Wendell Griffen rules that Leslie Rutledge has to testify in challenge to her ballot-initiative blockade | Arkansas Blog

Wendell Griffen rules that Leslie Rutledge has to testify in challenge to her ballot-initiative blockade

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RUTLEDGE: Her effort to stop subpoena stymied, set to testify on Friday.
  • RUTLEDGE: Her effort to stop subpoena stymied, set to testify on Friday.
Attorney General Leslie Rutledge may have to testify in a case challenging her blockade of proposed ballot initiatives.

Circuit Judge Wendell Griffen yesterday denied the attorney general office's motion to block a subpoena issued for Rutledge to testify in the hearing on the case, set for May 18. That means Rutledge will be taking the stand, unless she successfully appealed Griffen's ruling to the Supreme Court before Friday (it would be highly unusual for the Court to intervene in a dispute over a subpoena in trial court).


"The attorney general is reviewing Judge Griffen’s order to decide on appropriate next steps in this matter," stated Nicole Ryan, Rutledge's spokesperson, in an email.

A group proposing a ballot initiative to clarify the law on sovereign immunity, Committee to Restore Arkansans' Rights, filed the lawsuit earlier this month in Pulaski County Circuit Court, alleging that Rutledge's actions to twice rejected their proposed initiative violate the constitution. Another group, pushing the authorization of four casinos in the state, joined the lawsuit last week. Its proposal has been rejected five times.



Before seeking signatures to make the ballot, proposed initiatives must first gain approval from the attorney general. Rutledge has thus far rejected 70 proposals this election cycle and approved zero. Because gaining signatures is a time-consuming and costly process and a July deadline looms, time is running short for any potential ballot initiative. Critics allege that she is abusing her authority by foot-dragging on proposals that she doesn't like.

One point of contention for the groups blockaded by Rutledge is that under the law she could offer necessary revisions herself to clear up ambiguities (indeed, this is precisely what the law envisions the attorney general doing) but has refused to do so, rejecting every single proposal outright under a clause in the law that gives her authority to do so if a proposal is sufficiently misleading.

Arkansas Code Annotated § 7-9-107 states:

Before any initiative or referendum petition ordering a vote upon any amendment or act shall be circulated for obtaining signatures of petitioners, the sponsors shall submit the original draft to the Attorney General, with a proposed legislative or ballot title and popular name.

(b) Within ten (10) days, the Attorney General shall approve and certify or shall substitute and certify a more suitable and correct ballot title and popular name for each amendment or act. The ballot title so submitted or supplied by the Attorney General shall briefly and concisely state the purpose of the proposed measure.

(c) If, as a result of his or her review of the ballot title and popular name of a proposed initiated act or a proposed amendment to the Arkansas Constitution, the Attorney General determines that the ballot title, or the nature of the issue, is presented in such manner that the ballot title would be misleading or designed in such manner that a vote "FOR" the issue would be a vote against the matter or viewpoint that the voter believes himself or herself casting a vote for, or, conversely, that a vote "AGAINST" an issue would be a vote for a viewpoint that the voter is against, the Attorney General may reject the entire ballot title, popular name, and petition and state his or her reasons therefor and instruct the petitioners to redesign the proposed measure and the ballot title and popular name in a manner that would not be misleading.

(d) If the Attorney General refuses to act or if the sponsors feel aggrieved at the Attorney General's acts in such premises, the sponsors may, by petition, apply to the Supreme Court for proper relief.

The lawsuit basically boils down to how much discretion Rutledge has to exercise her authority under § 7-9-107 (c) above. The plaintiffs allege that the statute is unconstitutional on its face, but that even if Griffen doesn't find the statute itself unconstitutional, Rutledge's application of the statute in her rejection of the group's proposal is an unconstitutional abuse of her power.

When the plaintiffs subpoenaed Rutledge to testify on the matter, the attorney general's office responded with a motion to quash the subpoena, as well as a request for a protective order to keep Rutledge from having to testify. Griffen rejected both requests.

The attorney general argued that her testimony would not be relevant, that the "deliberative process privilege" (protecting the internal processes of the executive branch of government from discovery in civil lawsuits) barred the subpoena, and that she was protected under the "apex witness rule" (protecting a higher ranking officer from deposition if a lower-level employee will suffice).

From Griffen's ruling: 

First, there is no basis for quashing the subpoena of any witness based upon a contention by the subpoenaed party that the information desired from that witness testimony is not relevant. It is an elementary principle of law that relevancy of evidence is determined based on the subject matter of litigation and the specific inquiry directed to that witness. The subject matter of this litigation is defined by the pleadings before the Court. However 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. 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. ...

Concerning the assertion of a "deliberative process" privilege, the Arkansas Rules of Evidence contain no such privilege. The Court has found no such privilege in Arkansas statutes. The Attorney General does not cite to any Arkansas statute that conveys such privilege. ...

Finally, the Attorney General's reliance on the Apex Witness Rule must also be overruled. According to that argument, before the Court can compel the testimony of the high ranking governmental officer, the petitioner must demonstrate both that the governmental official possesses superior or unique information relevant to issues being litigated and that the information cannot be obtained by a less intrusive method, such as obtaining testimony of lower ranking employees. The Attorney General of Arkansas is according to the explicit provisions of the Constitution of Arkansas-vested with a nondelegable duty to certify proposed ballot initiatives before they can be submitted to the voters for decision. The Attorney General does not dispute that authority. Indeed, it would appear unlikely that the Attorney General could delegate that authority consistent with her duties. As such, the Court finds that there is no lower ranking employee whose testimony would be relevant concerning questions regarding ballot decisions for the purposes of.the Apex Witness Rule. 
"It is not unprecedented for attorney generals, governors, etc. to testify in hearings or trials," said attorney Alex Gray, who represents both plaintiffs. "In some of the redistricting cases, Mike Beebe, Dustin McDaniel, Mark Martin, they all had to testify. So this certainly is not unprecedented. As Judge Griffen's order clearly sets forth, the attorney general's office did not act in good faith. They refused to meet and try to resolve the subpoena, they refused to provide any alternate witnesses. They just kind of dug their heels in."

Unless a last-minute reprieve comes in from the Supreme Court, Rutledge will have to explain herself in court on the subject of ballot initiatives on Friday. Get the popcorn. 

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