Arkansas Democrat-Gazette

Judge rules against bid in Allport case

Legislator­s can’t intervene, court says

- MICHAEL R. WICKLINE

A Pulaski County circuit judge has denied an attempt by two legislativ­e committee co-chairs to intervene in a case over a 2021 order secured by Attorney General Leslie Rutledge to allow the judge to revoke the charter of Allport in Lonoke County if the town fails to comply with municipal accounting laws.

Allowing Legislativ­e Joint Auditing Committee CoChairs Sen. Ronald Caldwell, R-Wynne, and Rep. Richard Womack, R-Arkadelphi­a, “to intervene in this case, particular­ly in their official capacity as legislator­s would be a blatant violation of separation of powers,” Pulaski County Circuit Judge Hebert T. Wright Jr. said in a ruling issued late Wednesday afternoon.

“The Court need not present a detailed analysis — the Attorney General is clearly the one to litigate such matters on behalf of the State,” Wright wrote.

“If Movants disagree with the AG’s strategies in litigating thusly, they can take it up in a manner consistent with their roles as legislator­s and committee members, but they have presented no authority or competent argument under statute or case law that would permit them to step in for the State in such a case,” he said.

Wright’s ruling comes more than 14 months after Caldwell and Womack attempted to intervene in the case over the order secured by Rutledge to allow the judge to revoke the charter of Allport if the town fails to comply with municipal accounting laws.

Wright’s Aug. 12, 2021, order in the case resulted from an agreement between officials representi­ng the Republican attorney general’s office and Allport. Caldwell and Womack contended the attorney general is instead required to file pleadings to revoke Allport’s charter under a 2017 state law.

On Sept. 2, 2021, Arkansas

Legislativ­e Audit legal counsel Frank Arey filed a motion to intervene in the case in Pulaski County Circuit Court on behalf of Caldwell and Womack in their official capacities and as representa­tives of the committee, the House of Representa­tives and Senate. On Sept. 10, 2021, Rutledge asked Wright to deny the motion.

Rutledge spokeswoma­n Amanda Priest said Friday in a written statement that “The Attorney General is pleased with Judge Wright’s decision to uphold separation­s of powers as the office has the ‘constituti­onal authority to litigate such matters on behalf of the State.’”

Arey declined to comment on Wright’s ruling on Friday.

Caldwell said Friday in a text message to the Democrat-Gazette that “While I don’t agree with the judge’s ruling, I doubt that we will appeal the decision.

“The problem will be easier to fix during Legislativ­e session,” he wrote in his text message.

The 2023 regular session will begin Jan. 9. On Jan. 10, Lt. Gov. Tim Griffin will be sworn in as the state’s attorney general and Rutledge will be sworn in as lieutenant governor.

With a population of 86, based on 2020 U.S. Census informatio­n, Allport is an agricultur­e-dependent community that sits between England and Stuttgart.

Allport is a community of primarily Black landowners who have owned and maintained their land since the town was establishe­d in 1967, attorney Willard Proctor Jr.of Little Rock, who has represente­d Allport, has noted. In 2019, a prosecutor determined the city’s police department violated Arkansas’ speed trap law.

For the first time under Act 712 of 2017, the audit committee started the process in September 2020 of trying to dissolve a municipali­ty, abolish its offices, and return the territory and its residents to the county. The committee also authorized notifying the attorney general and governor of what it was doing.

Act 712 of 2017 was sponsored by now-Senate President Pro Tempore Jimmy Hickey, R-Texarkana. The law created a procedure for the revocation of a charter of a municipal corporatio­n as a result of repeated noncomplia­nce with state municipal accounting law.

It requires the attorney general to file pleadings, based on the committee’s notificati­on, in the 6th Judicial Circuit Court to revoke the charter.

In September 2021, Hickey said he didn’t know about the attorney general’s concerns about the constituti­onality of Act 712 of 2017 until after Wright signed the order Aug. 12, 2021.

In a filing with Wright on Sept. 10, 2021, Rutledge said the statutes enacted to revoke a municipal charter “are constituti­onally infirm” in this case.

She said she has attempted in this case to avoid the constituti­onal infirmitie­s with the revocation statutes by exercising her broad discretion in pursuing Allport’s compliance with the revocation statutes in accordance with Amendment 80 and with the Arkansas Constituti­on.

Under the order signed by Wright on Aug. 12, 2021, the court found that Allport is afforded an opportunit­y to comply with all outstandin­g and deficient Arkansas municipal accounting laws for 2019 and 2020 within 180 days of June 17,2021, which was Dec. 14, 2021.

Wright’s order requires the court to appoint a special master to review whether Allport has come into compliance with Arkansas municipal accounting laws for 2019 and 2020.

The parties are directed to submit the names of an agreeable special master under the order. If the parties are unable to agree on a special master, the court is required to appoint one.

After reviewing the special master’s findings under the order, Wright will determine Allport’s compliance with the law and decide if the charter should be revoked.

The Pulaski County clerk’s records don’t indicate that a special master has been appointed to review whether Allport has come into compliance with Arkansas municipal accounting laws for 2019 and 2020.

Act 712 of 2017 became law without Republican Gov. Asa Hutchinson’s signature.

In 2017, Hutchinson, who is an attorney, said, “The wording of the bill provides no discretion to the attorney general’s office before filing a petition with the courts to revoke a charter of a municipal corporatio­n.

“The discretion resides with legislativ­e audit rather than the attorney general. This bill is not the correct balance,” the governor said at that time.

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