Arkansas Department of Finance & Administration v. Carroll County Holdings, Inc. , 2022 Ark. 128 ( 2022 )

Cite as 2022 Ark. 128SUPREME COURT OF ARKANSAS
No. CV-21-599
Opinion Delivered: June 2, 2022
ARKANSAS DEPARTMENT OF
FINANCE AND ADMINISTRATION; APPEAL FROM THE PULASKI
ALCOHOLIC BEVERAGE CONTROL COUNTY CIRCUIT COURT [NO. 60CV-
DIVISION; AND THE ARKANSAS 20-3658]
MEDICAL MARIJUANA COMMISSION
APPELLANTS HONORABLE TIMOTHY DAVIS FOX,
JUDGE
V.
CARROLL COUNTY HOLDINGS, INC., REVERSED AND DISMISSED.
D/B/A EUREKA GREEN
APPELLEE
BARBARA W. WEBB, Justice
This is an interlocutory appeal related to a medical marijuana dispensary license.
Carroll County Holdings, Inc. (“Eureka Green”), sought temporary and permanent
injunctive relief restraining and enjoining the State from issuing replacement dispensary-
facility licenses. The State filed a motion to dismiss on the grounds of sovereign immunity.
The motion was denied, and this appeal followed. We reverse the circuit court’s ruling and
dismiss the case below.
I. Facts
Eureka Green submitted a dispensary license for Zone 1. The Arkansas Medical
Marijuana Commission (MMC) initially awarded four licenses to Zone 1. Eureka Green was
the fifth-highest-scoring applicant. Pursuant to MMC Rules § V.9(g)–(h), the MMC holds
unsuccessful applicants in reserve for twenty-four months from the issuance of the initial
licenses to offer the next highest scoring applicant a license if additional licenses are needed
or allocated in the Zone. Unselected applicants, like Eureka Green, can remain in the
applicant pool or withdraw their request and receive a one-half refund of the license fee. Id.
Eureka Green withdrew its application and received the partial refund. On June 30, 2020,
the MMC created a fifth dispensary in Zone 1. 006.28.1 Ark. Admin. Code § V.9(g)–(h)
(WL current through Nov. 15, 2021). Even though Eureka Green had been the fifth-highest-
scoring applicant, it was no longer in the running for consideration because it had withdrawn
its application. The dispensary license went to a third party and stranger to this case, Natural
Root Wellness.
Eureka Green filed suit in the circuit court on June 29, 2020, alleging that the MMC
had violated its own rules, the constitution, and the Administrative Procedure Act (APA).
There is nothing in the record that indicates Eureka Green appealed the decision of an
administrative hearing or that any administrative hearing was ever held before the MMC on
any of the issues raised by Eureka Green in the circuit court. The State moved to dismiss on
the grounds of sovereign immunity, lack of subject-matter jurisdiction, mootness, and failure
to plead facts indicating a cause of action related to equal protection. The circuit court
denied the motion, and this appeal followed.
II. Standard of Review
Generally, in this type of interlocutory appeal, we only review issues that implicate
sovereign immunity. See Chaney v. Union Producing, LLC, 2020 Ark. 388, 611 S.W.3d 482;
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Ark. Dep’t of Fin. & Admin. v. Carpenter Farms Med. Grp., LLC, 2020 Ark. 213, at 11, 601
S.W.3d 111, 119. However, such a limitation does not apply to subject-matter jurisdiction.
Where the question is one of subject-matter jurisdiction, it does not matter how it arises.
Timmons v. McCauley, 71 Ark. App. 97, 101, 27 S.W.3d 437, 440 (2000). Even though this
case came to us on a denial of sovereign immunity, as a threshold issue, we must consider
subject-matter jurisdiction.
Subject-matter jurisdiction is a court’s authority to hear a particular type of case. Ark.
Dep’t of Fin. & Admin. v. Naturalis Health, LLC, 2018 Ark. 224, at 6, 549 S.W.3d 901, 906
(citing Fatpipe, Inc. v. State, 2012 Ark. 248, 410 S.W.3d 574). It cannot be waived, can be
questioned for the first time on appeal, and we are required to raise it sua sponte. Id. (citing
Terry v. Lock, 343 Ark. 452, 37 S.W.3d 202 (2001)). See also Hoyle v. Faucher, 334 Ark. 529,
533, 975 S.W.2d 843, 845 (1998) (citing Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995)).
Subject-matter jurisdiction is determined from the pleadings and not the proof. Naturalis
Health, LLC, 2018 Ark. 224, at 6, 549 S.W.3d at 906. Where the issue of subject-matter
jurisdiction requires interpretation of a statute or constitutional provision, our review is de
novo. Id. (citing Tripcony v. Ark. Sch. for the Deaf, 2012 Ark. 188, 403 S.W.3d 559).
III. Subject-Matter Jurisdiction
Ultimately, no matter how Eureka Green phrases its case in the circuit court, the
causes of action it brings, and how the State treats those pleadings, this is an administrative
appeal of an “arbitrary and capricious disqualification of Eureka Green’s application for a
medical marijuana dispensary facility license” by the MMC and a challenge of the
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applicability of the MMC’s rules to Eureka Green. As such, we consider two issues to
determine if there is subject-matter jurisdiction: Whether there is an appeal of an agency’s
administrative adjudication or if this case is seeking a declaratory judgment on the validity
or applicability of the MMC’s rules. See Ark. Code Ann. §§ 25-15-207, -212 (Repl. 2014 &
Supp. 2021).
A. Administrative Adjudication
Section 212 of the APA permits judicial review of agency adjudications. Carpenter
Farms Med. Grp., LLC, 2020 Ark. 213, at 8, 601 S.W.3d at 118 (citing Ark. Code Ann. § 25-
15-212(a)). However, such an adjudication takes place only following “the final disposition .
. . in which the agency is required by law to make its determination after notice and
hearing.” Id. (quoting Ark. Code Ann. § 25-15-202(1), (6) (Supp. 2019)). This means that
only “quasi-judicial” agency functions support further judicial review. Id. (citing Tripcony,
supra). Quasi-judicial functions generally include hearing testimony, making findings of fact,
rendering legal conclusions, and recording the proceedings. Id. (citing Sikes v. Gen. Publ’g Co.,
264 Ark. 1, 7, 568 S.W.2d 33, 36 (1978)).
The APA subjects only some, not all, agency decisions to circuit court review. Id.(citing Tripcony, supra) (emphasis added). Courts do not generally have jurisdiction to
examine administrative decisions of state agencies. Id. at 6–7, 549 S.W.3d at 906. This
limitation on judicial review of executive agency decisions is necessary because our
constitution divides State government into three branches and requires that no branch “shall
exercise any power belonging to either of the others.” Ark. Const. art. 4, § 2. This is
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foundational to our government. Naturalis Health, LLC, 2018 Ark. 224, at 6, 549 S.W.3d at
906. The judicial branch will not abdicate this constitutional provision by reviewing the day-
to-day actions of the executive branch. Id. (citing Ark. Livestock & Poultry Comm’n v. House,
276 Ark. 326, 634 S.W.2d 388 (1982)).
Turning to the record on appeal, it is readily apparent that there is no quasi-judicial
action of an agency on appeal. There was no hearing held by the MMC on Eureka Green’s
license or any of the challenges it raised to the circuit court. The MMC did not issue a notice
of hearing. There was no testimony taken. There are no findings of fact or final orders from
the MMC which resulted from a hearing. The record of the proceedings before the MMC
are not included in the appeal to the circuit court or this court. All, or at least a substantial
number of these items, are necessary to invoke the judiciary’s ability to review an executive
branch agency action. If there is no agency adjudication, then there is no action for a court
to review. Id. at 7, 549 S.W.3d at 906. Subject-matter jurisdiction will not lie under this
method of review of the MMC’s actions regarding Eureka Green’s license.
B. Validity or Applicability of the MMC’s Rules
The next challenge which would invoke our subject-matter jurisdiction is a declaratory
judgment on the validity or applicability of the MMC’s rules. Declaratory judgments serve a
much different purpose than review of an agency’s adjudication. Id. The validity or
applicability of a rule may be determined in an action for declaratory judgment if it is alleged
that the rule, or its threatened application, injures or threatens to injure the plaintiff in his
or her person, business, or property. Id. (citing Ark. Code Ann. § 25-15-207).
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Examining a rule’s “applicability” is not the same as examining its “application.”
Naturalis Health, LLC, 2018 Ark. 224, at 9, 549 S.W.3d at 907. Section 207 is limited to
declarations concerning the rule—that the rule is either null and void, in the case of a validity
challenge, or whether the rule should be applied to a particular person or situation, in the
case of an applicability challenge. Id. Eureka Green’s challenges in the case at bar are that
the MMC violated its own rule and failed to follow the APA’s model-rules requirement. See
Ark. Code Ann. § 25-15-215. Neither challenge, as pled, goes to whether the rule was null
and void nor if it was applicable to Eureka Green.
Like the appellees’ complaints in Naturalis Health, LLC, Eureka Green’s complaint
neither challenges the “applicability” of any rule as contemplated by section 207 nor does it
seek a declaration regarding whether the other rules should have been applied. 2018 Ark.
224, at 9, 549 S.W.3d at 907. As such, the circuit court did not have subject-matter
jurisdiction over the Eureka Green’s complaint under either section 207 or 212 and neither
does this court. We reverse the circuit court’s order and dismiss the appeal complaint.
As a final note, the Chief Justice has previously commented that the MMC had a
constitutional duty it had neglected by its failure to adopt necessary rules for the
administration of the Arkansas Medical Marijuana Amendment. Id. at 11, 549 S.W.3d at
908 (Kemp, C.J., concurring). That was 2018. Id. It is now four years later, and the MMC
has still not adopted these necessary and mandatory rules. While the issue of the failure to
adopt administrative rules is not properly before us in this appeal, we take this opportunity
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to remind the MMC about the importance of following the Arkansas Constitution and again
urge it to adopt rules for the administration of the medical marijuana amendment.
Reversed and dismissed.
BAKER, J., concurs.
WOMACK, J., concurs without opinion.
HUDSON and WYNNE, JJ., dissent.
COURTNEY RAY HUDSON, Justice, dissenting. Here we go again. We are wrestling with
another legal conflict involving the Medical Marijuana Commission (MMC) and its refusal to
follow its constitutional mandate. Yet, the MMC is entrusted with the “comprehensive
administration” of a burgeoning Arkansas industry. Because today’s majority opinion dismissing
this appeal for lack of subject-matter jurisdiction is inconsistent with this court’s opinion in
Arkansas Department of Finance & Administration v. Carpenter Farms Medical Group, LLC., 2020
Ark. 213, 601 S.W.3d 111, I must respectfully dissent.
Eureka Green alleges that the MMC has failed to adopt the Attorney General’s model
agency rules and failed to explain why it has not done so. It claims that the model rules “mandate
that an agency will reinitiate action on an application when the requested information is
returned or supplemented.” Eureka Green contends that if the model rules had been adopted,
it would have prevented the “arbitrary disqualification of successful applicants based on illegal
and selective application of another rule.” Additionally, Eureka Green argues that the MMC’s
decision to refund a portion of its application fee and remove it from the reserve pool violated
constitutional due-process and equal-protection guarantees. According to Eureka Green,
jurisdiction is proper pursuant to the Administrative Procedure Act, specifically Arkansas Code
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Annotated section 25-15-215(b)(1), “as allowed via Ark. Code Ann. § 25-15-207(a).” It also
claims jurisdiction under the Arkansas Declaratory Judgment Act, Arkansas Code Annotated
sections 16-111-101 et seq. Eureka Green is correct in both instances.
In Carpenter Farms, Carpenter Farms submitted an application for one of four marijuana
cultivation licenses. Carpenter Farms was told that its application was complete and would be
submitted for scoring. However, the application was later disqualified due to alleged
discrepancies in its description of Carpenter Farms’ ownership structure. As the court framed
the issues in Carpenter Farms, “Carpenter Farms’ complaint rests mainly on two legal theories:
(1) the Commission violated the APA and MMC Rules and (2) the Commission violated equal
protection by subjecting Carpenter Farms’ application to disparate treatment.” Id. at 4, 601
S.W.3d 116. The court described the relief sought as follows:
Carpenter Farms requested that the circuit court reinstate its application; allow its score
to stand; declare that its disqualification was ultra vires, arbitrary, capricious, and
contrary to law; declare that the Commission’s failure to adopt model rules was
improper; and reject [Travis] Story’s score and recalculate Carpenter Farms’ score “to be
five times the average of the other four scores.” If the court denied its request to reinstate
its score, Carpenter Farms asked the court to vacate the disqualification; order a hearing
under Arkansas Code Annotated sections 25-15-207 and 25-15-212(B) (Repl. 2014 &
Supp. 2019); and disqualify [Mary Robin] Casteel and Story from further participation.
It also asked for an injunction prohibiting the granting of additional cultivation licenses.
Id. at 5, 601 S.W.3d 116.
Appellants filed a motion to dismiss and argued that they were entitled to sovereign
immunity. Despite the invocation of sovereign immunity, this court affirmed in part the circuit
court’s order denying appellants’ motion.
Here, Eureka Green asserts that the MMC has failed to adopt the Attorney General’s
model agency rules. It also contends that the MMC failed to explain why it did not adopt the
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model rules. This is precisely the nature of the claim that the majority allowed to proceed in
Carpenter Farms. In Carpenter Farms we said,
Carpenter Farms maintains that the MMC Rules were invalid because (i) they are not
the ones promulgated by the Attorney General and (ii) the Commission failed to explain
why it adopted rules different from the model. We agree that this particular claim can
proceed under section 207 because it involves the applicability or validity of the
Commission’s rules, rather than the Commission’s application of those rules to
Carpenter Farms’ set of circumstances.
Id. at 11, 601 S.W.3d 119.
Just like the applicant in Carpenter Farms, Eureka Green has alleged that the MMC rules
are invalid because the MMC has failed to adopt the Attorney General’s model rules and failed
to explain why it has not done so. Arkansas Code Annotated section 25-15-215 mandates that
agencies “shall adopt . . . those model rules that are practicable” and if it does not, the agency
shall “state the reason why the relevant portions of the model rules are impracticable.”
Accordingly, Eureka Green’s claim that the MMC rules are invalid not only vests the circuit
court with jurisdiction, but it also sets forth a claim to which sovereign immunity is inapplicable.
We should be consistent with our precedent and affirm the circuit court’s determination that
sovereign immunity does not apply to Eureka Green’s section 207 claim.
Additionally, Eureka Green should be allowed to seek declaratory relief pursuant to our
declaratory-judgment statute. It is well settled that circuit courts have subject-matter jurisdiction
to consider declaratory relief for alleged constitutional violations. See Ark. Dep’t of Health v.
Solomon, 2022 Ark. 43 (holding that the circuit court had subject-matter jurisdiction to consider
declaratory and injunctive relief for due-process and equal-protection claims). The majority
wholly ignores this independent basis for jurisdiction and exception to sovereign immunity that
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was articulated in Carpenter Farms. There, after considering Carpenter Farms’ equal-protection
claims, a plurality1 of the court noted that
[t]he circuit court has subject-matter jurisdiction to determine whether the Commission
violated Carpenter Farms’ constitutional rights in this record. See Ark. Code Ann. §§ 16-
111-101 et seq. (Repl. 2016). Carpenter Farms may pursue relief under the declaratory-
judgment cause of action against the State.
Carpenter Farms, 2020 Ark. 213, at 14, 601 S.W.3d at 121. Much like the applicant in Carpenter
Farms, Eureka Green has alleged that its constitutional rights were violated by the MMC’s
decisions. A majority of this court concluded in Carpenter Farms that an equal-protection claim
could be pursued in the face of a sovereign-immunity challenge. Similarly, the circuit court in
this case has jurisdiction to consider declaratory relief for an alleged constitutional violation. We
should not cavalierly ignore such claims.
It should also be noted that today’s appeal is just the latest, and far from the last, in a
long line of cases relating to the inner workings of the MMC. We would do well to remember
Chief Justice Kemp’s charge to the MMC almost four years ago when he wrote,
The MMC has a constitutional duty to adopt rules necessary for its “fair, impartial,
stringent, and comprehensive administration” of the Arkansas Medical Marijuana
Amendment. See Ark. Const. amend. 98, § 8(d)(3). I urge the MMC to review its rules
and procedures and to cure any deficiencies.
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Although only three members of the court would have allowed Carpenter Farms to
pursue its equal-protection claim pursuant to our declaratory-judgment statute, Carpenter
Farms in no way prevents a party from seeking declaratory relief as to a constitutional claim.
Three other justices joined a concurring and dissenting opinion agreeing that Carpenter
Farms could proceed with an equal-protection claim but concluded that judicial review of
that claim was available in the context of an adjudicatory appeal pursuant to Arkansas Code
Annotated section 25-15-212. Here, Eureka Green has not asserted jurisdiction pursuant to
section 212.
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Arkansas Dep’t of Fin. & Admin. v. Naturalis Health, LLC, 2018 Ark. 224, at 11, 549 S.W.3d 901,
908. (Kemp, C.J., concurring).
Unfortunately, the MMC has ignored the Chief Justice’s admonition. From Naturalis to
Carpenter Farms, to today’s decision, and undoubtedly others to come, we see one appeal after
another that highlights the MMC’s shortcomings. Worse, we should not forget that during our
consideration of the Naturalis case in 2018, the Attorney General advised us that a commissioner
had been offered a bribe, that he did not report it, and that there were other, as-yet
unsubstantiated allegations of improprieties in the scoring of cultivation licenses.
Undoubtedly, medical marijuana is big business in our state, and recreational marijuana
may be in the offing. Arkansas medical marijuana sales reportedly totaled almost $265 million
in 2021. Those sales are subject to heavy taxation that generates substantial tax revenue. By
neglecting its duty to adopt adequate rules, the MMC is abdicating its duty to properly regulate
this exploding industry. The MMC must adopt clear and necessary rules to allow for a level
playing field, and we should not excuse its failure to do so. In the meantime, Eureka Green
deserves more than a cursory dismissal of its complaint. Therefore, in reliance on this court’s
decision in Carpenter Farms, I would hold that the circuit court has jurisdiction to proceed to a
decision on the merits of Eureka Green’s complaint and affirm the circuit court’s order. A system
without checks and balances is ripe for at least the appearance of improper influence. The MMC
should not be insulated from review.
I respectfully dissent.
WYNNE, J., joins.
Leslie Rutledge, Att’y Gen., by: Maryna Jackson, Ass’t Att’y Gen., for appellants.
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WH Law | We Help, by: Chris W. Burks, for appellee.
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