Attorney General Tim Griffin filed a motion Friday to disqualify the state Board of Corrections' lawyer in a Freedom of Information Act case, saying the board can't hire an outside attorney under a specific state law because that law pertains only to constitutional officers, and board members aren't constitutional officers.
"A State official is only a constitutional officer if his or her position is created by the Arkansas Constitution," wrote Griffin. "The Board and its members are created by statute, not the Constitution. ... Thus, the Defendants are not constitutional officers."
That outside attorney, Abtin Mehdizadegan, said that Griffin previously made an almost identical argument that has already been rejected by a different judge in a different case pertaining to the same parties.
"It's like 'Mom said no, so I'm going to go to Dad,'" said Mehdizadegan, who represents the board in both cases.
The law in question is Arkansas Code Annotated § 25-16-711, which Mehdizadegan has said gives the board the right to hire outside counsel.
The two lawsuits involving the state Board of Corrections and the attorney general's office were filed last month in Pulaski County Circuit Court.
On Dec. 14, the board filed a lawsuit saying Gov. Sarah Huckabee Sanders and former Department of Corrections Secretary Joe Profiri were trying to usurp the board's authority under the Arkansas Constitution. That case has been assigned to Judge Patricia James' court.
The next day, Griffin filed a lawsuit saying the board had violated the Arkansas Freedom of Information Act by hiring Mehdizadegan through illegal executive sessions and by not properly responding to open-records requests. That case is in Judge Tim Fox's court.
The board has been at loggerheads with Sanders and Profiri.
Sanders hired Profiri a year ago. He had been deputy director of the Arizona Department of Corrections.
The Arkansas board fired him Wednesday after a months-long disagreement over adding beds to Arkansas prisons.
Sanders quickly rehired Profiri to work as a senior adviser in the governor's office.
Profiri is at the center of a constitutional crisis in Arkansas' prison system.
Nominated by the governor and confirmed by the board in January 2023, Profiri operated as though he didn't have to answer to the state Board of Corrections.
Historically, under the Arkansas Constitution, the secretary serves at the pleasure of the board. But last year, two laws were passed that appear to change that.
Acts 185 and 659 were passed during the 2023 legislative session and signed into law by Sanders. Act 185 would require the secretary of corrections to serve at the pleasure of the governor, and Act 659 would, in part, require directors of the Divisions of Correction and Community Correction to serve at the pleasure of the secretary.
Attorneys for the board argue that the laws violate the state constitution's Amendment 33, which was ratified in 1942. The amendment prevents the Legislature and governor from making certain changes to boards or commissions that oversee the state's charitable, penal or correctional institutions, as well as institutions of higher learning.
The board filed its lawsuit seeking to ensure that it maintains its authority to supervise and manage the corrections secretary, as well as the directors of the Department of Corrections' Division of Correction and Division of Community Correction.
Judge James issued a temporary restraining order on Dec. 15 barring the enforcement of Act 185 of 2023 and portions of Act 659 of 2023, which the board contends weaken the board's authority set forth in the Arkansas Constitution.
After a hearing last week, James said she would convert the order into a preliminary injunction, which will stay in place until the lawsuit is resolved.
Griffin promised to appeal the judge's ruling to the Arkansas Supreme Court.
Last month, the board hired Mehdizadegan of Hall Booth Smith, P.C., as outside counsel. Mehdizadegan said the board had a legal right to do so under Arkansas Code § 25-16-711.
The statute reads, "In the event that 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 took issue with that in a brief filed Friday.
"The Board cannot proceed under Arkansas Code Annotated § 25-16-711 ..." wrote Griffin. "The Board and its members are not 'constitutional officers.' Thus, they cannot use § 25-16-711 to justify their illegal retention of HBS.
"HBS and its attorneys should therefore be disqualified from representing Defendants in this case."
Mehdizadegan said Griffin is making a second attempt.
"Judge James has already decided the issue, that the board is a constitutional board, its members are constitutional officers and if they have a disagreement with the attorney general about Amendment 33 among other statutes like 702 and 711, then they were fully authorized to hire me," Mehdizadegan said late Friday. "She's already decided that, so they're taking a second bite at this apple, I believe in a procedurally inappropriate way."
He was referring to Arkansas Code Annotated § 25-16-702, which Griffin cited in Friday's filing: "The Attorney General shall be the attorney for all state officials, departments, institutions, and agencies. Whenever any officer or department, institution, or agency of the state needs the services of an attorney, the matter shall be certified to the Attorney General for attention. No special counsel shall be employed or additional expense paid for those services."
That statute provides only two exceptions: If the attorney general determines that it's necessary for him to employ special counsel, or if he "cannot or fails to represent the State party that certifies a need for an attorney, then the Governor can appoint outside counsel or allow the State party to hire outside counsel."
"The Attorney General is the attorney for all State entities and officials," Griffin wrote in Friday's motion. "To proceed in litigation, State entities and officials must either certify to the Attorney General the need for an attorney or use their own in-house counsel. State entities and officials may only hire special counsel if the following three conditions are met: (1) they certify in writing their need for an attorney, (2) the Attorney General cannot or fails to represent them, and (3) the Governor authorizes the employment of special counsel. None of those requirements are met here."
"The Arkansas Board of Corrections has not certified to the Attorney General its need for legal counsel," Griffin wrote in a brief filed with the motion. "Because the Board has not met this required statutory prerequisite, it had no authority to retain special or outside counsel. Thus, it is illegal for Hall Booth Smith, P.C. to represent the Board under § 25-16-702."
On Thursday, regarding the board's lawsuit against Profiri, Sanders and the Department of Corrections, Senior Assistant Attorney General Noah P. Watson electronically filed a letter to Judge James asking her to reconsider the injunction, saying "The Plaintiffs have removed the only basis for their alleged irreparable harm" by firing Profiri and rendering him unable to take "actions to undermine the Board's decisions."
"Thus, the fact that Mr. Profiri has been fired -- in addition to the testimony, evidence, and argument at the hearing -- defeats the Plaintiffs' allegation that they are likely to suffer irreparable harm absent a preliminary injunction," wrote Watson.
Mehdizadegan disagreed in a e-filed letter on Friday, writing that, among other things, the board's irreparable harm flows from Act 185 and 659 of 2023, which unconstitutionally usurped the board's powers.
Relations between the board and Profiri soured quickly after a public meeting in November, at which time the board approved adding 60 beds at the Ouachita River Unit in Malvern and 70 beds at the North Central Unit in Calico Rock — but held off on adding an additional 492 beds at three other facilities, as Profiri had wanted.
Board member Lee Watson said Profiri was not present during that meeting and that the board learned "by proxy" about the secretary's desire to add those beds.
In spite of Profiri's absence and refusal to communicate, the board still approved the new beds at the Ouachita River and North Central units, Watson said.
Sanders held a news conference at the state Capitol the next week to criticize the board for failing to approve all the beds Profiri had requested.
Sanders called for the board to hold an emergency meeting to add the beds. Instead, it took up the issue at its next regular meeting, on Dec. 8.
During the December meeting, Profiri was present, but he was "defensive" and "argumentative" when the subject of more beds was brought up, Watson said.
The board approved adding 124 beds at the Ester Unit in Pine Bluff and tentatively agreed to 244 beds at the McPherson Unit in Newport on the condition that the board be informed about where those new inmates were being transferred from. The board chose not to vote on an additional 124 beds at the Tucker Unit in Jefferson County.
Noticing that Profiri was taking orders directly from the governor based on Act 185, board members realized they faced the likelihood of litigation, so they voted to hire Mehdizadegan as outside counsel at the end of the Dec. 8 meeting.
Sanders announced after the meeting that Profiri would add those beds to the Tucker facility without the board's approval, and she criticized the board.
On Dec. 14, the board voted 3-2 to suspend Profiri with pay. That same day, the board filed its lawsuit against Profiri, Sanders and the Department of Corrections. Griffin's lawsuit against the board was filed the following day.