Farmer v. Moon

Cite as 2013 Ark. App. 564

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-13-4

Opinion Delivered October 9, 2013
DONNIE FARMER, CHAIR OF THE
JACKSONVILLE CIVIL SERVICE APPEAL FROM THE PULASKI
COMMISSION COUNTY CIRCUIT COURT, FIFTH
APPELLANT DIVISION [NO. CV-2012-1016]

HONORABLE WENDELL GRIFFEN,
V. JUDGE

APPEAL DISMISSED; CIRCUIT
SCOTT MOON COURT OPINION AND ORDER
APPELLEE VACATED

JOHN MAUZY PITTMAN, Judge

Appellant is the chairman of the Jacksonville Civil Service Commission. He appeals

from a circuit court’s declaratory judgment construing the term “three days” as employed in

Arkansas Code Annotated section 14-51-308(b)(1) (Supp. 2011) to mean three eight-hour

workdays, and directing the Jacksonville Civil Service Commission to allow appellee, a

Jacksonville firefighter, a trial regarding his thirty-nine-hour disciplinary suspension. We

dismiss the appeal because, under the circumstances here presented, the circuit court lacked

jurisdiction to enter the declaratory judgment.

The declaratory-judgment statute is applicable only where there is a present actual

controversy, all interested persons are made parties, and justiciable issues are presented; it does

not undertake to decide the legal effect of laws upon a state of facts which is future,

contingent, or uncertain. McCutchen v. City of Fort Smith, 2012 Ark. 452; Nelson v. Arkansas
Cite as 2013 Ark. App. 564

Rural Medical Practice Loan & Scholarship Board, 2011 Ark. 491, 385 S.W.3d 762. The

declaratory-judgment proceeding is intended to supplement, rather than supersede, ordinary

causes of action; thus, it is dependent on, and is not available in the absence of, a justiciable

controversy. Martin v. Equitable Life Assurance Society, 344 Ark. 177, 40 S.W.3d 733 (2001).

Because declaratory-judgment actions supplement rather than replace ordinary causes of

action, parties are required to exhaust administrative remedies prior to seeking a declaratory

judgment. Rehab Hospital Services Corp. v. Delta-Hills Health Systems Agency, Inc., 285 Ark.

397, 687 S.W.2d 840 (1985).

There are exceptions to the exhaustion requirement, e.g., exhaustion is not required

where irreparable injury will result if the complaining party is compelled to pursue

administrative remedies, if no genuine opportunity for adequate relief exists, or where an

administrative appeal would be futile. Barr v. Arkansas Blue Cross & Blue Shield, Inc., 297 Ark.

262, 761 S.W.2d 174 (1988). However, there is nothing whatsoever in the record to suggest

that irreparable injury to appellee was threatened, and the latter two exceptions do not apply

where a party has failed to avail himself of available judicial review of the administrative

agency’s actions. See Hankins v. McElroy, 313 Ark. 394, 855 S.W.2d 310 (1993).

Here, Arkansas Code Annotated section 14-51-308(e) expressly provides for an appeal

of a municipal civil service commission’s decision to the circuit court to be taken by filing

a notice of appeal with the commission within thirty days of the decision. Appellee filed no

such notice of appeal, however; instead, he filed the present declaratory-judgment action

almost four months after the commission’s decision. An action for declaratory judgment may

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Cite as 2013 Ark. App. 564

not be utilized as a substitute for an appeal, see generally 26 C.J.S. Declaratory Judgments § 23

(2013), and this action was nothing more and nothing less than an attempt to obtain judicial

review of the agency decision long after the time for seeking such review had expired.

Appeal dismissed; circuit court opinion and order vacated.

WALMSLEY and VAUGHT, JJ., agree.

Robert E. Bamburg, for appellant.

Martin Law Firm, by: Aaron L. Martin, for appellee.

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