LITTLE ROCK, Ark. (AP) - Members of Arkansas’ highest court sharply questioned attorneys for the state and a gay rights group Thursday about whether the state’s constitution shields legislators and others from testifying about a law that prevents cities from enacting anti-discrimination measures for LGBT people.
The state Supreme Court heard arguments over a judge’s decision requiring sponsors of the law to testify and produce documents in a lawsuit stemming from Fayetteville’s ordinance banning discrimination based on sexual orientation or gender identity. The high court, which has already ruled Fayetteville’s ordinance violates the law aimed at halting such local protections , is also considering whether to overturn a judge’s ruling that let Fayetteville keep enforcing its measure while the law is being challenged.
Washington County Circuit Judge Doug Martin ruled that Arkansas’ Constitution only protects legislators from testifying about speeches or debates that occur in either chamber of the Legislature. Attorneys for the state say that would eviscerate longstanding protections for lawmakers and would chill the legislative process.
“This is a case about whether courts should conduct inquisitions into the subjective motives of co-equal branches,” Solicitor General Nicholas Bronni told the court.
Members of the court questioned just how far the privilege lawmakers are asserting would go.
“What about conversations between legislators and outsiders, such as lobbyists?” Chief Justice Dan Kemp asked.
Bronni replied that those conversations would also be shielded if they’re gathering information about legislation or potential legislation.
Other members of the court questioned whether questioning lawmakers about statements they’ve made or tweeted about a law would be relevant to any legal challenges.
“When we’re reviewing the validity of a law passed by the Legislature, are we reviewing the text and what they actually voted on or are we reviewing what some individual member out of those 135 people elected over there thought about it or tweeted?” Justice Shawn Womack, a former state legislator, said.
The court did not rule on the constitutionality of Arkansas’ law when it ruled against Fayetteville’s ordinance two years ago.
An attorney for supporters of Fayetteville’s ordinance said the state’s effort to halt any subpoenas was premature and said the high court should give both sides time to negotiate before wading in on what testimony or documents are allowed.
“We don’t know what questions are going to be asked. We don’t know what privileges the state is going to assert,” Garrard Beeney, an attorney for Parents, Families and Friends of Lesbians and Gays, told the court.
The court focused more on the testimony dispute rather than whether Fayetteville could keep enforcing its ordinance. At least one justice vented frustration at hearing arguments over an ordinance the court had already said was illegal.
“Frankly, I really don’t understand why we’re here today or why the trial court exercised jurisdiction,” Justice Rhonda Wood said.
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