The ability of courts to hand down “unpublished decisions” has long been the subject of much debate in Arkansas, as well as in other jurisdictions. See, e.g., Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002) (holding that appellant lacked standing to challenge constitutionality of the the Court Rule permitting the publication of unpublished decisions), cert. denied, 539 U.S. 907 (2003); see also Anastasoff v. U.S., 223 F.3d 898, (8th Cir. 2000), vacated on rehearing en banc, 235 F.3d 1054 (8th Cir. 2000).
This new law purports to amend Arkansas Supreme Court Rule 5-2(d), which provides that opinions rendered by the Court of Appeals as “not designated for publication . . . shall not be cited, quoted, or referred to by any court or in any argument, brief, or other materials presented to any court[.]” Ark. Sup. Ct. R. 5-2(d) (2009).
The adoption of this Act as law by the Arkansas General Assembly comes on the heels of the Arkansas Supreme Court’s rejection of a similar change to the Rule just last year. In a per curiam released on January 10, 2008, the Court announced that it was declining “by a vote of 4 to 3” to approve the proposed change to Rule 5-2 that was recommended by the Arkansas Supreme Court Committee on Civil Practice. The per curiam stated that Chief Justice Hannah, Justice Brown, and Justice Imber would approve the Committee’s proposed change to the rule.
While the legislature’s action might seem to create a separation of powers issue, note that the Act provides that it was passed with the authority granted to the legislature by Amendment 80 to the Arkansas Constitution. Section 9 of Amendment 80 provides the following:
§ 9. Annulment or amendment of rules.
Any rules promulgated by the Supreme Court pursuant to Sections 5, 6(B), 7(B), 7(D), or 8 of this Amendment may be annulled or amended, in whole or in part, by a two-thirds (2/3) vote of the membership of each house of the General Assembly.
Furthermore, the Arkansas Supreme Court has recognized that its authority to promulgate rules of procedure is not exclusive:
The Arkansas Constitution confers upon the courts the inherent authority to promulgate rules of procedure. Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977). However, Article 7, sections 1 and 4, “do not expressly or by implication confer on this Court exclusive authority to set rules of court Procedure.” Jackson v. Ozment, 283 Ark. 100, 101, 671 S.W.2d 736, 738 (1984) overruled on other grounds by Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992). The court shares this authority with the General Assembly. St. Clair v. State, 301 Ark. 223, 783 S.W.2d 835 (1990); Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990). Thus, it is not a violation of separation-of-powers principles for the legislature to enact statutes pertaining to rules of procedure, St. Clair v. State, supra, although such statutes may be superseded by the rules promulgated by the judiciary. See Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994); Weidrick v. Arnold, supra.
It seems that on the 91st day following the legislature’s adjournment, Act 162’s amendment to the Supreme Court Rule might very well have the intended effect of permitting attorneys to rely on unpublished decisions . . . unless the Arkansas Supreme Court promulgates a rule superseding it. See Reeves v. State, Reeves v. State, 374 Ark. 415, — S.W.3d —- (2008) (recognizing that Amendment 7 to the Arkansas Constitution provides that Acts of the General Assembly not containing an emergency clause or a specified effective date become effective on the ninety-first day after the legislature adjourns). With the recent retirement of Justice Glaze and the appointment of Justice Wills to the Court, it might very well be that the decision of the Arkansas General Assembly is now favored by a majority of the Arkansas Supreme Court.