Little Rock attorney Ali Noland, at lectern, tells Arkansas Board of Education members on May 5, 2023, that they do not have the authority to grant the Marvell-Elaine School District permission to enter into a transformation contract with the Friendship Education Foundation. (John Sykes/Arkansas Advocate)
A Little Rock attorney rejected Arkansas Attorney General Tim Griffin’s argument that sovereign immunity bars her clients’ lawsuit that has delayed implementation of the LEARNS Act, the governor’s signature education law.
In a 19-page brief filed Wednesday, Ali Noland said Griffin’s sovereign-immunity argument, a legal doctrine that prevents most lawsuits against the state, is based on the assertion that “plaintiffs can’t show that the state acted unlawfully.”
“Not only can the Appellees show that the Appellants acted unlawfully, the circuit court agreed when it granted the [temporary restraining order],” she wrote.
Noland filed a lawsuit in Pulaski County last month that argues the LEARNS Act is not yet in effect because its emergency clause wasn’t passed by a separate roll-call vote garnering a two-thirds majority, as required by the state Constitution.
The plaintiffs also argued the Legislature failed to establish that an emergency existed that made immediate implementation of the law necessary.
A Pulaski County judge issued a temporary restraining order on May 26 that halted implementation of the law. The Arkansas Supreme Court on June 2 denied Griffin’s motion to lift the restraining order, while granting a motion for expedited consideration.
Justices ordered the parties to file simultaneous briefs by 9 a.m. Tuesday and simultaneous reply briefs by 9 a.m. Wednesday that address whether sovereign immunity doctrine bars the lawsuit and whether the case presents a “nonjusticiable political question that violates the separation of powers.”
An emergency clause allows new laws to take effect immediately instead of 91 days after the Legislature adjourns. If the Supreme Court accepts the argument about flawed emergency clause adoption, Griffin said it would have wide implications for hundreds of other laws enacted earlier this year with emergency clauses attached.
Noland’s response Wednesday chastised Griffin for asserting that continuing to block implementation of the law could threaten judicial and agency budgets, and said appealing to the justices’ personal financial interests is unethical, inaccurate and deeply offensive.
“Arkansas is fortunate to have a strong, independent, and unbiased judiciary that has demonstrated its commitment to upholding the rule of law and protecting the integrity of the courts,” she wrote. “The Appellants’ crude and offensive appeal to the Justices’ personal financial interests in this case jeopardizes all of that.”
In his reply brief, Griffin argued the circuit court’s order inflicts irreparable harm on families and educators, and if upheld, “its reasoning would upend settled expectations, flood the courts, shutter State government for a month, and endanger public health, safety, and welfare.”
“Plaintiffs do not explain how delaying a law that will ultimately go into effect regardless of the outcome of this lawsuit justifies this unprecedented blow to State government and all Arkansans. And that’s telling,” Griffin wrote. “This Court should immediately vacate Plaintiffs’ restraining order and dismiss this case.”
The effective date of the LEARNS Act directly affects whether a small Delta school district can finalize a “transformation contract” with a charter management company.
The LEARNS Act provides such contracts to allow academically struggling schools to partner with a third party in lieu of a state takeover. The State Board of Education approved a transformation contract between the Marvell-Elaine School District and the Friendship Education Foundation in May as an alternative to consolidating the district.
Griffin noted in his brief that while plaintiffs claim they’ve sued to prevent harm to Marvell-Elaine, lawyers representing the district also have asked the court to vacate the temporary restraining order.
The state also filed a motion to strike Noland’s reply brief for exceeding the maximum word limit. Noland asked that the court accept the responsive brief as filed, arguing that “the parties are not operating on a briefing schedule defined by rule but rather at the Court’s discretion.”
She also made a motion to expand the word-count limit and an alternative motion to file a substitute brief.
The Arkansas Supreme Court is likely to issue a ruling on the temporary restraining order this week.
Pulaski County Circuit Judge Herb Wright has set a hearing on his restraining order for June 20. If the emergency clause is ruled invalid, the LEARNS Act would not be in effect until Aug. 1.
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