FORT SMITH -- The Sebastian County Circuit Court will consider granting the city relief in a lawsuit stemming from the city's removal of a historical flag display and bronze markers from Riverfront Park in April 2020.
A hearing concerning Fort Smith's motion for reconsideration and the court's consideration of pleaded defenses in the case was held Wednesday.
Circuit Judge Gunner DeLay concluded the hearing by saying he would research the law regarding the issues raised by attorney Colby Roe, who represented the city, and inviting Roe to provide further legal precedent on the matter. DeLay noted he probably wouldn't get to this again until next week.
Attorney Joey McCutchen filed a lawsuit June 3 accusing the city of violating the Arkansas State Capitol and Historical Monument Protection Act by removing the Flags Over Fort Smith display and not replacing it or obtaining a waiver within 60 days. The law took effect April 29.
DeLay filed an order Oct. 4 stating the city violated the Monument Protection Act through its "continued refusal" to request a waiver from the Arkansas History Commission to determine the disposition of the display, which the court found to be a "historical monument" as defined by state law. DeLay ordered the city to file a request for such a waiver by Oct. 14 and to comply with the ruling no later than 10 days after it's issued.
DeLay also granted a motion from McCutchen on Oct. 11 to strike the city's second motion for summary judgment. This was done on the basis that the city's motion violates Arkansas Rules of Civil Procedure 56(c)(1), which states in part, "No party shall submit supplemental supporting materials after the time for serving a reply, unless the court orders otherwise."
The "memorandum brief" supporting the city's second motion for summary judgment, which it filed Sept. 30, stated the city submitted a request for a waiver to the Arkansas History Commission on Sept. 29.
The city's reconsideration motion was filed Oct. 12. It requested the court reconsider its order striking the city's aforementioned motion for summary judgment and revise its Oct. 4 order to reflect the city's request for a waiver from the Arkansas History Commission, as well as consider and rule on the city's motion for summary judgment and the city's defenses pleaded in this matter.