“[T]he exhaustion doctrine does not apply when it would be futile to pursue an administrative remedy or when there was no genuine opportunity to do so.”
How later courts described this case
- “[T]he exhaustion doctrine does not apply when it would be futile to pursue an administrative remedy or when there was no genuine opportunity to do so.”
Written by the judges who cited it.
The opinion
Robert L. Brown, Justice, dissenting. I disagree that the appellant, George Hankins, has failed to exhaust an administrative remedy and would reach the merits.
The remedy referred to by the majority is found in a single sentence at the end of a section on license requirements:
The proceeds of the bond shall be paid upon receipt by the Director of the Department of Finance and Administration of a final judgment from an Arkansas court of competent jurisdiction against the principal and in favor of an aggrieved party.
Ark. Code Ann. § 23-112-603 (Repl. 1992).
I have serious doubts that this one sentence is intended to provide an administrative remedy. For one thing, the sentence is unclear. Is the Director of DFA to conduct a hearing on the legitimacy of the payment or simply perform a ministerial act of noting the bond claim? The statute is vague on this point, all of which begs the question: What is the remedy that Hankins should have availed himself of?
The majority raises the administrative remedy point on its own. Neither party did so in their briefs. Indeed, at oral argument, both parties deemphasized the importance of DFA’s role. Counsel for Hankins said the judgment was sent to DFA, though she admitted that this action was not part of the record. More importantly, though, counsel for Lawyers Surety Corporation admitted that DFA had adopted no rules defining its role related to bond payments and that, moreover, his experience with DFA in these proceedings is that it viewed itself merely as a “conduit.” The circuit court, in its findings, also noted that no DFA rule had been presented to him.
In sum, not only is the statute unclear as to DFA’s role, but DFA itself, according to counsel for the surety, does not view its function as remedial.
The majority relies on Arkansas Motor Vehicle Comm’n v. Cantrell Marine, Inc., 305 Ark. 449 , 808 S.W.2d 765 (1991), but that case is distinguishable. There, Cantrell Marine was denied a motor vehicle dealer license by the Motor Vehicle Commission. It failed to pursue its clear administrative remedies before the Commission, and we held that lapse to be fatal to an appeal.
In the case at bar, however, whether an administrative remedy exists is questionable, DFA has promulgated no rules establishing procedures for pursuit of a remedy, and DFA views its role as a “conduit” in such matters. Not only would it have been futile for Hankins to request an administrative remedy from DFA, one apparently did not exist. This was a non-issue to the parties, and I disagree that the case should turn on this point.
I respectfully dissent.
Holt, C.J., and Newbern, J., join.