Seeing Martha Adcock and A.J. Kelly preen like they’d shown some amount of legal acumen and had personally accomplished something on Tuesday, you would assume that Judge Tim Fox’s ruling, dismissing my AFOIA suit with prejudice, rested on some serious legal analysis. You sure wouldn’t guess that, instead, Augustine had stammered through all of five words and had been the lucky recipient of an unsupportable and tremendously flawed ruling.
Wait…I suppose I should back up and start from a point that will make sense to anyone who wasn’t there, which, by my count, was all but about eight of you, tops.
I showed up to the December 17 hearing planning on making a purely legal argument, because the entirety of the central issue in this FOIA case would be resolved by having Judge Fox rule on whether Arkansas Code Annotated § 25-19-105(d)(2)(B) required the Secretary of State to provide me with a requested public record in a specific, requested format.[foot]Spoiler: It does. This is not disputable by anyone who has done even two minutes of research.[/foot] There were no disputed questions of material fact to be resolved: both sides agreed that the Secretary of State was in possession of a specific record and that they had refused to provide it to me in PDF format. All that remained was a ruling on the application of the statute, which, as the Arkansas Supreme Court has clarified many times, is entirely for the court to decide.
So we get to court just and I take my spot at counsels’ table in Sixth Division. Out comes Judge Fox. With minimal fanfare, he proceeds to swear in possible witnesses, then he looks at me.
“Mr. Campbell, call your first witness.”
“Your honor, there are no witnesses in this case. This is entirely a question of law and statutory interp–“
“Are you resting your case without calling any witnesses?”
“No, your honor. There’s no need for witnesses because this–“
“It’s a yes-or-no question.”
After a pause, Judge Fox looks at Augustine and asks, “does the Defendant have a motion?” Augustine, trying to hide a porcine-fecal grin, “Yes, we move to dismiss.” Judge Fox then granted that motion, dismissed the case with prejudice, and left the bench before I could say anything further or even proffer an argument for appeal.
All cut and dried. Boy, am I embarrassed for not knowing what to do! Clearly, there was nothing wrong with that whole process, right? Right!
And, by “Right!,” I mean “no, that’s completely wrong.”
To quote the brief that I filed along with my motion for new trial on Wednesday (emphasis added, citations omitted):
The AFOIA presumes that all records held by an entity are “public records” and favors disclosure absent an exemption. Furthermore, the AFOIA is always to be interpreted liberally, with a preference toward disclosure. Because the default position is always in favor of disclosure, in an appeal from denial of rights under the AFOIA, the defendant agency in possession of the record bears the burden of establishing that their nondisclosure of the record was in compliance with the AFOIA.
While the motion and brief list a number of other irregularities, abuses of discretion, and failures to follow the law, I really can’t stress the part in bold above strongly enough. This isn’t some argument I’ve made up[foot]Unlike, say, the stupidity that others offered after Martin’s attorneys were disqualified.[/foot] — it’s an explicit statement of law, under both the AFOIA and the federal FOIA. The government always has the burden of proof in these suits.
Which means, as the plaintiff here, you could literally walk into court with no intention of calling witnesses, presenting evidence, or making and opening or closing statement. Even then, the government agency would have to be prepared to present a case, and they absolutely would not be entitled to a directed verdict based on your actions (or inaction, as it were).
Additionally, a motion for directed verdict — which is how Judge Fox treated Augustine’s “we move to dismiss” — must state with specificity the grounds on which the moving party believes it is entitled to a verdict in its favor, and it should only be granted where the evidence presented is wholly insufficient to entitle the non-moving party[foot]In this case, a certain rakishly handsome blogger[/foot] to a verdict in his favor. Where, as here, the presumption in a case is in favor of the non-moving party, the party who bears the burden of proof cannot possibly be entitled to a verdict without putting on their case and overcoming the presumption in favor of the plaintiff.
Given all of this, what happened on Tuesday? How did Judge Fox miss the mark so badly in his ruling? Why were those of us in attendance needlessly subjected to the smarmy grins of Augustine and Martha? I don’t know.
What I do know is the Rule 59 motion for a new trial is now pending. If it is granted, I would assume that the second proceeding will not be nearly so flawed. If it is denied, that’s just extra grounds for the appeal, and this whole thing will be dragged out even longer, as the appellate court is almost certain to reverse based on error in the original ruling or the denial of the Rule 59 motion.
In the meantime, we can all hope that Larry Jegley will convene a grand jury and that Mark Martin will rightfully be removed from office for violating the law once before.