Arkansas Dept. of Correction v. Bailey

• Decision Date: 25 January 2007
• Docket Number: No. 06-674.,06-674.
• Citation: 368 Ark. 518,247 S.W.3d 851
• Parties: ARKANSAS DEPARTMENT OF CORRECTION, Appellant, v. Jeremy Eli BAILEY, Appellee.
• Court: Arkansas Supreme Court

247 S.W.3d 851

368 Ark. 518

ARKANSAS DEPARTMENT OF CORRECTION, Appellant, v. Jeremy Eli BAILEY, Appellee.

No. 06-674.

Supreme Court of Arkansas.

January 25, 2007.

Rehearing Denied March 1, 2007.

Mike Beebe, Att'y Gen., by: C. Joseph Cordi, Jr., Ass't Att'y Gen., Little Rock, AR, for appellant.

Wright, Lindsey & Jennings, LLP, by: Jerry J. Sallings and Caley B. Vo, Little Rock, AR, for appellee.

TOM GLAZE, Justice.

This appeal presents a constitutional challenge to the Arkansas Sex Offender Registration Act, Ark.Code Ann. § 12-12-901 et seq. (Repl.2003 & Supp.2005) ("the Act"). Appellee Jeremy Bailey was charged with rape and kidnapping on October 3, 2000; the charges stemmed from an incident that spanned the night of September 2-3, 2000, in which Bailey, among other things, stabbed the victim inside her vagina with a knife.

Following the arrest, Bailey was admitted to the Arkansas State Hospital for evaluation on December 20, 2001. On August 28, 2002, Michael Simon, Ph.D., wrote to the Pope County Circuit Court that Bailey had been admitted "for detention, care, and treatment until restored to reason and fit to proceed." In that letter, Simon noted that Bailey had been diagnosed with schizoaffective disorder, bipolar type, but that he had improved with treatment "sufficient to meet minimal requirements for fitness to proceed." However, Simon opined that, at the time of the offense, Bailey lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law; Simon further commented that Bailey remained affected by his mental disease and still posed a risk of harm to others. As such, Simon recommended that the court acquit Bailey and return him to the State Hospital "for continued detention, care, and treatment."

On December 10, 2002, the Pope County Circuit Court entered an order acquitting Bailey by reason of mental disease or defect, pursuant to Ark.Code Ann. § 5-2-313 (Repl.1997). The court further committed Bailey to the custody of the Director of the Department of Human Services for further examination, evaluation, and treatment.

On May 7, 2003, the Pope County court entered an order of conditional release, finding that Bailey was still affected by mental disease or defect, but he no longer presented a risk of harm to himself or others. At that time, the court ordered Bailey to be placed in the custody of the Arkansas Partnership Program in Little Rock.

Shortly after his transfer to the Arkansas Partnership Program, the Arkansas Department of Correction instituted a Sex Offender Screening and Risk Assessment (SOSRA) for Bailey. On June 25, 2003, the Sex Offender Assessment Committee (SOAC) sent Bailey a letter, informing him that he had been assigned a Level 3 Risk Assessment. The letter informed Bailey that he could request review of the assessment if he could provide "evidence that the assessment procedures . . . were not followed, that your examiner(s) displayed negligence or prejudice that resulted in a false representation of the facts of your case, or that sworn official documents pertaining to your crime were either not available to or not considered by the assessment team." Failing that, the letter noted, Bailey could request re-assessment of his risk level in five years.

Bailey contacted the SOAC and informed it that he would pursue an administrative appeal of his risk assessment. Bailey filed his request for review with the Department of Correction's Review Panel on July 31, 2003. In his request for review, he argued that he had never been convicted of having committed rape, nor had he had an opportunity to fully test the State's charges against him. Bailey further contended that his classification was a violation of his substantive due-process rights, asserting that he had been labeled a sex offender without having ever been convicted of any charge. The SOAC denied Bailey's request for review by letter dated June 7, 2004. In that letter, the SOAC noted that Bailey was required to register as a sex offender under Ark.Code Ann. § 12-12-905(a)(3) (Repl.2003), which provides that the registration requirements apply to a person "who is committed following an acquittal . . . on the grounds of mental disease or defect for a sex offense." The SOAC also concluded that Bailey had been afforded due process, in that he participated in the interview process, and that the Level 3 assessment was warranted by the facts of his case.

Bailey subsequently filed a petition for review in the Pulaski County Circuit Court, pursuant to the Arkansas Administrative Procedures Act, Ark.Code Ann. § 25-15-201 et seq. (Repl.2002). In his petition, he urged that the Sex and Child Offender Registration Act of 1997 was unconstitutional, both facially and as applied to him, and alternatively, he sought reversal of his Level 3 classification. After a hearing on July 21, 2005, the Pulaski County Circuit Court found that the Sex Offender Registration Act violated federal and state constitutional guarantees of procedural due process, as applied to Bailey. Specifically, the court found that, to the extent the Act allowed the Department of Correction to assess an individual as a sex offender, despite an adjudication of not guilty by reason of mental disease or defect, the Act did not provide Bailey with sufficient due-process protections. Given its determination that the Act was unconstitutional, the court reversed the SOAC's decision to assess Bailey as a Level 3 offender. The Department of Correction filed a timely notice of appeal, and now brings the instant appeal, contending that the Act comports with the requirements of due process.

Review of administrative agency decisions, by both the circuit court and appellate courts, is limited in scope. Ark. Dep't of Human Servs. v. Bixler, 364 Ark. 292, 219 S.W.3d 125 (2005); Ark. Dep't of Human Servs. v. Thompson, 331 Ark. 181, 959 S.W.2d 46 (1998). The standard of review to be used by both the circuit court and the appellate court is whether there is substantial evidence to support the agency's findings. Bixler, supra. Thus, the review by appellate courts is directed not to the decision of the circuit court, but rather to the decision of the administrative agency. Id. The circuit court or appellate court may reverse the agency decision if it concludes:

(h) [T]he substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the agency's statutory authority;

(3) Made upon unlawful procedure;

(4) Affected by other error or law;

(5) Not supported by substantial evidence of record; or

(6) Arbitrary, capricious, or characterized by abuse of discretion.

Ark.Code Ann. § 25-15-212(h) (Repl. 2002).

Moreover, in considering any constitutional challenge to a statute, this court begins with the axiom that every act carries a strong presumption of constitutionality. See Talbert v. State, 367 Ark. 262, 239 S.W.3d 504 (2006). This presumption places the burden of proof on the party challenging the legislation to prove its unconstitutionality, and any doubts about the statute will be resolved in favor of the statute's constitutionality, if it is possible to do so. See Ark. Hearing Instrument Dispenser Bd. v. Vance, 359 Ark. 325, 197 S.W.3d 495 (2004); Foster v. Jefferson County Bd. of Election Comm'rs, 328 Ark. 223, 944 S.W.2d 93 (1997). Because statutes are presumed to be framed in accordance with the Constitution, they should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable. See Kellar v. Fayetteville Police Dep't, 339 Ark. 274, 5 S.W.3d 402 (1999).

In its first point on appeal, the Department of Correction asserts that the application of the Sex Offender Registration Act to Bailey did not violate his rights to due process.¹ Due process is intended to protect the individual from the arbitrary exercise of the powers of government. Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Due process controls the procedures by which the state or federal government may take life, liberty, or property, and it may prevent governmental action no matter what procedures are made available. Johnson v. Encompass Ins. Co., 355 Ark. 1, 130 S.W.3d 553 (2003) (citing Weimer v. Amen, 870 F.2d 1400, 1405 (8th Cir.1989)).

Due-process rights are either substantive or procedural. Procedural due process guarantees that a state proceeding which results in deprivation of property is fair, while substantive due process guarantees that such state action is not arbitrary and capricious. Johnson, supra (citing Licari v. Ferruzzi, 22 F.3d 344 (1st Cir. 1994)). Our court discussed due-process requirements in State of Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999), stating as follows:

Due process requires at a minimum that a person be given notice and a reasonable opportunity for a hearing before he is deprived of property by state action. Owings v. Economic & Med. Servs., 302 Ark. 475, 790 S.W.2d 438 (1990). In that regard, the concept of due process requires neither an inflexible procedure universally applicable to every situation nor a technical concept with a fixed content unrelated to time, place, and circumstance. See South Central Dist., Pentecostal Church v. Bruce-Rogers, 269 Ark. 130, 599 S.W.2d 702 (1980). Instead, what process must be afforded is determined by context, dependent upon the nature of the matter or interest involved. Id.

The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be "condemned to suffer great loss." See Goldberg v. Kelly, 397 U.S. 254, ...