Judge pick holding up water suit

A circuit judge has asked the Arkansas Supreme Court to appoint a special judge in a case alleging the Ozark Mountain Regional Public Water Authority illegally denied documents and information to an attorney representing a city in a separate lawsuit.

Marshall attorney Jerry Patterson claims in the lawsuit that the authority denied him information he sought while preparing the city’s defense. He filed court documents requesting answers to questions under the state’s discovery process regarding the authority and validity of the water authority, but the attorneys for the water authority would not answer the questions and objected to Patterson receiving that information.

The water authority had sued Marshall for its failure to make payments to the new water system in response to residents’ complaints that rates were too high. City officials wanted to reconnect to an old well system but lacked approval from state health officials.

Circuit Judge Charles Clawson Jr. ruled in the water authority’s favor Monday, saying Marshall must begin payments to the authority. Clawson declined to decide the issues regarding the lawsuit over documents and information.

Patterson and water authority lawyers had agreed in August for the judge to rule on the documents case, Patterson said.

The water authority spent more than two years and $72 million building a water-treatment facility and 120 miles of pipeline to supply member towns, cities and utilities with water from Bull Shoals Lake. In spring 2009, Marshall was among 18 retail water providers to enter into contracts with the authority to purchase wholesale water. All members were connected by September 2013.

When the water authority did not furnish information through the original lawsuit’s discovery process, Patterson decided also to pursue documents and information through a written Arkansas Freedom of Information Act request he made in March.

“I sought the information from them in writing related to all those questions,” Patterson said. “Their lawyers advised the Ozark Mountain Regional Water Authority not to furnish any information to us, which is a violation of the Arkansas Freedom of Information Act.”

Patterson said he needed the information to bolster his arguments defending Marshall.

“I’m entitled to it,” he said. “The system has denied me my right to information under the Freedom of Information Act. I want it as much now as I did before.”

Chris Lawson, an attorney for the water authority, said the requests for information from Patterson dealt with technicalities related to the formation of the water authority, including how the board was organized.

“The authority objected because those issues weren’t relevant,” Lawson said. “We made those objections in discovery. Mr. Patterson sent an agent to the water authority offices with a Freedom of Information request that was identical to the discovery requests.”

Lawson said Patterson was circumventing the rules of discovery in a circuit court case by using of the Freedom of Information Act. Discovery is only necessary when facts are disputed and must be decided by a judge or jury, but in the lawsuit between Marshall and the water authority there were no disputed facts that were relevant, he said.

“The use of discovery in this case would not change the outcome of the legal issues,” Lawson said. “What we objected to was the improper use of the Freedom of Information Act in order to gain a competitive edge in a civil lawsuit.”

But Patterson said the information is relevant because he questions the legitimacy of the water authority and its ability to enforce contracts signed with a city.

He said he has twice sought a ruling on the water authority’s request to dismiss his case seeking documents and asked for a hearing to be set if the motion is denied.

Donna Gay, staff attorney for the Administrative Office of the Courts, said an order signed by the chief justice must precede the appointment of a judge.

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