Retired justice reflects on career

Hart’s time on state court marked by willingness to dissent

Arkansas Supreme Court Associate Justice Josephine Hart ended her eight-year term on the state’s highest court Friday, retiring from a career in which she became noted for her frequent — and at times biting — dissents.

Since the beginning of the Supreme Court’s fall term in September 2018, Hart has written or joined 200 separate dissents, voicing her disagreement with nearly half of the court’s 486 opinions in that time. The next most frequently dissenting justice, Shawn Womack, dissented on 58 opinions in that period.

A recent per curiam issued by her fellow justices noted that Hart’s service on both the Supreme Court and the Court of Appeals was dedicated to the “protection of the Arkansas Constitution and the rights of the poor and those who are incarcerated in our state penitentiary.”

One of her final flairs of judicial writing came in a November concurrence to the decision to uphold the murder conviction of Michael Collins. Hart called Collins’

slaying of a mother and two children “the most heinous crime I have ever had to deal with.” The killings were so chilling, Hart wrote, that the prosecutor’s decision to waive the death penalty left her convinced “that the decision to seek the ultimate sanction — death — is too weighty to be left to one person.”

Hart spoke with the Arkansas Democrat-Gazette by phone on New Year’s Eve to discuss her observations from a career that began with military service during the Vietnam War.

Her position on the court was filled New Year’s Day by Justice Barbara Webb.

The following questions and responses have been edited for clarity and length.

Q: You’ve served in the Army, JAG Corps, you were a law clerk for Supreme Court Justice Frank Holt, and you served in private practice and eventually on the Court of Appeals and the Supreme Court. When in your career did you decide you wanted to be an appellate judge?

A: I enjoyed being a lawyer; I was a lawyer for 26 years. How I got into it was, I got a letter from a lawyer saying that he was running for the Court of Appeals. I knew this lawyer and I knew his family because he grew up in a town adjacent to Stone County, and I knew that he didn’t have any experience in the practice of law. I was calling around the district trying to find somebody who would run for that position when one of the lawyers said, “Well, Josephine, you don’t have any children in college, why don’t you do it if you want somebody to do it?” And I said, “OK, I will.”

So I went to Little Rock with my secretary, paid my fee, which was $7,000, which is a lot of money for me, and went over to the Capitol to fill out the remainder of the paperwork they had sent me.

And when I had finished it, I came to the reporter for the [Democrat-]Gazette, and she asked me what I had filed for, and I said the Court of Appeals, and her reaction was: “Do you realize what you have done? This man has been hand-picked for this job; he’s got all of the senators and the representatives and the governor all on his team, and what have you done?” And I looked at her right straight in the eye and I said, “Ma’am, I don’t think you understand, you’re looking at next judge on the Court of Appeals.”

My secretary was pulling on my coat jacket, saying, “Can we get our money back?” And I said, “No, we can’t.”

Q: How have the state’s appellate courts changed in the last 20 years and how has the Supreme Court over the last eight years of your tenure?

A: When I went on the Court of Appeals, there was 12 judges. Six of those judges had been elected; six of the judges had been appointed.

I had been there about three months when it dawned on me that not all of these judges were elected and they were appointed by two different governors. And by the time I had been there three months, without looking or checking, I could determine which judges had been appointed by which governor. That concerned me greatly because when I had campaigned, I campaigned on the proposition that when you come to the courtroom, you’re equal. Your money, your position, power, is of no moment because under the rule of law, everybody has equal and fair treatment in the courtroom.

Q: Do you believe judicial elections are still the best system for selecting judges in Arkansas?

A: In my opinion, it’s the only system. Any judge, they should go in front of the people and have to be elected, and not hide behind the fact, “Oh I can’t tell you what I think about that because it may come before me.” They should be truthful with the people because the judge impacts so importantly any time that you go to a courtroom.

Q: You mentioned truthfulness. Do you have concerns about the level of truthfulness in recent judicial campaigns, especially those for the Supreme Court?

A: No, I think people are truthful; that’s not what I meant. It’s that quite often, and this is kind of the norm, is that you do not want to get involved in the judicial ethics. The feeling is that you say what your opinion is on a controversial subject, then you feel that you have to recuse. My point is, is that if you have an opinion and you don’t state it, how would people know? How would you ever know whether or not you were writing your opinion based on exactly what the rule of law is, as opposed to what your opinion happens to be?

Q: You believe judicial candidates should be able to be more open about what their personal opinions are?

A: I think it’s imperative that they be open so that the public knows. After the election’s over, and they’re writing their opinion, are you still happy that you voted for them?

Q: You’ve dissented from court opinions three times as often as any other justice in these last two years. What is your judicial philosophy and why does it lead to results that are so often different from the other justices?

A: Well, every judge, I think, they interpret the law and they come to the court with their own opinions and their own biases and they do what they think the law says. I am the only judge on the court that came to the court directly from the practice of law. I had 26 years of practice of law. We have four of [the seven justices] that came from the circuit court and then a fifth one that came from the district court, so there’s only two [justices] that never served on the lower courts. So my vision of what the law says and how it’s applied could vary from that experience and what the other judges think.

Q: Do you have any specific philosophy that you think is an outlier from the other judges?

A: On certain issues, yes, and I think I pretty well stated those in my dissents.

Q: Such as what issues?

A: Well, let’s just take the death penalty. As I look at the death penalty, I first take a look at what our constitution provides and then what our United States Supreme Court has said. And when we look at what the United States Supreme Court said in 1972, when we reinstated the death penalty. You have to understand I graduated from law school in 1971, so come January, I will have been a lawyer and practicing law for 50 years. Some of the justices on our court are not as old as I have been practicing law. So we have a, there’s a generation gap and an experience gap between me and them.

In Furman, the United States [Supreme Court’s decision] Furman v. Georgia in 1972, the Supreme Court reinstated the death penalty, saying that it did not violate the Eighth Amendment. However, they specifically said that it could not be “arbitrarily” or “capriciously” or “freakishly” applied. If you will look at my dissent in Collins v. State, I wrote very carefully on that issue.

They did not submit that case to the jury for its determination. That it was done by the court and the reason that it was done by the court is because the prosecutor who filed the charges withdrew and waived the death penalty. Well, we have 28 prosecutors; if you have 28 prosecutors throughout the state, it’s difficult to fairly and equally apply the death penalty case. [The Collins case] is very abhorrent because we had two young men who were in this woman’s apartment when she came home, who held her and took a knife trying to make her tell where her money was and stabbed two children, 4- and 5-yearold children, in the neck until they practically decapitated them. And then they slashed her throat. There were three people killed in that case, and under just extremely egregious circumstances.

So my discussion in that case was about the fact that we have such a difference in how we’re treating death penalty cases that we need to review them. It wasn’t that I’m supportive of the death penalty or not. What I’m doing is writing an opinion that we need to look at giving the authority, and they had been that authority. But this was a deputy prosecutor, wasn’t even an elected prosecutor, and I felt that that was something we should look at.

Q: Do you personally support or oppose the death penalty?

A: The law provides for it. I have voted for the death penalty, and I have written dissents against the death penalty.

Q: Do you think it’s possible for Arkansas or any other state, in the year 2021 or future years, to create a system of imposing the death penalty that complies with the Furman decision?

A: Yes, I do.

Q: But you don’t believe the state’s doing that now?

no. A: I just decision I do don’t not think think fell within that the Furman one it, person can make that decision [to waive the death penalty in capital murder cases] and it be impartially applied. I think a jury has to do that.

Q: Going back to your dissents, has your relationship with your colleagues been affected at all by your frequent dissents?

A: Well, my opinion toward them has not, and you’ll have to ask them about that. This is not a personal thing with me. I try to keep my personal opinions out of it and apply it as the rule of law.

Q: We’ve seen a lot of judges and judicial candidates attacked for their decisions to overturn criminal convictions — both from lawmakers and in the form of negative campaign ads. Did that affect at all your decision not to run again?

A: Oh, I didn’t run again because I’m 77 years old. If I had run, I would have had to have forgone my retirement [benefits]. That’s why I didn’t run, is because I’m age-limited.

Q: What do you think of the retirement rule?

A: I don’t think that there’s anything wrong with saying that you retire at that age. I don’t. Being a judge is hard work. It’s long hours. I regularly put in 60 hours a week, hard study.

Q: Going back to the type of campaign ads we’ve seen in recent court elections, do you think that is discouraging other candidates from making runs for judicial office?

A: I think that we have freedom of speech, but I think that there has to be identity to who’s making the speech. To imply things that are not true in these ads and then to say it’s paid for by some PAC when you don’t know who’s a member of the PAC and you don’t know who’s saying it, I don’t know why the public would believe it. Do I think they impact? Yes, I do, but it would impact even if it’s true. So if somebody’s making ads that are not truthful or making innuendos that makes things appear to be something they are not, they should have to sign their name to it because I think that would make it more credible.

Q: In your dissent to the 2017 case Kilgore v. Mullenax, you wrote that arbitration, also known as alternative dispute resolution, is “eroding the cornerstone of our democracy — the judicial process.” Do you still believe that, and has the issue gotten better or worse?

A: I believe it, and I’ll tell you why I believe it. Our [Arkansas] Constitution provides, very clearly, that the citizens in Arkansas are entitled, in Article 2 Section 13, Redress of Wrongs, “Every person is entitled to a certain remedy in the laws, for all injuries or wrongs he may receive in his personal property or character, he ought to obtain justice freely, and without purchase, completely and without denial promptly, and without delay, conforming to the laws.” Every time you do an arbitration or a mandatory mediation, you have to pay that man. The prices that you pay for a mediator is at a minimum $250 an hour and goes up from there. But if you are a business person and you have multiple cases over a period of 10 years — and when I say multiple, even if it’s four — you develop a rapport with certain mediators. Whereas the individual that’s bringing the suit or is defending may only have one lawsuit in their lifetime.

Now if people want to do [arbitration], and that’s their choice and both of them agree to it, I think that’s fine. But I don’t think it’s fine when you’re required to do so when you’re not in an equal bargaining position.

2020], Q: Earlier you dissented this year from [in three decisions that effectively killed citizen-initiated ballot measures. You also wrote in a dissent in a fourth case that you would have blocked an amendment placed on the ballot by the state Legislature. What do you think of the court’s handling of these kinds of cases involving ballot measures over the last few years?

we initiative A: maintain I’m very and and concerned referendum. have that that One of the ballot measures that went on the ballot this year would have undermined that. [Legislators] do not have to do the same things to get on the ballot that the public does. I don’t think that they should be allowed to do something that the people can’t do. If we’re going to change the constitution, they each should have the same rules. They should be fair and equal.

Q: What about how the court has treated citizen-initiated ballot measures?

A: What [the majority of justices] were saying was that [the sponsors of citizen-initiated ballot measures] didn’t get their background checks in good enough, at a good enough time, so they’re using a technicality to take out the signatures of the citizens. They are in fact disenfranchising the citizens.

Q: Any final thoughts as you prepare to leave the court?

A: I appreciate the people of Arkansas for giving me an opportunity to serve.

I’ve had some pretty hard jobs in my life, but I think the Supreme Court may have been about as hard as it gets. The chance to serve is appreciated, and I hope I’ve maintained the values that I told people I would. I appreciate the help and advice that I’ve gotten from the judges; I have appreciated the challenges of people who didn’t agree with me. A challenge to your opinion is important because what we want is challenges because it invigorates you to work harder and pull longer and study more.

Democracy is not difficult. It’s the rule of the majority with rights of the minority. That’s an easy concept; it’s difficult to apply. And you have to separate your personal thoughts with the fact that a minority doesn’t get greater rights, but they get equal rights.

Hart