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Court overturns long precedent 

Also, Cotton hypocrisy and LR sues mayoral candidates.

Quote of the week

"If Democrats continue this kind of obstructionism, we might be compelled to change the rules on our own." — Sen. Tom Cotton of Arkansas threatening on the "Hugh Hewitt" radio show to change Senate procedure to prevent Democrats from blocking presidential nominations. Cotton single-handedly blocked numerous nominations during the Obama administration, most notably that of Cassandra Butts, a wholly qualified diplomatic appointment who was dying of cancer. Butts was a personal friend of President Obama's.

Court overturns long precedent

The Arkansas Supreme Court reversed long court precedent last week when it ruled the state legislature may not pass laws waiving the sovereign immunity provision, or protection against lawsuit, of the state Constitution in cases seeking monetary damages.

The decision was 5-2. A dissent said the consequences were "astounding" and could apply to some past cases of enormous significance.

The decision came in the case of a Rich Mountain Community College bookstore manager seeking overtime compensation. He argued, and a circuit judge agreed, that the state legislature had explicitly waived constitutional immunity in minimum wage cases and cited past cases on the point in saying the case should go to trial.

Justice Karen Baker wrote a dissenting opinion, joined by Justice Jo Hart. Chad Pekron, sitting as special justice, joined the majority. He replaced Justice Courtney Goodson, whose husband is a member of the University of Arkansas Board of Trustees. Rich Mountain is part of the UA System.

Baker's dissent noted that private employers must pay minimum wages, but, by this ruling, the state need not. She argued that the Constitution should be interpreted as meaning the state could not be compelled to be a defendant, but it could choose to do so.

She objected, too, to the majority's unwillingness to take up the plaintiff's argument that other parts of the Constitution that guarantee a jury trial and a remedy for "all injuries or wrongs" overrode sovereign immunity.

Stay granted for hog farm

The Arkansas Pollution Control and Ecology Commission has granted a stay that will allow continued operation of the C&H hog farm near Mount Judea while it appeals denial of a new permit for the factory hog-feeding operation.

The commission said the farm must file its appeal no later than Feb. 10. If that deadline is met, the stay will remain in place. The vote was unanimous, with the exception of recusals by Gary Wheeler and Robert Reynolds.

The Department of Environmental Quality denied the permit Jan. 10. The lawyer for the farm argued that it had submitted everything required by the department. The Buffalo Watershed Alliance argued before the commission that a stay shouldn't be granted. The permit expired more than a year ago and an appeal could last months or years. It argued for a phase-out of the operation and, failing that, posting of a substantial bond by the farm to cover potential hog waste pollution in the interim. The commission required no bond, however. Apparently, the commission believed such a requirement was outside its power.

City sues mayoral candidates

As directed by the Little Rock City Board, City Attorney Tom Carpenter last week sued for a declaratory judgment that Warwick Sabin and Frank Scott, candidates for Little Rock mayor, are violating a city ordinance by raising money for exploratory committees to run for mayor.

The ordinance prohibits fundraising for city office sooner than five months before an election, with this election scheduled in November.

The state Ethics Commission has found, however, that the exploratory committees are allowed by state law and declined to take action. The suit names the Ethics Commission, Sabin, Scott and their exploratory committees.

By allowing Sabin and Scott to raise money, the lawsuit argues, the state is denying equal protection to incumbent officials who cannot raise money until June 1 and may not create an exploratory committee to raise money for an office he or she already holds. It says the state Ethics Commission should be made to enforce the city ordinance and the judge should order appropriate equitable remedies.

Meanwhile, Mayor Mark Stodola is sitting in blatant violation of the same city ordinance by holding on to $78,000 in contributions left over from previous campaigns. By terms of the same 1997 ordinance the City Board wants Carpenter to enforce, Stodola should have refunded that money to contributors or distributed it to specified legal recipients, such as charities. Carpenter has argued that state law prohibits enforcement of this part of the ordinance, but not the part about a short fundraising period.

Sabin has raised about $120,000, Scott about $75,000.

Correction

The Times' cover story last week, "Arkansans of the Year: Women," quoted House District 32 candidate Jess Virden Mallett as speaking about a proposed 2016 amendment to cap medical malpractice fees that was later struck from the ballot by the Supreme Court. That was an error. Mallett was speaking about the 2018 measure, Issue 1, which would cap attorneys' fees and limit noneconomic punitive damages in personal injury, property damage or wrongful death to $500,000.

"The current legislature, including my opponent, has introduced a ballot referendum that places an arbitrary value on human life in the Arkansas Constitution. ... The majority of our legislators think life is only worth $500,000 and want to amend our constitution to reflect that. As a mother, wife and a daughter, that is simply not acceptable. ... It is very important that people know that this is still an issue, that they are trying to take away their Seventh Amendment right." Mallett, a Democrat, is running against Republican state Rep. Jim Sorvillo.

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