Flag display issue has cost the city of Fort Smith more than $18,000

The city of Fort Smith has spent roughly $18,000 defending the choice to remove a flag display from the city’s Riverfront Park. The city removed seven flags that made up the Flags over Fort Smith display in April 2020 because of age and condition, according to court documents.

The display represented the flags flown over Fort Smith since 1699, including The French Fleur-De-Lis flag; the Spanish Cross of Lorraine flag; the French tricolor flag; the U.S. flag with 15 stars; the U.S. flag with 20 stars; the U.S. flag with 24 stars; and the Confederate States of America flag depicting a circle of seven stars with red and white stripes. Brass markers identifying each flag were on the base of the flag poles.

Fort Smith attorney Joey McCutchen filed suit June 3 in Sebastian County Circuit Court seeking a declaratory judgment that the city violated the Arkansas State Capitol and Historical Monument Protection Act when it removed the historical flag display, which was erected in October 2001.

Since June 2021, Fort Smith has paid $18,283 to Daily & Woods, the Fort Smith law firm that represents the city in legal matters, for legal fees regarding the defense of that lawsuit, according to invoices from the law firm to the city. It has paid $2.40 in miscellaneous fees associated with the lawsuit.

The Arkansas State Capitol and Historical Monument Protection Act prohibits the removal, relocation, alteration or renaming of a memorial that is located on public property. In May, McCutchen requested the city oblige the Arkansas State Capitol and Historical Monument Protection Act and replace the flags that flew at Riverfront Park from October 2001 to April 2020. Sebastian County Circuit Judge Gunner Delay ruled that the city of Fort Smith must get a waiver from the Arkansas Historic Commission about the removal of the Flags over Fort Smith display at the Riverfront Park twice. The latest ruling was issued Jan. 28. Delay ruled Oct. 4 that the city was in violation of Act 1003 of 2021.

City Administrator Carl Geffken has said flags representing the U.S. Army, Navy, Air Force, Marine Corps, Coast Guard and perhaps Space Force would fly next to the United States flag at the park.

On Oct. 12, the city filed a Motion to Reconsider, asking the court to vacate its opinion. A hearing on that was held Jan. 19. Delay ruled Jan. 28 he would stick with his original ruling.
The city contended the Oct. 4 order was not a final order because there were still actions required of them after it was entered, the order stated.

The city is waiting for those rules and procedures from the Arkansas Historic Commission to be completed before they will know if any action needs to be taken. The city still has in its possession the plaques from the display, he said. Administration has replaced the old and tattered flags that were removed in April 2020.