City responds to 1% food tax civil rights claim

In a pre-trial response filed Thursday (June 16), Fort Smith city attorney Jerry Canfield asserts that Fort Smith City Clerk Sherri Gard did not “maliciously do or fail to do” anything during the process in which she eventually found insufficient a petition seeking a vote on a 1% prepared food tax.

A trial on collection of the tax is scheduled to begin 9 a.m., Friday (June 17) in the Sebastian County Courts building. Sebastian County Circuit Court Judge Michael Fitzhugh is expected to hear the matter.

A 1% prepared food tax was enacted Feb. 24 by the Fort Smith Board of Directors to resolve the more than 10-year search to plug an annual deficit with convention center operations predicted to occur when $1.8 million in annual state turnback money dried up. The state turnback program — which supported expansion or construction of tourism facilities — ended for Fort Smith in June 2010.

Judge Fitzhugh on May 27 granted an injunction stopping collection of the 1% prepared food tax. The Citizens for Responsible Taxation, represented by Fort Smith attorney Brian Meadors, on May 24 filed the lawsuit asking to stop collection of the tax until a trial could be held in the attempt to force an election on implementation of the tax.

Meadors filed briefs on Wednesday indicating he will lean on Arkansas’ Civil Rights Act in seeking “injunctive and declaratory relief” in the effort to require the city to approve a petition effort seeking an election on the tax. If the court does not force the election, Meadors is asking for 10 days to “fix the alleged issues in the April 25, 2011 letter.” Meadors argues that Gard did not give the petitioners the 10 days after April 25 to gather more signatures.

Canfield’s reply rejects Meadors’ four basic arguments and asks Fitzhugh to end the preliminary injunction and dismiss the Plaintiffs’ actions.

As to seeking 10 days to fix the signatures, Canfield argues that the law does not require or allow a city clerk to “give nor take away the period ‘for correction or amendment.’” He argues — on several points — that it is the duty of the petitioners to know and respond to what the city code and state law requires or allows.

Canfield also notes that Meadors and his clients have also failed to address the problems with petition signatures that were discovered following a hearing during which it was learned that not all petitioners followed in the law in how they gathered signatures.

“(T)he investigation of the City Clerk conducted after April 11, 2011, revealed the fact that many affiants did not observe signatures on the portions of the petition attached to their affidavits,” noted the city’s brief. “This information was confirmed by depositions taken after this litigation was commenced. … Moreover, it is undisputed from a factual basis that in the ten day period following April 25, 2011, the petitioners submitted no information to the City Clerk. … Plaintiffs have failed to tender information to the City Clerk and, thus, have no standing to raise this issue.”

The city’s brief also notes that allegations of Gard being “extraordinarily unhelpful” have nothing to do with determining the legality of whether the petitions were sufficient.

“There is no possible argument that such alleged unhelpfulness prevents the Clerk and the Court from making the appropriate determinations regarding the insufficiency of the petition based on controlling law,” Canfield noted.

On the civil rights claim, Canfield argues that “mere negligence” is not enough to claim a civil rights abuse, adding that case law requires actions that “shocks the conscience.” Canfield writes that Gard did not “maliciously do or fail to do something as it relates to the Plaintiffs’ petition for referendum.”

Canfield requests the civil rights argument be dismissed or set aside for a separate trial.