BOARD OF DIRECTORS OF THE CITY OF HOT SPRINGS, Arkansas, Appellant v. George PRITCHETT, Peggy Maruther-Thurman, Dan Lewin, Dr. Jack Sternberg, Robert Driggers, and Captain Bill Riggins, Appellees
CV-14-272
Supreme Court of Arkansas
January 22, 2015
2015 Ark. 17
ROBIN F. WYNNE, Associate Justice
Black‘s Law Dictionary 467 (6th ed. 1990). Conversely, the dicta in Moss suggests that Rule 37 invests a circuit judge with a license to act arbitrarily and capriciously, unbridled by even fundamental fairness.
We are not bound by the dicta in Moss. The holding in that case was that the circuit court erred in concluding that it lacked jurisdiction to consider a petition for postconviction relief that failed to conform to the “strict formatting, content, and page requirements” of
However, as we have deemed Rule 37 proceedings to be civil in nature, we should apply the long-standing rule that dismissal of a suit before submission on its merits must, in the absence of proof to the contrary, be presumed to have been without prejudice to the right to renew it. Jones v. Graham, 36 Ark. 383 (1880). Mr. Smith has yet to have his day in court.
In Greek mythology, there is the story of Tantalus, who, for his eternal punishment in Tartarus, was made to stand in a pool of water beneath a fruit tree with low branches, with the fruit ever eluding his grasp, and the water always receding before he could take a drink. Because of this court‘s Rule 37 jurisprudence, every inmate seeking postconviction relief is a modern-day Tantalus.
I respectfully dissent.
Benjamin D. Hooten, Hot Springs, for appellees.
ROBIN F. WYNNE, Associate Justice
The Board of Directors of the City of Hot Springs (the Board) appeals from two separate orders of the Garland County Circuit Court. In the first order, the circuit court found that the Board had violated the Arkansas Freedom of Information Act. In the second order, the circuit court awarded appellees attorney‘s fees in the amount of $3000 and costs in the amount of $530. Appellees have filed a motion to dismiss the appeal as moot. Our jurisdiction is pursuant to
In 2011, the Board passed an ordinance allowing for a twenty-one-minute public-comment period following its regular meetings. Lance Hudnell, the city manager at the time the ordinance was passed, unilaterally decided to allow all regular meetings, including the public-comment period, to be telecast. The public-comment period was televised until the Board agreed at a workshop retreat held at Brady Mountain Lodge on February 8, 2013, to cease televising the public-comment period. The Board then implemented the decision to cease the telecast of the public-comment period without further action.
Appellee Robert Driggers sent a letter to the city on August 2, 2013, in which he requested that the decision to cease the telecast be suspended until it was ratified by the Board at a regular public meeting. The city attorney for Hot Springs responded to Mr. Driggers‘s request in a letter stating that, because the decision to televise the public-comment period was an administrative decision, no formal action by the Board was required to cease the broadcast. The city attorney also responded to a request for information from a local newspaper regarding how the decision was made by stating that no vote would be required and that the consensus of the Board was to cease broadcasting the public-comment period. The mayor responded to an email query from Mr. Driggers and stated that, at the retreat, the Board had reached a six-to-one consensus regarding the issue.
On October 11, 2013, appellees filed a petition for relief under the
As stated above, appellees have filed a motion to dismiss the appeal, in which they argue that the Board‘s vote at the regular meeting to cease televising the public-comment period rendered the issues presented in the appeal moot. Generally, an issue becomes moot when any judgment rendered would have no practical effect upon a then existing legal controversy. Newman v. Crawford Cnty. Cir. Ct., 2014 Ark. 308, at 4, 2014 WL 2932265. As a general rule, appellate courts of this state will not review moot issues, as doing so would be to render an advisory opinion,
After the order was entered, the Board took the action mandated by the circuit court‘s order, thereby terminating the controversy between the parties on the issue. Regarding the first exception to the mootness doctrine, while the issue presented may be capable of repetition, it does not evade review. As for the second exception, the issue presented is dependent upon the unique facts of this case and raises no issue of substantial public interest that would prevent future litigation if addressed. Thus, neither exception to the mootness doctrine applies in this case. Therefore, we dismiss the Board‘s challenge to the circuit court‘s finding that it violated FOIA as moot.
Appellant also argues that the circuit court erred by awarding appellees attorney‘s fees. The attorney‘s fees have yet to be paid; thus, the controversy over the awarded fees still exists. This issue is not moot.
In any action to enforce FOIA, or in any appeal therefrom, the court shall assess against the defendant reasonable attorney‘s fees and other litigation expenses reasonably incurred by a plaintiff who has substantially prevailed unless the court finds that the position of the defendant was substantially justified.
Dismissed in part; affirmed in part.