Sebastian County Prosecutor Daniel Shue issued a letter today in response to Joey McCutchen’s September 16, 2022 letter, requesting that criminal charges be filed against the Fort Smith City Administrator for violation of the Arkansas State Capitol and Historical Monument Protection Act.
Shue states that the City’s failure to replace the Flags over Fort Smith display could constitute a violation of the Act between September 14, 2022 through September 2022. However, Mr. Shue added that his office has historically not weighed into pending civil cases unless instructed to do so by a court. Judge Gunner Delay will hold a hearing in the pending civil case on September 27th at 9:30am.
McCutchen filed a lawsuit against the City of Fort Smith after the City removed the historical monument and failed to request a waiver pursuant to the Act. Sebastian County Circuit Judge Gunner Delay ruled that the City violated the Act for its continued refusal to request a waiver.
Judge Delay also ruled that the initial removal of the historical monument was not a violation because it occurred before the Act was enacted.
On January 28, 2022 the Court issued a subsequent Order reiterating the findings of fact and conclusions of law contained in the October 2022 Order.
McCutchen said, “Since the City’s waiver request was rejected by the Arkansas History Commission, we believe that the City is now knowingly violating the Act. We respect Mr. Shue’s decision not to pursue criminal charges at this time with the civil case still pending and a hearing set on September 27th.”
McCutchen added, “Since Judge Delay has already heard the evidence in this case, we agree with Mr. Shue that Judge Delay is in a better position to determine the respective rights and responsibilities of the parties.”