Delay injunction hearing in takeover, court urged

Attorneys defending the state's Jan. 28 takeover of the Little Rock School District asked a Pulaski County Circuit judge on Tuesday to delay today's hearing pending the outcome of their appeal to the Arkansas Supreme Court.

Arkansas Department of Education attorneys told Pulaski County Circuit Judge Wendell Griffen that they had given notice to the high court of their intent to appeal his order from earlier in the day in which he denied their motion to dismiss the lawsuit.

The motion to dismiss was based on the argument that the Arkansas Constitution and case law protect the state from the lawsuit.

As of Tuesday evening, Griffen had not granted the delay of today's hearing on a preliminary injunction that has the potential to put a hold on the state's control of the 24,800-student school system, the largest in Arkansas.

The state Education Board voted 5-4 in January to take control of the Little Rock district by immediately dismissing its seven-member School Board and making Superintendent Dexter Suggs the interim superintendent under the direction of state Education Commissioner Tony Wood.

Three of the displaced School Board members and two district voters filed a lawsuit Feb. 20 against the state Department of Education, state Education Board members and Wood seeking to regain local control of the district.

Marion Humphrey, one of three attorneys for the plaintiffs in the case, said Tuesday evening that he believed that the hearing on a preliminary injunction was set to go on as scheduled today.

"We plan to be there, but I don't know if the other side intends to be there," Humphrey said, adding that while his legal team and state attorneys had conferred Tuesday, the plaintiffs' attorneys became aware of the appeal only when the notice was submitted to Griffen.

Humphrey, Willard Proctor Jr. and Rickey Hicks represent former School Board members Dianne Curry, C.E. McAdoo and Jim Ross and school district voters Doris Pendleton and Barclay Key.

Kimberly Friedman, a spokesman for the Education Department, said earlier Tuesday afternoon that the agency attorneys had no comment on Griffen's order denying their motion to dismiss the case.

"We are just getting ready for the hearing tomorrow," Friedman said.

The attorneys -- Jeremy Lasiter, Lori Freno and Kendra Clay -- could not be reached by phone or email late Tuesday about the appeal to the Supreme Court. The appeal is labeled as an interlocutory appeal, or an appeal that centers on a question of law to be resolved by an appellate court before a trial or hearing in the original court can proceed.

On Monday, the state attorneys had filed the motion to dismiss the case, arguing that the plaintiffs failed to show that state officials had "acted in an arbitrary, capricious, bad faith, or wantonly injurious manner."

"The defendants are entitled to sovereign immunity from the suit under Article 5 ... of the Arkansas Constitution. Consequently, the present lawsuit must be dismissed," the attorneys wrote.

Article 5 of the constitution specifically says that "the state of Arkansas shall never be made a defendant in any of her courts." Subsequent court cases have interpreted that protection to extend to state agencies and public officials in their official capacities.

Attorneys for the plaintiffs have argued that state education leaders are subject to a lawsuit because they exceeded their legal authority in taking control of the entire 48-school Little Rock district when only six of the schools were identified by the state as being in "academic distress."

Fewer than half of the students in those six schools -- Baseline Elementary; Cloverdale and Henderson middle schools; and J.A. Fair, Hall and McClellan high schools -- scored at proficient levels on state math and literacy exams over a three-year period.

Early Tuesday, the state attorneys followed up on the motion to dismiss with a request to the judge to either postpone today's hearing until the judge ruled on the motion to dismiss or issue a decision on the request for dismissal.

"Because the defendants have claimed entitlement to sovereign immunity from suit, and because sovereign immunity is a jurisdictional issue that must be determined entirely from the pleadings, a court must rule on the issue of sovereign immunity as a threshold matter," Education Department attorneys Freno and Lasiter wrote in the motion of continuance.

"Consequentially, the defendants respectfully request that this Court continue the preliminary injunction hearing until a later date to provide time for all parties to brief the issue of sovereign immunity and this Court to make a ruling on the same."

In the alternative, the attorneys asked that Griffen rule on the state's motion from Monday to dismiss the lawsuit on the grounds of sovereign immunity before allowing the case to move further ahead.

The attorneys said they were making the motion to delay the injunction hearing not for harassment or delay but to raise the issue before the scheduled hearing to which more than 30 potential witnesses from across the state are expected to attend.

Attorneys for the state have identified three potential witnesses for today's hearing: Wood, state Education Board Chairman Sam Ledbetter of Little Rock and Education Department Chief of Staff Deborah Coffman.

The attorneys for the plaintiffs gave the judge a list of 33 potential witnesses for today's hearing, including all members of the state Education Board and all seven of the displaced Little Rock School Board members, as well as staff members from the Little Rock School District and the Department of Education, plus leaders of organizations such as Arkansas Learns and the Arkansas Public School Resource Center.

Later Tuesday, Griffen issued his orders denying the motion for continuance and the motion for dismissal.

"[W]here a complaint sets out factual allegations that make a colorable claim, the complaint will survive a challenge to its legal sufficiency in a motion for dismissal," Griffen wrote in the 10-page order.

A colorable claim is one that has a reasonable chance of being validated with facts proved in court.

The judge added in the denial that plaintiffs in the case have alleged specific facts and circumstances to support their allegations against state education leaders and that those facts at this point in the case "must be treated as true and viewed favorably."

"The court does not weigh the strength of those claims or the probative force of any factual allegations asserted in the complaint," he said.

"Thus, Defendants' motion requires the Court to examine the complaint in this action to determine whether it alleges facts that establish a basis for relief in the face of the bar against suing the State that is found in the Arkansas Constitution," he added.

Griffen said the state defendants argue that the allegations in the lawsuit are legally insufficient to show that the state acted beyond its legal authority. They further argue that the plaintiffs failed to provide facts showing that the state acted in an arbitrary and capricious manner that would warrant an exception to the constitutional bar to a successful lawsuit.

"However, Defendants cite no case that holds the kind of allegations asserted by the plaintiffs to be legally insufficient to establish claims against the state or one of its agencies," the judge wrote. "Rather, Defendants dispute whether the facts alleged by the plaintiffs prove what the plaintiffs allege.

"In reviewing a motion to dismiss, the trial court does not weigh the relative merits of factual allegations because it cannot do so," Griffen wrote. "Factual allegations are not proof. They are simply assertions of what a litigant contends it will prove to establish entitlement to the relief it claims."

State attorneys earlier had made a motion asking Griffen to recuse from the case as the result of his Jan. 28 written statement strongly urging that the Little Rock School Board be left intact as it was working to undo years of discrimination to provide quality education to the district's students.

He said that the dismissal of the board would disenfranchise voters who had elected the School Board. Griffen made the statement before the filing of the lawsuit that was randomly assigned to him.

Griffen denied the state's motion for his recusal.

Metro on 03/18/2015