Fayetteville, ACLU respond to motions on civil rights case

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FAYETTEVILLE — Two state legislators who sponsored a law effectively barring cities from enacting a civil rights ordinance aren’t immune to questions about their motivation in drafting the law, the city argued in a court filing.

Additionally, a request for documents in the case against the city’s civil rights ordinance is business as usual in the court process and should be fulfilled, lawyers for groups representing lesbian, gay, transgender and bisexual residents argued in a separate filing.

Ordinance 5781 affords lesbian, gay, bisexual and transgender residents the Fayetteville civil rights ordinance: bit.ly/faynondiscrimination Intrastate commerce improvement act: bit.ly/Act137of2015

right to appeal discrimination, such as being fired from a job or evicted, to the city. Opposition group Protect Fayetteville sued and the state later intervened. The American Civil Liberties Union of Arkansas, on behalf of the Northwest Arkansas chapter of Parents, Family and Friends of Lesbians and Gays and three Fayetteville residents, also has intervened.

Act 137 of 2015 says businesses, organizations and employers will adhere to “uniform nondiscrimination laws and obligations.” In other words, they must follow the state civil rights act, which covers race, religion, national origin, gender and disability but not sexual orientation or gender identity.

The state Supreme Court ruled in February the city ordinance violates state law but the court didn’t address the constitutionality of the law. That question has made its way back to Circuit Judge Doug Martin’s courtroom.

The city in June filed subpoenas for Rep. Bob Ballinger, R-Berryville, and Sen. Bart Hester, R-Cave Springs, to appear for depositions. The groups representing lesbian, gay, bisexual and transgender residents requested documents from the state pertaining to the development of Act 137. The state filed motions to reject those requests.

In a response f iled Wednesday, City Attorney Kit Williams said the state is wrong in asserting legislators can never be deposed or questioned. He cited a U.S. Supreme Court opinion saying statements made by legislators can be highly relevant in an equal protection case.

Williams added Ballinger and Hester should claim their own legislative privilege if they are “reluctant or fearful” to explain their drafting of Act 137.

Lawyers for the groups representing lesbian, gay, bisexual and transgender residents filed a response Thursday regarding the document request.

The state called the request an “unparalleled examination” requiring sifting through millions of pages from 74,000 state employees.

The request was made as part of the discovery process, which usually plays out as a negotiation between sides. ACLU lawyers in their response said the state, “is trying to construct its own discovery dragon so it can then attempt to slay it.”

What began as “a garden variety discovery request” has transformed into an unnecessary dispute, lawyers claimed.

Additionally, last week the city and ACLU filed responses to a state motion to block enforcement of the ordinance. Williams argued the motion essentially gave the plaintiffs and state a “second bite at the apple” to stop the ordinance.

Williams said after the state Supreme Court decision in February the ordinance would remain enforceable until Martin makes a determination on the constitutionality of Act 137.

The state Supreme Court ruled in February the city ordinance violates state law but the court didn’t address the constitutionality of the law.