Hackie v. Bryant

          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.

         OPINION

         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.

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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 ...