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ARKANSAS DEP'T OF HUMAN SERVS. v. HEATH

March 1, 1993

ARKANSAS DEPARTMENT OF HUMAN SERVICES
V.
JOHN HEATH



Appeal from Crittenden Circuit Court; Olan Parker, Jr., Judge; reversed and dismissed.

SYLLABUS BY THE COURT

1. STATUTES - UNSUBSTANTIATED ALLEGATION OF CHILD ABUSE - STATUTES PROHIBIT EXPUNGING RECORD FOR THREE YEARS. - Ark. Code Ann. 12-12-505 (Supp. 1991) prohibits expunging the record of an allegation of child abuse, determined to be unsubstantiated, from the central registry for a period of three years.

2. STATUTES - CODE LIMITS DISCLOSURE OF UNFOUNDED ALLEGATIONS - NO INVASION OF JUDICIAL FUNCTION FOUND. - Where there was no showing that the retained information was being misused or that misuse would occur in the future, the Supreme Court found that there was no invasion of the judicial function by Ark. Code Ann. 12-12-506 (Supp. 1991), which limits the disclosure of unfounded allegations to DHS offices for specific purposes only.

3. STATUTES - PRESUMED CONSTITUTIONAL. - Legislation is presumed to be constitutional.

4. STATUTES - CHALLENGE TO LEGISLATION AS A DEPRIVATION OF DUE PROCESS OF LAW - PROOF REQUIRED. - One challenging legislation as a deprivation of due process of law must show that a property interest is at stake.

5. CONSTITUTIONAL LAW - POTENTIAL INJURY TO REPUTATION DOES NOT CONSTITUTE A DEPRIVATION OF A PROPERTY INTEREST. - Reputation alone, apart from some more tangible interest such as employment, is neither "liberty" or "property" by itself sufficient to invoke the procedural protection of the Due Process Clause; the words liberty and property as used in the Fourteenth Amendment do not in terms single out reputation as a candidate for special protection over and above other interests that may be protected by state law.

6. CONSTITUTIONAL LAW - DENIAL OF NOTICE AND HEARING - WHEN IT REACHES LEVEL OF A CONSTITUTIONAL DEPRIVATION. - There must be a property interest coupled with a lack of procedural safeguards to lift a denial of notice and hearing to the level of a constitutional deprivation.

7. STATUTES - STIGMATIZATION IMPLICATING CONSTITUTIONAL INTERESTS - ACCURACY OF REPORT NOT CHALLENGED, NO STIGMATIZATION FOUND. - Where no issue is raised as to the substantial The opinion of the court was delivered by: David Newbern, Justice.

This is the second appeal in this case which arose when the Department of Human Services (DHS) received a report of possible child abuse committed by John Heath, Principal at Marion Middle School. The report stated Mr. Heath had hit a student three times on the buttocks with a wooden paddle. Investigation confirmed the paddling occurred, and a DHS report concluded there was "some credible evidence of child abuse." In addition, a box was checked on the DHS report form indicating that the report of child abuse was "substantiated." Mr. Heath appealed through administrative channels without success and then to the Circuit Court. The Court found the allegation unsubstantiated and ordered that Heath's name be immediately expunged from DHS records. DHS appealed, contesting only the Trial Court's determination that the law requiring even unsubstantiated allegations be retained in a DHS registry for three years was unconstitutional.

We remanded the case for notification of the Attorney General pursuant to Ark. Code Ann. 16-111-106 (1987) in view of constitutional challenge. Arkansas Department of Human Services v. Heath, 307 Ark. 147, 817 S.W.2d 885 (1991). The case is here again in the same posture, the Trial Court having ordered DHS to expunge from its central registry the entry regarding Mr. Heath. DHS does not appeal from that part of the Trial Court's order finding that the report was "unsubstantiated." While the record does not disclose the manner in which DHS will alter its record to show that the allegation is unsubstantiated, we must assume that it will do so. Arkansas Code Ann. 12-12-505 and 12-12-506 require DHS to treat "unfounded" reports differently from others. The only argument in this appeal [312 Ark Page 209]

is about the constitutionality of a statutory scheme by which DHS is required to retain "unsubstantiated" reports in its central registry.

Mr. Heath contends the statutory scheme by which such a record of an unsubstantiated allegation of child abuse is retained violates his right to due process and equal protection of the laws as well as the separation of powers doctrine and his right to privacy. DHS argues the Court erred in ordering the record concerning the allegations against Heath removed from the registry as the statute does not usurp any judicial function or violate constitutional rights.

Because there is no constitutional violation, we reverse and dismiss that part of the ruling directing expungement of the DHS records.

1. The statutes

[1] We agree with the DHS contention that the statutes prohibit expunging the record of an allegation of child abuse determined to be unsubstantiated from the central registry for a period of three years. Arkansas Code Ann. 12-12-505 (Supp. 1991) provides that records in the DHS central registry of unfounded child abuse allegations be destroyed at the expiration of three years. While that provision might seem to permit some discretion to destroy a record prior to the passage of three years, we conclude the General Assembly intended such records be kept for the entire period. A provision requiring immediate expungement of a record not supported by "credible evidence" appearing in Act 397 of 1975 was repealed in favor of the current provision by 17 of Act 1208 of 1991. The repeal of that provision in combination with the provision requiring expungement after three years reveals the General Assembly's intent that the information be kept for three years.

2. Separation of powers

Mr. Heath argues the statute violates the separation of powers doctrine and usurps judicial functions as it restricts the inherent power of a court to fashion an appropriate remedy and order expungement of a record. He cites United States v. Dooley, 364 F. Supp. 75 (E.D. Penn. 1973) and United States v. Linn, 513 F.2d 925 (10th Cir. 1975). [312 Ark Page 210]

In the Dooley case, the defendant sought to have arrest records eradicated following an acquittal. The Court refused, indicating that such a determination was a legislative function even though it expressed grave concern with the potential for an invasion of the privacy of the individual if the information were to fall into the wrong hands.

The Linn case involved an attorney acquitted of all charges in a 59-count indictment. He sought expungement, but the Court declined, concluding that acquittal alone, without a showing that the records had been or would be improperly or intrusively used, was not sufficient to require expungement.

[2] The cases are not helpful to Mr. Heath's cause. Arkansas Code Ann. 12-12-506 (Supp. 1991) limits the disclosure of unfounded allegations to DHS offices for purposes of the administration of adoption, foster care, children's protective services programs, or child care licensing programs. There can be no further disclosure of this information, and there has been no showing that the retained information is being misused or that that will occur in the future. We agree with DHS that there has been no invasion of the judicial function by this enactment.

3. Due Process

Neither the statute nor DHS policy provides a process by which one wrongfully accused of child maltreatment may have one's name removed from the registry prior to the expiration of three years. Mr. Heath argues that this lack of process to deal with records concerning unfounded claims, coupled with potential negative consequences resulting from possible wrongful dissemination, renders the legislation violative of his right to due process of law.

[3] It is Mr. Heath's burden to show that the Act is unconstitutional, Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991). This is an especially heavy burden as legislation is presumed not to be unconstitutional. First National Bank v. Arkansas State Bank Comm'r, 301 Ark. 1, 781 S.W.2d 744 (1989).

[4] We made it clear in the First National Bank case that one challenging legislation as a deprivation of due process of law must show that a property interest is at stake. That was also one of [312 Ark Page 211]

the holdings in Board of Regents v. Roth, 408 U.S. 564 (1972). Mr. Heath argues the potential injury to his reputation constitutes a deprivation of a property interest. The law does not support his claim.

[5] The Supreme Court in Paul v. Davis, 424 U.S. 693 (1976), was confronted with the publication of Davis's name on a Louisville police flyer with names and photographs of active shoplifters. Davis complained that the infliction by state officials of a "stigma" to one's reputation was an infliction of harm actionable under 48 U.S.C.S. 1983 and the Fourteenth Amendment. The Court reversed the Sixth Circuit Court of Appeals and stated:

The second premise upon which the result reached by the Court of Appeals could be rested - that the infliction by state officials of a `stigma' to one's reputation is somehow different in kind from infliction by a state official of harm to other interests protected by state law is equally untenable. The words `liberty' and `property' as used in the Fourteenth Amendment do not in terms single out reputation as a candidate for special protection over and above other interests that may be protected by state law. While we have in a number of our prior cases pointed out the frequently drastic effect of the `stigma' which may result from defamation by the government in a variety of contexts, this line of cases does not establish the proposition that reputation alone, apart from some more tangible interests such as employment, is either liberty' or property' by itself sufficient to invoke the procedural protection of the Due Process Clause. As we have said, the Court of Appeals, in reaching a contrary conclusion, relied primarily upon Wisconsin v. Constantineau, 400 U.S. 433 (1971). We think the correct import of that decision, however, must be derived from an examination of the precedents upon which it relied, as well as consideration of the other decisions by this Court, before and after Constantineau, which bear upon the relationship between governmental defamation and the guarantees of the Constitution. While not uniform in their treatment of the subject, we think that the weight of our decisions establishes no constitutional doctrine converting every defamation by a public official [312 Ark Page 212]

into a deprivation of liberty within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment. 424 U.S. 701, 702.

The Constantineau case involved a Wisconsin statute providing that designated persons could forbid the sale of liquor to persons who exposed their families to want or became dangerous to the peace. Constantineau had been posted as one of those persons by the chief of police of Hartford. The District Court granted an injunction against enforcement of the statute finding it unconstitutional as it provided no process to the individual so labeled, and the Supreme Court upheld the injunction saying, "We agree with the District Court that the private interest is such that those requirements of procedural due process [notice and opportunity to be heard] must be met" and "[o]nly when the whole proceedings leading to the pinning of an unsavory label on a person are aired can oppressive results be prevented."

Clearly the import of the Paul case was to limit the holding in the Constantineau case to its facts and to make it clear that a potential injury to reputation did not involve a due process violation. The Paul case is ...


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