Circuit Judge Chip Welch today refused to dismiss a taxpayers’ lawsuit challenging Attorney General Leslie Rutledge’s spending of public money on ads that promote her image and on out-of-state lawsuits.

Here’s his order.

Rutledge contends she’s immune from lawsuits and subject only to voters and in some spending decisions, the General Assembly.

The lawsuit alleges an illegal expenditure of tax money, an argument that can surmount a defense of immunity from lawsuits for public officials under the Arkansas Constitution.

Rutledge also argued those suing her didn’t have standing. Welch said taxpayers had standing. He wrote:

Defendant argues that taxpayers have no standing to contest her expenditures of funds. This Court disagrees. The Court FINDS Plaintiffs have SUFFICIENTLY PLEADED STANDING through alleging the use of public, state and taxpayer funds; some established by the legislature, some from monies collected by the Attorney General’s offtce through settlements, and money judgments collected in favor of the State, in cases wherein the State was a party,but all of which involve the use of staff, and resources of the Attorney General of Arkansas, as funded by taxpayers

As for immunity, Welch wrote:

The Court FINDS that facts alleged in the Amended Complaint, viewed in the light most favorable to Plaintiffs, as required under the Rule, support the determination 1) that the past and pending actions of the Attorney General are ultra vires or without the authority of law, and (2) that the Attomey General is about to (and continuing to) act in bad faith, arbitrarily, capriciously, and in a wantonly injurious manner, which would justify injunctive and declaratory relief. Accordingly, the Motion to Dismiss on grounds of Sovereign Immunity is DENIED.

2. Plaintiff has sufficiently alleged “Acts in bad faith, arbitrarily, capriciously pursued, in a wantonly injurious manner”, which would further justify overcoming the defense of Qualified Immunity. See factual allegations discussed elsewhere in this order. For example, Plaintiffs cite, among other acts, Defendant’s invocation of the imprimatur of the State of Arkansas in defense of the National Rifle Association in New York, and the U.S. Bankruptcy Court for the Northern District of Texas. This is an exercise of power under the ‘color of law’, where the Attorney General is alleged to have intentionally acted in her capacity as a State actor for her own gain. The Court also FINDS that facts alleged in the Amended Complaint, viewed in the light most favorable to Plaintiffs, overcome Qualified Immunity at this stage. The Motion to Dismiss on Qualified Immunity Grounds is DENIED.

The plaintiffs have argued that Rutledge’s wide-ranging legal activities, such as defending the NRA, are meant to enhance her politically. She is a candidate for governor next year. She recently resumed using her voice and image in public service announcements, a practice she’d stopped last year after criticism arose to some $2 million spending on ads featuring her. Her latest ads, about $1 million worth, urge people to get vaccinated.

Welch elaborated on the argument that Rutledge had improperly spent state money on lawsuits.

The Motion to Dismiss the Complaint’s prayer for relief for an “illegal exaction” as to Defendant’s involvement in filing amicus briefs concerning the 2020 election, and as to Defendant’s “consumer” TV Commercials is a close question as to the application of Sovereign Immunity. Defendant’s action in these discrete cases concemed matters of arguable public interest (to Arkansans). However, the discrete acts, as distinguished from others (See: the NRA Bankruptcy, supra), are of evidentiary value when viewed in the light of the totality of additional specific actions alleged elsewhere in the Amended Complaint. A pattern or course of conduct, (See, inter a/ia: discussion regarding NRA Bankruptcy, supra) of using the public persona of the Attomey General as an adjunct to a gubernatorial campaign (again, considering, as the Court must, ‘well-pleaded facts’) emerges supporting the conclusion that the Motion to Dismiss should fail at this stage. For example, Plaintiffs also question Defendant’s invocation of the imprimatur of the State of Arkansas acting in defense of the National Rifle Association in New York, and the U.S. Bankruptcy Court for the Northern District of Texas. This is a more troubling exercise of power under the ‘color of law’, where the Attorney General allegedly acted in her capacity as a State actor for the benefit of a citizen and “person” , in a private bankruptcy, in a foreign state, allegedly for political gain.

Hard case. Perhaps hard to win under the law. But let’s be real. Rutledge has spent millions in public money to enhance her chances of being elected governor.  And given the opportunity, her Republican opponent, Sarah Huckabee Sanders, would likely do the same.

The lawsuit now lingers to a degree in the coming election campaign. The primary is in March. No trial date has been set. I’m seeking comments from lawyers and thoughts on whether there’s a chance for Rutledge to appeal this ruling ahead of trial.

UPDATE: A statement on behalf of Rutledge:

The opinion issued by the trial court fails to appropriately consider the actual legal responsibilities Attorney General Leslie Rutledge has to educate and advocate on behalf of Arkansas consumers. The Attorney General plans to immediately appeal this erroneous decision.”