In a hearing yesterday, Washington County Circuit Judge John Threet issued rulings from the bench denying Ecclesia College‘s motion to dismiss the illegal exaction case brought by Bella Vista activist Jim Parsons, as well as Ecclesia’s motion to strike an amended complaint. The case will now proceed with discovery, said Matt Bishop and Joey McCutchen, two of the attorneys representing Parsons (they also represent Parsons in a separate illegal exaction lawsuit filed yesterday against Preferred Family Healthcare).
However, Threet granted Attorney General Leslie Rutledge‘s motion to quash subpoenas issued to Rep. Charlie Collins and Rep. Jim Dotson, ruling that the legislators will not be forced to give depositions in the case. Attorneys for Parsons had sought to depose Collins and Dotson in order to ask what led them to direct public money to Ecclesia College, and to examine any of their communications between them and representatives of Ecclesia regarding state General Improvement Fund applications.
The Parsons lawsuit seeks to recoup around $700,000 in taxpayer money dubiously sent to Ecclesia College via the state’s General Improvement Fund. The lawsuit also alleges that Ecclesia violated the Freedom of Information Act by failing to turn over documents related to those state grants to Parsons, which is how the case began. Collins and Dotson were among more than ten legislators who directed such moneys to Ecclesia. Two of those lawmakers — Rep. Micah Neal and Sen. Jon Woods, were charged with taking kickbacks to funnel the money to Ecclesia, and cajoling other legislators to do the same. Neal pleaded guilty on federal corruption charges and Woods was found guilty at trial. No other lawmaker has been criminally charged in the Ecclesia kickback scheme.
Rutledge’s office argued on behalf of Collins and Dotson that they should not be compelled to testify due to legislative privilege, a legal concept offering lawmakers certain protections regarding their legislative activities. The lawsuit makes no claims of wrongdoing by Collins or Dotson, but attorneys for Parsons argued in their brief in response to Rutledge that if the lawmakers were “duped” by a criminal enterprise, “They simply have no claim that being the victims of fraud by Ecclesia and/or other legislators constitutes a legitimate legislative function.”
Threet disagreed, ruling that the activities of Collins and Dotson constituted legitimate legislative activity protected by legislative privilege, and that they cannot be compelled to testify in depositions during the discovery process in the case.
In her motion to quash, Rutledge had also made more sweeping claims, echoing many of the arguments Ecclesia’s attorneys made in its unsuccessful motion to dismiss the case outright, that Parsons’ illegal exaction claim failed as a matter of law and that he was not entitled to conduct any discovery at all. These arguments apparently did not sway Threet; Collins and Dotson won’t be deposed, but the case will otherwise proceed. The attorney general’s office said in a statement last month that despite her arguments against the Parsons lawsuit, Rutledge “remains committed to recovering the money through appropriate actions.”
Legislators could still voluntarily choose to testify as Parsons’ illegal exaction lawsuit proceeds, but Collins and Dotson have chosen not to.
“That’s a personal privilege,” Bishop said. “A legislator could say, ‘you know what, I’m happy to tell what I know.’ They don’t have to assert [legislative privilege]. They could say, ‘Sure I’d love to help and help you guys get that money back. Put me under oath and I’ll answer any questions you have.'”‘
McCutchen added, “In my estimation, much of this leads back to lack of transparency. You claim legislative privilege and do that song and dance. If there’s nothing to hide, why not just come do the deposition and tell us what you know? Come and testify and shed some light on Ecclesia.”
I reached out to Collins and Dotson for comment and will update if I hear a response.
The issue of legislative privilege is a thorny one, and the question could still be revisited in this case. Bishop noted that the state Supreme Court is set to hear oral arguments in January in a case that could offer more clarity and establish a more clear precedent on legislative privilege.
That case, The State of Arkansas v. The City of Fayetteville, regards a dispute that began with a lawsuit challenging the Fayetteville anti-discrimination ordinance. During the discovery phase, the City of Fayetteville issued subpoenas to take the depositions of lawmakers Bob Ballinger and Bart Hester, who had co-sponsored a bill in the state legislature apparently designed to invalidate the ordinance. Rutledge moved to quash the subpoenas based upon legislative privilege, but her motion was denied by the trial judge in Washington County. She appealed to the Supreme Court and is now seeking an extremely broad definition of privilege that would give legislators sweeping protections from being questioned under oath.
Whatever the Supreme Court decides in the Fayetteville case is likely to be relevant to the issue of legislative privilege in the Ecclesia case, as the attorney general’s office itself has pointed out. Its brief for the motion to quash the subpoenas issued to Collins and Dotson stated, “The Supreme Court’s decision in the Fayetteville case will control the legislative privilege issue in this case, as well.”
* UPDATE: The attorney general’s office provided the following comment about the rulings yesterday:
Attorney General Rutledge is pleased with Judge Threet’s decision and will continue to review all of the information available. The Attorney General is committed to taking appropriate action to recover money owed to Arkansas taxpayers.