LITTLE ROCK — The Arkansas Supreme Court on Thursday rejected a request by a Fort Smith lawyer to stay a circuit judge’s ruling that a portion of the Arkansas Freedom of Information Act is unconstitutional.
Joey McCutchen had asked the state’s highest court to stay an Oct. 5 ruling by Sebastian County Circuit Judge James Cox in McCutchen’s lawsuit alleging that a series of one-on-one conversations between former City Administrator Dennis Kelly and members of the city’s board of directors in May 2009 violated the FOIA.
Cox ruled for the city, finding that the conversations did not constitute “meetings” under the law. He also ruled that the criminal provision of the FOIA was unconstitutional, saying that the open-meetings laws of 31 states lack criminal provisions and therefore criminal penalties are not the least restrictive available means of advancing the goal of open government.
Cox also said the vagueness of the law renders it unconstitutional.
McCutchen has said he will appeal the ruling. Attorney General Dustin McDaniel filed a motion seeking to intervene in the case in Sebastian County Circuit Court and defend the FOIA, but Cox denied the motion.
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On Nov. 2, McCutchen filed a petition asking the state Supreme Court to stay Cox’s ruling or, in the alternative, to expedite the appeals process so it can hear an appeal.
McCutchen argued that the ruling does not adhere to the Supreme Court’s 2004 ruling in the case of David Harris v. Fort Smith, in which the high court said former City Administrator Bill Harding’s polling of city directors by phone violated the FOIA.
McCutchen also argued that Cox’s ruling created uncertainty as to the requirements for open meetings in Fort Smith and that it violated a rule, which he claimed was established in case law, that a court should not rule on the constitutionality of a statute in the absence of a violation of the statute.
The high court denied the motion Thursday without comment. The case is expected to reach the state Supreme Court eventually if Cox does not reconsider his ruling.