Judge to stay on in district takeover case

Pulaski County Circuit Judge Wendell Griffen declined Thursday to step aside from a case involving the state takeover of the Little Rock School District.

Griffen also set a preliminary injunction hearing on the matter for Wednesday and Thursday at 10 a.m. The hearing could put a stop -- temporarily or ultimately -- on the state's control over the largest school district in Arkansas.

Griffen was randomly assigned to the case on Feb. 20, just after the plaintiffs -- including three recently displaced Little Rock School Board members -- filed the lawsuit. The suit is against the state Board of Education, Education Commissioner Tony Wood and Baker Kurrus, who was picked to lead a committee that will make fiscal recommendations for the Little Rock School District.

The defendants had asked Griffen to recuse himself from the case because of a Jan. 28 statement the judge made to the Education Board. Griffen had urged the Education Board to leave the School Board intact, according to the statement, which was published by the Arkansas Times blog that same day.

"Remarkably, Defendants argue that there is something improper about this Court fulfilling its duty to hear and assign a randomly assigned case involving a controversy simply because Defendants disagree with the public statements made by the undersigned about this controversy even though Defendants admit they know there was nothing unethical about what the undersigned said or did," Griffen wrote in an order Thursday. "As such, the recusal motion is a naked ploy by Defendants to have this lawsuit heard and decide by an impartial judge they favor, as opposed to an impartial judge with whom they disagree."

In Griffen's published statement to the Education Board, he said the newly elected School Board was working to undo years of discrimination to provide a quality education for all of the district's 24,800 students. Dismantling the board would also disenfranchise voters who elected those representatives, he said in the statement.

The Education Board went ahead with the takeover in a 5-4 vote and named Dexter Suggs as the district's interim superintendent. The vote was centered on the district's six academically distressed schools -- Baseline Elementary; Cloverdale and Henderson middle schools; and J.A. Fair, Hall and McClellan high schools.

The lawsuit ensued, contending that the state didn't have the authority to take over the 48-school district.

Jeremy Lasiter, an attorney for the Arkansas Department of Education, then asked the judge to step down from the case, saying in court documents that judges must avoid any appearance of bias. Pointing to rules in the Arkansas Code of Judicial Conduct, he said Griffen's statements "point to a bias in favor of the plaintiffs' position" and "at the very least ... point to an appearance of unfairness."

Education Department spokesman Kimberly Friedman said the department was surprised by Griffen's Thursday ruling. Griffen had afforded department attorneys a five-day period to respond to the plaintiffs' attorneys' court documents.

"[Thursday] afternoon, Judge Griffen issued his order without giving us five full days to file the reply brief," Friedman said in an email Thursday. "We will ask Judge Griffen to reconsider [the] ruling. We have the utmost respect for Judge Griffen, but we continue to strongly believe that recusal is required in this case."

The plaintiffs' attorneys disagreed.

"The written comments by the Court are not enough to warrant recusal in this case because the key issue will turn on whether sovereign immunity applies," the plaintiffs attorneys said in court documents. "The Court is required to confine its analysis to the pleadings and the records. In light of this requirement, the comments made by the Court will have no bearing on how this case is decided."

Sovereign immunity is the idea that the state cannot be sued in one of its courts, said Marion Humphrey, a former judge and one of the three attorneys representing the plaintiffs. Humphrey added Thursday that there's an exception when state officials do not follow state laws.

The plaintiffs have contended that at least three of the Education Board members who voted in favor of the takeover should have abstained from the decision because of their connections to groups advocating for statewide education changes, he added.

Kim Davis is the director of external relations and economic development for the Northwest Arkansas Council, with sponsors including the Walton Family Foundation, Humphrey said. Diane Zook's nephew, Gary Newton, is the executive director of the Arkansas Learns organization, which advocates in the Legislature and elsewhere for parents' choice of schools and receives funding from the Walton Family Foundation, he said. Toyce Newton, the president and CEO of Phoenix Youth and Family Services, Inc., was previously chairman of the Winthrop Rockefeller Foundation, Humphrey said.

The plaintiffs have also said that state officials violated an Arkansas statute by failing to submit to legislators the reasons for the takeover of the district. The law gives the education commissioner 10 days starting from the day the Education Board assumes authority over a school district to send a statement to the chairmen of the House and Senate education committees explaining why it took over a district and what steps the district can take to resume local control.

Friedman, the Education Department spokesman, has said officials sent notice to the legislators in compliance with Arkansas Code Annotated 6-13-112.

On Thursday, Griffen said he wrote the statement before any litigation happened and that no one could have foreseen the lawsuit.

"Beyond that, there is a fundamental and distinct difference between stating an opinion about an issue and committing, pledging, or promising to decide controversies involving that issue in a particular way," he wrote in the order. "The Code of Judicial Conduct does not prohibit judges from expressing their views about controversial issues of the day. Extrajudicial public comments do not require recusal, however strongly they may be held or expressed, unless they amount to commitments, pledges, or promises about how cases and controversies will be decided."

In court documents filed Thursday, Lasiter asked Griffen to withdraw his order on the recusal motion and consider the defendants' reply. Usually, appeals on recusals follow a final judgment on a case.

Lasiter also asked the court to postpone the preliminary injunction hearing. He and Lori Freno, another Education Department attorney, do not represent Kurrus, who has not yet listed an attorney in the court record.

Court documents show that Lasiter intends to file a motion to dismiss that "will raise the issue of sovereign immunity." If that motion is granted, it "will prevent the plaintiffs from pursuing this case further," Lasiter said in court documents.

Metro on 03/13/2015