Attorney General Tim Griffin filed a motion on Monday seeking reconsideration of a Pulaski County circuit judge’s temporary restraining order that blocked Gov. Sarah Huckabee Sanders from bypassing the state Board of Corrections’ constitutional authority and adding hundreds of beds at several state prisons. He also filed motions to disqualify the board’s legal counsel and to dismiss the case entirely.
Judge Patricia James issued the temporary restraining order on Friday in response to a lawsuit the board filed Thursday against Sanders and state Department of Corrections Secretary Joe Profiri. In their complaint, the board alleged that Sanders and Profiri used Act 185 and some sections of Act 659 to circumvent their authority. The judge’s order temporarily prevents the state from enforcing the former law and portions of the latter. She set a hearing date for Dec. 28.
In Griffin’s brief supporting his motion for reconsideration, the attorney general said a temporary restraining order is allowable only if the board shows that they are likely to succeed on the merits and that they will suffer “irreparable harm” without the temporary restraining order over the 14 days the order may be in effect.
“They show neither here,” he writes.
James said in last week’s order that the board’s lawsuit was likely to succeed on the merits because the board’s authority is ingrained in the state constitution.
However, Griffin argues that the board cannot seek relief under the Declaratory Judgments Act, because it allows a “person” to obtain said relief. He said that the members, acting as the board, are “government actors” in the case, rather than “persons.” He also said the board failed to demonstrate how they will suffer irreparable harm without the order. He challenged what he saw as the plaintiff’s allegation that Profiri would continue to disobey their orders, saying that the board placed the secretary on leave and is appointing its own acting executive in charge.
“The Board has already negated the alleged harm,” Griffin said.
He added that the restraining order would instead “irreparably harm” Sanders, Profiri and the state Department of Corrections, arguing that the board could use the temporary restraining order to fire Profiri and “forever block him from being Secretary,” even if the board loses the case.
“In other words, under the [order], the Board could upset the status quo with a metaphorical waive [sic] of the hand,” he wrote.
The board, in the brief they filed Thursday in support of their request for the order, wrote that it “must have the authority to address Secretary Profiri’s employment immediately because he violated a direct order and callously placed human lives in harm’s way.”
James, in her order, described the alleged injury to the board as “substantial.” She added that, without relief, the board would suffer harm because the defendants “caused additional beds to inadequate facilities” and because portions of the Arkansas Code of statutes “usurped the Board’s powers.”
In his motion to dismiss the case, Griffin likewise argued the board is ineligible to bring its claim under the Declaratory Judgments Act for the reasons previously given.
The attorney general, in his motion to disqualify the attorney hired as a special counsel by the Board of Corrections, alleges that the Little Rock attorney, Abtin Mehdizadegan of Hall Booth Smith, “has been retained illegally” and “should be disqualified as counsel.”
The body violated Arkansas Code 25-16-702(a), which states that the attorney general “shall be the attorney for all state officials, departments, institutions, and agencies,” according to Griffin. He also said the board didn’t get approval from the governor before retaining Mehdizadegan, as required.
Mehdizadegan, in a phone interview last week, said he disagreed with Griffin’s “allegations of misconduct” and referred to Arkansas Code 25-16-711, which states that “whenever the Attorney General and a constitutional officer disagree on the interpretation of any constitutional provision, act, rule, or regulation which affects the duties of that constitutional officer, the constitutional officer is authorized to employ special counsel to resolve the disagreement by litigation.”
Griffin argues in his motion to dismiss Mehdizadegan that Arkansas Code 25-16-711 doesn’t apply to this case, as he said members of the board aren’t considered constitutional officers.
The attorney general announced a separate lawsuit on Friday, just minutes after James’ order posted online, alleging the board violated the state’s open meetings and records law when it hired Mehdizadegan during a closed session and that it failed to properly respond to a Freedom of Information Act request from the attorney general’s office. The attorney general sent a letter to Magness, the board chair last week stating the body needed to “cure these illegal actions” no later than than Dec. 15, the day Griffin ultimately filed the lawsuit.
The public fight between Sanders and the Board of Corrections began last month, after the governor called a news conference to pressure board members into backing her request to add 622 beds at several state facilities. The board had agreed to add 60 temporary beds at the Ouachita River Unit in Malvern, as well as 70 beds at the North Central Unit in Callico Rock. However, it initially rejected her request for a combined 492 beds at the Barber Ester Unit in Pine Bluff, the McPherson Unit in Newport and the Maximum Security Unit in Jefferson County.
At the time, the board said renovations were needed at two of the facilities. Members also expressed concerns that some of the prisons were already overcrowded and the expansions wouldn’t serve county jails’ long-term needs.
The board later agreed to additional beds at the Ester Unit, but balked at adding 368 beds at the McPherson and Maximum Security units in Newport and Jefferson counties.
A spokeswoman for Sanders’ office said Dec. 8 that Profiri would move forward with the full plan, anyway, under orders from the governor.
“It’s unfortunate the Board of Corrections did not listen to Secretary Profiri about the urgency of this matter and continues to play politics with the safety and security of Arkansans,” Sanders spokeswoman Alexa Henning said in an email to the Arkansas Democrat-Gazette.
Henning said that, according to the law, Profiri had the authority to open bed space, “and he will be doing so.”
The dispute between the board and Sanders escalated Thursday after board members voted to suspend Profiri. The board voted 3-2 in favor of the suspension, with Magness saying after the meeting “The secretary has made it clear in public and in private that he works exclusively for the governor and not the board.”
Profiri has said he would remain at work regardless of the board’s decision, but he didn’t show up to any Department of Corrections offices Friday, according to Department of Correction spokeswoman Dina Tyler. Instead, Profiri met with Sanders on Friday in the governor’s conference room at the state Capitol, along with House Speaker Matthew Shepherd, R-El Dorado, and Senate President Pro-tempore Bart Hester, R-Cave Springs.
The governor cited Acts 185 and 659, both passed earlier this year, as legal justification for ordering Profiri to move forward with adding the beds. Act 185 states the secretary of corrections serves at the pleasure of the governor, not the Board of Corrections. Act 659, also known as the Protect Act, requires the directors of the Division of Correction and Community Correction to serve at the pleasure of the secretary, not the board.
However, the board maintains those laws violate the body’s authority, which comes from Amendment 33 to the Arkansas Constitution. That amendment prohibits the governor and Legislature from making certain kinds of changes to state boards and commissions that oversee Arkansas’ charitable, penal, correctional and higher education institutions. It was ratified in 1942 in response to a dispute between then-Gov. Homer M. Adkins and J. William Fulbright, after the former appointed all new members of the University of Arkansas-Fayetteville’s board so that he could fire the latter.
The move infuriated much of the public and prompted the attempt to limit the governor’s authority of certain types of state boards through several constitutional amendments ratified in the 1940s and 1950s, Ben Johnson, a retired history professor from Southern Arkansas University, said Friday in an interview with the Arkansas Democrat-Gazette.