ATTACK ADS UNDER ATTACK: Court hearing set Tuesday on Goodson's claim that they are defamatory and should be enjoined.


Supreme Court Justice Courtney Goodson’s
suit attempting to stop TV attack advertising against her by a Republican special interest group has now landed in federal Judge Brian MIller’s court.

Her defamation suit against the Republican State Leadership Committee Judicial Fairness Initiative was filed originally in state court, then removed by the defendant, based in Washington, to federal court. It was originally assigned to Judge Billy Roy Wilson, but he has recused, as did Judges James Moody Jr. and Susan Wright. Miller now has the case and has scheduled a hearing on a preliminary injunction at 9 a.m. Tuesday Wednesday.

Goodson is trying to stop the ads by claiming they are defamatory and false by the omission of explanatory facts, such as that she recuses from cases in which lawyers from whom she’s received gifts are participating. I’ve commented before about my skepticism about her legal argument.

In a brief seeking denial of an injunction against the ad, the defendant, represented by John Tull of Little Rock, concludes pithily:

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The statements made in RSLC-JFI’s advertisements are true. To the extent Justice Goodson and her campaign disagree, she can share her message with the public. However, the First Amendment prohibits Justice Goodson from obtaining a preliminary injunction silencing her critics..

But the brief also argues that Goodson has not always disqualified herself from cases involving lawyers with whom she’s had connections.

Despite Goodson’s protestations, Justice Goodson does not recuse from every case involving persons or entities who gave her gifts. Goodson claims in her verified complaint that she “has always recused from participating in any cases involving persons or entities with whom she has a close personal relationship and/or who gave her gifts” including—specifically—Tyson Foods. The statement in Goodson’s verified complaint is false. Justice Goodson not only failed to recuse from a 2011 alleged toxic tort suit in which Tyson Foods was a defendant, she authored the opinion ruling in favor of Tyson.

Therefore, even if the RSLC-JFI’s advertisement implies that Justice Goodson hears cases involving parties that have given her gifts, the implication would be true.

Furthermore, Justice Goodson’s recusal from cases specifically involving trial attorneys who donated to her campaign and gave her gifts does not change the fact that she does not recuse from many cases in which those very attorneys have a vested interest. See, e.g. Bayer CropScience LP v. Schafer, 2011 Ark. 518, 13, 385 S.W.3d 822, 831 (2011) (Goodson, J.) (holding that a law capping punitive damages awards was unconstitutional). Indeed, Justice Goodson recently did not recuse from Martin v. Humphrey, where the Arkansas Supreme Court held that Issue 1, a ballot measure strongly opposed by Arkansas trial lawyers, was unconstitutional.

Don’t confuse my agreement with the legal argument with support for the source. They are an outfit funded by some of the worst corporate interests — U.S. Chamber of Commerce and tobacco companies, for example. But the source of the money attacking Goodson and their agenda are all but anonymous to the average (even above-average) Arkansas voter. This group wants nothing less than conservative corporate control of courts and legislatures. There’s some fundamental hypocrisy in their attempt to portray Goodson as the tool of special interests.

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The Republican attack ads — about $1 million worth in mail and TV — are working to elect David Sterling, a Hutchinson administration lawyer who’s worked to depict himself as a Republican and political ally of Donald Trump in seeking what’s nominally a non-partisan seat on the Arkansas Supreme Court.

And speaking of David Sterling: the state Ethics Commission is investigating a complaint that he attended a political rally on a Friday afternoon in Little Rock for Vice President Mike Pence without taking leave time from his state job as counsel for the Human Services Department. It is unlawful to devote office hour time to a political campaign.

Additionally, I’ve received a copy of a complaint supposedly sent to the state Judicial Discipline and Disability Commission that says Sterling has violated rules of conduct for judges and candidates for judgeships by accepting an endorsement from a political organization. It operates independently, but Sterling has not called on it to stop the advertising or distanced himself from it. The complaint speaks of the “overtly political” tone of this and other recent judicial elections. The Commission should be vigilant about partisan activites “if electing judges is to remain viable in Arkansas.”