Northwest Arkansas Democrat-Gazette
Hiland’s exit puts Damascus patrol ban up in air
CONWAY — When the 20th Judicial Circuit’s prosecutor ordered sanctions against the city of Damascus because of a speed trap, he said his order would remain in place through the completion of his term in office.
So when Cody Hiland left that office and was sworn as U.S. attorney for the Eastern District of Arkansas last week, questions were raised about the status of the order, which already was being challenged in court.
“I think it’s up in the air at this juncture,” said Beau Wilcox, city attorney for the tiny town that lies in Faulkner and Van Buren counties. “I believe it gives Damascus a very, very strong argument that the sanctions are no longer in effect. But I can also understand that whoever succeeds Cody as an interim chief prosecutor may have a very different view of that.”
That person is Luke Ferguson, who was sworn in Wednesday after being appointed by Gov. Asa Hutchinson. Ferguson was attending a conference and unavailable for comment late last week.
Wilcox said he doesn’t plan any action “at the moment” relating to Hiland’s departure.
“I don’t want to just bombard” the new prosecutor immediately, Wilcox said. “I think there’s a time and a place for that and an approach to take” and will do so “with appropriateness [and] a measured attitude. But I do think something like that would be forthcoming quickly.”
Damascus, which has about 385 residents, is home to a stretch of U.S. 65, a major traffic route between Conway and Branson, Clinton and Greers Ferry Lake.
In February, Hiland found that Damascus had “abused its police power” and violated the state’s speed-trap law. In May, Hiland ordered that the town’s police officers quit patrolling along affected highways, including U.S. 65.
Wilcox has filed a lawsuit in Faulkner County Circuit Court in Conway on the city’s behalf challenging the state law’s constitutionality.
Hiland’s order did not specify a date of expiration. Rather, it said in part, “The decision to cease patrolling all affected highways within the jurisdictional limits of the city is in place through the completion of the current prosecutor’s term of office.” Had he served his full term, that would have been at the end of 2018.
In a Sept. 29 court document responding to an attorney general motion to dismiss the lawsuit, Wilcox called the state law a “flimsy and inarticulate piece of legislation.” He said it “has a chilling effect on the lawful exercise of police powers to ensure motorist safety on state highways.”
In February, Wilcox said Damascus generally had three or four full-time police officers, including the chief, and usually had two or three part-time officers.
The chief ’s job has since been eliminated, Wilcox said. The city now has only two officers, both part-time employees, according to City Hall.
Wilcox also wrote in the court document that the calculations leading to Hiland’s speed-trap order “were done improperly and that certain [city] revenues were included wrongfully.”
Wilcox further questioned the state’s argument that the prosecuting attorney, rather than the city attorney, should initiate a speed-trap inquiry, and review the results and act on that inquiry.
He noted that the state had argued that for the city attorney to “‘make such findings against the city itself would be an absurdity and could not have been the intent of the legislature.’”
Wilcox contended, however, that Arkansas Annotated Code 12-8-403 charges the prosecuting attorney of the judicial district with making the inquiry and that Arkansas Annotated Code 12-8-404 gives the judgment and sanctioning power to the “‘prosecuting attorney of the affected municipality.’”
Wilcox said the city’s “conjectural argument” is that having two prosecutors involved in the process would provide impartiality.
“With one prosecuting attorney accepting and reviewing the findings of the Arkansas State Police, which is vested with the authority to gather the necessary data for the inquiry, and another attorney charged with rendering a determination and levying sanctions, there is actually a greater degree of fairness and constitutional merit to this argument,” he wrote.
As the state would have it, Wilcox said the 20th Judicial Circuit’s prosecutor acted “as judge, jury, and executioner” in the Damascus case.
The Arkansas State Police and the Faulkner County and Van Buren County sheriffs’ offices now alternate responsibility for patrolling the Damascus area.