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Lawyers for a woman whose $2.75 million verdict against Wal-Mart Stores Inc. was thrown out by the Arkansas Supreme Court are trying to get the verdict reinstated, claiming that partners of a replacement justice represented Wal-Mart in at least two other cases. W al-Mart Stores v. Binns, No. 99-810. Carolyn Binns was an employee of a Monticello, Ark., Wal-Mart in 1995 when supervisors accused her of stealing $3,000. Prosecutors dropped criminal charges against Binns, but she sued Wal-Mart, claiming abuse of process and malicious prosecution. In 1998, a jury awarded $2.75 million. On Wal-Mart’s appeal to the Arkansas Supreme Court, two justices, one of whom owns Wal-Mart stock, recused themselves. Governor Mike Huckabee, following state law, named Jonann Coniglio Fleischauer of Little Rock’s Friday, Eldredge & Clark and another lawyer as replacements. (A third judge later recused, but was not replaced.) CONFLICT? Binns lost the appeal, 4-2, in April. But later, her lawyers turned up court records showing that Friday Eldredge partners had represented Wal-Mart in at least two unrelated cases. They argue that if Fleischauer had voted differently, a tie would have upheld the verdict. When an Arkansas justice recuses, the state’s constitution requires the governor to commission a “special justice” to fill in, a process that was used in nine cases decided this year. But the constitution says nothing about whom the governor may choose. Past governors, including Bill Clinton, have been criticized for some appointments. To help head off such criticism, the Arkansas Bar Association gives the governor a list of qualified lawyers throughout the state, says Jack Holt, who served as chief justice from 1985 to 1995. But the list is secret, according to the bar association and the governor’s office. And the governor doesn’t have to stick to it in any case. Experts in appellate law and judicial ethics were unaware of any other state that uses practicing lawyers as temporary supreme court justices. Many other courts elevate sitting judges to fill in or simply hear cases short-handed. “That would be a good procedure,” says former Chief Justice Holt, who agreed that the current system invites charges that a special justice was chosen to do a governor’s bidding, “but right now we’re hung with the constitution.” At press time, Wal-Mart spokesman Bill Wertz said the company is trying to determine the nature of any relationship with Friday Eldredge and plans to file a response soon. Fleischauer, who did not comment for this article, declined appointment in at least eight other cases before Binns, said Huckabee’s chief legal counsel Olan “Butch” Reeves. And twice she recused herself at the last minute after learning of firm conflicts.

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