A judge specially appointed by the Arkansas Supreme Court threw out a lawsuit that claims a Pulaski County Circuit judge conspired with four lawyers, two of them now her fellow judges, to pay unnecessary legal fees in a $362,000 settlement in the death of a North Little Rock toddler.
Judge Kim Smith, a retired circuit judge and former prosecutor, dismissed lawyer Bennie O’Neil’s lawsuit against Wendell Griffen, Leon Johnson, Simmons Smith and Arkie Byrd after a 70-minute hearing.
Kim Smith, no relation to Simmons Smith, was appointed by the state’s high court to hear O’Neil’s lawsuit - which claims the four conspired with Circuit Judge Alice Gray - after all of the other Pulaski County Circuit judges recused.
Gray, the judge who presided over the settlement disbursement, which concluded in October, was not a defendant. She was shielded by judicial immunity.
Kim Smith said the four attorneys, whom Gray appointed to handle different issues in the case, should also be protected by limited immunity since they were acting at her appointment.
To not allow them that immunity, Kim Smith said,would have a “tremendously chilling” effect on recruiting lawyers to handle cases for judges.
Griffen and Johnson are circuit judges, but the lawsuit involves work they did before they were elected.
Kim Smith said O’Neil should have appealed Gray’s rulings in the settlement case.
“I understand you didn’t like her rulings,” the judge said. “This comes around to why didn’t you appeal?”
Kim Smith said he did not dispute that O’Neil believed the allegations he made to be true. But the judge said O’Neil’s year-old lawsuit did not provide evidence of wrongdoing required to sustain the lawsuit, even if the accusations were considered to be true.
“I don’t see that at all,” Kim Smith said. “These folks had duties under the law once they were appointed by Judge Gray, rightly or wrongly.”
O’Neil’s conspiracy accusations were “tenuous,” Kim Smith said.
Griffen has requested that O’Neil be forced to repay his legal fees and costs to defend himself in the suit, arguing that O’Neil’s real intention was to harass him and pressure Gray into making favorable rulings for O’Neil.
The lawsuit violated the state’s Rule 11 of the state’s Rules of Civil Procedure, Griffen argued.
Kim Smith said he would consider those sanctions against O’Neil and incorporate his decision on them into his written order dismissing the case, which should be released in a couple of weeks.
Arkansas, Pages 11 on 03/09/2013