A couple of things today reminded me of the pending election betweenAppeals Court Judge Karen Baker and Judge Tim Fox for a seat on the Arkansas Supreme Court. Baker nearly won without a runoff and is the heavy favorite. She was given a glowing endorsement today by the Arkansas Democrat-Gazette, which invoked the sainted Richard S. Arnold and Learned Hand in the process.
I have written before that my own experience in 1997 with Judge Baker, then a chancellor, was short of a Learned Hand moment. In a hotly contested divorce case involving a local business titan, Acxiom leader Charles Morgan, she ignored my motion to intervene in the case for open court. After the case was settled, she ruled my timely and legal motion to intervene — which had not been afforded a response, much less a hearing — moot.
The judge closed not only the record of the testimony and evidence in the case (the law does allow closure of hearings in divorce actions on petition of a party), she closed everything else, from the initial divorce filing to her final decree. This, you may be sure, is not a practice extended to the thousands of other divorce cases filed in Arkansas every year. I filed a legal motion to open the file. She ignored it for five months. When it finally became clear to the judge that I was not going to go away, she grudgingly took briefs from parties and quickly denied my petitions. She wrote, in part:
“It would be of little value for the court to hear the matter in private if the written memorial of the hearing, i.e., the court’s order, were then opened to public scrutiny.”
The judge, thus, articulated the belief that final orders in divorce cases should be secret. A party need only ask. (In this case, the controversial information about financial matters related to Acxiom that prompted Morgan’s desire for a closed hearing had been worked out in a private property settlement and were not a part of the final decree.) Under her theory, there should be no way for the public to know if the court system it finances has been fair to both parties or has enforced its decrees in succeeding years. In Judge Baker’s view, there’s no reason for the public to even know that a divorce case was ever filed, at least if it’s the case of a multi-millionaire local business heavyweight. Hard to imagine Judge Arnold taking a similar view.
Since then, Judge Baker has tiptoed all around rules meant to keep partisan coloration out of judicial races, by reaching out to Republican groups and accepting partisan financial support. (Fox has done this, too. Two wrongs don’t make a right.) Her supporters have also taken pains to make it known that her opponent was responsible for the ruling, upheld by the state Supreme Court, that held it unconstitutional to ban gay people from being foster parents. It was a proud moment on a tough case for Judge Fox. I hope Baker’s backers’ criticism isn’t meant to imply she’d upend such a finding, not with a related case pending before the Supreme Court. I do know that Judge Baker’s own day of reckoning, on open courts, wasn’t so praiseworthy. I know I’d never expect a fair shot out of her should my pleadings reach her again.