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Decision raises Goodson recusal questions

by John Moritz | May 19, 2018 at 3:45 a.m. | Updated May 19, 2018 at 3:45 a.m.

In a public courtroom Friday, lawyers speaking on behalf of state Supreme Court Justice Courtney Goodson argued that decades of free-speech precedents did not protect the attack ads being aired against the justice in her re-election campaign.

That raises the question: Will Goodson have to recuse from future cases in which similar First Amendment questions are at issue?

The Arkansas Code of Judicial Conduct governs ethics for judges. Rule 3.1 allows for extrajudicial activity, under certain guidelines.

"Public comments may require the judge to disqualify himself or herself when litigation involving those issues comes before the judge," an official comment on Rule 3.1 states. "When making such statements, a judge should acknowledge the overarching judicial obligation to apply and uphold the law, without regard to his or her personal views."

Goodson, who says the ads are defamatory, did not testify in court Friday. But her lawyers made arguments for her, and interpreted the meaning of U.S. Supreme Court decisions on the First Amendment, including New York Times v. Sullivan and United States v. Alvarez.

If arguments about those same cases went before the Arkansas Supreme Court, would Goodson be expected to recuse?

"I don't think so," said Joshua Silverstein, a law professor at the University of Arkansas at Little Rock's William H. Bowen School of Law. "That would be a real hampering of [judges'] rights to defend themselves."

Still, Silverstein said litigants could make a "non-frivolous" argument that Goodson should recuse from a similar case.

Goodson responded to the question after Pulaski County Circuit Judge Chris Piazza ruled to block TV ads from running against her in central Arkansas.

"I would have to think through that, honestly," Goodson said. "I'm just so elated right now I don't know the answer."

Goodson's opponents also spoke with hesitancy.

"It's one of those maybe things because the First Amendment is so broad," said Court of Appeals Judge Kenneth Hixson, one of two challengers to Goodson in Tuesday's election.

Hixson raised the idea of a hypothetical case reaching the state Supreme Court involving another candidate arguing to block attack ads.

"That's pretty close to home," said Hixson, who has also been the subject of attack ads. In such a case, he said he would probably recuse.

David Sterling, the other challenger and the top attorney at the Department of Human Services, said he lacked the information to make a decision.

"I don't know," Sterling said. "I wasn't in the court, I didn't hear all that stuff."

A Section on 05/19/2018

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