AG Rutledge Asks Federal Judge For Temporary Stay In Case On State’s Tenant Rights Law

File photo. Attorney General Leslie Rutledge (R).
Credit Michael Hibblen / KUAR News

The office of Attorney General Leslie Rutledge on Wednesday (Jan. 4) asked a federal judge to issue a temporary stay on a case before the U.S. District Court in Harrison questioning the constitutionality of the state’s landlord tenant rules, or wait until the upcoming legislation session is over before moving forward with court hearings.

In a brief letter from Arkansas Solicitor General Lee Rudofsky, Rutledge’s office responded to a Dec. 14 request by U.S. Judge Timothy Brooks asking the state’s top prosecutor to reconsider her decision not to intervene in a case that challenges the constitutionality of the state statute that criminalizes non-payment of rent.

In the federal case now pending before the U.S. District Court for the Western District of Arkansas, Judge Brooks in December made a friendly appeal to Rutledge to reconsider her decision to not defend the state’s landlords-tenants law, according to federal filings. Brooks suggested to Rutledge that the state’s position would be “well-served” if she filed a so-called amicus curiae, or “friend of the court” brief, for the state of Arkansas in the federal case.

“Although your office was previously served with a copy of the complaint, it appears that you decided, as is your prerogative, not to intervene to defend this statute,” Brooks wrote. “However, I write now to respectfully solicit amicus curiae briefing from your office on this issue.”

The case now before Brooks deals with a lawsuit filed by the Legal Aid of Arkansas office in Craighead County concerning the state’s growing controversy over tenants’ rights laws that critics say are the worst in the nation.

According to Jason Auer, attorney for the Legal Aid office in Craighead County, his group and sister organization, The Center for Arkansas Legal Services, filed motions attacking the constitutionality of the criminal eviction statute in a Pulaski County case.

In January 2015, Pulaski County Circuit Court Judge Herbert Wright, Jr. issued an order finding the statute “wholly unconstitutional.” Over the next few months, Auer said Legal Aid of Arkansas was able to obtain similar rulings in cases in the First and Second Judicial Districts, which includes Craighead County.

In his letter to Rutledge, Brooks noted that Mountain Home City Attorney Roger Morgan, the sole remaining defendant in the case appealed to the federal court, has now elected to not oppose a motion by the plaintiff asking for declaratory and injunctive judgment in the case, which will have the effect of making the Arkansas law unconstitutional.

“Considering the breadth and gravity of the issues implicated by this motion, I believe that this Court, the parties in this case, and the state of Arkansas would all be very well-served by oppositional briefing, so as to sharpen the presentation of the merits,” Brooks writes. “I further believe that there is probably no one who could perform this service more effectively than the Attorney General for the state of Arkansas.”

Brooks further states that if Rutledge changes her mind and files an amicus curiae brief with the court, he would work with her and the other parties in the case to prepare a briefing schedule that accommodates everyone. Brooks asked Rutledge to respond by Jan. 9, 2017, the day the 91st General Assembly begins.

In his response to Brooks, Rudofsky said that Rutledge does plan to submit an amicus curiae brief with the court. However, he noted that a recent bill filed by Sen. Blake Johnson, R-Corning, will address constitutional inequities in the law highlighted by a Pulaski County Circuit Court ruling in January 2015.

Rudofsky, who was hired by Rutledge as the state’s first solicitor general in July, told Brooks that Senate Bill 25 will be debated and potentially enacted by the legislature once the assembly convenes next week.

“If enacted – either as written now or as amended during the legislative session – Senate Bill 25 would moot at least some, and possibly all, of the constitutional challenges levied in the case against (the) Arkansas Code …,” Rudofsky writes. “And issues not mooted, if any, many be significantly altered by the new legislation.”

Rudofsky also told Brooks it would be a “waste of the resources” of the parties and the court to proceed with the current briefing, arguments and judgment prior to the conclusion of the legislative session, especially if SB 25 becomes law.

“The final date of the session falls in April. According, we respectfully request that the Court either issue a temporary … stay of this case pending notification of the final status of SB 25, or set a briefing schedule with deadlines beyond the conclusion of the legislative session, so that the parties may properly account for the passage of SB 25 (if that occurs) in the briefing on the constitutionality of Arkansas (law),” Rudofsky wrote.

In an interview with Talk Business & Politics last month, Sen. Johnson said he filed SB 25 at the request of the Greene and Craighead County Landlord’s Association to address inequities in the state’s tenant-landlord laws. Johnson said he has not talked with other groups concerning his bill, and said there will likely be opposing or competing legislation filed during the session concerning the state’s growing controversy over tenants’ rights laws.

“I figure there will be something else, whether it is my [bill] or a hybrid,” Johnson said. “I was just trying to address the local landlords’ issue and concerns, but there may be a more comprehensive approach. I guess the [landlords] went too far according to the courts.”

During the 2011 general session, Act 1198 created the non-Legislative Commission on the Study of Landlord-Tenant Laws to study, review and report on the landlord-tenant laws in Arkansas and other states.

Two years later, the commission issued a report to the legislature that recommended reforming state law. Specifically, the commission recommended repealing the criminal eviction statute, in conjunction with implementation of a streamlined civil eviction process, and enactment of an implied warranty of habitability. Other recommendations include changes that would bring existing law more in line with the federal Uniform Residential Landlord Tenant Act.

In the 2015 session, legislation sponsored by Rep. Greg Leding, D-Fayetteville, would have required “a minimum habitability standard” for tenants of resident property in Arkansas. That bill died in committee when the 90th General Assembly adjourned.

Gail Blucker, executive director of the Landlords’ Association of Arkansas, which was a part of the legislative task force, said her group would support a bill with a minimum standard requirement that is fair to both landlords and tenants. Blucker said the statewide property owners’ group is working with representatives during the 2017 session in order to accomplish such a law.

Julie Mullenix of Little Rock-based Mullenix & Associates, speaking on behalf of the state realtors’ association, said ARA is also looking at a “legislative remedy” to repeal parts of the law that are unconstitutional with regard to tenants’ rights. Mullenix said the law prior to changes codified in the statute were upheld in past court decisions over a decade ago.

“We have several pieces of legislation that we will file during the session that will attempt to maintain the balance that Arkansas has always had (between) the rights of landlords and tenants,” said Mullenix, whose firm offers governmental, PR and lobbying services to a number of trade groups and businesses in Arkansas.