Posted by: Andy Taylor | October 28, 2010

Arkansas Supreme Court Revises Rule 5-3 (Relating to Stays of Mandates When Petition for Writ of Certiorari to U.S. Supreme Court Is Filed)

Today, the Arkansas Supreme Court adopted proposed changes to Arkansas Supreme Court and Court of Appeals Rule 5-3.   The revisions had been proposed and published for comment on May 20 of this year.  In re Ark. Sup. Ct. and Ct. of App. Rule 5-3, 2010 Ark. 252.  Rule 5-3 relates to the issuance of a stay of a mandate (or the recall of a mandate) when a petition for writ of certiorari is filed at the United States Supreme Court. In re Ark. Sup. Ct. and Ct. of App. Rule 5-3, 2010 Ark. 408, at 1.  The proposed changes address concerns regarding the duration of such stays. Id.

Though appellate lawyers in Arkansas should review the entire text of the rule, below are the primary changes and clarifications resulting from the revisions:

  • The party seeking the stay must show that the petition for a writ of certiorari presents a substantial question, and that there is good cause for a stay or recall.  The previous rule required only that the party seeking the stay order a copy of the record from the Clerk and pay a $50 deposit for the record.  (This requirement remains in the new rule). Ark. Sup. Ct. R. 5-3(c)(1).
  • The stay will be no longer than ninety days, unless the Petition for Writ of Certiorari is actually filed.  (Ninety days is generally the deadline for filing a Petition for Writ of Certiorari with the U.S. Supreme Court. U.S. Sup. Ct. R. 13(1).)  The time period can be extended upon a showing of good cause.  If the Petition is actually filed, the stay remains in place until the Supreme Court’s final disposition of the case. Ark. Sup. Ct. R. 5-3(c)(2).
  • If the Petition for Writ of Certiorari is denied, the mandate issues immediately. Ark. Sup. Ct. R. 5-3(c)(4).


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