Lead Opinion
Petitioners are the Helena-West Helena School District, the District’s Interim Superintendent, Rudolph Howard, and Lisa Baker, Principal of West Side Elementary School. They are seeking either a writ of prohibition or, alternatively, certiorari, to prevent the Respondent, the Circuit Court of Phillips County, Arkansas, from further exercising jurisdiction in the instant matter. In support of their petition, they assert that the trial court acted wholly without jurisdiction when it entered a temporary restraining order in this case, because the parties seeking that restraining order failed to first exhaust their administrative remedies. As Petitioners are seeking a writ of prohibition or certiorari, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(3). We deny the petition.
The facts underlying this case indicate that Jimmy and Coretta Brown filed a complaint in the Phillips County Circuit Court on October 24, 2006, alleging that their two minor children, J.B., age nine, and Y.B., age eleven, both students at West Side Elementary, had been verbally abused and attacked by the school’s principal, Ms. Baker, on or about October 18, 2006, in a confrontation that resulted in the children being escorted from the building and placed under arrest by the West Helena Police Department.
On October 31, 2006, the trial court entered an order granting the request for the temporary restraining order, prohibiting any further action related to their expulsion. In addition, the order required that the children be immediately transferred and placed into appropriate classes at Beechcrest Elementary School.
This court issued a stay of the trial court’s October 31 order, pending review of Petitioners’ request for extraordinary relief. On December 7, 2006, this court ordered the parties to this matter to submit simultaneous briefs by December 21, 2006. Petitioners are the only party to have submitted a timely brief.
As their first point on appeal, Petitioners contend that a writ of prohibition is warranted in this matter, as the Browns failed to exhaust their administrative remedies before seeking redress in circuit court. Specifically, Petitioners contend that no final action has been taken in the matter, as only a recommendation of suspension has been made, and that the Browns failed to avail themselves of the opportunity of two separate hearings before the school board. Thus, according to the Petitioners, the trial court was without jurisdiction to hear the Browns’ complaint. Petitioners further point out that the school district, pursuant to Ark. Code Ann. § 6-18-507 (Repl. 1999), has the right to expel a student, and that a trial court’s right to review the ultimate decision of expulsion is on an abuse-of-discretion standard, not on a de novo basis, as would be the case here if the Browns were allowed to proceed.
In their initial response to this petition, the Browns argued that extraordinary relief was not warranted, as Petitioners have another adequate remedy available at law, namely an appeal of the trial court’s order granting the temporary restraining order. The Browns are correct. Because an order granting a temporary restraining order is immediately appealable, Petitioners should have filed an appeal from the trial court’s order, as opposed to seeking a writ of prohibition or certiorari.
It is well settled that a writ of prohibition is an extraordinary writ that is only appropriate when the lower court is wholly without jurisdiction. Jordan v. Circuit Court of Lee County,
The writ is appropriate only when there is no other remedy, such as an appeal, available. Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. This court confines its review to the pleadings in the case. Moreover, prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction.
Petitioners concede that they have sought a writ of prohibition even though our case law dictates that a writ of prohibition cannot be invoked to correct an order already entered, see Bates v. McNeil,
A writ of certiorari is extraordinary relief, and we will grant it only when there is a lack ofjurisdiction, an act in excess ofjurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. In determining its application, we will not look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of fact, or to reverse a trial court’s discretionary authority. A writ of certiorari lies only where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy.
Id. at 428,
This court has explained that certiorari is available in the exercise of this court’s superintending control over a tribunal that is proceeding illegally where no other adequate mode of review has been provided. Beverly Enters.-Ark., Inc. v. Circuit Court of Independence County,
While Petitioners’ argument that the trial court was without jurisdiction to entertain the Browns’ complaint because of their failure to exhaust their administrative remedies seems well taken, it is not enough to establish entitlement to extraordinary relief, either in the form of prohibition or certiorari. This court has repeatedly held that prohibition and certiorari will only lie in cases where there is no other adequate remedy available to a party. See Conner,
In the present case, the trial court issued a temporary restraining order preventing the children from being expelled from school. Such an interlocutory order is specifically appealable under Ark. R. App. P. - Civ. 2(a)(6). See also AJ&K Operating Co., Inc. v. Smith,
A similar result was reached by this court in Weaver v. Simes,
Accordingly, as Petitioners may raise the issues regarding the propriety of the trial court’s order granting the temporary restraining order in an appeal, we deny their request for a writ of prohibition or certiorari.
Before concluding, we note that Petitioners additionally argue that the order entered by the trial court is also deficient on its face, as it fails to comply with Ark. R. Civ. P. 65. Specifically, Petitioners contend that the trial court’s order is deficient in that it makes no finding that Petitioners are likely to succeed on the merits as required by Rule 65.
Again, any issue regarding the sufficiency of the temporary restraining order or its compliance with Rule 65 is one that may be addressed in an appeal. See Smith,
Petition denied.
Notes
Disciplinary records from the school that are included in the record reveal that on the morning of October 18, Ms. Baker encountered YB. and J.B. in the hallway and instructed them to go to the cafeteria. Once in the cafeteria, YB. and another student engaged in a verbal disagreement. Y.B. and J.B. then left the cafeteria and proceeded to Ms. Baker’s office. According to the report filed by Ms. Baker, J.B. slapped her across the face. Y.B. tried to take a tape recorder from her hand and then placed her open palm on Ms. Baker’s nose. The report concluded that the children, who were cursing and yelling, left the office, kicked the emergency bar on an exit door, and left the school building.
Counsel for the Browns tendered a “Second Response and Objection to issuance of Writ of Certiorari” on December 27,2006. As the time for filing briefs had already elapsed, this second response was not timely filed and will not be considered by this court.
In Weaver, this court noted that the petitioner, prior to seeking extraordinary relief, filed a notice of appeal on May 17, 2005, from several orders entered by the trial court, including the January 3,2005, order granting the temporary restraining order, in support of its conclusion that petitioner had an adequate remedy at law available. In the present case, Petitioners have not yet filed their notice of appeal, as this court issued a stay of all proceedings on November 9, 2006. The lack of a notice of appeal does not negate the fact that an adequate remedy at law exists to resolve the issues raised by Petitioners.
Lead Opinion
SUPPLEMENTAL OPINION ON GRANT OF REHEARING
The petition for rehearing is granted, and the petition for writ of certiorari is granted.
Petitioners Helena-West Helena School District, Rudolph Howard as interim superintendent, and Lisa Baker as principal of West Side Elementary School (collectively referred to as the “School District”), petition for a writ of certiorari or prohibition in response to the circuit court’s order granting the request of Jimmy Brown, Jr. and Coretta Brown (the “Browns”) for a temporary restraining order (“TRO”). The School District argues that the circuit court had no subject-matter jurisdiction to hear the Browns’ claims because the expulsion order was not final and because the Browns failed to exhaust their administrative remedies.
On October 24, 2006, the Browns filed a complaint as parents and next of kin of their children, Y.B. and J.B., who were students at West Side Elementary School in West Helena in October of 2006. Y.B. was in the sixth grade and J.B. was in the fourth grade. The complaint described an altercation between Y.B. and J.B. and the principal of the school, Lisa Baker. The Browns alleged in their complaint that when Lisa Baker’s son, Mack Baker, called J.B. a “nigger,” Principal Baker intervened to uphold the conduct of her son and that she physically attacked J.B. The Browns declared that Principal Baker verbally and physically attacked J.B. They concede, however, that J.B. struck Principal Baker. According to the complaint, Y.B. came to the assistance of her younger brother and requested that she be allowed to call her parents. That request was denied by Principal Baker, they alleged. The Browns also alleged that Principal Baker placed Y.B. and J.B. outdoors without any protection and had them arrested. According to the Browns, Principal Baker’s actions were due to racism and bias. The Browns based their legal theories on the case of Lake View School District No. 25 v. Huckabee,
Principal Baker wrote a summary of the incident leading to the school’s expulsion of J.B. and Y.B. on October 19, 2006. She states the incident occurred on October 19, 2006.
Principal Baker noted that everything then moved to the foyer outside the office. She wrote that Mr. Means arrived and that Ms. Fears and Mrs. Thrower were trying to get other children out of this area.
Also on October 19, 2006, Principal Baker sent two notices of recommended expulsion from West Side Elementary School to J.B. and Y.B.’s father. In the notice regarding J.B., Principal Baker charged him with defiance of authority, abusive language, and staff assault. In the notice regarding Y.B., she charged her with defiance of authority and abusive language toward a school employee. Principal Baker recommended that both students be expelled for one year. The notices also informed the parents that the students would have a right to a hearing to be scheduled by the school superintendent and School Board.
On October 20, 2006, Rudolph Howard, the school Superintendent, wrote letters to J.B. and Y.B.’s mother regarding each of her children. Superintendent Howard informed Coretta Brown that the school was recommending that her children be expelled for one year and that due-process hearings were scheduled for each of her children and her before the School Board on October 24, 2006 at 9:00 a.m.
Rather than participating in the due-process hearing on October 24, 2006, the Browns filed their complaint in circuit court on that date, as described above. On October 26, 2006, the Browns moved for a TRO to stop the expulsion of the Brown children on the basis that the School District was violating their right to attend public school in accordance with Article Fourteen of the Arkansas Constitution. The Browns alleged that the expulsion was harsh, unreasonable, and not rationally related to any conceivable violation of policies governing conduct within the School District. They argued, in addition, that the actions of the School District violated due process and would exclude the Brown children from school, thereby causing irreparable harm to their educational endeavors now and for the rest of their adolescent lives. The Browns requested a TRO until the court could make a determination of the rights pled and that the court further find that the children had suffered irrevocable harm and they had no other adequate remedy at law if the court did not enjoin the School District.
On October 31, 2006, the court entered an order granting the Browns’ request for a TRO. In its order, the court noted that the children had not yet been expelled from the school but added that they were currently expelled from classes. In addition to granting the TRO requiring the children to be placed immediately into appropriate classes, the court also found that they should be transferred, as per the request in the motion for TRO, to Beech-crest Elementary School until further directions of the court.
On November 8, 2006, the School District filed its petition for writ of certiorari or prohibition and record of proceedings with the Circuit Court of Phillips County listed as appellee. The following day, this court granted a stay of the TRO, ordered any response to the petition for writ of certiorari /prohibition to be filed by November 20, 2006, and determined that we would take this petition as a case. We also ordered simultaneous briefs to be filed on December 21, 2006. The first response to the School District’s petition was filed on behalf of the Browns as “co-respondents” and was tendered on November 21, 2006, which was one day late.
In its petition for writ of certiorari or prohibition, the School District makes two arguments: (1) petitioners are entitled to a writ of certiorari or, in the alternative, a writ of prohibition; (2) on the face of the record, injunctive relief could not be granted by the circuit court.
The School District argues that it is entitled to a petition for writ of certiorari because the expulsion order was not final and because the Browns failed to exhaust their administrative remedies before the School Board prior to seeking judicial review. The School District compares this case to Ford v. Arkansas Game & Fish Commission,
The School District also distinguishes this case from the case of Springdale Board of Education v. Bowman,
In short, the School District encourages this court to look with disfavor on the procedure employed by the Browns. It argues that the Arkansas statutes are clear — that the hearing regarding expulsion is to be before the School Board and not the court. According to the School District, there could not be a more obvious case of unwarranted judicial interference with the operation of the school system in violation of not only § 6-18-507, but also the.decisions of this court which hold that a court is without subject-matter jurisdiction to hear a claim until administrative action is final and one has exhausted his or her administrative remedies. See, e.g., Stanton v. Am. Mfrs. Mut. Ins. Co.,
For its second argument, the School District contends that on the face of the record, injunctive relief should not have been granted by the circuit court. It points out that the circuit court’s order on its face fails to comply with Rule 65 of the Arkansas Rules of Civil Procedure because the order contains no finding that the Browns were likely to succeed on the merits and no finding of irreparable harm. The School District advances the argument that because the statutes of this state permit expulsion, one cannot claim, as a matter of law, that expulsion (which has not yet been ordered by the School Board) irreparably harms a student.
Although the Browns, as co-respondents, failed to file a brief in this matter, they did file two responses to the School District’s request for extraordinary relief. In their first response to the School District’s request for a petition for writ of certiorari which they filed on November 21, 2006, the Browns asserted that this court, by granting the stay of the circuit court’s order, has already destroyed the ability of the Brown children to receive an education within the public school system of the State of Arkansas in an orderly manner, in violation of the Lake View cases. The Browns also asserted that a writ of certiorari is inappropriate in this case, where the standard is an abuse of discretion. Further, they claimed that a writ of certiorari should not be granted here because there is an adequate remedy at law, which is an ordinary appeal of the circuit court’s decision.
The Browns further argued in their first response that they were facing irreparable harm to the educational rights of their children, if they were expelled for a year or more due to the instant litigation. They urged that there is no chance for any student in the school system to receive due process when the hearing and appeal are before the School Board and Superintendent. According to the Browns, it would have been futile for them to attempt to exhaust their administrative remedies under these circumstances where those accusing the Brown children of violations were, in fact, the judge and jury of the sanctions to be imposed against those children.
This court’s standard of review for a petition for writ of certiorari is as follows:
A writ of certiorari is extraordinary relief. Ark. Dep’t of Human Servs. v. Collier,351 Ark. 506 ,95 S.W.3d 772 (2003). In determining its application we will not look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of fact, or to reverse a trial court’s discretionary authority. Id. There are two requirements that must be satisfied in order for this court to grant a writ of certiorari. The first requirement is that there can be no other adequate remedy but for the writ of certiorari. Second, a writ of certiorari lies only where (1) it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, or (2) there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Id.
Ark. Game & Fish Comm’n v. Herndon,
We initially address the requirement that there be no adequate remedy as an alternative to a writ of certiorari. See, e.g., Sims v. Cir. Ct. of Pulaski County,
The School District contends in its rehearing petition that this court has treated a petition for certiorari as an appeal in the past when the petition is filed before the time for appeal has expired.
The School District is right on both counts. First, this court has treated petitions for writs of certiorari as appeals in the past when the petition is filed within the appeal time. See Williamson v. Mitchell Auto Co.,
Secondly, and more importantly, we are convinced that the School District is correct in pointing out that it desires not merely to prosecute an interlocutory appeal to dissolve the TRO but rather to challenge the subject-matter jurisdiction of the circuit court to hear any allegations or prayer for relief in the Browns’ complaint. We agree that those are two different matters. This court has made it clear that the alternative remedy to extraordinary relief “must be ‘plain and complete and as practical and efficient to the ends of justice and its proper administration as the remedy involved.’ ” Axley v. Hardin.
The kernel of the School District’s argument for certiorari is the circuit court did not have subject-matter jurisdiction to hear the Browns’ complaint because the expulsion decision was not final and the Browns failed to exhaust their administrative remedies before the School Board prior to seeking judicial intervention. Section 6-18-507 of the Discipline Subchapter of the Education Code specifically provides for an administrative procedure in connection with a public school’s recommendation of expulsion, including both a hearing and an appeal process, and we hold that that was the remedy for the Browns to pursue.
In Bowman, supra, which was cited by both parties, this court considered the question of whether the trial court had jurisdiction to decide Bowman’s request for injunctive relief. We concluded that the trial court did have this jurisdiction, since Bowman was entitled to establish her right to attend school by testing the School Board’s actions in enforcing a school policy against her. As noted by the School District in this case, however, the School Board in Bowman had already made the decision to expel the student involved. The instant case is at odds with those facts, as there has been no final action by the School Board on the expulsion recommendation.
In Ford, supra, this court recognized the distinction between the question of whether administrative remedies had been exhausted and the question of whether an administrative action must be final before it is judicially reviewable. This court quoted the United States Supreme Court to the effect that while the policies behind the two doctrines are similar, “the finality requirement is concerned with whether the initial decision[-]maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate.” Ford,
In the case before us, neither final action on the issue by the School Board nor any effort by the Browns to exhaust their remedies before the School Board is evident. Indeed, the administrative process before the School Board never began because the Browns avoided their administrative remedies under § 6-18-507 and rushed into court to obtain the TRO. Lack of finality and failure to exhaust administrative remedies clearly preclude judicial review. See Ford, supra; Austin v. Centerpoint Energy Arkla,
The dissent discards the fact that in the cases it cites the petitioner had also filed a direct appeal in the same case or a related case, or the time for filing an appeal had passed, or the court’s jurisdiction was not exceeded, or the case was distinguishable on the facts. The dissent also disregards the fact that the School District filed its petition for writ of certiorari within the time frame of an appeal. And, third, the School District validly contends that it sought by petition not merely to limit itself to dissolving the TRO. Rather, it sought to have the full complaint dismissed, including the Browns’ claims under our Lake View decision and under the Arkansas Civil Rights Act. An appeal limited to dissolving the TRO was not adequate for that purpose. The School District pursued a reasonable course, and one that this court’s jurisprudence has recognized, when it petitioned this court for a writ of certiorari challenging the circuit court’s hasty entry of a TRO before the School District had taken final action.
There is one final point. This court historically has been reluctant to insinuate itself into school operations, including discipline matters, until the school procedures for relief have run their course. We said as much in Fortman v. Texarkana School District No. 7,
We grant the petition and issue the writ of certiorari because the circuit court clearly exceeded its jurisdiction in issuing the TRO before the School Board had made its decision on expulsion. The case, accordingly, was not ripe for judicial review because there was no final administrative action to review under § 6-18-507. The circuit court’s action in this regard was a plain, manifest, clear, and gross abuse of discretion. We set aside the TRO.
Petition for Rehearing Granted.
Petition for Writ of Certiorari Granted.
In their complaint, the Browns assert that these events occurred on October 18, 2006.
While it is unclear from the partial record in this case what positions Mrs. Hunt, Mr. Means, Ms. Fears, and Mrs. Thrower hold, it seems apparent that all of these people are employees of the School District.
The letter regarding J.B. stated that a due-process hearing was scheduled for Coretta and Jimmy at 9:00 a.m. on October 24,2006. The letter concerning Y.B. informed Coretta that a due-process hearing was scheduled for Y.B. and her at 10:00 a.m. on October 24,2006.
The Browns never formally petitioned'to intervene in the School District’s peMi°n for extraordinary relief. Nevertheless, they are the real parties in interest, and this court considered their first response in its original petition.
A partial record was filed by the School District on November 8,2006.
We do not consider the Browns’ second response filed on December 27, 2006, because it was untimely. By this court’s per curiam order, responses were due by November 20, 2006, and briefs by December 21,2006.
The Browns filed no response to the petition for rehearing.
Dissenting Opinion
dissenting. The parents of the s ^suspended students in this case (the Browns) bypassed the administrative remedies provided by the school district and, instead, rushed immediately into circuit court to obtain a temporary restraining order (TRO) to prevent the suspension. In issuing the TRO, the circuit judge, without question, exceeded his authority when administrative remedies provided by the school district were still available for the Browns to pursue. I would grant the school district’s petition for certiorari and require that the school district’s remedies first be exhausted before a complaint is filed in circuit court. Not to do so affirms the circuit judge’s error in wading into the high risk area of school discipline before the school district had finally decided the matter.
The majority opinion says the school district should have appealed the decision rather than petition for extraordinary relief and for that reason denies the petition. This, of course, has the effect of allowing the Brown children to attend school within the school district. I could not disagree more. This is a situation that cries out for immediate resolution so as not to further hamper discipline within the school district and the education of the Brown children. The majority’s decision, which requires an appeal, denigrates the necessity for a speedy decision. The keystone of the majority opinion is that an appeal is an adequate remedy that should have been pursued by the school district. It certainly is not an adequate remedy now, because the appeal time for appealing the TRO has expired. Beginning a new appeal after a final order is entered will only delay matters more and unduly thwart the objectives of both the school district and the Browns.
This court has defined an adequate, alternative remedy to extraordinary relief as follows: “the alternative remedy must be ‘plain and complete and as practical and efficient to the ends of justice and its proper administration as the remedy invoked.’ ” Axley v. Hardin,
The question then is whether the school district should have appealed the TRO back in November 2006, rather than petitioning for certiorari after the circuit judge granted a TRO. In analyzing this point, the time frame is important. The TRO was issued on October 31, 2006, and stayed by this court at the request of the school district on November 9, 2006. The school district’s petition for emergency relief was filed one day earlier on November 8, 2006, and included the necessary pleadings as attachments and a prayer for expedited consideration. A response was filed by the Browns on November 21, 2006. The time for appeal of the TRO expired on November 30, 2006.
No doubt, speed was a critical consideration for the school district. There is also no question but that an appeal, even when expedited, is a more cumbersome process. A record must be filed to start the appeal process, and a motion to expedite must be filed by the appellant with time allowed for the appellee to respond. I cannot say the school district erred by putting this case on the emergency track with a petition for certiorari. The school district’s goal was to have the matter resolved before commencement of school in January. A petition for certiorari, not surprisingly, appeared to be the appropriate route to take.
Cases cited by the majority in defense of dismissing this matter and delaying resolution are not apposite. In Weaver v. Simes,
There is another point that needs to be highlighted. This is not a case where a petitioner seeks emergency relief in the form of certiorari after he has allowed his appeal time to expire. We have denied such efforts in the past. See, e.g., Gran v. Hale,
This court has been assiduous in the past in avoiding intervention by the courts in matters best left to school authorities. We said as much two years ago. See Johnson v. Hargrove,
The parties deserve a decision in this case. I would grant the school district’s petition.
Dissenting Opinion
dissenting. The majority opinion states that this court has treated petitions for writs of certiorari as appeals in the past when the petition is filed within the appeal time; it relies on two old cases for this proposition. See Williamson v. Mitchell Auto Co.,
The rule adopted in these two cases makes no sense. Of course, a party has thirty days in which to file a notice of appeal. Why wouldn’t the party do so, rather than filing a petition for writ of certiorari within that thirty-day period and asking this court to treat his petition as an appeal? The rule is misleading and confusing and just plain wrong.
Dissenting Opinion
dissenting. Never in all of my days on the appellate courts of Arkansas have I seen an opinion that is more results oriented than the majority’s decision to grant the school district’s petition for rehearing. The majority has effectively turned our law on extraordinary writs on its ear. Under the majority’s analysis, a party can seek a writ of certiorari, and even if an extraordinary writ is not warranted, still have the matter heard because this court will now treat a petition for certiorari as an appeal. The majority notes that we have in the past treated such petitions as appeals, and we have, most recently in 1930.
What disturbs me the most is the fact that the majority cites to Williamson v. Mitchell Auto Co.,
Moreover, the majority’s opinion is in direct conflict with our prior acknowledgment that certiorari may not be used as a substitute for appeal. See Ark. Dep’t of Human Servs. v. Circuit Court of Sebastian County,
The majority makes much ado about the school district’s assertion that they are not simply challenging the court’s order granting the temporary restraining order, but are seeking dismissal of the Browns’ complaint because of a lack of subject-matter jurisdiction. According to the district, there has been no final action on the expulsion, and the Browns have failed to exhaust their administrative remedies. The majority focuses on these allegations as an explanation as to why this petition for extraordinary relief is being given special treatment, but a review of our case law on exhaustion of administrative remedies reveals the majority’s flawed analysis.
In Stanton v. American Manufacturers Mutual Insurance Co.,
In the present case, the school district never argued to the circuit court that the Browns failed to exhaust their administrative remedies or that the circuit court lacked jurisdiction; thus, the school district never gave the circuit court an opportunity to act accordingly. Instead, the district raced to this court seeking our intervention, and the majority is all too happy to oblige, seemingly intent on making sure that the Browns’ children are not allowed to attend school anywhere in the district. While I certainly do not condone the inappropriate and disruptive behavior ofJ.B. or Y.B., I also cannot ignore the fact that the principal’s son referred to J.B. with a hateful racial slur.
There is simply nothing about this case that warrants the majority’s decision to ignore our well-established precedent that an extraordinary writ will not lie where another adequate remedy at law exists. This case is simply about the majority wanting to reach a certain result and doing so at the expense of our longstanding jurisprudence. For this reason, I respectfully dissent.
Just recently this court unanimously denied a “Motion for Expedited Writ of Prohibition or, in the Alternative, a Writ of Certiorari” where the appellant had also filed a notice of appeal. See Potter v. Honorable Kim Martin Smith, No. 07-161.