Little Rock City Attorney Tom Carpenter has been notified by the clerk of the Arkansas Supreme Court that the city was too late in filing an appeal of a circuit court ruling holding taxpayer subsidies of the Little Rock Regional Chamber of Commerce unconstitutional.
Carpenter will appeal that decision of the clerk. He’ll contend the clerk used the wrong date to begin the 30-day appeal period. The Supreme Court calculated the time from Judge Mackie Pierce’s first order in the case on June 9. The city and plaintiffs in the case agreed that the order needed to be corrected and that amended opinion was filed June 25. Carpenter contends that date should have been used.
Judge Mackie Pierce agreed with plaintiffs in a suit supported by the Arkansas Public Law Center, a nonprofit public interest group on whose board I sit, that payments by Little Rock and North Little Rock to chambers of commerce were unconstitutional payments to private entities. He said procedures adopted in recent years to style these payments as service contracts were shams to evade the constitutional prohibition. The practice is in wide use around the state and several locales have reconsidered the arrangements in light of Pierce’s ruling. They are hoping for a successful appeal, which now may not happen. Sen. Jon Woods, closely tied to the Springdale Chamber of Commerce, a longtime beneficiary of taxpayer money, persuaded the legislature to put a constitutional amendment on the 2016 ballot that would eliminate the constitutional prohibition on such payments so that the money could resume. But that vote is more than a year away.
Carpenter’s memo to the City Board and mayor on the development follows:
Dear Mayor Stodola and Members of the Board of Directors,
The case Lynch v. Stodola is the one that challenges whether the City may contract with a chamber of commerce for economic development services. The order that the City appealed was entered on June 25, 2015, and the City notice of appeal was filed 15 days later on July 10, 2015. Pursuant to Rule 4-1(a), the notice of appeal had to be filed within 30 days to be timely. Also, the record had to be lodged within 90 days of the notice of appeal – or October 7, 2015 – to be timely. The record was filed on September 11, 2015. So, it seemed that the case was ready to be briefed.
However, the Supreme Court Clerk has ruled that the case was not timely filed because an original order was entered on June 9, 2015. The parties all agreed that the original order needed to be corrected, and filed a joint motion – plaintiffs and defendants – on June 25, 2015, to correct the order. The Court did so immediately and filed its order. The Clerk of the Supreme Court has concluded that the June 9, 2015, date had to be used, and not the June 25, 2015, date, so the notice of appeal was not timely. To this end, the record, though lodged, has not been accepted and the City will need to file a motion for a rule on the clerk.
This is not a guaranteed motion. And, the two rules that are involved are somewhat ambiguous. This office will file the motion this week. I have asked the other parties to join in the motion, and should know shortly whether they will agree to do so. I will, of course, keep you informed.
It is a quirk of Arkansas appellate practice on this one. While it is clear that we have 30 days to appeal an order, and we did so timely, the Court thinks that we should have appealed from the first order. The problem is that the first order was not final, and was in fact changed. This situation has not been dealt with by the Court in its history, so this will be somewhat of a test. I will, of course, keep you apprised.
A copy of this email is being sent also to the various parties. I have contacted some by phone, and left phone messages for others. Please let me know if you have any questions. This matter has been handled by me, but even if that were not the case, I bear any responsibility.