Arkansas Supreme Court affirms denial of inmate’s request to proceed in forma pauperis in parole appeal

The Arkansas Supreme Court on Sept. 26, 2024, affirmed an Izard County Circuit Court order denying Jeremy Kennedy’s motion for reconsideration of the circuit court’s refusal to allow him to proceed in forma pauperis when seeking judicial review of an Arkansas Parole Board decision. The court held Kennedy’s challenge to the underlying denial of parole was not properly before it because he failed to file a timely notice of appeal from the indigency ruling and the circuit court’s denial of leave to proceed in forma pauperis expired on Nov. 22, 2023.

The ruling matters because it limits the ability of an incarcerated person to preserve appellate review of administrative decisions by failing to meet appellate-timing rules and clarifies that Arkansas parole statutes do not, by themselves, create a constitutionally protected liberty interest entitling an inmate to automatic judicial review.

Chief Justice John Dan Kemp, writing for the majority, said Kennedy filed his petition to proceed in forma pauperis along with a petition for judicial review on Oct. 12, 2023. The circuit court denied the motion to proceed in forma pauperis on Oct. 23, 2023. Kennedy filed a motion for reconsideration on Dec. 27, 2023, and later filed a notice of appeal from the denial of reconsideration on Jan. 29, 2024. The Supreme Court said those steps did not extend the deadline for appealing the IFP denial because Kennedy did not file the motion for reconsideration within ten days of the circuit court’s order, so the appellate timeline was not extended under Ark. R. App. P.–Civ. 4(b). As a result, the court stated it lacked jurisdiction to review the IFP denial on the merits.

The majority opinion summarized Kennedy’s arguments: that Arkansas Code Annotated § 16-93-615(a) created a protectable liberty interest in parole, that he had not received materials the Board intended to use at his parole hearing, and that the final decision lacked findings of fact and conclusions of law. The court declined to resolve those substantive claims, noting Kennedy had “abandon[ed] any pending but unresolved claims” in the notice of appeal and, in any event, did not secure a timely appellate vehicle to raise them.

The court also addressed the narrower legal issue of whether Arkansas parole statutes create a protectable liberty interest. Citing precedent, the majority concluded the statutes do not create such an interest and that Kennedy failed to allege a colorable constitutional claim sufficient to overcome the general bar on inmate administrative review under Ark. Code Ann. § 25-15-212(a). The court relied on standards governing a petition to proceed in forma pauperis under Arkansas Rule of Civil Procedure 72 and prior Arkansas decisions explaining that an IFP petition must show indigency and a “colorable cause of action.”

The circuit court’s actions and the appellate outcome were procedural: the lower court denied the IFP request (decision), denied a later motion for reconsideration (decision), and did not rule on Kennedy’s original or amended petitions for judicial review (no ruling). The Supreme Court affirmed the denial of the motion for reconsideration and declined to reach the merits of the parole challenge because of procedural defects.

Justice Shawn A. Womack dissented. Womack argued that appellant relief is barred by article 5, section 20 of the Arkansas Constitution and that, absent an express constitutional provision allowing the State to be a defendant in this context, dismissal is appropriate. The dissent also referenced prior cases and suggested Kennedy should have sought review in his original criminal dockets rather than initiating new civil actions.

Key dates and procedural actions recorded in the opinion: Kennedy filed his IFP petition and petition for judicial review on Oct. 12, 2023; the circuit court denied IFP status on Oct. 23, 2023; Kennedy filed a motion for reconsideration on Dec. 27, 2023; the time to appeal the IFP denial expired on Nov. 22, 2023, according to the Supreme Court’s analysis; Kennedy filed a notice of appeal from the denial of reconsideration on Jan. 29, 2024; and the Arkansas Supreme Court issued its opinion affirming denial on Sept. 26, 2024.

The decision clarifies two practical points for counsel and incarcerated petitioners: (1) postjudgment motions must be filed within the time limits that trigger extension of the appeal period under Ark. R. App. P.–Civ. 4(b), and (2) allegations that Arkansas parole statutes create a liberty interest face a high bar because, as the court reiterated, the statutes do not by themselves create a constitutionally protected liberty interest in parole eligibility.

Affirmed by the Supreme Court of Arkansas. Jeremy Kennedy represented himself; the appellee was the Arkansas Parole Board (now the Arkansas Post-Prison Transfer Board as of Jan. 1, 2024), represented by the Office of the Attorney General (Tim Griffin) and Assistant Attorney General Jason Michael Johnson.