A group of attorneys wanting to expand their power to sue the state have done just that in hopes of getting their proposal before voters.
A lawsuit filed Tuesday in Pulaski County Circuit Court alleges that Attorney General Leslie Rutledge has undercut voters' rights to amend the state Constitution by summarily rejecting proposals that reach her desk for review.
The lawyers bringing the suit are partners in the Little Rock law firm Steel Wright Gray & Hutchinson, which unsuccessfully brought related claims to the state Supreme Court last month. The attorneys represent two groups seeking to change the Arkansas Constitution. One wants an amendment to expand casino gambling in the state, and the other is pushing an amendment regarding the state's sovereign immunity.
Rutledge has repeatedly rejected both of the groups' proposals, and has defended her decisions by saying state law gives her broad authority to do so.
As recently as last week, the state Supreme Court tossed out the attorneys' request for intervention under the state's ballot initiative and referendum law.
Now, in their latest suit, the attorneys are also arguing that the law, Arkansas Code Annotated 7-9-107, is unconstitutional. The complaint takes aim at the the argument Rutledge's office has made in court filings: that her review of ballot proposals is "unquestionably a discretionary process."
"We argue that the statute is unconstitutional as it is being applied by the attorney general," Alex Gray, a partner at the firm, said Wednesday. "Our state constitution guarantees the rights of people to propose amendments. The attorney general cannot stand between the people and that right."
A spokesman for the attorney general said Rutledge has received and is reviewing the lawsuit.
The basis for the attorneys' lawsuit is Rutledge's rejection of their proposal to amend the Arkansas Constitution's doctrine of sovereign immunity, which protects the state and its agencies from certain lawsuits.
Earlier this year, the Arkansas Supreme Court reversed precedent by ruling that the Legislature cannot waive that protection in the laws it passes, effectively striking down aspects of the state's minimum wage and whistle-blower protection laws.
Judges in other courts tossed suits in response to the law, and some attorneys and lawmakers have called for a clarification to be written into the constitution.
But when Rutledge first reviewed the proposed constitutional amendment Gray and his partners want to put before voters this November, she rejected the measure, saying most voters are "unfamiliar" with the term sovereign immunity.
Gray submitted a second request, explaining several ways lawsuits against the state would be authorized by the amendment, but Rutledge again rejected the proposal, saying it was "described inadequately."
The law regarding initiatives and referendums gives the attorney general the authority to certify or amend the title and description of the proposal that is printed on the ballot, or to reject that wording if it is deemed misleading.
In the lawsuit, Gray and his attorneys allege that Rutledge has refused to certify proposed amendments put before her for review, or to fix herself the problems she finds in the wording.
"The sovereign immunity ballot title is clear and concise," Gray said. "And it is not misleading."
David Couch, another attorney whose proposals for placing a constitutional amendment on the 2018 ballot have been rebuffed by Rutledge, said he anticipated the lawsuit brought by Gray's firm, adding that he's contemplated filing suit himself.
"I think she has been overly harsh in rejecting ballot measures," said Couch, who has put forward proposals this year related to redistricting and raising the minimum wage.
During the last election, in 2016, Couch's amendment to legalize medical marijuana was the only citizen-initiated proposal to make it through a series of lawsuits that led the Supreme Court to cancel the vote on two other measures. Since then, he said, Rutledge has been stricter in her review.
Gray and the other partners in his firm appealed to the Supreme Court last month after their draft of a proposal to allow up to four casinos to open in the state was rejected for the fourth time by Rutledge. The justices on the high court, however, declined to intervene.
This time, the lawsuit is being brought in the lower courts, where it has been assigned to Pulaski County Judge Wendell Griffen. Gray and his law partners are asking Griffen to enter a temporary restraining order and a preliminary injunction preventing Rutledge from invoking the law to reject their sovereign immunity proposal.
Should Griffen make such an order, the attorneys and their supporters will still have to gather more than 84,000 valid signatures of registered voters and submit the petitions to the secretary of state's office by July 6 in order to get their proposal on the 2018 ballot.
Metro on 05/03/2018