Thoughts & Observations About Campbell v. Martin

As Secretary of State Mark Martin continues to waste tax dollars by appealing yesterday’s disqualification of his hired attorneys, rather than simply letting his in-house attorneys or the Attorney General’s office handle something as straightforward as a FOIA lawsuit, I figured now would be a good time to check in with some background and insight about the case that you might not otherwise know.

For example, a few days after I filed the lawsuit, I received a letter from Chad Pekron that included a flash drive with five Word .docs [1]. At this point, all that remained unfulfilled from my FOIA request were two .pdfs, which Chad claimed could not be provided in electronic format because they needed to be redacted, and two Word .docs that had allegedly been deleted. Chad offered to print the .pdfs and provide them to me.[2] Since I had already previously rejected that offer from Roland, I rejected it again, but offered a compromise:

In exchange for (1) a letter, signed and dated by Secretary of State Mark Martin in his official capacity, drafted by me, stating that I was entitled to the Word documents and that his office had no substantial justification for withholding them, and (2) a check in the amount of $191.71 to cover my filing fees and postage to this point, I will agree to dismiss the remaining claims, including the issue of redaction of PDFs, so as to save the State of Arkansas any further expenditure of time and resources on this matter.

That’s right. For less than the cost of one hour of Chad Pekron’s services, plus a little humility, Martin could have ended this case before it ever really began and well before it got to the point where the Governor is equating him with Martha Shoffner. Yet, for whatever reason (*cough*hubris*cough*), that offer was rejected.

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Instead, the whole thing has dragged on and — because Martin is planning that Quixotic appeal — will continue to drag on for a while. How much is he willing to spend on this? Your guess is as good as mine, but yesterday’s letter from AJ Kelly to the court reporter might give you some idea:

I request an expedited delivery of the transcript, as soon as possible. The Secretary of State will pay the normal costs of preparing such a transcript in an expedited manner.

Sure, go ahead and pay extra for unnecessarily expediting the transcript of a 13-minute hearing. It’s not your money, after all.

Other notes about the case:

1. When Roland says, “throughout the years there has been a history and a precedent of constitutional officers, state agencies, boards, and commissions using outside counsel,” he is lying, at least vis-a-vis constitutional officers. Every Secretary of State prior to Martin, save for one time when Kelly Bryant used outside counsel that was properly hired under Ark. Code Ann. 25-16-711 in 1975, has used the AG’s office or in-house counsel.

2. Governor Beebe’s (and Matt DeCample’s) comments on this whole outcome have been great.  I especially liked, “Acting insulted does not change Judge Fox’s ruling that Secretary Martin’s actions violated state law.”

3. I won’t waste your brain cells by actually linking to it, but some twit up in Washington County wrote a post about how I (and the media in general, and Judge Fox) were wrong because Martin’s hiring of counsel was totally legal under Ark. Code Ann. 25-16-711.  A couple problems with this asinine theory: (1) Martin’s attorneys conceded in their response to the motion to disqualify that 25-16-711 had nothing to do with this case.  (2) 25-16-711 only applies where the AG and a constitutional officer disagree over the constitutionality of a law that affects the constitutional officers duties, and it is limited in scope to allow the officer to hire outside counsel to litigate the constitutionality question.  I bet, if you aren’t some jackwagon from Washington County, it won’t take you long to see the difference between that scenario and a FOIA lawsuit.  (Not to mention, there was no disagreement here, since Martin never asked the AG for help or questioned the constitutionality of the FOIA.)

UPDATE: Noted legal scholar Nic Horton at the Arkansas Project fired up his lawnmower of uninformed blogging and cut a path for this same argument to reach more like-minded folks (read: idiots). He’s even taken it up a notch and suggested that it is somehow a “scandal” for Dustin McDaniel. At no point in inane rambling does he actually raise a decent argument that should change anyone’s understanding of anything. As noted above, even Martin’s own attorneys conceded that 25-16-711 had nothing to do with anything. More importantly, any reliance on the infamous AHTD memo demonstrates nothing so much as the fact that the person making the argument doesn’t understand certain constitutional differences between the AHTD and the Secretary of State.

So…yeah, maybe Nic Horton should stick to things he knows and leave the legal reasoning to people who actually understand how reading and interpreting laws works. Or he can just keep spouting off and being mocked for his ignorance. Either way. [/update]

4. I mentioned the remaining .pdf files above.  Their argument for why they can’t be provided in electronic form?  Because there is something that needs to be redacted out of the file, and redacting a .pdf would be “creating a new file,” which they aren’t required to do under the FOIA.  Unfortunately, the FOIA explicitly contemplates that files may be requested in any format in which they are readily available or may be readily converted using existing software.  So…yeah.  That argument is absurd.  But that’s the one they’re hanging their hats on to keep this lawsuit going.  Just remember that, and the fact that it could have been ended weeks ago for less than $200, next time you hear them talking about this whole thing.

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[1] Which was amazing, considering Roland had previously claimed that these .docs had been deleted.

[2] Free of charge!

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7 COMMENTS

  1. I have it on good authority that the SoS does not “keep up with blogs”. So would you please spell out for the rest of us what the possible end game may be? He will certainly appeal as long as possible, which means going to the AR Supreme Court (ever been there?) Or will there be a prosecution? I doubt a supermajority of the ledge would remove him but it would be close. If he’s convicted, he would not be able to run for reelection, right?

    • Well, since it’s an interlocutory appeal, it probably won’t drag out near like a normal appeal would. But it starts in the Supreme Court, rather than the Ct of Appeals, simply because that’s what the rule requires.

      As for prosecution and stuff, since he’s the first person to ever actually be found in violation of the statute, your guess is as good as mine. The statute is clear on the punishment (fine, removal from office), but says nothing about the procedure to get there. The most likely route would be a charge filed by the prosecutor and, if convicted, automatic removal from office (sketchy) or removal by joint address from the Governor (less sketchy, but still odd in this circumstance).

  2. It seems to me that if something justifiably needs to be redacted from a pdf file that the simplest way to do it would be to print it and redact it like any paper document.

    Heck, I work with pdfs regularly and while there may be a way to redact stuff from a pdf, that would seem to be requiring the creation of a new document.

    As a non-expert the only way I could think of to do it would be to print it, redact it, and then re-scan it into a pdf.

    • Print/redact/scan would have been totally fine. They refused to do that.

      The FOIA requires that documents be provided “in any medium in which the record is readily available or in any format to which it is readily convertible with the custodian’s existing software.” So converting a record into something using existing software isn’t “creating” a record within the meaning of the statute. When the FOIA speaks of creating records, it means, if you request some sort of record that they don’t keep in any form, they don’t have to create it. Like when I requested records regarding state-car usage and Alice Stewart told me that wasn’t something they tracked.

  3. I also meant to say that if part of the FOIA requires something to be redacted and another part says that they aren’t required to create a new document and another part requires stuff be provided in the original format that there is a real clash of requirements here.

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