                                     Cite as 2015 Ark. 375

                SUPREME COURT OF ARKANSAS
                                        No.   CV-15-829

WENDY KELLEY, IN HER OFFICIAL                      Opinion Delivered   October 20, 2015
CAPACITY AS DIRECTOR OF THE
ARKANSAS DEPARTMENT OF                             PETITION FOR WRIT OF
CORRECTION, AND THE                                CERTIORARI GRANTED; WRIT
ARKANSAS DEPARTMENT OF                             ISSUED; STAY OF EXECUTIONS
CORRECTION                                         GRANTED; MOTION TO LODGE
                  PETITIONERS                      SUPPLEMENTAL RECORD
                                                   GRANTED.
V.


THE HONORABLE WENDELL
GRIFFEN, STACEY JOHNSON, JASON
MCGEHEE, BRUCE WARD,
TERRICK NOONER, JACK JONES,
MARCEL WILLIAMS, KENNETH
WILLIAMS, DON DAVIS, AND
LEDELL LEE
                  RESPONDENTS


                                        PER CURIAM


       Wendy Kelley, in her official capacity as Director of the Arkansas Department of

Correction, and the Arkansas Department of Correction have petitioned this court for a writ

of certiorari lifting a stay of executions granted by the Pulaski County Circuit Court or,

alternatively, a writ of mandamus ordering the circuit court to expedite a scheduled hearing

on a preliminary injunction requested by respondent-prisoners. The prisoners have responded

and, in addition, have made a conditional request for a stay of executions from this court.

Because the circuit court acted in excess of its jurisdiction in staying the executions, we grant
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the petition for writ of certiorari, issue the writ, and lift the stay of the executions entered by

the circuit court. Further, we grant the prisoners’ request and issue a stay of the executions

pending the resolution of the litigation currently pending in the Pulaski County Circuit

Court.

         In April 2015, Stacey Johnson, Jason McGehee, Bruce Ward, Terrick Nooner, Jack

Jones, Marcel Williams, Kenneth Williams, Don Davis, and Ledell Lee filed an action

challenging the constitutionality of Act 1096 of 2015, which set out the mandated state

method of executing condemned prisoners. Eight of the prisoners subsequently had their

dates of execution set, with the first executions scheduled for October 21, 2015. On

September 30, 2015, the prisoners filed an emergency motion for summary judgment on

various of their claims or, alternatively, for preliminary injunction pursuant to Arkansas Rule

of Civil Procedure 65. On October 9, 2015, the circuit court issued a temporary restraining

order expressly staying the executions pending a preliminary injunction hearing. On October

12, 2015, the circuit court issued a scheduling order setting the preliminary injunction hearing

for March 1 and 2, 2016. Petitioners filed a motion to dissolve the temporary restraining

order and to set an expedited hearing on the motion for preliminary injunction. The circuit

court denied that motion on October 13, 2015, and ordered the petitioners to show cause as

to why the motion did not violate Arkansas Rule of Civil Procedure 11.

         This prompted the petition currently before this court. A writ of certiorari is

extraordinary relief, and we will grant it only when there is a lack of jurisdiction, an act in

excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face


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of the record. Conner v. Simes, 355 Ark. 422, 428, 139 S.W.3d 476, 479 (2003). Petitioners

have challenged the circuit court’s jurisdiction to enter a stay of execution. Pursuant to

statute, the only officers who have the power of suspending the execution of a judgment of

death are: (1) the Governor; (2) the Director of the Department of Correction in cases of

insanity or pregnancy of the individual; and (3) the Clerk of the Supreme Court in cases of

appeals. Ark. Code Ann. § 16-90-506(c) (Repl. 2006). This court has explicitly stated that

a circuit court does not have jurisdiction to stay an execution. Singleton v. Norris, 332 Ark.

196, 964 S.W.2d 366 (1998). The prisoners assert that what was issued was an injunction and

not a stay; therefore, they contend that section 16-90-506(c) and our case law holding that

circuit courts lack jurisdiction to stay an execution do not apply. However, we find that the

argument put forth by the prisoners is purely a matter of semantics. A “stay” is defined as the

postponement or halting of a proceeding, judgment, or the like. Blacks Law Dictionary, 1639

(10th ed. 2014). The circuit court effectively barred the executive branch from proceeding

on the judgments of execution, and it recognized that fact when it stated in the order that it

was staying the executions. As the circuit court did not have jurisdiction to issue a stay, we

grant the petition for writ of certiorari and issue a writ removing the stay of executions issued

by the circuit court. See Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992) (issuing

a writ of certiorari for an act by a circuit court in excess of its jurisdiction); see also Ark. Dep’t

of Human Servs. v. Collier, 351 Ark. 506, 95 S.W.3d 772 (2003) (issuing a writ of certiorari

when an appeal could not be had due to time constraints). The remainder of the circuit

court’s order that does not conflict with the removal of the stay is not affected by this writ.


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       In their response to the petition, the prisoners made a conditional request for a stay

from this court in which they asked this court to issue a stay if we determined that the one

issued by the circuit court was invalid. Pursuant to our decision in Singleton, supra, we may

enter a stay of execution pending the resolution of a competent judicial proceeding, if we

determine that the action in circuit court is a competent judicial proceeding.1 In that case,

we explained that we will issue a stay of execution when a constitutional claim pending in a

lower court (1) only recently ripened; (2) is bona fide and not frivolous; and (3) cannot be

resolved before the execution date. The prisoners filed their complaint immediately after Act

1096 was enacted, the complaint contains bona fide constitutional claims, and the first

executions are set for October 21, 2015. We hold that all three of the necessary elements are

present in this case. Therefore, we grant the request and stay the executions pending the

resolution of the litigation currently pending in the Pulaski County Circuit Court. See Davis

v. Hobbs, 2010 Ark. 168.

       On October 15, 2015, the prisoners filed a motion to lodge supplemental record. That

motion is hereby granted.

       Petition for writ of certiorari granted; writ issued; stay of executions granted; motion
to lodge supplemental record granted.

       BRILL, C.J., and DANIELSON, J., would deny petition for writ of certiorari without
prejudice.
       WOOD, J., would grant petition for writ of certiorari and deny request for stay of
executions.
       Leslie Rutledge, Att’y Gen., David A. Curran, Deputy Att’y Gen., by: Jennifer L. Merritt,
Ass’t Att’y Gen., for petitioners.

       Jeff Rosenzweig; Josh Lee; and Deborah R. Sallings, for respondents.

       1
        Arkansas Code Annotated section 16-90-506(a) (Repl. 2006) allows for the execution
of a sentence of death to be stayed by “any competent judicial proceeding.”

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