That snow-day controversy in Washington County Circuit Court in Fayetteville has now been elevated to the Arkansas Supreme Court.
The case presents a worthy issue: May a judge banish a lawyer he doesn’t like from his court?
You’d think not.
Let’s refresh our memories from a column in this space in early March.
They got 23 inches of snow one day in February in Fayetteville. But Circuit Judge William Storey, a judge for more than two decades, had a big procedural day planned the next morning.
Because he wanted to be accessible to any petitioners who might have come to town for the occasion, he held his court open despite the conditions.
This judge handles about 85 percent of the criminal cases in Washington County.
On Facebook the day before, a deputy public defender, Julie Tolleson, complained about this holding of court. She wrote that nobody in power gave a rat’s behind about poor people who could not easily get themselves transported safely to court in such conditions. She wrote that the policy of holding court on such days was irrational.
Storey is not a Facebook guy, but a friend of his was, and this friend informed the judge of Tolleson’s post.
Storey did not like what he read. He does not take lightly, he told me, allegations that he doesn’t give a rat’s posterior about people and that he is irrational.
(For the record, Tolleson referred generally to people in power not giving a rat’s behind and to the irrational nature not of the judge himself, or altogether, but of this particular court-holding policy.)
The first thing Storey did was say he’d disqualify from all cases in which Tolleson brought a case into his court, thus severely impairing her ability to do her job. But then he delivered an order to the head public defender directing him not to assign Tolleson to any matters that would bring her into his line of sight.
So let’s get to the update: Tolleson went out and got herself a Little Rock lawyer, Jeff Rosenzweig, who asked Judge Storey for a hearing on this presumed banishment. Hearing nothing from the judge directly, and learning only that Storey had sent a letter to the state Supreme Court asking it to appoint a special judge, Rosenzweig decided late last week to go straight to the Supreme Court himself.
He filed a petition in Tolleson’s behalf asking the high court to take a brief hiatus from summer vacation and issue one or more of assorted writs. One would direct Storey not to ban Tolleson from his court, but to disqualify himself if he was the one with the problem. Another would mandate a local hearing on the matter and appoint a special judge for the purpose.
In support of the argument that a judge may not simply banish a lawyer otherwise in good standing, Rosenzweig cited the seemingly crystal-clear precedent of a previous Supreme Court case — his own, from 1988, when Pulaski Circuit Court Judge Floyd Lofton presumed to tell Rosenzweig he never wanted to see him in his court again.
The Supreme Court said at that time that it “goes without saying” that a judge could not do that.
A special factor, Rosenzweig told me, is that Tolleson is the only Spanish-speaking deputy public defender in Washington County.
My conclusions are the same as before: A judge should not hold court with 23 inches of snow on the ground; a judge ought to rise by principle to tolerate lawyers he can’t stand in the greater interest of justice for the persons represented by those lawyers, and deputy public defenders ought to be careful what they post on Facebook.