KUTAKROCK Kuta Rock LLP 124 West Capitol Avenue, Suite 2000, tle Rock AR 72201-3740 ‘fice 501.975 3000 Jess Askew It 5019753000 Jessaskew@kutakzock.com October 18, 2018 VIA EMAIL AND FIRST CLASS MAIL Mr. Thomas M. Carpenter Little Rock City Attorney Little Rock City Hall 500 W Markham Street, Suite 310 Little Rock, AR 72201 Re: City of Little Rock v, Valerie Tatum, Candidate for Position 2 on Little Rock Board of Directors Dear Tom: ‘Thank you for taking my call yesterday and forwarding me the information that you have sent to City officials and media outlets, which I received at about 4:30 p.m. yesterday. Both the facts and the law on which the City relies in those materials are incorrect. On behalf of our client Valerie Tatum, a current candidate for Position 2 on the City of Little Rock Board of Directors, I respectfully demand that you immediately cease and desist from efforts to intimidate her and influence the electoral process. ‘As I told you yesterday, Mrs. Tatum resides at 2100 Fair Park, which is in Ward 2. ‘Therefore the City’s factual basis for its actions against her are incorrect. Further, the law on which the City relies does not support the arguments that the City asserts. Because the City’s actions against Mrs. Tatum are not supported by either the facts or the law, the City’s actions are suspect, as explained below. The City’s actions against Mrs. Tatum appear to be an effort to suppress her First Amendment aetivities of campaigning for public office and the rights of voters in Ward 2 to select the best qualified candidate for that seat on the Board of Directors. This effort to influence an election, in which the City’s actions conveniently serve to entrench the interests of an incumbent director who seeks reelection against Mrs. Tatum, are part of the City’s unlawful and ongoing anti-democratic efforts to use City resources to suppress and influence political activities and to protect incumbents from political challenge. These efforts began last spring in the City’s unsuccessful lawsuit against two exploratory committees for the position of Mayor, and they continue in this attack on the candidacy of Mrs. Tatum. Not only is the City's position unfounded as a matter of fact and law, but the City’s activities violate state and federal law designed to protect political petitions and expression, exposing the City and the City Attomey to appropriate relief and liability. I will set forth these exposures below, after reviewing the incorrect factual and legal grounds for the City’s position.KUTAKROCK October 18, 2018 Page 2 ‘The facts are wrong. The City’s position is based on a petition that Mrs. Tatum submitted to the City Clerk on July 27, 2018, That petition included an affidavit of candidacy in which Mrs. Tatum stated her address as 3401 Fair Park and stated that she was a candidate for the Little Rock City Board of Directors, Ward 2, in the election to be held on November 6, 2018. The City Clerk accepted that affidavit and the accompanying petitions. Last Friday, before being alerted to the City’s actions or position, Mrs. Tatum moved to 2100 Fair Park, which is a residence within Ward 2. Accordingly, Mrs. Tatum resides in Ward 2. She does not, as the City’s states, reside at 3401 Fair Park. The law is wrong. When I told you by telephone yesterday that Mrs. Tatum resides at 2100 Fair Park, you stated that the law on which the City relies must mean that residency is established at the time of submitting petitions or being certified as a candidate. That position is simply incorrect. The statute on which the City relies, Ark. Code Ann, § 14-61-109(5), states: “candidates for ward positions shall be residents of the ward they wish to represent.” Mrs. Tatum’s residency within Ward 2 since last Friday undoubtedly satisfies this statute. The statute does not specify the time at which the candidate must reside in the Ward. Certainly, it does not specify that the candidate must reside in the Ward at the time she petitions for or is certified as a candidate for the Ward position. To the extent the City contends otherwise, the City is mistaken as a matter of law and is attempting to impose statutory requirements that do not exist, In doing so, the City loses any presumption that it is acting in good faith or in a situation where the law is not clearly defined. The statute says what it says, and the City cannot try to read into it language that it does not contain in order to take actions to influence the election for this Ward seat. ‘The City is responsible for this situation. As noted, upon receipt of a notarized affidavit from Mrs, Tatum stating that her residence was 3401 Fair Park last July, the City accepted her as ‘a candidate for the Ward 2 position and certified her candidacy for that seat to the Pulaski County Election Commission. This is confirmed by the email you received from the Pulaski County Election Commission this week, which states that Mrs. Tatum’s name was placed on the ballot because “the certification of the city clerk or recorder to the county board of election commissioners binds the county.” Further, “Based on the certification of the city clerk or recorder, the candidate that you identified was placed on the ballot.” ‘Thus it is clear that the City certified Mrs. Tatum as a candidate for the Ward 2 position based on her address at 3401 Fair Park. If the facts or law did not permit that action by the City, then the fault lies with the City, not with Mrs. Tatum, The City cannot certify a candidate in situations like this and then pull the rug out from under the candidate and the voters less than three weeks before the election, As you will appreciate, any effort for injunctive relief will have to overcome equitable defenses of estoppel and unclean hands, among other equitable problems. Further, I understand that the City concedes that 3401 Fair Park was actually a residence within Ward 2 until 2010. It is therefore understandable why the City Clerk or Recorder wouldKUTAKROCK October 18, 2018 Page 3 certify a resident at that address for the Ward 2 position, as in fact occurred. It is likewise understandable that Mrs. Tatum, relying on information from the City, reasonably and in good faith believed that she resided within Ward 2 when she resided at 3401 Fair Park. Mrs. Tatum has no intention to try to represent citizens of a Ward in which she does not reside. The law protects Mrs. Tatum’s eligibility for the Ward position in these circumstances, In the case of State v, Jernigan, 2011 Ark. 487, 385 8.W.3d 776, a candidate for mayor of a city was sued after he won the election on the grounds that he was not a resident of the city. The trial court found that he was indeed a resident and rejected the lawsuit. In affirming that judgment, the Supreme Court clarified the meaning of the term “reside” in determining the qualifications of voters and public officials. 385 S.W.3d at 782. The Supreme Court stated: A better statement of the law is that, in determining the residency of voters and public officials, this court has considered (1) whether a person was physically present in a particular location, or (2) whether a person intended to establish a domicile in a particular location. In other words, if a candidate was unable to establish residency by showing physical presence in the requisite location, this court has allowed a candidate to establish residency by showing domiciliary intent in the requisite location. Id. (footnote omitted). While the Court’s footnote explains the issue of domiciliary intent based on past cases in which a resident of a location was temporarily called away from the residence but intended to remain domiciled at that residence, the Supreme Court’s clarification of “reside” in circumstances of candidate qualification defeats any argument that the City could make against Mrs. Tatum. When she moved to 3401 Fair Park, she reasonably and in good faith believed she lived in Ward 2, and she intended to be a domiciliary of Ward 2. The City accepted her candidacy and placed her ‘name on the ballot for the Ward 2 seat. Now she lives within Ward 2. But even if that not happened, and she had remained at 3401 Fair Park, her domiciliary intent to be a resident of Ward 2 would defeat the City’s legal argument against her candidacy. ‘The City’s actions against Mrs, Tatum violate the Citizen Participation in Government Act. ‘Mrs. Tatum’s petition to run as a candidate for Ward 2 was an exercise of her constitutional rights of free speech and to petition the government, protected by Ark. Code Ann, §§ 16-63-501 ef seq. ‘The City actually accepted and certified her as a candidate for Ward 2 and now, at the last minute, reverses course and seeks to influence the election, to the obvious benefit of the incumbent, by threatening a lawsuit questioning the qualifications that the City has previously certified. The City’s position is not and cannot be that the address set forth in Mrs. Tatum’s petition was false or made with reckless disregard of whether it was false; to the contrary, the City’s position is that the address stated in the petition, 3401 Fair Park, was not within Ward 2. Mrs. Tatum truthfully and