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To court again

by Mike Masterson | January 22, 2023 at 1:43 a.m.

It's good to see my favorite "bulldog" attorney, Joey McCutchen of Fort Smith, has remained busy during my adventures into cancer surgery.

None of us citizens can have too many vigilant watchdog barristers speaking for the public interest, ya know. And between continuing Freedom of Information Act battles with Arkansas school districts and public offices, I'm surprised he has time for other pressing issues.

This time, McCutchen has sued the city of Little Rock on behalf of James Clark III of Little Rock concerning the Capital Guards monument. And it appears the city has been inexplicably dragging its feet on resolving the matter.

I understand this topic and kind of lawsuit can sound like pretty dry, uninteresting stuff to the public. But truth is, the issue is more significant than most might realize.

"The case is very important," said McCutchen. "Enforcement of the State Capitol and [Historical] Monument Protection Act will send a strong message, one way or the other, to vandals and woke city officials alike who attempt to remove Arkansas' historical monuments.

"Hopefully, Arkansas will not allow our history to be canceled, revised, sanitized or erased. We should learn from our history and celebrate we have come a long way from evils like slavery."

The Capital Guard's monument base was vandalized in 2020, and removed from its location in May 2021. "The city had to pay the state $45,000 for illegally removing the monument. The written agreement between the city and state's historical monuments program said the monument would be put back up in an 'appropriate location' by Dec. 31, 2022.

"Further, the act dictates a waiver must be sought. Little Rock has totally thumbed its nose at the waiver process."

McCutchen's suit says that is a violation of the Historical Monument Protection Act, as well as the settlement agreement reached between the city and the Arkansas Department of Parks, Heritage and Tourism's Historical Preservation Program.

The agreement called for the city to seek input from the preservation program to have the monument re-installed at an appropriate location before the deadline unless other mutual agreements are reached in writing.

Yet, instead of activity, McCutchen says, there have been what sounds like crickets chirping at a warm summer's midnight. Neither has the monument been installed nor is there any agreement to extend the time.

"Should the court fail to enforce the act, it would send the message that Arkansas really is ambivalent about protecting her history, whether good, bad or ugly," McCutchen explained. "Such lack of protection leaves us standing on a dangerous and slippery slope. Next, vandals and woke city officials will boldly remove the statues of slave-owning founders like Thomas Jefferson and George Washington from public view and deposit them in a dark, musty warehouse in downtown Little Rock.

"After all, that kind of history, as judged by modern-day standards, is 'hurtful and hateful' history. Or maybe the next target will be the 10 Commandments Statue at the state Capitol."

McCutchen said, "No mayor or city is above the law. It's past time that the city of Little Rock follows the Monument Protection Act and honors its agreement with the monument preservation program."

McCutchen said he's been working with the city in an attempt to gain compliance over terms of the contract and the act. However, he said, the city hasn't acted to re-install the monument.

The Clark case is McCutchen's second lawsuit in Arkansas attempting to enforce the Historical Monument Protection Act. The first case involved the "Flags over Fort Smith" display.

He sued Fort Smith for removing the flags that had long flown over the city.

The flags were originally taken down from display because they'd become tattered and torn. "The city administrator said they couldn't find the Confederate First National Flag. I think they intended all along to remove them and leave them down. There were also historical markers with the history of each flag, which are now being stored per the order of Judge DeLay."

"The Arkansas History Commission rightly denied the city's request to remove the historical flag display. However, Sebastian County Circuit Judge Gunner DeLay refused to enforce the law and order the city to put the flag display back up, stating the law didn't give him authority to order the city to replace the display."

However, the law apparently was clear he did have such authority. "Sen. Mark Johnson intends to amend the law to make it crystal clear that judges can, and must, enforce the law," said McCutchen.

Now go out into the world and treat everyone you meet exactly like you want them to treat you.


Mike Masterson is a longtime Arkansas journalist, was editor of three Arkansas dailies and headed the master's journalism program at Ohio State University. Email him at mmasterson@arkansasonline.com.

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