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Forrest City Advertising and Promotion Commission v. City of Forrest City

August 1, 2007

FORREST CITY ADVERTISING AND PROMOTION COMMISSION; WILLIAM ELLIS; MATT TOWNSEND, AND KEM MERRELL; PLAINTIFFS,
v.
CITY OF FORREST CITY; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Susan Webber Wright United States District Judge

Memorandum Opinion and Order

Before the Court is defendants' motion to dissolve the restraining order entered in this matter prior to its removal to federal court. Plaintiffs responded in opposition to the motion. For the reasons stated below, the Court remands this action to state court.

Background

In their complaint for declaratory judgment, plaintiffs allege that on April 10, 2007, Mayor Gordon McCoy asked the Forrest City Advertising and Promotions Commission ("Commission") to submit to the City Council of Forrest City ( "City Council") for approval names of persons to serve on the Commission. The Commission appointed two people, Bill Ellis and Rob Gray, and an alternate, Tommy Stewmon, and sent their names to the City Council for approval. The City Council approved Gray but not Ellis or Stewmon. On or about May 1, 2007, the City Council enacted Ordinance No. 1822, which removed plaintiffs Kem Merrell, Matt Townsend, and Bill Ellis from their positions on the Commission.

Plaintiffs filed a complaint in St. Francis County Circuit Court on May 16, 2007, alleging the Ordinance is an illegal enactment and unconstitutional because the individual plaintiffs did not receive notice, an opportunity to be heard, or reasons for their removal. They also allege the City Council acted in an arbitrary and capricious manner in declining to approve members appointed by the Commission. The state court held a hearing on May 29, 2007, on plaintiffs' request for a temporary restraining order, and on May 31, 2007, the state court judge issued a letter opinion, granting a temporary restraining order. On June 5, 2007, defendants removed the case to federal court on the basis that plaintiffs set forth a claim under the 14th Amendment to the United States Constitution.

On June 18, 2007, defendants filed a counterclaim, asserting that Merrell, Townsend, and Ellis are ineligible under state law to serve on the Commission, and that the Commission violated the Arkansas Constitution when its members hired an attorney to file this lawsuit. On June 28, 2007, defendants filed the pending motion to dissolve the restraining order issued by the state court.

Discussion

In 1989, the City Council, pursuant to the Advertising and Promotion Commission Act, codified at Ark. Code Ann. § 26-75-601 et seq., passed an ordinance establishing the Commission. See docket entry 17, Ex. A. On May 2, 2007, the City Council passed Ordinance No. 1822, which reads as follows:

An Ordinance removing certain commissioners from the Forrest City Advertising and Promotion Commission and declaring vacancies.

Whereas, pursuant to Arkansas Code Annotated § 14-42-109(a)(2), the City Council may provide for the removal of any appointive officer, including the Advertising and Promotion Commission members; and Whereas, The City Council of Forrest City, Arkansas, has determined that certain members of the Forrest City Advertising and Promotion Commission do not meet the necessary qualifications pursuant to Arkansas Law to continue serving on said Commission.

Now, therefore, be it ordained by the City Council of the City of Forrest City, Arkansas:

Section 1. That Kem Merrell, Matt Townsend and Bill Ellis are hereby removed as commissioners on the Forrest City Advertising and Promotion Commission.

Section 2. That their positions are declared vacant to be filled in accordance with Arkansas law.

Plaintiffs state Merrell, Townsend, and Ellis were appointed by the Commission and approved by the City Council pursuant to Ark. Code Ann. § 26-75-605(c) and (d), and the City Council "should be estopped from attempting to remove the named Commissioners and the City Council and its members are guilty of laches and should not under the circumstances be entitled to remove said Commissioners." Compl. at ¶ 12. Plaintiffs further allege the City Council had no ...


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