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JUDGE TO RULE ON WHETHER MILLAGE CASE SHOULD PROCEED

By Amy Riggin/OF THE COMMERCIAL STAFF
Thursday, March 5, 2009 10:18 AM CST

Circuit Judge Rob Wyatt Jr. said Wednesday that he will issue a ruling soon on whether a case involving a March 2007 millage election brought by a group of patrons against the Dollarway School District should proceed.

During a hearing, Little Rock attorney Eugene Sayre spoke on behalf of the plaintiffs, a group of Altheimer residents called Dollarway Patrons for Better Schools. Sayre asked Wyatt not to dismiss the case as the district asked.

“We’re asking that the motion to dismiss be denied to allow for a full trial,” Sayre said.

He said the plaintiffs want to recover the 2007 taxes collected in 2008 and claim that it was an illegal exaction.

Wyatt is hearing the case again after first dismissing it in 2007, ruling that the challenge was not filed in a timely fashion.

The Arkansas Supreme Court remanded the appeal back to Wyatt in a June 26 opinion, stating that the basis of the plaintiff’s argument was not whether the election itself was illegal, but whether patrons were misled prior to the election.

Little Rock attorney Dan Bufford, flanked by Dollarway Board President Robert Morehead and Superintendent Thomas Gathen, argued for the defendants that he had found no other cases to create a precedent for voiding an election unless the actual election process was contested.

The Altheimer School District was consolidated into Dollarway in 2006, creating a new school district with different tax rates. Those who lived in Altheimer paid 32.6 mills, while those in the original Dollarway district paid 40.8 mills. The 2007 election created a new tax for the entire district of 42.3 mills, passing by 21 votes. Another election held in May reduced the rate back down to 40.8 mills for the entire district.

Sayre said his clients have no problem with the way the actual election was carried out on election day. Rather, DPBS asserts that there was no authority to hold the election, and the Supreme Court agreed that the “circuit court erred in finding that DPBS alleged a cause of action contesting the election.”

“The plaintiff argues that the school district as a government entity is going to financially benefit from the millage and that they cannot receive the benefit because they misrepresented the amount of the tax increase in materials produced prior to the election and widely circulated,” Sayre said. “The equities of the situation require the election and the results of that election to be voided.”

Bufford said the information circulated, specifically a pamphlet, was not done so with the deliberate intent to defraud patrons.

“They made an honest, good-faith mistake,” he said, citing several prior cases that ruled that elections can’t be voided unless official election materials are in error. “Obviously to us, when it’s just a little oversight, all these courts are saying you don’t invalidate an election because of that.”

DPBS alleges that the district stated that the increases to their property taxes would be half of what the measure imposed. The plaintiffs argue that a district-generated pamphlet showed that the tax increase for Altheimer residents would be $29.30 annually on a $30,000 home. In Dollarway, the increase would be $4.50.

“However, a table in the possession of the school district received from financial advisors prior to the election showed that that the actual increases would be $58.20 and $9, respectively,” the plaintiffs alleged according to information in the Supreme Court opinion.

In April the Supreme Court denied a request by the district to have DPBS post a $509,000 bond to protect the district’s financial interests, an amount the district said was based on the amount tied up by the appeal.

Sayre said, if Wyatt rules for the case to proceed, his firm will file for discovery of various items from the district that would prove the district knew that the information presented to voters was incorrect.

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