Department of Human Services v. Howard, 05-814.
| Decision Date | 29 June 2006 |
| Docket Number | No. 05-814.,05-814. |
| Citation | 238 S.W.3d 1 |
| Court | Arkansas Supreme Court |
| Parties | DEPARTMENT OF HUMAN SERVICES AND CHILD WELFARE AGENCY REVIEW BOARD, Appellants, v. Matthew Lee HOWARD, Craig Stoopes, Anne Shelley, and William Wagner, Appellees. |
NY, and Kenneth D. Upton, Jr., Dallas, TX; and Sullivan Law Firm, P.A., by: Gary L. Sullivan, Little Rock, AR, for amici curiae, Lambda Legal Defense and Education Fund, Inc.; Children of Lesbians and Gays Everywhere; Family Pride; Human Rights Campaign; Human Rights Campaign Foundation; National Gay & Lesbian Task Force; Parents, Families & Friends of Lesbians & Gays; and Stonewall Democratic Club of Arkansas.
Appellants/Cross-Appellees Department of Human Services and Child Welfare Agency Review Board appeal the judgment and order of the Pulaski County Circuit Court ruling that Section 200.3.2 of the Minimum Licensing Standards for Child Welfare Agencies ("Regulation 200.3.2") violated the separation-of-powers doctrine and, thus, was unconstitutional. Appellees/Cross-Appellants Matthew Lee Howard, Craig Stoopes, Anne Shelley, and William Wagner (collectively known as "Appellees") cross-appeal asserting that the circuit court erred in holding that the regulation does not violate (1) the right to equal protection and (2) the right to privacy or intimate association. As this case involves issues of statutory construction, first impression, and substantial public interest, jurisdiction is proper pursuant to Ark. Sup.Ct. R. 1-2(a)(1), (b)(1), and (b)(4). We find no error on direct appeal and affirm.
On April 6, 1999, Appellees filed their original complaint in the Pulaski County Circuit Court seeking a declaratory judgment and injunctive relief challenging the validity of Regulation 200.3.2 enacted by the Child Welfare Agency Review Board that same year. Regulation 200.3.2 provides that:
No person may serve as a foster parent if any adult member of that person's household is a homosexual. Homosexual, for purposes of this rule, shall mean any person who voluntarily and knowingly engages in or submits to any sexual contact involving the genitals of one person and the mouth or anus of another person of the same gender, and who has engaged in such activity after the foster home is approved or at a point in time that is reasonably close in time to the filing of the application to be a foster parent.
Appellees asserted that the regulation was outside of the scope of the Board's authority and that it was unconstitutional on its face because it violated both the Equal Protection Clause of the United States and Arkansas Constitutions, and the federal and state constitutional rights to privacy and intimate association. Following numerous pretrial hearings, this case came to trial on March 23-25, 2004, October 5-6, 2004, and December 20, 2004.
On December 29, 2004, the circuit court issued its judgment, a memorandum opinion, and its findings of fact and conclusions of law. Based upon its findings of fact, the circuit court concluded that: (1) Regulation 200.3.2 does not promote the health, safety, or welfare of children and, thus, is unconstitutional as being in violation of the separation-of-powers doctrine; (2) Regulation 200.3.2 does not violate the equal-protection provisions of the United States and the Arkansas Constitutions; (3) Regulation 200.3.2 does not violate the plaintiffs' constitutional right to privacy or intimate association under either the United States or Arkansas Constitutions. This appeal followed.
Although DHS does not raise the issue of jurisdiction until its reply brief, it must be addressed prior to addressing the merits of the arguments on both direct and cross-appeal. See Brewer v. Carter, 365 Ark. 531, 231 S.W.3d 707 (2006).1 DHS's argument is two-fold. First, it contends that none of Appellees had standing to bring the suit because they had not applied to be foster parents when the suit was filed in 1999. Second, it argues that the Appellees did not exhaust all administrative remedies and, therefore, the court lacks jurisdiction to hear the matter. Upon review, this argument is without merit and we have jurisdiction to review the case.
In order to establish standing, a party must show that he has a right which a statute infringes upon and that he is within the class of persons affected by the statute. Thompson v. Arkansas Social Servs., 282 Ark. 369, 669 S.W.2d 878 (1984). See also Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002). This rule applies to regulations, such as the regulation in question here. Id. Moreover, an appellant can have standing to challenge a regulation, even if the appellant had never actually applied for a permit, because to apply for a permit would be futile. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); United States v. Hardman, 297 F.3d 1116 (10th Cir.2002); Desert Outdoor Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814 (9th Cir. 1996).
Here, DHS claims that Appellees lack standing because they failed to apply to become foster parents when the suit was filed. This argument is without merit. First, Appellees did attempt to become foster parents and were turned away because of the regulation's exclusion. Second, even if Appellees had not applied to become foster parents, they still had standing to bring suit because they are within the class of persons affected by the regulation,2 and each Appellee's attempt to become a foster parent would be futile because of the regulation. As such, Appellees had standing to bring suit challenging the regulation.
The doctrine of exhaustion of administrative remedies provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. Cummings v. Big Mac Mobile Homes, Inc., 335 Ark. 216, 980 S.W.2d 550 (1998); Barr v. Arkansas Blue Cross & Blue Shield, 297 Ark. 262, 761 S.W.2d 174 (1988). However, exhaustion of administrative remedies is not required where no genuine opportunity for adequate relief exists, where irreparable injury will result if the complaining party is compelled to pursue administrative remedies, or where an administrative appeal would be futile. Id. Consequently, inadequate or futile administrative remedies do not need to be exhausted prior to pursuing other remedies. Id.
Moreover, we have held that a plaintiff can maintain an action for declaratory judgment even if the plaintiff has not requested the agency to rule upon the validity of the rule or regulation in question. McEuen Burial Assoc. v. Arkansas Burial Ass'n Bd., 298 Ark. 572, 769 S.W.2d 415 (1989). See also Ark.Code Ann. § 25-15-207(d) (Repl.2002). In McEuen, we explained that section 25-15-207(a) of the Administrative Procedure Act, clearly establishes that:
[I]t is not necessary that the injury already have occurred or that a person show he was affected by it in order to obtain a declaratory judgment. Either the "threatened application" of a rule or the threat of injury will justify a party in seeking to have such regulations reviewed.
Id. at 575, 769 S.W.2d at 417. Thus, we held that, "Although there had been no denial of a certificate to any burial association, it is obvious that some of the associations, as a result of the application of the rules, are threatened with denial." Id.
Here, DHS argues that Appellees did not exhaust all administrative remedies before proceeding with the present cause of action, and, therefore, we are without jurisdiction to hear the matter. Specifically, DHS claims that no request was made to the Board to repeal the regulation, no administrative hearing was requested, and there was no final agency decision from which to appeal to the circuit court. This argument is without merit because, in this case, (1) it would be futile for Appellees to pursue administrative remedies, and (2) section 25-15-207 provides that an action may be brought in circuit court when a regulation injures or threatens to injure the plaintiff.
Appellees, and all other similarly situated individuals, are completely barred from becoming foster parents because of this regulation. Much like in McEuen, it is obvious that...
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