Judge rules against bid in Allport case
Legislators can’t intervene, court says
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.