The Arkansas Supreme Court today dismissed most of the claims in a lawsuit challenging Attorney General Leslie Rutledge’s spending on public relations advertising, pursuing lawsuits in other states, and joining in partisan political activities.

The plaintiffs sought an injunction against her actions and also made an illegal exaction claim over state spending.

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Rutledge appealed Circuit Judge Chip Welch’s decision that she wasn’t entitled to immunity from lawsuit because the allegations could constitute illegal spending and she had acted in bad faith. That ruling allowed the case to go forward.

In what’s known as an interlocutory appeal, the Supreme Court ruled that Rutledge does have sovereign immunity and that the plaintiffs had failed to show illegal actions. It also said she is entitled to personal statutory immunity because the plaintiffs had failed to show she acted maliciously and thus a personal claim for money illegally spent couldn’t be pursued.

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But the court denied Rutledge’s request that the official capacity claim for illegal exaction should also be dismissed. The court said that issue couldn’t be decided on an intermediate basis since Welch hadn’t directly ruled on that narrow question.

The court said that the filing of lawsuits out of state didn’t require Arkansas to be a party to a case. Nor does it require a state agency to ask her to intervene, the opinion written by Justice Rhonda Wood said.

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It said further that the law didn’t prevent Rutledge from spending money from her consumer protection division budget on advertising during the election season and the law gives her discretion on spending that money. She has spent millions on advertising, some of it featuring her.

The opinion concluded on a note not particularly hopeful to plaintiffs:

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The illegal-exaction claim against the Attorney General in her official capacity remains the sole surviving claim upon remand. Still, this is not because we have found the claim to have merit but because we cannot evaluate the merits at this point. Further, the Attorney General’s absolute-immunity motion remains outstanding.

Perhaps a trial and deposition of Rutledge on how for example, defending the NRA against fraud claims in New York was an official state interest would present a fact situation that could cause the court to find some merit in the complaint. But that’s a long shot unlikely to happen.

Justices Shawn Womack and Karen Baker concurred with the decision but made separate comments, dissenting on one point by Baker, to square their decisions with past opinions on sovereign immunity. Justice Robin Wynne said he believed statutory immunity didn’t apply to a claim for injunctive relief, though he emphasized he wasn’t saying the plaintiffs had proved that claim, only that they should be allowed to make it.

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Justice Barbara Webb, whose husband, Doyle, once worked for Rutledge, didn’t participate. Special Justice John Scott joined the decision.

Here’s the full opinion.

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UPDATE: Rutledge issued a news release declaring victory, but not acknowledging a key point remains undecided.

Arkansas Attorney General Leslie Rutledge applauds the Arkansas Supreme Court’s decision to reject the frivolous lawsuit filed by political opponents questioning her constitutional duty to protect and educate Arkansans from con artists and an overreaching federal government. The Court held that Attorney General Rutledge’s litigation and consumer-education efforts challenged by this lawsuit were legal. The Justices reversed every claim against the Attorney General before the Supreme Court and effectively ordered the circuit court to dismiss what remains.

“While I am pleased as Arkansas’s chief legal officer that the Supreme Court rejected this frivolous stunt of a lawsuit by my political opponents, I am frustrated that my office was forced to spend precious resources defending our lawful duty to carry out our statutory job responsibilities,” said Attorney General Leslie Rutledge. “For the last seven and half years, my office has held bad businesses accountable, taken legal actions against the federal government’s illegal mandates, and assisted hundreds of thousands of Arkansans who reached out in need. The Supreme Court’s decision has major implications for every officeholder in the State, and I’m proud of my team for this victory.”

Richard Mays, attorney for plaintiffs, acknowledged defeat, even with one line of pursuit nominally still on the table:

The Court’s majority opinion addressed the issue about which the Plaintiffs brought the lawsuit, which was whether the Attorney General of Arkansas has authority to file lawsuits in the name of the State of Arkansas in whatever court and over whatever subject the Attorney General may, in her or his own volition, wish to file. We interpreted Arkansas law to say that the Attorney General is restricted to the filing of litigation that a state official or agency requests be filed. In its Opinion, the Court held that the statute that we relied upon did not impose such limits on the authority of the Attorney General.

The Attorney General’s use, or abuse, of his or her power to file lawsuits or to take other actions in the name of the State of Arkansas has been a controversial subject for many years and through many administrations of various Attorney Generals. It did not begin with Mrs. Rutledge, although she has raised it to an unprecedented level. It has been raised frequently by the General Assembly, but while they have complained about it, nothing has been done by the legislature to reign in the use of the office for blatantly political purposes.

The Supreme Court has said that the Attorney General has the authority to continue to do so, and we accept the Court’s decision. Any action to prevent future abuses will have to be provided by the legislature.

Mays says the problem on the remaining claim is that, while an official could be held accountable for acting illegally in an official capacity, the court has already declared Rutledge had the discretion to do what she had done, absent specific restrictions to the contrary. So I guess she could pitch into just about anything.

 

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