Cite as 2019 Ark. 228 SUPREME COURT OF ARKANSAS No.: CV-18-623
Opinion Delivered: June 20, 2019
KEVIN HACKIE APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT, SIXTH DIVISION V. [NO. 60CV-17-7559 ]
COLONEL WILLIAM J. BRYANT, IN HONORABLE TIMOTHY DAVIS FOX HIS CAPACITY AS DIRECTOR OF THE JUDGE ARKANSAS STATE POLICE APPELLEE REVERSED AND REMANDED ON DIRECT APPEAL; CROSS-APPEAL DISMISSED AS MOOT.
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. 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, 542 S.W.3d 841.
2 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 challenge an administrative decision by a
state entity is not one against the state for purposes of article 5, § 20. The APA was
3 enacted in 1967. Act of March 16, 1967, No. 434, 1967 Ark. Acts 996. In Hall v. Bledsoe,
126 Ark. 125, 189 S.W. 1041 (1916), Dr. E.P. Bledsoe filed a petition for writ of certiorari
in the Pulaski County Circuit Court seeking review of a decision by the board of control
for the charitable institution of the state to remove him from his position as
superintendent of the State Hospital for Nervous Diseases. On appeal, this court rejected
an argument by the board of control that the petition constituted an action against the
state, stating:
In the first place, it appears clear to us that this is not, as contended by counsel for appellants, a suit against the state. It is merely a review of the proceedings of a tribunal created by the state to perform certain functions; the one exercised in this instance being quasi judicial. The rights of the state are in no wise drawn into the controversy; for the proceeding merely raises the question of regularity and correctness of the action of the board in removing Dr. Bledsoe from the office which he held. The state is not sued, either directly or indirectly. That feature of the discussion may therefore be dismissed without further comment.
126 Ark. at 130, 189 S.W. at 1042 (emphasis supplied). In considering Hackie’s
application, Col. Bryant was simply carrying out the administrative duties prescribed to
him by statute. As in Hall, the state was not sued, either directly or indirectly, by the filing
of a petition for circuit-court review. The enactment of the APA did not alter this; it
simply set out the procedure to be followed. Because the state’s sovereign immunity from
suit does not apply to this proceeding, the circuit court erred by dismissing the petition on
that basis. The order on appeal is reversed in its entirety and the matter is remanded to
the circuit court for further proceedings.
4 Col. Bryant argues on cross-appeal that the circuit court erred by voiding his
decision to deny Hackie’s application. The circuit court did so under the erroneous
assumption that the state’s constitutional immunity barred this proceeding, leaving Hackie
with no avenue to challenge Col. Bryant’s decision. As it was demonstrated above that this
is not the case, and the entire order has been reversed and remanded, the cross-appeal is
dismissed as moot.
Reversed and remanded on direct appeal; cross-appeal dismissed as moot.
BAKER, J., dissents.
KAREN R. BAKER, Justice, dissenting. I disagree with the majority’s decision on
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Cite as 2019 Ark. 228 SUPREME COURT OF ARKANSAS No.: CV-18-623
Opinion Delivered: June 20, 2019
KEVIN HACKIE APPEAL FROM THE PULASKI APPELLANT COUNTY CIRCUIT COURT, SIXTH DIVISION V. [NO. 60CV-17-7559 ]
COLONEL WILLIAM J. BRYANT, IN HONORABLE TIMOTHY DAVIS FOX HIS CAPACITY AS DIRECTOR OF THE JUDGE ARKANSAS STATE POLICE APPELLEE REVERSED AND REMANDED ON DIRECT APPEAL; CROSS-APPEAL DISMISSED AS MOOT.
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. 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, 542 S.W.3d 841.
2 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 challenge an administrative decision by a
state entity is not one against the state for purposes of article 5, § 20. The APA was
3 enacted in 1967. Act of March 16, 1967, No. 434, 1967 Ark. Acts 996. In Hall v. Bledsoe,
126 Ark. 125, 189 S.W. 1041 (1916), Dr. E.P. Bledsoe filed a petition for writ of certiorari
in the Pulaski County Circuit Court seeking review of a decision by the board of control
for the charitable institution of the state to remove him from his position as
superintendent of the State Hospital for Nervous Diseases. On appeal, this court rejected
an argument by the board of control that the petition constituted an action against the
state, stating:
In the first place, it appears clear to us that this is not, as contended by counsel for appellants, a suit against the state. It is merely a review of the proceedings of a tribunal created by the state to perform certain functions; the one exercised in this instance being quasi judicial. The rights of the state are in no wise drawn into the controversy; for the proceeding merely raises the question of regularity and correctness of the action of the board in removing Dr. Bledsoe from the office which he held. The state is not sued, either directly or indirectly. That feature of the discussion may therefore be dismissed without further comment.
126 Ark. at 130, 189 S.W. at 1042 (emphasis supplied). In considering Hackie’s
application, Col. Bryant was simply carrying out the administrative duties prescribed to
him by statute. As in Hall, the state was not sued, either directly or indirectly, by the filing
of a petition for circuit-court review. The enactment of the APA did not alter this; it
simply set out the procedure to be followed. Because the state’s sovereign immunity from
suit does not apply to this proceeding, the circuit court erred by dismissing the petition on
that basis. The order on appeal is reversed in its entirety and the matter is remanded to
the circuit court for further proceedings.
4 Col. Bryant argues on cross-appeal that the circuit court erred by voiding his
decision to deny Hackie’s application. The circuit court did so under the erroneous
assumption that the state’s constitutional immunity barred this proceeding, leaving Hackie
with no avenue to challenge Col. Bryant’s decision. As it was demonstrated above that this
is not the case, and the entire order has been reversed and remanded, the cross-appeal is
dismissed as moot.
Reversed and remanded on direct appeal; cross-appeal dismissed as moot.
BAKER, J., dissents.
KAREN R. BAKER, Justice, dissenting. I disagree with the majority’s decision on
direct appeal to reverse and remand this matter to the circuit court for further proceedings
and respectfully dissent for the reasons stated in my dissent in Arkansas Oil & Gas
Commission v. Hurd, 2018 Ark. 397, 564 S.W.3d 248.
On cross-appeal, Col. Bryant argues that the circuit court erred by voiding his
decision to deny Hackie’s application. The majority states that the circuit court voided
Col. Bryant’s decision on the “erroneous assumption that the state’s constitutional
immunity barred this proceeding, leaving Hackie with no avenue to challenge Col. Bryant’s
decision. As it was demonstrated above that this is not the case, and the entire order has
been reversed and remanded, the cross-appeal is dismissed as moot.” I disagree. Pursuant
to our case law, once the circuit court entered its order dismissing the case, that dismissal
terminated the circuit court’s jurisdiction. Sovereign immunity is jurisdictional immunity
5 from suit, and jurisdiction must be determined entirely from the pleadings. Bd. of Trustees
of Univ. of Ark. v. Andrews, 2018 Ark. 12, 535 S.W.3d 616 (citing LandsnPulaski, LLC v. Ark.
Dep’t of Corr., 372 Ark. 40, 269 S.W.3d 793 (2007); Clowers v. Lassiter, 363 Ark. 241, 213
S.W.3d 6 (2005); Ark. Tech Univ. v. Link, 341 Ark. 495, 17 S.W.3d 809 (2000)). “[W]here
sovereign immunity is applicable, the trial court acquires no jurisdiction. Grine v. Bd. of
Trustees, 338 Ark. 791, 2 S.W.3d 54 (1999).” Bd. of Trustees of Univ. of Ark. v. Crawford Cty.
Circuit Court, 2014 Ark. 60, at 2, 431 S.W.3d 851, 851. Accordingly, because sovereign
immunity barred suit, the circuit court did not have jurisdiction to void Col. Bryant’s
decision to deny Hackie’s application. Stated differently, once the circuit court granted
Col. Bryant’s motion to dismiss on the basis of sovereign immunity, the court lost
jurisdiction to void the licensure decision. For these reasons, I would reverse the circuit
court’s ruling voiding the licensure decision and therefore dissent.
Jeff Rosenzweig; and Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: Hannah E.
Wood, for appellant.
Mary Claire McLaurin, Arkansas State Police, for appellee.