FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION [NO.
60CV-17-442] HONORABLE WENDELL GRIFFEN, JUDGE
Sterling, Office of Chief Counsel; and Richard Rosen, Office
of Chief Counsel, for appellant.
De Liban, Legal Aid of Arkansas, for appellees.
A. WOMACK, ASSOCIATE JUSTICE
Arkansas Department of Human Services (DHS) challenges the
permanent injunction against its 2015 ARChoices Medicaid
waiver rule. While this appeal was pending, the agency
promulgated a new rule and the circuit court dissolved the
injunction. We accordingly find that the instant case is moot
and therefore dismiss the appeal.
recitation of the factual history underlying this appeal can
be found in our first review of the case. See Ark.
Dep't of Human Servs. v. Ledgerwood, 2017 Ark. 308,
530 S.W.3d 336 (Ledgerwood I). In Ledgerwood
I, we upheld the circuit court's temporary
restraining order enjoining the 2015 ARChoices Medicaid
waiver rule as applied to the named Plaintiff-Appellees. On
remand, the circuit court entered a permanent injunction
against the program in its entirety. DHS was permanently
enjoined from using the methodology embraced by that rule
unless or until it was properly promulgated under the
Administrative Procedure Act (APA). This appeal followed. But
during the course of this appeal, DHS promulgated a new rule.
The circuit court found DHS had properly promulgated the
rule, which remains in effect today, and dissolved the
permanent injunction at issue here.
we reach the merits, we must first assess whether the instant
appeal is moot given that the permanent injunction has been
dissolved. As a general rule, this court will not review
issues that are moot. See Terry v. White, 374 Ark.
387, 391, 288 S.W.3d 199, 202 (2008). To do so would be to
render advisory opinions, which this court will not do.
Id. A case is moot when any judgment rendered would
not have any practical legal effect upon a then existing
legal controversy. Id. In other words, a moot case
presents no justiciable issue for determination by the court.
permanent injunction at the center of this appeal no longer
stands. DHS promulgated a new final rule that has been in
effect since October 1, 2018. The circuit court determined
that new rule was properly promulgated under the APA and
subsequently dissolved the permanent injunction. This
occurred during the briefing of this appeal. There is
accordingly no live controversy for this court to resolve and
the case is undoubtedly moot.
mootness alone does not foreclose our consideration of issues
on appeal. We have recognized two exceptions to the mootness
doctrine: matters capable of repetition yet evading review
and matters of substantial public interest that are likely to
be litigated in the future. See Protect Fayetteville v.
City of Fayetteville, 2019 Ark. 28, at 3, 566 S.W.3d
105, 108. An issue capable of repetition yet evading review
arises when the justiciable controversy will necessarily
expire or terminate prior to adjudication. See Wright v.
Keffer, 319 Ark. 201, 203, 890 S.W.2d 271, 272 (1995).
The other exception applies where considerations of
substantial public interest or the prevention of future
litigation are present. See Duhon v. Gravett, 302
Ark. 358, 360, 790 S.W.2d 155, 156 (1990). That said,
"the choice remains ours as to whether we may elect to
settle an issue" that is moot. Id. And we do
not improvidently utilize either exception. See Protect
Fayetteville, 2019 Ark. 28, at 3, 566 S.W.3d at 108
urges that this case falls within both exceptions. It argues
that the circuit court's interpretation of
"substantial compliance" under the APA presents an
issue capable of repetition yet evading review and an issue
of substantial public interest. It likewise claims the
circuit court's decision that DHS's promulgation of
the 2015 rule was an ultra vires act falls under the former
exception. We disagree.
juncture, we see no reason to determine what threshold is
contemplated by "substantial" compliance and
whether failure to meet that threshold is an ultra vires act.
DHS will only be in this position again if they fail to
substantially comply with the APA. Moreover, this case was
rendered moot after DHS substantially complied with those
requirements during the promulgation of the current rule. It
is not impossible for the challenged interpretation of
"substantial compliance" and "ultra
vires" to reach our court as a live controversy. That it
did not do so here is no reason to apply an exception to
mootness. And because the determination of "substantial
compliance" may turn on facts specific ...