EX POST FACTO REPOST? Can a new law be invoked to restore a long-gone Confederate statue? The city attorney doesn’t think so.

Joey McCutchen, the Fort Smith lawyer who’s a tireless crusader for the Lost Cause, got another headline in the Arkansas Democrat-Gazette this morning by threatening to sue over the city’s removal of a Confederate statue and other markers venerating Confederate traitors from MacArthur Park.

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My first thought: How could McCutchen invoke a new state law that prohibits the removal of historic monuments without review by a state commission since these actions were taken almost a year ago?

Had they been melted to scrap (a good idea), would McCutchen demand a foundry be put to work?

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Turns out my thinking was in line with some of what City Attorney Tom Carpenter has had to say on the subject. I asked under the Freedom of Information Act for any communications he might have made relative to the issue.

His email yesterday to McCutchen:

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Dear Joey,

Thank you for your email. Also, thank you for sending me a copy of Act 1003 of the 2021 General Assembly.

The property in question does not seem to meet the definition of public property. While the City is in control of the property, it was through a transaction with the federal government, not the State government. So the definition of “public property,” in Section 1 of the Act is inapplicable. Further, the statue in question was removed before the effective date of the Act, so the Act does not apply. In any event, the provisions on the preservation of historical monuments certainly applies and negates the demand you made for placement of the monument in a certain place. All of these questions arise before the uncompensated taking of property rights by the State arises: an action for which the State does not have immunity, To that end, the statute does not appear to be constitutional under the Arkansas, nor the United States, constitutions. Even with the subsection which tries to make an existing, but not displayed, monument subject to the statute, after the fact, still suffers as a Takings. Finally, there are no rules in place which would make the Act applicable, a prerequisite notwithstanding an emergency clause. In short, I will take your demand to the Board of Directors, but I do not see how the Act applies.

Like Mr. Andrews, I am sorry that I could not respond to you more quickly as to the base. But, I learned today that the base was removed so it can be repaired from the damage done when someone sprayed or painted some substance on it. I know that the Museum had been working to find an appropriate craftsperson to make the repair.

In any event, I will take your demand to the Board of Directors for further discussion. If you wish to file an illegal exaction case I cannot stop you. Unfortunately, I am not authorized to accept service for the City or I would offer to do so. However, the Mayor and the City Manager are both, independently, able to accept service.

Here’s McCutchen’s complaint that prompted the response:

Pursuant to Senate Bill 553, now Act 1003 of 2021 of Arkansas, I hereby request that you immediately return the Capitol Guards monument, the David O. Dodd marker, the Children of the Confederacy marker that were removed from McArthur Museum of Arkansas Military History in Little Rock, or otherwise comply with Act 1003. As you may know, the law was passed with an emergency clause during the 2021 legislative session and carries a penalty of a Class A misdemeanor if the value of the property is more than $500.00. As you may also know, Act 1003 was spearheaded by Senator Mark Johnson.

I am attaching a copy of Act 1003 of Arkansas for your review.

If the Capitol Guards monument, the David O. Dodd marker and the Children of Confederacy marker are not promptly returned to its original location or the law is not otherwise complied with, I intend to file suit to seek a mandatory injunction to compel the City of Little Rock to comply with Act 1003. We are also researching whether an illegal exaction suit is appropriate in light of the fact that Little Rock chose ( wrongfully in our opinion) to redirect funds from the park easement to the Daisy Bates statue.

Thank you for your attention to this matter. Please advise of the City of Little Rock’s intentions in this regard.

Joey McCutchen

Trial Lawyer

Noted: Sen. Mark Johnson, son of one of the state’s most famous segregationists, the late Jim Johnson, does not live in the city of Little Rock but there’s little doubt his legislation was aimed primarily at preserving the early 20th Century Confederate propaganda meant to help perpetuate Jim Crow that litters the state.

Also noted: A noticeable lack of outcry at the mayor’s decision to remove the statue from the park. Should McCutchen and other Confederacy idolators desire to create a private tribute to those who battled to keep human beings in chains, let them send a U-Haul and pick the items up (if they can establish a legal “owner.”) Full history of the statue here at the Encylopedia of Arkansas.

The Union won. The traitors lost. Little Rock generally seems to have accepted the outcome if Joey McCutchen and the Arkansas legislature have not.

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PS: Restoration work is underway on the base for the statue, which was damaged by vandals.