the court will grant a writ of certio-rari “when there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record”
How later courts described this case
- the court will grant a writ of certio-rari “when there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record”
Written by the judges who cited it.
The opinion
TOM GLAZE, Justice, concurring. I concur. The intervenors, Jamie Mann and Affordable Bail Bonds, Inc., received an adverse decision from the Professional Bail Bondsman Licensing Board and appealed that decision to circuit court, which subsequently remanded to the Board for additional evidence. Although the Board had authority, Ark. Code Ann. § 17-19-209 (f)(Supp. 1999), to issue subpoenas to compel attendance of witnesses and the production of evidence, interveners obtained their subpoenas from the circuit court that had remanded their case to the Board. Interveners issued subpoenas for Ron Oliver, Board member Charles Pearson, and two Board employees. Through these witnesses, interveners sought to challenge Pearson’s qualifications to serve on the Board. Oliver and the Board asked the circuit court to quash the subpoenas, stating (1) the court had no jurisdiction to issue subpoenas after it remanded the case to the Board, (2) the Board had no authority to hear questions bearing on a member’s qualifications, and (3) similar to point (2), Pearson’s credentials could not be attacked in a proceeding before the Board.
It appears clear from the record that the Board had no intention of issuing subpoenas to allow interveners to present or proffer testimony on why they believed Pearson should not sit as a Board member at a scheduled hearing of their case. It has long been settled that the law never requires the performance of a vain and useless act. Leggett v. Kirby, 231 Ark. 576 , 331 S.W.2d 267 (1960). Since interveners were made aware that the Board’s position was that it had no authority to allow interveners to question Pearson’s credentials, they were compelled to seek relief from the court.
Ark. Code Ann. § 17-19-209 (d)(3) (Supp. 1999) specifically provides the circuit court with authority to enforce the Board’s subpoenas, and Ark. Code Ann. § 17-19-209 (g) permits a party to appeal to the circuit court any order of the Board as a matter of right. Ark. Code Ann. § 17-19-209 (c) also provides that Board hearings shall be conducted in the same manner as those under the Arkansas Administrative Procedure Act (APA), and the APA provides under Ark. Code Ann. § 25-15-214 (Repl. 1996), as follows:
In any case of rule making or adjudication, if an agency shall unlawfully, unreasonably, or capriciously fail, refuse, or delay to act, any person who considers himself injured in his person, business, or property by the failure, refusal, or delay may bring suit in the [circuit] court of any county in which he resides or does business, or in the [Circuit] Court of Pulaski County for an order commanding the agency to act. 1
As is obvious from a reading of the provisions above, the circuit court’s jurisdiction may be invoked for a number of reasons after the court remands a case to an agency or board for a hearing. In the unique circumstances presented here, interveners called upon the circuit court to obtain subpoenas.
While I join the majority opinion in denying a writ of certiorari in these circumstances, I do not read the court’s opinion to permit a party to circumvent the procedures set out in § 17-19-209 when they seek subpoenas or other evidence. Once again, the Board here effectively prevented the Interveners from utilizing § 17-19-209 by disclaiming any authority to issue subpoenas in this case or to hear questions bearing on a Board member’s qualifications. While the Board might eventually prevail in its arguments, such points must necessarily be presented on appeal.
Brown, J., joins this concurrence. Section 25-15-214 is codified as reading “may bring suit in the chancery court,” but the designation of chancery court was held unconstitutional, and this court held it was appropriate to transfer such matters to circuit court. See Harber v. Rhodes, 248 Ark. 1188 , 455 S.W.2d 926 (1970).