{ "id": 5683182, "name": "Cliff BIEDENHARN v. Edward F. THICKSTEN", "name_abbreviation": "Biedenharn v. Thicksten", "decision_date": "2005-04-14", "docket_number": "04-526", "first_page": "438", "last_page": "444", "citations": [ { "type": "official", "cite": "361 Ark. 438" }, { "type": "parallel", "cite": "206 S.W.3d 837" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "338 Ark. 660", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 243555 ], "weight": 4, "year": 1999, "opinion_index": 0, "case_paths": [ "/ark/338/0660-01" ] }, { "cite": "261 Ark. 708", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1678923 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/261/0708-01" ] }, { "cite": "219 Ark. 586", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1609191 ], "weight": 2, "year": 1951, "opinion_index": 0, "case_paths": [ "/ark/219/0586-01" ] }, { "cite": "292 Ark. 79", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871297 ], "weight": 4, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/292/0079-01" ] }, { "cite": "249 S.W. 21", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "year": 1923, "opinion_index": 0 }, { "cite": "157 Ark. 528", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1357168 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/ark/157/0528-01" ] }, { "cite": "361 Ark. 267", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5683145 ], "weight": 2, "year": 2005, "pin_cites": [ { "parenthetical": "citing Logan v. Missouri Valley Bridge & Iron Co., 157 Ark. 528, 249 S.W. 21 (1923)" }, { "parenthetical": "citing Logan v. Missouri Valley Bridge & Iron Co., 157 Ark. 528, 249 S.W. 21 (1923)" } ], "opinion_index": 0, "case_paths": [ "/ark/361/0267-01" ] }, { "cite": "360 Ark. 171", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5459720 ], "weight": 4, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/360/0171-01" ] }, { "cite": "Ark. Code Ann. \u00a7 21-8-304", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 8, "year": 2004, "opinion_index": 0 } ], "analysis": { "cardinality": 621, "char_count": 11448, "ocr_confidence": 0.723, "pagerank": { "raw": 2.178553520519531e-07, "percentile": 0.7720378678448049 }, "sha256": "8278cef9fab435fd4c19bd09fe4bee5a889d9a0aaffe5fb0410d56d065881c65", "simhash": "1:bbea011d930c9de3", "word_count": 1886 }, "last_updated": "2023-07-14T21:38:22.368604+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Hannah, C.J., and Glaze, Corbin, Brown, Imber, and Dickey, JJ., not participating.", "Special Chief Justice Ray Spruell and Special Associate Justices Charles A. Banks, Jonann E. Chiles, Carol J. Dalby, Patricia J. Hays, and Sam Hilburn, join." ], "parties": [ "Cliff BIEDENHARN v. Edward F. THICKSTEN" ], "opinions": [ { "text": "Jim Gunter, Justice.\nThis appeal arises from an order entered by the Crawford County Circuit Court granting a motion to dismiss filed by appellee, Edward F. Thicksten, pursuant to Ark. R. Civ. P. 12(b)(6). Appellant, Cliff Biedenharn, appeals the trial court\u2019s order of dismissal. On appeal, appellant argues that the trial court erred in dismissing his complaint because appellee was a dual-office holder. We hold that appellant\u2019s first-amended complaint states sufficient frets to withstand a Rule 12(b)(6) motion to dismiss, and we reverse and remand the case for disposition consistent with this opinion.\nOn October 9, 2002, appellant, representing similarly situated taxpayers, filed a class-action, illegal-exaction lawsuit. In his first-amended complaint, he averred that appellee, a resident of Crawford County, was a state representative and received payment for that position. While a state representative in the Arkansas General Assembly, appellee cosponsored Act 1362 of 1997 (\u201cAct\u201d), which appropriated funds for the Department of Education and, in section 34 of the Act, created the Cooperative Education Services Coordinating Council (\u201cCouncil\u201d).\nSubsequent to the creation of the Council, appellee was appointed as the director of the Council. Appellant averred that the Council dissolved before the filing of the first-amended complaint in 2002.\nIn his complaint, appellant alleged that appellee\u2019s appointment as director of the Council violated Ark. Code Ann. \u00a7 21-8-304 (Repl. 2004) by using his official position for his own financial and political benefit. He further alleged that appellee violated the following provisions of the Arkansas Constitution: (1) Ark. Const, art. 16, \u00a7 3 by misusing public funds because he \u201cillegally collected] a large sinecure from taxpayer funds\u201d as director of the Council while acting in his capacity as state representative; (2) Ark. Const, art. 19, \u00a7 20 \u201cinasmuch as [appellee] willfully, and knowingly caused the drafting of Act 1362 of 1997 so as to evade, circumvent, and violate the Arkansas Constitution, for his own financial and political benefit, and to appropriate some $20,000,000 to be spent without any apparent public oversight whatever;\u201d (3) Ark. Const, art. 12, \u00a7\u00a7 7 and 12 \u201cby making the State of Arkansas interested in a corporation or association, and by requiring the taxpayers to subsidize said corporation or association without any oversight over the spending of the appropriated funds;\u201d (4) Ark. Const. art. 19, \u00a7 12 \u201cby appropriating money without provisions such as to require compliance with the constitutional requirement of an accurate and detailed statement of the receipts and expenditures of the public money;\u201d and (5) Amendment 14 \u201cby creating a special council apparently not controlled by any state laws requiring accountability of state funds.\u201d\nAppellant requested in his prayer for relief that appellee return to the state treasury all moneys paid to him by the Council. He also requested the court to enter a judgment declaring appellee ineligible to hold any office paid by public funds, and prohibiting appellee from being paid for the next five years from the date of the court order. Finally, appellant requested costs and attorneys\u2019 fees.\nOn October 28, 2002, appellee filed a motion to dismiss for failure to state facts upon which relief can be granted pursuant to Ark. R. Civ. P. 12(b)(6). In the brief in support of his motion to dismiss, appellee argued that appellant failed to establish, or even specifically allege, that the director of the Council is a \u201ccivil office\u201d under Ark. Const. art. 5, \u00a7 10, that appellant\u2019s claim for relief under Ark. Code Ann. \u00a7 21-8-304 was barred by the statute of limitations, and that the relief sought had been rendered moot by the enactment of Act 34 of 1999.\nA hearing on appellee\u2019s motion to dismiss was held on January 9, 2004. By letter order dated January 14, 2004, the trial court found that appellant failed to state a claim upon which relief could be granted. On January 28, 2004, the trial court entered its order of dismissal, and appellant timely filed his notice of appeal. From this dismissal, appellant brings his appeal.\nWe have repeatedly set forth our standard of review for orders of dismissal pursuant to Ark. R. Civ. P. 12(b)(6). Branscumb v. Freeman, 360 Ark. 171, 200 S.W.3d 411 (2004). We review a trial court\u2019s decision on a motion to dismiss by treating the facts alleged in the complaint as true and by viewing them in the light most favorable to the plaintiff. Id. In viewing the facts in the fight most favorable to the plaintiff, the facts should be liberally construed in plaintiff\u2019s favor. Id. Our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Ark. R. Civ. P. 8(a)(1).\nFor his sole point on appeal, appellant argues that the trial court erred in granting appellee\u2019s motion to dismiss. Specifically, he contends that appellee violated Ark. Const. art. 16, \u00a7 3 and Ark. Code Ann. \u00a7 21-8-304, respectively, by acting as a state representative at the same time that he received payment as the director of the Council.\nAppellee responds, arguing that the trial court properly found that the allegations in appellant\u2019s first-amended complaint regarding appellee\u2019s dual-office holding and any alleged constitutional violations were without merit and did not state facts upon which relief could be granted.\nWe decline to address the issue of mootness raised by appellee. Although appellant alleges in his first-amended complaint that appellee was a state representative \u201cat the same time [he] received payment as Director of the Cooperative Education Services Coordinating Council,\u201d appellant did not specifically allege that appellee held a dual civil-office in violation of Ark. Const, art. 5, \u00a7 10. Thus, we do not address the issue because it is not properly before us. Based upon our standard of review regarding Rule 12(b)(6) motions, we look to the four corners of the complaint. Sluder v. Steak & Ale of Little Rock, Inc., 361 Ark. 267, 206 S.W.3d 213 (2005) (citing Logan v. Missouri Valley Bridge & Iron Co., 157 Ark. 528, 249 S.W. 21 (1923)).\nHowever, we may still consider appellant\u2019s illegal-exaction claims. The only remaining issue is whether appellee must refund the monies he received as director of the Council. Here, appellant has standing as a taxpayer to pursue the relief authorized by Ark. Const. Art. 16, \u00a7 13, which provides:\nAny citizen of the county, city, or town may institute suit in [sic] behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.\nId. It is self-executing, and it permits taxpayers to challenge the legality of expenditures of public funds. Beshear v. Ripling, 292 Ark. 79, 728 S.W.2d 170 (1987).\nWe have held that one who holds a public office illegally may be required to pay back money received as a salary. Beshear, supra (citing Revis v. Harris, 219 Ark. 586, 243 S.W.2d 747 (1951)). We have also held that one who, in good faith, performed the duties of a public office held in violation of a constitutional prohibition would not be required to pay back salary received and thus create a windfall to the state. Beshear, supra (citing Martindale v. Honey, 261 Ark. 708, 551 S.W.2d 202 (1977)).\nFurther, we have held that, even if an officer holds a job and provides services illegally, he may retain the quantum meruit value of the services he provided. Biedenharn v. Hogue, 338 Ark. 660, 1 S.W.3d 424 (1999). In affirming summary judgment in favor of Hogue, we held that there was no evidence of fraud or bad faith of Bobby Hogue, and he was entitled to retain the salary he earned as quantum meruit for his services as assistant athletic director for development. Id.\nWith this well-established precedent in mind, we turn to the present case. While appellant cites numerous constitutional provisions, as well as Ark. Code Ann. \u00a7 21-8-304, as the basis for the allegations in his complaint, he primarily limits the focus of his appeal to the following two arguments: (1) that appellee violated Ark. Const. art. 16, \u00a7 3, and (2) that appellee violated Ark. Code Ann. \u00a7 21-8-304.\nArticle 16, section 3 of the Arkansas Constitution, which outlines the penalty for making a profit out of or misusing public funds, provides:\nThe making of profit out of public moneys, or using the same for any purpose not authorized by law, by any officer of the State, or member or officer of the General Assembly, shall be punishable as may be provided by law, but part of such punishment shall be disqualification to hold office in this State for a period of five years.\nId.\nAppellant further argues that appellee violated Ark. Code Ann. \u00a7 21-8-304, which provides:\n(a) No public official or state employee shall use or attempt to use his or her official position to secure special privileges or exemption for himself or herself or his or her spouse, child, parents, or other persons standing in the first degree of relationship, or for those with whom he or she has a substantial financial relationship that is not available to others except as may be otherwise provided by law.\n(b) No public official or state employee shall accept employment or engage in any public or professional activity while serving as a public official which he or she might reasonably expect would require or induce him or her to disclose any information acquired by him or her by reason of his or her official position which is declared by law or regulation to be confidential.\n(c) No public official or state employee shall disclose any such information gained by reason of his or her position, nor shall he or she otherwise use such information for his or her personal gain or benefit.\nId.\nIn appellant\u2019s complaint, he alleged that appellee was appointed as director of the Council subsequent to cosponsoring the Act that created the Council, that he \u201cpurposely connived to evade the requirements of the law,\u201d that he \u201cpurposely drafted the language of Act 1362 \u00a7 34 to create the pretense or illusion that the [Council] and the jobs created thereby were not state agencies,\u201d and that he \u201cknew in advance that he would get a highly compensated position as a result of Act 1362.\u201d These allegations in appellant\u2019s complaint, which we must treat as true under Branscumb, supra, raise the questions of fraud and bad faith, which we determined in Hogue, supra, to be pivotal on appellant\u2019s illegal-exaction claims, which include the issue of quantum meruit.\nTherefore, based upon the foregoing conclusions, as well as our standard of review regarding Rule 12(b)(6) motions, we hold that the trial court erred in granting appellee\u2019s motion to dismiss. Accordingly, we reverse and remand for the trial court to determine appellant\u2019s illegal-exaction claims and to determine whether quantum meruit is appropriate.\nReversed and remanded.\nHannah, C.J., and Glaze, Corbin, Brown, Imber, and Dickey, JJ., not participating.\nSpecial Chief Justice Ray Spruell and Special Associate Justices Charles A. Banks, Jonann E. Chiles, Carol J. Dalby, Patricia J. Hays, and Sam Hilburn, join.", "type": "majority", "author": "Jim Gunter, Justice." } ], "attorneys": [ "Oscar Stilley, for appellant.", "Hardin, Jesson and Terry, PLC, by: Bradley D.Jesson and Rex M. Terry, for appellee." ], "corrections": "", "head_matter": "Cliff BIEDENHARN v. Edward F. THICKSTEN\n04-526\n206 S.W.3d 837\nSupreme Court of Arkansas\nOpinion delivered April 14, 2005\nOscar Stilley, for appellant.\nHardin, Jesson and Terry, PLC, by: Bradley D.Jesson and Rex M. Terry, for appellee." }, "file_name": "0438-01", "first_page_order": 458, "last_page_order": 464 }