Lawsuit Filed

The lawsuit against Eureka Springs Mayor Dani Joy, to seat Pat Matsukis on the Eureka Springs City Council, has been filed in the Carroll County Circuit Court.

The plaintiffs have asked the court for a temporary restraining order and a preliminary injunction to:

• (1) stop the Mayor from refusing to seat elected official, Pat Matsukis, on the Eureka Springs City Council; and

• (2) require the Mayor to seat Matsukis for the rest of the term.

The case is not yet at trial, and plaintiffs’ arguments are at this point only for the restraining order and injunctive relief, as stated in the Motion submitted to the Court:

WHEREFORE the Plaintiffs pray that this Court enter a temporary restraining order and a preliminary injunction requiring Defendant, her officers, agents, servants, employees, attorneys, and persons in active concert or participation to recognize and admit Matsukis to the office of alderman for Ward 2, position 1,… and restraining the Defendant from refusing to seat or recognize Matsukis….

Background

Joy had vetoed the election of Matsukis, who was to replace Charlotte Buchanan. Buchanan had resigned from the Council in November of 2007.

The suit was filed by by Attorney Charles Kester on behalf of plaintiffs Pat Matsukis, Kathy Harrison, Rae Hahn, Eric Scheunemann, and Ernst Schrader. As members of Council, Harrison, Hahn and Scheunemann had voted to elect Matsukis to replace Buchanan. Schrader is a resident of the ward Matsukis would represent.

AG Opinion Debated

Much of the discussion over a mayoral veto centers on legal precedent, with the Mayor and the City Attorney saying that Attorney General opinion 2004-270 allows for a veto.

Plaintiffs counter saying that “Attorney General opinions have no precedential value.” AG opinions “merely present an opinion that possesses whatever persuasive force its reasoning warrants, and this particular opinion is simply not persuasive.”

The opinion is not persuasive because the AG opinion relied on by Joy is based on two “inapposite cases that did not involve an alderman,” plaintiffs say. One involved the appointment of someone to a municipal board, not a City Council; while the other dealt with a mayor’s claim for salary.

Moreover, plaintiffs argue, Hadzima v. Parsons, decided July 13, 1990, is the only Arkansas case to address the issue of a mayoral veto, which the above 2004 AG opinion, in a “fundamental and obvious error,” ignored.

Hadzima disallowed a mayoral veto of a Council election.

This in itself shows that plaintiffs will prevail, plaintiffs argue, or “at the very least have created sufficient question to warrant [the] preliminary injunctive relief” they ask for.

Hadzima

In Hadzima v. Parsons the Court found that a mayor “had no right to participate in the election of a replacement city council member and no right to veto an election,” according to the Matsukis plaintiffs.

In making its determination, the Court addressed one of the major issues that has come up for Eureka Springs, whether or not Mayor Joy’s veto was “an ordinance, resolution or order.”

According to Joy and the City Attorney, the Mayor has the right to veto the election because it is basically an “ordinance, resolution or order.”

The Court in Hadzima found the opposite, that “the actions taken by the council members… is not an ordinance, resolution, or order but is a mandatory election called for by statute.”

The Court goes on to say that:

it is the intent of the legislature that 14-44-104 be a mandatory election and it is up to the aldermen to determine the qualifications of those members who they elected….

Addressing another issue that has come up in Eureka Spring, the Court further said that :

the act of electing a member of the Board of Aldermen is an administrative act and not a legislative act and is not subject to veto by the Mayor.

Plaintiffs argue that election of Matsukis falls under the same proscription as noted in Hadzima.

Argument by Intent

The plaintiffs argue that “it is clear that a mayoral veto does not extend to the election of a replacement alderman to fill a vacancy,” arguing that the legislature would have added the word “mayor” to the statute on Council elections if that had been the intent.

That the legislature did not do so is “powerful evidence” that selection of a replacement alderman is not subject to mayoral veto.

Plaintiffs also argue that other statutes are to be read “in harmony” with this interpretation, pointing to the statute saying that aldermen– not the mayor and alderman– “shall be the judges of the election returns and of the qualifications of their own members.”

Argument Based on Separation of Powers

Plaintiffs argue that the Mayor is excluded from exercising a veto because of the policy underlying the process, the separation of powers.

“It makes no sense in our system of checks and balances,” plaintiffs say, “to give the Mayor, who as chief executive of the city may have interests that conflict with the aldermen, a veto over this process.”

Just as the executive officers (like the President and governors) have no veto power over the selection of members of Congress, the same is true on a local scale. The executive has no role in the selection of legislative members.

Plaintiffs argue that “any contrary reading would be antithetical to the scheme of divided governance (checks and balances) created by the Arkansas constitution.”

Fees Asked

Plaintiffs ask the Court to award “reasonable attorney fees in this cause,” as well costs they have incurred.

Mayor Joy had not responded to our request for her comments on the case as of the time of our publication.