The Arkansas Supreme Court heard oral arguments this morning on whether John Ogles of Jacksonville should receive attorney fees for successfully challenging unconstitutional General Improvement Fund spending.

Ogles was co-counsel and attorney for Mike Wilson, the former legislator, who’d twice before sued successfully against the legislature’s effort to find ways to spread money around the state in unconstitutional local spending at the direction of legislators. The third suit laundered General Improvement Fund money through planning and development districts. They then spent it as legislators instructed.

Advertisement

Wilson sued against the spending scheme as administered by the Central Arkansas Planning and Develoopment District and ultimately won Supreme Court affirmation that the scheme was illegal. Wilson said he had an agreement with Ogles for a one-third attorney fee for Ogles of the almost $1 million that was left unspent. Another $1.5 million was spent before the suit was decided and millions more in other districts. Wilson is taking no money and took none in two previous lawsuits.

Attorney General Leslie Rutledge is fighting an attorney fee award, saying it’s not contemplated in law or court precedent, except in fees awardedd in the Lakeview school finance case. The attorney general’s office sees that as a unique case.

Advertisement

Mike Wilson, arguing pro se for Ogles, said the GIF case was unique too. He said unless plaintiffs in illegal exaction cases have some “hope” of recouping expenses for time and effort spent to fight illegal legislative spending, suits won’t be filed. He said an award in this case wouldn’t open “floodgates” to expense claims as Justice Courtney Goodson suggested, because there’d been few such requests in decades of the law’s existence. Wilson said he just wanted to preserve the ability of plaintiffs to make a request before a court.

Justice Shawn Womack, a former Republican legislator, and Justice Rhonda Wood, seemed unwilling, based on hostile questions, to grant attorney fees. They questioned a lack of records on time spent. Ogles spent hundreds of hours tracing the bureaucratic maze by which GIF money was directed to the regional districts and then spent on dozens, if not hundreds, of small local projects, some of them of dubious worth. No kickbacks have been proven on spending of Central Arkansas money, as has been the case in other parts of the state, but the FBI has investigated the spending.

Advertisement

Womack seem to argue there was no public benefit to the $1 million Wilson’s lawsuit prevented from being spent unconstitutionally because it didn’t get spent as legislators intended on items such as a war memorial on the Capitol grounds. Who knows where that money might go now, he asked? Wilson didn’t rise to that bait about dependability of legislative actions. Nor did he invokd the firewworks show, high school warmup suits, turkey dinners and other dubious spending on purported “economic development” projects.

Some members of the court seemed interested in remanding the case to circuit court for a determination of the reasonableness of the fee. Wilson’s brief had suggested the court not do that, but indicated in oral arguments today that could be a possibility. The court has previously awarded court costs on appeals in the case. Justice Jo Hart seemed to strongly suggest that there had been a state benefit in Wilson’s lawsuit to stop at least some, if not all, of the unconstitutional GIF allocations.

The legislature has created a new General Improvement Fund, with a new name.  I wouldn’t be surprised if efforts will continue to direct money to local projects not allowed by the Constitution. Wilson IV may be in the offing.