Federal judge orders AG Rutledge to respond to motion to dismiss change of jurisdiction request

U.S. District Judge Kristine Baker has directed Arkansas Attorney General Leslie Rutledge to respond by Tuesday (May 22) to an emergency motion that would force her to take the stand in a circuit court hearing on her office’s repeated rejection of proposed voter referendums.

Judge Baker’s order came late Friday afternoon after Rutledge did not show up in lower court earlier in the day after filing a “notice of removal” to immediately change the jurisdiction of a state-law constitutional claim to federal court. That claim was made three weeks ago by Little Rock attorney Alex Gray on behalf of the Committee to Restore Arkansans’ Rights, which is seeking to put a voter referendum to clarify Arkansas’ sovereign immunity rules on the ballot in November.

In her filing in the U.S. District Court for the Eastern District of Arkansas, Judge Baker notes she has had “informal communications” with both Rutledge and attorneys for the ballot proposal group to move the case to federal court, but chose not to intervene.

“Attorney General Rutledge represents that she can adequately respond to plaintiffs’ pending motion by Tuesday, May 22, 2018,” Baker ordered. “Also, through informal communications with the Court, plaintiffs have requested an expedited hearing on this matter. At this time, the Court declines to conduct a hearing on this matter.  The Court directs Attorney General Rutledge to file a response to plaintiffs’ motion to dismiss on or before Tuesday, May 22, 2018.”

Last week, Pulaski County Circuit Court Judge Wendell Griffen had compelled Rutledge to appear at a lower court hearing on Friday, challenging the attorney general’s authority to reject a proposed constitutional amendment to waive the state’s long-held sovereign immunity law, which mainly prevents the state of Arkansas from being sued in court.

The Committee to Restore Arkansans’ Rights — which includes Gray, State Sen. Jeremy Hutchinson, R-Little Rock, and former Democratic legislator Nate Steel, who was defeated by Rutledge in the 2014 election for attorney general — had originally served the state’s top lawyer with a subpoena on May 3 to appear before the court in her official capacity as attorney general.

After Rutledge failed to show up at a 10 a.m. hearing Friday at the Pulaski Court courthouse, Judge Griffen issued a stay on the hearing pending the federal court review and then told the representatives of the Steel, Wright, Gray & Hutchinson law firm they would now have to make their case before Judge Baker.

“I am not a betting person; therefore, I am not going to lay odds on that [federal case] if I were a betting person. I wouldn’t lay odds because you shouldn’t bet on litigation,” Griffen said before adjourning the five-minute hearing.

In her request to move the case to federal court ahead of her expected appearance before Judge Griffen, Rutledge asserted the civil claims made by the plaintiff and intervenors against the AG’s office were “removable” to federal court because Gray and intervenors in the case alleged that Ark. Code Ann. 7-9-107 violated both the U.S. and Arkansas constitutions.

“This [federal] court has supplemental jurisdiction over the state-law constitutional claims asserted in the company pursuant to [federal law] because they are so related to the federal claim as to ‘form part of the same case or controversy under Article II of the U.S. Constitution,” Rutledge states in filing in U.S. District Court.”

However, by late Friday afternoon, Gray had filed an emergency motion in federal court to dismiss Rutledge’s claim and return the case back to the lower court. While speaking to reporters after Rutledge’s no-show at the Pulaski County courthouse, Gray said he was astounded the attorney general refuse to take the stand in lower court.

“This was unexpected; this was a procedural move by the Attorney General’s office. To say it was done in good faith is not an accurate statement. This is just an attempt to further delay Arkansans’ rights to petition for constitutional amendments,” Gray said, adding Rutledge has rejected “70 out of 70” voter-led proposals. “So, this has been a process that has been ongoing since early January and the attorney general continues to stonewall everyone who attempts to propose legislation or a constitutional claim.”

Besides the Committee to Restore Arkansans’ Rights, another group tied to Gray’s law firm that is pushing for a casino referendum also filed a brief in support of the motion to dismiss Rutledge complaints. Drive Arkansas Forward, which is proposing a casino-for-highways funding bill for the November ballot, has been rejected four times by the attorney general’s office and had a petition for an expedited hearing rejected by the state Supreme Court in late April.

Gray said it is urgent that Rutledge appears on the stand to explain why Ark. Code Ann. 7-9-107 is not only unconstitutional “on its face,” but also why the attorney general’s office is alternatively applying that same statute in an unconstitutional manner.

He said if any voter referendums are to appear on the ballot in time for the November election, his group must publish an AG-approved and certified proposal to amend the state constitution by June 6. The deadline to obtain the 84,859 signatures necessary to put the item before Arkansas voters in the fall is July 6.