Protect Fayetteville v. City of Fayetteville

          APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. CV-15-1510-1] HONORABLE DOUG MARTIN, JUDGE

          Leslie Rutledge, Att'y Gen., by: Lee P. Rudofsky, Arkansas Solicitor General; and Nicholas J. Bronni, Arkansas Deputy Solicitor General, for appellant State of Arkansas.

          Kit Williams, Fayetteville City Attorney, and Blake Pennington, Assistant City Attorney, for appellee City of Fayetteville.

          Holly Dickson, The Arkansas Civil Liberties Union Foundation, Inc.; Leslie Cooper, The American Civil Liberties Union Foundation, Inc.; Sullivan & Cromwell, LLP, by: Garrard R. Beeney, Zachary G. Markarian, Joshua K. Handell, Yael R. Tzipori, and Jonathan J. Ossip, for intervenor/appellees.

          Marty Garrity, Executive Secretary, Legislative Council; Steve Cook, Senate Chief Counsel; John T. Vines, House Counsel; and Frank Arey, Legal Counsel, Legislative Audit, for the Arkansas Legislative Council, President Pro Tempore of the Senate, and Speaker of the House of Representatives as Amicus Curiae in support of Appellant State of Arkansas.

          Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for the States of Texas, Alabama, Idaho, Indiana, Kansas, Louisiana, Michigan, Missouri, Oklahoma, and the Commonwealth of Kentucky, by and through Governor Matthew G. Bevin as Amici Curiae in support of Appellant State of Arkansas.

          Quattlebaum, Grooms & Tull PLLC, by: Joseph W. Price II; and Morgan Lewis & Bockius LLP, by: Susan Baker Manning, Jawad Muaddi, and Mary Susan Formby, for 27 Arkansas Employers as Amici Curiae in support of appellees.

          RHONDA K. WOOD, ASSOCIATE JUSTICE

         This interlocutory appeal presents issues of first impression concerning legislative and executive privilege in Arkansas. The State filed the appeal pursuant to Arkansas Rule of Appellate Procedure-Civil 2(f) after the circuit court denied its motion for protective order and motion to quash. Because of our decision in Protect Fayetteville v. City of Fayetteville, 2019 Ark. 30, to dismiss the underlying case, the discovery issues presented in this case are moot. Nevertheless, because we find that these first-impression issues are of substantial public interest, we conclude that the mootness exception applies, and we hold that legislative and executive privileges exist in Arkansas.

         I. Background

         In February 2015, the General Assembly passed the Intrastate Commerce Improvement Act. Act of Feb. 24, 2015, No. 137, 2015 Ark. Acts 570 (Act 137). Act 137's stated intent is "to subject entities to 'uniform nondiscrimination laws and obligations.'" Protect Fayetteville v. City of Fayetteville, 2017 Ark. 49, at 8, 510 S.W.3d 258, 263. Following the passage of Act 137, the City of Fayetteville passed Ordinance 5781, entitled "An Ordinance to Ensure Uniform Nondiscrimination Protections Within the City of Fayetteville For Groups Already Protected to Varying Degrees Throughout State Law." Protect Fayetteville and several city residents sued to invalidate Fayetteville's ordinance because it conflicted with Act 137. Fayetteville filed a motion to dismiss the lawsuit, claiming that no conflict existed or, even if it did, Act 137 violated equal protection. The State intervened to defend the constitutionality of Act 137. The circuit court concluded that the ordinance did not conflict with state law. Protect Fayetteville and the residents appealed, and we reversed and remanded, holding that Fayetteville's ordinance conflicted with Act 137 and "therefore it cannot stand." Id. at 10, 510 S.W.3d at 263.

         Following remand, the circuit court permitted PFLAG of Northwest Arkansas, Anthony Clark, Noah Meeks, and Liz Petray (collectively, PFLAG) to intervene and to file a counterclaim that Act 137 violated the Equal Protection Clause. PFLAG then initiated discovery with the State. They sent the State requests for production of documents, which involved the legislative and executive branches. In addition, Fayetteville and PFLAG subpoenaed two state legislators, Senator Bart Hester and Representative Bob Ballinger, for deposition. The parties attempted but were unable to resolve the discovery disputes.

         The State filed a motion to quash the subpoenas and for a protective order barring the discovery requests. It claimed that the legislative privilege protected the legislators from deposition and that the legislative and executive privileges protected the State from producing documents held by the legislative and executive branches. Following the submission of briefs and a hearing, the circuit court issued an order concluding that legislative privilege provides "no additional protections for legislators in relation to discovery requests beyond the protection from being questioned about any speech or debate in either house" and that the "executive privileges asserted by the State are not recognized in Arkansas." Therefore, the circuit court denied the State's motions to quash and for a protective order.

         In October 2017, the State filed a Rule 2(f) petition requesting permission to appeal to this court and sought a discovery stay pending our review. We granted ...