APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO.
60CV-17-7559 ] HONORABLE TIMOTHY DAVIS FOX JUDGE
Jeff
Rosenzweig; and Hilburn, Calhoon, Harper, Pruniski &
Calhoun, Ltd., by: Hannah E. Wood, for appellant.
Mary
Claire McLaurin, Arkansas State Police, for appellee.
ROBIN
F. WYNNE, ASSOCIATE JUSTICE
Kevin
Hackie appeals from an order of the Pulaski County Circuit
Court dismissing his petition for judicial review of an
administrative decision by Colonel William J. Bryant, in his
capacity as the director of the Arkansas State Police, on the
basis that the petition is barred by the state's
sovereign immunity from suit. Col. Bryant cross-appeals from
a portion of the order voiding his administrative decision.
We reverse the order in its entirety and remand on direct
appeal. The cross-appeal is dismissed as moot.
Hackie,
who is a California resident, submitted an application to the
Arkansas State Police for a Class C - Combined Security and
Investigations Company and Owner License in order to become
licensed as a private investigator in Arkansas. Col. Bryant,
as director of the Arkansas State Police, has the
administrative duty of considering such applications for
licensure. Ark. Code Ann. § 17-40-207(a)(3) (Repl.
2018). A background check revealed that Hackie had been
convicted in California of felony forgery in December 1996
and felon in possession of a firearm in November 1999. Hackie
served his sentences and received a certificate of
rehabilitation from the State of California in 2007.
Hackie's
application was denied, and he filed an administrative
appeal. A hearing officer with the Arkansas State Police
recommended that Hackie's application be denied. Col.
Bryant entered an administrative order finding that Hackie
was ineligible to receive a license due to his prior
convictions. Hackie petitioned the Pulaski County Circuit
Court for review. Review of a decision to deny a license
application is governed by the Arkansas Administrative
Procedure Act (APA). Ark. Code Ann. § 17-40-355(a)
(Repl. 2018). Col. Bryant filed a motion to dismiss the
petition, contending that it was barred by the state's
sovereign immunity. The circuit court granted the motion to
dismiss. It also voided the administrative order entered by
Col. Bryant based on lack of a procedure for review of the
decision. Hackie filed a motion for new trial, which was
denied. This appeal and cross-appeal followed.
Article
5, § 20 of the Arkansas Constitution provides: "The
State of Arkansas shall never be made defendant in any of her
courts." A suit against the state is barred by the
sovereign-immunity doctrine if a judgment for the plaintiff
will operate to control the action of the state or subject it
to liability. See id. Whether a party is immune from
suit is purely a question of law and is reviewed de novo.
Ark. Cmty. Corr. v. Barnes, 2018 Ark. 122');">2018 Ark. 122, 542
S.W.3d 841.
The
issue before this court on direct appeal is whether the
circuit court erred in concluding that Hackie's petition
for review under the APA was barred by the state's
sovereign immunity from suit. We hold that the circuit
court's conclusion is erroneous.
In
Arkansas Oil & Gas Commission v. Hurd, 2018 Ark.
397, 564 S.W.3d 248, the circuit court dismissed a petition
for review under the APA as barred by sovereign immunity,
declared provisions of the APA unconstitutional, and declared
the action of the Arkansas Oil & Gas Commission void ab
initio. On appeal, this court held that the petition for
review was not barred by the state's constitutional
immunity because the petition merely sought review of the
Commission's decision and stated no cause of action
against the Commission. Under those circumstances, the
Commission was not "made a defendant" for the
purposes of article 5, § 20. 2018 Ark. 397, at 11, 564
S.W.3d at 255.
Likewise,
the petition for review in this case solely seeks review of
Col. Bryant's administrative decision denying
Hackie's application for a license. No cause of action is
stated against Col. Bryant in the petition. As with the
Commission in Hurd, Col. Bryant is acting in a
quasi-judicial capacity and has no vested interest in the
outcome of the appeal other than whether his decision to deny
the application is upheld.
In
Hurd, the Commission adjudicated a dispute between
two private litigants, whereas here, Col. Bryant was
considering a license application, not an existing dispute.
The distinction makes no difference, however, because it has
been clear since well before the enactment of the APA that a
proceeding to challenge an administrative decision by a state
entity is not one against the state for purposes of article
5, § 20. The APA was enacted in 1967. Act of March 16,
1967, No. 434, 1967 Ark. Acts 996. In Hall v.
Bledsoe, 126 Ark. 125, 189 S.W. 1041 (1916), Dr. E.P.
Bledsoe filed a petition for writ of certiorari in the
Pulaski County Circuit Court seeking review of a decision by
the board of control for the charitable institution of the
state to remove him from his position as superintendent of
the State Hospital for Nervous Diseases. On appeal, this
court rejected an argument by the board of control that the
petition constituted an action against the state, stating:
In the first place, it appears clear to us that this is not,
as contended by counsel for appellants, a suit against the
state. It is merely a review of the proceedings of a tribunal
created by the state to perform certain functions; the one
exercised in this instance being quasi judicial. The rights
of the state are in no wise drawn into the controversy; for
the proceeding merely raises the question of regularity and
correctness of the action of the board in removing Dr.
Bledsoe from the office which he held. The state is not
sued, either directly or indirectly. That feature of the
discussion may therefore be dismissed without further
comment.
126 Ark. at 130, 189 S.W. at 1042 (emphasis supplied). In
considering Hackie's application, Col. Bryant was simply
carrying out the administrative duties prescribed to him by
statute. As in Hall, the state was not sued, either
directly or indirectly, by the filing of a petition for
circuit-court review. The enactment of the APA did not alter
this; it simply set out the procedure to be followed. Because
the state's sovereign immunity from suit does not apply
to this proceeding, the circuit court erred by dismissing the
petition ...