Columns » Max Brantley

Privileged

Lawmakers can get away with a lot, particularly if the courts let them.

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Lawmakers can get away with a lot, particularly if the courts let them. Some cases in point:

DISCRIMINATION: Sen. Bart Hester (R-Cave Springs) and Rep. Bob Ballinger (R-Berryville), leading proponents of laws to protect discrimination against gay people in Arkansas, are getting powerful help from Attorney General Leslie Rutledge in resisting efforts to give testimony and provide paperwork about their gay-discrimination legislation. The Arkansas Constitution clearly protects lawmakers from having to testify about things they've said in floor debate. But there is no other "legislative privilege" anywhere else in law. Lawyers defending the Fayetteville civil rights statute are seeking material outside that protected in the Constitution.

Hester and Ballinger say the court may interpret state law only by its plain language. They craftily included words saying they meant no discrimination by the law preventing Fayetteville from adopting a civil rights ordinance to protect gay people. Everybody — I mean everybody — knew the words were a sham. The law is intended precisely to protect those who want to discriminate against gay people and negate any local protections.

In an interim ruling last week, the Arkansas Supreme Court sent a signal they may let the legislators off the hook. The court is deferential to legislators and has exhibited resistance to equal rights under the law for gay people. If it makes permanent an order protecting the lawmakers from providing testimony about what motivated this law, they'll have done more than protect discrimination. They will have opened the door to meaningless empty words on every law as a means of avoiding court challenges.

SLAVE LABOR: Lawsuits are growing against nonprofit, putative drug rehabilitation agencies that place people sentenced in drug courts to jobs in poultry processing and other industries. The nonprofits keep the workers' pay, sometimes including payments for work injuries. The latest lawsuit named the plastics company headed by state Sen. Jim Hendren (R-Gravette). He insisted, as the poultry company Simmons does, that he paid a fair rate for work; it just went to the nonprofits, not the workers. Hendren said he'd seen men turn their lives around and stick around for jobs for which they actually receive pay after completion of drug court stints.

On Tuesday, however, Hendren told the Associated Press that he had terminated his agreement with the drug rehabilitation program.

The state Constitution says that it is illegal to make people work without compensation. Hundreds have been made to do so, including employees for a chicken company that was recently granted a batch of state corporate welfare payments for expansion of a processing facility.

SELF-INTEREST: It's epidemic in the legislature. Former legislative leaders Gilbert Baker and Michael Lamoureux pocketed "consulting fees" as they worked to advance the interest of a payer working to protect corporations from damage lawsuits. Rep. Andy Davis (R-Little Rock), whose business is water treatment, is forever legislating things that benefit his business.

Last week, the slow wheels of justice finally ground out action against that enemy of gay people, Sen. Bart Hester. In 2015, he jammed through a law to undo a state Assessment Coordination Division rule and allow favorable personal property tax treatment for land on which billboards sit. His law pegged taxes to cost of the property, not its market value with revenue-producing billboards. Wouldn't you know it? Hester is an owner of such land. (UPDATE: Hester said he now owns no land with billboards or any interest in billboards. At the time the bill was passed, tax records indicated an LLC in which he had an interest had billboard property. He refused to talk about it at the time.)

You could argue that the law flouts the Constitution's call for equal treatment in property taxation. But, more quickly to the legal point, the legislation didn't get the constitutionally required three-fourths vote for measures addressing property tax procedures. A taxpayer lawsuit wants the Hester Handout struck down. It's likely the circuit court will do so. But I fear the Supreme Court will ignore the plain language of the Constitution and find a way to keep the legislature happy.

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