The Arkansas Supreme Court yesterday returned a case to Pulaski County Circuit Court, ordered that the case be reassigned to a different circuit judge, and issued a formal rebuke to Pulaski County Circuit Judge Timothy Fox for failing multiple times to follow the high court’s instructions in earlier appeals in the case.

The underlying case, Phillips, et al., v. Robinson Nursing and Rehabilitation Center, et al., is a class action lawsuit that was originally filed against three companies owned by Fort Smith nursing home magnate Michael Morton in 2014. After nine years and five separate appeals, the case has yet to reach trial. And yesterday’s Supreme Court ruling, which highlighted the increasingly acrimonious relationship between Fox and the justices, seems likely to delay the case even further.

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The suit was brought on behalf of all residents at Robinson Nursing and Rehabilitation Center in North Little Rock between December 9, 2009, and September 4, 2015, as well as the estates of any such residents who have since passed away. The plaintiffs allege that the defendants — which include the nursing home, two related companies and Morton himself — breached contracts with the plaintiffs, violated the Arkansas Deceptive Trade Practices Act, and were unjustly enriched by the plaintiffs when the defendants failed to properly staff the nursing home, leaving the facility unable to provide legally and contractually required services.

After the case was filed, the defendants sought to enforce mediation agreements and to compel all of the plaintiffs to submit to binding arbitration, rather than pursuing relief in court. Judge Fox issued two orders, granting the arbitration motions for some parties and denying the motions for others. The defendants appealed from the portions of both orders that denied their motions.

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In each of those earlier appeals, which the Supreme Court referred to Phillips III and Phillips IV, the justices said that “the circuit court [had] made no findings whatsoever” on either of the orders denying arbitration, which prevented the Supreme Court from being able to review Fox’s decisions on appeal. Accordingly, they returned both of the orders to Fox’s court “with instructions to make findings regarding its decision denying Robinson’s motion to compel arbitration.”

Fox then entered an order entitled “Findings of Fact and Conclusions of Law.” This order was notable not only for its brevity – roughly two pages of findings and conclusions, despite the case encompassing over 120 plaintiffs – but also for Fox’s apparent attacks on the Supreme Court. Fox explicitly accused Justice Barbara Webb and the three other justices who joined Webb’s majority opinion of “ignoring … well-established legal principles” and “adding several years to the eventual completion of litigation in this matter, as well as costing the parties thousands of dollars of time and effort.” The first four paragraphs of Fox’s seven-paragraph order also include some version of the phrase, “Justice Barbara Webb, writing for only a four-person majority that only constituted a four-person majority because it included the vote of a special justice.”

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Writing for a 5-2 majority in yesterday’s opinion (Phillips V), Justice Shawn A. Womack noted that Fox’s new findings of fact and conclusions of law did not specifically name any of the parties or explain why he had denied the motion to compel arbitration for each separate party. “Thus,” Womack wrote, “these most recent orders are not in accord with either the letter or spirit of this court’s holdings.”

Womack then turned to the attacks leveled against the court by Fox: 

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Rather than providing this court with specific findings, over half the circuit court’s January 23, 2023, order is devoted to making denigrating comments about the justices who were in the majority in Phillips III.  Such action by the circuit court violates Rules 1.2 and 2.2 of the Code of Judicial Conduct and merits a rebuke by the judiciary. See, e.g., Smith v. Pavan, 2016 Ark. 437, at 21, 505 S.W.3d 169, 180 (admonishing Judge Fox “for his inappropriate comments made while performing the duties of his judicial office”).  Once more, this court admonishes Judge Timothy Davis Fox for the wholly inappropriate comments he made while performing his judicial duties.  

“Further,” Womack wrote, “because Judge Fox has repeatedly failed or refused to comply with this court’s instructions regarding making specific findings, it is now necessary that this case be reassigned.” The justices instructed the Pulaski County Circuit Court’s administrative judge to reassign the case to a different circuit judge within 10 days.

Justice Karen Baker, joined by Justice Courtney Goodson, dissented from the ruling.

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Having reviewed the above orders, I would hold that they do comply with Phillips III and Phillips IV as they specifically identify the circuit court’s rationale for its decisions.  The majority now requires that the circuit court “issue specific findings with respect to each arbitration agreement and resident at issue.”  However, this was not required in either Phillips III or Phillips IV.  Once again, the majority “chooses to skirt the merits and punt this matter back to the circuit court to ‘complete’ a task that it already did.”

The dissent also took issue with the majority’s assertion that reassigning the case to a different judge “promotes judicial efficiency and the ultimate resolution of this case.” Baker disagreed, writing, “The majority’s erroneous decision to remand this case is further compounded by its decision to now reassign this case to a different circuit court judge — after over eight years of litigation.”

Yesterday’s admonishment was not the first time Fox and the Supreme Court have come to verbal blows. In Smith v. Pavan, a 2016 decision related to how the state issues birth certificates when both parents are the same sex, Fox mentioned that the Supreme Court had the power to issue a stay of Fox’s ruling in that case, but that doing so would deprive Arkansans of their constitutional rights. The Supreme Court said that Fox’s comments were “inappropriate remarks” and admonished him for actions that appeared to violate judicial rules.

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While the two cases are unrelated, the Supreme Court specifically cited the 2016 admonishment as support for yesterday’s assertion that “denigrating comments about the justices … violates Rules 1.2 and 2.2 of the Code of Judicial Conduct and merits a rebuke by the judiciary.”

In response to a request for comment regarding yesterday’s admonishment or the reassignment of the case generally, Judge Fox’s office said, “The court does not comment on pending cases.” Greg Campbell, one of the attorneys for the plaintiffs, also had no comment when asked for a reaction. Attorneys for the defendants did not respond to the Times’ questions.

Ultimately, the admonishment of Fox might not matter beyond any momentary embarrassment that it causes. Assigning penalties or punishment for judges in such matters is the responsibility of the Arkansas Judicial Discipline & Disability Committee, or JDDC, not the Supreme Court.

“That’s it unless they refer it to the JDDC,” explained former JDDC chairman David Sachar. Sarchar added that the JDDC could also choose to take the matter up on their own based on what is in the order. The opinion does not say whether the court plans to refer the matter to the JDDC.

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Even prior to yesterday’s opinion, a jury trial in this case was not scheduled to begin until early March 2025. The decision to reassign the case to a different judge, however, means that the trial, which is expected to last more than three weeks, will almost certainly be delayed.

Like a postmodern version of Dickens’ Jarndyce and Jarndyce, this case is nearly nine years old. The plaintiffs are all either elderly or are the estates of plaintiffs who have already passed away. If the Supreme Court is going to issue a ruling that inevitably delays the plaintiffs’ day in court even further, one hopes that the decision was actually about the best interests of justice and not merely the result of some judicial gavel-measuring contest.