The state Supreme Court today denied Attorney General Leslie Rutledge‘s request that a prosecuting attorney representing the state be mandated to withdraw from a lawsuit filed against opioid makers and distributors by a coalition of cities and counties. Two separate lawsuits with the state as a party, filed in two different counties, will now proceed in state court (in both cases, the plaintiffs hope to avoid being kicked to a federal court in Ohio that is handling hundreds of lawsuits against opioid manufacturers).
Rutledge’s petition, filed Monday, was the first public shot in a turf war that has been brewing for months between the attorney general’s office and the coalition of local governments over litigation strategy, with potentially millions of dollars in damages at stake.
We did a deep dive into the back story on Wednesday, but the gist is a dispute over whether a coalition of cities and counties can include the state as a plaintiff even though Rutledge is declining to participate in their lawsuit. The coalition of local governments, now with all 75 counties and 15 cities as co-plaintiffs, filed a lawsuit in Crittenden County Circuit Court on March 15, which names more than 60 defendants, including major pharmaceutical companies like Perdue Pharma, as well as retailers, pharmacists and medical providers (the counties and cities also filed a separate lawsuit in federal court). For strategic reasons, it is advantageous to file this particular lawsuit in state court, where it will only remain if the state is a plaintiff. According to the coalition, they made a good faith effort to negotiate with Rutledge and have her be involved as part of a united front, but she stonewalled them, determined to act without them and to file her lawsuit first. They charge that she “abandoned” the cities and counties and tried to sabotage their own efforts. Once it became clear that she would not join their lawsuit, they brought in Scott Ellington, the Prosecuting Attorney for the Second Judicial District of Arkansas, to bring the claim on behalf of the state.
Rutledge became apoplectic, arguing that Ellington’s action was improper and illegal, and that only the attorney general could bring lawsuits for the state. Rutledge filed her own lawsuit on behalf of the state against three major opioid manufacturers on March 29, in Pulaski County Circuit Court. She then asked the Supreme Court to force Ellington to withdraw from the local governments’ lawsuit. She argued that the Crittenden County lawsuit with Ellington as a party representing the state could threaten the success of the state’s separate lawsuit in Pulaski County, and jeopardize millions of dollars in potential damages that could be awarded to the state. Ellington and the coalition strongly dispute these claims.
The Supreme Court unanimously denied Rutledge’s request to remove Ellington, without comment. The justices were not swayed, apparently, by Rutledge’s alarm that the very sovereignty of the state was under attack. (“Time is of the essence,” she wrote. “The State’s sovereign interests are implicated with every passing moment by the filing of a complaint in the State’s name without the permission of the State’s exclusive legal representative in such matters.”)
Reached for comment, Ellington responded:
After doing the research, I was confident the law was on our side. And I was confident the Supreme Court would follow the law. So I thought we were in good shape.
It appears both suits will go forward. If the attorney general wants to step in and take the lead I will be happy to step back and ride along.
Generally civil suits have settlement discussions. When we get to that point, I will certainly consult with the attorney before the State’s claims would be settled.
The attorney general’s office provided the following statement in response:
While Attorney General Rutledge is disappointed in the Arkansas Supreme Court’s decision, she will not seek further relief on this issue at this time. She is hopeful both lawsuits will be successful to help Arkansans. The Supreme Court’s one sentence denial provided no explanation as to whether the Court interpreted the law to allow a single prosecutor to bring these claims on behalf of the State or whether the Court simply determined that this action should have been brought before the Circuit Court in Crittenden County first rather than immediately seeking relief from the State’s high court.
The Attorney General has spent months working on this issue and will continue to aggressively pursue her case in Pulaski County. Per State law in Ark. Code Ann. 20-77-902, only the Attorney General, not a local prosecutor, can file claims alleging violations of the Medicaid Fraud False Claims Act and only she can bring those in Pulaski County or a county where one of the defendants resides, according to Ark. Code Ann. 20-77-908. Because none of the opioid manufacturers reside in Crittenden County, the Attorney General is not willing to forego potentially tens of millions of dollars in possible relief that could be used to help Arkansans. Scott Ellington, proceeding on behalf of the State in the Crittenden County lawsuit, could cost taxpayers tens of millions of dollars since he cannot bring these Medicaid claims as a local prosecutor and those claims cannot be brought in Crittenden County.
The Attorney General hopes that both lawsuits are successful in holding those responsible for the opioid crisis accountable and to provide much needed resources to the cities, counties and state to combat it.
In a press release, city and county leaders applauded the Supreme Court’s decision:
“We had the utmost faith that the Arkansas Supreme Court would see the wisdom of the prosecutor’s, Counties’ and Cities’ legal argument,” said Chris Villines, executive director of the Association of Arkansas Counties. “We fully believe what these Arkansas Counties and Cities are doing on behalf of their communities is right and just.”
“We have the utmost faith in our legal team, their competency, and their dedication to seeing justice be done in Arkansas,” said Don Zimmerman, executive director of the Arkansas Municipal League. “We know we can work out a solution together, and we again extend our invitation to the Attorney General to join our efforts to bring Opioid Justice for a United Arkansas.”