Pulaski County judge dismisses 2021 complaint against Allport filed by ex-attorney general

A rusted water tower marks the town of Allport in Lonoke County in this Sept. 16, 2020, file photo. (Arkansas Democrat-Gazette/Staton Breidenthal)
A rusted water tower marks the town of Allport in Lonoke County in this Sept. 16, 2020, file photo. (Arkansas Democrat-Gazette/Staton Breidenthal)

At the request of Attorney General Tim Griffin, a Pulaski County circuit judge has dismissed a complaint filed in June of 2021 by then-Attorney General Leslie Rutledge in which she asked the judge to give Allport more time to comply with municipal accounting laws and to revoke Allport's charter if the town fails to do so.

A senior assistant attorney general said Wednesday in a court filing that Allport has attempted to improve its record-keeping, as required by the state's municipal accounting law, but the extent of Allport's compliance will not be known until its next audit.

Pulaski County Circuit Judge Herbert T. Wright Jr. signed the order to dismiss the complaint this week, according to court records.

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.

Griffin said Friday in a written statement that "I sought and obtained a dismissal of the suit filed against Allport in 2021.

"While Legislative Audit acted in accordance with Arkansas law by providing the requisite notification, my predecessor pursued a remedy contrary to the law," he said.

"I will follow the law," Griffin said.

In response, Rutledge said in a written statement that "As Attorney General I used my constitutional authority to litigate a case as I saw fit, and a judge agreed with my assertion of separation of powers and this case could have been resolved under the existing filing rather than re-litigating it."

On Jan. 10, Griffin, of Little Rock, the state's former lieutenant governor, was sworn in as the state's attorney general and Rutledge, of Maumelle, was sworn in as the state's lieutenant governor.

Griffin and Rutledge are Republicans who both announced bids for the Republican nomination for governor before deciding to run for other offices instead in 2022. They are seen in political circles as rivals.

Wright's dismissal this week of the complaint filed by Rutledge against Allport in June of 2021 comes after Wright on Nov. 30 denied an attempt by two legislative committee co-chairs to intervene over the 2021 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.

Allowing then-Legislative Joint Auditing Committee Co-Chairs 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," Wright said in his ruling in December.

"The Court need not present a detailed analysis -- the Attorney General is clearly the one to litigate such matters on behalf of the State," he 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," Wright said.

Wright's ruling Nov. 30 came 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.

On Aug. 12, 2021, Wright issued an order to allow the judge to revoke the charter of Allport in Lonoke County if the town fails to comply with municipal accounting laws.

That order resulted from an agreement between officials representing the attorney general's office under Rutledge and Allport.

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 required the court to appoint a special master to review whether Allport has come into compliance with Arkansas municipal accounting laws for 2019 and 2020. After reviewing the special master's findings under the order, Wright would 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 was ever appointed to review whether Allport has come into compliance with Arkansas municipal accounting laws for 2019 and 2020.

Griffin said Wednesday in a motion for voluntary dismissal, submitted by Senior Assistant Attorney General Noah P. Watson, that although the complaint filed by Rutledge's office June 2, 2021, about Allport's compliance with the municipal accounting law was styled as a "joint petition," it was not.

"When the Legislative Joint Auditing Committee notifies the Attorney General of a municipality's noncompliance with the Municipal Accounting Law (as it did here), Arkansas Code Annotated 14-62-102 (a) (2) requires the attorney general to file a pleading to revoke the municipality's charter," Watson wrote.

"The Code does not contemplate a joint petition with the noncomplying municipality," he said.

The state's request for relief did not align with the statutory scheme set out under Arkansas Code Annotated 14-62-102, Watson said.

That law requires the attorney general, after notification from the Legislative Joint Auditing Committee, to file pleadings to revoke the charter of the municipal corporation that is not in compliance with the municipal accounting law two times in a three-year period, he said.

"The statute does not contemplate giving the municipality additional time to come into compliance with the Municipal Accounting Law," Watson said.

On Aug. 12, 2021, Wright entered an order that, among other things, provided Allport with additional opportunity to comply with the municipal accounting law, according to Watson.

"Since the entry of the Agreed Order, Allport has attempted to improve its record-keeping, as required by the Municipal Accounting Law," he said.

"The extent of Allport's compliance, however, will not be known until its next audit," Watson said.

Because Arkansas Code Annotated 14-62-102 does not contemplate the relief sought or the arrangement that the parties agreed to in the order and because there is some indication that Allport has improved its record keeping, the state seeks to voluntarily dismiss this case under Arkansas Rule of Civil Procedure 41 (a) (1), he said.

This case was the the first time that the Legislative Joint Auditing Committee under Act 712 of 2017, sponsored by Sen. Jimmy Hickey, R-Texarkana, started the process 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. The process started in September 2020.

Act 712 of 2017 became law without then-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.


  photo  Arkansas Attorney General Tim Griffin (left) and then-Attorney General Leslie Rutledge, now Arkansas' lieutenant governor, are shown in these 2022 file photos. (Left, Arkansas Democrat-Gazette/Staci Vandagriff; right, Arkansas Democrat-Gazette/Stephen Swofford)
 
 


  photo  A map showing the location of Allport.