Category: Arkansas Supreme Court

Hallelujah! (In other words, the Arkansas Supreme Court is abolishing the abstract and addendum requirement.)

Arkansas Justice Building--Home of the Arkansas Supreme Court and Arkansas Court of Appeals
~ Andy Taylor

As we noted in our original post (below), the Arkansas Supreme Court has proposed a set of rule changes that abolish the abstracting and addendum requirement.  In the original post, we promised to provide updates and more details, so we’re doing that now. Before delving into those details, please note that these are proposed revisions, so they are subject to change.  However, if you can get your record in electronic format, you may participate in a pilot project using these rules.  So, with that said, here are the major changes (and, of course, review the per curiam before filing your brief; this is just a general overview):

The Biggest Change: Abolition of the Abstracting and Addendum Requirement

This, of course, is the biggest change.  Attorneys are no longer required to prepare an abstract or an addendum.  Rather, attorneys will refer to the relevant page number in the record.  As mentioned below, the record will now be comprised of two separate portions: a pleading portion and a transcript portion.  If you cite to the pleading portion of the record, use the format (RP 10), and if you cite to the transcript portion, use the format (RT 10).  The court has a computer program that converts those citations to links to the relevant portion of the record.

Preparation and Filing of the Record

As mentioned above, there will now be two portions of the record: pleadings and transcripts.  The record must be in electronic format (PDF), and each portion of the record must be sequentially numbered such that the first page of the PDF is the first page of the record.  This means that whatever the first page of the PDF is (cover page, table of contents, etc.), it must be page 1.Under the proposed rule, attorneys are still responsible for filing the record, but unlike in the past, the record can now be filed electronically.  

Brief Components

In addition to the elimination of the abstract and addendum, the informational statement (the form that included questions about the appeal and the brief) has been eliminated.  The jurisdictional statement has more specific requirements under the proposed rule than under the current rule.  There are also a couple of new sections: a request for relief and a certificate of compliance with Administrative Order No. 19 (relating to confidential information) and with the word-count limitations (discussed in more detail below).  Finally, the “statement of the case” has been replaced with the “statement of the case and facts.”  

Length Limitations

There are two significant changes to the length of the brief.  First, rather than limiting the statement of the case to a certain number of pages and the argument to a certain number of pages, the limitation is a global limitation that can be allocated in whatever way makes the most sense.  Second, the limitation is converted to a word limit, rather than a page limit. The word count includes the jurisdictional statement, the statement of the case and the facts, the argument, and the request for relief. All other portions of the brief are disregarded for purposes of the word count. Here are the limits:

Brief TypeWord Count Limit
Appellant’s Brief8,600
Appellee’s Brief8,600
Reply Brief2,875
Appellee’s/Cross-Appellant’s Brief14,325
Reply/Cross-Appellee’s Brief11,475

 

ORIGINAL POST

As Justice Rhonda Wood described it on Twitter, there was some “HUGE” news from the Arkansas Supreme Court this morning:

Arkansas Supreme Court

We’re still reading the per curiam, and it’s full of changes, 

but here’s a brief synopsis (you can expect a more detailed examination later).

 

First, effective immediately, attorneys may begin requesting electronic records from the circuit clerk, and the circuit clerk is required to provide the record in electronic format.

Second, the Arkansas Supreme Court published for comment revisions to the rules that accommodate these electronic records.  Those rules abolish the requirements of an abstract and addendum.  

Third—and here’s the best part—even though those rules are currently only published for comment (meaning they are not in effect yet), attorneys who choose to file their records electronically are permitted to file under the new rules as part of a pilot project.

As the Supreme Court noted in its per curiam, the abstracting requirement (and, to a lesser extent, the addendum requirement) had outlived their usefulness.  In our opinion, the abstract adds needless time and expense (both in attorney’s fees and printing costs) to the appellate process, it is confusing, and even a well-done abstract can’t effectively capture what occurred at trial.  This is a good move, and we look forward to seeing it fully implemented.  And you can rest assured that we will never order another paper record again!

Electronic Filing of Appellate Briefs is now Mandatory in Arkansas Appellate Courts

~ Andy Taylor

The Arkansas Supreme Court has recently issued a per curiam opinion making electronic filing of appellate briefs mandatory as of January 1, 2018.  In its per curiam, the Court made a few changes and clarifications to the pilot project (which had been in place since September 15, 2016).  The Court also slightly modified the method for requesting clerk’s extensions.  We’ve posted the details of these changes (along with a couple of forms) below.  As always, this is just a summary, so please refer to the text of the rules themselves when filing a brief.

Overview of Electronic Filing of Briefs

Here are the key points you need to know if you are filing a brief electronically:

  • Briefs are filed through the eFlex system.
  • The brief must be electronically filed prior to midnight on the due date.
  • The table of contents must contain hyperlinks to the beginning of each major section of the brief.  The “major sections” are:
    • Informational statement and jurisdictional statement;
    • Points on appeal;
    • Table of authorities;
    • Abstract;
    • Statement of the Case;
    • Argument; and
    • Addendum.
  • After the brief is accepted by the court, you must file six paper copies of the brief with the clerk’s office.  In our discussions with the clerk’s office, they have indicated that they prefer that attorneys simply print the file-marked copies (rather than printing clean copies and having the clerk’s office file-mark them).
  • The paper copies are due five calendar days after the brief is filed.  Note that this time period begins with the brief is filed, and not when the brief is accepted by the clerk’s office.
  • We are still serving paper copies of the brief on opposing counsel.  We believe that there is some ambiguity about this in the rules.  Rules 4-4(b)-(e) discuss “service upon opposing counsel,” and seem to imply that the service will be in paper format.  Administrative Order 21, on the other hand, states that “[r]egistered users of the electronic filing system consent to electronic service of electronic documents as the only means deemed to constitute service and such notice of filing is valid and effective service of the document on the registered users and shall have the same legal effect as service by conventional means.”  Until there is some clarity on this, we are continuing to serve opposing counsel in paper format.  We have included a sample of our certificate of service below.

Continue reading “Electronic Filing of Appellate Briefs is now Mandatory in Arkansas Appellate Courts” →

2016 Judicial Election Results for Arkansas Supreme Court and Arkansas Court of Appeals

~ Tasha C. Taylor

The 2016 nonpartisan judicial elections held in Arkansas on March 1st have resulted in two new Arkansas Supreme Court Justices, one new Judge on the Arkansas Court of Appeals, and one runoff election for a seat on the Arkansas Court of Appeals.  The following are results with nearly all precincts reporting:

Arkansas Supreme Court

Chief Justice Position 1

Association Justice Position 5

Arkansas Court of Appeals

Associate Judge District 2, Position 2

Associate Judge District 5

The runoff election between James McMenis and Mark Klappenbach for the Associate Judge District 5 position on the Arkansas Court of Appeals will take place during the general election on November 8, 2016.

There were also two uncontested races in the Arkansas Court of Appeals: Judge Rita W. Gruber will remain the Associate Justice for District 6, Position 1; and Judge Waymond Brown will keep his seat as District 7 Associate Judge.

Related Post: 2016 Arkansas Supreme Court & Arkansas Court of Appeals Election Roundup

In Memory of Chief Justice Hannah

~ Tasha C. Taylor

The Arkansas Supreme Court issued a per curiam last week entitled In Memory of Chief Justice James R. Hannah, in which the Court recognized Justice Hannah’s 37 years of service to the Arkansas Judiciary.

I had the privilege and honor of starting my legal career at the Arkansas Supreme Court during the time when Chief Justice Hannah led the Court.  Much has been written about how he was an accomplished jurist, and rightfully so.  But, I was always most impressed by his gentle smile and soft voice with which he seemed to greet everyone he met.  It’s no wonder he was such a remarkable leader who aspired for a system of justice where all people would receive the same level of treatment.

“We have the best judicial system in the world. But if a person cannot walk through those courtroom doors because of their economic status or race, then having the best judicial system means absolutely nothing.” – Chief Justice Jim Hannah, June 2010.

* Hat tip to Amy Dunn Johnson for sharing the above quote and link to the following video where Justice Hannah speaks about access to justice during his first “State of the Judiciary Address” at the 2010 annual meeting of the Arkansas Bar Association.

 

2016 Arkansas Supreme Court & Arkansas Court of Appeals Election Roundup

~ Tasha C. Taylor ~ 1 Comment

The party primary and judicial general election will be held in Arkansas this year on March 1, 2016.  The judicial general election includes four contested races for seats on Arkansas’s appellate courts (two in each court).  The races for the open seats on the Arkansas Supreme Court will be elected in a statewide election.  The seats open on the Arkansas Court of Appeals will be elected only by voters in each seat’s district.

Arkansas Supreme Court

In the Arkansas Supreme Court, the contest for the position of Chief Justice (Position 1) resulted from former Chief Justice Hannah’s announcement earlier this year that he would retire early.  Position 5 is open because Justice Danielson decided not to seek re-election for that position.

The candidates for the two contested races on the Arkansas Supreme Court are as listed below along with a link to each candidate’s campaign site.

Chief Justice Position 1

Association Justice Position 5

Arkansas Court of Appeals

In the Court of Appeals, there are two races that are uncontested: Judge Rita W. Gruber will remain the Associate Justice for District 6, Position 1; and Judge Waymond Brown will keep his seat as District 7 Associate Judge.

The two contested races in the Court of Appeals are for District 2, Position 2 (currently occupied by Judge Cliff Hoofman, who was appointed to replace Justice Rhonda Wood when she was elected to the Arkansas Supreme Court) and District 5 (currently occupied by Mike Kinard, who was appointed to replace Justice Robin Wynne after Wynne was elected to the Arkansas Supreme Court).

The candidates for the two contested positions on the Arkansas Court of Appeals are listed below each position in the list that follows (along with a link to each candidate’s campaign site).

Associate Judge District 2, Position 2

Associate Judge District 5

Arkansas Supreme Court Chief Justice Hannah Retires; Professor Howard Brill Appointed to Fill Chief Justice Vacancy.

~ Tasha C. Taylor ~ 1 Comment

Arkansas Supreme Court Chief Justice Jim Hannah
Arkansas Supreme Court Chief Justice Jim Hannah

Earlier this month, Chief Justice Jim Hannah announced his plans to retire early from his position on the Arkansas Supreme Court due to health issues.  Justice Hannah was first elected as an Associate Justice on the Arkansas Supreme Court in 2000 and later was elected to the Chief Justice position in 2004.

The following is Chief Justice Hannah’s Resignation Statement:

The people of Arkansas elected me to our state’s highest court in year 2000. I will be forever grateful. It is with great pride and pleasure that I have served on the Arkansas Supreme Court for over fourteen years, the last ten in the role of Chief Justice. In recent weeks I have been challenged by a significant health issue. Having the utmost respect for my job as Chief Justice and the business of the court, I have made a decision to tender my resignation effective at the end of August 31, 2015 to focus full-time on addressing my immediate health condition. There is no greater honor that a person can receive than to have another person place his or her trust and confidence in you. I want to thank the people of Arkansas who placed their trust and confidence in me and allowed me to serve them on their Arkansas Supreme Court. I sincerely appreciate the excellent staff that has worked with me. I have been privileged to work with some of the best district court judges, circuit court judges, appellate court judges, and justices in the country. I have also been privileged to work with our excellent Administrative Office of the Courts, its leadership and dedicated employees. Lastly, thank you to my wife Pat for her sacrifice and support.

Prior to his retirement, Justice Hannah was the longest-serving member of the Arkansas judiciary, having served as a judge for more than thirty-seven years.

Howard Brill
Professor Howard Brill

On Thursday of this week, Governor Asa Hutchinson appointed Professor Howard Brill to complete Chief Justice Hannah’s term on the Arkansas Supreme Court, which ends in 2016.  Professor Brill is the Vincent Foster University Professor of Legal Ethics and Professional Responsibility at the University of Arkansas School of Law.  He joined the law school in 1975.  Among his many achievements, Professor Brill is widely known in Arkansas as the author of Arkansas Law of Damages, which is routinely cited by Arkansas state and federal courts.  He has also authored Arkansas Professional and Judicial Ethics.  Professor Brill has previously served as a Special Justice on the Arkansas Supreme Court on several occasions.

Arkansas Supreme Court Election Update: Justice Paul Danielson to Retire, Circuit Court Judge Shawn Womack to Run

~ Tasha C. Taylor ~ 1 Comment

Arkansas Supreme CourtJustice Paul Danielson announced last week that he does not plan to seek re-election as an Associate Justice of the Arkansas Supreme Court at the end of 2016.  Justice Danielson said that he was grateful for the opportunity to serve and commented that he would seek re-election were it not for an Arkansas law requiring judges to retire by age 70 so as not to lose their retirement benefits.

“I am eternally grateful to the people of Arkansas for allowing me the privilege of serving on this court for what will be ten years, after having served twelve years as a circuit judge,” Danielson said. “And it has been my honor and pleasure to work among such esteemed colleagues over the years. Were it not for the state law prohibiting me from seeking re-election without forfeiting my retirement benefits, I would continue to seek re-election as long as the good people of this State would have me.”

Within a few hours of Justice Danielson’s announcement, Circuit Court Judge Shawn Womack announced that he’ll run for Justice Danielson’s seat on the Arkansas Supreme Court in 2016.  Judge Womack, a former Arkansas lawmaker, is currently a circuit court judge in Mountain Home.

Arkansas Supreme Court Decision Clarifies Rule Regarding Termination of Consensual Guardianship, but Some Questions Remain

~ Andy Taylor ~ 1 Comment

In re Guardianship of S.H., 2012 Ark. 245, 409 S.W.3d 307 (“S.H. I“) and In re Guardianship of S.H., 2015 Ark. 75 (“S.H. II“) both address the rule that applies when a parent who originally consents to a guardianship later seeks to terminate the guardianship.  In S.H. I (decided in 2012), the Arkansas Supreme Court set forth a two-step burden shifting analysis for determining whether to terminate a guardianship in such situations.  In S.H. II (which was the second appeal of the same case, decided in February 2015), the Arkansas Supreme Court clarified the burdens of proof that apply to each step in the analysis.  S.H. II was a split opinion, however, and for reasons that will be discussed in more detail below, there is some question as to which rule will apply in the future.  Therefore, this blog post analyzes the rule from both the majority opinion (which technically appears to be a plurality opinion) and the concurring opinion, along with a note regarding which rule might apply in the future.

I. Legal Background

SH II addresses situations where a parent consents to another person (typically a family member) serving as the guardian of his or her child, and then later that parent seeks to terminate that guardianship.  This can arise in a number of circumstances, such as when a parent must leave the country to serve in the military (Witham v. Beck, 2013 Ark. App. 351) or when a parent is overcoming a drug problem (Crenshaw v. Crenshaw, 2012 Ark. App. 695).

A. Abolition of the Material Change in Circumstances Standard

For many years, appellate courts in Arkansas had “equate[d] a petition to terminate a guardianship to a change of child custody among natural parents.” Smith v. Thomas, 373 Ark. 427, 432, 284 S.W.3d 476, 479 (2008).  As a result, in order for a parent to terminate a guardianship, the parent was required to prove that there had been a material change in circumstances. Graham v. Matheny, 2009 Ark. 481, 6, 346 S.W.3d 273, 277 (2009).  In Graham, the Arkansas Supreme Court recognized that “there is confusion regarding the standard to be used in termination-of-guardianship cases.” Id. at 14, 346 S.W.3d at 280-81.  Therefore, the Arkansas Supreme Court took the opportunity to set forth five principles that apply in termination of guardianship cases.  Perhaps the most significant of those principles was that “a change-of-custody analysis using the material-change-of-circumstances standard should not be done in termination-of-guardianship cases.” Id. at 15, 346 S.W.3d at 281.

The Court in Graham noted that the guardianship statute, which provides that “[a] guardianship may be terminated by court order . . . [if] the guardianship is no longer necessary or for the best interest of the ward,” is a disjunctive test. See Ark. Code Ann. § 28-65-401(b)(3).  Nevertheless, the Arkansas Supreme Court still held that even if there is evidence that a guardianship is no longer necessary, the best interests of the child must still be examined.  The concurrence in Graham, written by Justice Hannah, joined by Justice Danielson, made the point that the statute is a disjunctive statate and argued that “[u]pon remand, the circuit court should be ordered to determine whether if for any reason, the guardianship is no longer necessary or for some other reason it is no longer in the best interest of [the ward] that the guardianship continue.” Graham, 2009 Ark. 481, at 19, 346 S.W.3d at 283 (Hannah, C.J., concurring).

The concurrence, in a footnote, made one other point: That the parties had not raised the question of whether the guardianship statute as written violated parents’ constitutional rights to the custody and control of children. Id. at 18, 346 S.W.3d at 282 (Hannah, C.J., concurring).  Specifically, the concurrence made reference to Troxel v. Granville, 530 U.S. 57, 120 Sup. Ct. 2054 (2000), in which the Arkansas Supreme Court had held in a grandparent visitation case that “there is a presumption that fit parents act in the best interests of their children.”  The Arkansas Supreme Court had also recognized this principle in a grandparent visitation case, holding that “a fit parent is given a presumption that he or she is acting in a child’s best interests.” Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002).

Less than three years after the decision in Graham v. Metheny was handed down, the Arkansas Supreme Court would address head-on the issue of parental rights in the context of a termination of a consensual guardianship.

Continue reading “Arkansas Supreme Court Decision Clarifies Rule Regarding Termination of Consensual Guardianship, but Some Questions Remain” →