Federal Judge Sets Court Date On Proposed Constitutional Amendments

Attorney General Leslie Rutledge in Little Rock in 2014.
Credit Michael Hibblen / KUAR News

U.S. District Court Judge Kristine Baker is set to hear arguments Thursday in Little Rock concerning a back-and-forth civil case pitting Arkansas Attorney General Leslie Rutledge and a Little Rock law firm seeking to clarify the state’s repeated rejection of proposed constitutional amendments.

Baker, on Monday, set the court date for 10:30 a.m. at the U.S District Court for the Eastern District of Arkansas in downtown Little Rock to hear the Committee to Restore Arkansans’ Rights request for a temporary restraining order and preliminary injunction on the merits of whether Arkansas Code Ann. 7-9-107 violates the U.S. and Arkansas constitutions.

In a surprise move ahead of a hearing last Friday before Pulaski County Judge Wendell Griffen, Rutledge refused to show up in lower court in response to a subpoena to take the stand. She also filed a “notice of removal” to immediately change the jurisdiction concerning the state-law constitutional claim to federal court.

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 Baker.

The federal judge had ordered Rutledge over the weekend to respond by today (Tuesday, May 22) to an emergency motion that would force her to take the stand in the circuit court hearing. After Gray and intervenors in the case filed a notice to dismiss their request to move the hearing back to Pulaski County Circuit Court, Baker scheduled the hearing in federal court two days after the primaries for the November election.

Judge Baker will now hear arguments on 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. Little Rock attorney Alex Gray told Talk Business & Politics on Tuesday that Rutledge is an “indispensable witness” because she failed to perform her duties as Attorney General.

The AG’s office has said Rutledge will not take the stand at the federal hearing, but instead her office will send Assistant Solicitor General Dylan Jacobs.

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 last week.

In federal and lower court filings, Rutledge and Attorney General Office staff have asserted that civil claims made by the Gray and intervenors against the AG’s office were “removable” to federal court because of allegations that Ark. Code Ann. 7-9-107 violated 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.”

Gray has said it is urgent that Rutledge explain why she has not approved any proposal constitutional amendments for the upcoming fall election. 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.