Panel's bid to subpoena Arkansas judge on foster care raises fuss

Judges and a law school dean have expressed concern about a legislative committee's wish to subpoena a judge to ask her how she handles foster care cases.

The subpoena went nowhere after House and Senate leaders refused to sign off on the subpoena after they received information questioning the legality of the move.

The signatures of Senate President Pro Tempore Jonathan Dismang, R-Searcy, and House Speaker Jeremy Gillam, R-Judsonia, were required for the subpoena to carry the force of law, Dismang said.

The legislative Joint Performance Review Committee voted in late August to subpoena Circuit Judge Patricia James of Little Rock after a departing state official told the committee that the judge impeded efforts to place foster children with family members.

The refusal by Gillam and Dismang to go through with the subpoena came after John DiPippa, dean emeritus of the University of Arkansas at Little Rock W.H. Bowen School of Law, sent a letter telling lawmakers that the requested subpoena "is unprecedented in Arkansas and almost unheard of in the rest of the country."

"Our long constitutional history counsels against one branch of government interfering with the operations of another," DiPippa said. "We should not tarnish that history by going forward with this subpoena."

In addition, a past president of the state's Judicial Council said that body was preparing a statement on the subpoena.

But Sen. Alan Clark, R-Lonsdale, a committee co-chairman who pushed for the subpoena, said the judge has information that could help lawmakers understand what's happening in the child-welfare system. The Joint Performance Review Committee investigates problems in state government.

In an interview, he said a report commissioned by the Children and Family Services Division demonstrates that some decisions on child placement are questionable.

The report, made public earlier this week, said about 22 percent of child removals from their homes are "potentially" unnecessary. Valid child removals must involve "an imminent safety threat to the child" and no "reasonable" alternative. Gov. Asa Hutchinson has disputed the report, saying it comes down to a matter of judgment.

State law says placement with family members is preferred. But in an April interview with a reporter, James said she does not and will not place abused children with relatives who have not been properly vetted by the Children and Family Services Division. Often, the division does not do so, she said.

The naming of James in a May committee meeting attracted Clark's attention. He is co-chairman of the panel.

"You can't talk about the problem without her name coming up," he said.

Clark said that after her name was first invoked in the May meeting, James called committee staff members and volunteered to testify. Clark said he tried to set up a date for her to testify.

"Somehow, it didn't work out. We didn't hear from her. So we began to call her, our staff began to call her, from mid-May on through June, July, August," Clark said. "From July on, her staff didn't even return our staff's phone calls."

That led to the request for the subpoena.

"We had a witness that was very appropriate to what we were looking into that was not even returning our calls," Clark said. "It was not on our bucket list to subpoena a judge."

Clark said he ran the idea of subpoenaing James by Dismang. Meanwhile, the other co-chairman of the Joint Performance Review Committee, Rep. Kim Hammer, R-Benton, ran the plan by Gillam.

Gillam, like Dismang, said he believed the committee could get the requested information in another manner.

Hammer said: "I think the way the process is designed, it's got stopgaps in it, that at any given level, someone can stop it. I would only say that given the long history that we have ongoing with this issue, that it had already cleared a lot of hurdles for the subpoena to be issued."

Clark said he believed he had the leaders' blessing. The panel approved the subpoena without dissent in an Aug. 30 meeting.

"Then Jonathan Dismang decided he wasn't going to sign it," Clark said.

In an interview, Dismang said he told Clark that he should do what he felt he needed to do with his committee, but he would not be involved because he was not familiar with the issue.

"Later, I found out that I would actually be signing the subpoena," Dismang said. "That makes me very much involved, and I wanted to make sure I understood exactly what we were doing, why we were doing it and if it was possible."

He said he spoke to James and decided there were issues that he felt could be resolved without a subpoena. Dismang said the committee "had scheduled and unscheduled on her maybe a couple of times."

More broadly, Dismang said he had discussions with the committee chairmen about their direction and the discussion of individual cases.

"They've told me over and over again that it's not about individual cases, it's about making sure that we have the policy right," he said. "If we get off in the weeds and try to start, essentially, litigating specific cases, then I don't think that's the duty of [the Joint Performance Review Committee]."

In meetings over the past year, the panel has heard from various people who said they believe the state should have awarded the custody of children to them.

The Children and Family Services Division, which is in charge of the state's foster care system, has said there's more to the stories, but it cannot comment because of child privacy laws.

Then, in a meeting in September, David Sterling, chief counsel for the Department of Human Services, told Clark on multiple occasions that he was on the cusp of breaking state law by disclosing protected information.

James referred questions on Friday to Circuit Judge Mary McGowan, who was president of the state's Judicial Council until that evening. James also forwarded the letter from DiPippa to a reporter.

McGowan said the council, which is composed of circuit judges, Court of Appeals judges and Supreme Court justices in Arkansas, was preparing a statement on the subpoena, but it had not yet received full board approval.

"We've always had a strong working relationship with the Legislature because there are issues that we see from a different perspective than they do" but "this is an issue that we are 100 percent behind Patti because this can affect all judges," she said.

James did try to testify before the Joint Performance Review Committee and "rearranged her docket twice to go out there," but the meetings were canceled, McGowan said.

There were concerns about lawmakers pressing James on individual cases, she said.

"Those juvenile records are sealed for a reason," she said. "They're to protect children and their families."

In the letter, DiPippa wrote that the subpoena, in his opinion, violates the separation-of-powers principle in the state constitution and "is, for that reason, unconstitutional."

"The separation of powers doctrine not only protects the branches from each other but ensures individual liberty as well," he wrote. "Judges must be free to decide cases on their understanding of the facts and the law. The system of appeals and judicial discipline is the proper way to ensure that courts and judges operate fairly and effectively."

A Section on 10/15/2016

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