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Judge won't remove himself from Arkansas' House redistricting case, says past GOP ties won't affect ruling

by Dale Ellis | January 7, 2022 at 6:50 a.m.
Lee Rudofsky is shown in this file photo.

A federal judge in Little Rock assigned to a lawsuit challenging the state's new House redistricting map has declined to recuse himself from the case, rejecting complaints from groups who say his previous connections to Gov. Asa Hutchinson and Attorney General Leslie Rutledge could compromise his impartiality in the case.

U.S. District Judge Lee Rudofsky worked for Rutledge in the attorney general's office before being named to the federal bench. In addition, he has contributed money to Hutchinson's and Rutledge's last reelection campaigns, and he hosted a fundraiser at his home in 2018 for Rutledge.

Hutchinson and Rutledge, both Republicans, make up two-thirds of the three-member panel in charge of redistricting in the state. The third member, also a Republican, is Secretary of State John Thurston.

The ACLU of Arkansas filed suit on Dec. 29 on behalf of the Arkansas State Conference NAACP and the Arkansas Public Policy Panel, challenging the new House district boundaries approved by the Republican-controlled Arkansas Board of Apportionment, as well as a motion for a preliminary injunction and request for expedited briefing and consideration. The lawsuit seeks to block the new state House map, saying the new redistricting plan leaves Black voters in Arkansas underrepresented.

Two days after that filing, ACLU attorneys filed a motion asking that Rudofsky recuse himself on the grounds that his past political support of Hutchinson and Rutledge could raise questions regarding his impartiality in the case. On Wednesday, Rudofsky denied the recusal motion.

In an exhaustive, 17-page order Rudofsky submitted Wednesday, he outlined his relationships with both Hutchinson and Rutledge and noted that both are named in the lawsuit in their official capacities only, and neither are personally liable for the outcome. He noted that any political considerations that either may face as the result of the suit are not legally his concern.

"To expect judges to take account of political consequences," Rudofsky said in his order, "is to ask judges to do precisely what they should not do. It seems to me quite wrong (and quite impossible) to make recusal depend upon what degree of political damage a particular case can be expected to inflict."

Rudofsky said the extent of his support for Hutchinson was limited to a single $500 campaign contribution tendered some four years ago. He said that although he worked for Rutledge from 2015 to 2018 as the state's solicitor general, his relationship with the attorney general was professional and since leaving the office his contact with her has been minimal. He also noted that by now, he has been gone from that office longer than he actually worked there.

Rudofsky acknowledged contributing $1,000 to Rutledge's campaign and hosting a fundraiser, but said in his order the contribution was over five years ago and the fundraiser at least three years ago, adding that those "contributions only mean that I thought Ms Rutledge would make a better attorney general than her opponent."

At no time during his tenure as solicitor general or since leaving the attorney general's office, he said, has he ever discussed redistricting with Rutledge. He said that after his appointment to the bench, he placed Rutledge on his recusal list for one year as a "cooling off period," out of an abundance of caution, but removed her from the list last September.

Since taking the bench in November 2019, he said in the order, "all communications with the Attorney General (which have been extremely infrequent) have been non-substantive. I do not vacation with the Attorney General. I do not break bread with her, except at large public gatherings. I do not visit her home. She does not visit my home. Our families do not socialize together."

Legally, Rudofsky said, recusal motions are serious matters and are rarely filed, "and I well recall from private practice the care and thought that attorneys give to such matters." He said the question implicates two critically important judicial obligations, the first of which is to avoid hearing cases in which a judge is partial to one side or the other, as well as to avoid any appearance of impartiality. The second obligation he said, is the obligation for a judge to hear cases to which he or she is assigned, known as "a duty to sit."

Rudofsky said unless a true need exists for a judge to recuse, that judge has a duty to sit and hear the case because recusal where it is not clearly legally required can incentivize "the unfair and unseemly tactic of judge shopping."

Concluding, Rudofsky said that the current case is typical of cases That are highly charged, nuanced, and in which the outcomes often satisfy no one. He said recusing under such circumstances only "foists those cases onto colleagues who already have large dockets and hard cases of their own."

Holly Dickson, executive director of the ACLU of Arkansas, did not specifically address Rudofsky's order, but said, "We look forward to continuing to present and prove our case on its merits."

A spokesperson for Rutledge said the attorney general stands by an opposition brief to the recusal motion that posited the notion that established case law provides for some interaction between judges and political figures because "the first step to the federal bench for most judges is either a history of active partisan politics or strong political connections."

Hutchinson's office did not return a request for comment.

A status conference hearing by telephone on the lawsuit has been scheduled for Tuesday at 1:15 p.m.

Print Headline: U.S. judge: Won't recuse in state House map case


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