FORT SMITH -- The city cannot claim immunity in its defense of a lawsuit brought by a resident complaining the city wrongly collected fees to recycle material that ended up in the landfill, a Sebastian County circuit judge has ruled.
"The court can find nothing in the jurisprudence or legislative history that would allow a defense of statutory or constitutional sovereign immunity under the facts of this case," Judge Stephen Tabor wrote in a one-page order Monday.
Tabor made the ruling in response to a motion by attorneys for Jennifer Merriott, who filed suit against the city last year charging illegal exaction and unjust enrichment. The unjust enrichment issue is being treated as a class action.
The lawsuit accuses the city of using city sanitation department recycling trucks to haul off recycling material residents separately set out for collection from September 2014 to June 2017 and dumping it in the landfill without informing residents the material wasn't being recycled.
Attorneys for Merriott have said the city spent as much as $1 million to maintain the subterfuge by using recycling trucks when regular trash collection trucks could have been used.
Attorneys for the city filed an amended answer to Merriott's complaint in May, claiming Arkansas Code Annotated 21-9-301(a) granted municipalities immunity from liability and suits for damages even though the city admits the title of the statute reads "Tort liability--immunity declared."
"Where a statute's language is unambiguous, courts will not look to the title of the statute to determine legislative intent," city attorney Michael A. LaFreniere wrote for the city.
Tabor rejected the city's assertion, writing the statute was "clearly limited to tort liability."
Writing for Merriott, Fayetteville attorney Monzer Monsour, argued the immunity under statute cited by the city was available only to municipalities in cases of negligence suits seeking damages. He pointed out Merriott's suit had nothing to do with negligence or torts.
The suit seeks "equitable disgorgement of fees misspent for services knowingly and intentionally never provided," Monsour wrote.
Monsour also argued against the city claiming sovereign immunity under Article 5 of the Arkansas Constitution, which says the state "shall never be made a defendant in any of her courts." The state isn't a party in the lawsuit and no judgment in the case would have an effect on the state, he wrote.
The city argued, in some cases, cities act as agents of the state and exercises some sovereignty of the state and Fort Smith is entitled to sovereign immunity.
Tabor ruled sovereign immunity under Article 5 of the state constitution was inapplicable to Merriott's case because no state interest was implicated.
Monday's ruling was the second setback for the city in the lawsuit. In May, Tabor rejected a motion by the city to dismiss the lawsuit which argued there was no illegal exaction because the term referred to taxes while sanitation customers paid fees to the city for sanitation services.
Tabor ruled then there was an issue for a jury as to whether the fees were reasonable and fair given that sanitation customers paid for services they didn't receive.
NW News on 08/01/2018