Supreme Court rejects dismissal of meter suit

Tuesday, November 9, 2010 ~ Updated 12:36 PM

LITTLE ROCK -- For the second time in a month, the Arkansas Supreme Court has ruled that Carroll County Circuit Judge Kent Crow overstepped his authority, this time by wrongly dismissing a case sua sponte, a Latin legal term meaning on his own will or motion. The latest ruling, issued Oct. 28, sends a lawsuit filed against several city officials back to Crow's court.

The lawsuit was filed over the city's refusal in August 2009 to schedule a referendum after the city clerk had certified enough valid signatures had been collected to call an election. At issue was Eureka Springs Ordinance 2106, passed as an emergency by the city council, to waive bidding on the purchase of parking meters for city lots.

The city contends its actions were administrative rather than legislative, and therefore not subject to referendum.

After motions, responses and amended complaints were filed in the case, Crow dismissed the lawsuit as without merit on Feb. 12. The plaintiffs appealed.

Defendants in the suit, sued as individuals rather than in their capacities as city officials, are Mayor Dani Joy, aldermen Butch Berry, James DeVito, Beverly Blankenship and Joyce Zeller, and city clerk Mary Jean Sell.

Blankenship and Zeller were both candidates for mayor this year; Blankenship remains a contender in the Nov. 23 runoff, Zeller was knocked out of the race Tuesday. Sell's future as city clerk will also be decided in the runoff. DeVito won his bid for reelection this week; Berry ran unopposed and will serve two more years.

The suit was filed by Pat Matsukis, Karen Lindblad, Rae Hahn, Lany Ballance and Charlie Wurmnest. Lindblad and Hahn are former city aldermen and Ballance, having run unopposed, will join council in January.

In the lawsuit, defendants allege the city violated Arkansas law and bypassed the city's Historic District Commission approval process. They asked Crow's court to issue a declaratory judgment ordering a referendum be held.

Arkansas code states that cities may "upon ordinance" install parking meters, but specifically prohibits such ordinances from being passed under emergency clauses. The code, ACA 14-57-501/502, goes on to specify that these ordinances are subject to referendum.

The Supreme Court's remanding of the suit to Crow's court was based on legal technicalities; the merits of the case were not considered. Because Crow "considered matters of the pleadings" other than those argued in briefs and motions, he was actually issuing a summary judgment rather than a dismissal, the court ruled. Before issuing a summary judgment, the plaintiffs must be given a chance to submit rebuttal testimony and evidence, which they were not.

In deciding Crow was wrong in dismissing the case sua sponte, the court sidestepped ruling on other issues raised by the defendants. "Because we reverse on appellants' first argument, it is unnecessary to address the remaining arguments raised in the appeal," justices stated in a final footnote.

Voters rejected an initiative that would have banned parking meters throughout downtown. Signatures were gathered to put the meter ban issue on the ballot in reaction to Crow's dismissal of the case, but the initiative was not legally connected to referendum and lawsuit, which is now ongoing.

In Parker v. Crow, decided earlier in October, the court ruled Crow overstepped his authority in issuing an order to consolidate the county's two judicial districts into one on his own accord, outside of any adversarial proceedings.

Attorney Tim Parker, who prevailed in Parker v. Crow, is also representing the plaintiffs in the parking meter case. The city officials are represented by Arkansas Municipal League attorney John Wilkerson.

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