PROTECT FAYETTEVILLE F/K/A REPEAL 119; PAUL SAGAN; PETER TONNESSEN; AND PAUL PHANEUF APPELLANTS
THE CITY OF FAYETTEVILLE, WASHINGTON COUNTY, ARKANSAS; LIONELD JORDAN, IN HIS OFFICIAL CAPACITY AS MAYOR OF FAYETTEVILLE; ADELLA GRAY; SARAH MARSH; MARK KINION; MATTHEW PETTY; ALAN LONG; JUSTIN TENNANT; MARTIN W. SCHOPPMEYER, JR.; AND JOHN LA TOUR, IN THEIR OFFICIAL CAPACITIES AS ALDERMEN OF THE FAYETTEVILLE CITY COUNCIL APPELLEES STATE OF ARKANSAS INTERVENOR/APPELLANT PFLAG NORTHWEST ARKANSAS; ANTHONY CLARK; NOAH MEEKS; AND LIZ PETRAY INTERVENORS/APPELLEES
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. CV-15-1510-1]
HONORABLE DOUG MARTIN, JUDGE
Rutledge, Att'y Gen., by: Lee P. Rudofsky, Arkansas
Solicitor General; and Nicholas J. Bronni, Arkansas Deputy
Solicitor General, for appellant State of Arkansas.
Williams, Fayetteville City Attorney, and Blake Pennington,
Assistant City Attorney, for appellee City of Fayetteville.
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.
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.
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.
K. WOOD, ASSOCIATE JUSTICE
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.
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.
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
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
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 ...