Sex Offender Assessment Committee v. Cochran

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          APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CV-17-672], HONORABLE BRAD KARREN, JUDGE

         Leslie Rutledge, Att’y Gen., by: Nga Mahfouz, Sr. Ass’t Att’y Gen., for appellee.

         Keith, Miller, Butler, Schneider & Pawlik, PLLC, Rogers, by: Mason L. Boling, for appellee.

         OPINION

         MIKE MURPHY, Judge

          Appellant Sex Offender Assessment Committee (Committee) brings this appeal from the Benton County Circuit Court’s order of April 19, 2018, which reduced appellee Wyatt Cochran’s community-notification risk assessment from a Level 3 to a Level 2. The Committee now brings this appeal pursuant to the Administrative Procedure Act (APA), Arkansas Code Annotated § § 25-15-201 et seq., arguing that the circuit court erred when it (1) permitted the Committee to be substituted as the respondent after the suit had been filed; (2) admitted certain medical records not contained in the administrative record filed with the court; (3) found that Cochran’s due-process rights were violated; (4) found that the Committee’s decision was not supported by substantial evidence; (5) found that the Committee’s decision was arbitrary and capricious; and (6) found that Cochran’s substantial rights were prejudiced by depriving him access to a higher education. We affirm in part and reverse in part.

         In 2016, Cochran pleaded guilty to computer child pornography in violation of Arkansas Code Annotated § 5-27-603 (Repl. 2013), was ordered to serve ten years’ probation, and was required to register as a sex offender and comply with registry requirements. Cochran was assessed by a division of the Arkansas Department of Correction known as the Sex Offender Community Notification Assessment Unit (SOCNA) and was assigned as a "Community Notification Risk Level 3." Cochran timely requested an administrative review from the Committee, asserting that substantial evidence did not support the Level 3 assessment, that the SOCNA staff did not properly follow rules and procedures because there was neither a thorough review of Cochran’s mental-health or treatment records nor an attempt by SOCNA to contact the treatment providers, and there appeared to be no significant psychological testing completed. Cochran submitted additional information to the Committee for its review, which consisted of a letter from the Teen Action & Support Center confirming that Cochran had completed eight counseling sessions before being referred to Ozark Guidance for group counseling, another letter confirming he had completed group counseling from Ozark Guidance, and the number and contact information for Cochran’s counselor at Fresh Roots. The Teen Action & Support Center letter also confirmed that the Center had not received any requests regarding information needed to establish an appropriate level for the sex-offender registry.

          After reviewing the additional documentation and the SOCNA file, among other things, with Cochran’s assessment interview, the Committee voted to uphold the Level 3 assessment. Specifically, the Committee found that the allegation that staff failed to obtain records of Cochran’s treatment did not warrant setting aside his Level 3 assessment because it appeared that "the SOCNA staff took [Cochran] at his word" in the interview. Cochran timely sought judicial review.

          Following the first status hearing on June 6, 2017, upon no motion of either party, the circuit court entered an order finding an "irregularity in the proceedings below not fully developed by the record." Specifically, the circuit court stated that the Committee noted in its review that a failure to obtain Cochran’s mental-health records was not a basis to set aside the assessment because the Committee took Cochran "at his word," yet one of the interviewers accused Cochran of lying and "not being honest." The circuit court found that Cochran’s mental-health records from the Teen Action & Support Center, Ozark Guidance, and Fresh Roots were relevant and should be admitted into evidence to determine whether his treatment enhanced his impulse control and decreased the likelihood of reoffending. The court found these records relevant and admissible but ordered that no additional evidence or expert testimony would be allowed. Ultimately, only records from the Teen Action & Support Center were admitted.

          At a motion hearing on January 29, 2018, the circuit court heard testimony regarding the Committee’s requested dismissal on the basis that it had been incorrectly identified as "Arkansas Department of Correction (SOCNA)" as opposed to "Arkansas Department of Correction Sex Offender Assessment Committee (SOAC)." The circuit court denied the dismissal, finding that the APA allows for modification of documents, and it gave Cochran thirty days to amend the petition, which he timely did.

          On April 19, 2018, after reviewing the record and the briefs and hearing counsel’s arguments, the circuit court modified Cochran’s Level 3 assessment to a Level 2, finding that substantial evidence did not support a Level 3 assessment and that the agency had violated Cochran’s due-process rights and prejudiced his substantial rights. The Committee timely appealed.

         The Committee first argues that because Cochran did not sue the Committee within the thirty-day deadline imposed by the APA, his petition for judicial review should have been denied. Upon receipt of the findings, Cochran was required to file a petition for judicial review within thirty days of his receipt of the Committee’s final findings. Ark. Code Ann. § 12-12-922(b)(7)(A)(ii) (Repl. 2016). Arkansas Code Annotated section 12-12-922(b)(8)(A)(i) provides that a copy of the petition for judicial review shall be served on the executive secretary of the committee in accordance with the Arkansas Rules of Civil Procedure. When the petition for judicial review has been served on the executive secretary of the committee, a record of the committee’s findings and copies of all records in its possession shall be furnished by the committee to the circuit court within thirty days of service. Ark. Code Ann. § 12-12-922(b)(8)(A)(ii).

         The Committee asserts that it issued the judicially reviewable decision on May 10, 2017, but was not named a party to the action until February 21, 2018. According to the record, Cochran commenced this case by filing his petition for judicial review on April 21, 2017, despite the fact that the Committee had yet to issue its decision.^[1] On May 5, a hearing was set in the circuit court for June 6. On May 10, the Committee issued its decision upholding the Level 3 assessment. On June 6, Cochran filed an amended petition addressing the Committee’s review. However, both the original and the amended petition for judicial review designated "Arkansas Department of Correction (SOCNA)" as the only respondent. The certificate of service shows that Cochran served the petitions on "Sheri J. Flynn, SOCNA Administrator, Arkansas Department of Administration." It was not until December 7, 2017, in its respondent’s brief, that the Committee accused Cochran of failing to name the proper respondent and argued that this failure warranted dismissal of the action. The circuit court disagreed, finding that the APA allows for modification of documents and that Cochran had thirty days to amend the petition and serve the Committee.

         The Committee characterizes itself and SOCNA as two separate parties and entities.^[2] We disagree. Both are a division of the Arkansas Department of Correction; both share the same P.O. Box for service of process; both were represented before the circuit court by the Arkansas Attorney General’s Office; and they each responded identically to the "Petition for Judicial Review." Additionally, the letter stating that the Committee had received notice of an administrative review was written on SOCNA letterhead, even though the request itself was addressed to the Committee. Lastly, the record before us does not contain any evidence explaining who the executive secretary of the Committee is and who should have been served per Arkansas Code Annotated section 12-12-922(b)(8)(A)(i). The Committee was not prejudiced ...