AG Rutledge a no-show at Pulaski County Court hearing, gets case moved to federal court

A Little Rock lawyer’s opportunity to get Attorney General Leslie Rutledge on the stand to defend her office’s repeated rejection of proposed voter referendums was stayed in Pulaski County Circuit Court Friday (May 18) and moved to a federal court venue.

In a surprise move ahead of a 10 a.m. hearing before Pulaski County Judge Wendell Griffen, Rutledge filed a “notice of removal” to immediately change the jurisdiction concerning a state-law constitutional claim brought by the Committee to Restore Arkansans’ Rights (CRAR) nearly three weeks ago to the U.S. District Court for the Eastern District of Arkansas.

After acknowledging Rutledge’s absence, 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 U.S. District Judge Kristine 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 5-minute hearing.

In a five-page ruling on Monday (May 14), Griffen had compelled Rutledge to appear at Friday’s 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 — which includes 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.

That subpoena had asked Rutledge to explain why she has failed to perform her duties to “exercise the rights reserved to the people (of Arkansas) to propose constitutional amendments.” Following Friday’s hearing at the Pulaski County courthouse, Lee Rudofsky, solicitor general for the Attorney General’s Office and other members of the AG’s staff, refused to make a public comment.

However, the Attorney General’s Office did respond to a Talk Business & Politics query with a non-attributed statement concerning Rutledge’s no-show at Griffen’s court.

“Today, the Attorney General removed this case to federal court because the plaintiffs’ asserted claims under the First Amendment to the U.S. Constitution. Therefore, the federal court is the proper forum to hear the case,” the statement read.

AG’S OFFICE ‘STONEWALLING’ ON VOTER REFERENDUMS
Outside the Pulaski County courtroom in downtown Little Rock, Gray lambasted Rutledge for not appearing at the lower court proceedings. The local attorney added that he was astounded that the attorney general chose to delay explaining why she has rejected every proposed constitutional amendment that has come before her office.

“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,” said Gray. “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.”

Gray reiterated his assertion made in the Committee to Restore Arkansans’ Rights original lawsuit filed 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.

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 rejection.

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 improperly.

“Our claim is that the statute is unconstitutional, but also that the attorney general is acting in an unconstitutional manner in the way that she is applying it,” Gray told reporters.

In her brief two-page filing ahead of the hearing before Judge Griffen, Rutledge argued that the hearing was “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. Immediately afterward, Gray’s firm filed an emergency motion in U.S. District Court in Little Rock requesting Judge Baker to dismiss the attorney general’s complaint.

“On May 18, 2018, less than an hour prior to the scheduled emergency hearing, the Defendant filed its notice of removal,” Gray said in the federal court filing. “Given the time sensitive nature of this action, instead of contesting the Defendant’s notice of removal, Plaintiff and Intervenor-Plaintiff move that this action be dismissed without prejudice under (federal law), and Plaintiff and Intervenor-Plaintiff will refile their action in state court.”

RUTLEDGE TO GENERAL ASSEMBLY: FIX IT
Friday’s back-and-forth between state and federal court comes one day after Rutledge took the unusual step of releasing a statement asking the Arkansas Legislature to fix the way constitutional amendments are proposed by citizen-led groups.

“(I) call on the General Assembly to fix the process by which a citizen can place an initiative to amend the Arkansas Constitution on the election ballot. Citizens should know very early in the process whether the Arkansas Supreme Court approves of the language of their proposal, prior to their spending significant amounts of time and money collecting signatures and educating voters on the issue,” said the Republican attorney general. “I am dedicated to working with the General Assembly to create such a system and will continue looking out for the best interests of all Arkansans to ensure the process is clear and fair.”

Rutledge added that under current law, she is required as Attorney General to review proposed initiatives to ensure they are not misleading. “In determining whether a proposal is misleading, I must follow the very strict standard set forth by the Arkansas Supreme Court in the Lange and Wilson cases from 2016. These Supreme Court decisions require that it be clear to Arkansans what a ‘for’ or ‘against’ vote means.”

“Only proposals that I am confident meet the Supreme Court’s stringent test are approved. After I approve the language, citizens must spend a great amount of time and money gathering the required number of signatures to have their proposal placed on the election ballot by the Secretary of State. At this point, opponents of the proposal can ask the Arkansas Supreme Court to strike it down,” she said. “In its review the Court does not consider my initial approval of the proposal, but instead takes a completely new look at the language. Because such challenges occur very close to the election, proposals rejected by the Arkansas Supreme Court often still appear on the election ballot, adding further confusion for Arkansas voters.”

As of Friday afternoon, no court date had been set on Rutledge’s petition to move the lower court proceedings to federal court.