Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Swenson v. Kane

Supreme Court of Arkansas

October 30, 2014

LOIS SWENSON, APPELLANT
v.
SHELLEY KANE, GUARDIAN, APPELLEE

APPEAL FROM THE SALINE COUNTY CIRCUIT COURT. NO. 63PR-13-318-2. HONORABLE GARY M. ARNOLD, JUDGE.

Ray Baxter, P.A., by: J. Ray Baxter, for appellant.

Law Office of Paul D. White, P.A., by: Paul D. White, for appellee.

OPINION

KAREN R. BAKER, Associate Justice.

This appeal stems from the Saline County Circuit Court's appointment of Shelley Kane, appellee, as guardian of T.S., her minor niece. Kane is T.S.'s maternal aunt and a resident of Texas. Lois Swenson, appellant, is the adoptive mother of T.S.

On June 21, 2013, citing Swenson's declining health, Kane filed for emergency temporary guardianship of T.S. On June 24, 2013, the circuit court appointed Kane as temporary guardian. On August 19, 2013, Swenson filed a " Petition to Return Child." On August 26, 2013, the circuit court conducted a hearing and denied the petition. On August 28, 2013, the circuit court again appointed Kane as temporary guardian.

On September 9, 2013, Swenson filed an " Answer of Lois Swenson to Notice of Final Hearing," arguing that Ark. Code Ann. § 28-65-203(f)(1) (Repl. 2012) was unconstitutional because it creates a procedural

Page 119

law regarding service, which is a power reserved to this court by Amendment 80 and not the legislature. On September 13, 2013, Kane filed for permanent guardianship of T.S. On September 16, 2013, the circuit court conducted a " final hearing" on the guardianship and also heard arguments regarding the constitutionality of the statute. On October 23, 2013, the circuit court appointed Kane as a permanent guardian of T.S. and deemed Ark. Code Ann. § 28-65-203 constitutional because its provisions are " special proceedings" pursuant to Rule 81 of the Arkansas Rules of Civil Procedure (2014).

From that order, Swenson appealed to the Arkansas Court of Appeals. This court accepted certification of this case from the court of appeals pursuant to Ark. S.Ct. R. 1-2(d). For her sole point on appeal, Swenson asserts that Ark. Code Ann. § 28-65-203(f)(1) alters the norms of service of process, which violates amendment 80, section 3, of the Arkansas Constitution. At issue is the circuit court's October 23, 2013 order where the circuit court held that Ark. Code Ann. " § 28-65-203 is deemed constitutional as its provisions are 'special proceedings' and/or pursuant to Rule 81(c), Rules of Civil Procedure."

" This court reviews both the circuit court's interpretation of the constitution as well as issues of statutory interpretation de novo, because it is for this court to determine the meaning of a statute." Forrester v. Martin, 2011 Ark. 277, 3, 383 S.W.3d 375, 378 (internal citations omitted). There is a presumption of validity attending every consideration of a statute's constitutionality. Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135 (citing Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744 (2007)). Any doubt as to the constitutionality of a statute must be resolved in favor of its constitutionality. Id.

With these standards in mind, we turn to the applicable laws. First, the separation-of-powers provisions of the Arkansas Constitution are found in article 4 and provide as follows:

The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another.
No person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.