FAYETTEVILLE — The city attorney wants the City Council to appeal to the U.S. Supreme Court a ruling issued Thursday saying the city must pay legal fees of a quarry company the city’s been tangling with since 2009.
After a five-month wait, the 8th U.S. Circuit Court of Appeals upheld the ruling of a lower court, writing the city is responsible for the Rogers Group’s $75,000 in attorney’s fees.
A lawsuit between the city and company never went to trial because the council overturned its own ordinance. The lawsuit was dismissed as a result.
Thursday’s ruling is based on an allegation the city violated the Rogers Group’s civil right of due process.
Kit Williams, city attorney, said the appeals court’s decision means any group suing the city could attach a civil rights claim to the lawsuit in hopes of getting attorney’s fees even if the case is dismissed.
“This is a very far-reaching decision if it goes unchallenged,” Williams said. “It runs the risk of increasing litigation against cities.”
Fayetteville’s 2009 ordinance sought to regulate blasting, dust and truck traffic at the quarry, which at its closest point is about a half-mile outside the city. Rogers Group argued the city didn’t have authority to regulate its activities.
After a series of judgments and appeals in 2010, the council backed off to prevent further litigation and in expectation of an unfavorable ruling from U.S. District Judge Jimm Larry Hendren.
The repealing of the ordinance led Hendren to dismiss the case.
While Hendren called Rogers Group the “prevailing party” in the case, he didn’t rule for or against the group’s civil rights claim. The civil rights claim is the only claim for which the group could receive attorneys’ fees under the law.
Hendren did rule Rogers Group was entitled to attorneys’ fees under its civil rights allegation. The 8th Circuit’s judges Duane Benton, Bobby E. Shepherd and Lavenski R. Smith sided with Hendren on Thursday.
“The Rogers Group is of course happy with the ruling,” said Alan Wooten, Fayetteville attorney representing the company. “They’re just sad they had to go through this process.”
The group will seek an additional $20,000 in legal fees from the appeal process on top of the $75,000 already awarded, Wooten said.
The city has an insurance policy with a $50,000 deductible that will cover the Rogers Groups fees from the lawsuit, Williams said.
Williams plans to address the case Tuesday at the council’s meeting.
If the council wants to continue litigation, Williams said he’s uncertain whether he would first appeal to the entire 8th Circuit Court of Appeals or directly to the U.S. Supreme Court.
The Supreme Court decides which cases it wants to hear, and in a memo Williams wrote Thursday to the council and Mayor Lioneld Jordan, Williams acknowledged it was a “long shot” the high court would hear the case.
Williams said he has never had a case before he felt was worth taking to the Supreme Court, but Thursday’s ruling went against a 2001 ruling by the U.S. Supreme Court that plaintiffs are entitled to attorney’s fees based only on allegations civil rights were violated.
Stephen M. Sheppard, associate dean for research and faculty development at the University of Arkansas School of Law, said Hendren has a reputation for methodical and exacting rulings.
He said it’s unlikely the Supreme Court will hear the case unless the justices find inconsistent rulings in the other circuits.
“I think Kit has some room to maneuver and that’s why this was a worthy appeal, but four judges have reviewed this and all four said this is the way to go,” Sheppard said.