FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO.
60CV-17-7559], HONORABLE TIMOTHY DAVIS FOX JUDGE
Rosenzweig; and Hilburn, Calhoon, Harper, Pruniski & Calhoun,
Ltd., by: Hannah E. Wood, for appellant.
Claire McLaurin, Arkansas State Police, for appellee.
F. WYNNE, Associate Justice
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 states 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.
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.
application was denied, and he filed an administrative
appeal. A hearing officer with the Arkansas State Police
recommended that Hackies 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 states 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
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.
issue before this court on direct appeal is whether the
circuit court erred in concluding that Hackies petition for
review under the APA was barred by the states sovereign
immunity from suit. We hold that the circuit courts
conclusion is erroneous.
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 states constitutional immunity
because the petition merely sought review of the Commissions
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.
the petition for review in this case solely seeks review of
Col. Bryants administrative decision denying Hackies
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.
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 ...