Doe v. Arkansas Department of Human Services

Jim Hannah, Justice,

dissenting. I respectfully dissent. The stice, two reasons. First, Doe and Roe show irreparable harm because it is not the loss of a job that is at issue in this case as it is in the cases cited by the majority, but rather the loss of a career. By holding that an expunged conviction for theft means Doe and Roe may be fired from their jobs at the long-term care facility, the court forces them at the least to seek employment in a facility not covered by the elder-care provisions. Likely, the impact is far broader. The cite to Kreutzer v. Clark, 271 Ark. 243, 607 S.W.2d 607 (1980), is in error. In Kreutzer, the doctor lost a job at a hospital and continued to practice medicine. There is reference in that case to Kreutzer’s concern that his patients might be concerned at his loss of the position. Doe and Roe had nothing when they left their jobs and no hope of finding another job caring for the elderly, their chosen vocation. While certified nursing assistants are utilized in other areas of medicine, most jobs in that field are caring for the elderly, and it is also doubtful that Doe and Roe will have much luck getting a job in other health care areas when the reason for their termination is known.1

This gives rise to the second reason that I must dissent. Whether the opportunity to obtain expungement is admired or hated, it is the law. It is intended to provide the offender with the opportunity to “apply for a job” and enjoy his or her civil rights and liberty. McClish v. State, 331 Ark. 295, 299, 962 S.W.2d 332 (1998). As the majority notes, Ark. Code Ann. § 16-90-205(a) (Supp. 2003) provides that expungement applies “unless otherwise specifically provided for by law.” Without analysis, the majority then notes that the elder law provision set out at Ark. Code Ann. § 20-33-205(b)(24) (Supp. 2003) sets out theft as an offense precluding future employment. Nowhere in section 20-33-205 is expungement even mentioned. How then is the exclusion of expungement of the offense “specifically provided for by law,” as required by section 16-90-902? It is not. Section 16-90-902 was enacted in 1995, before section 20-33-205 was enacted. In State v. Warren, 345 Ark. 508, 49 S.W.3d 103 (2001), Warren’s conviction was expunged. Of expungement the court stated:

Upon expungement, pursuant to the terms of that Act, Mr. Warren was “discharged without court adjudication of guilt,” the charges against him were dismissed, the records were sealed, and Mr. Warren was “completely exonerated of any criminal purpose.” Act 346 of 1975, codified at Ark. Code Ann. § 16-93-301, -303(b)(1) and (2) (1987).

Warren, 345 Ark. at 511. Doe and Roe’s convictions were expunged, and they stand in the same position as Warren.

For the foregoing reasons, I respectfully dissent.

The majority also cites Manila Sch. Dist. No. 15 v. Wagner, 357 Ark. 20, 159 S.W.3d 285 (2004), for the same proposition as Kreutzer v. Clark, 271 Ark. 243, 607 S.W.2d 670 (1980).As in Kreutzer, the person losing her job in Manila was not being deprived of her profession, but would simply be required to find another job elsewhere.