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Attorney general asks motion on Allport be denied

Town's charter center of conflict by Michael R. Wickline | September 14, 2021 at 7:10 a.m.
Arkansas Attorney General Leslie Rutledge gives a press conference in this Wednesday, Feb. 19, 2020 file photo.

Attorney General Leslie Rutledge wants a circuit judge to refuse an intervention by a legislative committee's co-chairmen in a case over an order secured by Rutledge to allow the judge to revoke the charter of Allport in Lonoke County if the town fails to comply with municipal accounting laws.

On Sept. 2, Arkansas Legislative Audit legal counsel Frank Arey filed a motion to intervene in the case in Pulaski County Circuit Court on behalf of the Legislative Joint Auditing Committee co-chairmen -- Sen. Ronald Caldwell, R-Wynne, and Rep. Richard Womack, R-Arkadelphia -- in their official capacities and as representatives of the committee, the House of Representatives and Senate.

Pulaski County Circuit Judge Herb Wright Jr.'s Aug. 12 order resulted from an agreement between officials representing the Republican attorney general's office and Allport. Caldwell and Womack said the attorney general is instead required to file pleadings to revoke Allport's charter under a 2017 state law.

If the judge allows Caldwell and Womack to intervene, Arey plans to ask the judge to reconsider the Aug. 12 order, according to court records.

In a filing responding to Caldwell and Womack's motion, Rutledge said Friday she is the attorney for the state of Arkansas under state laws. Caldwell and Womack's interests already are represented in this action, so their motion to intervene should be denied, Rutledge claims.

"The Legislature cannot require the Attorney General to prosecute an action based upon a constitutionally suspect statute," she said in the filing.

While the General Assembly can prescribe duties for the attorney general, she is also an attorney who is required to comply with the Arkansas Constitution, court rules and the model rules of professional conduct, the filing read.

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 that 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.

Hickey said Monday he didn't know about the attorney general's concerns about the constitutionality of Act 712 until after Wright signed the order Aug. 12.

In their motion to intervene in Wright's order, Caldwell and Womack said the Legislative Joint Auditing Committee has invested substantial resources overseeing Allport's compliance with the municipal accounting law.

The General Assembly authorized the committee to perform oversight and make factual findings under Arkansas Code Annotated 14-59-117 and 14-62-102 (a) (1) and the findings made by the committee pursuant to these laws "are ignored in the Agreed Order," Caldwell and Womack said.

"As constitutionally authorized, the General Assembly assigned a duty to the Attorney General in Ark. Code Annotated 14-62-102 (a) (2), that has yet to be performed almost one year after notice" to Rutledge's office, they said in their motion to intervene.

The General Assembly authorized the committee to oversee the attorney general's compliance with Arkansas Code Annotated 14-62-102 (a) under Act 938 of the 2021 regular session, said Caldwell and Womack.

They said they have interests in the vindication of the General Assembly's specific authority with regard to revocation of municipal charters; prescribing the attorney general's duties and oversight delegated to the committee; proper compliance with the process established in Arkansas Code 14-62-102 (a) (2) and (b); and revocation of Allport's charter for repeated noncompliance with law.

"The Attorney General's dilatory behavior, failure to file the appropriate pleadings, failure to notify [the Legislative Joint Auditing Committee] of the Joint Petition, and failure to notify [the committee] of the Agreed Order, all demonstrate that she will not protect the legislative powers and interests involved," Caldwell and Womack said in their motion to intervene.

In response, Rutledge said Friday in a filing by Assistant Attorney General Michael Mosley, "The motion to intervene should be denied."

"The proposed intervenors purport to represent the State, as they have filed this action in their official capacities," she said.

However, pursuant to a grant of authority by statute, the state's interests already are represented in this case, Rutledge said.

"Furthermore, there is no authority the State has found permitting Counsel for Arkansas Legislative Audit to represent the State in the pending litigation," Rutledge said.

In this case, the statutes enacted to revoke a municipal charter "are constitutionally infirm," she said.

"Officers of the executive department are not bound to execute a statute, which, in their judgment, is unconstitutional," Rutledge said.

In addition, the attorney general has the authority to control the litigation of any department or agency of the state where services of counsel are needed, she said.

"The Attorney General 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," Rutledge said.

Under the order signed by Wright on Aug. 12, 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, which is Dec. 14.

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. 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, Wright will determine Allport's compliance with the law and decide if the charter should be revoked.

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