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APPEAL
FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CV-17-672],
HONORABLE BRAD KARREN, JUDGE
Leslie
Rutledge, Atty Gen., by: Nga Mahfouz, Sr. Asst Atty 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 Courts
order of April 19, 2018, which reduced appellee Wyatt
Cochrans 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
Cochrans due-process rights were violated; (4) found that
the Committees decision was not supported by substantial
evidence; (5) found that the Committees decision was
arbitrary and capricious; and (6) found that Cochrans
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 Cochrans 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 Cochrans 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 Cochrans 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 Cochrans 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 Cochrans 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 Cochrans
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 Committees 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 counsels arguments, the circuit court modified
Cochrans Level 3 assessment to a Level 2, finding that
substantial evidence did not support a Level 3 assessment and
that the agency had violated Cochrans 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 Committees 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 committees 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 Committees 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 respondents 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 Generals 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 ...