Judge: Arkansas AG Should Testfy In Lawsuit Over Rejected Ballot Proposals

May 15, 2018

Attorney General Leslie Rutledge
Credit Talk Business & Politics

A judge is denying a request by Arkansas Attorney General Leslie Rutledge to quash a subpoena calling her to testify in a lawsuit.

A group that has been rejected in its efforts to get language for a ballot initiative approved by the AG’s office argued that Rutledge "has acted in bad faith" and is abusing her power. The Committee to Restore Arkansas’ Rights wants to change the sovereign immunity provision in the state constitution.

In a written opinion Monday night, Pulaski County Circuit Judge Wendell Griffen rejected Rutledge’s filing to avoid testifying Friday on several grounds:

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. lt 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. The subject matter of this litigation is defined by the pleadings 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. 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. Hence, the Attorney General's objection based on relevance is OVERRULED.

Concerning the assertion of a "deliberative process" privilege, the Arkansas Rules of Evidence contain no such privilege. The Court has found no such privilege in Arkansas statutes. The Attorney General does not cite to any Arkansas statute that conveys such privilege. To the contrary, and instructively, the issue of privilege is prescribed clearly in Rule 501 of the Arkansas Rules of Evidence, as follows: "except as othenryise provided by constitution or statute or by these or other rules promulgated by the Supreme court of this State, no person has a privilege to: (1) refuse to be a witness; (2) refuse to dtsc/ose any matter; (3) refuse to produce any object or writing; or (4) prevent another from being a witness or disclosing any mater or producing any object or writing." (emphasis added) Specifically the Arkansas Rules of Evidence delineates the following privileges: lawyer-client privilege, physician and psychotherapist-patient privilege, husband-wife privilege, religious privilege, political vote privilege, and trade secrets privilege. See Ark. R. of Evidence 502-507.The Attorney General does not assert any of the privileges previously mentioned. Arkansas Rule of Evidence 508 provides that: "[i]f the law of the United States creates a governmental privilege that the courts of this State must recognize under the Constitution of the United States, the privilege may be claimed as provided by the law of the United States, (b) [n]o other governmental privilege is recognized except as created by the Constitution or statutes of this State."

The Court finds no basis for concluding that Arkansas Rule of Evidence 50g envisions the "deliberative process privilege" asserted by the Attorney Generat in this instance. Arkansas Rule of Evidence 509, ldentity of !nformer does not apply. As previously mentioned, these are the prescribed privileges set forth in the Arkansas Rules of Evidence. The "deliberative process" privilege asserted by the Attorney General is not included. The Court notes that although the assertion is based upon a court opinion of some age, the Arkansas Supreme Court has not included it in the Arkansas Rules of Evidence (nor has the Arkansas Legislature enacted any law) suggesting that this privilege would be included. As such, the objection by the Attorney General based on her reliance on a "deliberative process" privilege is hereby OVERRULED.

Finally, the Attorney General's reliance on the Apex Witness Rule must also be overruled. According to that argument, before the Court can compel the testimony of the high ranking governmental officer, the petitioner must demonstrate both that the governmental official possesses superior or unique information relevant to issues being litigated and that the information cannot be obtained by a less intrusive method, such as obtaining testimony of lower ranking employees. The Attorney General of Arkansas isaccording to the explicit provisions of the Constitution of Arkansas-vested with a nondelegable duty to certify proposed ballot initiatives before they can be submitted to the voters for decision. The Attorney General does not dispute that authority. lndeed, it would appear unlikely that the Attorney General could delegate that authority consistent with her duties. As such, the Court finds that there is no lower ranking employee whose testimony would be relevant concerning questions regarding ballot decisions for the purposes of.the Apex Witness Rule. Consequenfly, the Attorney General's objection based on her reliance on the Apex Witness Rule is hereby OVERRULED.

The Petitioner argues in its Response that it has attempted to meet with the Attorney General and determine whether there were ways to resolve the discovery issues regarding her testimony. The Attorney General has failed to identify anyone other than herself authorized to give testimony at the May 18,2018 hearing. The Court raises these points because the Attorney General's reliance on the Apex Witness Rule is based on the contention that the information might be obtained from a lower ranking employee. lf the Attorney General indeed believed that information might be obtained from a lower ranking employee, it was incumbent on the Attorney General to at least identify that person and suggest when or whether that person might be available to be interviewed. Rather it appears that the Attorney General did not do so. The Court finds that conduct inconsistent with the spirit of discovery and unsupported by any rule of law cited by the Attorney General or othenrwise known to the Court.