Little Rock's lawsuit goes to judge who's previously cited city attorney

Defendant’s attorney says it’s moot, state can’t be sued

Posted: January 24, 2018 at 4:30 a.m.

From left, Frank Scott Jr. and Warwick Sabin

A lawsuit over campaign fundraising in Little Rock has been assigned to a judge who has previously sparred with the city attorney, just as a high court ruling has led to questions over whether the city's suit can even continue.

The city is seeking a declaratory judgment against the Arkansas Ethics Commission, two people exploring a run for mayor in this November's election -- state Rep. Warwick Sabin and banker Frank Scott Jr. -- and both men's exploratory committees.

It is unclear in light of the Arkansas Supreme Court's ruling last week on sovereign immunity whether the city can legally sue the Ethics Commission, an arm of the state.

The Supreme Court issued a ruling Thursday, the same day the city filed its lawsuit, saying the state cannot be sued in court.

The city's lawsuit asks a Pulaski County circuit judge to rule on whether the Ethics Commission must consider a city campaign rule that says fundraising can begin no earlier than the June before a November election.

The commission opines only on state law. But Little Rock City Attorney Tom Carpenter says a state law gives the city the ability to restrict the timeline to raise funds for a campaign in city elections.

The lawsuit also asks a judge to instruct the commission to sanction anyone in violation of the city ordinance. Both Sabin and Scott began raising money through their exploratory committees last year. That money will transfer to the candidates after they formally file to run for office.

Carpenter said Friday that he doesn't think the state Supreme Court ruling affects the city's lawsuit.

"We aren't asking anything of the government, we are just asking for an interpretation of the law, and [the Ethics Commission is] just an interested party," Carpenter said.

"The [Supreme Court] opinion talks about what really is making the state a defendant. One is you subject them to liability," Carpenter said. "Well, we are not doing that. Second is you are making them do something, and we're not doing that. We're just asking them what is the law."

"We are saying, make the determination that [the commission] should look at this, which is real slight, but there's a difference," Carpenter said.

Chris Burks, an attorney who said he will likely represent Sabin in the lawsuit and who also represented the plaintiff in the lawsuit the Supreme Court ruled on, said he thinks the high court decision means the commission will be dropped as a defendant in the city's case.

Burks disagrees with the Supreme Court ruling and said Arkansans should be able to seek a court ruling if they think the commission erred in an opinion -- even if they are wrong, which he contends that the city is in this matter.

If the commission were dropped and Sabin, Scott and their exploratory committees were the only defendants in the lawsuit, its unclear whether the city would go through with the lawsuit as it's worded or rework it.

Graham Sloan, the executive director of the commission, was out of the office Tuesday for personal matters and could not be reached for comment on the suit.

Pulaski County Circuit Judge Chris Piazza recused from the city's lawsuit Friday, a day after it was filed, court records show.

A law clerk in his office said Tuesday that Piazza does not disclose why he chooses to recuse from a case.

The case has been reassigned to Judge Tim Fox.



Fox and Carpenter have had documented disputes in the past.

In April 2016, Fox fined Little Rock $10,000 for not being ready for a trial. He later chastised Carpenter for advising the city not to pay the fine on time and to instead wait for the judge's decision on a motion to reconsider.

Fox ordered Carpenter to complete six hours of continuing legal education on case management and ethics.

In November of that year, during a different case, Fox said Carpenter regularly disregarded court orders.

Carpenter has an ever-increasing track record of "flouting or avoiding" orders, the judge said then.

His comments were in regard to a case against the city in which Fox had ordered the plaintiffs and the city to undergo mediation. The plaintiffs' attorneys told the judge the city sent an attorney who had no authority to negotiate.

Fox considered ordering the city manager and mayor to attend any mediation involving the city in the future, he said. Instead, he said he will be specifying who should attend mediation for Little Rock in future cases so Carpenter will be absolutely clear about the judge's intentions.

"From now on, hopefully Mr. Carpenter will understand," the judge said at a hearing.

At the time, Carpenter disagreed with Fox's interpretation of the matter and said he couldn't comment on the statements Fox made about him.

"There's no way I can comment on a statement made out of context with no background," he said then.

In Thursday's lawsuit filed by Little Rock, Carpenter asks for an expedited hearing since the issues at hand deal with this year's election.

Sabin's exploratory committee has been raising funds since July. Scott's committee began raising funds in September.

Incumbent Mayor Mark Stodola is not allowed to form an exploratory committee for an office he already holds, and thus has to follow the city ordinance and has not been raising funds.

He does have money left over from previous campaigns.

The issue of whether the Little Rock ordinance prevails over the state law allowing exploratory committees will affect the city Board of Directors races as well as the mayor's race.

There are six board seats up for election in November. No one who has announced they will challenge an incumbent for any of those positions has begun raising money through an exploratory committee.

Metro on 01/24/2018