Ray Hanley, In His Official Capacity as Director of the Arkansas Department of Health and Human Services v. Arkansas State Claims Commission et al.

Annotate this Case

            Ray HANLEY, in His Official Capacity as Director of the 
              Arkansas Department of Health and Human Services
         v. ARKANSAS STATE CLAIMS COMMISSION; Norman L. Hodges,   
        Jr., In His Official Capacity as Director of the Arkansas 
        State Claims Commission; and Diane Pieroni, Robert Handley, 
       Joe Peacock, and Ralph Patton, in Their Official Capacities 
                as Arkansas State Claims Commissioners

97-775                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                  Opinion delivered May 7, 1998


1.   Appeal & error -- issue not ruled on at trial not considered
     on appeal. -- Where an issue was not ruled on at trial, the
     supreme court was precluded from considering it on appeal.

2.   Mandamus, writ of -- trial court's ruling on -- when reversed.
     -- The supreme court will reverse a trial court's ruling on a
     petition for a writ of mandamus only if there has been an
     abuse of discretion. 

3.   Mandamus, writ of -- when appropriate -- first factor to be
     established. -- A writ of mandamus, as defined by Ark. Code
     Ann.  16-115-101 (1987), is appropriate if two factors are
     established; first, the judiciary may issue a writ of mandamus
     to an executive or legislative officer only if the duty to be
     compelled is ministerial and not discretionary; although the
     writ cannot be used to control or review matters of
     discretion, it may be used to force an official to exercise
     that discretion. 

4.   Mandamus, writ of -- when appropriate -- second factor to be
     established. -- The second factor to be established when
     determining if a writ of mandamus is appropriate is that the
     petitioner must show a clear and certain right to the relief
     sought and the absence of any other adequate remedy; the
     alternative remedy must be adequate, and not merely plausible;
     to be adequate, the alternative remedy must be plain and
     complete and as practical and efficient to the ends of justice
     and its proper administration as the remedy invoked; the
     supreme court has refused to issue a writ of mandamus where
     the petitioner had the adequate remedy of raising the issue on
     appeal.

5.   Appeal & error -- Claims Commission is arm of General Assembly
     -- rulings may be appealed only to General Assembly. -- The
     Arkansas State Claims Commission is an arm of the General
     Assembly; a party may only appeal the Commission's rulings to
     the General Assembly.

6.   Mandamus, writ of -- appellant failed to establish both
     factors -- no abuse of discretion in trial court's denial of
     appellant's petition for writ. -- Where appellant was asking
     the judiciary to compel the Claims Commission to reverse its
     prior discretionary determination that it had jurisdiction to
     hear a Medicaid claim, and where appellant had the adequate
     remedy of appealing the Commission's ruling to the General
     Assembly, the trial court did not abuse its discretion in
     denying appellant's petition for a writ of mandamus; appellant
     failed to establish both factors necessary for a writ of
     mandamus to properly issue.

7.   Certiorari, writ of -- trial court's ruling -- when reversed.
     -- The supreme court will reverse a trial court's ruling on a
     petition for a writ of certiorari only if the trial court has
     abused its discretion.   

8.   Certiorari, writ of -- when proper -- when principles
     applicable. -- Certiorari lies only when it is apparent on the
     face of the record that there has been a plain, manifest,
     clear, and gross abuse of discretion, and there is no other
     adequate remedy; these principles apply when a petitioner
     claims that the lower court did not have jurisdiction to hear
     a claim or to issue a particular type of remedy. 

9.   Certiorari, writ of -- sovereign immunity prevents State and
     its agencies from being named as defendants -- Arkansas Claims
     Commission created as arm of legislature to resolve claims
     against State. -- Pursuant to the doctrine of sovereign
     immunity, neither the State nor its agencies can be named as
     defendants in its courts; the Arkansas Claims Commission was
     created for the sole purpose of hearing and resolving claims
     against the State that could not otherwise be heard by the
     judiciary; the Commission is an arm of the legislature; thus,
     all appeals of the Commission's rulings must be heard by the
     General Assembly and not the courts; the General Assembly has
     total control over the determination of, and subsequent
     funding for, payment of the just debts and obligations of the
     state and all other avenues of redress through legal
     proceedings are barred by sovereign immunity . 

10.  Certiorari, writ of -- dissent's argument without merit --
     argument misconstrued statute and nature of hospital's claim.
     -- The dissent's argument that the last phrase of Ark. Code
     Ann.  19-10-204(b) was clearly intended to except Medicaid
     claims like the hospital's, and that Medicaid reimbursement is
     unquestionably similar to laws providing for old-age
     assistance grants, child-welfare grants, and blind pensions,
     was not well taken where the argument misconstrued the statute
     and the nature of the hospital's claim.

11.  Statutes -- construction of -- doctrines of ejusdem generis
     and noscitur a sociis discussed. -- Pursuant to the doctrine
     of ejusdem generis, when general words follow specific words
     in a statutory enumeration the general words are construed to
     embrace only objects similar in nature to those objects
     enumerated by the preceding specific words; likewise, the
     doctrine of noscitur a sociis, which literally translates to
     "it is known from its associates," provides that a word can be
     defined by the accompanying words.

12.  Statutes -- principles of construction applied to Ark. Code
     Ann.  19-10-204(b) (Supp. 1997) -- claim here for breach of
     contract -- Claims Commission clearly had jurisdiction. -- In
     applying the appropriate principles of construction, the
     supreme court acknowledged that the specifically enumerated
     exceptions to the Claiims Commission's jurisdiction listed in
     Ark. Code Ann  19-10-204(b) all involved claims of a similar
     nature: claims by individuals for benefits arising under a
     statute; in contrast, the hospital filed a breach-of-contract
     claim arising under common law instead of a statute; because
     the hospital filed a contract claim against appellant that was
     clearly within the jurisdiction of the Claims Commission, the
     supreme court could not say that the Commission was proposing
     to act beyond its jurisdiction.

13.  Certiorari, writ of -- appellant failed to satisfy elements
     that would entitle it to writ -- unclear from record that
     Commission did not have jurisdiction over hospital's claim
     against appellant. -- Appellant failed to satisfy both
     elements entitling it to a writ of certiorari; first, the
     supreme court could not say that it was clear from the face of
     the record that the Commission did not have jurisdiction over
     the hospital's claim against appellant; second, because an
     aggrieved party may only appeal the Commission's decision to
     the General Assembly, appellant had the adequate remedy of
     appealing the Commission's ruling to the General Assembly; the 
     trial court did not abuse its discretion when it denied
     appellant's petition for a writ of certiorari; affirmed.


     Appeal from Pulaski Circuit Court; John B. Plegge, Judge;
affirmed.
     Breck G. Hopkins, for appellant.
     Brian G. Brooks, for appellees.
     Mitchell, Williams, Selig, Gates & Woodyard PLLC, by: Sherry
P.Bartley and Dowd, Harrelson, Moore & Giles, by: C. Wayne Dowd,
for interventor-appellee.   

     Annabelle Clinton Imber, Justice.
     In this case, we are asked to determine whether the circuit
court erred when it refused to issue either a writ of mandamus or
a writ of certiorari ordering the Arkansas Claims Commission to
dismiss a claim pending before it.  We affirm the trial court's
denial of both writs.
     The Arkansas Department of Human Services Division of Medical
Services (DHS) is responsible for administering Medicaid in
Arkansas.  From July 1, 1991, until June 30, 1994, DHS established
Medicaid reimbursement rates that were lower for out-of-state
hospitals than for in-state hospitals.  Texarkana Memorial
Hospital, d/b/a Wadley Regional Medical Center, ("Wadley"), is an
out-of-state hospital that was affected by this plan.
     On April 8, 1996, Wadley filed a complaint before the Arkansas
Claims Commission against Ray Hanley in his official capacity as
Director of DHS.  In its complaint, Wadley alleged that the 1991-
1994 Medicaid reimbursement rates were invalid for several
reasons, and thus it was entitled to $2,835,828, which is the
amount the hospital would have received if it had been an in-state
Medicaid provider.  On April 26, 1996, DHS filed a motion to
dismiss Wadley's claim because the Commission did not have
jurisdiction to hear it.  The Commission denied DHS's motion on
September 11, 1996.
     In response, DHS filed in the Pulaski County Circuit Court a
petition for a writ of certiorari or a writ of mandamus ordering
the Claims Commission to dismiss Wadley's Medicaid claim.  The
trial court denied DHS's petitions on April 11, 1997.  In its
order, the court found that it did not have jurisdiction to issue
either a writ of mandamus or a writ of certiorari to the Claims
Commission because it is an arm of the General Assembly.  The court
also found that even if it had jurisdiction, the writs were
inappropriate because DHS had an adequate remedy of appealing the
Commission's decision to the General Assembly.   
      On appeal, DHS raises several arguments as to whether the
Claims Commission has jurisdiction to hear Wadley's Medicaid claim. 
The trial court did not rule on this issue, and thus we are
precluded from considering it on appeal.  See McQuay v. Guntharp,
331 Ark. 466,    S.W.2d    (1998); Slaton v. Slaton, 330 Ark. 287,
956 S.W.2d 150 (1997).  Instead, the trial court only ruled as to
whether it had jurisdiction to issue either a writ of mandamus or
a writ of certiorari to the Claims Commission.  Accordingly, we
will limit our review to these two issues.
                      I.   Writ of Mandamus
     The first issue is whether the trial court erred when it
denied DHS's petition for a writ of mandamus.  We will reverse a
trial court's ruling on a petition for a writ of mandamus only if
there has been an abuse of discretion.  Hicks v. Gravett, 312 Ark.
407, 849 S.W.2d 946 (1993); State v. Grimmett, 292 Ark. 523, 731 S.W.2d 207 (1987).  
     A writ of mandamus, as defined by Ark. Code Ann.  16-115-101
(1987), is appropriate if the following two factors are
established.  First, the judiciary may issue a writ of mandamus to
an executive or legislative officer only if the duty to be
compelled is ministerial and not discretionary.  Saunders v. Neuse,
320 Ark. 547, 898 S.W.2d 43 (1995); State v. Grimmett, supra.  For
example, in Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979),
we held that a writ of mandamus could not be used to compel the
legislature to adjourn the Seventy-Second General Assembly because
the decision to continue the session was a discretionary matter. 
We have also held that although the writ cannot be used to control
or review matters of discretion, it may be used to force an
official to exercise that discretion.  Saunders v. Neuse, supra;
Thompson v. Erwin, 310 Ark. 533, 838 S.W.2d 353 (1989). 
     Second, the petitioner must show a clear and certain right to
the relief sought, and the absence of any other adequate remedy. 
Redd v. Sossamon, 315 Ark. 512, 868 S.W.2d 466 (1994); Thompson v.
Erwin, supra.  In State v. Grimmett, supra, we distinguished that
the alternative remedy must be adequate, and not merely plausible. 
We further explained that to be "adequate" the alternative remedy
must be "plain and complete and as practical and efficient to the
ends of justice and its proper administration as the remedy
invoked."  Id.  Thus, in several cases we have refused to issue a
writ of mandamus where the petitioner had the adequate remedy of
raising the issue on appeal.  See, e.g., Gran v. Hale, 294 Ark.
563, 745 S.W.2d 129 (1988); Sexton v. Supreme Ct. Comm. on Prof'l
Conduct, 297 Ark. 154-A, 761 S.W.2d 602 (1988).
     We agree with the trial court that DHS has failed to establish
both of these factors.  In Fireman's Insurance Co. v. Arkansas
State Claims Commission, 301 Ark. 451, 784 S.W.2d 771 (1990), we
held that the Claims Commission was an "arm of the General
Assembly," and that a party may only appeal the Commission's
rulings to the General Assembly.  In 1997, the General Assembly
codified the later determination by passing Act 33 of 1997 which
declares that a "decision of the Arkansas State Claims Commission
may be appealed only to the Arkansas General Assembly."  Codified
at Ark. Code Ann.  19-10-211 (Supp. 1997) (emphasis added). 
Because DHS is asking the judiciary to compel the Claims Commission
to reverse its prior discretionary determination that it had
jurisdiction to hear Wadley's Medicaid claim, and DHS has the
adequate remedy of appealing the Commission's ruling to the General
Assembly, we hold that the trial court did not abuse its discretion
when it denied DHS's petition for a writ of mandamus.  Accordingly,
we affirm this ruling.
                     II.  Writ of Certiorari
     The second issue is whether the trial court erred when it
denied DHS's petition for a writ of certiorari as defined by Ark.
Code Ann.  16-13-205 (Repl. 1994).  We will reverse a trial
court's ruling on a petition for a writ of certiorari only if the
court has abused its discretion.  Ricci v. Poole, 253 Ark. 324, 485 S.W.2d 728 (1972).  
     It is well settled that certiorari lies only when it is
apparent on the face of the record that there has been a "plain,
manifest, clear, and gross abuse of discretion," and there is no
other adequate remedy.  State v. Pulaski County Circuit Ct., 326
Ark. 886, 934 S.W.2d 915 (1996); Simpson v. Pulaski County Circuit
Ct., 320 Ark. 468, 899 S.W.2d 50 (1995); Casement v. State, 318
Ark. 225, 884 S.W.2d 593 (1994).  These principles apply when a
petitioner claims that the lower court did not have jurisdiction to
hear a claim or to issue a particular type of remedy.  See King v.
Davis, 324 Ark. 253, 920 S.W.2d 488 (1996).
     Based on our holding in Fireman's Ins. Co. v. Arkansas State
Claims Comm'n, 301 Ark. 451, 784 S.W.2d 771 (1990), we conclude
that DHS has failed to satisfy both of the elements entitling it to
a writ of certiorari.  In Fireman's Insurance, the petitioner filed
a claim before the Arkansas Claims Commission based on a contract
dispute it had with the Arkansas Highway and Transportation
Department.  Id.  After the Commission denied the claim, the
petitioner asked the circuit court to issue a writ of certiorari
reversing the Commission's decision.  Id.  The circuit court
refused.  Id.  On appeal, we explained that pursuant to the
doctrine of sovereign immunity neither the State nor its agencies
could be named as defendants in its courts.  Id.  In 1949, the
General Assembly created the Arkansas Claims Commission for the
sole purpose of hearing and resolving claims against the State that
could not otherwise be heard by the judiciary.  Id.  In Fireman's,
we clarified that the Commission was an "arm of the legislature,"
and thus all appeals of the Commission's rulings must be heard by
the General Assembly, and not the courts.  Id.  To further
emphasize this point, we said that:

     the General Assembly has total control over the determination
     of, and subsequent funding for, payment of the `just debts and
     obligations of the state' [and] all other avenues of redress
     through legal proceedings [are] barred by sovereign immunity
     . . . .

Id. (emphasis added).  Accordingly, we affirmed the trial court's
denial of the petition for a writ of certiorari.  Id.
     As in Fireman's Insurance, DHS has failed to satisfy both
elements entitling it to a writ of certiorari.  First, we cannot
say that it is clear from the face of the record that the
Commission does not have jurisdiction over Wadley's claim against
DHS.  As acknowledged by the dissent, Ark. Code Ann.  19-10-204(b)
(Supp. 1997) provides that the Commission does not have
jurisdiction over:

     claims arising under the Workers' Compensation Law, 
     11-9-101 et seq., the Employment Security Law, 
     11-10-101 et seq., the Arkansas Teacher Retirement System
     Act,  24-7-201 et seq., the Arkansas Public Employees'
     Retirement System Act,  24-4-101 et seq., the State
     Police Retirement System Act,  24-6-201 et seq., or
     under laws providing for old age assistance grants, child
     welfare grants, blind pensions, or any laws of a similar
     nature. 

(Emphasis added.)  The dissent argues that the last phrase of this
section was "clearly intended to except Medicaid claims like
Wadley's," and that "Medicaid reimbursement is unquestionably
`similar' to laws providing for old-age assistance grants, child-
welfare grants, and blind pensions."  We disagree because the
dissent's argument misconstrues the statute and the nature of
Wadley's claim.
     Pursuant to the doctrine of ejusdem generis, when general
words follow specific words in a statutory enumeration the general
words are construed to embrace only objects similar in nature to
those objects enumerated by the preceding specific words.  Agape
Church, Inc. v. Pulaski County, 307 Ark. 420, 821 S.W.2d 21 (1991);
McKinney v. Robbins, 319 Ark. 596, 892 S.W.2d 502 (1995). 
Likewise, the doctrine of noscitur a sociis, which literally
translates to "it is known from its associates," provides that a
word can be defined by the accompanying words.  Boston v. State,
330 Ark. 99, 952 S.W.2d 671 (1997).  Applying both of these
principles, we acknowledge that the specifically enumerated
exceptions to the Commission's jurisdiction listed in Ark. Code Ann
 19-10-204(b) all involve claims of a similar nature: claims by
individuals for benefits arising under a statute.  In contrast,
Wadley filed a breach of contract claim arising under common law
instead of a statute.  Because Wadley filed a contract claim
against DHS, which, as we said in Fireman's Insurance, is clearly
within the jurisdiction of the Claims Commission, we cannot say
that on the face of the record the Commission is proposing to act
beyond its jurisdiction.
     In Fireman's Insurance, we also held that an aggrieved party
may only appeal the Commission's decision to the General Assembly. 
Because DHS has the adequate remedy of appealing the Commission's
ruling to the General Assembly, we also conclude that the second
element entitling DHS to a writ of certiorari has not been
established.  Accordingly, we hold that the trial court did not
abuse its discretion when it denied DHS's petition for a writ of
certiorari.
     Affirmed.
     Brown and Thornton, J.J., dissent.





     Robert L. Brown, Justice, dissenting.  Though I agree with the
majority opinion that the trial court was operating within its
discretion in denying the petition of the Department of Human
Services (DHS) for writ of mandamus, I respectfully dissent from
that portion of the majority opinion that affirms the denial of
DHS's petition for writ of certiorari.
     The General Assembly clearly intended to except Medicaid
claims like Wadleyþs claim for $2,835,828 from Claims Commission
jurisdiction.  In 1949, the General Assembly created the Claims
Commission, and in doing so, limited its jurisdiction consistent
with the current Arkansas Code:
          (b) The commission shall have no jurisdiction of, or
     authority with respect to, claims arising under the
     Workers' Compensation Law,  11-9-101 et seq., the
     Employment Security Law,  11-10-101 et seq., the
     Arkansas Teacher Retirement System Act,  24-7-201 et
     seq., the Arkansas Public Employees' Retirement System
     Act,  24-4-101 et seq., the State Police Retirement
     System Act,  24-6-201 et seq., or under laws providing
     for old age assistance grants, child welfare grants,
     blind pensions, or any laws of a similar nature....
Ark. Code Ann.  19-10-204 (Supp. 1997)(emphasis added).  See 1949
Ark. Acts 462  2.  Viewing the plain language of this section,
which has remained virtually the same for approximately fifty
years, Medicaid reimbursement is unquestionably "similar" to laws
providing for old-age assistance grants, child-welfare grants, and
blind pensions.
     The fact that the General Assembly has waived sovereign
immunity for Wadleyþs Medicaid claim under this statute is
bolstered by the fact that Wadley itself first made its claim for
an adjustment in Medicaid reimbursement to DHS and sought an appeal
within DHS after that appeal was denied.  In its complaint filed in
the Claims Commission, Wadley described the sequence of events:
          15. On May 11, 1995, Wadley, through its counsel
     Vinson & Elkins, requested an adjustment in the amounts
     it was paid in fiscal years 1992, 1993, and 1994 pursuant
     to its Provider Agreement with DHS.  DHS did not respond. 
     After numerous telephone calls and letters to DHS, on
     June 28, 1995, Wadley, through its counsel, Mitchell,
     Williams, Selig, Gates and Woodyard, P.L.L.C., again
     requested an adjustment to the payments in 1992, 1993,
     and 1994.  DHS did not respond.  After further demand, on
     July 19, 1995, Breck Hopkins of DHS Office of Chief
     Counsel responded by letter of July 26, 1995, and denied
     any consideration of Wadleyþs request.
          16. Wadley then requested reconsideration of the
     Hopkinsþ decision by following the appeals process found
     in Section 231.7 of the Provider Manual.  By letter of
     September 14, 1995, DHS refused to allow the appeal
     stating that it was time barred and should have been
     brought in 1992 when the rate for out-of-state hospitals
     was reduced to $400.
     It is only after the door was closed to Wadleyþs appeal within
DHS that Wadley chose another route, which was its complaint before
the Claims Commission.  But, again, the Claims Commission has no
jurisdiction over Medicaid claims.  This is a matter intended to be
heard within the executive branch under  19-10-204, with judicial
review of the agency decision clearly residing in circuit court
under the Administrative Procedure Act.  See Ark. Code Ann.  25-
15-212 (Repl. 1996).
     The reason that the General Assembly determined to keep hands
off of these Medicaid claims is obvious.  Medicaid reimbursement is
a matter of considerable complexity, and DHS has the requisite
expertise to decide these Medicaid questions.  We have faithfully
acknowledged such expertise and acumen within our state agencies. 
See, e.g., Arkansas Depþt of Human Servs. v. Thompson, 331 Ark.
181, 959 S.W.2d 46 (1998); Arkansas Health Servs. Agency v.
Desiderata, Inc., 331 Ark. 144, 958 S.W.2d 7 (1998).  To be sure,
a claim against the State based on a contract must be submitted to
the Claims Commission.  Ark. Code Ann.  19-10-208(c) (Repl. 1994). 
But to contend that this is merely a claim for breach of contract
is a terrible understatement.  Wadleyþs claim requires
interpretation of federal law and regulations, declaration of what
constitutes the supreme law of the land, an alleged violation of
the Equal Protection Clause of the Fourteenth Amendment, and
judicial review of a state agency decision.
     Because the Claims Commission, which is an arm of the
legislative branch, is attempting in this case to exercise powers
reserved by  19-10-204 to the executive branch, the instant case
is materially different from Fireman's Ins. Co. v. Arkansas State
Claims Comm'n, 301 Ark. 451, 784 S.W.2d 771 (1990), cert. denied,
498 U.S. 824 (1990), and Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979), where this court held that writs of certiorari and
mandamus could not issue to the General Assembly because the
challenged conduct fell squarely within the exercise of legislative
powers.
     A writ of certiorari lies to correct proceedings erroneous on
the face of the record, when there is no other adequate remedy. 
King v. Davis, 324 Ark. 253, 920 S.W.2d 488 (1996); Lupo v.
Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993);  Sexton v. Supreme
Court, 297 Ark. 154-A, 761 S.W.2d 602 (1988); Bridges v. Arkansas
Motor Coaches, 256 Ark. 1054, 511 S.W.2d 651 (1974).  It is
available in the exercise of superintending control over a tribunal
which is proceeding illegally where no other mode of review has
been provided.  Id.
     The Claims Commission is assuming what is clearly a matter to
be decided by DHS under  19-10-204, subject to judicial review. 
It has no jurisdiction over the case.  I would grant the petition
for writ of certiorari.
     Thornton, J., joins.