If Eureka Springs decides to file a lawsuit against the state over Act 137, it will likely have to do so without the assistance of the Arkansas Municipal League, Mayor Robert "Butch" Berry said.
"I'm doing some research, and it really looks like the Municipal League is not in the business of suing people, of suing state government," Berry said Friday.
The Eureka Springs City Council voted unanimously Monday to seek legal advice from the Municipal League, which represents Arkansas cities and towns in matters before the state and federal government.
In Monday's meeting, the council decided to ask whether an injunction or some other legal action could be taken so Eureka Springs could continue to enforce its anti-discrimination ordinance after Arkansas Act 137 goes into effect July 22.
Berry called David Schoen, a lawyer with the Municipal League, late Tuesday to ask about the city's options.
Schoen said Wednesday that he didn't have a clear answer for the mayor and hadn't had a chance to research the issue.
"Normally, we're defense only," Schoen said. "We don't supplant the city attorney for all purposes."
Mark Hayes, director of legal services for the Municipal League, said he's been there since 1989 and that the Municipal League hasn't filed a lawsuit during that time.
Through its defense program, the Municipal League might represent Eureka Springs if a lawsuit were filed against the city, Hayes said.
"We'd at least review the case to see if the city is covered," he said. "Then we'd pursue from there.
"We are not in the business of bringing litigation. It's just not what we do. We're not set up for it, and we don't have the resources for it. I've got plenty to do with the lawsuits that are filed against cities. I don't need to go looking for anything else."
To file litigation against the state, Eureka Springs could go through its city attorney or hire a lawyer, Hayes said. Seeking an injunction would require filing litigation, he said.
The Eureka Springs City Council passed Ordinance 2223 on Feb. 9. It's the broadest law of its kind in Arkansas, providing anti-discrimination protection for gay and transgender residents and visitors in areas of employment, housing and public accommodations. It went into effect Feb. 10.
Act 137 -- which passed Feb. 24 and will take effect July 22 -- prevents cities and counties from passing laws that add protected classes that don't already exist in state law.
Berry initially said Act 137 would render Eureka Springs' Ordinance 2223 unenforceable because it adds "sexual identity" and "gender identity" as protected classes. But what exactly Act 137 would do has since become a matter of debate.
Little Rock City Attorney Tom Carpenter wrote in an opinion April 19 that Arkansas law already provides protections for the classes of "sexual orientation" and "gender identity," but not in the state's Civil Rights Act. He cited Arkansas Code Annotated 6-18-514, which regards bullying, and Arkansas Code Annotated 9-4-106, which involves domestic-abuse shelters.
During Monday's meeting, Eureka Springs Alderman James DeVito said the City Council should consider taking legal action because 72 percent of city voters supported the ordinance in a special election May 12.
The official results were 582-231. DeVito said that was a "mandate" from the community.
On Wednesday, DeVito said the council could ask Eureka Springs City Attorney Tim Weaver to seek an injunction.
"Otherwise, we wait in limbo for a complaint to be filed [by a resident] and adjudicated through the state," DeVito said. "I'd rather be proactive about it.
"I just felt, having a 72 percent margin, it would be unfortunate to all those people who cast their votes on this ordinance, six weeks later, to say, 'Sorry, this was an exercise in futility.'"
Some Arkansas cities, including Little Rock, have recently passed anti-discrimination ordinances that protect municipal employees and contractors who do business with the cities. Eureka Springs has had an ordinance providing those protections since 2006.
Fayetteville is considering an ordinance similar to the one in Eureka Springs. The Fayetteville City Council passed such an ordinance last year, but it was repealed in a Dec. 9 special election.
Metro on 06/14/2015