In an order issued Wednesday, Pulaski County Circuit Judge Patricia James allowed former Board of Corrections chairman Benny Magness and current board member Lee Watson to intervene in the lawsuit over who controls the state’s prison system. What her order didn’t address, however, was the question of whether anyone currently has the legal authority to represent the board in the case.
The lawsuit challenged two 2023 laws that shifted control over the Department of Corrections' top officials from the board to the governor. In October 2025, James ruled on summary judgment that Acts 185 and 659 of 2023 were unconstitutional. Wednesday's order allows Watson and Magness to oppose a settlement that would reverse the board's litigation position by agreeing those same laws are constitutional and do not violate Amendment 33 of the Arkansas Constitution.
James’s order did not address a pending motion, filed by the AG’s office on July 17, to strike a letter Watson sent her directly on July 6 along with a sworn statement from board compliance administrator/attorney Thomas Burns. Watson’s letter notified James that the board voted in January 2026 to fire its independent counsel, the law firm Hall Booth Smith. As we previously reported, current board chair Jamie Barker requested in February that the governor appoint new counsel. No new counsel has been appointed or hired, Watson wrote.
The motion to strike argues in part that Burns’ statement, submitted in the AG’s Freedom of Information Act lawsuit against the board, doesn’t belong in this case because it was written for the FOIA case’s “distinct posture, parties, and litigation needs” at the time.
The AG’s Office used the same case in a letter filed the same day to argue James should deny intervention and approve the settlement as the Supreme Court had done. In the order granting intervention, James rejected that comparison as “a bit disingenuous,” stating that the Supreme Court sent the case back to her for reconsideration.
Arkansas Rule of Civil Procedure 64 sets out two separate requirements: new counsel must immediately notify the clerk, the court and opposing counsel of their appearance in a case, and existing counsel cannot withdraw without the court’s permission, granted through a motion showing the client won’t be prejudiced. The court docket reflects no motion by Hall Booth Smith to withdraw, no order permitting its withdrawal, and no entry of appearance by Burns despite his signing the June 11 joint motion as counsel for the plaintiffs.
In the sworn statement filed in the FOIA lawsuit, Burns said he has never represented the board in litigation, that doing so isn’t part of his job description, and that his office’s close working relationship with the AG’s office would create a conflict of interest.
The board that accepted the settlement is different from the one that filed the original lawsuit. Gov. Sarah Huckabee Sanders appointed three new members — Barker, Nathan Lee and Boyce Hamlet — to the board on Dec. 31, 2025, giving her appointees a 4-3 majority. That majority voted in January to fire Hall Booth Smith and in March to accept the settlement. It also voted 4-3 to settle the FOIA lawsuit under an agreement stating that Watson and Magness violated the FOIA, even though neither had an opportunity to defend against that allegation. Hamlet’s appointment carries its own conflict: his wife, Lydia Hamlet, is a senior assistant attorney general in the office that negotiated the settlement he voted to accept.
With intervention now granted, James will schedule a hearing on whether to approve the settlement. The question of who is legally authorized to represent the Board of Corrections in the litigation remains unresolved.
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