FORT SMITH -- The city cannot claim immunity in its defense of a lawsuit filed by a resident alleging that Fort Smith 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 claiming 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 collect recyclable materials that residents set out separately from their trash from September 2014 to June 2017. The city took the recyclables directly to the landfill without informing residents the material was not 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 LaFreniere wrote for the city.
Tabor rejected the city's assertion, writing that the statute was "clearly limited to tort liability."
Writing for Merriott, Fayetteville attorney Monzer Monsour argued that the immunity under statute cited by the city was available only to municipalities in cases of negligence suits that seek 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 is not a party in the lawsuit, and no judgment in the case would have an effect on the state, he wrote.
The city argued that, in some cases, cities act as agents of the state and exercise some sovereignty of the state and that 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.
State Desk on 08/02/2018