Chapter 17 Special and Extraordinary Proceedings

• Library: Handling Appeals in Arkansas (2022 Ed.)

CHAPTER 17 SPECIAL AND EXTRAORDINARY PROCEEDINGS

Troy A. Price¹

A. What are Extraordinary Proceedings?

B. What are the Common Types of Extraordinary Writs?

1. Writ of Mandamus

(a) General principles regarding the writ of mandamus
(b) Petitioning for a writ of mandamus

2. Writ of Prohibition

(a) General principles regarding the writ of prohibition
(b) Petitioning for a writ of prohibition

3. Writ of Certiorari

(a) General principles regarding the writ of certiorari
(b) Petitioning for a writ of certiorari

4. Writ of Quo Warranto

C. How to File for Extraordinary Relief

D. Certification Questions

E. Original Jurisdiction Matters

A. What are Extraordinary Proceedings?

Not all matters decided by the Arkansas Supreme Court arise from appeals of final judgments in the circuit courts. The Constitution of the State of Arkansas gives the Supreme Court the power to issue writs in extraordinary cases. Such writs may direct state, county or municipal officials, or lower courts to take or forego certain actions prior to, or separate from, entry of a final judgment. A writ is simply "[a] court's written order ... commanding the addressee to do or refrain from doing some specified act." BLACK'S LAW DICTIONARY (11th ed. 2019) (electronic version).

Amendment 80 to the Arkansas Constitution, adopted by the state's voters in 2000, is the source of the Supreme Court's current power to issue writs and preside over special proceedings in extraordinary circumstances. Fundamentally, the state constitution gives the Supreme Court "general superintending control over all courts of the state." Ark. Const. amend. 80, § 4. More specifically, Amendment 80 gives the Supreme Court original jurisdiction to take the following actions:

• Issue writs of quo warranto to all persons holding judicial office, and to officers of political corporations when the question is the legal existence of such corporations;

• Answer questions of state law certified by a federal court;

• Determine the sufficiency of state initiative and referendum petitions and proposed constitutional amendments;

• Issue and determine any and all writs necessary in aid of its jurisdiction and to delegate to its several justices the power to issue such writs; and

• Exercise other original jurisdiction as the Constitution provides.

Ark. Const. amend. 80, § 2(D)(2)-(5), (E). The Supreme Court's rules further reflect the court's jurisdiction to hear and decide extraordinary writs. See ASCR 1-2(a)(3).

B. What are the Common Types of Extraordinary Writs?

1. Writ of Mandamus

Mandamus is Latin for "we command," and it has been defined more fully this way: "A writ issued by a court to compel performance of a particular act by a lower court or a governmental officer or body, usu. to correct a prior action or failure to act." BLACK'S LAW DICTIONARY (11th ed. 2019) (electronic version).

(a) General principles regarding the writ of mandamus

• A writ of mandamus is used only to compel an official or judge to take some action. Raines v. State, 335 Ark. 376, 378, 980 S.W.2d 269, 270 (1998).

• A writ of mandamus is used to enforce an established right or to enforce the performance of a duty. Manila Sch. Dist. No. 15 v. White, 338 Ark. 195, 196, 992 S.W.2d 125, 126 (1999).

• To obtain a writ of mandamus, the petitioner must show (1) a clear and certain right to the relief sought and (2) the absence of any other adequate remedy. Hanley v. Ark. State Claims Comm'n, 333 Ark. 159, 164, 970 S.W.2d 198, 200 (1998).

• A writ of mandamus is appropriate only when the duty to be compelled is ministerial and not discretionary. Williams v. Porch, 2018 Ark. 1, at 2, 534 S.W.3d 152, 154.

• Through a writ of mandamus, the Supreme Court will compel judges to act when they have a duty to act, but the court will not use the writ to tell a judge how to decide a judicial question. Id. at 3, 534 S.W.3d at 154.

(b) Petitioning for a writ of mandamus

In Gillespie v. Planned Parenthood of Ark. & E. Okla, Inc., 2018 Ark. 228, the Arkansas Supreme Court denied without opinion a petition for an extraordinary writ based on a claim of improper venue. One justice dissented, acknowledging that motions for change of venue are typically not subject to extraordinary writs, but concluding that the general venue treatment did not apply because the change in venue was mandated by the statute.

The Supreme Court granted the petition for writ of mandamus in part and denied it in part in Williams v. Porch, 2018 Ark. 1, 534 S.W.3d 152, holding that the lower court had a duty to rule on the criminal defendant's pro se petition for post-conviction relief, but refusing to direct the circuit court on how to rule on the petition.

2. Writ of Prohibition

Prohibition is "[a]n extraordinary writ issued by an appellate court to prevent a lower court from exceeding its jurisdiction or to prevent a nonjudicial officer or entity from exercising a power." BLACK'S LAW DICTIONARY (11th ed. 2019) (electronic version).

(a) General principles regarding the writ of prohibition

• To obtain a writ of prohibition, the petitioner must show (1) that the lower court is wholly without jurisdiction over the proceeding and (2) the petitioner has no other remedy, such as an appeal. Esterline Techs. Corp. v. Brownlee, 2021 Ark. 33, at 3, 617 S.W.3d 256, 258.

• "Jurisdiction is the power of the court to hear and determine the subject matter in controversy between the parties." Conner v. Simes, 355 Ark. 422, 425, 139 S.W.3d 476, 478 (2003).

• The jurisdictional question must be legal rather than factual; the Supreme Court confines its review to the record pleadings. Id., 139 S.W.3d at 478.

• A writ of prohibition will not be issued if the circuit court has jurisdiction—even if the lower court has erroneously asserted its jurisdiction. Ark. Dep't of Human Servs. v. Collier, ...