FORT SMITH -- A judge has scheduled a meeting for this afternoon to respond to a request from the Sebastian County Election Commission on how to treat Greenwood annexation ballot questions he voided earlier this month.
Sebastian County Prosecuting Attorney Dan Shue wrote a letter for the commission to Circuit Judge J. Michael Fitzhugh dated Wednesday asking if his Oct. 9 order included all eight annexation questions on the city's general election ballot or only the two for which the property owners filed the court challenge that led to Fitzhugh's ruling.
Shue also asked Fitzhugh to rule on whether any votes cast on the annexation questions should be reported and certified by the Election Commission.
The hearing is scheduled before Fitzhugh for 1:30 p.m. today in Fort Smith.
"There are a lot of little things we do not feel comfortable with and want to get clarification on it," Election Commission Chairman Lee Webb said Thursday.
Attorneys for the Shadow Lake Property Owners Association, which occupies one of the eight parcels up for annexation, and Shirley Walters, who owns another, filed suit against Greenwood on Sept. 30 and Oct. 3 respectively, challenging the annexation ordinances passed Aug. 12 by the Greenwood City Council.
Neither the county's election commission nor the clerk's office were named in the lawsuit.
"Because we were not included as parties to the litigation by either of the litigants, there are several salient facts of which we would like to make the court aware," Shue wrote in his letter to Fitzhugh.
Fitzhugh ruled in a hearing Oct. 8 that because the ordinances came about as the result of a violation of the state Freedom of Information Act, the ordinances "shall not be included on the November 4, 2014, ballot."
Shue pointed out in his letter that before Fitzhugh made the ruling, the ballots with the annexation ordinances included had already been printed. He wrote they were delivered from the printer to the county on Sept. 19, and absentee ballots were mailed out that day. Also, early voting for the Nov. 4 general election began Oct. 20.
Shue also wrote that while eight annexation ordinances, one for each of the parcels the city proposes to annex, appear on the ballot, six do not appear to be covered by his Oct. 9 written order since owners of only two parcels challenged the city.
The letter continues that Sebastian County votes are tabulated electronically and the results are streamed live. There is not sufficient time to change the programming to prevent votes cast on the annexation questions from being reported to the public.
"If it is the court's intention that the results (vote count) not be reported to the public, the only option at this point would be to not live stream any results," Shue wrote.
Fitzhugh ruled in the Oct. 8 hearing that Greenwood City Attorney Mike Hamby violated the state Freedom of Information Act after Hamby testified that he visited individually with each of the city's council members about how the annexation ordinance the council was considering should be constructed.
The council passed two of a required three readings of an ordinance that had all the eight parcels up for annexation listed on one question for the election ballot.
But after seeking advice from the Arkansas Municipal League and talking with each council member, Hamby testified, he redrafted the legislation making each parcel an individual ordinance to appear by itself on the ballot.
The council passed those eight ordinances in one reading on Aug. 12. Six weeks later, the owners of two of those parcels filed their challenges in circuit court.
Greenwood appealed Fitzhugh's ruling to the Arkansas Supreme Court on Oct. 17 and requested the court to stay Fitzhugh's ruling and to hold an expedited review because of the proximity of the election date. The court denied the requests, although the appeal of Fitzhugh's ruling is still before the court.
NW News on 10/31/2014