In Circuit Court in Berryville Tuesday morning, attorneys argued several issues concerning a lawsuit against further collection of an annual $18 trash fee imposed on Carroll County residents.
The fee affects every business and residential property in a six-county area served by the Ozark Mountain Solid Waste District. After a landfill operated by the OMSWD closed in 2012, bondholders who financed the purchase of the landfill sued to recover their investment. A circuit judge in Pulaski County ruled in their favor, and established a receiver to collect the $12 million owed them. The ruling also exacted $16 million for the Arkansas Department of Environmental Quality to safely close the site.
The annual $18 assessments will continue for a period estimated from 25-30 years.
On Tuesday, Circuit Judge Scott Jackson heard arguments in a lawsuit that argues the OMSWD does not have the authority to assess such a fee. Jackson did not rule on several motions before the court, but after hearing arguments from both sides, he posed some questions of his own.
The plaintiff, Paul Summers, has sued the OMSWD and the Carroll County Tax Collector. Attorney Matt Bishop represented Summers, and Mary-Tipton Thalheimer appeared on behalf of the receiver appointed by the Pulaski County judge to collect the money. Deputy Prosecuting Attorney Craig Parker represented Tax Collector Kay Phillips-Brown.
The receiver has filed a motion to dismiss the suit, and plaintiffs have filed a motion suggesting that the receiver cannot represent parties with conflicting interests, and should not be party to this suit.
“The receiver has a financial duty to the bank, to ADEQ, to the waste district, and eventually, to the taxpayers who compose it,” Bishop said. “He can’t serve all those interests.” Bishop explained that the OMSWD continues to function as an agency, and called the receiver’s interests “adverse to the district.”
The plaintiffs also sought to exclude the ADEQ as a party to this suit, and Bishop said they should have no more status than any other creditor.
Thalheimer called this lawsuit a way to attack an order entered by another judge. She said the judge’s order imposed the $18 fee, and gave the receiver broad powers to collect it. She also cited statutes backing up the process. “This case is an attempt to stop the receiver from his statutory obligation,” she said. Thalheimer said the cases in each county would amount to “a collateral attack” on the Pulaski County order. Plaintiffs should return their action to the original court, except in cases of fraud or question of jurisdiction, she said.
Bishop said this suit does not respond directly to the Pulaski ruling, but instead questions the statutory authority for the OMSWD to assess this fee. Since the public did not have any standing in what he called “a bank bailout by taxpayers,” they cannot now appeal, he said. Since Summers’ suit names the tax collector, state law calls for hearing that case within the county.
Thalheimer said the plaintiff’s lawsuit “would essentially direct the receiver and the tax collector not to comply with a judge’s order.” She concluded, “This is not the right venue to enjoin another judge’s decision.”
The county did not oppose hearing the Summers lawsuit in Carroll County.
Jackson gave both sides 15 days to provide answers to several questions he raised. “With similar suits in six counties, what happens if the results are inconsistent?” he asked. Jackson also asked for clarification on how taxpayers were represented during the process leading up to the Pulaski judge’s decision. Since Jackson, just like any other property owner in Carroll County, will pay the $18 fee, he asked both sides whether that would affect his ability to preside over the case.