Arkansas Official’s Resignation Leads to Dismissal of Improper Investigation Claim

Nov 7, 2008

The Arkansas Supreme Court has dismissed a lawsuit that was critical of the University of Arkansas’s handling of an investigation within its athletic department.
Specifically, plaintiff John David Terry claimed in a June 25, 2007 lawsuit that John A. White, in his capacity as Chancellor of the University of Arkansas at Fayetteville, and B. Alan Sugg, in his capacity as President of the University of Arkansas System, failed to conduct “a legitimate and independent investigation” into a deriding e-mail that was sent to Arkansas quarterback Mitch Mustain.
This claim garnered significant headlines because of Terry’s argument that White should never have asked former Arkansas Coach Houston Nutt to oversee the investigation since the critical e-mail was sent by Razorbacks booster Teresa Prewett, a friend of Nutt’s family.
Terry also alleged an illegal-exaction claim, stating that because Chancellor White’s salary was comprised of taxpayer funds, those funds were being wasted or misused when spent to pay the salary of Chancellor White who had failed to perform all of the duties of his public office.
In support of the claims, Terry’s amended complaint stated that Chancellor White was responsible to President Sugg “for enforcement of the regulations, decisions, and the policies and procedures of the University Board of Trustees.” He further suggested that “by virtue of his appointment as Chancellor,” Chancellor White was a public official, and as an employee of the University, Chancellor White was an employee of the State of Arkansas. With respect to the alleged duties, which Terry claimed the Chancellor had failed to perform.
In addition, Terry claimed that he had standing to bring the suit as a taxpayer “who bears the financial burden” of paying Chancellor White’s salary, and because it concerned an illegal expenditure, specifically, that a public official compensated with public funds had refused and continued to refuse to perform all of the duties of his public office.
Terry went on to claim that mandamus relief was proper and requested that the circuit court order Chancellor White “to cause a good faith, full, complete, and independent investigation to be conducted” in the e-mail matter. He further requested an injunction be issued to President Sugg, enjoining the payment of a portion of Chancellor White’s salary to prevent the illegal exaction of taxpayer funds being paid to a public official not performing his duties.
On July 16, 2007, the University filed a motion to dismiss Terry’s amended complaint and moved for an award of attorney’s fees and costs. The motion urged that the matter be dismissed with prejudice because Terry “failed to present a justiciable issue as a matter of law.” In its order, the circuit court dismissed both counts with prejudice for failing to state facts upon which relief could be granted, pursuant to Ark. R. Civ. P. 12(b)(6). Mr. Terry now appeals.
Terry appealed, arguing six points on appeal: (1) that the amended complaint stated facts upon which relief could be granted; (2) that the dismissal of the amended complaint was premature; (3) that mandamus was an available remedy where Chancellor White abused his discretion; (4) that Chancellor White had an obligation to enforce the policies of the University and the National Collegiate Athletic Association (NCAA); (5) that the amended complaint alleged an illegal exaction; and (6) that the circuit court exhibited bias and prejudice.
“As a threshold matter,” wrote the high court, “we must first determine whether the instant appeal is moot, as asserted by the University. The University, both in its brief and at oral arguments, urges that this appeal is moot due to the fact that Chancellor White has since resigned from the position of chancellor. We agree.
“As a general rule, the appellate courts of this state will not review issues that are moot. See Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). To do so would be to render advisory opinions, which this court will not do. See id. We have generally held that a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. See id. In other words, a moot case presents no justiciable issue for determination by the court. See Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744 (2007).”
Elaborating on this decision, the court wrote that Terry sought action against Chancellor White in his capacity as chancellor: “first, an order directing Chancellor White to conduct a complete investigation in the e-mail matter, and second, an injunction enjoining President Sugg from expending funds for a portion of Chancellor White’s salary.
“The problem at this juncture, however, is that Chancellor White has since resigned as chancellor, of which we take judicial notice. Thus, he can no longer take any actions with respect to the e-mail matter, nor is he any longer receiving a salary from the University for serving in the capacity of chancellor. Because Mr. Terry specifically sought actions to be taken against Chancellor White solely while he was in office and drawing a salary in the capacity of chancellor, and because Mr. White has since resigned as chancellor and is no longer employed by the University in that capacity, any ruling on the merits of the instant appeal by this court would constitute an advisory opinion. Further, any judgment we rendered would have no practical legal effect upon Mr. Terry’s case because Mr. White no longer serves the University in the capacity of chancellor.
John David Terry v. John A. White et al.; S.Ct. Ark.; No. 07-1096, 2008 Ark. LEXIS 531; 10/2/08


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