court will hear a case challenging the state’s Civil War-era abortion ban. Later in the month, the court will hear a case challenging Meagan Wolfe’s appointment as administrator of the elections commission. The challenge to Wolfe’s authority is focused on her attacks on 2020 election integrity.
