Federal Judge Price Marshall ruled Wednesday that a request for a restraining order against a McCrory ordinance banning inexpensive mobile homes was moot because the city had promised not to enforce the ordinance.
The judge didn’t completely dismiss the suit, ordering a status conference Feb. 15. But an attorney for the city told the Arkansas Democrat-Gazette that he expected to ask for the suit to be dismissed on account of the City Council’s vote Tuesday to remove the part of an ordinance that prevented mobile homes worth less than $7,500 from being located in the city.
Equal Justice Under Law, a Washington group, had sued alleging the ordinance was unconstitutional wealth discrimination. It sued on behalf of a couple, John Watlington and Lindsey Holloway, who said they’d be forced out of the city by enforcement of the ordinance, which they said Police Chief Paul Hatch had threatened.
The city said in a filing after reporting the City Council vote:
… the complained of provision is no longer in effect in McCrory and the Defendants aver they have no intention and will not re- enact such a provision. Indeed, despite Plaintiffs’ argument to the contrary, why would a City of 1,700 plus people with limited financial resources desire to be sued again for a provision of an Ordinance it never enforced in the first place? Such an argument defies logic.
Furthermore, Plaintiffs argued in Reply that the Defendants have indicated they are going to defend the constitutionality of the provision that has been removed. That is too great an inferential leap from the Defendants mere denial of any wrongdoing. On the contrary, there is simply nothing to defend. Defendants will maintain that Plaintiffs constitutional rights have not been violated because they were not required to move their trailer/camper, even assuming arguendo the allegations of the conversation between the Police Chief and Plaintiff Watlington were true. Plaintiffs have suffered no harm due to the alleged conversation; they have not moved the trailer/camper and have not suffered any property deprivation.
The city was responding to an argument by Equal Justice that a promise not to enforce the ordinance was an insufficient ground to avoid a court order. It said:
“Defendants are hurriedly rushing to amend their Ordinance, not because they concede it is unconstitutional, but because they wish to evade any preliminary order from this Court.”
Equal Justice argued it was important to get a court ruling.
The public interest is heightened in this case because not only will McCrory’s conduct be subject to federal court review, but other cities will learn from the precedent. Counsel for Plaintiff has recently become aware that at least two other cities in Woodruff County may have similar ordinances, including Patterson and Augusta. Although those cities are not Defendants in this lawsuit, federal court scrutiny on McCrory’s Ordinance advances the public interest by setting precedent on the constitutional rights at stake and the imminent and irreparable harm such provisions can cause.
The pleading said it was also possible Hatch had made statements to other mobile home dwellers.