SHAWN WOMACK: Blasted for meddling in judicial allocation decisions.

A blast has been fired at Supreme Court Justice Shawn Womack’s effort to influence judgeship allocations in the state, specifically his insistence that new judgeships should be created only by lopping judges off some other districts. The original article is now UPDATED with Womack’s response.

This is, admittedly, inside baseball of interest primarily to the judges themselves and the lawyers who practice in their courts. But it’s also about politics and race.

Womack has insinuated himself to influence a committee that reviews judicial allocations, where no Supreme Court justice has previously participated. He’s also adopting, as a former Republican senator, the Hutchinson administration approach to cut state spending wherever posible so as to free up more money for tax cuts for the rich.

Five judicial districts, including populous districts comprised respectively of Benton and Crawford counties, have been recommended for new judgeships. But, so far, Womack has orchestrated a proposal that would create those seats by taking them from other districts. He targets places where expected retirements mean a loss of judgeships wouldn’t necessarily cost anyone a job. Pulaski County judges have already objected to Womack’s support for trimming a judgeship in the state’s largest county, with one of the higher caseloads.

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Now comes the judges of the 10th Judicial Circuit in South Arkansas. In a letter signed by Chief Administrative Judge Bynum Gibson and Judges Teresa French, Kenneth Johnson, Quincey Ross, Sam Pope and Steve Porch, they seek the support of other judges in the state for a more “collegial” approach to decision-making. The Arkansas Judicial Council will discuss the issue at a meeting in Rogers beginning Wednesday of next week.

The letter notes that caseloads alone aren’t a measure of workload. For example, the 10th covers five counties, requiring travel for judges to reach courthouses in Ashley, Bradley, Chicot, Desha and Drew counties. The letter cites other extenuating factors: Some counties with heavy caseloads are able to use district court judges, but choose not to do so. Some have caseloads that are higher because of drug courts that poorer counties can’t afford. (Nor can defendants find means to reach such courts if they did have them, the letter notes.)

The letter challenges Womack on his belief that the plan should be revenue neutral.

“Why would we believe that? This Council has never made that assumption when asking for additional judgeships. Instead we have unified and lobbied our legislators to help whatever District needs the judgeship. Council has never used that assumption as a pretext for turning one district against another, for raiding one district for the benefit of another.”

The letter notes the state ended fiscal 2018 with a surplus and the revenue forecast this year remains strong.

The letter pointedly notes that the Judicial Resources Assessment Committee was created by the legislature to advise on judgeships and its bylaws say it is a circuit judge-only committee. Yet Womack has assumed a driving role.

We doubt that, until now, any Supreme Court justice has been inclined, given their other substantial responsibilities, to give JRAC a thought. Notwithstanding, Justice Womack has repeatedly sent us emails which clearly show that he has assumed the role of the JRAC. Justice Womack has called two of the judges in this district to try to get support for his plan and asking them which county they would prefer to give up, Bradly or Ashley. (You can’t make this stuff up.) Justice Womack’s phone calls inviting different opinions from two of our judges are unwelcomed. His involvement in this whole process has been outside of any authority conferred upon him by the laws of the state or the bylaws of this council

The letter goes on to object to Womack emails that seem to direct how the coming meeting on judicial districts will be conducted and setting limits on who may speak.

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The letter also references a legally volatile issue I’ve mentioned previously. Womack’s case allocation plans tend to take away from the southern end of the state, where black population is heavy. Womack would move some counties covered in the Hunt Decree, the landmark federal court decision to settle a lawsuit over racial discrimination in judicial elections. It created “subdistricts” with majority black voting populations and has resulted in a number of black judges.  Judges in the 10th got little notice of Womack’s idea to move Bradley County out of the 10th District. It includes part of one of the subdistricts included in the decree and notice is required for changes in the affected districts.  Said the letter:

No one including the U.S. district court will be impressed with this treatment of the Hunt Decree. … The Hunt Decree is and was not about technicalities or notice. The Hunt Decree is and was about vindicating the rights of people to have their votes counted in a meaningful way, and for the first time giving our judiciary the face of the people.

Taking everything into account that we have seen, we are convinced of this: The world view of those pushing this measure does not accommodate an appreciation for the Hunt Decree or any empathy for the citizens whose voting rights Hunt vindicated. Nor does their world view acknowledge the Hunt Decree’s contributions to the quality of our judiciary. They see the Hunt decree as they see our bylaws, an inconvenience, an obstacle to their objectives, something to circumvent.

Well. Game on. Gibson, leader of the letter, is a former state legislator and Democratic Party chair and knows a thing or two about politics. Womack, as a Republican senator from mostly white Mountain Home, is decidedly on the opposite end of the political spectrum, though a member of the party firmly in control of the legislature.

The Hunt Decree is no joke.  Indeed before receiving a copy of this letter today, I’d earlier seen an email from Circuit Judge Wiley Branton of Little Rock, current president of the Judicial Council, which consists of all the state’s trial judges. Branton, who is black, is the son of the legendary civil rights lawyer Wiley Branton Sr. He wrote to object to a move of the JRAC meeting from Wednesday of next week’s meeting to Friday, a move done after it was realized it wasn’t called with enough notice to comply with the decree. So it was moved to Friday, the day after the judges’ business meeting closes. That, Branton said, is after many judges had planned to return home. Why push a meeting on Friday, he asked. Why not schedule a meeting that all on the JRAC could attend later, with ample notice? The issue is “extremely important and sensitive,” he wrote.

I’ve asked Womack for a response. He asked for a copy of the letter, which he hasn’t yet received. It was sent to all appellate and circuit judges and it is getting around. I’ll update if he offers thoughts.

UPDATE: This afternoon, Judge Branton informed judges that counsel for plaintiffs in the Hunt decree, Arkie Byrd of Little Rock, had agreed to waive the 30-day notice requirement so that the JRAC could meet Wednesday afternoon in Rogers. I expect a full and frank discussion.

UPDATE II: Justice Womack provided a lengthy response, printed here in full:

· JRAC is responsible for considering issues that impact the allocation of judicial resources in the state and making recommendations for changes that may need to be made from time to time. This includes looking at caseload data, population changes, and other relevant information and making recommendations regarding the boundaries of judicial circuits and the need for judgeships in various areas.

· Five circuits have made requests for an additional judgeship based upon an average caseload per judge that is significantly higher than the state average, growing populations, and other issues that impact their circuits. Average caseloads per judge in the top five circuits are 2,255, 2,086, 1,964, 1,915, and 1,811 respectively. The average caseload per judge in the state is 1,484. I believe that the need for new judges is critical to the fair and efficient administration of justice in those top five circuits.

· Ultimately, the decision to add or subtract judgeships or redistrict boundaries belongs to the General Assembly. JRAC and Judicial Council have a role in making recommendations and providing input.

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· I have suggested that, in my experience, the best way to improve the likelihood of success when requesting funding from the General Assembly is to provide a way to make it revenue neutral. Because I suggested it, I was asked to look at options for revenue neutrality. My involvement in the process was primarily a function of analyzing data. I was ultimately appointed to chair a working group to collect data and consider proposals to achieve revenue neutrality in the request for more judges.

· In addition to having five circuits who are significantly above the state average caseload, we also have several districts are significantly below the average of 1,484 per judge. Those low districts ranged from 991 cases per judge to 1,162 cases per judge. We looked not only at caseload data, but also census data to show population trends in areas that are either losing or gaining population. We also looked at other local resources available, including access to full-time state district judges, law clerks, facilities (for new positions), and travel requirements.

· I personally committed to each judge that I talked to that I would not propose or support any change that eliminated a judgeship where a current judge was eligible to run again (looking only at seats known to be open in 2020 due to a retirement of a judge over age 70) and looking only at seats that are not sub-district positions created under the Hunt Decree.

· With these factors in mind, I ultimately proposed to the working group an option that would include the redistricting of two counties, Dallas and Bradley, into neighboring circuits to address some of the low caseload issues. I also provided a menu of options that could be presented to the General Assembly to eliminate five positions as an offset to the five new positions that would be created. Four of the seats that I proposed to be considered are in extremely low caseload circuits with rapidly declining populations. One of these four seats would include a merger of Arkansas County into 11W. The other seat is in a circuit with stable population and slightly above average caseload but with extraordinary local resources and minimal travel.

· I have not suggested that anyone be limited in their presentation to JRAC next week. I did request in advance of the working group meeting last month that each circuit designate a representative to speak in the interest of time. However, every judge present that wanted to speak was recognized, including multiple judges from some circuits. We heard from judges in the 1st, 6th, and 11thW. Circuits. There was no representative present by either phone or conference call from the 10th, but, I had spoken by phone or email with three of their judges. I took time during the meeting to express their opposition to the plan, including concerns about high poverty rates, high percentages of self-represented litigants, a lack of local resources, the potential loss of Bradley county, and disruption to service providers in the area. There were at least nine circuit judges from Little Rock present.

· I was appointed to serve on the JRAC committee of Judicial Council in 2015, when I was still a circuit judge. I moved from circuit judge to supreme court justice in January of 2017 and have continued to serve on JRAC. However, it appears that there is a by-law provision that designates that JRAC members be circuit judges and my status was challenged by a judge from Pulaski County. My status on JRAC will be resolved at the Judicial Council meeting next week. Until that resolution, I have committed not to vote on proposals in the JRAC committee.

· It has long been the practice that any member of Judicial Council may attend committee meetings and make proposals whether they are members of the committee or not; they are only prohibited from voting.

· The working group was separate from JRAC. It was not an official committee of Judicial Council and has no authority to make any decisions. It existed, briefly, for the purpose of analyzing data and proving information that may later be considered by JRAC or Judicial Council. My membership on the working group was not dependent upon my membership on JRAC.

· Finally, change is hard. I get that. Nobody wants to lose anything they have, regardless of what the data shows, including judicial seats. Again, my involvement has been to analyze data and to make recommendations based on that data that will, at least, provide a menu of options for the General Assembly to consider as cost offsets when they are asked to provide five new positions. Whether JRAC, Judicial Council, or the General Assembly chooses to accept all, some, or none of the proposal is not my concern. My concern has been, and continues to be, that we fairly and honestly analyze the information we have and make decisions that reflect the responsible and efficient management of the judicial resources the state provides.