Court files order against Fort Smith in flag display lawsuit

The empty flagpoles at Riverfront Park in Fort Smith in June following the removal of the seven historic flags that have flown over the city.
(File Photo/NWA Democrat-Gazette)
The empty flagpoles at Riverfront Park in Fort Smith in June following the removal of the seven historic flags that have flown over the city. (File Photo/NWA Democrat-Gazette)

FORT SMITH -- The Sebastian County Circuit Court filed another order against the city in a lawsuit stemming from the removal of a historical flag display and bronze markers from Riverfront Park last year.

Circuit Judge Gunner DeLay granted a motion from attorney Joey McCutchen to strike the city's second motion for summary judgment Monday. This was done on the basis the city's motion violates Arkansas Rules of Civil Procedure 56(c)(1), which states in part, "No party shall submit supplemental supporting materials after the time for serving a reply, unless the court orders otherwise."

"The city chose not to follow the directives of ARCP 56 by petitioning the court to consider additional evidence," DeLay's order stated. "Instead, the city attempted to enter facts into the record by filing a second motion for summary judgment."

The "memorandum brief" supporting the city's second motion for summary judgment, which it filed Sept. 30, stated the city submitted a request to the Arkansas History Commission in accordance with the Arkansas State Capitol and Historical Monument Protection Act. This was done Sept. 29 to obtain a waiver of the act's requirements, which would allow the disposition of the Flags Over Fort Smith display. The city removed the display in April 2020.

David Ware, director of the Arkansas State Archives, emailed a response Sept. 29, according to the brief. Ware wrote he would forward the city's request to the chair of the history commission. He also noted the rules and procedures implementing the monument protection act had yet to be drafted or approved.

DeLay filed an order Oct. 4 stating the city violated the act through its "continued refusal" to request a waiver from the commission to determine the disposition of the display. The court found the display to be a "historical monument" as defined by state law and still exists despite not being on display.

DeLay ordered the city to file a request for such a waiver by Thursday, and to comply with the ruling no later than 10 days after it's issued.

DeLay's order Monday stated the city filed a second motion for summary judgment to try to make its claim it filed a waiver request a part of the record. This happened after legal counsel for both the city and McCutchen signed off on "stipulated facts" that would constitute the record. This included the city had neither obtained a waiver from the history commission to remove the display, nor had it petitioned for a waiver of any requirements of the monument protection act.

In addition, neither side requested the court reopen the record to submit additional facts, according to the order.

McCutchen filed a lawsuit June 3 in which he accused the city of violating the monument protection act by removing the display and not replacing it or obtaining a waiver within 60 days. The law took effect April 29.

The flags that made up the display included the French Fleur-Di-Lis flag, the Spanish Cross of Lorraine flag, the French Tri-Color Flag, the U.S. 15-Star Flag, the U.S. 20-Star Flag, the U.S. 24-Star Flag and the Confederate States of America Flag. They were erected in 2001 to represent the flags that have flown over the city since 1699.

The flags initially were removed because they were tattered and needed to be replaced, a June 2020 email exchange between City Administrator Carl Geffken, Deputy City Administrator Jeff Dingman and Parks Director Doug Reinert stated.

Geffken said via email Sept. 4, 2020, he and other officials discussed changing the flags after the death of George Floyd in May 2020. He also said his decision to remove the flags would maintain "a piece of history from potential harm."

Colby Roe, legal counsel for the city, wrote in the city's Sept. 29 waiver request to Ware that Geffken determined the seven flags wouldn't be reinstalled in June 2020 due to difficulty in procuring replacements for all of them, although the city eventually received them the following fall. The city instead intends to replace the flags with those of the six branches of the military, in addition to the U.S. flag.

The city needs this waiver to install the flags at Riverfront Park and "maintain flexibility as to the flags it seeks to display" there, according to Roe. The city proposed donating the flags, brass markers and plaque that made up the display before to the Fort Smith Museum of History.

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Arkansas State Capitol and Historical Monument Protection Act

“A governmental entity shall request a waiver from the Arkansas History Commission for a historical monument that previously has been removed but is still in the possession of a governmental entity to determine the disposition of the historical monument under subdivision (f)(1) of this section.”

Source: Arkansas Code Annotated 22-3-2104(e)

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