APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60OT-50-6]
HONORABLE TIMOTHY DAVIS FOX, JUDGE
Clarence J. Ashby, pro se appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
R. BAKER, Associate Justice.
Clarence Ashby submitted to the Pulaski County Circuit Court
a petition for leave to proceed in forma pauperis so that he
might initiate an action seeking "writs of prohibitory
petitions" challenging a risk assessment made under the
Sex Offender Registration Act (SORA) codified at Arkansas
Code Annotated sections 12-12-901 to -927 (Repl. 2016). We
remanded this case to the circuit court, directing that a
supplemental record be lodged that included properly
file-marked pleadings in accordance with our holding in
Dunahue v. Dennis, 2016 Ark. 285 (per curiam).
Ashby v. State, 2017 Ark. 86, at 1-2 (per curiam).
accordance with this court's direction, the circuit court
submitted a supplemental record that contains Ashby's
petition to proceed in forma pauperis and his pleading
entitled "writs of prohibitory petitions, "
properly filed marked by the Pulaski County Circuit Clerk.
The circuit court's order denied Ashby's petition to
proceed in forma pauperis, and it is from this order that
Ashby brings this appeal. Under Rule 72 of the Arkansas Rules
of Civil Procedure (2016), the right to proceed in forma
pauperis is based on indigency and the circuit court's
satisfaction that the alleged facts indicate a colorable
cause of action. Watts v. Kelley, 2017 Ark. 189, at
2. A colorable cause of action is a claim that is legitimate
and may reasonably be asserted given the facts presented and
the current law or a reasonable and logical extension or
modification of it. Id. Because Ashby failed to
state a colorable cause of action warranting the issuance of
a writ of prohibition, we affirm. See DeSoto Gathering
Co., LLC v. Ramsey, 2016 Ark. 22, at 4, 480 S.W.3d 144,
147 (Writs of prohibition are prerogative writs, extremely
narrow in scope and operation, and they are to be used with
great caution and forbearance.).
mandates that the circuit court make a specific finding of
indigency based on the petitioner's affidavit. Here, the
circuit court entered an order denying the petition without
making specific findings of fact with respect to Ashby's
indigency and did not address whether Ashby's underlying
prohibition petition stated a colorable claim. A review of
the record and supplemental record demonstrates that Ashby
filed a petition asking the circuit court to issue a writ of
prohibition and named the State of Arkansas as the
respondent. In this petition, Ashby alleged that the Sex
Offender Community Notification Assessment Committee (SOCNA)
had erroneously assessed his risk level. Therefore, the
underlying claim for which Ashby seeks to proceed as an
indigent is such that a remand for findings of fact is not
necessary as it is clear that Ashby's prohibition
petition clearly fails to state a colorable cause of action
because it fails to present a justiciable issue as a matter
of law. See T.J. ex rel. Johnson v. Hargrove, 362
Ark. 649, 656, 210 S.W.3d 79, 83 (2005). As to issues of law
presented, our review is de novo. Hobbs v. Jones,
2012 Ark. 293, at 8, 412 S.W.3d 844, 850 (2012).
of prohibition have been narrowly defined and provide relief
that bars, or prohibits, a lower court from proceeding with a
matter. DeSoto Gathering Co., 2016 Ark. 22, at 3-4,
480 S.W.3d at 147. The purpose of a writ of prohibition is to
restrain an inferior court or tribunal from proceeding in a
matter not within its jurisdiction. Id.; Macon
v. LeCroy, 174 Ark. 228, 232, 295 S.W. 31, 33 (1927);
see also Ark. Code Ann. § 16-115-101(2) (Repl.
2016). A writ of prohibition is only appropriate with respect
to persons about to exercise judicial or quasi-judicial
power. Robinson v. Merritt, 229 Ark. 204, 206, 314
S.W.2d 214, 215 (1958). Whether a writ of prohibition can
issue is a legal rather than a factual question. Bonnell
v. Smith, 322 Ark. 141, 143, 908 S.W.2d 74, 75 (1995).
Finally, a writ of prohibition cannot be invoked to correct
an order already entered. DeSoto Gathering Co., 2016
Ark. 22, at 5, 480 S.W.3d at 147.
Ashby did not name an inferior tribunal of the Pulaski County
Circuit Court, but instead sought a writ of prohibition
against the State of Arkansas asking the circuit court to
correct a determination already made by a state agency in
accordance with SORA. Ark. Code Ann. §§ 12-12-901
to -927. The failure to name a necessary party presents no
justiciable issue. Wirges v. Bean, 238 Ark. 104,
110, 378 S.W.2d 641, 644 (1964) (petition for mandamus denied
because petitioner did not name a necessary party and
therefore did not present a justiciable issue). By naming the
State of Arkansas and challenging the actions of a state
agency rather than an inferior court, Ashby did not name a
necessary party who comes within the purview of a writ of
prohibition. DeSoto Gathering Co., 2016 Ark. 22, at
3-4, 480 S.W.3d at 147; Robinson, 229 Ark. at 206,
314 S.W.2d at 215. Moreover, allegations that fail to state a
claim upon which a remedy may be ordered likewise present no
justiciable issue that a circuit court would have the
authority to redress. See T.J. ex rel. Johnson, 362
Ark. at 656, 210 S.W.3d at 83 (petitioner failed to plead
facts giving rise to a legal remedy, and trial court did not
abuse its discretion in dismissing the petition for lack of
justiciable issue). As stated, Ashby's allegations
pertain to an assessment carried out by state officials in
accordance with the requirements and procedures outlined in
SORA. See Ark. Code Ann. §§
12-12-906(2)(C)(i)(a), 12-12-913(c)(1), and 12-12-917(a)(1);
see also Burchette v. Sex Offender Screening & Risk
Assessment Comm., 374 Ark. 467, 469, 288 S.W.3d 614, 616
(2008). A writ of prohibition is not a remedy that is
available to control the exercise of official duties carried
out by an officer with the executive branch of government
that are neither judicial nor quasi-judicial. DeSoto
Gathering Co., 2016 Ark. 22, at 3-4, 480 S.W.3d at 147;
Robinson, 229 Ark. at 206, 314 S.W.2d at 215.
of the above, the denial of Ashby's in forma pauperis
petition is affirmed without the necessity of further
findings of fact under Rule 72 because Ashby's underlying
petition for a writ of ...