Petition for Writ of Certiorari — Ballard v. Garrett

P Supreme

\ ' Pre UB.

O2 426s 11 200r

No.

IN THE

Supreme Court of the Gnited States

TERESA BALLARD, ET AL.,

Petitioners,

Vv.

PHYLLIS GARRETT AND ADVANCE AMERICA,

CASH ADVANCE CENTERS OF ARKANSAS, INC.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF ARKANSAS

PETITION FOR WRIT OF CERTIORARI

DAVID G. NIXON RICHARD A. FISHER

Counsel of Record Counsel of Record

THE NIXON LAW FIRM THE FISHER LAW FIRM

2340 GREEN ACRES RD. 1510 STUART ROAD

SUITE 12 SUITE 210

FAYETTEVILLE, AR 72703 CLEVELAND, TN 37364

TEL: (479) 582-0020 TEL: (423) 479-7009

Counsel for Petitioners Counsel for Petitioners

QUESTIONS PRESENTED

Whether class member objectors who were denied

intervention may appeal an order requiring them to post a

supersedeas bond.

o

PARTIES TO THE PROCEEDING

Petitioners

Petitioners are Teresa Ballard, Kenisha Bryant, and

Cheryl King, individual citizens of the United States.

Ms. Ballard and Ms. King reside in the State of Arkansas and

Ms. Bryant resided there at the time this litigation

commenced. The Petitioners have no corporate affiliations.

The Petitioners were objecting class members in the Circuit

Court of Clark County, Arkansas and the Appellants before

the Arkansas Supreme Court.

EN on

Respondents

Phyllis Garrett is an individual citizen of the United

States, residing in the State of Arkansas. Ms. Garrett was the

designated class representative in the Circuit Court of Clark

County, Arkansas and an Appellee before the Arkansas .

Supreme Court.

Advance America, Cash Advance Centers of Arkansas,

Inc. (“Advance America”) is an Arkansas corporation.

Advance America was the defendant in the Circuit Court of

Clark County, Arkansas and an Appellee before the

Arkansas Supreme Court.

TABLE OF CONTENTS

PORE BM RIIEO EOD 6 y.nscssvssuscvencnsuaincsnesassevantabesssoscovsssanvins i

PARTIES TO THE PROCBEDING........cc:ccccsscscoscossssossescssssssesees ii

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ee RY EPO elec icssesa ssscisusanvioveniessnscveninsvenvoniavosvevonssnesevasnns 1

STATEMENT OF JURISDICTION ..........ccscsssscssssssessessessessesseeves 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

NS kos kiss snbeVsensnecuniashiendssngaieiiansn eninisosncensnc 1

BPR PASM E GOR ERT, CASE ooo ncccsissssssvsnscsorsessuseveoscecesscessnczenes 2

REASONS FOR GRANTING THE PETITION. .......c.cccessessesseees 7

I. The Decision of the Arkansas Supreme Court

Conflicts with Recent Precedent of this Court............. 7

A. Devlin v. Scardelletti Applies to Classes Containing

PaO INI hcrscasscicsshemcnioonsiseacnbaeesphbienscinas csi 8

B. Devlin v. Scardelletti Applies to State Court

I ctalstapidscasatesidvibescshandsiesdsiiconssnnslbannnisinerhienreniss 9

II. The Appellate Rule of the Arkansas Supreme Court

Denies Equal Protection to the Petitioners and to All

Other Similarly Situated Litigants......0.00.0..ccccceeeees 10

Ill. The Appellate Rule of the Arkansas Supreme Court

Denies Due Process to the Petitioners and to All

Other Similarly Situated Litigants........0.....ccccsceeees 13

IV. The Question Presented is Important. «0.0.0.0... 14

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iv

TABLE OF AUTHORITIES

Federal Cases

Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780,

FD; MS Neh WN VES LAGFN) scscesncsenoveninscvssiincsncsonsovenazevssceasonss 14

Devlin v. Scardelletti, 536 U.S. ---, 122 S.Ct. 2005, 153

LEG.2ed 27 (Frasre 10, 2002) ....ossceocescersesnsceescesersoseserseenes passim

Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9

L.Ed.2d 799, 93 A.LR.2D 733 (1963)...c.ccccccssescsecsecsecseeees 10, 13

Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed.

lg Nae Pde, FOR CO scrcscnrniisieminshacineignenaiiadiotiaice 9, 10, 13

Henderson v. General American Life Ins. Co., 122 S.Ct.

APNE 17, FI ccecccinsiindinesimnnaaliileiti cae nn le 9

Lindsey v. Normet, 405 U.S. 56, 77, 92 S. Ct. 862, 876,

Fe SRE IO COUT OD weivesssisalencdirdescietsctonecacttassadar Rdenaastalan 4,12

Northeastern Florida Chapter of the Associated General

Contractors of America v. City of Jacksonville,

Florida, 508 U.S. 656, 666, 113 S.Ct. 2297, 2303, 124

SRM PO CRT UID xscstnciinsasidhsasanieitinsssbiekiavabedicidlamensdcmaiate 10

Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d

SO Ey Po iivisctiesinearieaiiishesbeeidiaabielaigiiatsnsiaediaie Daas 10, 13

Richardson v. Ramirez, 418 U.S. 24, 39-40, 94 S.Ct.

2655, 2664, 41 L.Ed.2d 551 (1974) ....escescscscsssssssessesseeees, 10, 13

State of Minnesota v. National Tea Company, 309 U.S.

991, 557, 60 S.Ct. 676, 679, 84 L.Ed. 920 (1940) w...eeceesseecsees 14

State Cases

Arkansas State Highway Commission v. Perrin, 240

Ark. 302, 305, 399 S.W.2d 287, 289-90 ER UOUD witssuciitisiiiccciedees 11

Ballard, et al. v. Advance America, __, Ark. oe,

Rg RR ONSEN a SOME eS CT 5

Dootson v. State, 2000 WL 1745267 (Ark. App. 2000) ............. 12

a i eg

Haberman v. Lisle, 318 Ark. 177, 884 S.W.2d 262

SFPD ..cvvsssrsrsesrerestnenninnrnionientieveniabentiadaonnenandnasinatens 5, 6,9, 11

Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995)........ssseeseeesees 11

Sb OF FI pcncecenicecteccecnitestcinasiieltsinaliah eceincsthanniataeasicita A atoms 11

In the Matter of Allen, 304 Ark. 222, 800 S.W.2d 715

(TDG ...canaeoninenarnescunnenaqnehnncsenssvibiennGiedianepionatensiibabiienspedseamnuanials 11 1

McCoy v. Moore, 338 Ark. 740, 741, 1S.W.3d 11, 12

(SFP)... ..+serssnssnirrnnniinoneninabvehuisatanpienansbaanaaamieta 12

Ouachita Baptist College v. Scott, 64 Ark. 349, 42 S.W.

SAO (BIBI Discececcessonenensectnohvonsenestensdqnntshiebinbenmnsiunnteiesianaihessieinns 11

Federal Statutes

BS USC, § TTD vnc eccinncassascsseunsnnnicrsantsisinionstneiinnaticnimdiaaiealiisn 1

U. &. Comat, ARMING. FEE scccresesssesresteninnscejnanctecsahinnoannaan passim

State Statutes

PLB: G ROBE Ge vinciscconisessheasanrcnstioussinncianiadienieanmaaaana 1,12 .

PSPs BOGE ED vsncnrsversornenisinnnntsiscrninlaieninnnandaanasiatinmt 2,12

Federal Rules

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State Rules |

ATE. R. ABD. PIE 2 vsernennyonstenisiniqpiemnainenineaanietennainn 2,12

ArK. BR. CW. B. BB cnseviscavisnivniaienvnenntigitinenitoenateaaigiaandmaaiaa 9

vi

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Petitioners respectfully petition for a Writ of Certiorari to

review the judgment of the Arkansas Supreme Court in this

case.

OPINIONS BELOW

The original opinion of the Arkansas Supreme Court

(App. A at 1a) is reported at 348 Ark. 567, 74 S.W.3d 608.

The opinion of the Arkansas Supreme Court denying the

Petitioners’ Petition for Rehearing (App. D at 15a) is not

reported. The opinion denying the Petitioners’ Motion to

Amend Petition for Rehearing (App. E at 17a) was reported

at 349 Ark. 726, 80 S.W. 3d 374. The opinion of the Arkansas

Supreme Court upon which it relied in denying the

Petitioners’ Motion to Amend Petition for Rehearing (App. C

at 10a) is reported at 349 Ark. 545, 79 S.W. 3d 608. The

opinion of the Circuit Court of Clark County, Arkansas

ordering the Petitioners to post a supersedeas bond in the

amount of $ 750,000.00 (App. B at 8a) is not reported.

STATEMENT OF JURISDICTION

The judgment of the Arkansas Supreme Court was

entered May 9, 2002. The Arkansas Supreme Court entered

its order denying the Petitioners’ timely Petition for

Rehearing per curiam on June 13, 2002.

The jurisdiction of this court is invoked pursuant to 28

U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the following statutory provisions:

1. U.S. Const., Amend. XIV. (App. F at 18a.)

2. A.C.A. § 16-11-302. (App. F at 20a.)

3. A.C.A. § 16-65-119. (App. F at 22a.)

4. Ark. R. App. P.-Civil 2. (App. F at 22a.)

STATEMENT OF THE CASE

This appeal arises from an order of the Circuit Court for

Clark County, Arkansas, the Hon. John A. Thomas,

ordering the Petitioners to post a $750,000.00 supersedeas

bond pending their appeal of his approval, over their

objection, of a proposed class action settlement agreement.

(App. B at 8a.)

The case began on October 12, 1999 as a suit by

Ms. Garrett against Advance America, Cash Advance

Centers of Arkansas, Inc. (“Advance America”). The case

was certified as a class action, simultaneous notice of

certification and settlement was given, and the Petitioners

sought to intervene, which was denied. The Petitioners —

timely objected to the proposed settlement agreement as

being inadequate, unreasonable, and unjust. Over the

Petitioners’ objection, the trial court approved the class

action settlement agreement. The Petitioners appealed the

trial court orders denying intervention and approving the

settlement agreement.

Ms. Garrett then sought to require the Petitioners to post

a supersedeas bond and to give notice of the appeal to the

Class Members. The Petitioners did not request a stay of the

trial court’s order approving the class action settlement

agreement pending their appeal. The stay was desired by

the Advance America and Ms. Garrett has taken no action to

secure the performance of Advance America under the

settlement agreement.

After a hearing on September 5, 2001, the trial court

ordered the Petitioners to post a supersedeas bond in the

amount of $750,000.00. Due to the Petitioners’ poor

financial condition, as evidenced by their previous payday

loan transactions with Advance America and their affidavits

filed in the trial court, they were unable to comply with that

order. Ms. Garrett has sought to hold the Petitioners in

contempt of court on at least two occasions for failing to file

the supersedeas bond as ordered.!

On September 20, 2001, the Petitioners appealed the trial

court's order requiring them to post a supersedeas bond. On

May 9, 2002, the Arkansas Supreme Court dismissed the

Petitioners’ appeal of that order on the grounds that they

had not yet been granted leave to intervene, were therefore

not yet parties, and hence had no standing as objecting class

members to appeal from that order.

On May 29, 2002, the Petitioners filed their Petition for

Rehearing with the Arkansas Supreme Court. At that time,

the Petitioners raised the federal constitutional issues of

denial of due process and equal protection.

As objectors only, if it is true that they have no

standing to appeal from the Trial Court’s order

directing them to file a supersedeas bond, it follows

that the Trial Court did not have the jurisdiction over

them to order them to post the bond in the first place.

[FN omitted.] To hold otherwise would deprive the

Appellants of property and, potentially, liberty (if the

Appellees’ attempted contempt sanctions are

imposed) without due process of law. In the Matter

of Allen, 304 Ark. 222, 800 S.W.2d 715 (1990).

Brief in Support of Petition for Rehearing. (App. G. at 29a-

30a.)

' Petitioners filed a Petition for Writ of Prohibition or Certiorari with the

Arkansas Supreme Court on the issues of the bond and the threatened

contempt, which was denied on December 13, 2001.

If the Trial Court had the requisite jurisdiction to

order the Appellants to post the supersedeas bond

and they are not allowed to appeal from that order,

they are being denied equal protection under the

Fourteenth Amendment to the United States

Constitution. Once the State of Arkansas established

an appellate procedure for non-parties who have

been affected by an order of a trial court, denial of a

right to appeal to one class of aggrieved parties

violates their right to equal protection under the

laws. See, Lindsey v. Normet, 405 U.S. 56, 77, 92 S. Ct.

862, 876, 31 L.Ed.2d 36 (1972).

Brief in Support of Petition for Rehearing. (App. G. at 32a.)

On June 12, 2002, the Petitioners filed their Motion to

Amend Appellants’ Petition for Rehearing (App. H at 34a) to

bring to the Arkansas Supreme Court's attention this Court's

decision in Devlin v. Scardelletti, 536 U.S. ---, 122 S.Ct. 2005,

153 L.Ed.2d 27 (June 10, 2002). On June 13, 2002, the -

Arkansas Supreme Court denied the Petitioners’ Petition for

Rehearing. (App. D at 15a.)

On June 20, 2002, the Arkansas Supreme Court then

upheld the trial court’s order denying the Petitioners’

intervention on the grounds that their Motion to Intervene

was untimely and on July 5, 2002 dismissed their appeal of

the order approving the settlement agreement on the

grounds that they had no standing to appeal since they were

not parties to the underlying proceedings. On July 5, 2002,

the Arkansas Supreme Court also denied the Petitioners’

Motion to Amend Appellants’ Petition for Rehearing (App.

E at 17a), citing its dismissal of their settlement agreement

appeal. (App. C at 10a.)

Per Curiam. The Motion to Amend Appellants’

Petition for Rehearing is denied pursuant to the

recent decision of this court in Ballard, et al. v. Advance

America, __, Ark. __ S.W. 3d ___ (July 5, 2002),

Supreme Court case number 01-1190.

Opinion of the Supreme Court of Arkansas. (App. E at 17a.)

However, because we found appellants did not

timely intervene, appellants do not have standing to

bring this appeal. In Devlin v. Scardelletti et al., WL

1270617 (June 10, 2002), the United States Supreme

Court determined that unnamed class members, who

have objected in a timely manner to approval of a

class action settlement at the fairness hearing, have

the power to bring an appeal without first

intervening, abrogating the lack of standing issue.

However, Devlin involves facts and issues that are

distinguishable from those presented by this appeal.

Specifically, Devlin addresses a question of law and

procedure arising under the Federal Rules of Civil

Procedure, and not under Arkansas law. Arkansas

Rule of Civil Procedure 23(b) differs from that of Rule

23(b) of the Federal Rules of Civil Procedure. In

addition, the petitioner in Devlin did not have the

ability to opt out of the settlement. Here, appellants

had the ability to opt out and instead elected to object

to the settlement and risk being bound by it, if

approved by the court over their objections.

Accordingly, the Devlin opinion is distinguishable

from this case on appeal, and this court’s opinion in

Haberman v. Lisle, 318 Ark. 177, 884 S.W.2d 262 (1994),

continues to be the controlling precedent in

Arkansas. In Haberman, the court found that for

unnamed class members to have standing to appeal a

class-action settlement in state court, those class

members must have intervened at the trial court

level. Haberman, supra. Non-parties and unnamed

members of the class who have failed to intervene are

precluded from appealing a class_ settlement.

Haberman, supra.

Throughout this litigation, appellants have conceded

that Haberman is the applicable and controlling law.

At a hearing before the circuit court on September 5,

2001, counsel for appellants stated “[t]he Haberman

decision from the Arkansas Supreme Court makes it

very clear that in order for a party to appeal a

settlement agreement, they must be an intervenor.

That is the law.” Appellants have now changed their

position and suggest that Devlin gives them the

ability to appeal the settlement approval in this case

without first intervening. We disagree and continue

to follow Haberman. if

Unlike the petitioner in Devlin, appellants here had

the ability to opt out of the settlement and avoid

being bound by it. Indeed, appellants were ideally

positioned to opt out of the settlement because they

already had an action pending against Advance

America in federal court for the same relief as sought

by the class representative in this litigation. By

attempting to intervene at the last minute, rather than

opting out of a settlement to which they objected,

appellants willingly undertook the risk that their

motion to intervene might be defied for failure to

meet the requirements of Rule 24 (a) of the Arkansas

Rules of Civil Procedure, and that they would then

be bound by the settlement as approved by the circuit

court. Appellants’ strategic election not to opt out of

the settlement has left them without standing to

pursue this appeal. Therefore, by following

Haberman, appellants have no standing; thus the

appeal is dismissed.

Opinion of the Supreme Court of Arkansas. (App. C at 12a-

14a.)

The Petitioners asked the Arkansas Supreme Court to

reconsider its dismissal of their appeal of the trial court's

order approving the settlement and that Petition for

Rehearing was denied on September 5, 2002.

REASONS FOR GRANTING THE PETITION

I. The Decision of the Arkansas Supreme Court Conflicts

with Recent Precedent of this Court.

The Arkansas Supreme Court unequivocally held that

unnamed class members who have not successfully

intervened are without standing to appeal a trial court order

requiring them to post a supersedeas bond. The Arkansas

Supreme Court said:

In looking at the merits of this issue, we determine

that appellants do not have standing to appeal this

issue because they are not parties who may take

independent action in the underlying class action.

Rather, they are class-member objectors at this

juncture. Their motion to intervene was denied by

the trial court, and unless this court reverses that

order in that upcoming appeal, Appellants will not

be independent parties to this class action. (emphasis

added) (App. A at 5a.)

On June 10, 2002, this Court decided Devlin v. Scardelletti,

536 U.S. --, 122 S.Ct. 2005, 153 L.Ed.2d 27 (June 10, 2002).

That case held, inter alia, that an unnamed class member who

timely objects to the terms of a class action settlement has

standing to appeal and is a “party” who may appeal. This

Court’s decision in Devlin was timely brought to the

attention of the Arkansas Supreme Court by the Petitioners

2 A Petition for Certiorari to the Arkansas Supreme Court in that

related case is anticipated.

(App. H at 34a) and the issues it raised were considered and

ruled upon by that court. (App. E at 17a; App. C at 10a.)

The decision of the Arkansas Supreme Court in this case

specifically and categorically rejects Devlin, id. As a result, it

creates in Arkansas a standard for objecting class members

that is not only inconsistent with Devlin, but (for the reasons

set forth there) denies them due process and equal

protection afforded under the ——— Amendment to the

United States Constitution.

A. Devlin v. Scardelletti Applies to Classes Containing

Opt-Out Provisions.

One reason given by the Arkansas Supreme Court for

distinguishing this case from Devlin is that it involved a non-

opt-out class while the class in the instant case contained an

opt-out provision. (App. C at 13a.) In explicitly rejecting

Devlin, the Arkansas Supreme Court said:

.. the petitioner in Devlin did not have the ability to

opt out of the settlement. Here, appellants had the

ability to opt out and instead elected to object to the

settlement and risk being bound by it, if approved by

the court over their objections. (App. C at 13a.)

**R*

Unlike the petitioner in Devlin, appellants here had

the ability to opt out of the settlement and avoid

being bound by it. Indeed, appellants were ideally

positioned to opt out of the settlement because they

already had an action pending against Advance

America in federal court for the same relief as sought

by the class representative in this litigation. By

attempting to intervene at the last minute, rather than

opting out of a settlement to which they objected,

appellants willingly undertook the risk that their

motion to intervene might be defied for failure to

meet the requirements of Rule 24 (a) of the Arkansas

Rules of Civil Procedure, and that they would then

be bound by the settlement as approved by the circuit

court. Appellants’ strategic election not to opt out of

the settlement has left them without standing to

pursue this appeal. Therefore, by following

Haberman, appellants have no standing; thus the

appeal is dismissed. (App. C at 13a-14a.)

This Court implicitly held on June 17, 2002 that the

presence of an opt-out provision was a distinction without a

difference in applying the ruling of Devlin. See, Henderson v.

General American Life Ins. Co., 122 S.Ct. 2584 (June 17, 2002).

This result makes sense because a class member's standing

arises from the due process considerations that permit a

representative to adjudicate the class member's rights in the

first place, not as a result of whether there is an opt out

provision. Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed.

22, 132 A.L.R. 741 (1940). Accordingly, the Arkansas

Supreme Court's rationale on this point must be rejected.

B. Devlin v. Scardelletti Applies to State Court

Proceedings.

The other reason given by the Arkansas Supreme Court

for distinguishing and rejecting Devlin is that Devlin dealt

with issues arising under Fed. R. Civ. P. 23 while the instant

case arose under Ark. R. Civ. P. 23.

However, Devlin involves facts and issues that are

distinguishable from those presented by this appeal.

Specifically, Devlin addresses a question of law and

procedure arising under the Federal Rules of Civil °

Procedure, and not under Arkansas law. Arkansas

Rule of Civil Procedure 23(b) differs from that of Rule

23(b) of the Federal Rules of Civil Procedure.

Opinion of Arkansas Supreme Court. (App. C at 12a-13a.)

That justification must also be rejected here. In the first

place, this Court has held that state class action rules are

subject to federal constitutional protections. Richardson v.

Ramirez, 418 U.S. 24, 39-40, 94 S.Ct. 2655, 2664, 41 L.Ed.2d

551 (1974); Hansberry v. Lee, supra. That would presumably

encompass both the due process and equal protection

guarantees arising under the Fourteenth Amendment.

Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L.Ed.2d

799, 93 A.LR.2D 733 (1963). The federal constitutional issues

of due process and equal protection were timely raised by

the Petitioners and were ruled upon by the Arkansas

Supreme Court, thereby allowing this Court to exercise

jurisdiction in this matter. Orr v. Orr, 440 U.S. 268, 99 S.Ct.

1102, 59 L.Ed.2d 306 (1979).

In the second place, the Petitioners submit that the issue

of one’s standing to appeal a decision arising out of a state

class action proceeding is not, strictly speaking, a Rule 23 .

procedural issue... It is an issue involving the substantive

principles of due process and equal protection. Due process

is involved since unnamed class members are entitled to

those protections before their rights may be affected in the

proceeding and equal protection to the extent they are

denied the right to appeal otherwise afforded to similarly

situated litigants.

II. The Appellate Rule of the Arkansas Supreme Court

Denies Equal Protection to the Petitioners and to All

Other Similarly Situated Litigants.

Petitioners have standing to petition this Court for equal

protection. See, e.g., Northeastern Florida Chapter of the

Associated General Contractors of America v. City of Jacksonville,

Florida, 508 U.S. 656, 666, 113 S.Ct. 2297, 2303, 124 L.Ed.2d

586 (1993). Even though the Petitioners have a direct interest

in the outcome of this litigation, the Arkansas appellate rule

in question will also affect all future objecting class members

in the State and will deny them equal protection on two

fronts: (1) Given their standing as unnamed, objecting class

members, they will be denied appellate review that is being

otherwise afforded to named parties in class action

proceedings; and (2) As persons whose pecuniary interests

are affected by the supersedeas order, they will be denied

appellate review that is being otherwise afforded to similarly

situated persons.

Named parties to a class action proceeding in Arkansas

or intervenors therein are afforded access to that State’s

appellate courts. See, e.g., Haberman v. Lisle, 318 Ark. 177 884

S.W.2d 262 (1994). The Petitioners have been denied

appellate review solely because they are non-intervening

unnamed class members.

In the broader context of non-class action proceedings,

the Arkansas Supreme Court (similarly to this Court's

reasoning in Devlin) has long recognized the right of

unnamed parties to appeal where their pecuniary interests

are affected by an order of a lower court. See, e.g., Ouachita

Baptist College v. Scott, 64 Ark. 349, 42 S.W. 536 (1897); In the

Matter of Allen, 304 Ark. 222, 800 S.W.2d 715 (1990) (trial

court’s order directing witness to pay $ 10,000 toward care of

ward exceeded its jurisdiction); Hodges v. Gray, 321 Ark. 7,

901 S.W.2d 1 (1995) (attorney for party permitted to appeal

criminal contempt citation against him); Arkansas State

Highway Commission v. Perrin, 240 Ark. 302, 305, 399 S.W.2d

287, 289-90 (1996) (“No one is aggrieved except the

[Highway] commission, and, whether technically a party or

not in the County court, appellant certainly is the one

affected by the court order. This court has long recognized

the right of who feels aggrieved by an order of a court, to

appeal to a higher tribunal.”); In re $ 3,166,199, 337 Ark. 74,

79, 987 S.W.2d 663, 666 (1999) (appeal of Arkansas Highway

Patrol allowed to claim portion of res in proceeding to which

it was not a named party); McCoy v. Moore, 338 Ark. 740, 741,

11

1S.W.3d 11, 12 (1999) (appeal dismissed because not timely

filed); Dootson v. State, 2000 WL 1745267 (Ark. App. 2000)

(witness cited for contempt allowed to appeal).

This result is consistent with the laws of Arkansas

dealing with the right of appeal. For example, Ark. R. App.

P.-Civil 2 does not limit the right of an appeal to a “party.”

See also, A.C.A. §§ 16-11-302 and 16-65-119.

When the trial court imposed the obligation on the

Petitioners to file a $ 750,000.00 supersedeas bond, even

though they had not requested a stay pending their appeal

of the class action settlement, it implicated their pecuniary

interests and exposed them to the contempt powers of that

court.3

This Court has stated:

When an appeal is afforded, however, it cannot be

granted to some litigants and capriciously or

arbitrarily denied to others without violating the

Equal Protection Clause. Griffin v. Illinois, supra;

Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d

39 (1961); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 788, 9

L.Ed.2d 892 (1963); Long v. District Court of Iowa, 385

U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966); Gardner

v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601

(1969). Cf. Coppedge v. United States, 369 U.S. 438, 82

S.Ct. 917, 8 L.Ed.2d 21 (1962); Ellis v. United States, 356 —

U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958).

Lindsey v. Normet, 405 U.S. 56, 77, 92 S.Ct. 862, 876 (1972).

3 Ms. Garrett has attempted on two separate occasions to impose

contempt sanctions on the Petitioners in spite of their inability to raise the

approximately $ 820,000.00 necessary for them to comply with the trial

court's order.

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The Petitioners are arbitrarily being denied the right to

appeal otherwise afforded named class action parties and

afforded persons whose pecuniary interests are affected

solely because of their status as non-intervening objecting

class members. This misguided rule appears to be a relic of

the pre-Devlin confusion between the Circuit Courts of

Appeal on this issue that just refuses to pass. No good

reason for this disparity is evident or can withstand

examination under the Fourteenth Amendment's gaze.

III. The Appellate Rule of the Arkansas Supreme Court

Denies Due Process to the Petitioners and to All Other

Similarly Situated Litigants.

If Petitioners are “parties” sufficiently to permit the trial

court to enter a supersedeas order against them, they ought

to be entitled to due process.

As state above, this Court has held that state class action

rules are subject to federal constitutional protections.

Richardson v. Ramirez, 418 U.S. 24, 39-40, 94 S.Ct. 2655, 2664,

41 L.Ed.2d 551 (1974); Hansberry v. Lee, supra (“In all such

cases, so far as it can be said that the members of the class

who are present are, by generally recognized rules of law,

entitled to stand in judgment for those who are not, we may

assume for present purposes that such procedure affords a

protection to the parties who are represented though absent,

which would satisfy the requirements of due process and

full faith and credit.”); Gideon v. Wainwright, 372 U.S. 335, 83

S. Ct. 792, 9 L.Ed.2d 799, 93 A.LR.2D 733 (1963). The federal

constitutional issue of due process was timely raised by the

Petitioners and was ruled upon by the Arkansas Supreme

Court, thereby allowing this Court to exercise jurisdiction in

this matter. Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d

306 (1979). This Court has previously stated:

Thus, this Court has seldom been asked to view

access to the courts as an element of due process. The

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legitimacy of the State's monopoly over techniques of

final dispute settlement, even where some are denied

access to its use, stands unimpaired where

recognized, effective alternatives for the adjustment

of differences remain. But the successful invocation

of this governmental power by plaintiffs has often

created serious problems for defendants' rights. For

at_that point, the judicial proceeding becomes the

only effective means of resolving the dispute at hand

and denial of a defendant's full access to that process

raises grave problems for its legitimacy.” (emphasis

added.)

Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct. 780, 785, 28

L.Ed.2d 113 (1971).

The Petitioners were given notice of Ms. Garrett's

motion to seek an order from the trial court requiring them

to post a supersedeas bond, timely objected and were

ordered to post a $ 750,000.00 bond. Nevertheless, they have

been denied the right to be heard on appellate review of that

decision.

In essence, they are being denied due process because

the Arkansas rules of standing are being used to subject

them tc obligations in its judicial system, while denying

them access to the appellate courts.

IV. The Question Presented is Important.

This Court has stated that it, and not the state courts, is

to be the final arbiter of federal constitutional questions and

may make such disposition of the case as justice requires.

State of Minnesota v. National Tea Company, 309 U.S. 551,

557, 60 S.Ct. 676, 679, 84 L.Ed. 920 (1940).

The rule adopted by the Arkansas Supreme Court as to

non-intervening objecting class members eliminates their

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access to the appellate courts of the State for all purposes

and will affect their rights in all future class litigation. The

fact that the Arkansas Supreme Court's opinions dismissing

the Petitioners’ appeals of the settlement agreement and the

supersedeas bond have been designated for publication

demonstrates that court’s intention to apply those decisions

in future class action litigation.

Objecting class members or class members subjected to

other orders of the trial court cannot predict with any

certainty whether they will be allowed to intervene and yet

will continue to be subject to orders affecting their property

or liberty interests. If intervention is allowed to remain as

the key to the Arkansas Supreme Court's chambers, these

persons’ due process and equal protection rights will be

granted or denied in the discretion of the trial court. These

rights should be absolute and assured to all who are affected

by those proceedings.

CONCLUSION

If the Petitioners, who timely objected to the proposed

settlement and appealed from the order approving it, have

enough standing for due process to permit a trial court to

order them to post a $ 750,000.00 supersedeas bond, it is a

denial of due process to deny them an opportunity to be

heard on appeal. Moreover, since the courts of Arkansas

permit appeals by named class members and defendants in

class actions and by others whose pecuniary and liberty

interests are implicated by a trial court's order, the

Petitioners and all future objecting class members are being

denied equal protection under the law if they are arbitrarily

denied the same rights of appeal.

The Petitioners respectfully request this Court to enter its

order reversing and remanding these proceedings to the

Arkansas Supreme Court for proceedings in conformity with

this Court's ruling.

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David G. Nixon

THE NIXON LAW FIRM

2340 Green Acres Road, Ste 12

Fayetteville, AR 72703

Tel: 479-582-0020

Fax: 479-582-0030

Richard A. Fisher, Esq.

THE FISHER LAW FIRM

1510 Stuart Road, Ste 210

Cleveland, TN 37364-0191

Tel: 423-479-7009

Attorneys for Petitioners

Teresa Ballard, Kenisha Bryant, |

and Cheryl King

s:\check cashing cases\state actions\garrett v. advance america, no. ca 01-1182

(appeal-bond)\ certiorari, petition-dgn.doc

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APPENDIX

The Appendix is in a separate volume submitted herewith.