Jeremy Kennedy v. Arkansas Parole Board ( 2024 )

Cite as 2024 Ark. 135SUPREME COURT OF ARKANSAS
No. CV-24-128
Opinion Delivered: September 26, 2024
JEREMY KENNEDY
APPELLANT PRO SE APPEAL FROM THE IZARD
COUNTY CIRCUIT COURT
[NO. 33CV-23-156]
V.
HONORABLE HOLLY MEYER,
ARKANSAS PAROLE BOARD JUDGE
APPELLEE
AFFIRMED.
JOHN DAN KEMP, Chief Justice
Appellant Jeremy Kennedy appeals from an Izard County Circuit Court order
denying his motion for reconsideration from the circuit court’s denial of his petition to
proceed in forma pauperis that he filed with a petition for administrative review of an
Arkansas Parole Board (Board)1 decision. On appeal, Kennedy contends that (1) his petition
for judicial review asserted a credible constitutional claim entitling him to judicial review
under the Administrative Procedure Act; (2) the Board acted outside its authority by
denying his transfer to the Division of Community Correction; (3) he was entitled to file
his petition for judicial review in forma pauperis; and (4) the circuit court’s order denying
his petition to proceed in forma pauperis was deficient. To the extent Kennedy reasserts his
substantive claims from his petition for judicial review, this court will not consider them.
1
The Arkansas Parole Board became the Arkansas Post-Prison Transfer Board on
January 1, 2024. See Ark. Code Ann. § 16-93-201(a)(1) (Supp. 2023).
To the extent his challenge is to the denial of his motion for reconsideration, we hold that
his argument is meritless. We affirm the circuit court’s denial of relief.
I. Facts
Following a hearing, the Board denied Kennedy parole. On October 12, 2023,
Kennedy filed a petition to proceed in forma pauperis with a petition for judicial review of
the Board’s decision denying him parole. In his pro se petition, Kennedy alleged that the
Board denied him parole following a hearing and that the Board erred by failing to grant
him parole because (1) Arkansas Code Annotated section 16-93-615(a) (Repl. 2016) created
a protectible liberty interest in parole, and he had standing to seek judicial review of the
Board’s actions; (2) he did not receive any materials or supporting documents that the Board
intended to use during the hearing; and (3) the final decision did not include findings of fact
and conclusions of law. On October 23, 2023, the circuit court denied the petition to
proceed in forma pauperis, finding that the underlying petition did not state a cause of
action.
On December 27, 2023, Kennedy filed a motion for reconsideration seeking to
modify or vacate the order of the circuit court pursuant to Arkansas Rule of Civil Procedure
60. In the motion, he contended that the circuit court failed to make specific findings that
delineated how his petition failed to allege a cognizable claim as required by Arkansas Rule
of Civil Procedure 72. With the motion for reconsideration, Kennedy also filed an amended
petition for judicial review. The circuit court denied the motion for reconsideration and
did not rule on the petition or amended petition for judicial review. On January 29, 2024,
Kennedy filed a notice of appeal from the denial of his motion for reconsideration.
2
II. Law and Analysis
Kennedy argues that an appeal from “any final order also brings up for review any
intermediate order involving the merits and necessarily affecting the judgment. In this
matter, that would include the circuit court’s order denying leave to proceed in forma
pauperis.” Kennedy contends that the order denying the petition to proceed in forma
pauperis was not a final order and that, even if it had been, the order was defective because
the court failed to provide findings on Kennedy’s indigency. Claiming that he was unable
to appeal the denial of his indigency status, Kennedy asserts that (1) the petition for judicial
review asserted a credible constitutional claim entitling him to judicial review; (2) the Board
acted outside its statutory authority by denying him transfer to the Division of Community
Correction; (3) he was entitled to file his petition for judicial review in forma pauperis; and
(4) the circuit court’s order denying leave to proceed in forma pauperis was deficient.
This court reviews a denial of a petition to proceed in forma pauperis for an abuse
of discretion. Clemmons v. Kelley, 2021 Ark. 47, at 3, 618 S.W.3d 128, 130. Arkansas Rule
of Civil Procedure 72 (2023) governs a decision to grant or deny a petition to proceed in
forma pauperis in a civil case. Rea v. Kelley, 2018 Ark. 329, at 1, 559 S.W.3d 746, 746. In
civil matters, Rule 72(c) conditions the right to proceed in forma pauperis on indigency and
the circuit court’s satisfaction that the alleged facts show “a colorable cause of action.”
Muntaqim v. Kelley, 2022 Ark. 5, at 2. A colorable cause of action is a legitimate claim that
may be reasonably asserted given the facts presented and the current law or a reasonable and
logical extension or modification of it. Id.Kennedy attempts to argue the merits of the petition for administrative review, but
he has failed to timely file a notice of appeal from the denial of the petition to proceed in
3
forma pauperis. Kennedy was required to file a motion for reconsideration of that order no
later than ten days after entry of judgment to be entitled to an extension because the time
for filing a notice of appeal shall be extended for all parties, and the notice of appeal shall be
filed within thirty days from entry of the order disposing of the last motion outstanding. See
Ark. R. App. P.–Civ. 4(b) (2023); Fuller v. State, 316 Ark. 341, 345, 872 S.W.2d 54, 56
(1994); see also Jewel v. Fletcher, 2010 Ark. 195, at 25, 377 S.W.3d 176, 192 (stating that a
posttrial motion for reconsideration “was not filed within ten days of entry of the court’s
order; thus, the time for filing appeal was not extended”). Kennedy could have also filed
and obtained a ruling on his motion for reconsideration prior to filing his notice of appeal
within thirty days of judgment. See Fuller, 316 Ark. at 345, 872 S.W.2d at 56. He failed to
do so, and as a result, the time to file the notice of appeal was not extended. The time to
have filed a notice of appeal from the denial of the petition to proceed in forma pauperis
expired on November 22, 2023. Absent a timely and effective notice of appeal, this court
lacks jurisdiction to consider an appeal. See Mills v. State, 2019 Ark. 21, at 1–2, 565 S.W.3d
480, 481. As a result, inasmuch as Kennedy attempts to challenge the merits of the circuit
court’s order denying the petition to proceed in forma pauperis, those grounds are not
properly before this court.
Moreover, Kennedy’s challenges to the underlying petition for judicial review—and
arguably the amended petition for judicial review—cannot be addressed by this court on
appeal. In the notice of appeal, Kennedy filed from the denial of his motion for
reconsideration, he expressly stated that he “abandon[ed] any pending but unresolved claims
in this matter”. Here, the circuit court did not make any specific findings regarding the
petition for judicial review or the amended petition for review and made a finding regarding
4
only the petition to proceed in forma pauperis. The failure to obtain a ruling on an issue at
the circuit court level, including a constitutional issue, precludes review on appeal. Van
Winkle v. State, 2016 Ark. 98, at 15, 486 S.W.3d 778, 788.
Finally, even if Kennedy’s claim––that the circuit court’s order denying leave to
proceed in forma pauperis was deficient––could be considered a challenge to the circuit
court’s denial of his motion for reconsideration, the challenge would be meritless. It is within
the circuit court’s discretion to determine whether it has jurisdiction under Rule 60 to set
aside a judgment, and the question on appeal becomes whether there has been an abuse of
that discretion. Robinson v. State, 2020 Ark. 324, at 2, 608 S.W.3d 596, 598. An abuse of
discretion lies when the circuit court’s decision is rendered improvidently, thoughtlessly, or
without due consideration. Id. at 2–3, 608 S.W.3d at 598. Judicial review of administrative
complaints is generally unavailable to inmates. See Ark. Code Ann. § 25-15-212(a) (Repl.
2014). But this rule does not preclude review of an asserted constitutional
violation.Muntaqim v. Kelley, 2019 Ark. 240, at 3, 581 S.W.3d 496, 499. When an inmate
challenges prison officials’ implementation of an Arkansas Division of Correction policy,
the petition must allege a constitutional question sufficient to raise a liberty interest. Id. at
3–4, 581 S.W.3d at 499. Otherwise, the claim cannot fall within the classification of claims
subject to judicial review. Id., 581 S.W.3d at 499.
Here, notwithstanding the circuit court’s lack of factual findings on Kennedy’s
indigency, he fails to allege a constitutional question sufficient to raise a liberty interest.
Kennedy’s primary claim is that he is a member of a target group and that the use of
mandatory language in the parole statutes—Arkansas Code Annotated section 16-93-612(e)
and (f) and Arkansas Code Annotated section 16-93-615(b)—created a liberty interest.
5
Because Arkansas parole statutes do not create a protectable liberty interest in parole
eligibility and Kennedy has failed to assert a colorable claim, we affirm the circuit court’s
denial of the motion for reconsideration. See Robinson v. Payne, 2024 Ark. 94, at 4, 688
S.W.3d 409, 414.
Affirmed.
WOMACK, J., dissents.
SHAWN A. WOMACK, Justice, dissenting. Appellant’s request for relief is barred
by article 5, section 20 of the Arkansas Constitution.1 Absent an express constitutional
provision to the contrary, the State can never properly be a defendant in any of its courts. 2
Because there is not an express constitutional provision that allows the State to be a
defendant in this context, dismissal is proper.3 For the reasons set forth in my dissent in
Perry v. Payne, I respectfully dissent.4
Jeremy Kennedy, pro se appellant.
Tim Griffin, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.
1
See, e.g., Perry v. Payne, 2022 Ark. 112, at 5 (Womack, J., dissenting).
2
See Thurston v. League of Women Voters of Ark., 2022 Ark. 32, at 17, 639 S.W.3d 319,
327 (Womack, J., dissenting).
3
Here, there was not an express constitutional provision that allowed Kennedy to
initiate a new civil case against the State. Thus, Kennedy should have petitioned for judicial
review in his original criminal cases, CR-07-170, CR-10-68, CR-13-37, CR-13-474,
CR-18-195, CR-22-660, and CR-22-627. Instead, he initiated new civil actions below–
33CV-23-156, 35CV-24-382, and 35CV-24-616. This he cannot do. See supra, note 1.
4
Id.
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