BY JOHN LYNCH
Arkansas Democrat-Gazette
LITTLE ROCK, Ark. — Six inmates imprisoned on methamphetamine-making charges have filed suit in Pulaski County Circuit Court, claiming they are due an early release on parole.
They claim that the laws establishing parole eligibility for certain methamphetaminerelated convictions are illegally vague and misleading.
In the lawsuit filed Thursday, the prisoners ask Pulaski County Circuit Judge Timothy Fox to declare as unconstitutional the statute that requires defendants convicted of making methamphetamine or possessing methamphetamine-making paraphernalia to serve at least 70 percent of their prison sentences.
Attorney John Wesley Hall, representing the men with attorneys Dana Reece and Stuart Vess, said Friday that a favorable ruling could affect many more inmates.
“I would suspect it’s hundreds,” he said. “I’m sure there’s a lot of others.” The inmates argue that the 70 percent requirement legally expired on April 30, 2002. They want the judge to rule that a law passed in 2001 by the Legislature didn’t properly cancel the expiration because it wasn’t written clearly enough to pass constitutional standards set by the Arkansas Supreme Court 90 years ago.
According to the seven-page lawsuit, the 70 percent requirement, Arkansas Code Annotated 16-93-611, was adopted in 1995 for Class Y felonies first-degree murder, kidnapping, aggravated robbery and causing a catastrophe. The law came with an expiration date of Dec. 31, 2001.
Four years later, the Arkansas Methamphetamine Lab Act of 1999 extended the expiration date to April 30, 2002, and added the 70 percent requirement for convictions for Class Y felony manufacturing methamphetamine and possession of drug paraphernalia with the intent to manufacture methamphetamine, a Class B felony.
The Legislature repealed the expiration in 2001 in a manner that the defendants say is illegal.
The expiration repeal was “hidden” in an act that made illegal the possession of nine grams or more of pseudoephedrine, a methamphetamine ingredient, according to the lawsuit.
But the language of that repeal measure - Act 1782 of 2001 - refers to a nonexistent law, making the law’s intent unconstitutionally unclear, the suit states.
The act refers to the law it’s changing only by its statute number, which doesn’t provide enough information for lawmakers to clearly understand the act being adopted into law, according to the filing.
“The test is simple: Can the General Assembly, by reading the bill ... know exactly what it was doing? The answer is an unequivocal `NO,’” the lawsuit states. “Not one word in the bill tells them what was coming or intended, and it is seemingly excluded by the title to the bill.” The inmates argue that to amend standing law, proposed measures must contain more than just a reference to the law’s statute or title.
They point to a 1918 Arkansas Supreme Court ruling that strikes down an effort to extend a law making it a crime to allow geese to run at large in Franklin County and a 1889 decision by the high court involving the sale of real estate by chancery courts.
In the 1918 decision, the high court found that any provision amending an existing law should make reference to that affected law by more than just its statute number, while the 1889 decision says the Arkansas Constitution establishes standards for amending laws.
A plain reading of the statute canceling the 70 percent rule for methamphetamine offenses is misleading as to its intent, which makes it illegal, the plaintiffs contend.
“One reading of the title of that act would give the legislature no idea what it was doing and that makes the ... repealer unconstitutional,” the lawsuit states.
The plaintiffs’ argument has convinced at least one other circuit judge, court files show. In a motion nearly identical to the lawsuit, Hall argued that the 70 percent provision was unconstitutional before Pulaski Judge Willard Proctor Jr. on behalf of 32-year-old Brandon C. Rowe, one of the plaintiffs, in May 2006, and the judge agreed that the 70 percent provision was unconstitutional.
In a four-page ruling in October 2007, Proctor wrote that the law is unclear since it refers to a nonexistent statute.
“So what does the statute refer to? The court must speculate to determine the meaning ... and what is being repealed, and the state has offered no explanation,” the judge wrote. “Even a legislator with access to the Arkansas Code could not determine the meaning of this bill.” But prosecutors appealed the decision, and the Arkansas Supreme Court overturned his ruling in June on a technicality without addressing the merits of the argument.
Rowe is serving a 15-year sentence, with 10 years on methamphetamine-making charges. The other plaintiffs are Dustin E. Chandler, 35, serving 24 years; Daniel Fiting, 48, serving 14 years; Jason A. Rateliff, 34, serving 15 years; and Gary Lee Wise, 50, serving 30 years.
Named as defendants are Larry Norris, the director of the Arkansas Department of Correction, and Leroy Brownlee, the chairman of the Arkansas Parole Board.
Hall said the plaintiffs sued the parties after the Arkansas attorney general’s office argued to the Supreme Court that the plaintiffs couldn’t challenge the constitutionality of the law in their criminal cases.
Hall said he would like to get Fox’s decision by the summer so any appeal could go before the Supreme Court in the fall.
Copyright 2008 Little Rock Newspapers, Inc.