Whitney v. Kelley , 562 S.W.3d 208 ( 2018 )

Cite as 2018 Ark. 384SUPREME COURT OF ARKANSAS.
No. CV-18-384
JAMES EDWARD WHITNEY Opinion Delivered: December 20, 2018
APPELLANT
PRO SE NOTICE AND ADVISEMENT
V. (MOTION TO FILE NONCONFORMING
BRIEF)
WENDY KELLEY, DIRECTOR, [LINCOLN COUNTY CIRCUIT COURT,
ARKANSAS DEPARTMENT OF NO. 40CV-17-60]
CORRECTION
APPELLEE
REMANDED FOR ADDITIONAL
FINDINGS; MOTION MOOT.
COURTNEY HUDSON GOODSON, Associate Justice
Appellant James Edward Whitney appeals the denial by the circuit court of his
petition to proceed in forma pauperis with respect to Whitney’s pro se petition for writ of
habeas corpus. Now before us is Whitney’s motion, entitled “Notice and Advisement,” in
which he seeks leave to file a brief on appeal that does not conform to the rules of this
court. Because we find that it is clear from the record that further findings from the circuit
court are necessary for our review, the matter is remanded to the circuit court. The motion
to file a nonconforming brief is moot inasmuch a new briefing schedule will be set when
the remand is returned.
The initial order setting the initial filing fee was entered on June 29, 2017. It was
set aside in an order entered April 9, 2018, in which the court held that Whitney had
established that he was indigent, but he had failed to state a colorable cause of action in
the habeas petition. For that reason, he was required to submit the filing fee for the
petition.
Arkansas Rule of Civil Procedure 72 (2017) governs our review of a decision to
grant or deny a petition to proceed in forma pauperis in a civil case. Gardner v. Kelley, 2018
Ark. 212, 549 S.W.3d 349. Rule 72 conditions the right to proceed in forma pauperis in
civil matters on indigency and the circuit court’s satisfaction that the alleged facts indicate
“a colorable cause of action.” Ark. R. Civ. P. 72(c). Rule 72 mandates that the circuit court
make a specific finding of indigency based on the petitioner’s affidavit. Gardner, 2018 Ark.
212, 549 S.W.3d 349. Once satisfied that a petitioner is indigent, the circuit court must
then be satisfied that the facts alleged by the petitioner state a colorable cause of action.
Ark. R. Civ. P. 72(c). If the circuit court failed to make the findings of fact mandated by
Rule 72(c), this court must remand unless we can determine from the record before us that
the appellant’s cause of action could not proceed as a matter of law. Gardner, 2018 Ark.
212, 549 S.W.3d 349.
In Gardner, the circuit court found only that petitioner had failed to allege facts that
would support a colorable cause of action because he did not raise a claim in the submitted
petition that was cognizable in habeas proceedings. 2018 Ark. 212, 549 S.W.3d 349.
Likewise, the order in this case denied Whitney pauper status on the basis that Whitney
had failed to state a cognizable claim for habeas relief and had therefore failed to state a
colorable cause of action. A colorable cause of action is a claim that is legitimate and may
2
reasonably be asserted given the facts presented and the current law or a reasonable and
logical extension or modification of it. Penn v. Gallagher, 2017 Ark. 283.
We pointed out in Gardner that the circuit court is required under Rule 72 to enter
specific findings on a petitioner’s indigency before addressing issues as to whether the
petitioner had stated a colorable claim. 2018 Ark. 212, 549 S.W.3d 349. If the circuit
court’s order does not provide findings on a petitioner’s indigent status, such an omission
will render the order deficient under Rule 72. Id. Moreover, the circuit court is required
by Rule 72 to explain the basis for its conclusion that a petitioner has failed to state a
colorable cause of action by making specific findings that delineate why a petitioner failed
to allege a cognizable claim for habeas relief. Id.
Accordingly, we remand to the circuit court for a supplemental order on the in
forma pauperis petition that contains adequate findings of fact and complies with Rule 72.
The order must include findings on Whitney’s indigency and address the basis for its
conclusion that the habeas petition failed to set forth a cognizable claim. The order is to
be entered, and the supplemental record containing the order is to be returned within
thirty days from the date of this opinion. Once the supplemental record is received, a copy
of it will be provided to Whitney and a new briefing schedule will be set for the appeal.
Remanded for additional findings; motion moot.
KEMP, C.J., and WOOD, J., dissent.
RHONDA K. WOOD, Justice, dissenting. Before the court is Whitney’s pro se
motion to accept his tendered brief. I would grant his motion and accept his brief for
3
filing. Currently, there are no briefs filed before this court. Nevertheless, the majority
reviews the record for the circuit court’s order and remands for the circuit court to make
specific findings as to why Whitney’s claim did not state a colorable cause of action.
Because Rule 72 does not require the circuit court to make specific findings on its
colorable-cause-of-action analysis, I dissent.
Arkansas Rule of Civil Procedure 72(c) (2017) only requires the circuit court to
make “a finding regarding indigency.” It does not require the circuit court to make specific
findings on whether the claim states a colorable cause of action. Although in Gardner this
court remanded for a specific finding on whether the claim identified a colorable cause of
action, we also remanded for findings on the petitioner’s indigency. Gardner v. Kelley, 2018
Ark. 212, 549 S.W.3d 349 (Wood, J., dissenting). Therefore, Rule 72 dictated that we
remand Gardner regardless. Id. Here, there is no other reason to remand. This court is
creating a new requirement for circuit courts under Rule 72. If this court deems it
necessary for circuit courts to make findings of fact on colorable causes of action, in
addition to indigency, we should amend the rules of procedure. It is a more comprehensive
process. For these reasons, I dissent.
KEMP, C.J., joins in this opinion.
4