Summary. On October 6, 2026, an Arkansas court reaffirmed that the Board of Corrections (Board) was right in its argument that 2023 statutory changes substantially diminished the independence of the Board and therefore violated Arkansas’ Constitution, and that the Board had lawfully hired special counsel, and that its special counsel are owed their fees. Within hours of the order hitting the docket, the Attorney General’s office announced it would appeal.
The Board never met. The Board never voted. The Board has never authorized an appeal on its behalf. I would know. I am a Board member.
On September 25, 2026, Circuit Court Judge Patricia James denied a joint motion, filed together by the Governor’s lawyers and by the current majority of my own Board (acting without counsel), to vacate her judgment, lift her injunctions, and dismiss the Board’s claim that a few critical words in the Protect Arkansas Act violated Arkansas’ Constitution regarding the independence of the Board. The judge ruled that the October 31, 2025, judgment “remains undisturbed and is still in FULL EFFECT.” She held that any attempt to circumvent a court’s constitutional findings “via contract, ‘settlement agreement,’ or any similar document” is “a contract, void ab initio.” And she repeated what she decided a year ago: Acts 185 and 659 of 2023 are “ultra-vires, unconstitutional, and void as the statutes violate Amendment 33 of the Arkansas Constitution.”
Judge James next signed an order filed on October 7th finding that the Board had properly hired special counsel under Ark. Code Ann. § 25-16-711, the statute that lets a constitutional officer contractually hire his own lawyer when he and the Attorney General disagree about what the Constitution or laws mean. Her conclusion regarding payment of special counsel was one sentence long: “Therefore, special counsel is entitled to attorney’s fees herein.” It is based on the sentence in Ark. Code Ann. § 25-16-711: “This special counsel shall receive a reasonable compensation for his or her services.”
Then came the part that should alarm every Arkansan. On October 8, a spokesman for Attorney General Tim Griffin told the Arkansas Democrat-Gazette the office will pursue an appeal.
Who authorized an appeal on behalf of the Board?
The Board did not and has not. I serve on the Arkansas Board of Corrections. The Board is a named plaintiff in this case. The Board did not vote. No one called a meeting. No one asked us.
Before you decide that is a technicality, look at a document already in the file. On June 24, 2026, the Attorney General’s office filed a brief in this case opposing intervention by me and former Board Chair Benny Magness. The signature block reads: Tim Griffin, Attorney General, Senior Assistant Attorney General, Arkansas Attorney General’s Office. Underneath that, three words. “Attorneys for Plaintiff.”
Plaintiff is the Board of Corrections. The Attorney General’s office that had spent two and a half years as our adversary in this case signed this filing as the Board’s lawyer, without its permission, and did so to argue that a sitting member of the Board has no business being heard in the Board’s own lawsuit. Nobody voted on that either.
An appeal is not a press release. It is a legal act taken on behalf of and at the direction of a client. When the client is a seven-member constitutional board, the authority to take that act comes from one place: a vote of the board, at a public meeting, on the record, where the public can watch. So, was the Attorney General planning to appeal for the Board without the Board’s consent, without asking us? Or was he colluding with the Board’s purported attorney without its knowledge? Arkansans deserve that answer in public, in writing, before anything else is filed.
Wait a minute—the Board (only as of August 28th) would have had its own counsel—if only it had approved him. At the 11th hour, the Friday before the Tuesday, September 2 hearing, Governor Sarah Sanders appointed Cody Kees to represent the Board. The Board did not and has not approved Kees to represent it. This is a fundamental requirement of the attorney/client relationship. However, despite the lack of Board approval, Kees entered his appearance as counsel for the Board. At the hearing, without meeting with the Board, without advising or counseling the Board, without any discussion with the Board, Kees parroted the settlement agreement and position of the Attorney General and Governor. The fix was in.
On October 12, 2026, the Attorney General on behalf of the Governor, and Cody Kees on behalf of the Board, filed a formal notice of appeal of the court’s orders of this year and of October 31, 2025. Yet, the Board had still not met. It has never approved or confirmed the appointment of Cody Kees to be its counsel. He’s acting without having met or discussed the case with his client. Instead, Kees appeared to rely on the Board having signed the settlement agreement of March 30, 2026, which agreement violated the court’s October 7th order which found the settlement agreement to be void “ab initio” which means that from a legal perspective the agreement never happened.
If a state lawyer, or a puppet lawyer without consulting his client, can announce litigation positions for a board that has never voted, the board is decoration. The quorum requirement means nothing. The open-meeting requirement means nothing. The seven seats mean nothing. This drives a stake through Arkansas’ FOIA laws regarding open meetings.
Because of this, there will be no lawyer willing to take up any similar constitutional fight!
Special Counsel
Now look at what happened to the lawyers who took on this case to defend Arkansas’ Constitution.
In December 2023, this Board voted, and I voted yes, to hire and contract with outside counsel to file a declaratory judgment action asking the court to resolve the conflict between a few words in two 2023 statutes with Amendment 33. It was and is a simple question. It could have been resolved by the parties stipulating the facts, submitting them to the court, and letting the court do what courts do: interpret the law. The facts are incredibly short and simple: the text of Amendment 33 and the few words in the new statutes that the Board correctly believed conflicted with it. Abtin Mehdizadegan with Hall Booth Smith won a restraining order for the Board in a day. Then he won a preliminary injunction in a month. If the parties had stipulated the facts, this could have been wrapped up in a few months. In June 2025, the Arkansas Supreme Court affirmed the order finding that the Board was right. In October 2025, the Board won final judgment. Yet, instead of admitting that there was a conflict, the Attorney General did everything he could as an attorney to drag the case out and slow the courts from making a final decision by appealing when it wasn’t necessary, asking for many continuances and engaging in a prolonged and unnecessary pleading battle. It was all a stall for time until his client Sarah Sanders could replace more seats on the Board. All at the expense of Arkansas’ taxpayers.
Here is the thanks our counsel got. On January 23, 2026, new appointees took control of the Board, elected new officers by a four-to-three vote, and then called a special meeting on two hours’ notice the same day. At it, by the same four-to-three margin, the Board fired its winning special counsel and rescinded payment it had already authorized and directed for work already performed—arguably in violation of the court’s order and a breach of contract. I was in the minority. I was also removed as the Board’s litigation liaison.
On March 30, 2026, that Board majority signed a settlement agreement in violation of Judge James’ October 31, 2025, order, and it did two remarkable things. It declared that the laws we had successfully proved were unconstitutional are constitutional after all. And it declared that the Board’s hiring of its own lawyers had been “illegal”. The agreement contradicted the court’s order and demeaned counsel who won the case and every substantive battle along the way. The March 30th Board meeting was coordinated by its date set by the Governor’s Chief Legal Counsel Cortney Kennedy via text message with at least two of the Board members appointed by the Governor. The Board’s opposing party.
In September 2026 the Board’s appointed but not approved counsel, without any consultation, or communication with, or agreement by the Board filed a motion that formally adopted the Attorney General’s brief opposing its own former lawyers. But wait a minute Watson, you said that Judge James’ order found that Ark. Code Ann. § 25-16-711 allows the Board to hire its own special counsel. That is correct, however Tim Griffin, in contradiction of that order, directed the Board in February 2026 to follow Ark. Code Ann. § 25-16-702 and request the governor to appoint special counsel. The Board’s new chair, without meeting with the Board, and without advice of counsel, followed Tim Griffin’s directions. Who wouldn’t like to hire the attorney who will represent their opposing party? No one gets to do that. The governor should not. The Board’s original and winning lawyers had to litigate their way back into this case to ask the court to reaffirm that they are to be paid for their legal work; work the courts have found three times they are entitled to be paid.
This week on October 21, the Attorney General, on behalf of the governor and other parties, and Cody Kees, on behalf of the Board he has never talked with, filed a Joint Emergency Petition for Writs of Prohibition or Certiorari. This petition asks the Supreme Court to stop the circuit court from ddetermining what reasonable fees are due to the Board’s special counsel. The Board was never consulted about this action, and it was taken without the Board’s approval. The fix continues.
The Damage Done
Ask yourself a practical question. The next time a constitutional board in this state has a genuine disagreement with the Attorney General about the interpretation of the constitution or statute, what attorney will be willing to take that call and pick up the fight on their behalf? What competent firm looks at this record, counsel fired on two hours’ notice, payment clawed back after the work was done despite a statute directing that they are entitled to be paid, retention declared illegal by the client it had just won for, after nearly three years in and still litigating to collect, and says sign me up?
That is the real damage. Not one fee. Not just a chilling effect. This is a slammed door to the raising of a dispute related to the constitutionality of our laws by a constitutional officer. It forces obedience on all departments to the will of the executive branch. Something the citizens of Arkansas in 1942 knew well to reign in when they passed the citizens’ initiative that gave us Amendment 33. A constitutional right you cannot find a lawyer to defend is not a right. It is a paper tiger.
This was never really about prisons
Conduit readers were reminded on October 7 that Arkansas has roughly 329 state-level boards and commissions, and that 57 of them are Amendment 33 entities, entities the people of this state deliberately insulated from political dominance.
Arkansas’ voters took action to reign in executive power in 1942, and for a reason that ought to sound familiar. Governor Homer Adkins appointed new trustees to the University of Arkansas, and the new trustees fired the university’s president, J. William Fulbright. Replace the board, and you control the institution. Arkansans answered by writing into the Constitution that the powers vested in such a board may not be diminished. Arkansas’ voters did that by passing a citizens’ initiative that became part of our Constitution. Not a judge, not a board, not a governor: the people. Yet the boards of higher education know all too well thanks to pressure by legislators regarding the university’s hiring of a dean who differed in social views with them that millions of dollars the university receives are endangered if they don’t toe the line.
I must point out the State’s lead argument in this case. Not that the Board was wrong about a few words in the 2023 statutes conflicting with Amendment 33. Instead, the Attorney General argued that the Board could not be in court at all. Its first point on summary judgment was that only “persons” may obtain a declaratory judgment, that the State is not a person, and that “Plaintiffs, as a state entity and official, are no different than the State.” Think about what that means if that argument ever wins. Every Amendment 33 board in Arkansas (corrections and higher education), and then Game and Fish, and Transportation, which hold powers the Constitution says cannot be taken, will have no access to a courtroom in which to say a statute or regulation violates the Constitution. The circuit court entered judgment for the Board over that objection, and no court has ever accepted it. Yet the governor and attorney general are making that argument, and it is being made with your tax dollars. They pay lip service to supporting Arkansas’ Constitution except when it gets in their way.
If this playbook stands, it is fully portable. Appoint a majority to a board. Call a meeting on two hours’ notice. Fire the lawyer. Sign a settlement confessing that the statute you beat for violating the Constitution was fine all along. Ask the court to erase its judgment. And when the court says no, announce an appeal the board never voted on. To paraphrase Judge James, this is a first step in the demise of Arkansas’ democracy.
Judge James called one of the Attorney General’s arguments “a bit disingenuous.” I would use a much shorter word.
What to do
One. Read Amendment 33. It is four short sections, and it was written for exactly this moment.
Two. Call the Attorney General and your legislator and ask who is paying for this appeal and which of their client’s approved it. If the answer is that nobody requested it, that is the story.
Three. Watch the appointments to state boards: are they political pawns or citizens concerned about the welfare of Arkansans?
I did not seek this fight, and since January 2026 I have lost every board vote. I keep showing up because the alternative is to give away the constitutional independence of departments that was so important to Arkansans’ voters that they passed a citizens’ petition to protect against absolute political power over select departments—for the good of us all. Sarah doesn’t care. Tim doesn’t care.
The oath of office required by Article 19, section 20 of the Arkansas’ Constitution required of our governor and attorney general states:
I, ___________, do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of Arkansas, and that I will faithfully discharge the duties of the office of __________, upon which I am now about to enter.
Yet both our governor and attorney general have vigorously and adamantly attacked the Arkansas Constitution in this litigation. They want their statutory changes to win so that the governor can control the Board and Department of Corrections. They know that the statutes are void to the extent they conflict with the Constitution—that is unless they skipped their middle school civics class. In their press conference attacking the Board on November 17, 2023, Tim Griffin, instead of supporting the Constitution regarding the Board’s constitutional independence stated “That is a horrible way to run state government. If that is in fact the case, which it appears to be. This is a clarion call for constitutional and statutory reform on this issue”. He knows what is required to change the independence of the Board under Arkansas’ Constitution: constitutional change via a citizens’ initiative. Yet instead, he’s done everything he can in court to prevent a court from reaching a decision based on current constitutional law and denying it even after a court decided against him. That is not supporting the Arkansas Constitution. That’s an aggressive assault on the Arkansas Constitution.
Arkansas’ voters had it right in 1942. It is very important to shield some governmental departments from the whims of political control. The courts have held three times that the Constitution means what it says and the Board is independent. Sarah Sanders and Tim Griffin continue to fight the courts’ decisions. The only question left is whether anyone in service to the State of Arkansas will be willing, with a competent attorney, to stand up enforce the Constitution. If Sarah and Tim win, the answer is an easy no.
Documents and sources
Video of November 17, 2023 press conference at 8:07:
Order on Motion to Intervene, Arkansas Board of Corrections v. Sanders, No. 60CV-23-9598 (Pulaski Cnty. Cir. Ct., signed Oct. 6, 2026; filed Oct. 7, 2026), finding special counsel properly retained under Ark. Code Ann. § 25-16-711 and entitled to fees.
Order on Joint Motion to Lift Injunctions, No. 60CV-23-9598 (Sept. 25, 2026), denying the joint motion and holding the settlement agreement void ab initio.
Summary Judgment and Permanent Injunction, No. 60CV-23-9598 (Oct. 31, 2025), holding Acts 185 and 659 of 2023 unconstitutional under Amendment 33.
Defendants’ Motion for Summary Judgment and Brief in Support, No. 60CV-23-9598 (Oct. 27, 2025), arguing that the Board is not a “person” under the Declaratory Judgments Act.
Response to Motion to Intervene, No. 60CV-23-9598 (June 24, 2026), filed by the Attorney General’s office under the signature block “Attorneys for Plaintiff.”
Order on Motion to Intervene, No. 60CV-23-9598 (July 29, 2026), granting intervention to Benny Magness and Lee Watson.
Formal Order, Sanders v. Arkansas Board of Corrections, No. CV-25-742 (Ark. May 21, 2026), denying the motion to reverse and remanding for consideration of the joint motion.
Sanders v. Arkansas Board of Corrections, 2025 Ark. 102 (June 5, 2025), affirming the preliminary injunction; rehearing denied Sept. 4, 2025; mandate issued Sept. 10, 2025.
Brett Barrouquere, Judge says law firm that represented the Arkansas Board of Corrections can seek legal fees in suit against governor’s office, Arkansas Democrat-Gazette, Oct. 7, 2026.
New Sanders appointees quickly take control of Arkansas Board of Corrections, fire its attorney, Arkansas Advocate, Jan. 23, 2026.
University of Arkansas withdraws incoming law dean’s offer in wake of Republican complaints, Arkansas Advocate, January 15, 2026
Ark. Constitution Amendment 33; Ark. Code Ann. § 25-16-711.
Lee Watson is a member of the Arkansas Board of Corrections and an attorney. He voted against the settlement. These opinions are the author’s and not necessarily the publisher’s opinion.
