Fort Smith set to appeal two rulings in recycling suit

FORT SMITH — A hearing Thursday in Sebastian County Circuit Court to discuss a trial date for a resident’s recycling lawsuit against the city ended before it started when the city’s attorney announced plans to appeal two rulings by the judge in the case. “I guess that moots the need for a scheduling conference,” Circuit Judge Stephen Tabor said when City Attorney Jerry Canfield told him about the city’s plans. Lawyers for the city and for Jennifer Merriott appeared Thursday morning before Tabor to discuss when to schedule a jury trial on Merriott’s class action lawsuit against the city that has been pending since June 2017. Canfield said the city intends to appeal Tabor’s Dec. 18 ruling that the city could not compel Merriott to provide individual notice to all the class members. Canfield said after court that the city had 30 days from Tabor’s ruling, down to about two weeks from Thursday, to give the notice of appeal. An appeal could take several months. The city also will try to file some type of appeal of Tabor’s May 8 ruling in which he denied the city’s motion for summary judgment, Canfield said. In the summary judgment, the city argued there were no facts in dispute to put before a jury and that the judge should rule in the city’s favor as a matter of law. He told Tabor on Thursday that he believed the court had no jurisdiction over the city’s exercise of its police power — the city’s authority to impose regulations for the public health. Canfield referred to a passage in Tabor’s ruling in which he wrote that, in his opinion, a jury could find the city sanitation fee could have been lower if the city didn’t purchase new recycling trucks and receptacles. Canfield cited the 1956 Arkansas Supreme Court case in Springfield v. City of Little Rock in which the court ruled “violation of police power duties subjects municipalities only to political consequences and not civil liability.” Representing the class of city sanitation customers, Merriott claimed in the lawsuit the city was guilty of illegal exaction and unjust enrichment when it dumped recyclable material into the city’s landfill from September 2014 to June 2017. The lawsuit claimed that the city hid the redirection of recyclables to the landfill from sanitation customers by continuing to use recycling trucks to pick up the recyclables customers separated

from their trash and placed in separate containers. Merriott contends the city wasted sanitation fees and enriched itself using the recycling trucks and receptacles to carry out the deception and did not deliver the service sanitation for which customers were paying. The city has disputed the illegal-exaction claim because it refers to illegally collecting taxes where the city collected fees from sanitation customers. Also, the city is arguing there is no unjust enrichment because customers are charged a single sanitation fee and there is no separate charge for recycling. Recycling is voluntary in Fort Smith.