ERIC C. BURGIE APPELLANT
STATE OF ARKANSAS APPELLEE
APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION
[NO. 60CV-18-2076] HONORABLE WENDELL GRIFFEN, JUDGE
C. Burgie, pro se appellant.
Rutledge, Att'y Gen., by: Christian Harris, Ass't
Att'y Gen., for appellee.
ROBINF. WYNNE, ASSOCIATE JUSTICE
Eric C. Burgie sought to proceed as a pauper in the circuit
court with a petition for declaratory judgment. Burgie
appeals the order denying his petition for leave to proceed
in forma pauperis, and he asserts error in the circuit
court's finding that his declaratory-judgment petition
failed to demonstrate a colorable cause of action. Because
the circuit court did not abuse its discretion in finding
that Burgie should not be permitted to proceed as a pauper,
standard of review of a decision to grant or deny a petition
to proceed in forma pauperis is abuse of discretion, and the
circuit court's factual findings in support of its
exercise of discretion will not be reversed unless clearly
erroneous. Whitney v. Guterres, 2018 Ark. 133,
cert. denied, 139 S.Ct. 482 (2018). An abuse of
discretion occurs when the court acts arbitrarily or
groundlessly. Whitney v. State, 2018 Ark. 138.
Rule of Civil Procedure 72 (2017) conditions the right to
proceed in forma pauperis in civil matters on indigency and
the circuit court's satisfaction that the alleged facts
indicate "a colorable cause of action." Ark. R.
Civ. P. 72(c). 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. Penn v. Gallagher,
2017 Ark. 283.
case, the circuit court failed to make findings on
Burgie's indigency. While this was error, when there are
obvious defects in the underlying petition, this court may
nevertheless dispose of an appeal from the denial of in forma
pauperis proceedings. Wood v. State, 2017 Ark. 290.
If the underlying petition clearly fails to state a colorable
cause of action, there has been no abuse of discretion, and
this court may summarily affirm the denial of in forma
pauperis status. Gardner v. Kelley, 2018 Ark. 300;
see also Ashby v. State, 2017 Ark. 233.
sought a declaratory judgment that our procedural rules
governing postconviction relief for those persons not under a
sentence of death, Arkansas Rule of Criminal Procedure
37.1-37.4 (2017), are unconstitutional. He alleged that these
procedural rules are unconstitutional as applied to him
because he was denied assistance of counsel in raising his
claims of ineffective assistance under Rule 37 and that this
constituted a denial of due process because Arkansas is a
state in which collateral-review proceedings are the first
time when a prisoner may practically assert this type of
challenge to his conviction. He contends that because he is
indigent and confined, he was unable, without appointment of
counsel, to develop the evidentiary basis for a claim of
ineffective assistance of counsel. He also contends that the
failure to have counsel in the proceedings was an impediment
to seeking federal habeas relief. He would have the court
declare that, as a result of the alleged defects in the
procedural rules, the rules must be modified to require
appointment of counsel and he should be permitted to file a
new petition under the modified rules.
relief may be granted if the petitioner establishes (1) a
justiciable controversy; (2) that the controversy is between
persons whose interests are adverse; (3) that the party
seeking relief has a legal interest in the controversy; and
(4) that the issue involved in the controversy is ripe for
judicial determination. Rogers v. Knight, 2017 Ark.
267, 527 S.W.3d 719. A controversy is justiciable when a
claim of right is asserted against one who has an interest in
contesting it. Id. Declaratory relief is intended to
supplement rather than supersede ordinary causes of action.
Martin v. Equitable Life Assur. Soc'y of the
U.S., 344 Ark. 177, 40 S.W.3d 733 (2001). It is not a
substitute for an ordinary cause of action, nor is it a
proper means of trying a case. City of Fort Smith v.
Didicom Towers, Inc., 362 Ark. 469, 209 S.W.3d 344
challenged our rules for postconviction relief only on the
basis that those rules fail to require appointment of counsel
to assist a prisoner in applying for that postconviction
relief. The right he asserts is one to have counsel appointed
for Rule 37 proceedings. He admits that he previously filed a
Rule 37.1 petition without success, and this is the type of
issue he could have raised and addressed in those
proceedings. Declaratory relief may not be used in
substitution for the ordinary cause of action.
the argument that Burgie relies on is not a viable one, given
the facts presented and the current law or a reasonable and
logical extension or modification of it. The same claim that
Burgie makes in his declaratory-judgment petition has in fact
been raised in Rule 37 proceedings and reviewed and rejected
by this court on a number of occasions. E.g.,
Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259
(noting that Martinez v. Ryan, 566 U.S. 1 (2012),
and Trevino v. Thaler, 569 U.S. 413 (2013), do not
dictate appointment of counsel in postconviction
proceedings). Because the underlying petition clearly failed
to state a colorable cause of action, the circuit court did
not abuse its discretion, and the decision denying in forma
pauperis status is affirmed.
Goodson, and ...