No Usurpation, No Illegal Activity, No Criminal Acts, One Suit against the Mayor

Those opposed to seating Alderwoman-elect Pat Matsukis on the Eureka Springs City Council have tried to use the legal system against Matsukis and her supporters. The opposition includes City officials and residents. They have not up to this point in time prevailed.

The background story is that Matsukis was duly and properly elected by a majority of Council as a replacement for Charlotte Buchanan, who had resigned. Mayor Dani Joy vetoed her election. Believing the veto illegal, Matsukis was sworn in by Mayor Richard DeWeese of Green Forest. Matsukis showed up at a Council meeting to claim her seat. She promptly left the table when asked to do so by the Mayor.

Mayor Asks about Usurpation

On January 17, 2008, Mayor Joy inquired about a usurpation action, according to emails we received through an FOIA to Municipal League attorney David Schoen. Joy was referred to the prosecuting attorney, who has up to this time taken no action.

Under Wisconsin law, action may be taken to prevent a person from exercising office to which he/she is not entitled:

16-118-105. (b) (1) Whenever a person usurps an office or franchise to which he or she is not entitled by law, an action may be instituted against him or her, either by the state or the party entitled to the office or franchise, to prevent the usurper from exercising the office or franchise.

Morris Pate Gets into the Action

As a result of our FOIA, we learned that on February 26, 2008, Assistant Chief of Police for the Eureka Springs Police Department asked Mark Hayes, Legal Department Supervisor at the Municipal League, if a non-participating Council member who says the meetings are illegal can continue to participate in future meetings, make motions or otherwise participate.

If a city council member/alderman is in session and they continuously deem current/future meetings illegal due to the mayor vetoeing their partial decision on a council member replacement issue at a previous meeting, do they have the right to continue to participate in current/future meetings by constantly restating they will not or cannot vote on any issue on the agenda? Do they have the right to make comments about those issues or even make motions about any current/future issues they have previously claimed to be illegal?
PS-These issues were not addressed by the city attorney who was in attendance when the council meeting was in session!
Thank You,
Morris R. Pate

Although no Council member is named in Pate’s email, Ald. Eric Scheunemann has been known to say that the meetings are illegal, and has declined to vote because of it. He is known to be one of the Mayor’s strongest opponents on the seating of Matsukis, and on other issues.

Hayes indicated that he does not think there was anything “illegal:”

From what I can glean from your email I do not believe any such action is “illegal.” As I understand it a validly sitting council member is vocalizing his/her discontentment with the Mayor during each city council meeting but still voting on matters before the council. The chief complaint being that the council is meeting illegally due to the mayors veto a few weeks back. While I agree with your implication that such actions appear contradictory, or at least somewhat at odds with each other, I do not see them to be unlawful.

Residents Try Two Different Approaches and Fail

Two different requests seeking information on actions deemed inappropriate were sent to Prosecuting Attorney Tony Rogers, whose office we contacted when we heard mayoral supporters were getting signatures against three Council members who had left a Council meeting in protest.

We were referred to H.G. Foster who had taken over the case when Rogers recused, Foster said, because he knew so many people in the area.

The second case referred to Foster from Rogers’ office involved Matsukis, Ald. Kathy Harrison and/or Mayor DeWeese of Green Forest. DeWeese had mistakenly sworn Matsukis in, relying on inaccurate information provided by Carroll County Clerk of Courts Shirley Doss, according to Harrison. Harrison had driven Matsukis to Green Forest for the swearing in.

Foster found that the Council members who left in protest had not committed a criminal act under Arkansas law.

He also found that no criminal act had been committed by Matsukis, Harrison or DeWeese in swearing Matsukis in.

It’s not over ‘Til its Over

The civil courts, as opposed to the criminal courts, are open to suits plaintiffs choose to bring so long as there is a controversy. There is the possibility that residents or City officials could continue to use the civil courts to get at the issues noted above– or anything else that might come up. Their only concern would be that their suits not be considered frivolous.

The burden of proof is less in a civil case than in a criminal case, where the standard is proof beyond a reasonable doubt. Damages, primarily financial, can also be awarded in civil cases. In criminal cases, which are taken in the name of the state, damages are not awarded to individuals.

Other proposed action is a protest rally in favor of the Mayor, we understand, to be held in front of Prosecuting Attorney Tony Rogers’ office at election time to try to force his hand and sway his opinion.

In the Meantime

The Mayor faces a law suit for not allowing Matsukis to take a place at the Council table. The suit asks the court for a temporary restraining order and an injunction saying the Mayor must seat Matsukis.

Plaintiffs are Pat Matsukis, Kathy Harrison, Rae Hahn, Eric Scheunemann and Ernst Schrader. Harrison, Hahn and Scheunemann are on Council and voted to seat Matsukis. Schrader is a resident who lives in the district Matsukis was elected to represent.

The case has been filed by plaintiffs’ attorney Charles Kester of Fayetteville. It is our understanding that the Mayor is being represented by Judge Ralph Ohm.

Plaintiffs have asked for a jury trial.