McGhee v. Arkansas State Board of Collection Agencies , 360 Ark. 363 ( 2005 )

Annabelle Clinton Imber, Justice.

This is an action pursuant to Article 16, Section 13, of the Arkansas Constitution to protect the taxpayers of the State of Arkansas from alleged misuse of public funds by the Arkansas State Board of Collection Agencies (“the Board”) in licensing and regulating check-cashing businesses that charge usurious interest rates under the CheckCasher’s Act, Ark. Code Ann. § 23-52-101, et seq. (Repl. 2000 and Supp. 2003). Our common law makes an illegal-exaction suit under Article 16, Section 13, of the Arkansas Constitution a class action as a matter of law. Worth v. City of Rogers, 351 Ark. 183, 89 S.W.3d 875 (2002). An illegal-exaction claim is by its nature in the form of a class action. Id. An illegal-exaction suit is a constitutionally created class of taxpayers, and suit is brought for the benefit of all taxpayers. Id.

The Board has established a Division of Check-Cashing to administer the licensing and regulation of payday lenders. Under the statute, licensed persons are authorized to sell currency or a check to another person in exchange for a check. See Ark. Code Ann. §§ 23-52-102(4)—109. Often check-cashers will offer a “deferred-presentment option” whereby the check-casher, in exchange for a fee, allows the customer the option to repurchase the customer’s personal check before an agreed upon time. Ark. Code Ann. § 23-52-102(5). Prior to the filing of the current case, one of the appellants, Sharon McGhee, on behalf of a class of persons with causes of action against AAA Check Cashing, Inc. (“AAA”), had received a class-action monetary judgment against AAA as a result of deferred presentment transactions. In her capacity as class representative, McGhee had filed a claim with the Board to recover the damages awarded in the judgment from Old Republic Insurance Co., Inc., AAA’s surety. At the time the present complaint was filed, the Board had not issued a ruling in that administrative proceeding.

In the complaint filed in the instant case, the appellants maintain that all transactions under the Check-Casher’s Act involve interest rates that violate the usury provisions of the Arkansas Constitution. Ark. Const. Art. 16, § 13. Appellants further allege that the Board’s Division of Check-Cashing has used public funds to finance its operations, and that such use constitutes an illegal exaction under Ark. Const. Art. 16, § 13. Appellants filed this case on April 23, 2003, seeking injunctive relief to prohibit the Board from the continued licensing of check cashers and a declaratory judgment that the Check Casher’s Act is unconstitutional. Appellees responded to the suit by filing a motion to dismiss, asserting five grounds for dismissal: (1) that the claim for declaratory relief was barred while the administrative process was ongoing; (2) that the appellants lacked standing; (3) that the appellees were immune from suit; (4) that the appellants had failed to join all interested parties; (5) that the plaintiffs had failed to state facts upon which relief can be granted. Appellants responded and moved for partial summary judgment on their claim for declaratory relief. At the August 22, 2003 hearing, the circuit court stated, “It’s not my place to declare something unconstitutional.” Subsequently, the circuit court granted the appellees’ motion to dismiss on all five grounds and ruled that the appellants’ motion for partial summary judgment on the constitutionality of the statute was thus rendered moot. On appeal, the appellants argue the circuit court not only erred in dismissing the case, but also in determining that it could not rule on the constitutional issue, and in failing to grant the appellants’ partial summary-judgment motion.

With regard to the constitutionality of the Check-Casher’s Act, Ark. Code Ann. § 23-52-101, et seq., this court has jurisdiction to hear issues concerning the validity of an act of the General Assembly pursuant to Ark. Sup. Ct. R. 1-2(b)(6). In deciding whether a motion to dismiss a complaint was properly granted, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff Hodges v. Lamora, 337 Ark. 470, 989 S.W.2d 530 (1999). Furthermore, we look only to the allegations in the complaint and not to matters outside the complaint. Id.

The first rationale given by the circuit court for granting the appellees’ motion to dismiss was “that the claim for declaratory relief is barred while the administrative process is ongoing.” Appellees, in support of this ruling, note the existence of a previous action that was commenced before the Board. However, the parties in both actions are not the same. Here, all Arkansas taxpayers are the appellants; whereas, Sharon McGhee filed the administrative complaint before the Board only on behalf of persons with causes of action against AAA, i.e., certain customers of AAA. Furthermore, the issues in both cases are not similar. In the case before the Board, the issue was whether Old Republic Insurance Co., Inc., as a surety, was liable on a judgment against the insured, AAA Check Cashing, Inc. Here, the issue is the alleged misuse of public funds to support the Board’s Division of Check-Cashing and the constitutionality of Ark. Code Ann. § 23-52-101, etseq. While Appellant Sharon McGhee does have to wait for the Board’s judgment before appealing the surety question, the pendency of that administrative process does not prevent the appellants from filing a new and separate cause of action for illegal exaction. Accordingly, we conclude that the circuit court erred when it found that the claim was barred by this unrelated administrative claim.

The dissent argues that the appellants must exhaust all administrative remedies before an illegal-exaction suit may be brought against the Board in the circuit court. As posited by the dissent, the doctrine of exhaustion of administrative remedies not only requires parties to follow through on matters already before the agency, but also requires them to bring an illegal-exaction claim before the agency prior to filing suit. Yet, neither the appellants nor the appellees have cited a case in which an illegal-exaction suit was initiated before a board, agency or commission, and our research discloses none. This court has, however, decided at least four cases involving the actions of a board in which an illegal-exaction suit was initiated either in circuit court or chancery court. Carwell Elevator Co., Inc. v. Leathers, 352 Ark. 381, 101 S.W.3d 211 (2003); Leathers v. Gulf Rice Arkansas, Inc., 338 Ark. 425, 994 S.W.2d 481 (1999); State Bd. of Workforce Educ. v. King, 336 Ark. 409, 985 S.W.2d 731 (1999); Chandler v. Board of Trustees of the Teacher Retirement System, 236 Ark. 256, 365 S.W.2d 447 (1963). All of those suits were initiated in circuit or chancery court, decided, and appealed. This court decided the appeals without imposing an exhaustion-of-administrative-remedies requirement.

At least two other reasons militate against imposing such a requirement upon suits filed by citizens to enjoin “the enforcement of any illegal exaction whatever” under Article 16, Section 13 of the Arkansas Constitution. First, it is well established that Ark. Const. Art. 16, § 13 is self-executing and imposes no terms or conditions upon the right of the citizen to file suit to prevent an illegal exaction. Saunders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995); Martin v. Couey Chrysler Plymouth, Inc., 308 Ark. 325, 824 S.W.2d 832 (1992); Starnes v. Sadler, 237 Ark. 325, 372 S.W.2d 585 (1963).

Second, the dissent’s proposed application of the exhaustion-of-administrative-remedies doctrine, if adopted by this court, would preclude a taxpayer from bringing an illegal-exaction suit if any proceeding involving another taxpayer is pending before an agency, board or commission that is the subject of the challenge. Here, a group of plaintiffs — certain customers of AAA — filed a claim with the Board seeking to hold AAA’s surety liable on a judgment against its insured. The dissent urges that the existence of that claim precludes any other taxpayer from bringing an illegal-exaction suit for the benefit of all taxpayers under Ark. Const. Art. 16, § 13. As noted earlier, an illegal-exaction suit is a constitutionally created class of taxpayers, and suit is brought for the benefit of all taxpayers. Worth v. City of Rogers, supra. The end result of that approach would be that any taxpayer involved in a proceeding before an agency must raise an illegal-exaction claim under Ark. Const. Art. 16, § 13, thereby effectively foreclosing any other taxpayer from bringing such a suit in circuit court. Furthermore, even if there is no proceeding pending before the agency, taxpayers would be required to institute illegal-exaction claims at the board level before they could file suit in circuit court. Such a result is not supported by the Arkansas Constitution or our case law.

In its second finding on the motion to dismiss, the circuit court determined that the appellants lacked standing. Appellants’ standing to pursue an illegal-exaction claim is governed by Ark. Const. Art. 16, § 13, which states,

Any citizen of any county, city, or town may institute suit, in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.

Ark. Const. Art. 16, § 13. Two types of illegal-exaction cases can arise under this constitutional provision: “public funds” cases, where the plaintiff contends that public funds generated from tax dollars are being misapplied or illegally spent, and “illegal-tax” cases, where the plaintiff asserts that the tax itself is illegal. Pledger v. Featherlife Precast Corp. 308 Ark. 124, 823 S.W.2d 852 (1992). In this case, the appellants are challenging the use of public funds by the State of Arkansas to fund the Arkansas Board of Collection Agencies, Division of Check-Cashing, which division licenses and regulates check cashing companies, pursuant to Act 1216 of 1999. The only standing requirements we have imposed in public-funds cases are that the plaintiff be a citizen and that he or she have contributed tax money to the general treasury. Ghegan v. Ghegan, Inc. 338 Ark. 9, 991 S.W.2d 536 (1999). Here, the appellants’ complaint clearly alleges that all plaintiffs were Arkansas residents and taxpayers. Because these allegations are sufficient to withstand a motion to dismiss for lack of standing, we conclude that the circuit court erred in dismissing the case on this ground.

The appellees, nonetheless, assert that the Board’s Division of Check-Cashing is financed by fees paid by the licensed collection agencies and check-cashers and does not receive any general revenue from the Arkansas State Treasury. Based on that assertion, they contend that the appellants do not have standing to challenge the expenditure of money. Our decision in Chapman v. Bevilacqua, 349 Ark. 262, 42 S.W.3d 378 (2001), is cited as support for the proposition that a taxpayer does not have standing to challenge the disbursement of fees paid by a third party. The appellees also state, “Appellants do not state facts to show that the Appellee receives tax dollars or that the Appellants’ tax dollars pay for the operation of the Appellee’s Division of Check-Cashing.” This statement, however, mischaracterizes the appellants’ burden to overcome a motion to dismiss. As stated above, in deciding whether a motion to dismiss a complaint was properly granted, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Hodges v. Lamora, supra. Here, the complaint clearly alleges the use of public funds, stating, “Since its inception, the Board’s Division of Check-Cashing has used public funds to finance its operation.” Because we must assume all factual allegations in the complaint are true, this statement in the complaint is sufficient to overcome a motion to dismiss. If the Board had presented affidavits or other evidence establishing that the Division of Check-Cashing did not use public funds to finance its operation, we could have treated the motion to dismiss as one for summary judgment. Dupwe v. Wallace, 355 Ark. 521, 140 S.W.3d 464 (2004). However, no additional evidence on this point was presented. Thus, our review is limited to the allegations in the complaint.

We also conclude that the circuit court erred in dismissing the complaint for failure to state facts upon which relief can be granted under Ark. R. Civ. P. 12(b)(6)(2004). The complaint sufficiently states a cause of action for illegal exaction. As we pointed out earlier in this opinion, the misapplication of public funds is one avenue for establishing a claim for illegal exaction. Pledger v. Featherlite Precast Corp., supra. Here, the complaint contains the following factual allegations:

• All transactions under the Check-Casher’s Act involve interest rates that violate the usury provisions of the Arkansas Constitution.

• Since its inception, the Board’s Division of Check-Cashing has used public funds to finance its operations. The Board has employees and equipment and has a budget for its routine expenses.

• At various times since its inception, the Division has presented payday lenders with a table to allow the lenders to calculate the interest amount to charge to consumers. This information is posted on the Defendants’ website. According to the posted chart, transactions involve interest rates of at least 168.203% and up to 1,738.443%.

• The Board continues to provide “licenses” to payday lenders.

According to these allegations, the Board was aware that the checkcashers were charging unconstitutionally usurious fees and nevertheless continued to provide licenses to them. Based on these facts alleged in the complaint, the expenditure of public funds to support the Board’s Division of Check-Cashing would be a misapplication of public funds; that is, as alleged in the complaint, public funds are being misapplied or illegally spent. We therefore hold that the complaint sufficiently states a cause of action for illegal exaction.

The circuit court additionally found that the appellees were immune from suit pursuant to the Arkansas Constitution and state law. According to Ark. Const. Art. 5, § 20, “The State of Arkansas shall never be made a Defendant in any of her Courts.” Id. While this provision generally prohibits suits against the State or a State agency, we have held that the illegal-exaction clause, as the more specific provision, controls the more general prohibition against suit provided in art. 5, § 20, and grants taxpayers the right to sue. Carson v. Weiss, 333 Ark. 561, 972 S.W.2d 933 (1998). Thus, in view of our holding that the appellants have successfully pled an illegal exaction claim, the doctrine of sovereign immunity is not applicable here.

In a fourth rationale for dismissing the complaint, the circuit court found that the appellants had failed to join all interested parties. Rule 19 of the Arkansas Rules of Civil Procedure states,

A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter, impair or impede his ability to protect that interest, or (ii) leave any of the persons already parties subject to a substantial risk ofincurring double, multiple or otherwise inconsistent obligations by reason of his claimed interest.

Ark. R. Civ. P. 19(a) (2004). Appellees argue the trial court properly dismissed the complaint because the appellants failed to name the licensed check-cashers that would be affected by the relief requested in their complaint. However, joinder is only an appropriate remedy when the individuals in question are not parties to the litigation. In an illegal exaction claim, the Arkansas Constitution makes each taxpayer a party to the lawsuit as a matter of law. Worth v. City of Rogers, 351 Ark. 183, 89 S.W.3d 875 (2002). A check-casher, as defined in Ark. Code. Ann. § 23-52-102(3), is “a person who for compensation engages, in whole or in part, in the check-cashing business.” The status of check-cashers as taxpayers has not been rebutted. Consequently, all licensed check-cashers in Arkansas would be members of the class and parties to the illegal exaction suit.¹ We therefore conclude that the circuit court erred in dismissing the case for failure to join all interested parties.

Finally, the appellants argue that the circuit court erred in determining that it could not rule on the appellants’ constitutional claim and in failing to grant the appellants’ motion for partial summary judgment. In fact, the circuit court simply refused to rule on the motion, deeming it “moot” because it had dismissed the case on other grounds. As the trial court did not issue a ruling on the constitutional claim or the motion for partial summary judgment, we will not address these issues on appeal.

Reversed and Remanded.

Corbin, J., dissents. Gunter, J., not participating.

1 We need not address whether the check-cashers have a right to intervene in this lawsuit under Ark. R. Civ. P. 24 (2004) because that issue is not before us in this appeal. Worth v. City of Rogers, supra (Imber.J., concurring).