Month: May 2009

Rule 5-2 Rewritten: (1) Arkansas Becomes First State with Electronic Official Reports; (2) Court Abandons Use of “Unpublished” Decisions

~ Tasha C. Taylor ~ 2 Comments

In today’s per curiam (dated May 28, 2009), the Arkansas Supreme Court announces two significant changes to appellate practice in Arkansas with the adoption of the Court’s new Rule 5-2.

(1) Arkansas Becomes First State with Electronic Official Reports
First, “effective July 1, 2009, the electronic version of appellate decisions posted on the Arkansas Judiciary website will be the official report of those decisions.”  With this decision, Arkansas will become “the first state in the nation to publish and distribute the official report of its appellate decisions electronically.”  

When the Court launches the new format for its official reports this summer, the searchable database maintained by the Reporter of Decisions will include all opinions issued after February 14, 2009, which is the closing date for the final volumes of the Arkansas Reports and the Arkansas Appellate Reports (375 Ark./104 Ark. App.).  Arkansas Supreme Court Rule 5-2 has been rewritten to reflect these changes.

(2) Court Abandons Use of “Unpublished” Decisions
Second, the Court’s change to Rule 5-2 “abandons the distinction between published and unpublished opinions and makes every Supreme Court and Court of Appeals opinion issued after July 1, 2009, precedent.”

In adopting this change, the Court notes that the General Assembly had expressed its view on this matter in Act 162 of 2009.  For a discussion of the effects of the passage of Act 162 of 2009 earlier this year, see Arkansas General Assembly Revives Anastasoff Controversy–Pondering the Effect of Act 162.

For more about today’s per curiam and Act 162, view Rep. Steve Harrelson’s May 28, 2009 blog post at www.underthedome.com.

Arkansas Supreme Court Voices Concern About Deficiency Problems in Appellate Briefs

~ Tasha C. Taylor

In a per curiam handed down on May 21, 2009, the Arkansas Supreme Court ordered rebriefing due to a deficiency in the appellant’s abstract.  See Roberts v. Roberts, Case No. 08-740.  According to a majority of the Court, the appellant’s abstract failed to comply with Arkansas Supreme Court Rule 4-2.  

While Justice Brown opined, in his dissent, that the case should not be sent back for rebriefing due, in part, to the additional delay and expense to the appellant, the majority of the Court disagreed.  

Justice Corbin wrote, in his concurring opinion, which Justice Imber joined, that he “must write separately to voice [his] concern about the problems arising from the increased number of appeals with deficiency problems.”  Justice Corbin blamed both practitioners and the Court of Appeals for the current deficiency problems:

In fact, I believe the inconsistency of our appellate courts has contributed greatly to the
current dilemma we face. I do not believe the problem stems from confusion over our rules.
If it were simply a matter of the rules being confusing, we would have had more problems
back in 2001 when the current rule was adopted, not eight years later. I believe the real
problem is the fact that attorneys are being held to two different standards. This court expects
the work product submitted to us to be in compliance with our rules. The court of appeals,
-7- 08-740
however, is less stringent in enforcing those same rules.

In fact, I believe the inconsistency of our appellate courts has contributed greatly to the current dilemma we face. I do not believe the problem stems from confusion over our rules.  If it were simply a matter of the rules being confusing, we would have had more problems back in 2001 when the current rule was adopted, not eight years later. I believe the real problem is the fact that attorneys are being held to two different standards. This court expects the work product submitted to us to be in compliance with our rules. The court of appeals, however, is less stringent in enforcing those same rules.

According to Justice Corbin, “attorneys need to know that the briefs they submit are acceptable to both the court of appeals and this court.”  He adds that “such consistency is the only way to resolve this problem.”