Ability to Sue Government Is Seen at Risk

Two recent Arkansas Supreme Court rulings have eroded the citizens’ ability to sue the state government over illegal uses of taxpayer money, plaintiffs attorneys say.

The Arkansas Constitution allows citizens to bring suit against the government for “illegal exaction” when tax funds have been used illegally or for unauthorized purposes.

“There’s been a lot of recent illegal exaction decisions, and that’s a good thing,” said Justin Zachary, an attorney with Denton & Zachary of Little Rock. “But it just seems that the trend is to limit the rights of the citizen to bring it instead of protecting the right that was already there.

Justin Zachary

In a recent interview at his office, Zachary said the right to sue to assure government accountability is the law, but it will lose force if lawyers are reluctant to take the plaintiffs’ cases.

In December, the state Supreme Court ruled that the Denton & Zachary firm wasn’t entitled to an award of $18 million in attorneys’ fees in a case that challenged the illegal use of taxpayer money by the state Department of Transportation.

And last month, the state’s high court tossed a $745,000 award against the city of Fort Smith in an illegal exaction case brought by municipal taxpayers. In 2017, the citizens sued the city for misusing sanitation fees after it was discovered that the city was dumping all recyclables in a landfill, court records show. The plaintiffs said the sanitation fee was an illegal exaction because it included recycling services, but no recycling was being done.

In a unanimous decision, the state Supreme Court found that there was no evidence of unauthorized use of the fee.

“The fee wasn’t collected for sanitation services and then spent for nonsanitation purposes. Nor were the residents charged a separate fee specifically designated for recycling their recyclables, which was spent on other services,” Associate Justice Rhonda Wood wrote in the decision.

“Fort Smith charged a unified fee that Fort Smith could, and did, spend within the sanitation department,” the ruling said.

Attorneys Monzer Mansour of Fayetteville and W. Whitfield Hyman of the King Law Group of Fort Smith spent $54,000 of their own money representing the plaintiffs in the nearly six-year-old case.

Hyman said almost $19,000 was spent sending letters to tell people about the suit. Another $20,000 went to an accountant for a breakdown of where the taxpayer  money went, and why it was wrong to spend it that way.

“And without even getting reimbursed for that, … that’s discouraging, and it’s going to discourage government accountability,” Hyman said.

“It’s definitely going to make me think twice before I pursue any other illegal exaction” cases.

Zachary said that he and his law partner Joe Denton “have a heart for this stuff … but you have to be able to put food on the table.”

The ruling on the attorneys’ fees will discourage attorneys from taking those cases, said University of Arkansas at Little Rock William H. Bowen School of Law Professor Robert Steinbuch.  

“It’s great to have this potential avenue for direct citizen recourse for governmental wrongdoing, and that’s what it is,” Steinbuch said. 

But it doesn’t mean anything, he said, if it becomes unfeasible to bring suit. “So it becomes a mechanism largely, not entirely, but largely in theory, not reality,” Steinbuch said. 

“And the less checks you have on government, the more you will have government abuses,”   he said. “There is no greater truism than that.” 

Zachary said if the average Arkansan can’t recoup attorneys fees, then the only people who can afford to bring illegal exactions lawsuits will be the rich and powerful, and corporations.

The other constitutional rights — the right to bear arms, the right to freedom of speech, the right to a jury trial — “are extremely important,” Zachary said. “So is this one.”