Christopher Miles and All Other Similarly Situated Persons v. Craighead County, Arkansas And Jack McCann, Craighead County Sheriff

Cite as 2022 Ark. App. 105
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-20-750

CHRISTOPHER MILES AND ALL Opinion Delivered March 2, 2022
OTHER SIMILARLY SITUATED
PERSONS APPEAL FROM THE CRAIGHEAD
APPELLANTS COUNTY CIRCUIT COURT,
WESTERN DISTRICT
[NO. 16JCV-12-820]
V.

HONORABLE DAVID N. LASER,
CRAIGHEAD COUNTY, ARKANSAS; JUDGE
AND JACK MCCANN, CRAIGHEAD
COUNTY SHERIFF REVERSED
APPELLEES

STEPHANIE POTTER BARRETT, Judge

Appellant Christopher Miles filed an illegal-exaction case on his behalf and on the

behalf of other similarly situated persons on December 8, 2012, against Craighead County

and the Craighead County Sheriff for payment of certain costs and fees that were assessed

and collected in criminal cases but not authorized by law. The Craighead County Circuit

Court refused to hold the assessment of the subject fees constituted an illegal exaction, that

the fees and costs paid were made voluntarily, and that refunds were not available, and it

dismissed the case with prejudice. From that order comes this appeal. We hold that the

assessment and collection of fees and costs not authorized by law does constitute an illegal

exaction and that the fees were not voluntarily paid. Therefore, we reverse and remand.
On October 1, 2010, Mr. Miles was stopped by the Craighead County Sheriff’s

Department on a traffic offense and charged with possession of a controlled substance—

methamphetamine, possession of drug paraphernalia with intent to use, driving while license

canceled-suspended or revoked, and running a stop sign. He entered a plea agreement for a

thirty-six-month probated sentence and was ordered to pay costs and fines in the total

amount of $731.

On December 8, 2012, Mr. Miles filed a complaint on his behalf and on the behalf

of similarly situated persons, alleging that the payment of certain costs and fees above the

$150 allowed by statute was an illegal exaction. On July 21, 2016, the circuit court issued an

initial order enjoining the prospective imposition of two fees: an $86 sheriff’s fee and a $100

fee for lower-court costs. It also declared that the fees were illegal exactions. The circuit

court stated that it would have another hearing to determine class-action status or whether

class-action certification was needed in an illegal-exaction case.

On February 8, 2017, the circuit court entered an order reiterating that this was an

illegal-exaction case and holding that fees paid before the filing of the complaint were

“voluntary,” and a refund of the fees was not available. Fees paid following the filing of the

complaint in this case were presumed to be “involuntary,” and persons who paid them might

potentially be due a refund. Whether individuals’ refunds were available depended on the

circumstances surrounding the payment as well as whether the individual wished to seek a

refund. Notice was ordered to be issued informing potential claimants of the nature of the

proceeding and that they might be entitled to a refund of the fee paid.

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On May 15, 2018, the circuit court issued an “Order on Proposed Plan to Distribute

Monies,” which included a provision ordering Craighead County to provide addresses and

amounts paid and ordering Mr. Miles’s counsel to send the notices by certified mail, return

receipt requested. Mr. Miles filed a motion requesting that Craighead County pay the cost

of mailing the notices. In response, on August 1, 2018, the circuit court entered an order

abating the May 15 order. On September 11, 2019, Mr. Miles filed a motion for a final order

claiming that the cost of mailing the notices would be between $35,000 and $60,000, and

Mr. Miles did not want to incur the expense because Craighead County had claimed its

intention to file an appeal. Miles asked the court to delay any notice requirements until a

final, appealable order had been entered and all appeals exhausted.

On May 4, 2020, the circuit court issued its final order, holding (1) that the circuit

court had jurisdiction and venue was proper; (1) that the only other case, Parker v. Laws, infra,

never imposed illegal-exaction liability against a party that played no part in imposing the

challenged levy; (3) that Parker is readily distinguishable from the facts of this case; (4) that,

per long-established supreme court precedent and Arkansas statute, the only appropriate

mechanism to challenge illegal costs was through a motion to retax costs in the individual

criminal case; (5) that, per long-established supreme court precedent, the only appropriate

method for challenging any component of a criminal conviction is through a direct criminal

appeal; (6) that, per long-established Arkansas and U.S. Supreme Court precedent, collateral

attacks on criminal convictions by way of a civil lawsuit are prohibited; (7) that because no

proof of any lack of voluntariness in payment of the subject fees had been proffered, refunds

3
of any fees were not warranted in any event; and (8) that since imposition of the fees had

already been enjoined, no further injunctions were necessary. The court dismissed the case

with prejudice.

Mr. Miles argues that the circuit court erred in its refusal to find an illegal-exaction

case. We agree. An illegal exaction is any exaction that is either not authorized by law or is

contrary to law. Robinson v. Villines, 2009 Ark. 632, at 6, 362 S.W.3d 870, 874. Two types of

illegal-exaction cases can arise: “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. McGhee v. Ark. State Bd. of

Collection Agencies, 360 Ark. 363, 370, 201 S.W.3d 375, 379 (2005).

Here, the public funds were generated from criminal fees and costs of court that were

in excess of those authorized by statute, which constitutes an illegal tax. In refusing to hold

that this matter was an illegal-exaction case, the circuit court stated in its May 4, 2020 order

that “the finding that the fees challenged in this case were beyond the statutory authority is

not the end of the analysis.” The circuit court went on to cite Mr. Miles’s failure to sue any

party involved in the levy of the subject fees. However, the circuit court found in its July 21,

2016 order that the fees were not authorized by statute, that the sheriff did not receive the

fee that was titled “sheriff fee,” and the funds generated by the “sheriff fee” were placed in

the Craighead County general fund. It is clear that Craighead County was a recipient of the

fees generated, was the party expending the funds, and therefore was a properly named party.

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We find this to be an illegal-exaction case, the proper party has been named, and the circuit

court’s dismissal of the illegal-exaction case was in error.

Mr. Miles next argues that the fees and costs paid were not voluntary. We agree.

Voluntary fees are not subject to an illegal-exaction suit. Hoyle v. Faucher, 334 Ark. 529, 975

S.W.2d 843 (1998). When payments are made involuntarily, the money should be returned

to the accused persons who paid. Parker v. Laws, 249 Ark. 632, 637–38, 460 S.W.2d 337,

340 (1970) (citing Williford v. Eason, 110 Ark. 303, 161 S.W. 498 (1913)). An individual who

is under arrest and pays an illegal fine or costs under the compulsion of that arrest is entitled

to recover it in an action instituted for that purpose. Williford, 110 Ark. at 303, 161 S.W. at

499. We do not agree with Craighead County’s argument that Mr. Miles negotiated the fees

and costs of court when he negotiated the terms of his plea agreement. A criminal defendant

wishing to accept a plea agreement is faced with either paying the fees assessed by the court

or with a trial and the possibility of a much harsher punishment, including jail or prison

confinement. Those criminal defendants who were convicted after trial were assessed the

same fees. The supreme court has held that payments can be rendered involuntary when

made under coercion or some actual or threatened exercise of power possessed by the party

exacting or receiving payment over the person or property from which the latter has not

reasonable means of immediate relief except by making payment. Weiss v. Chavers, 357 Ark.

607, 184 S.W.3d 437 (2004). In Craighead County, those criminal defendants who accepted

a plea agreement and were ordered to pay illegal fees paid said fees under coercion because

the alternative they faced was the possible loss of liberty. Likewise, those convicted without

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a plea agreement did not pay fees voluntarily nor did they negotiate for the voluntary

payment of fees. We do not find the fees taxed and collected by the circuit court and turned

over to Craighead County voluntarily paid.

Finally, the circuit court held that Mr. Miles’s illegal-exaction suit was an unallowable

collateral attack on his underlying criminal sentence. The circuit court stated that Mr. Miles

should have directly appealed his criminal conviction in order to obtain relief or filed a

motion to retax the illegal costs. We disagree. The general rule is that a defendant who does

not appeal a criminal conviction must be barred from collaterally attacking a judgment.

Camp v. State, 364 Ark. 459, 221 S.W.3d 365 (2006). Although Mr. Miles and similarly

situated persons had other remedies available to them, such as filing a Rule 37 motion or a

motion to retax the illegal costs and fees, they also have a remedy in equity. These remedies

are not mutually exclusive. “[U]nlawful payments of public funds to public officers constitute

illegal exactions that may be recovered in a taxpayer’s suit. . . . It is immaterial that there may

be an adequate remedy at law, for the Constitution confers upon the taxpayer a cause of

action in chancery. In fact, even the legislature cannot take away the taxpayer’s equitable

remedy.” Parker, 249 Ark. at 635, 460 S.W.2d at 339 (citations omitted). An illegal-exaction

suit is a remedy conferred by the Arkansas Constitution and cannot be taken away. Under

article 16, section 13 of the Arkansas Constitution, “[a]ny citizen of any county, city, or town

may institute suit, on behalf of himself and all others interested, to protect the inhabitants

thereof against the enforcement of any illegal exactions whatever.” The illegal fees, including

the $86 sheriff’s fee and the $100 fee for lower-court costs, were illegal exactions that any

6
citizen of the county, on behalf of himself or all others interested, may institute to protect

the citizens of Craighead County from illegal exactions. We reverse the circuit court’s

holding that this suit was an unallowable collateral attack on a criminal conviction.

Reversed.

GLADWIN, VIRDEN, and WHITEAKER, JJ., agree.

BROWN and ABRAMSON, JJ., dissent.

WAYMOND M. BROWN, Judge, dissenting. Appellant Christopher Miles, on behalf

of himself and all other similarly situated persons, appeals the May 6, 2020 order of the

Craighead County Circuit Court dismissing an illegal-exaction complaint against Craighead

County, Arkansas; and Jack McCann, Craighead County Sheriff, with prejudice. Appellant

contends that the circuit court erred by finding that no refunds could be awarded in this

case and dismissing the case with prejudice. I would affirm.

The facts of this case are not in dispute. Appellant Christopher Miles was stopped

for a traffic violation on October 1, 2010, by a Craighead County sheriff. As a result of the

stop, appellant was arrested and charged with two Class C felonies: possession of a

controlled substance—methamphetamine; and possession of drug paraphernalia with intent

to use. He was also charged with the unclassified misdemeanors of driving while license

canceled, suspended, or revoked; and running a stop sign. Appellant subsequently entered

a negotiated plea of guilty to possession of a controlled substance—methamphetamine, and

the other charges were nolle prossed. Appellant received a suspended sentence of three years

and was ordered to pay costs and fines in the amount of $731 at the rate of $50 a month.

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Court costs in the amount of $236 were among the costs appellant was ordered to pay, and

it included a clerk’s fee of $150 and a sheriff’s cost of $86.

On December 8, 2012, appellant filed an illegal-exaction complaint on behalf of

himself and all other similarly situated persons against Craighead County, Arkansas; and

Jack McCann, Craighead County Sheriff, alleging that Craighead County and McCann had

collected court costs over the $150 statutory allowable amount. According to the complaint,

defendants were charged an additional $86 sheriff fee, resulting in court costs of $236. It

also alleged that persons appealing from district court were charged a lower-court fee of $100.

The complaint alleged that the collection of these additional costs amounted to illegal

exactions and prayed for the following:

[T]hat this court declare the actions of the Defendants in levying and collecting
court costs in excess of $150.00 to be illegal exactions and illegal assessments of court
costs against the Plaintiffs and all class members; that the Court mandate, enjoin, and
direct Defendants to re-tax the costs assessed against all class members in excess of
$150.00, and to correct any errors of the illegal assessment; that the Court mandate,
enjoin, and direct Defendants from levying or assessing any further or future charges
or costs in excess of the $150.00 as authorized by statute; that all Defendants be
ordered to account for any of such funds levied by, paid to, or collected by them in
excess of the $150.00; that all Defendants pay any such funds in the registry of the
Court; that Plaintiffs and all class members have judgments against all Defendants
for all illegal charges levies [sic] or paid; that Plaintiffs recover attorney fees, costs, and
expenses of litigation; that Plaintiff be able to pursue this action on behalf of all
individual’s [sic] that have been charges [sic] and paid this illegal exaction or costs;
and for any and all other proper legal and equitable relief. Defendants filed an answer
on January 15, 2013, denying the material allegations of the complaint and asserted
numerous affirmative defenses.

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Appellant filed a motion for summary judgment on January 15, 2016. According to

appellant, the facts and issues presented in this suit were directly in line with Parker v. Laws,1

and no genuine issue of material fact existed. Appellees filed a brief in response to

appellant’s summary-judgment motion and a countermotion for summary judgment on

February 18. In their motion, appellees stated that appellant’s suit should be dismissed

because it constituted an impermissible collateral attack on his conviction. They also argued

that Miles agreed to pay the court costs as part of his negotiated plea, which he voluntarily

entered into. Appellees asked the circuit court to grant summary judgment in their favor.

Appellant filed a reply in support of his motion and a response to appellees’ motion on

March 29. Appellant denied that he was collaterally attacking his sentence or that the

payment was voluntarily made.

The circuit court held a hearing on June 29. At the hearing, everyone seemed to agree

that all the fees ($86 sheriff costs and $100 lower-court fees) were sent back to Craighead

County and placed in the county fund and that none were retained by the sheriff. The

circuit court entered an order on July 21, finding that the fees in question were illegal

exactions and ordered the circuit court to “cease and desist from charging any fees or costs

over and above the $150.00 that is authorized by statute.” The circuit court then stated that

its ruling was limited to Miles and that it intended to hold a separate hearing to determine

1
249 Ark. 632, 460 S.W.2d 337 (1970).

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who the similarly situated persons were. It asked both sides to brief the court on whether

class certification was needed in this type of suit.

Appellant filed a brief on September 16, contending that an illegal-exaction claim by

its nature is a class action and asked the court to declare “this class certified as a matter and

law[.]” Appellees also filed a brief on September 16 arguing why the circuit court should

dismiss appellant’s claim, including claims that the suit was not a proper illegal-exaction case,

not a proper Rule 23 class-action case, and not a proper stand-alone case. They also

contended that Parker was inapposite and possibly bad law and stated that the statute of

limitations should apply to limit the scope of the case. Appellees filed a response to

appellant’s brief on September 23, seeming to reiterate the arguments it had made in its own

brief. Appellant filed a reply on September 23, contending that appellees were trying to

reargue issues. Appellant also maintained that Parker was directly on point with the facts

and issues of this case. Appellant filed another brief on November 14, contending that not

only the fees paid after the lawsuit commenced were involuntary, but payments made by

coercion were also involuntary. Appellant argued that the fees in this case were coercive

because one fee “is imposed as part of a criminal plea or sentence, which makes it coercive

by definition. It is a criminal punishment. The second fee is a condition placed on the

ability to appeal[,]” and the person subjected to the fee had to pay it or forgo the right to

appeal, making that fee coercive by definition also. Appellees filed a response on November

28, contending that appellant agreed to and subsequently paid the fees and fines voluntarily

without an appeal, without a move for retaxation of the costs, or even an objection on the

10
record, which led to the proceeds being spent by the county in the ordinary course. Appellees

stated that Arkansas law does not permit a refund under these facts. Appellees further

argued that since the fees and costs were part of appellant’s criminal conviction, appellant

could not collaterally challenge them in an illegal-exaction case or any other civil matter.

Additionally, appellees stated that Parker is inapposite to the facts of this case. Appellees

filed the affidavit of Terry McNatt, the elected Treasurer of Craighead County on November

29. The affidavit stated that Craighead County is “constrained from deficit spending, so

county revenues are generally/roughly spent in their entirety in each calendar year.” He

further stated that, to the best of his knowledge and based on the review of Craighead

County’s financial records, “all proceeds from the fees/fines challenged in this lawsuit, were,

upon receipt transferred into the County General Fund, where they are spent in the ordinary

course.”

The circuit court held hearings on October 18 and December 16. The circuit court

issued an order on February 8, 2017, finding that payments of the illegal costs and fees prior

to the filing of the current suit were deemed voluntary and not recoverable. However, it

found that payments made subsequent to this action were “presumed to be involuntary, and

those who paid them may potentially be due a refund. Whether individual refunds are

available may depend on the circumstances surrounding the payments, as well as whether

the individual wishes to seek a refund.” The circuit court also found that proof may be

needed to determine whether specific refunds would be given. The order required that

notice be given to individuals with potential claims and that they would have sixty days to

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make a claim, which the court found was a “preliminary step in determining whether refunds

will be paid[.]” The order also required that the notice be published for three days in a

newspaper of general circulation in Craighead County.

Appellant filed a motion to allow a proposed plan to distribute the money on January

9, 2018. Appellees filed a response on January 24. Appellees filed a supplement to their

bench brief on March 7, 2018, again seeking to have the case dismissed. Appellant filed a

response to the supplement on March 15, asking the court to deny appellees’ request for

dismissal. The circuit court held a hearing on appellant’s motion to allow a proposed plan

of distribution on May 15. It entered an order for the proposed plan that same day.

Appellant filed a motion on June 20 for appellees to pay the expenses associated with

notifying the affected individuals. Appellees filed a response on July 5 asking that the motion

be denied. The circuit court entered an order of abatement of notice to claimants on August

1 based on “the parties oral motion for the parties to abate the order that was file marked

on May 15, 2018 until further orders of the court[.]”

Appellant filed a motion for a final order and other relief on September 11, 2019.

The circuit court held a hearing on the motion on December 5. The circuit court asked

appellant to prepare an order based on how appellant wanted the circuit court to rule. It

then said that appellees would be able to prepare a rebuttal order and that the circuit court

would decide following receipt of the draft orders. The circuit court subsequently adopted

one of appellees’ draft orders as its own. The circuit court filed the order on May 6, 2020,

dismissing appellant’s case with prejudice. The order stated in pertinent part:

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2. The Plaintiff in this case, Christopher Miles, entered into a negotiated plea at the
conclusion of his criminal case. His Judgment and Commitment Order included
two fees that the Court has previously found were beyond and/or in excess of any
statutory authority.

3. The finding that the fees challenged in this case were beyond the statutory
authority is not the end of the analysis, particularly where the Plaintiff has sued a
governmental entity, Craighead County, that had no part in the levy of the
challenged fees. Only one other case, to the Court’s knowledge and based on the
citations and arguments of the parties, Parker v. Laws, 249 Ark, 632, 460 S.W.2d
337 (1970), has ever imposed illegal exaction liability on an individual or entity
that did not impose the challenged exaction, as here. That case is distinguishable
from this matter, however, because the prosecutor who was sued in Parker was
both the recipient of the proceeds of the fee and a participant in the levy of the
fee, as the dissent expressly accused him of “extortion” in the case. There are no
such facts here and the Plaintiff had not sued the State or any of the Circuit
Judges.

4. The Arkansas Supreme Court has held that the only appropriate mechanism for
remediation of the assessment of illegal costs is a motion for retaxation of costs in
the underlying criminal case: “It is contended by counsel for appellant that illegal costs
were adjudged. If so, the [only] proper remedy is to move to retax.” Spore v. State, 162
Ark. 1, 4, 257 S.W. 362, 363 (1924) (emphasis added); see also Ark. Code Ann. §
16-68-409.

5. Additionally, the Supreme court has held that the method for challenging a
conviction, including the sentence or fine, is to take a direct appeal to circuit
court, then to the appellate courts, then pursue post-conviction proceedings, if
necessary. Sasser v. State, 338 Ark. 375, 993 S.W.2d 901 (1999).

6. Instead of moving to retax, directly appealing the unauthorized fees in his criminal
case, or otherwise appealing these matters directly (e.g., Rule 37 motion, habeas
corpus, etc.), the Plaintiff has elected to file this suit, collaterally attacking the
challenged fees by way of an illegal exaction claim(s). This is not permissible.
“The general rule is that a defendant who does not appeal a criminal conviction
must be barred from collaterally attacking a judgment.” Camp v. State, 364 Ark.
459, 221 S.W.3d 365 (2006). A separate lawsuit challenging the particulars of a
conviction or sentence or fine is not permitted. Heck v. Humphrey, 512 U.S. 477
(1994).

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7. Additionally, the Plaintiff can offer no evidence of a lack of voluntariness in his
payment of the challenged fees, as they were assessed as part of a negotiated guilty
plea. Accordingly, the fees were the result of an agreement between the Plaintiff
and his counsel and the prosecuting attorney, subject to approval from fairness,
legality, and voluntariness by the Circuit Judge. In fact, the Circuit Judge is legally
bound to ensure that such negotiated pleas are voluntary by the criminal
defendants, as a matter of fact. No proof has been introduced in this case to
indicate that this did not occur in Plaintiff’s plea situation. The Plaintiff did not
appeal those fees, move for retaxation of costs, or otherwise directly object;
instead, he paid the fees without protest. Since proof of a lack of voluntariness is
required prior to the grant of any refund in an illegal exaction case, no refund can
be awarded in this case, to the Plaintiff or any others “similarly situated.”

8. The Court has previously Ordered the Circuit Judges in this Judicial District to
cease and desist any further imposition of the challenged fees and there is not
need for any further injunctive or declaratory relief.

Appellant timely appealed the order. This appeal followed.

Appellant contends that the circuit court erred by finding that the payments in this

situation were not subject to refund. The standard of review on appeal from a bench trial is

whether the circuit court’s findings were clearly erroneous or clearly against the

preponderance of the evidence.2 A finding is clearly erroneous when, although there is

evidence to support it, the reviewing court, when considering all the evidence, is left with a

definite and firm conviction that a mistake has been committed. 3 However, a circuit court’s

conclusion on a question of law is reviewed de novo and is given no deference on appeal. 4

2
Helena-W. Helena Sch. Dist. v. Fluker, 371 Ark. 574, 268 S.W.3d 879 (2007).

3
Id.

4
Id.

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Article 16, section 13 of the Arkansas Constitution grants the citizens of Arkansas

standing to pursue an illegal-exaction claim.5 An illegal exaction is defined as any exaction

that either is not authorized by law or is contrary to law. 6 There are two types of illegal-

exaction cases: “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.7 Our courts have strictly adhered to the rule that

if the taxes complained of are not themselves illegal, a suit for illegal exaction will not lie.8

Here, appellant and others similarly situated are alleging that the $86 sheriff costs and

$100 lower-court fees collected in their criminal cases are illegal. The circuit court agreed

that the amounts were not authorized by law or statute and ordered the district courts of

Craighead County to cease and desist imposing the fees. The circuit court, however, found

that refunds would not be awarded in this case. As below, appellant argues that the

disposition of this case is controlled by Parker. In Parker, taxpayers sued the deputy

prosecuting attorney to require the prosecuting attorney to account for some $7,000 in fees

received by him. From 1963 to 1969 in the Fifth Judicial District, defendants in criminal

cases were required by the circuit court to make certain cash payments as a condition of

5
Robinson v. Villines, 2009 Ark. 632, 362 S.W.3d 870.

6
Id.

7
Id.

8
Id.

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obtaining suspended sentences or dismissal of the charges. At the onset, the fee was $37.50

of which $25 went to the prosecuting attorney, $10 went to the sheriff, and $2.50 went to

the circuit clerk. By the time the lawsuit was commenced, the fee had been raised to $120,

with $50 going to the prosecuting attorney, $25 going to the sheriff, $25 going to the clerk,

and $20 to the reporter. The suit only challenged the fees received by the prosecuting

attorney. The lower court dismissed the suit for lack of jurisdiction, and the appellants

appealed. The Parker court held that the dismissal was in error as it did not “involve a review

of circuit court judgments entered in the ordinary course of contested litigation. Instead, it

involves the validity of an administrative practice by which sums are exacted from persons

accused of criminal offenses and are then paid over in part to the deputy prosecutor.” 9 Judge

Russell Roberts testified at the lower-court hearing that no fees were assessed if someone was

sentenced to prison. However, he stated that it was his understanding that if there was to

be a suspended sentence, the fee would first have to be paid. He further stated that if the

fee was not paid, the person would have to stand trial or be sentenced to prison. Laws

testified below that he had received $1,383.33 as fees in cases in which the charge was

dismissed upon payment of the required fee. The Parker court found that Laws was not

entitled to retain the illegal fees and that the money should be returned to the persons paying

the fee as the payments were not voluntary under the circumstances. Afraid that the sums

would be expended for county purposes for the fiscal year if the court directed the sums to

9
Parker, 249 Ark. at 634, 460 S.W.2d at 339.

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the county, subject to claims of the affected persons, the court ordered that the funds be

retained in the registry of the court as a bill of interpleader until the rightful owners could

be contacted and given an opportunity to assert their claims.

Appellees argue, and I agree, that the facts in this case are distinguishable from Parker.

In Parker, even though the prosecuting attorney did not levy the fee, he played an active role

in the dismissal of certain criminal charges and was compensated accordingly. Here, neither

the sheriff’s office nor Craighead County played any role in the levying of the contested fees.

The sheriff’s office only collected the fees and then transferred the fees into the county’s

general fund. There was no allegation that either the sheriff’s office or McCann benefited

personally from the $86 sheriff’s fee. In Parker, the fees had to be paid prior to a criminal

charge being suspended or dismissed. Here, the fees were included in the costs assessed to

appellant as part of his criminal punishment. Additionally, the Parker court specifically

found that the action brought was a challenge to the validity of an administrative practice

and did not involve a review of circuit court judgments entered in the ordinary course of

contested litigation. Here, the opposite seems to be true. Appellant seems to be challenging

the circuit court’s judgment, which included the assessment of fees, entered against him as

a result of his negotiated plea.

Appellees contend that appellant’s suit is nothing more than a collateral attack on his

judgment. A collateral attack is an attack on a judgment in a proceeding other than a direct

17
appeal.10 Generally, judgments are not subject to collateral attack unless they are void on

the face of the record or are issued by a court lacking jurisdiction, 11 neither of which seems

to be the case here. Appellant challenges the amount of fees and costs he was assessed when

he entered into a negotiated plea of guilty for an underlying felony charge. He did not make

a direct appeal of the fees and costs but instead filed an illegal-exaction case to challenge the

fees. This amounted to an impermissible collateral attack. As such, the circuit court was

correct in dismissing appellant’s case with prejudice.

Had this not been an impermissible collateral attack, I would still hold that the circuit

court did not clearly err by dismissing appellant’s case. The circuit court found in an earlier

order that the additional fees were assessed in violation of the statute and that they amounted

to illegal exactions, as it pertained to appellant. However, the circuit court found that

appellant and others similarly situated were not entitled to any refunds because appellant

failed to show that the fees were paid involuntarily. We have consistently followed the

common-law rule that prohibits the recovery of voluntarily paid taxes.12 An exception to the

voluntary-payment rule may be sustained if the payments were made under coercion. 13 In

an earlier order, the circuit court found that the taxes paid before the filing of the suit were

10
In re Guardianship of Pitts, 2021 Ark. App. 250, 627 S.W.3d 426.

11
Id.

12
Mertz v. Pappas, 320 Ark. 368, 896 S.W.2d 593 (1995).

13
Id.

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voluntary, and those paid after the suit’s commencement were presumed to be involuntary.

However, in the final order, the circuit court specifically found that the appellant failed to

show that he and others similarly situated did not pay the fees involuntarily. I cannot say

that this was error. Appellant negotiated a plea of guilty in his criminal case, and in

exchange, criminal charges were nolle prossed, he received a three-year suspended sentence,

and was ordered to pay certain fines and costs. There are safeguards in place that would

have required appellant to represent to the court at that time of the agreement that he

voluntarily entered into the agreement and that the agreement was not a result of coercion.

This would have also been the case for others similarly situated. Given these facts as

presented in this case, I hold that the circuit court did not err when it found that appellant

failed to prove that the payments by him and others similarly situated were not made

voluntarily.

Therefore, I respectfully dissent. I am authorized to state that Judge Abramson joins

in this dissent.

Mark Rees; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for

appellants.

Jason Owens Law Firm, P.A., by: Jason E. Owens, for appellees.

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