News Flash: Water Wars in Hot Springs, Second Chapter IN THE CIRCUIT COURT OF GARLAND COUNTY, ARKANSAS GEORGE PRITCHETT, CLIFF JACKSON, & ROBERT DRIGGERS PLAINTIFFS v. No. cv-14-638 IV LANCE SPICER, in his official capacity as CITY CLERK of the City of Hot Springs and GARLAND COUNTY ELECTION COMMISSION DEFENDANTS AMENDED COMPLAINT Come now Plaintiffs George Pritchett, individually and on behalf of Hot Springs FIRST Committee, Cliff Jackson, individually, Pro Se, and Robert Driggers, individually and on behalf of Garland Good Government Group, by and through their attorneys, Cliff Jackson, Pro Se, and Charles “Skip” Davidson on behalf of all other Plaintiffs, and for their Amended Complaint state: 1-27. Plaintiffs hereby adopt and incorporate herein as if set forth paragraph for paragraph, word for word, pages 1-11 up to the prayer for relief, specifically all words, claims, facts and arguments articulated in paragraphs 1 through 27 of the original Complaint. AMENDMENT 7 DIRECT, “PURE DEMOCRACY” LIBERALLY INTERPRETED 28. Plaintiffs reiterate and restate specifically the content of paragraph 26 as set forth in the original terms so as to revise, extend, and clarify said contentions with language quoted specifically from Amendment 7. Paragraph 26 says, “Article 5, Section 1 of the Arkansas Constitution contains liberalizing language making it unlawful to invalidate petitions, thus thwarting the will of the people to gain ballot access, without reason or justification, or on pretext of some highly technical and restrictive interpretation as done here, or to unwarrantably interfere with the freedom of the people in procuring and presenting petitions. Thus, any ambiguity in language should be resolved in favor of allowing ballot access.” 29. By way of revision, clarification, and extension of Plaintiffs’ position set forth in paragraph 26, Amendment 7 in stating that “the initiative—powers of the people are hereby further reserved to the legal voters of each municipality—“ immediately prohibits that power being unduly restricted by the municipalities by stating “but no local legislation shall be enacted contrary to the Constitution or any general law of the State, and any general law shall have the effect of repealing any legislation which is in conflict therewith.” Therefore, clearly the Constitution sets forth that in a conflict between the initiative power reserved to and inherent in the people and hindering municipal laws, policies, practices, and restrictive interpretations seeking to unwarrantedly contain or abridge the people’s right to ballot access, the people win, and the cities lose, particularly where local legislation, policies, practices, or interpretations conflict with and are more restrictive of the people’s rights than state legislation and the Constitution. 30. Amendment 7 then expressly confers upon the General Assembly (using mandatory “shall be enacted” language) the mandate to enact “general laws” regulating the initiative and referendum process for counties, but, significantly, it omits giving such powers to the General Assembly for municipalities. Instead, the language then grants permissive power as already explicitly reserved and restricted against governmental abuse to the municipalities themselves (“Municipalities may provide for the exercise of the initiative and referendum---“). Hot Springs has sought to exercise that permissive power via passed Ordinance No.1-2-1 Initiative and Referendum, which contains a right to make “corrections and amendments” during a 10-day cure period, and it is legally and constitutionally bound by its ordinance. 31. Further reservation of the power of the initiative to the people and tight restrictions on its regulation and abridgment by government and bureaucratic functionaries are rife throughout the balance of Amendment 7, which was adopted (and this is a significant historical fact to place the language in historical context) in November, 1920 at the height of the progressivism movement and in reaction to widespread corruption, cronyism, abuse of power, inside dealing, and general hanky-panky at all levels of government. During and since the Civil War, scandal after scandal and the aggrandizement of power to the moneyed special and powerful interests---called variously “machines” or “cartels” or “Robber Barons” “Bosses” or other pejorative appellations. The progressivism movement arose as a more “pure form of democracy” to enable the citizenry to have more direct voice, input, control, and power over their governmental officials, especially in states and cities having a history of corrupt politics (The Court can take judicial notice of Hot Springs’ sordid past and its proclivity to governmental corruption and vice, the moniker “Sin City”, by which Hot Springs was known during the childhood of this writer, having a solid basis in both history and fact). 32. For example, Amendment 7’s progressivism roots are shouted forth in explicit and revolutionary language of empowerment trumpeting the will and supremacy of the people and imposing severe restrictions on the government and its officials and bureaucrats to interfere with the people’s sacred initiative and referendum rights. Thus, the “mayor shall not” have “veto power” over initiated ordinances, the measures being only overturned by the “city council” and then only “upon a yea and nay vote on roll call of two-thirds of all members”, thus making clear that any attack to “amend or repeal” by the government or its functionaries on the people’s rights is made subordinate to and restricted by the power of the people as reserved and set forth in the initiative process and must be done by open vote and then only by two-thirds of the elected officials. To be expanded upon later, please note that the governmental official restricting Plaintiffs’ initiative rights by denying ballot here is not even ONE elected official, much less two-thirds of the public’s representatives, but only a minor functionary in a form of government and an office which did not even exist when Amendment 7 was drafted and adopted. 33. Further, by explicit terms, in any attack upon a proposed initiated measure, “the burden of proof shall be upon the person or persons attacking the validity of the petition.” Thus, in the case before this Court, the burden of proof is on the official called a “City Clerk” and, ostensibly, upon his legal advisor, the City Attorney, who contend that the submitted petitions are not valid because they must “strictly comply” with the language, even though the enabling statute says just the opposite: “substantially” in the same form as set forth. 34. Thus, the precise issue here, an insurmountable one, is Defendants’ burden of proof to show that the enacting language actually used in Plaintiffs’ petitions, when interpreted liberally and in light of all the liberalizing language in Amendment 7 (some more such language to be set forth in following paragraphs) is not “substantially” in the form suggested, the precise wording of which is not required. 35. Immediately follows the provision “Unwarranted Restrictions Prohibited” as if the restrictions set forth already in Amendment 7 to this point, as carefully delineated above, were not sufficient. “No law shall be passed to prohibit any person or persons from---circulation of petitions, nor in any manner interfering with the freedom of the people in procuring petitions---“ Then, to drive home the point beyond need for discussion Amendment 7 concludes with “No legislation shall be enacted to restrict, hamper or impair the exercise of the rights reserved to the people,” thereby raising the legitimate question, “How many ways can the people via Amendment 7 language say the same thing: “WE are the people! WE are in charge! WE reserve our powers and restrict those of our government, and no petty restrictions by minor functionaries shall infringe our exercise thereof!” IS THE CITY CLERK REALLY THE CITY CLERK? The Insufficiency of Hot Springs’ “City Clerk” to Declare “Sufficiency” 36. In a “Sufficiency” section Amendment 7 provides that “The sufficiency of all local petitions shall be decided in the first instance by the county clerk or the city clerk as the case may be, subject to review by the chancery (now circuit) court.” The City Clerk contemplated and meant by this language was, before City Management form of government arose in mid-20th century, the second most important person in city government. He, or she as often happened, was elected by vote of all the people of the municipality, and after the mayor the city clerk was the most important elected official in each city. He or she was answerable directly to the people in that the people could reject him or her at the next election or, using the recall provisions, even remove him from office. Thus, he had accountability, and, so the drafters of Amendment 7 thought, was a responsible enough official to be conferred with the direct Constitutional role of gate-keeper to the ballot for initiatives originating with the people. The voters, in adopting Amendment 7, agreed that this City Clerk---the elected, second-most-important, answerable-directly-to-the-people kind of city official---could be trusted with this power. 37. Now, skipping forward to mid-20th century when the City Manager form of government came into vogue, the office of elected City Clerk was abolished oftentimes along with the office of Mayor. A hybridized form of City Manager government with a city-wide elected Mayor and hired City Manager exists in Hot Springs and some other cities, although the bloom is off the City Manager rose, and now only 4-5 cities in Arkansas retain this form of government, many having returned to Mayor-City Council form. 38. With the abolition of an elected City Clerk and in the absence of any revision to Amendment 7 language, the “City Clerk” contemplated and named in the Constitution as being the person trusted and empowered to declare the sufficiency or insufficiency of the people’s initiatives and referenda ceased to exist in Hot Springs. 39. In his/her place a position called “City Clerk”---non-elected and not even answerable directly to the City Board much less the people but solely an employee of the City Manager to whom he reported---was created and conferred with certain powers and duties or, rather, as in the case of “declaring the sufficiency of petitions”, merely arrogated to himself/herself without proper revision of Amendment 7 language or even legislative conferral of such the duties and powers of the former real City Clerk. 40. Actually, on information and belief, Hot Springs realized a few years ago the lack of legal authority of the City Clerk and sought, via its membership in the Arkansas Municipal League, to sponsor and initiate legislation to fill this vacuum in legal authority through a bill presented to the General Assembly. On information and belief, such was never passed, thereby leaving the Defendant City Clerk Lance Spicer without any legal authority to declare the sufficiency or insufficiency of Plaintiffs’ initiative petitions (or for that matter to transact and implement other powers and duties not related to this lawsuit previously vesting in the elected City Clerk but now simply assumed by him by virtue of his title). 41. Alternatively, even if such legislation were passed by the General Assembly conferring a legal right upon Defendant City Clerk Lance Spicer to declare the sufficiency or insufficiency of Plaintiffs’ petitions, such would itself be unconstitutional and violative of the clear meaning and intent of Amendment 7 when it entrusted such gateway-access of the people’s direct right to petition their government and have ballot access to the second-most important elected official of a city, not to a mere functionary calling himself “City Clerk” who is totally unaccountable to the people, directly or indirectly. 42. If any position in present Hot Springs government has the power to declare the sufficiency or insufficiency of ballot measures, it would most likely be the person elected by city-wide vote who comes closest to the nature and has the characteristics of the historical City Clerk at the time Amendment 7 was adopted: the Mayor. 43. Alternatively, at the very least the City Board via its broad authority might have such powers, and most decidedly in a hypothetical conflict or “power struggle” between Plaintiff City Clerk Lance Spicer, the “City Clerk” declaring the insufficiency of petitions and the full City Board declaring their sufficiency (any decision by anyone or body subject to review by this Court and, ultimately, the Arkansas Supreme Court), the minor functionary cannot legally prevail. Such would be an absurdity and totally undermine the rights of the people as conferred by Amendment 7 and invalidate the severe restrictions on governmental abridgement of such rights inherent in the very warp and woof of the living language of this amendment. ENACTING CLAUSE 44. Amendment 7 contains language, relied upon by Defendant Lance Spicer herein, that “The style of all bills initiated and submitted under the provisions of this section shall be, ‘Be it Enacted by the People of the (City of Hot Springs)’”. Defendant contends that such language in its precise form is “mandatory” and its absence in circulated petitions “fatally flaws” Plaintiff’s ballot measure. Defendant makes an unwarranted assumption and imposes an unwarranted restriction on ballot access with this narrow interpretation, something prohibited by Amendment 7, when he contends that the sponsors are required to have this language, precisely as stated, on the petitions during circulation. Amendment 7 says no such thing! It says only that “all bills initiated and submitted” to the people shall have an enacting clause. It does not specify who is responsible for insuring the existence of this language on a measure prior to its “submission” to the people or it becoming an “initiated” measure (most likely all parties). The important thing is that enacting language be on the measure voted upon by the people before they vote on it. Plaintiffs’ enacting language does this in spades! Alternatively, Plaintiffs have sought to exercise their Constitutional and legal right to make “correction or amendment” to include the precise language insisted upon by Defendants. 45. Thus, it could be the City Clerk (the real one or in this case the functionary one) or even the Defendant Garland County Election Commission who might flag the absence of this language and insure that it is included prior to vote of the people. There is no explicit Constitutional mandate that the sponsors must include any enacting language, especially these precise words, before circulating petitions. Someone must do so before the people vote so that those casting ballots know that the measure they are voting upon will be, if passed by majority vote, directly enacted into law. Who that person or persons might be is nowhere specifically stated in the Constitution. 46. However, the Enacting Clause section of Amendment 7 does contemplate and, by its specific terms provides for, “additional legislation” consistent with Amendment 7 and enabling it. The General Assembly has done such regarding the enacting clause in Ark. Stat. Ann. 7-9-104, which merely requires that an initiated ordinance “shall be on substantially the following form”. As previously noted, Plaintiffs’ form and language containing explicit enacting language but recognizing the unspoken alternative of rejection by the voters in the “Be it Enacted (or Rejected, implicit) By the People of the City of Hot Springs” is in substantial compliance with the statute. Defendants’ reliance upon “strict adherence” and “fatal flaws” is merely a pretextual verbal manipulation to stifle the will, rights, and wishes of citizens to petition their government via intitiative and the ability and right of the City’s own voters to have input and voice, yes, even veto authority, on the DeGray Water Project. 47. Plaintiffs hereby reserve the right to add additional party Defendants, including the individual members of the Board of Directors and the City Manager, should upon further contemplation and legal research Plaintiffs find them to be necessary and/or proper parties to this litigation or any aspect of it, specifically but not limited to any requested relief, including damages. Plaintiffs specifically reserve the right to amend these pleadings so as to specify federal and state civil rights violations in detail if upon additional research such is warranted or desirable. WHEREFORE, premises considered, Plaintiffs, and each of them, pray for relief as follows: (1) Enter judgment in their favor on their Complaint and Amended Complaint in their entirety and against both Defendants; (2) For a declaratory judgment that Plaintiffs’ petitions are sufficient constitutionally and legally as a matter of fact and law and, also, as a matter of due process and equal protection; (3) For a declaratory judgment that Defendant “City Clerk” Lance Spicer is devoid of Constitutional or statutory authority to declare the sufficiency or insufficiency of Plaintiffs’ petitions and injunctive relief enjoining him from declaring the petitions insufficiency; (4) For a declaratory judgment that, in the absence of the Constitutionally named and contemplated City Clerk, the Mayor is the person meeting the Constitutional requirements of the non-existent office of City Clerk referenced in Amendment 7 to declare the sufficiency or insufficiency of Plaintiffs’ petitions so as to permit or deny ballot access; (5) Alternatively, for a declaratory judgment that, absent the contemplated City Clerk, the Board of Directors is the proper authority to declare Plaintiffs’ petitions sufficient or insufficient so as to permit or deny ballot access; (6) Alternatively, for a writ of mandamus directing the Defendant, Lance Spicer, City Clerk, to count Plaintiffs’ petitions and to certify the sufficiency of same to the Garland County Election Commission; (7) For a writ of mandamus directing the Defendant Garland County Election Commission forthwith to place Plaintiffs’ initiative ordinance on the general election ballot for voter enactment, approval, adoption, or rejection at the November 4, 2014 election as requested by the specific language of the petitions; (8) For an injunction against the Defendant, City Clerk Lance Spicer, prohibiting him from refusing Plaintiffs’ multiple attempts to make “correction and amendment” as provided by Amendment 7 and the City’s own ordinance; (9) For damages against the Defendant, City Clerk Lance Spicer, in his official capacity for arrogating to himself legal authority not conferred by the Constitution or laws of the State of Arkansas and for violating Plaintiffs’ free speech and petition rights and other constitutional and civil rights under the 14th Amendment to the United States Constitution and equivalent provisions of the Arkansas Constitution and legislative acts, both federal and civil (known generically as “civil rights acts”), providing for such monetary damages; (10). Award plaintiffs all additional relief allowed by law and equity, including but not limited to declaratory, preliminary and permanent injunctive relief, as the Court at its discretion may deem just and proper; (11). For attorneys fees, costs, and expenses as shall be fair and reasonable and as shall be provided by law. FURTHER, PLAINTIFFS PRAYETH NOT. Respectfully submitted, _______________________________ Cliff Jackson, P.A. Cliff Jackson, Pro Se Arkansas Bar No. 72064 217 Parker Pointe Hot Springs, AR 71913 501-525-7400 (O) intuitive_empath@live And ______________________________ Davidson Law Firm Charles “Skip” Davidson Arkansas Bar No. 73026 724 Garland Little Rock, 72203 501-374-9977 (O) skipd@dlf-ar Certificate of Service I, Cliff Jackson, hereby certify that I have this 10th day of September, 2014, served this Amended Complaint upon the Defendants’ attorneys, Brian Albright, 626 Malvern, Hot Springs, Arkansas and Ralph C. Ohm, 211 Hobson Avenue, Hot Springs, Arkansas, by hand-delivering the same to their offices. ____________________________________ Cliff Jackson
Posted on: Wed, 10 Sep 2014 20:10:44 +0000
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