United States District Court, W.D. Arkansas, Fayetteville Division
KIMBERLY HUTCHESON, Recorder-Treasurer for Cave Springs, Arkansas PLAINTIFF
CITY OF CAVE SPRINGS, ARKANSAS; TRAVIS LEE, Mayor of Cave Springs, Arkansas in his Individual and Official Capacity; City Council Members LARRY FLETCHER, CHARLES LINDLEY, RANDALL NOBLET, RICK SAYER, JOAN WHITE, and MARY ANN WINTERS, in each's Official Capacity; Former City Council Members JAY FINCH, BRETT MOORE, and MARC WILLIAMS, in each's Official Capacity DEFENDANTS
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROCKS, UNITED DISTRICT JUDGE.
before the Court are the Motion to Dismiss (Doc. 17) and
Brief in Support (Doc. 18) filed collectively by all
Defendants in this case, and Plaintiff Kimberly
Hutcheson's Response in Opposition (Doc. 21). For the
reasons given below, Defendants' Motion is
Springs, a municipality in Benton County, Arkansas, has
lately undergone significant political turmoil. According to
the Complaint in this case, the Cave Springs City Council
passed City Ordinance 2015-04 (the "Duties
Ordinance") in June 2015, effectively stripping
then-City Treasurer Penny Mertes of her duties. See
Doc. 1, ¶¶ 10-11. Ms. Mertes promptly resigned, and
the office of Treasurer remained vacant for four months.
See Id. at ¶¶ 12-13. Then in October 2015,
the City Council passed Ordinance 2015-08 (the
"Recorder-Treasurer Ordinance"), merging the
positions of City Treasurer and City Recorder. See
Id. at ¶ 13. Throughout these events, Ms. Hutcheson
was the City Recorder. See Id. at ¶ 9. Thus,
upon passage of the Recorder-Treasurer Ordinance, she became
the Recorder-Treasurer for the city of Cave Springs. In
November 2016, she was elected to a new four-year term as
City Recorder-Treasurer, see Id. at ¶ 38, which
position she still holds today, see Id. at ¶
August 2016, the Cave Springs Police Chief was placed on
administrative leave and then fired. See Id. at
¶ 17. Ms. Hutcheson alleges that very soon thereafter,
Mayor Travis Lee confronted her and insisted that she must
either join "Team Joe" (i.e., the
recently-terminated Police Chief) or "Team Travis."
See Id. at ¶ 19. When Ms. Hutcheson refused to
pick sides, id., Mayor Lee allegedly commenced a
campaign of retaliation against her by, inter alia,
locking her out of city hall, id. at ¶ 20,
limiting her access to the city's accounting software,
id. at ¶ 25, instructing her ultra
vires to perform fewer duties than she believed were
required of her by the Duties and Recorder-Treasurer
Ordinances, see Id. at ¶¶ 26-27,
instructing the Cave Springs police department to harass her
personal business for baseless "code violations, "
see Id. at ¶¶ 29-30, vetoing a city
ordinance that would have clarified the duties of
Recorder-Treasurer, see Id. at ¶¶ 39-40,
46, bad-mouthing her to the local media, see Id. at
¶ 43, lying to City Council members about her, see
Id. at ¶ 44, maliciously urging a prosecutor to
make her the subject of a criminal investigation, see
Id. at ¶ 57, and engaging in many other similar
February 7, 2017, Ms. Hutcheson filed a Complaint in this
Court, initiating the instant lawsuit. In her Complaint, Ms.
Hutcheson sets forth only one cause of action, for bill of
attainder. See Id. at ¶¶ 74-77. She has
named as Defendants the City of Cave Springs, Mayor Lee in
his official and individual capacities, and various current
and former members of the Cave Springs City Council in their
official capacities only. She seeks declaratory and
injunctive relief, as well as her costs, attorney fees, and
expenses in bringing this action. All Defendants have
collectively moved under Fed.R.Civ.P. 12(b)(6) for this Court
to dismiss her Complaint, on the grounds that it fails to
state a claim upon which relief can be granted. Of course,
Ms. Hutcheson opposes their Motion, which has been fully
briefed and is now ripe for decision.
survive a Rule 12(b)(6) motion to dismiss, a complaint must
provide "a short and plain statement of the claim
showing that the pleader is entitled to relief." Fed. R.
-Civ. P. 8(a)(2). The purpose of this requirement is to
"give the defendant fair notice of what the ... claim is
and the grounds upon which it rests." Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Bell ML
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Court
must accept all of the Complaint's factual allegations as
true, and construe them in the light most favorable to the
plaintiff, drawing all reasonable inferences in the
plaintiff's favor. See Ashley Cnty., Ark. v. Pfizer,
Inc., 552 F.3d 659, 665 (8th Cir. 2009).
the Complaint "must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. "A
pleading that offers labels and conclusions' or 'a
formulaic recitation of the elements of a cause of action
will not do.' Nor does a complaint suffice if it tenders
'naked assertions]' devoid of 'further factual
enhancement.'" Id. In other words, while
"the pleading standard that Rule 8 announces does not
require 'detailed factual allegations, ' ... it
demands more than an unadorned, the
defendant-unlawfully-harmed-me accusation." Id.
I, Section 10 of the United States Constitution prohibits
bills of attainder. The United States Supreme Court has
"defined a bill of attainder as a legislative Act which
inflicts punishment on named individuals or members of an
easily ascertainable group without a judicial trial."
United States v. O'Brien, 391 U.S. 367, 383 n.30
(1968). In other words, "three definitional
elements" of "specificity in identification,
punishment, and lack of a judicial trial" must be
"contained in [a] statute" for it to be a bill of
attainder. See Id. The instant briefing focuses on
whether that second element (of punishment) is adequately
pleaded, as well as on whether the wrongs of which Ms.
Hutcheson complains are truly legislative acts.
Hutcheson complains of two particular city ordinances: the
Duties Ordinance and the Recorder-Treasurer Ordinance. She
argues that these ordinances "both operate to strip
[her] of certain duties for no legislative purpose."
(Doc. 21, p. 4). "The imposition ... of a sanction of
mandatory forfeiture of job or office has long been
considered punishment under the bill of attainder clause,
" because "[disqualification from office may be
punishment, as in cases of conviction upon impeachment."
Crain v. City of Mountain Home, Ark., 611 F.2d 726,
728 (8th Cir. 1979) (quoting United States v. Brown,
381 U.S. 437, 448 (1965)) (citing Nixon v. Administrator
of Gen. Servs., 433 U.S. 425, 469 (1977)). Defendants,
for their part, contend that these ordinances did not punish
Hutcheson's Complaint does not plead any facts from which
the Court could reasonably infer that the Duties Ordinance or
the Recorder-Treasurer Ordinance served any punitive purpose
with respect to Ms. Hutcheson; indeed, the only reasonable
inference the Court can make from the Complaint, as currently
formulated, is that they did not. True, the Duties
Ordinance stripped the City Treasurer of many, and perhaps
even substantially all, of her duties. See Doc.
1-1. But according to the Complaint, Ms. Hutcheson was not
the City Treasurer at the time the Duties Ordinance was
enacted; Ms. Mertes was. See Doc. 1, ¶¶
10-12. Ms. Hutcheson was the City Recorder at that time, as
she still was four months later when the Recorder-Treasurer
Ordinance merged the positions of Treasurer and Recorder.
See Id. at ¶¶ 9, 13, 15. Furthermore, the
Recorder-Treasurer Ordinance explicitly states that
"there is no objection from the current City Recorder to
the establishment of the combined office of the City
Recorder-Treasurer, " see Doc. 1-2, p. 1, and
the Complaint does not allege that this representation was
false. In fact, it would seem to be true, given that the
Complaint does allege that more than a year later,
Ms. Hutcheson pursued and won election to a new
"four-year term as Recorder-Treasurer."
See Doc. 1, ¶ 38.
Ms. Hutcheson essentially alleges that roughly a year after
these ordinances were passed, Mayor Lee developed personal
animosity against Ms. Hutcheson, see Id.
at¶¶ 16-19, and that he exploited vague and
ambiguous language in these ordinances to harass and impede
Ms. Hutcheson in the performance of her duties, see
Id. at ¶¶ 20-73. But while one may reasonably
infer from the Complaint that Mayor Lee's alleged acts
were punitive in both intent and effect, that is not enough;
as noted above, a bill of attainder is a legislative
wrong. At the end of the day, the gravamen of Ms.
Hutcheson's grievance appears not to be
legislative improprieties (other than perhaps poor
legislative draftsmanship), but rather executive
ones. Or put differently, the legislative acts in her
Complaint are not punitive, and the punitive acts in her
Complaint are ...