dissenting. Never in all of my days on the appellate courts of Arkansas have I seen an opinion that is more results oriented than the majority’s decision to grant the school district’s petition for rehearing. The majority has effectively turned our law on extraordinary writs on its ear. Under the majority’s analysis, a party can seek a writ of certiorari, and even if an extraordinary writ is not warranted, still have the matter heard because this court will now treat a petition for certiorari as an appeal. The majority notes that we have in the past treated such petitions as appeals, and we have, most recently in 1930.
What disturbs me the most is the fact that the majority cites to Williamson v. Mitchell Auto Co., 181 Ark. 693, 27 S.W.2d 96 (1930), and Miller v. Tatum, 170 Ark. 152, 279 S.W. 1002 (1926), in support of its decision, but ignores recent cases where we have refused to grant certiorari when a party has the remedy of an appeal available to it. See, e.g., Sims v. Circuit Court of Pulaski County, 368 Ark. 498, 247 S.W.3d 493 (2007); Weaver v. Simes, 365 Ark. 289, 229 S.W.3d 15 (2006); Cockrum v. Fox, 359 Ark. 508, 199 S.W.3d 69 (2004); May Constr. Co., Inc. v. Thompson, 341 Ark. 879, 20 S.W.3d 345 (2000); Cooper Cmtys., Inc. v. Circuit Court of Benton County, 336 Ark. 136, 984 S.W.2d 429 (1999). See also Conner v. Simes, 355 Ark. 422, 139 S.W.3d 476 (2003) (holding that certiorari was not a viable option to prohibition where the petitioner had the remedy of an appeal available to him).1
Moreover, the majority’s opinion is in direct conflict with our prior acknowledgment that certiorari may not be used as a substitute for appeal. See Ark. Dep’t of Human Servs. v. Circuit Court of Sebastian County, 363 Ark. 389, 144 S.W.3d 738 (2005); Conner, 355 Ark. 422, 139 S.W.3d 476; Arnold v. Spears, 343 Ark. 517, 36 S.W.3d 346 (2001); King v. Davis, 324 Ark. 253, 920 S.W.2d 488 (1996); Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995) (per curiam); Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129 (1988).
The majority makes much ado about the school district’s assertion that they are not simply challenging the court’s order granting the temporary restraining order, but are seeking dismissal of the Browns’ complaint because of a lack of subject-matter jurisdiction. According to the district, there has been no final action on the expulsion, and the Browns have failed to exhaust their administrative remedies. The majority focuses on these allegations as an explanation as to why this petition for extraordinary relief is being given special treatment, but a review of our case law on exhaustion of administrative remedies reveals the majority’s flawed analysis.
In Stanton v. American Manufacturers Mutual Insurance Co., 362 Ark. 96, 207 S.W.3d 456 (2005), a case cited by the majority, this court determined that a complaint should have been dismissed where the circuit court lacked subject-matter jurisdiction due to the appellant’s failure to exhaust her administrative remedies. What is important to note about Stanton, is that it was a direct appeal from a decision by the circuit court. In other words, it was not a case where the appellee sought an extraordinary writ due to a failure to exhaust administrative remedies. Likewise, the case of Ford v. Arkansas Game & Fish Commission, 335 Ark. 245, 979 S.W.2d 897 (1998), relied on by both the school district and the majority, is a direct appeal of an order dismissing the appellant’s suit because of a failure to exhaust administrative remedies, and not a case involving an extraordinary writ. In fact, the majority does not cite to one case where this court has treated a petition for certiorari as an appeal and held that the lower court lacked jurisdiction because of a party’s failure to exhaust administrative remedies. Now, however, the proverbial floodgate is open to other litigants who may choose to circumvent the normal appellate process in favor of the more expeditious extraordinary writ.
In the present case, the school district never argued to the circuit court that the Browns failed to exhaust their administrative remedies or that the circuit court lacked jurisdiction; thus, the school district never gave the circuit court an opportunity to act accordingly. Instead, the district raced to this court seeking our intervention, and the majority is all too happy to oblige, seemingly intent on making sure that the Browns’ children are not allowed to attend school anywhere in the district. While I certainly do not condone the inappropriate and disruptive behavior ofJ.B. or Y.B., I also cannot ignore the fact that the principal’s son referred to J.B. with a hateful racial slur.
There is simply nothing about this case that warrants the majority’s decision to ignore our well-established precedent that an extraordinary writ will not lie where another adequate remedy at law exists. This case is simply about the majority wanting to reach a certain result and doing so at the expense of our longstanding jurisprudence. For this reason, I respectfully dissent.
Imber, J., joins in this dissent.Just recently this court unanimously denied a “Motion for Expedited Writ of Prohibition or, in the Alternative, a Writ of Certiorari” where the appellant had also filed a notice of appeal. See Potter v. Honorable Kim Martin Smith, No. 07-161.