Appendix G Model Petition for Rehearing

• Library: Handling Appeals in Arkansas (2021 Ed.)

APPENDIX G MODEL PETITION FOR REHEARING IN THE ARKANSAS COURT OF APPEALS

DAVID HARRIS APPELLANT

V.

CITY OF FORT SMITH, ARKANSAS, et al. APPELLEES

CASE NO. 03-951

ON APPEAL FROM THE CIRCUIT COURT OF SEBASTIAN COUNTY, ARKANSAS FORT SMITH DIVISION THE HONORABLE J. MICHAEL FITZHUGH, CIRCUIT JUDGE PETITION FOR REHEARING OF APPELLEES CITY OF FORT SMITH, ET AL.

R. Christopher Lawson

Arkansas Bar No. 93083

Friday, Eldredge & Clark, LLP

3425 North Futrall Drive, Suite 103

Fayetteville, Arkansas 72703-4811

Telephone: 479-695-1888

Telecopier: 479-695-2147

Lawson@fridayfirm.com

Attorneys for Appellees

Appellees' Petition for Rehearing

Come now the Appellees, and for their Petition for Rehearing, state:

1. On April 14, 2004, this Court delivered its Opinion reversing the circuit court's order granting the Motion for Summary Judgment filed by the Appellees. In addition to reversing the circuit court's interpretation of the Arkansas Freedom of Information Act, Ark. Code Ann. § 25-19-101 et seq. (the "FOIA"), the Court sua sponte fashioned prospective relief in the form of an "injunction prohibiting further violations of the FOIA." Slip Opinion, p. 9.

2. Although the Appellant's original Complaint included a request for an injunction, the Appellant at no time filed a motion for preliminary or permanent injunctive relief with the circuit court. Accordingly, the circuit court did not address the propriety of a prospective injunction, and the parties did not brief the issue on appeal.

3. This Petition for Rehearing addresses the narrow issue of whether the opinion of the Court contains a specific error of law because it directs the circuit court to enter a permanent, prospective remedy that was never considered by the circuit court or briefed by the parties to this appeal. The Appellees respectfully submit that the Opinion erroneously declared a sua sponte remedy that is overbroad, undefined and unsupported by the record developed by the circuit court. The Appellees thus request that the Opinion be corrected to remand this case with directions to the circuit court to conduct further proceedings consistent with the Opinion.¹

Brief in Support of Petition for Rehearing I. Nature of the Appeal

This appeal arises from the circuit court's interpretation of the FOIA on undisputed facts. The Appellant challenged the propriety of one-on-one conversations between the City Administrator, a non-member of the Board of Directors (the "Board"), and each member of the Board prior to the City...