Josephine (Jo) Linker Hart (1943–)

Josephine Linker (Jo) Hart, whose Cherokee parents were driven from their farm in Pope County when she was a child to make way for Lake Dardanelle, was inspired by that experience to study law, serving as a civil and criminal defense lawyer. She later became one of the first women to be elected to both Arkansas appellate courts and the first Native American to serve on the Arkansas Supreme Court.

Jo Linker was born on November 20, 1943, at her grandmother’s home in Perryville (Perry County) but soon went to live with her parents on the farm near Russellville (Pope County). Gylem P. Linker and Leola Caldwell Linker raised cattle and grew vegetables that they sold to Atkins Pickle Company and a cannery at Morrilton (Conway County). Her father was also an auctioneer. The land had been the family’s for generations, part of a land grant offered to members of the Cherokee tribe who agreed to leave the southeastern United States in the massive relocation of American Indians in the 1830s, often referred to as the Trail of Tears. Linker was nine years old when the government condemned the land, and the family had to abandon their farm for the construction of the dam and the navigable and recreational Lake Dardanelle reservoir. She would say that the experience told her that she was going to have to use her brain, not her back, to make a good living.

Her parents were able to keep their mountain property but had to forfeit the fertile farmland by eminent domain, losing their livelihood when the farm was flooded to create the lake, a part of the McClellan-Kerr Arkansas River Navigation System. “I thought it was pretty egregious,” she would say forty years later when she was elected to the Arkansas Supreme Court. “They took our land and paid us very little for it….They took our entire lives.”

She went to Arkansas Polytechnic College (now Arkansas Tech University) in Russellville, majoring in history and political science and, to please her mother, minoring in education. She received a bachelor’s degree in 1965. She took a commission in the U.S. Army and was deployed in 1966 to the army headquarters in Japan. The next year, she was sent to Vietnam, where she was administrative chief of a unit of about 500 soldiers, through which all pieces of correspondence through the region, including leaflets, were distributed. She left active duty in 1969, joined the U.S. Army Reserves (eventually becoming a colonel) in the Judge Advocate General’s Corps, and, using the GI Bill, entered the University of Arkansas School of Law in Fayetteville (Washington County). Only two other women in her class were full-time students, and neither became a lawyer.

Justice J. Frank Holt offered her a job as his law clerk. She was one of the earliest female law clerks at the Arkansas Supreme Court. After almost two years, she opened a private practice in Batesville (Independence County) with the firm of Gregg, Hart and Farris, working there for the next twenty years. Her practice included representing people whose land was being condemned for public projects, like the nearby Blanchard Springs Caverns, which reminded her of her childhood bitterness over the public taking of her family’s farm. She married Eugene Brook Hart of Mountain View (Stone County).

Although women were few in law offices and fewer in the courtrooms, Jo Hart said, “I don’t think I ever had a problem being discriminated against. What I found out was that if you did your work and you did it well, most people are glad to see you.” A lawyer who was often on the other side from her remarked that no one had the guts to discriminate against her.

Hart left the practice in 1998 to run for a seat on the Arkansas Court of Appeals to complete an unexpired term. She said she ran because the man who was running in the nineteen-county district had no courtroom experience, and she could persuade no one else to run. She won easily and was reelected in 2002, without opposition, to an eight-year term. In 2010, she was opposed by a circuit judge backed by the rising Republican Party, but she won. In 2012, she gathered 16,000 signatures to get on the ballot rather than pay the filing fee for an open seat on the Arkansas Supreme Court left by the retiring Justice Jim Gunter and won with sixty-five percent of the vote. Soon after her election, her husband was diagnosed with cancer. He died shortly after her swearing in. She was only the fourth woman ever to be elected to the court; by two years later, however, she was part of the first female majority on the court—four members, all elected.

While Hart’s private practice included a lot of family law, she often represented men and women injured at work or in other ways, and on both the Court of Appeals and the Supreme Court she usually was found on the side of those litigants. On both courts, she dissented far more often and more vigorously than any of her colleagues. She usually insisted on addressing constitutional issues raised in the appeals rather than settling an appeal on procedural questions.

She consistently invoked the state constitution’s powerful declaration of the rights of people who were injured or wronged: They were to “obtain justice freely, and without purchase, completely, and without denial, promptly, and without delay.” She often reminded her colleagues that the last sentence of the Arkansas constitution’s Declaration of Rights says that neither the legislature, governor, voters, nor a later part of the constitution could ever alter any provision in the Declaration of Rights, like the one guaranteeing the right to remedies for injured or wronged citizens. More often than her peers on the bench, Hart found that the state was liable for damages to people wronged by the actions of government officials.

In her last year on the bench, Hart wrote a stinging dissent in the case of Christopher H. Harris v. Asa Hutchinson, et al., in which the court said that the rule of sovereign immunity blocked some of the claims of Harris, an employee of the state Livestock and Poultry Commission who was fired because he refused to hire a livestock inspector that Governor Asa Hutchinson wanted in the job. Harris had interviewed another man who was qualified and had found the governor’s man altogether unqualified. His job assignment, he said, was to hire the best qualified person. Justice Hart said the majority was patently wrong in deciding that firing a person for refusing to hire a government worker for reasons of political favoritism was not an ultra-vires act—an act beyond the official duties of the government agency.

In 2020, at the age of seventy-seven and facing the permanent loss of the state judicial pension if she was reelected, Hart retired to Mountain View.

For additional information:
Christopher H. Harris v. Asa Hutchinson, et al.  2020 Ark. 3, CV-18-826. January 9, 2020.

Van Zandt, Emily. “Childhood Encounter with Law Influenced Judge’s Career.” Arkansas Democrat-Gazette, Three Rivers Edition, November 11, 2012, p. 1.

Ernest Dumas
Little Rock, Arkansas