UPDATE: AG to appeal Act 1 ruling | Arkansas Blog

Monday, April 19, 2010

UPDATE: AG to appeal Act 1 ruling

Posted By on Mon, Apr 19, 2010 at 3:02 PM

Attorney General Dustin McDaniel said in a statement today that his office would appeal Friday's Circuit Court ruling, knocking down initiated Act 1 as unconstitutional, to the Arkansas Supreme Court.

Initiated Act 1 was approved by approximately 57 percent of the voters in the 2008 election. I believe the people of Arkansas deserve to have the state’s highest court decide whether or not to override their decision.

Therefore, I have instructed attorneys in my office to appeal the Circuit Court’s ruling on Initiated Act 1 to the Arkansas Supreme Court.

McDaniel's earlier statement said, "A number of factors will have to be considered and evaluated before a decision is made as to whether an appeal would be in the best interests of the state." I've asked the AG's office what those factors were.

UPDATE: McDaniel called the Times this afternoon to answer our questions. "I’m not offering any predictions on how it’s going to come out," the attorney general said, "but I think that everyone would expect it to be appealed. Avoiding an appeal is very unlikely so the question is whether the state’s lawyer is a participant in that and I think we almost have to be."


Comment from attorney general Dustin McDaniel:

First of all, the attorneys in civil had to have the opportunity to review which points were won and lost at the circuit court, which they did. The ACLU lost all of their federal constitutional claims, one on narrow state grounds. You have to think about the costs that might be incurred by the state, the risk of attorneys fees being awarded to the plaintiffs would have been on the grounds of federal claims. I expect the Family Council will appeal. I would expect that the ACLU will cross appeal in the hopes of a different outcome on the federal allegations which would potentially entitle them to attorney’s fees and place the state at a higher risk. Those were concerns.

If an appeal was going to happen anyway, which appears to be the case, the question is what position do I take and what does my client want me to do? In this case the client is the people. Although as I have always said I do not agree with the policy behind this act, 57 percent of the people voted for it. And if it’s going to be struck down as unconstitutional, I think the marching orders from my client, those who passed it, would be to at least let the state’s highest court hear it. We’ve had some discussions on past positions of the AG’s office and my predecessors always took lower court rulings to the Supreme Court to let them way in regardless of the personal feelings of the office-holder.

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