Attorney General Slips Court Hearing, Ballot Lockout Lawsuit Shipped To Federal Judge

May 18, 2018

Just minutes ahead of a scheduled hearing in Pulaski County Circuit Court, Attorney General Leslie Rutledge asked a federal court to take up a lawsuit against her that alleges she’s obstructing ballot initiatives.

It did, and the hearing was postponed.

In a statement afterward, her office said the attorney general “removed this case to federal court because the plaintiffs asserted claims under the First Amendment to the U.S. Constitution. Therefore, the federal court is the proper forum to hear the case."

The matter is now before U.S. District Judge Kristine Baker.

“I think it’s pretty evident that she doesn’t want to have a hearing, she doesn’t want to testify. She must be hiding something,” said Alex Gray, the Little Rock lawyer who filed the suit.

Gray is a named partner in the firm of Steel, Wright, Gray and Hutchinson. Hutchinson is a state senator and nephew of Gov. Asa Hutchinson; Nate Steel was Rutledge’s Democratic opponent in the 2014 attorney general’s race.

Gray, Steel and Hutchinson were in court today. According to Gray, they found out about the attorney general’s request less than an hour before the scheduled start of the hearing before Pulaski Circuit Judge Wendell Griffin.

Griffin, in his pro forma announcement from the bench staying the matter, made a comment that seemed to suggest he questioned whether the federal court would take up the suit.

“I’m not a betting person, therefore I’m not going to lay odds on that.”

Earlier in the week Griffin had denied a request from the attorney general to be excused from court. Staff had argued that Rutledge wasn't uniquely involved in approving or rejecting language; staff testimony would suffice.  

If a federal court chose not to hear the matter it would be remanded to state courts. If it did adjudicate, it's unclear whether Baker would compel Rutledge to testify, as Griffen planned to, or accept staff testimony. 

Solicitor General Lee Rudofsky, who was in court representing the attorney general’s office, refused to comment afterward.

“The people in the constitution have the right to propose laws and constitutional amendments,” Gray said. “And so, the process of getting to where you propose it and to where we vote on it in November and, you know, whether it be a minimum wage amendment or a casino amendment or any other amendment, the people have a right to put those on the ballot.”

Gray’s suit raises two related constitutional questions. A subsection of Article 5 section 1 of the Arkansas constitution that was added in 1977 gives the attorney general the right to reject popular ballot language; that, the suit challenges, is unconstitutional. But section 1 separately directs the attorney general to rewrite language when necessary to get voter-initiated proposals on the ballot, and that, he says, is what a court should order her to do.

“She is stonewalling those attempts because she’s just rejecting, unconstitutionally rejecting, every single proposal that comes before her.”

Ballot initiatives first need the attorney general’s assent and then about 85,000 signatures to get on the ballot. Even then they frequently come up for Arkansas Supreme Court scrutiny.

Fellow ballot proposal author and lawyer David Couch petitioned that court on Thursday making what is in tone if not particulars the same exact complaint.

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