A Central Arkansas judge dismissed Arkansas Attorney General Tim Griffin’s complaint against the state prison board Monday after a hearing in which the judge chided Griffin’s staff attorneys for wasting taxpayers’ money with the six-week lawsuit.
Griffin alleged last month that the Arkansas Board of Corrections violated the state Freedom of Information Act and improperly hired an outside attorney, Abtin Mehdizadegan. The suit was entangled in the ongoing dispute between the prison board and Griffin, Gov. Sarah Huckabee Sanders and former Corrections Secretary Joe Profiri.
In December, Pulaski County Circuit Judge Tim Fox gave Griffin and his staff 30 days to work with the Board of Corrections on an agreement with an outside attorney. Griffin said at the time that he would appeal the order, and on Monday, he said through a spokesperson that he plans to appeal Fox’s ruling to the Arkansas Supreme Court.
Last month’s 30-day order stated that the suit would be dismissed without prejudice if Griffin did not comply. Emails from Griffin’s staff, filed with the court, showed that he did not fulfill the order, Fox wrote in his ruling.
Griffin’s office “failed to make material or good faith efforts to initiate” the statutory procedure that allows special counsel to represent state officials and entities, including the prison board, Fox wrote. In most circumstances, the AG’s Office “shall be the attorney for all state officials, departments, institutions, and agencies,” according to state law, but a special counsel may be appointed in rare cases of conflict or disagreement.
On Dec. 20, the day after Fox’s 30-day order, Mehdizadegan emailed two attorneys in Griffin’s office, Christine Cryer and Justin Brascher, saying he “would welcome the opportunity to discuss a workable solution.”
Cryer and Brascher have been representing the Board of Corrections in an unrelated federal lawsuit, and Mehdizadegan filed a motion Dec. 19 to disqualify them from representing Griffin’s office in the lawsuit against the board, claiming they had conflicts of interest.
Mehdizadegan wrote in his email that he knew Cryer and Brascher “may not be inclined to talk” to him and asked if anyone else in Griffin’s office could discuss the suit with him.
Senior Assistant Attorney General Noah Watson responded to Mehdizadegan on Dec. 21.
“As you know, we believe you don’t have the authority to represent the Board of Corrections,” he wrote. “Until you have been properly retained, we will have no further communication with you.”
Watson later emailed Mark Colbert, the Board of Corrections’ staff attorney, and asked if the board planned to “certify its need for legal representation” under the law allowing state entities to obtain special counsel.
Griffin’s attorneys filed both emails with Fox’s court on Dec. 29, labeling the filing “Notice of Attorney General’s Compliance with Court’s Order” and stating that Colbert had not responded.
At Monday’s hearing, Fox repeated his statement from December that Griffin was in “clear violation” of his legal duty to the prison board. He wrote in his ruling that the emails submitted were not enough to fulfill his order.
“The plaintiff, by email from plaintiff’s counsel, refused to communicate with the defendants’ current special counsel,” he wrote.
Background
In the lawsuit’s initial complaint, Griffin accused the Board of Correction of violating the Arkansas Freedom of Information Act when it entered executive session during a pair of recent public meetings. He claimed the board’s decision to retain Mehdizadegan was illegal because it happened during one of the executive sessions.
Griffin also said the board failed to properly respond to a public records request from his office earlier in December.
Watson amended Griffin’s complaint on Jan. 5, asking Fox to issue an injunction blocking Mehdizadegan from representing the board. The same day, Cryer and Brascher both filed motions to withdraw as Griffin’s counsel in the suit.
Fox said the focus on the plaintiff’s statutory responsibilities and the defendant’s counsel had overcomplicated the case.
“Thousands of dollars of taxpayer monies are being spent on ancillary issues in this matter that should have been a relatively straightforward FOIA lawsuit,” Fox said.
Meanwhile, the Board of Corrections’ lawsuit against Sanders and Profiri is ongoing, with Pulaski County Circuit Judge Patricia James overseeing it. Fox emphasized at the hearing that his ruling would be entirely separate from the other case’s proceedings.
The board filed suit last month after a disagreement over who has the ultimate authority over Arkansas’ prison system.
James granted the board’s request for a temporary restraining order blocking Profiri from proceeding with parts of a temporary prison expansion plan without the board’s approval.
That ruling came a day after the board voted to suspend Profiri with pay. The board fired him earlier this month after the restraining order was extended with a preliminary injunction, and Sanders hired him as a senior aide.
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