IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS SIXTH DIVISION

PLAINTIFF’S THIRD AMENDED COMPLAINT INCLUDING A FREEDOM OF INFORMATION ACT CLAIM¹ (Expedited hearing sought pursuant to A.C.A. § 25-19-107)

Comes now Jim Parsons, Plaintiff, by and through his attorney Oscar Stilley, and for his third amended complaint states:

GENERAL ALLEGATIONS

1. Plaintiff represents those classes of taxpayers who have been, continue to be, and may in the future be adversely affected by the actions and omissions which are the subject of this complaint.  Defendant has acted or failed to act in a manner which is generally applicable to all of those who are represented, and the claims of the representative party is typical of the claims of the class. The class is so numerous that joinder of all members of the class is impracticable.

1

See Page 11 for the Freedom of Information Act claim.

There are questions of law and fact common to the class, and the representative plaintiff herein will fairly and adequately protect the interests of the entire class.  The relief sought is common and beneficial to the class.

2. This taxpayers lawsuit, to prevent an illegal exaction and to recover funds illegally paid, is in its nature a class action.

3. Plaintiff is and was at all times relevant to this cause a citizen and resident of the State of Arkansas.  Plaintiff has paid and will continue to pay taxes to the State of Arkansas.

4. Defendant Mike Huckabee is a resident of Pulaski County, Arkansas.

5. The acts and omissions complained of herein occurred in large part in Pulaski County, Arkansas.

6. This lawsuit in addition to taxpayer claims also includes a claim under the Arkansas Freedom of Information Act, A.C.A. § 25-19-101.

7. Defendant Mike Huckabee was until the end of 2006 governor of the State of Arkansas.

8. Defendants Independence and Franklin Counties are both counties that received money from the governor’s emergency fund.  The Plaintiff seeks a refund from these counties of the money received from the governor’s emergency fund as outlined herein.

9. Defendants Independence and Franklin Counties are both counties that received money from the governor’s emergency fund.  The Plaintiff seeks a refund from these counties of the money received from the governor’s emergency fund as outlined herein.

10. The City of Little Rock is a municipal corporation organized under the law of the state of Arkansas, and received money from the governor’s emergency fund.  The Plaintiff seeks a refund from the City of Little Rock of the money received from the governor’s emergency fund as

outlined herein.

11. The Mexican Consulate of Little Rock, Arkansas, is believed to be a corporate or other entity subject to suing and being sued.  The Plaintiff seeks a refund from the Mexican Consulate of the City of Little Rock of the money received from the governor’s emergency fund as outlined herein, by and through the City of Little Rock.  This claim is made jointly and severally against the City of Little Rock and the aforementioned Mexican Consulate. 

COUNT 1 - USING PUBLIC FUNDS FOR PURPOSES NOT AUTHORIZED BY LAW - DECLARATORY JUDGMENT - DISQUALIFICATION TO HOLD OFFICE

12. Plaintiff restates and realleges all other parts of the complaint to the extent not prohibited by law or ethical rule.

13. Ark. Const. Article 16 § 3 provides:

Making profit out of or misusing public funds - Penalty.

The making of profit out of public moneys, or using the same for any purpose not authorized by law, by any officer of the State or member or officer of the General Assembly, shall be punishable as may be provided by law; but part of such punishment shall be disqualification to hold office in this State for a period of five years.

14. This complaint sets forth reasons and facts demonstrating that Mike Huckabee used certain public moneys for purposes not authorized by law or contrary to law, and thus constituting illegal exactions.

15. Plaintiff requests that as part of the relief Mike Huckabee be enjoined, prohibited, and forbidden from holding any office in this state for a period of five years.

16. The expenditures complained of herein arise from certain appropriation acts including Act 131 of 2005 and Act 221 of 2003.  By way of example Act 131 of 2005 is reproduced herein

as follows:

State of Arkansas 85th General Assembly Regular Session, 2005 SENATE BILL 242

By: Joint Budget Committee

For An Act To Be Entitled

  AN ACT TO MAKE AN APPROPRIATION OF FUNDS TO ALLEVIATE

  CONDITIONS ARISING IN PUBLIC EMERGENCIES FOR THE BIENNIAL

  PERIOD ENDING JUNE 30, 2007; AND FOR OTHER PURPOSES.

Subtitle

  AN ACT FOR THE OFFICE OF THE GOVERNOR - EMERGENCY PROCLAMATION APPROPRIATION FOR THE 2005-2007 BIENNIUM.

  BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:

  SECTION 1. APPROPRIATION - GOVERNOR'S EMERGENCY PROCLAMATION. There is hereby appropriated, to the Office of the Governor, to be payable from the Miscellaneous Revolving Fund, for the purpose provided for by Arkansas Code 19-2-404 for the biennial period ending June 30, 2007, the following:

ITEM  FISCAL YEARS NO.  2005-2006 2006-2007

(01) GOVERNOR'S EMERGENCY PROCLAMATION  $500,000 $500,000

  SECTION 2. COMPLIANCE WITH OTHER LAWS. Disbursement of funds authorized by this act shall be limited to the appropriation for such agency and funds made available by law for the support of such appropriations; and the restrictions of the State Procurement Law, the General Accounting and Budgetary Procedures Law, the Revenue Stabilization Law, the Regular Salary Procedures and Restrictions Act, or their successors, and other fiscal control laws of this State, where applicable, and regulations promulgated by the Department of Finance and Administration, as authorized by law, shall be strictly complied with in disbursement of said funds.

  SECTION 3. LEGISLATIVE INTENT. It is the intent of the General Assembly that any funds disbursed under the authority of the appropriations contained in this act shall be in compliance with the stated reasons for which this act was adopted, as evidenced by the Agency Requests, Executive Recommendations and Legislative Recommendations contained in the budget manuals prepared by the Department of Finance and

Administration, letters, or summarized oral testimony in the official minutes of the Arkansas Legislative Council or Joint Budget Committee which relate to its passage and adoption.

  SECTION 4. EMERGENCY CLAUSE. It is found and determined by the General Assembly, that the Constitution of the State of Arkansas prohibits the appropriation of funds for more than a two (2) year period; that the effectiveness of this Act on July 1, 2005 is essential to the operation of the agency for which the appropriations in this Act are provided, and that in the event of an extension of the Regular Session, the delay in the effective date of this Act beyond July 1, 2005 could work irreparable harm upon the proper administration and provision of essential governmental programs. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after July 1, 2005.

17. The expenditures are set forth on a sheet which gives a brief description of the claims, the identifier code which sets forth the year and the request number, the date, the amount requested, the amount which would remain if the request were approved, and the number of legislators signing off on the request.  For example, EM07-1 is the first request for the fiscal year 2007, which sought and obtained $15,000 to subsidize equipment for the Independence County Sheriff’s department.  This document is attached hereto as Exhibit “1" and incorporated as if set forth herein word for word.

18. Plaintiff claims entitlement to a declaratory judgment stating that all the expenditures complained of herein are in fact unlawful and improper. 

19. Plaintiff claims entitlement upon  the facts shown to a declaratory judgment that these expenditures of state tax dollars constitute illegal exactions, and Mike Huckabee should be and furthermore is by such order prohibited from holding any office in this state for a period of 5 years from the date of the order.

COUNT 2 - USING PUBLIC FUNDS WITHOUT AN EMERGENCY AND WITHOUT

THE APPROVAL OF A MAJORITY OF THE PROPER LEGISLATIVE OFFICERS

FOR EXPENSE REIMBURSEMENTS

20. Plaintiff restates and realleges all other parts of the complaint to the extent not prohibited by law or ethical rule.

21. Arkansas Code Annotated Section  19-2-404 provides in pertinent part:

 19-2-404. Emergency expenditures.

  (a)(1) In the event of riots or threatened riots; sabotage, public insurrection, or threatened insurrection; storm, flood, famine, or other public calamity which jeopardizes the public peace, health, and safety of citizens of Arkansas that calls for immediate action, the Governor is delegated and authorized by the General Assembly to declare an emergency to exist and to issue a proclamation declaring an emergency to exist.

                         Other requests for utilization of this appropriation shall be submitted for prior review by the Governor to a Governor's Emergency Fund Review Committee, meeting in committee, composed of the chairmen and vice chairmen of the Legislative Joint Auditing Committee and Legislative Council.

                         A proclamation or request, as approved by the Governor or the Governor's Emergency Fund Review Committee, shall include:

                        The nature and location of the emergency;

                         The name of the department or agency which, in the Governor's opinion, is best able to alleviate or obviate the conditions which have arisen or are about to arise because of the emergency; and

                         The amount of funds required for the emergency, such amount or so much thereof as shall have been set forth in each proclamation to be extended upon vouchers drawn by the disbursing agent of the department or agency named in the proclamation.

22. Governor Mike Huckabee spent the money however he chose without regard to whether the Governor's Emergency Fund Review Committee approved the expenditure or not.

23. The requirement of review should be construed and ruled to require at least a majority approval by those lawmakers charged with making the review.

24. The following expenditures received less than a majority vote the Governor's Emergency

Fund Review Committee: EM07-6, EM07-9, EM07-16, EM07-17, EM07-18, EM07-19, EM07-20, EM07-21, EM04-1, EM04-2, EM04-7, EM04-8, EM04-10, EM04-11, EM04-12, EM04-14, and EM04-15.

25. Those proposals not receiving a majority vote are and should be deemed illegal exactions, and Mike Huckabee should be ordered to repay same out of his own estate.  The recipients of said funds should likewise be held jointly and severally liable for the repayment of the illegally paid out funds.

26. The following expenditures were not such as could rationally be deemed an emergency: EM07-1, EM07-2, EM07-3, EM07-5, EM07-6, EM07-8, EM07-9, EM07-11, EM07-12, EM07-13, EM07-14, EM07-15, EM07-16, EM07-17, EM07-18, EM07-19, EM07-20, EM07-21, EM06-1, EM06-2, EM06-3, EM06-4, EM06-5, EM06-6, EM06-7, EM06-8, EM06-9, EM06-10, EM06-11, EM06-12, EM06-13, EM06-14, EM06-15, EM06-16, EM06-17, EM06-18, EM05-1, EM05-2, EM05-3, EM05-4, EM05-5, EM05-6, EM05-7, EM05-8, EM05-9, EM05-10, EM05-11, EM05-12, EM05-14, EM05-15, EM05-16, EM05-17, 2004, EM04-1, EM04-2, EM04-3, EM04-4, EM04-5, EM04-6, EM04-7, EM04-8, EM04-9, EM04-10, EM04-11, EM04-12, EM04-13, EM04-14, EM04-15, EM04-16, EM04-17, EM04-18.

27. For the facts shown, these expenditures of state tax dollars constitute illegal exactions, and Mike Huckabee should be ordered to repay same out of his own estate, and prohibited from holding any office in this state for a period of 5 years.

COUNT 3 - USING PUBLIC FUNDS CONTRARY TO THE TERMS OF THE APPROPRIATION, WITHOUT A SPECIFIC APPROPRIATION, AND WITHOUT A DISTINCTLY STATED PURPOSE

28. Plaintiff restates and realleges all other parts of the complaint to the extent not prohibited

by law or ethical rule.

29.       Arkansas Constitution Article 5 Section 29 states:

 Appropriations.

  No money shall be drawn from the treasury except in pursuance of specific appropriation made by law, the purpose of which shall be distinctly stated in the bill, and the maximum amount which may be drawn shall be specified in dollars and cents; and no appropriations shall be for a longer period than two years.

30.       Arkansas Constitution Article 5 Section 30 states:

 30. General and special appropriations.

  The general appropriation bill shall embrace nothing but appropriations for the ordinary expense of the executive, legislative and judicial departments of the State; all other appropriations shall be made by separate bills, each embracing but one subject.

31.       Article 16, § 12 of the Arkansas Constitution provides as follows: § 12. Disbursement of funds - Appropriation required.

  No money shall be paid out of the treasury until the same shall have been appropriated by law, and then only in accordance with said appropriation.

32. Defendant Mike Huckabee treated the emergency appropriations not as an appropriation for emergencies, or for expenditures in conformity with the appropriation and applicable laws, but rather as a “slush fund” of sorts, which he could use upon his whims for political purposes with our without the agreement of those delegated to review and approve expenditures from the fund.

33. Plaintiff states and alleges that all the expenditures challenged in paragraph 16 as not constituting a bona fide emergency are also violative of the provisions set forth in this count, and

thus illegal exactions.

34. Mike Huckabee is shown to have generally waited until the appropriation was about to expire to spend most of the money.  Furthermore, just before he left office he spent all the money on pet projects.  This demonstrates that the fund was not a true emergency fund, but rather one used to evade the constitutional and statutory restrictions on profligate and wasteful spending. This furthermore demonstrates that the actual purpose of much of the spending was for the political gain of Mike Huckabee. 

35. For the facts shown, these expenditures of state tax dollars constitute illegal exactions, and Mike Huckabee should be ordered to repay same out of his own estate, and prohibited from holding any office in this state for a period of 5 years.

COUNT 4 - USING PUBLIC FUNDS FOR LOCAL AND SPECIAL PROJECTS

36. Plaintiff restates and realleges all other parts of the complaint to the extent not prohibited by law or ethical rule.

37. Amendment 14 to the Arkansas Constitution provides as follows:

 AMENDMENT 14. LOCAL ACTS  Local or special acts prohibited - Rights to repeal acts by legislature.  The General Assembly shall not pass any local or special act. This amendment shall not

prohibit the repeal of local or special acts.

38. The following expenditures were for matters that could not reasonably or logically be called state business, but rather amount to local or special projects, which the state is forbidden to fund from state tax dollars: EM07-1, EM07-2, EM07-5, EM07-6, EM07-8, EM07-9, EM07-10, EM07-11, EM07-12, EM07-13, EM07-14, EM07-15, EM07-16, EM07-17, EM07-18, EM07-19,

EM07-20, EM06-1, EM06-2, EM06-3, EM06-4, EM06-5, EM06-6, EM06-7, EM06-8, EM06-9, EM06-10, EM06-11, EM06-12, EM06-13, EM06-14, EM06-15, EM06-16, EM06-17, EM05-1, EM05-2, EM05-3, EM05-4, EM05-5, EM05-6, EM05-7, EM05-8, EM05-9, EM05-10, EM05-12, EM05-14, EM05-16, EM05-17, 2004, EM04-1, EM04-2, EM04-3,  EM04-8, EM04-9, EM04-10, EM04-13, EM04-18.

39. The challenged appropriation is a plain and unmistakable attempt to do indirectly that which the legislature is prohibited from doing directly.

40. For the facts shown, these expenditures of state tax dollars constitute illegal exactions, and Mike Huckabee should be ordered to repay same out of his own estate, and prohibited from holding any office in this state for a period of 5 years.