A Funny Thing About Mark Martin’s Hiring Of Outside Counsel….

There are any number of reasons that a person might find himself in a lawsuit against the Arkansas Secretary of State.

Maybe he wants to have his name on a ballot. Maybe he wants to have an issue placed on a ballot (or have an issue NOT placed on a ballot, as the case may be). Maybe he thinks has was wrongfully discharged or was a victim of discrimination. Maybe he alleges that the Secretary of State’s Office has violated the Arkansas Freedom of Information Act.

Whatever the reason, one thing is certain: either that lawsuit will be defended by General Counsel for the Secretary of State, or (more commonly) it will be defended by the Arkansas Attorney General. Literally every Secretary of State, going back as far as one wishes to dig, has followed this pattern. C.G. “Crip” Hall, Secretary of State from 1937-1961, was named in tons of lawsuits, and he used the five Attorneys General of that time period every single time. Going back further, O.C. Ludwig (1905-1911), Earle W. Hodges (1911-1917), Tom J. Terral (1917-1921), Ira C. Hopper (1921-1925), and Ed F. McDonald (1931-1937) all utilized the Attorney General for legal assistance when necessary. (I can’t speak to Jim B. Higgins (1925-1931); if he did get sued, it does not appear to have wound up at the appellate level.)

If we look more recently, the results are no different. Nancy Hall (1961-1963) does not appear to have been named in a suit, but Kelly Bryant (1963-1975), George O. Jernigan (1975-1977), Winston Bryant (1977-1979), Paul Riviere (1979-1985), Bill McCuen (1985-1994), Sharon Priest (1994-2003), and Charlie Daniels (2003-2011) . . . all of them were sued at one time or another in their official capacity as Secretary of State, and all of them utilized in-house counsel or the Attorney General to defend that suit. All told, that is over full century of Secretaries of the State of Arkansas, all following the same route when it comes to legal help.

And then along came Mark Martin. Sued for wrongful termination? Hire Chisenhall, Nestrud & Julian! Sued for violating the AFOIA? Hire Quattlebaum, Grooms, Tull & Burrow! Really, no matter what the issue, hire outside attorneys!

If something here doesn’t smell right, your nose is quite good.  Ask yourself this: Why did all previous Secretaries of State use SoS General Counsel or the Attorney General?

The answer, as you might expect, is because the law required them to.  Which, of course, raises the follow up question, has the law changed such that Martin can do what previous Secretaries could not?

In a word, no.

Let me back up and explain.  Arkansas constitutional officers are, by definition, created by the Arkansas Constitution, specifically Article 6, section 1.  However, while the Governor is granted many specific constitutional powers and duties, the Secretary of State has only one narrow grant of constitutional duties under Article 6, section 21.  Beyond that, the powers and duties of the Secretary are — like those of the Treasurer, Auditor, and Attorney General — limited under Article 6, section 22, to what they are granted by the Legislature.  Which is to say, the office may be constitutional, but its powers are almost entirely statutory.

Now, importantly, the reason why all the previous Secretaries requested legal assistance from the Attorney General is because that’s what the law requires.  There is no statutory provision that allows the Secretary of State (or any other state official) to hire outside counsel whenever he so desires.  Under Arkansas Code Annotated section 25-16-702:

(a) The Attorney General shall be the attorney for all state officials, departments, institutions, and agencies. Whenever any officer or department, institution, or agency of the state needs the services of an attorney, the matter shall be certified to the Attorney General for attention.

(b)(1) All office work and advice for state officials, departments, institutions, and agencies shall be given by the Attorney General and his or her assistants, and no special counsel shall be employed or additional expense paid for those services.

Sounds pretty straightforward to me.  But the statute continues and explains that it is up to the Attorney General, not the state official who needs the services of an attorney, to decide when outside counsel is needed:

(b)(2) If, in the opinion of the Attorney General, it shall at any time be necessary to employ special counsel to prosecute any suit brought on behalf of the state or to defend a suit brought against any official, board, commission, or agency of the state, the Attorney General, with the approval of the Governor, may employ special counsel. The compensation for the special counsel shall be fixed by the court where the litigation is pending, with the written approval of the Governor and the Attorney General. The Attorney General shall not enter into any contract for the employment of outside legal counsel without first seeking prior review by the Legislative Council.

But what if the official asks the Attorney General for legal help and the AG does not provide it?  Glad you asked, Mr. Rhetorical Device!

(c) If any official, department, institution, or agency of the state needs the service of an attorney and the Attorney General fails to render the service when requested in writing, then, upon the establishment of that fact, the Governor may appoint counsel to look after the matter or may authorize the employment of counsel by the officer, department, agency, or institution needing the services of an attorney.

So, to summarize in the context of Mark Martin, if, when served with the complaint alleging that his office had violated the AFOIA, Martin felt that the case was too difficult for Marta Adcock and the rest of the SoS legal team, he was required by law to request legal assistance in the matter from the Attorney General.  If the Attorney General felt that outside counsel was needed, the AG would have to get the approval of the Governor, seek review of the decision by the Legislative Council, hire outside counsel, and let the court fix the hired firm’s compensation in the matter.

If Martin asked in writing for legal assistance from the AG and the AG failed to provide, then Martin was required to demonstrate to the Governor both that legal assistance was needed and that the AG had failed to provide it.  It would then have been up to the Governor to either hire outside counsel for Martin or, if the Governor wanted, he could authorize Martin to hire his own council.

In neither of those scenarios is there an option for Martin to just ignore the statute and hire his own attorney.  In fact, the only loophole to the requirements of section 25-16-702 is in section 25-16-711, which allows a state official to hire outside counsel where the official and the Attorney General disagree on the interpretation of any constitutional provision, act, rule, or regulation which affects the duties of that constitutional officer.  Even then, the outside counsel may be hired only to litigate a resolution to the disagreement.

When you think about this whole scheme, it makes perfect sense as to why a state official should be defended by the Attorney General. A suit against a state official is not a suit against him personally, but a suit against the office he holds.  So what is important is not that the official feel like he or she needs to “win” the lawsuit, but that the State’s interests are protected.  In this case, regardless of how Martin feels about the lawsuit or how badly he wants to be victorious, the State’s interests are case are seeing that the AFOIA is correctly interpreted and applied, that the AFOIA’s liberality of construction is maintained, and that no unnecessary costs are incurred by the State in defending against the lawsuit.

Beyond just the fact that he lacked the legal authority to hire outside counsel in this case, the concept of protecting the State’s interests is the overarching problem with the entire idea of a state official hiring his own attorneys.  How can the State (i.e. you, the voters) be sure that its interests are adequately protected by Quattlebaum, Grooms, Tull & Burrow without the firm first being approved by the Attorney General and/or Governor as required by section 25-16-702?  The gravamen of this lawsuit is that the Secretary of State’s Office disagreed with me over interpretation and application of the AFOIA; shouldn’t the Attorney General, whose office has decades of experience intepreting and explaining the AFOIA, be the legal representative for Martin if the State’s interest is not in Martin being correct, but in the law being correctly interpreted?

Likewise, how can an agreement with a law firm that bills by the hour adequately protect the State’s interest in minimizing the costs that it incurs in defending against this suit?  Wouldn’t the Attorney General defend the SoS without any additional cost of taxpayer funds?  Hell, last week, after they suddenly turned over Word docs that they claimed were either deleted or not subject to disclosure in that format, I offered to drop the remainder of the suit regarding the PDF files if the Secretary would just reimburse my filing fees/postage (about $190) and sign a letter stating that the Word docs should have been disclosed from the outset and that the SoS Office had no substantial justification for withhold them.  With a tiny bit of pride-swallowing on Martin’s end, this entire thing could be over right now, and the State’s interests would be safe.

Instead, I never received a response to my offer, most likely because Martin’s hubris and the fact that he has paid attorneys working for him (rather than working for what’s best for the State) kept him from even considering the offer.¹  If that’s not indicative of the entire rationale behind making the AG the attorney for state officials in cases like this, I don’t know what is.

So . . . here we are.  I filed a motion this morning to disqualify Martin’s attorneys from this case based on the legal stuff outlined above.  We’ll see how that plays out.  In my opinion, the law is pretty clear on this.  Over a century of Secretaries of State — including Bill McCuen, who was hardly a stickler for the rules — have followed the law and used the Attorney General.

Martin has, instead, opted to ignore the law, to spend taxpayer money on attorneys he lacks the authority to hire, and to put your interests in the proper application of the AFOIA at risk.  Hopefully, this motion and this case will afford him the opportunity to explain to you why he has chosen this approach.  I think you deserve it.

*****

¹As an aside, my belief that the attorneys are more concerned with Martin’s wishes than with the State’s interests is bolstered by the fact that the lead attorney on the case, Chad Pekron, serves on the Election Commission, which Martin chairs. While it’s not improper for Pekron to also be defending the SoS, that close tie between Pekron and Martin certainly raises the possibility that Martin’s interests will be paramount in how the attorneys decide to handle the case.