Protect Fayetteville v. City of Fayetteville

• Decision Date: 31 January 2019
• Docket Number: No. CV-17-873,CV-17-873
• Citation: 2019 Ark. 28,566 S.W.3d 105
• Parties: PROTECT FAYETTEVILLE f/k/a Repeal 119; Paul Sagan; Peter Tonnessen; and Paul Phaneuf, Appellants State of Arkansas, Intervenor/Appellant v. 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 PFLAG Northwest Arkansas; Anthony Clark; Noah Meeks; and Liz Petray, Intervenors/Appellees
• Court: Arkansas Supreme Court

2019 Ark. 28

566 S.W.3d 105

PROTECT FAYETTEVILLE f/k/a Repeal 119; Paul Sagan; Peter Tonnessen; and Paul Phaneuf, AppellantsState of Arkansas, Intervenor/Appellant

v. 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, AppelleesPFLAG Northwest Arkansas; Anthony Clark; Noah Meeks; and Liz Petray, Intervenors/Appellees

No. CV-17-873

Supreme Court of Arkansas.

Opinion Delivered: January 31, 2019

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, Hot Springs National Park, House Counsel; and Frank Arey, Little Rock, 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, Little Rock, 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, 565 S.W.3d 477, 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 the Rule 2(f) petition and stayed the discovery.

II. Mootness

A case is moot when a decision would not have any practical legal effect upon a then existing legal controversy. Dillon v. Twin City Bank , 325 Ark. 309, 924 S.W.2d 802 (1996). Without question, our decision in this matter would have no effect on the now-resolved controversy as a result of our decision to reverse and dismiss in Protect Fayetteville v. City of Fayetteville , 2019 Ark. 30, 565 S.W.3d 477. This alone does not foreclose our consideration of the issues on appeal.

We have recognized two exceptions to the mootness doctrine: matters that are capable of repetition yet evading review and matters involving a substantial public interest that are likely to be litigated in the future. Ark. Gas Consumers, Inc. v. Ark. Public Serv. Comm'n , 354 Ark. 37, 118 S.W.3d 109 (2003). In limited cases we have applied one of the exceptions and addressed the issues raised despite completion of the controversy between the parties. See Nathaniel v. Forrest City Sch. Dist. No. 7 , 300 Ark. 513, 780 S.W.2d 539 (1989) ; Owens , 299 Ark. 373, 772 S.W.2d 596 ; Cummings v. Washington Cty. Election Comm'n , 291 Ark. 354, 724 S.W.2d 486 (1987) ; Robinson v. Ark. State Game & Fish Comm'n , 263 Ark. 462, 565 S.W.2d 433 (1978) ; Dotson v. Ritchie , 211 Ark. 789, 202 S.W.2d 603 (1947) ; Carroll v. Schneider , 211 Ark. 538, 201 S.W.2d 221 (1947).

We have explained that "where considerations of public interest or the prevention of future litigation are present, the choice remains ours as to whether we may elect to settle an issue, even though moot." Duhon v. Gravett , 302 Ark. 358, 360, 790 S.W.2d 155, 156 (1990) ; see also Ark. Gas Consumers, Inc. , 354 Ark. at 47–48, 118 S.W.3d at 115. Duhon concerned the constitutionality of the writ of execution statutes. Because this court foresaw future litigation and recognized the substantial public interest involved, it chose to resolve the constitutional issue, even though the judiciable controversy was moot. Id. This court has applied the substantial-public-interest exception to address moot issues from 1892 to as recently as 2003. See, e.g. , Ark. Gas Consumers, Inc. , 354 Ark. 37, 118 S.W.3d 109 ; Forrest Constr., Inc. v. Milam , 345 Ark. 1, 43 S.W.3d 140 (2001) ; Wilson v. Pulaski Ass'n of Classroom Teachers , 330 Ark. 298, 954 S.W.2d 221 (1997) ; Owens v. Taylor , 299 Ark. 373, 772 S.W.2d 596 (1989) ; Cain v. Carl-Lee , 171 Ark. 155, 283 S.W. 365 (1926) ; Wilson v. Thompson , 56 Ark. 110, 19 S.W. 321 (1892).

The issues of legislative and executive privilege raised here are of first impression in Arkansas. Guidance is needed for the public in pursuing litigation against the State, for the legislative and executive branches in conducting their business and responding to discovery requests, and for circuit courts when ruling on discovery disputes. This court is mindful that many issues involving privilege will not be resolved completely until a specific factual situation is before us. Nevertheless, the substantial public interest obliges us to decide the threshold issue of whether these privileges exist in Arkansas.

III. Legislative Privilege

The legislative privilege is derived from the Speech and Debate Clause of the Arkansas Constitution. It states that "for any speech or debate in either house," members of the General Assembly "shall not be questioned in any other place." Ark. Const. art. 5, § 15.

Our primary goal in construing and interpreting a constitutional provision is to ascertain and give effect to the intent of Arkansans. Martin v. Kohls , 2014 Ark. 427, 444 S.W.3d 844. We give the language of the constitutional provision its plain and ordinary meaning. Kelly v. Martin ex rel. State , 2014 Ark. 217, 433 S.W.3d 896. In addition, when we engage in constitutional construction and interpretation, we look at the history of the provision. Bryant v. English , 311 Ark. 187, 193, 843 S.W.2d 308, 311 (1992) ; Gatzke v. Weiss , 375 Ark. 207, 211, 289 S.W.3d 455, 458 (2008). We have also compared prior versions of our constitution to interpret its meaning. See State v. Brown , 356 Ark. 460, 469, 156 S.W.3d 722, 728 (2004).

Although this court has not previously construed the Speech and Debate Clause, we do not need to look far to ascertain...