Court upholds ruling against city of Fort Smith on flag removal

Sebastian County Circuit Judge Gunner Delay has once again 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.

The ruling, issued Jan. 28, results from a lawsuit filed last summer stating the city was in violation of the Arkansas State Capitol Historical Protection Act because of its removal of the Flags over Fort Smith display from Riverfront Park, 121 Riverfront Drive. Delay ruled Oct. 4 that the city was in violation of the of the Act.

On Oct. 12, the city filed a Motion to Reconsider, asking the court to vacate its opinion, to set aside its opinion striking the city’ request for summary judgment and rule on its unconstitutional taking argument. 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.

“However, the Defendant’s argument in this regard is ill-founded. If post-judgment action is required by the court to enforce its order that has nothing to do with the finality of the order. The issue of finality only arises if there is a matter left to be decided by the court,” it said.

In his Oct. 4 order, Delay said the city must file a request for waiver from the Arkansas Historical Commission no later than Oct. 14; not dispose of any item that composes the Flags Over Fort Smith Display; comply with the Commission ruling when made; and provide the court with a copy of the Commission’s ruling no later than 10 days after it was issued. City Administrator Carl Geffken said Monday (Jan. 31) the city filed a request for waiver on Sept. 29 with the Arkansas Historic Commission.

“The Arkansas Historic Commission has not completed the rules and procedures at this time, but I understand they are working on them. Our filing of the waiver on Sept. 29 complies with Judge Delay’s order,” Geffken said. “We have received letters from the Arkansas Historic Commission to the letter we sent in May and the September 29 request for waiver. The letter explains that the rules and procedures have not been completed.”

The city is waiting for those rules and procedures to be completed before they will know if any action needs to be taken, he added. 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.

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. 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. In April 2020, the city removed the flags due to age and condition, a letter from Colby Roe of Daily and Woods law firm stated, who represented the city in the matter.

“At some point after the flags’ removal, the brass markers were removed. The display has not existed since the removal,” the letter stated.

In May, McCutchen requested the city oblige the Arkansas State Capitol and Historical Monument Protection Act (Act 1003 of 2021) and replace the flags that flew at Riverfront Park from October 2001 to April 2020.

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

“No flags are flying on the seven flag poles at this time,” Geffken said Monday.