The Truth Might Set Us Free, But It Won’t Help Mark Martin

In the book version of Game of Thrones, there is a scene where Tyrion Lannister is talking to Jon Snow about The Night’s Watch.[foot]If you’re unfamiliar with both the book and the series, The Night’s Watch is a gigantic ice wall where certain men are sent to live out their lives and protect the Seven Kingdoms from the creatures who live to the north of the wall.[/foot]  When Snow contends that The Night’s Watch is a noble calling, Tyrion retorts that it “is a midden heap for all the misfits of the realm.”

A little while later, Snow asks if Tyrion was serious about that.  Tyrion nods.

Jon Snow set his mouth in a grim line. “If that’s what it is, that’s what it is.”

Tyrion grinned at him. “That’s good, bastard. Most men would rather deny a hard truth than face it.”

I thought of Tyrion’s quote when I read Alex Reed’s explanation for why Secretary of State Mark Martin had somewhat inexplicably decided to start paying outside counsel again, despite a court order in August that found he lacked the legal authority to hire outside counsel in the first place.  As recounted by Max:

Reed tells me the payments all were for work done in a variety of cases preceding Circuit Judge Tim Fox’s finding in an FOI case brought by Blue Hog that the secretary of state could not use the Quattlebaum law firm in the case because he had not gotten clearance required by statute from the attorney general when the state’s legal assistance isn’t going to be used.

Ignoring for a moment that paying a firm that you did not have the legal authority to hire in the first place, regardless of when the work was done, is highly questionable behavior, I see a much bigger issue with Reed’s statement.  It does not match the paper trail.

You see, as luck would have it, I happened to submit a FOIA request to the Secretary of State’s Office on August 13, 2013 (aka “the day after Judge Fox disqualified Quattlebaum”), in which I asked for:

All contracts or agreements with attorneys or law firms to provide legal, consulting, or other services to the Secretary of State’s office from January 2010 to present.

All invoices or other bills received from law firms or attorneys from 2010 to present.

All canceled checks paid to law firms or attorneys from 2010 to present.

The documents were provided on August 16, 2013. You can see the first half here and the second half here. (They are not in much of a chronological order because that’s how the Secretary’s office likes to provide things, just so it is that much more difficult to find what you’re actually looking for. Classy.)

Were you to look through those documents, you would notice at least three things with respect to reads comment above.

1. Quattlebaum was only hired on July 5, 2013, following the filing of my AFOIA suit against the Secretary’s Office, and the agreement specifically references Chad Pekron and Joseph Price III — the two attorneys who appeared for the Secretary’s Office at the August 12 hearing.  That’s not dispositive, but it’s interesting, given Roland’s suggestion that payment of $9,800 was for work done prior to August 12.  At $200/hr, that would have been 49 total hours of work in (1) writing an answer to the complaint, (2) writing a response to the motion to disqualify, and (3) preparing for the motion hearing.[foot]And that’s if we assume that none of the work was done by paralegals.[/foot]

2. Quattlebaum’s client agreement specifically notes that their “invoices are due upon receipt.”  In that case, assuming Martin really believes that it is ok now to pay for work that was done prior to August 12, why did he not pay for the July work when he received an invoice in August?  Why did he not pay for the August 1 through August 11 work when he received an invoice in September?  If making those payments was not illegal, why should his attorneys have to wait until late December 2013 to be paid for work done in July?

3.  Most damning to Reed’s claim, there is no client agreement or invoice from Rainwater, Holt, & Sexton.  Nothing.  There’s stuff from Asa Hutchinson’s firm; from Chisenhall, Nestrud & Julian; from Quattlebaum (who, again, was not hired until July 5 and whose agreement specifically references fiscal year 2013-2014, undermining any excuse that only documents through the end of the previous fiscal year were provided).  Nothing from Rainwater.

However, when you know the backstory about how Martin wound up paying Rainwater, everything becomes more clear.  Denise Hoggard worked for Chisenhall, Nestrud & Julian, and she was the primary attorney on Burton v. Secretary of State, et al., No. 13-1247.  Ms. Hoggard left Chisenhall some time around July 9 (based on Augustine Kelly’s unilateral extension of representation by Chisenhall through July 8 (see page  65 here)) and went to, you guessed it, Rainwater, Holt & Sexton.

Here’s where it gets fun.[foot]Unless you are Mark Martin.  In which case, I’m kind of surprised you’re reading this.[/foot]

If we look at the docket from the Eastern District of Arkansas, where the case was originally filed, we see that Martin filed a notice of appeal to the Eighth Circuit Court of Appeals in mid-February 2013.  Ms. Hoggard entered her appearance for Martin in the Eighth Circuit on February 26, 2013, and, after some extensions of time, Martin’s brief was filed by Ms. Hoggard on April 29, 2013.

Mr. Burton’s responsive brief was filed on May 23, 2013.  On May 30, 2013, all parties were notified that the case had been screened for oral argument, date to be determined.  Martin’s reply brief was filed on June 6, 2013.  Now look at this (click to enlarge):

That’s right: from when Martin’s reply brief was filed on June 6 until the Court of Appeals notified the parties on August 27, 2013, that oral arguments would be held on September 25, 2013, there was nothing to show any work being done by Ms. Hoggard, whether for Chisenhall prior to her leaving in July or for Rainwater after she moved to that firm.  Nor were there even any deadlines in that time period that would have necessitated much work that simply doesn’t appear on the docket.

Yet Mark Martin, via Alex Reed, expects us to believe:

• That Rainwater, Holt & Sexton was paid $16,314.01 for work that occurred entirely between some time in early July and August 12?
• That Rainwater did this work without having a client agreement in place with the Secretary’s Office?
• That, looking at the above docket, Ms. Hoggard then agreed to the oral argument date, drafted and filed a Rule 28(j) citation on September 23, went to St. Louis to hold the oral argument on September 25, drafted and filed a motion for extension of time to file a petition for rehearing on December 30, and filed a petition for rehearing on January 7, 2014, all without being paid for ANY of that work?

I know a lot of attorneys.  I don’t know a single one who, unless they were working on contingency, would travel to St. Louis for oral arguments and do the prep work that comes with that endeavor if they knew that they were not going to get paid.  To suggest that Ms. Hoggard did that and filed post-trial motions, all without pay, when she had been paid by the Secretary of State for her work while at Chisenhall? That’s just asinine.

Why lie about this?  Simple.  Whether it was because they didn’t understand what Judge Fox’s December 18 ruling meant or because they thought they could get away with it, paying outside counsel for work done after August 12 opens them up to liability in the form of an illegal-exaction suit or even, arguably, removal from office under Article 16, § 3, of the Arkansas Constitution, which provides:

The making of profit out of public moneys, or using the same for any purpose not authorized by law, by any officer of the State, or member or officer of the General Assembly, shall be punishable as may be provided by law, but part of such punishment shall be disqualification to hold office in this State for a period of five years.

So, again, if Mark Darr ultimately had to resign from office for misspending/mishandling/misaccounting for roughly $40,000 in campaign and state funds, what should the outcome be for an officer who wilfully spends $26,000+ in state funds after specifically being told that he lacked the authority to do it?  Well, technically, the law is clear on what that outcome should be, whether you look at Ark. Code Ann. § 25-16-702 or Ark. Const. Art. 16, § 3.

Now, we all just have to wait for Martin to be held accountable.  Maybe this will help.

UPDATE: Had a thought on the way home.  Even if Denise Hoggard represented Martin’s Office while she was at Chisenhall, that doesn’t give Martin the authority to enter a new contract with a new firm (Rainwater) after August 12 simply because their previous attorney changed firms.  It doesn’t even matter that they wanted to keep the same attorney; they were explicitly told that they could not hire outside counsel.

Then they went ahead and did that.

I can’t wait to see how they justify it now.