Attorney general’s opinions raise partisanship issue
By Roy Ockert Jr.
Sept. 15, 2015
Two recent attorney general’s opinions reflect increasing partisanship in the state’s justice system in spite of efforts to make it nonpartisan.
While Arkansas clings to a system of electing judges, we have made judicial elections nonpartisan. Candidates run without a “D” or “R” beside their names, even though we vote on judicial officers at the same time and place that the two major parties hold their primaries.
We’ve also taken the party labels away from candidates for prosecuting attorney but curiously not from the state’s “top lawyer,” the attorney general. That would be Leslie Rutledge, the first Republican elected to that office.
Unfortunately, her party label is showing through in some of the opinions and other legal actions coming from her office.
One of the most blatant came in response to a Little Rock blogger’s request on Aug. 2 seeking an Arkansas State Police investigative file on Boyce Hamlet, who was fired as a trooper recruit in 2000.
That file became important in March when Gov. Asa Hutchinson appointed Hamlet as the Alcoholic Beverage Control Board’s enforcement director. The blogger, Russell Racop, wanted to confirm allegations that Hamlet had been fired for, among other things, cheating on an exam and then lying about it, according to a lawsuit Racop subsequently filed in Pulaski County Circuit Court.
State Police spokesman Bill Sadler told a reporter that the agency considered the records public and planned to release them. But first he had to notify Hamlet. After some confusion about who would seek an attorney general’s opinion, Hamlet did, as allowed under the Arkansas Freedom of Information Act.
On Aug. 31 Rutledge issued an opinion saying there was no compelling public interest and therefore that the file should not be released. The State Police complied, and Racop filed a lawsuit, which is pending.
Rutledge ignored the consistent interpretation of the stature by incredibly finding no compelling public interest in the background of a political appointee to a top state law enforcement position. She reached that conclusion based on the fact that Hamlin’s position at the time was very low and that there had been a significant passage of time since what she acknowledged was a “serious breach of public trust.”
That’s an obvious attempt to protect a person appointed by the leader of her party, rather than an objective interpretation of the law, and the court will surely overrule her opinion.
Another obviously political opinion came on a more controversial issue — the question of whether it’s legal to carry a gun openly in Arkansas. Because of some incompetent or underhanded legislating in the form of Act 746 of 2013, the state law regarding possession of handguns has been muddied.
That law supposedly was intended to make “technical corrections” in laws on the possession of handguns and other weapons. At the time no one including then-Gov. Mike Beebe, who signed bill after its unanimous adoption, read it to do anything else.
Nevertheless, it can be interpreted to decriminalize the offense of openly carrying a handgun, club or knife unless one has the intent to unlawfully use the weapon against another person. Of course, that really can’t be proven until after the fact.
Since the Legislature did not change anything in regard to the state’s concealed handgun law, it can be argued the lawmakers didn’t really mean to authorize open carry. That’s what then-Attorney General Dustin McDaniel opined later in 2013, i.e., that Act 746 did not authorize open carry.
If he’s wrong, Arkansas law would allow one to carry a handgun in a visible manner while another person would have to obtain a permit, passing a course and paying a fee, to carry a concealed handgun. That doesn’t make sense, but then much of our law-making doesn’t.
Rutledge, who won the AG office after touting herself as a gun-toting woman (presumably in concealed fashion), couldn’t resist weighing in on the controversy in spite of her Democratic predecessor’s opinion. And in a convoluted manner she reached an opposite conclusion.
Asked by three legislators about the effects of Act 746, she wrote that “in general merely possessing a handgun on your person or in your vehicle does not violate [the law] and may be done if it does not violate other laws or regulations.” She then added four “critical caveats,” curiously saying that she did not want to encourage open carry. She also said additional legislative action is needed to clear up the confusion, which we already knew.
Thus, we now have both the Democratic version and the Republican version of what the law says. Both are just legal opinions.
But Rutledge’s timing was suspicious because we already had a test case in court. A Bald Knob man was arrested in mid-August of openly carrying a handgun into McDonald’s and other local businesses. A week before her opinion was issued, Richard Chambless was convicted in District Court, given 15 days in jail followed by a year’s probation and fined $2,160. His attorney said he would appeal, providing the needed test case.
Was the attorney general offering legal advice or attempting to influence Chambless’ appeal? Did she feel a need to cancel McDaniel’s opinion? The opinion certainly didn’t add any clarity to the issue.
Perhaps we should take the party labels off that office, too.
Roy Ockert is editor emeritus of The Jonesboro Sun. He may be reached by e-mail at royo@suddenlink.net.