Arkansas LEARNS, the contentious K-12 education law championed by Gov. Sarah Sanders, is scheduled to be back in Pulaski County circuit court tomorrow morning for a critical hearing, and Attorney General Tim Griffin’s office is hoping to keep a key witness from delivering testimony.
The central question in the LEARNS case is a procedural one: When the state legislature passed the massive 145-page bill this spring, did they fail to follow the Arkansas Constitution’s requirement to hold separate votes on the bill and its emergency clause? (An emergency clause is required for a new law to take effect immediately, rather than the typical 90-day waiting period.) The House and Senate each voted on LEARNS and its emergency clause in a single vote, rather than holding one vote for the bill itself and a separate one to add an emergency clause. The legislature has often bundled together votes on bills and emergency clauses in the past, but the practice appears to run counter to plain constitutional language.
The plaintiffs, a group of public school advocates and others represented by Little Rock attorney Ali Noland, subpoenaed former state Senate Parliamentarian Steve Cook. They hope Cook’s testimony could help bolster their argument that the two-votes-in-one practice is constitutionally problematic, even if it’s been common practice.
On Thursday, a divided Arkansas Supreme Court struck down a temporary restraining order from Pulaski County Circuit Judge Herbert Wright — which had frozen the law for almost three weeks — and remanded the case back to Wright’s courtroom.
Later that day, Griffin filed a motion to quash Noland’s subpoena of Cook and asked for a protective order barring his testimony.
In his motion, the attorney general argues the legislature’s voting practices are a “core legislative activity” that should be privileged from testimony by staffers such as the Senate parliamentarian. Courts have no business prying into internal legislative affairs, Griffin writes. “More than 100 members of the General Assembly (and counting) — supermajorities in both houses — have instructed the Office of the Attorney General to vindicate that privilege on their behalf,” Griffin says.
Allowing Steve Cook to testify on the Arkansas Senate’s internal discussions about how to hold votes could shake the very foundation of the American republic, the attorney general seems to say:
A more blatant intrusion into core legislative activity can hardly be imagined. No American court has ever sanctioned such an invasion of the legislative sphere, and this Court should act to quash Plaintiffs’ effort to become the first to upset our system of checks and balances carefully crafted by the Framers and adopted by the States. Allowing Plaintiffs to question the General Assembly’s parliamentarians concerning their privileged discussions with lawmakers would render the separation of powers a nullity.
If Wright denies the motion to quash, the state intends to appeal to the state Supreme Court, which presumably would delay the hearing scheduled for June 20.
In a reply filed Friday morning, Noland notes that the “more than 100” unnamed state lawmakers cited by Griffin are not parties to the case and have not filed a motion to intervene in it. “There is no information in the motion about who is seeking to quash the subpoena, and whoever they are, they have no standing in this case to file a motion and seek relief from this Court, especially relief that Mr. Cook himself is not seeking,” she writes.
Noland includes a letter sent by Cook on June 12 asserting that he was no longer represented by the attorney general’s office. Griffin can’t assert a privilege that Cook himself has not invoked, she says.
Noland also says the claim of legislative privilege should not be stretched to cover anything lawmakers might wish to keep under wraps. Griffin’s motion cites a recent state Supreme Court case, Protect Fayetteville v. City of Fayetteville, that affirmed legislators are privileged from certain discovery and testimony. But Noland says that’s a much different situation than the one at hand:
In Protect Fayetteville, the Court said that it need not look further than the plain language of the Arkansas Constitution to hold that the privilege protected the two sitting lawmakers, Senator Bart Hester and Representative Bob Ballinger, who were subpoenaed to give depositions regarding the intent behind Act 137 of 2015, which bars municipalities in Arkansas from enacting nondiscrimination ordinances that provide protection to groups not covered by state law. That is a far cry from what an anonymous group of nonparty lawmakers are attempting to do in this case: interject themselves to assert legislative privilege as to a former staffer, not a member, who is not asserting that privilege himself and who will not be asked to testify about legislative intent or the speech or action of individual members but only about his own role and experience regarding the process and procedure for passing legislation in the Arkansas General Assembly.
Noland’s plaintiffs include CAPES, a public school advocacy group that is leading an uphill battle to repeal LEARNS at the ballot box in 2024, and employees of the Marvell-Elaine School District. The tiny, struggling Arkansas Delta school district was facing state takeover and consolidation before LEARNS, but the state Education Department has planned to hand the district’s management to a charter school organization using a provision in the newly passed law. The plaintiffs argue that’s not allowed because the allegedly improper vote on the bill’s emergency clause means LEARNS shouldn’t go into effect until later this summer.
In addition to easing the path to charter school takeovers, the new law makes a raft of other changes to education policy, including a major boost to starting teacher salaries, an erosion of labor protections for teachers, and a universal voucher program that would direct public school funds towards private, parochial and home school students.