Attorney: Civil rights require 1% food tax election

Pre-trial motions submitted Wednesday (June 15) indicate that Fort Smith attorney Brian Meadors will lean heavy on the Arkansas Civil Rights Act to force a special election on enactment of a 1% prepared food tax in Fort Smith.

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 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 told The City Wire late Wednesday that he decided to pursue the civil rights claim because it carries more weight in seeking “injunctive and declaratory relief” in his 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.”

On April 25, Fort Smith City Clerk found the petition insufficient. Gard’s investigation, including interviews and testimony from several persons who gathered petitions, found that “at least” 1,409 of the 3,363 signatures verified as legal voters “cannot be accepted as verified inasmuch as those affiants have confirmed that there were signatures that they did not personally witness.”

Among other points of law, Meadors will essentially argue Friday that Gard failed to give the petitioners 10 days to amend the signature problem, and that an April 1 letter from Gard to the petitioners failed to mention possible signature problems. Meadors argues that Arkansas law does not allow Gard to reject a petition for reasons not identified in a pre-decision letter providing a list of possible deficiencies.

In a Tuesday hearing, Fitzhugh did grant the city the right to use depositions in the trial instead of calling witnesses, according to this report in the Times Record. The judge also plans to allow a transcript from an April 21 hearing in which Frank Glidewell admitted he did not witness all the signatures on the petitions he submitted. The city has not been able to find Glidewell for the purpose of deposing him about his part in the petition effort.

Glidewell, a former Arkansas Legislator and Sebastian County Judge, said during the April 21 hearing that he personally gathered about 250 signatures at four senior citizens centers in the area. When Glidewell mentioned leaving petition forms at Lewis’ Cafeteria, Fort Smith city attorney Jerry Canfield asked Glidewell if he witnessed the signatures on those petition forms.

“No, I didn’t see 100% of my signatures,” Glidewell responded.

During the Friday trial, Canfield is expected to argue that the petitioners failed on several levels to abide by the letter of the law in collecting signatures and presenting the signatures to the city.