Judge rules Arkansas AG must face queries in ballot-bid lawsuit

Posted: May 16, 2018 at 4:30 a.m.
Updated: May 16, 2018 at 5:05 p.m.

Attorney General Leslie Rutledge is shown in this 2016 file photo.

Attorney General Leslie Rutledge is shown in this 2016 file photo.

Arkansas Attorney General Leslie Rutledge must submit to questioning under oath about her ballot-initiative review process, Pulaski County Circuit Judge Wendell Griffen ruled Tuesday.

But will Rutledge have to answer any of those questions?

Griffen stated he can't answer that question until he hears for himself what the lawyers suing Rutledge will ask her at a hearing at 10 a.m. Friday.

The lawyers filed suit earlier this month, accusing the first-term Republican of deliberately thwarting their efforts to get proposed constitutional amendments on casino gambling and sovereign immunity before the voters. Rutledge this year has refused to certify two casino proposals and five involving sovereign immunity.

Rutledge, now seeking re-election, has not certified a ballot initiative in the past 18 months even though 62 have been put before her, according to the suit. None of the proposals met the standards set by the state Supreme Court for being clear and concise, Rutledge says.

Her attorneys tried to resist the effort to compel her to testify, arguing that there's no real need for the state's chief lawyer to submit to questioning since her rationale for refusing to certify the casino and immunity proposals is laid out in the seven opinions she's released over the past five months.

Rutledge has no unique information about the process that could not come from a member of her staff, they asserted.

The Rutledge lawyers also argued that the attorney general is protected from questioning by the "deliberative process privilege," a federal doctrine also known as executive privilege.

The privilege shields "high-ranking" government officials from being forced to answer questions about how they decided to use their authority in specific instances.

Griffen stated that none of Rutledge's objections to being questioned under oath had any legal merit. The judge noted that he had only been called on to compel Rutledge to testify because she had rejected efforts by the plaintiffs to resolve evidentiary issues without having to involve him.

"The Court finds that conduct inconsistent with the spirit of discovery and unsupported by any rule of law cited by the Attorney General or otherwise known to the court," Griffen wrote.

Her lawyers' claims that she has no unique information about the review process cannot be resolved until the questions are actually asked, he wrote.

"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," the judge added. "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."

The plaintiffs are partners Alex Gray and Nate Steel with Little Rock law firm Steel, Wright, Gray & Hutchinson, who represent two groups seeking to change the Arkansas Constitution. Steel, running as a Democrat, lost the 2014 attorney general race to Rutledge.

The Committee to Restore Arkansans' Rights, pushing for the immunity amendment, sued Rutledge on May 1, asserting the provision of Arkansas Code 7-9-107 that gives her the authority to certify ballot initiatives is unconstitutional and that she has misused that authority by refusing to certify the proposed amendments the group has presented.

It's joined by Driving Arkansas Forward, which is advocating for a constitutional amendment on casino gambling. The groups want the judge to allow them to move forward with the ballot-initiative process.

Passing the attorney general review is only the first step in getting a ballot proposal before the voters. The next step would be to get 84,859 eligible voters, from at least 15 counties, to sign a petition by the July Fourth holiday to put the proposal on the November ballot, according to the lawsuit.

Rutledge is being represented by Deputy Solicitor General Nicholas Bronni, Deputy Attorney General Monty Baugh, Assistant Solicitor General Dylan Jacobs and Assistant Attorney General KaTina Hodge.

Judge Wendell Griffen is shown in this file photo.

A Section on 05/16/2018