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, by: Mason L.
Boling, for appellee.
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 and
had notice of this action as evidenced by the fact that it
submitted its findings and record to the circuit court;
despite this, the Committee failed to raise this issue until
well into the proceedings.
In
light of the foregoing analysis, we conclude that the circuit
court did not err by denying the Committee's request for
dismissal and allowing Cochran to amend his petition for
judicial review to designate the Committee rather than SOCNA
as the respondent. To the extent that the circuit court did
not apply the same line of reasoning as we do on this issue,
the circuit court may be ...