Pulaski County judge compels AG Rutledge to appear in court on May 18

A Pulaski County judge involved in several key cases concerning state powers has ruled Arkansas Attorney General Leslie Rutledge must appear at an upcoming hearing on a constitutional challenge of her decision to reject a ballot referendum to clarify Arkansas’ sovereign immunity rules.

In a brief five-page ruling late Monday evening (May 14), Pulaski County Judge Wendell Griffen compelled Rutledge to appear at a May 18 hearing 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, led by Alex Gray, an attorney affiliated with law firm of State Sen. Jeremy Hutchinson and a group pushing for a casino amendment, had originally served Rutledge with a subpoena on May 3 to appear before the court in her official capacity as Attorney General. That subpoena asks Rutledge to explain why she has failed to perform her duties to “exercise the rights reserved to the people (of Arkansas) to propose constitution amendments.”

After Rutledge filed an emergency motion in Pulaski County to quash Gray’s subpoena, Griffen responded by overruling Rutledge’s request on several accounts.

“First, there is no basis for quashing the subpoena of any witness based upon a contention by the subpoenaed party that the information desired from that witness testimony is not relevant. It is an elementary principle of law that relevancy of evidence is determined based on the subject matter of litigation and the specific inquiry directed to that witness,” Griffen stated.

The controversial Pulaski County judge, who is suing the state Supreme Court and is also at the center of a contentious court ruling to block the state’s entry into the medical marijuana industry, further stated in his ruling that the subject matter of this litigation is defined by the pleadings currently before the court.

“However, the Court does not know – and the Attorney General does not assert – any knowledge as to what question or questions are to be directed to her,” Griffen wrote. “As such, the Court has no factual basis upon which to rule that any question is not relevant. That is a decision that the Court must make after the witness is sworn and questions are propounded.”

In her emergency request for a protective order filed last week, AG Rutledge contended the committee’s subpoena “does not seek and is not reasonably calculated to lead to relevant evidence.” She also said the court should throw out Gray’s summons because of the state’s deliberative process privilege, which provides immunity to certain executive branches of state government from normal disclosure and discovery in civil litigation.

In addition, Rutledge asked Judge Griffen to block the subpoena because of the so-called “Apex Witness Rule, which allows a high-ranking officer who “possesses superior or unique information relevant to issues being litigated” to be relieved from testifying in court if the information can be obtained elsewhere, including lower ranking employees in the AG’s office.

After Griffen’s ruling, Nicole Ryan, spokeswoman for the Attorney General’s office, said Rutledge is reviewing the order “to decide on appropriate next steps in this matter.” She provided no further comment.

The Committee to Restore Arkansas’ Rights first filed a lawsuit in Pulaski County Court on May 1 declaring that the AG’s decision to reject the group’s popular name and ballot title item was unconstitutional. Gray told Talk Business & Politics on Tuesday that Rutledge is an “indispensable witness” because she failed to perform her duties as Attorney General.

“We agree with Judge Griffen’s ruling. I think the ruling speaks for itself,” said Gray. “The Attorney General and her office has failed to even to get this resolved, failed to provide any alternate witnesses and just did not act in good faith,” Gray said.

On March 9, Rutledge’s office first rejected the push to put a constitutional amendment on the November ballot to make clear the state’s sovereign immunity rules by giving the Arkansas General Assembly the responsibility of writing into law the thresholds outlining its murky parameters. The committee’s proposal was turned down “due to ambiguities in the description of sovereign-immunity ‘waiver,’ and in the language purporting to authorize suits against the State seeking non-monetary relief,” according to Rutledge’s ruling.

However, Gray said the statute the AG’s office has relied on to reject “70 out of 70” ballot proposals, Ark. Code Ann. 7-9-107, is not only unconstitutional “on its face,” but also noted that Rutledge is alternatively applying that same statute in an unconstitutional manner.

“Her actions are restricting, hampering and impair the people’s right to propose constitutional amendments and she is just flat out violating the Arkansas Constitution,” he said.

The issue of sovereign immunity has moved front-and-center in state legal circles following a decision in The Board of Trustees of the University of Arkansas v. Matthew Andrews. On Jan. 18, the Arkansas Supreme Court noted in a 5-2 ruling that Article 5, Section 20 of the Arkansas Constitution says “[t]he State of Arkansas shall never be made a defendant in any of her courts.”

The court ruled in that overtime pay case that the Legislature cannot pass laws that waive the state’s ability to assert sovereign immunity. The case potentially has far-reaching effects on state policies and may affect another important court case, Lake View School District No. 25 v. Huckabee.

Gov. Asa Hutchinson told Talk Business & Politics Feb. 11 the state should not have a “blanket sovereign immunity across the board, in non-monetary cases particularly.” He said he has asked state agencies not to assert sovereign immunity without his office’s approval. But in her dissent in the Andrews case, Justice Karen Baker wrote that the ruling means that if the Legislature cannot waive the state’s sovereign immunity, then neither can the executive branch.

Late last week, Rutledge’s office filed briefs with the state Supreme Court raising legal questions in the state’s expedited appeal of Judge Griffen’s March 21 decision to block the award of the state’s first medical marijuana cultivation center licenses.

In a voluminous 630-page filing, Rutledge and her senior staff made the argument that Griffen erred on several key legal questions, including procedure posture, standards of review, standing, sovereign immunity and abuse of discretion. The AG’s office also expressed concerns that Griffen’s restraining order was “overly broad.” The high court is expected to hear arguments in that case in June.

Arkansas’ omnibus Lake View school funding formula that was created in response to the long-running Lake View lawsuit against the state may also get a fresh look because of the looming sovereign immunity question. Legal analysts say the Jan. 18 ruling by the Supreme Court could potentially have far-reaching effects on state policies and may affect the historic Lake View ruling decided in 2007.