UPDATE: Arkansas Supreme Court Clarifies Original and Appellate Jurisdiction for Constitutional Amendments: Forrester v. Daniels.

~ Andy Taylor

UPDATE Below the Jump:

The Arkansas Supreme Court handed down its decision today in Forrester v. Daniels, clarifying that it has original jurisdiction over challenges to constitutional amendments that are initiated by the citizens, but appellate jurisdiction over challenges to constitutional amendments referred by the legislature. Forrester v. Daniels, 2010 Ark. 397.  This has been the rule for many years, but had been called into question after amendment 80 to the Arkansas Constitution became effective on July 1, 2001. See Becker v. McCuen, 303 Ark. 482, 708 S.W.2d 71 (1990).

Because the Court did not reach the merits of the Petitioner’s case, this blog post will not discuss the merits in detail, but will only address them briefly.  The proposed amendment at issue here deals with the maximum interest rate that can be charged by various entities, and also deals with the power of governmental units to issue bonds. Forrester, 2010 Ark. 397, at 2-4.  The gist of the challenge is that the legislature attempted to cover too many issues in a single proposed amendment.  Id. at 3-4.

The importance of this case, however, is more procedural in nature.  Because, as discussed above, the status of the Supreme Court’s jurisdiction (original or appellate) was in doubt after the enactment of Amendment 80, the Petitioner filed nearly identical actions in the Pulaski County Circuit Court and the Arkansas Supreme Court, both on the same day.

A proposed constitutional amendment may appear on the ballot by one of two methods.  The first is by referral from the legislature, the requirements of which are provided in at Arkansas Constitution Article 19, § 22.  The second method is through the initiative and referendum power reserved to the people.  This procedure is outlined at Arkansas Constitution Amendment 7.

Amendment 7, dealing with amendments resulting from initiatives of the people, provides that “[t]he sufficiency of all state-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes.” Ark. Const. Amend. 7.  Article Nineteen, Section 22 of the Arkansas Constitution has no such provision, so the Arkansas Supreme Court in Becker held that it did not have original jurisdiction, but had only appellate jurisdiction pursuant to Article 7, § 4 of the Arkansas Constitution. See Becker, 303 Ark at 482, 708 S.w. 2d at 71.

The reason this is an issue in Forrester is that Article 7 was repealed by Amendment 80 of the Constitution.  Amendment 80 provides, in part, that “[t]he Supreme Court shall have . . . [o]riginal jurisdiction to determine sufficiency of state initiative and referendum petitions and proposed constitutional amendments.” Ark. Const. Amend. 80, § 2(D)(4).  Because the provision conferring original jurisdiction on the Arkansas Supreme Court includes the phrase “and proposed constitutional amendments,” the Petitioner argued that the Arkansas Supreme Court now has original jurisdiction over all proposed constitutional amendments, and not just those resulting from initiatives. See Forrester, supra.

In a unanimous opinion, the Arkansas Supreme Court disagreed.  The Court held in Forrester that the phrase “and proposed constitutional amendments” must be read in the context of the phrase “to determine sufficiency of.” Forrester, 2010 Ark. 397, at 8-9.  According to the Court, that phrase only makes sense if “proposed constitutional amendments” refers only to amendments that result from initiatives from the people, as those are the only types of amendments subject to a sufficiency challenge. Id.  For proposed amendments referred from the legislature, the only question is “whether the procedures governing the method for the legislature to propose an amendment have been followed.” Id.

In an interesting paragraph at the end of the opinion, the Court then seemed to look at its own rules to help it interpret the constitutional issue.  The Court noted that it had amended its rules to conform to the changes resulting from Amendment 80.  After the changes, Rule 6-5 read as follows:

(a) Original Jurisdiction. The Supreme Court shall have original jurisdiction in extraordinary actions as required by law, such as suits attacking the validity of statewide petitions filed under Amendment 7 of the Arkansas Constitution or, where the Supreme Court’s contempt powers are at issue.

Ark. Sup. Ct. R. 6-5(a) (2010).

In Forrester, the Court held its conclusion was “further bolstered” by the fact that it had amended the rules in response to Amendment 80, but had done so “in a way to indicate that our jurisdiction of the instant challenge is now original.” Id. at 9-10.  Arkansas appellate lawyers should bear this in mind when dealing with procedural issues before the Arkansas Supreme Court, as the Court seems willing to look to its own rules to help it interpret constitutional provisions.

Continue reading “UPDATE: Arkansas Supreme Court Clarifies Original and Appellate Jurisdiction for Constitutional Amendments: Forrester v. Daniels.” →

UPDATE: Arkansas Supreme Court November 2010 Runoff Election Update: Judge Karen Baker v. Judge Tim Fox

~ Andy Taylor ~ 1 Comment

The election to fill the vacancy left by Arkansas Supreme Court Justice Imber’s retirement from the court late last year is less than three weeks away. The election, a runoff election between Arkansas Court of Appeals Judge Karen Baker and Pulaski County Circuit Court Judge Tim Fox, is being held because neither of the three candidates in the May 18 election received a majority of the votes. In the May election, Judge Karen Baker received 48% of the vote, Judge Tim Fox received 37% of the vote, and Evenlyn Moorehead received the remaining 15% of the vote.

This race is the only Appellate Court race that will be on the ballot in the general election on November 2, 2010.  Because of this, the race has garnered quite a bit of attention from the media in the last few weeks.  Below are links to stories that have been published about the race recently.

ArkansasAppeals.com will continue to post articles about the judicial race as they become available.  Also, you can keep an eye on our blog and on our Twitter feed on election night for continuing updates on the election.

 

Using Arkansas’s New Citation Format (Ark. Sup. Ct. R. 5-2(d)(2))

~ Tasha C. Taylor ~ 1 Comment

Arkansas’s New Electronic Database of Opinions

In May of 2009, the Arkansas Supreme Court handed down a per curiam decision that made Arkansas the first state in the nation to publish its official reports in electronic format only. See  Rule 5-2 Rewritten: (1) Arkansas Becomes First State with Electronic Official Reports; (2) Court Abandons Use of “Unpublished” Decisions.  The Court ordered that the official report of decisions issued after February 14, 2009, “shall be an electronic file created, authenticated, secured, and maintained by the Reporter of Decisions on the Arkansas Judiciary website.” Ark. Sup. Ct. R. 5-2(b)(1).

Arkansas’s New Citation Format

Along with its decision to publish opinions handed down after July 1, 2009 in an electronic-only format, the Court also implemented a new citation rule for those electronically published decisions. See Ark. Sup. Ct. R. 5-2(d)(2).

As shown in the chart below, Arkansas’s new citation rule for electronically reported decisions is somewhat different from the traditional citation rule for decisions published in the bound volumes of the Arkansas Reports and the Arkansas Appellate Reports.

The new citation format for electronically published decisions permits parallel citations to unofficial sources, including unofficial electronic databases, but only when the regional reporter citation is unavailable. (Parallel citations are highlighted in green in the chart below).  Notice also that, the new citation format omits the parenthetical with the year the case was issued because the year is now the first number in the citation.

Additionally, the new citation rule requires a different format for pinpoint citations.  Arkansas Supreme Court Rule 5-2(d) strongly encourages the use of pinpoint citations for citations to all Arkansas opinions.  The use of pinpoint citations with the new citation format differs from the traditional citation format in two respects. (Pinpoint citations are highlighted in yellow in the chart below).

First, the use of pinpoint citations with the new format always requires the use of the word “at.”  When citing to cases that are published in the printed version of the Arkansas Reports, the traditional citation rule requires the use of the word “at” only when using short cites, and never when using full citations of a case.

Second, the pinpoint citation will always refer to the page of the opinion itself rather than a page in a published reporter.  Unlike opinions published in the Arkansas Reports, every opinion published electronically begins with page 1.  Providing the correct pinpoint citation under the new citation format now requires attorneys to find the decision online and then refer to the specific page of that decision where the information being cited is found. 

The following chart, based on Arkansas Supreme Court Rule 5-2(d), illustrates the differences between the traditional citation format and the new citation format:

Citing to Arkansas Opinions (Rule 5-2(d))

Locating Page Numbers for Pinpoint Citations to Arkansas’s Electronically Reported Decisions

The Arkansas Judiciary Website

Arkansas’s electronically reported decisions can be found on the Arkansas Judiciary website.  Although not as powerful as the search tools provided by electronic legal research databases such as Westlaw, LexisNexis, and fastcase, a search tool is available on the Arkansas Judiciary’s website that allows attorneys to search for electronically reported cases handed down by the Arkansas Supreme Court and the Arkansas Court of Appeals.

Electronic Legal Research Databases: Westlaw vs. Fastcase

While the electronically published decisions are available on the Arkansas Judiciary’s website, most appellate attorneys who subscribe to online legal research databases–such as Westlaw and fastcase–will begin their legal research with those tools.  Surprisingly, Westlaw does not seem to provide the page numbers for Arkansas opinions that are available in the electronic-only format.  Fastcase, however, does include the specific page numbers for those decisions.

As an appellate attorney who subscribes to Westlaw Next, I typically begin my legal research with Westlaw.  When I need to cite to a recent Arkansas decision (handed down since February of 2009) in an appellate brief, however, I also now have to find that decision using either the Arkansas Judiciary website or fastcase to find the specific page number to include as a pinpoint citation.

To make sense of all of this, if you are a Westlaw subscriber, then conduct a Westlaw search for the case of W.E. Pender & Sons, Inc. v. Lee, 2010 Ark. 52, 2010 WL 391332, a February 4, 2010 decision of the Arkansas Supreme Court (type “2010 Ark. 52” in your Westlaw search box for this result).  You should notice that Westlaw does not provide the official page numbers for that case–(Although Westlaw sometimes provides star pages, I have not found a recent decision where Westlaw provides official page numbers for that decision).

If you have access to fastcase, now conduct a search for the same case within your fastcase search box, and notice how the material included on each page is clearly labeled by page numbers along the left side of the page (“Page 1,” “Page 2,” etc.).  If you do not subscribe to fastcase, you should know that if you are a member of the Arkansas Bar Association, your membership includes a free subscription to fastcase.  Contact the Arkansas Bar Association for details.

You can also locate the page numbers for this case by finding the pdf file for W.E. Pender & Sons, Inc. on the Arkansas Judiciary website (type “2010 Ark. 52” into the search box).

As a subscriber to Westlaw, I am hopeful that it will eventually catch up with Arkansas’s new electronic opinion format and include page numbers to those opinions so that Arkansas appellate attorneys who subscribe to Westlaw can more easily include pinpoint citations in their appellate briefs.  Until then, Arkansas appellate attorneys who subscribe to Westlaw will be required to access other online tools to find the pinpoint citations for decisions issued in Arkansas’s new electronic format. 

If anyone has had a different experience using Westlaw than what I have described, I would be interested in knowing that—please e-mail me at Tasha@TaylorLawFirm.com to share your experience.  I would also be interested in knowing whether LexisNexis provides page numbers that correlate to those published in the official electronic reports, as we do not subscribe to that database.

No Streaming Video Feed of Today’s Arkansas Supreme Court Oral Argument in Texarkana

~ Tasha C. Taylor

The Arkansas Supreme Court is conducting its oral argument this morning in Texarkana, Arkansas, at the Arkansas High School Student Union.  The case to be argued is Brandon Lacy v. State (CR09-1340).  Because this case is not being argued in the Supreme Court’s courtroom (where the video cameras for live streaming online videos are installed), there will be no video feed of today’s oral argument.

Today’s oral argument in Texarkana marks only the eleventh time in modern times that the Arkansas Supreme Court has held court away from Little Rock.  Amendment 80 to the Arkansas Constitution, which was adopted in 2000, provides that the Supreme Court may meet at such times and places as designated by the Court.  For more information on today’s event, which is open to the public, view the press release issued by the Administrative Office of the Courts.

UPDATE: West Memphis 3 Case to be Argued September 30th at Arkansas Supreme Court (Live Video Stream Available)

~ Tasha C. Taylor

The Arkansas Supreme Court will hear oral arguments on September 30, 2010, in the case of Damien Wayne Echols v. State of Arkansas. 

A notice issued today by the Administrative Office of the Courts provides that although seating will be limited in the courtroom itself, there will be an overflow room set up at the Justice Building to accommodate those who wish to attend the argument in person and who are unable to get a seat in the courtroom.  The notice also reminds the public that the arguments can be viewed live online through the Court’s new video feed of oral arguments. 

To view the oral argument live from your computer, visit the Oral Argument Video page at the Arkansas Judiciary Website or click on the link to that page at the top of the sidebar to your right (under Live Feed of Oral Arguments).  

Today’s notice also provides that on September 30, 2010, the Justice Building will be open at 7:30 a.m. and seating will be on a first-come, first-served basis, with only 15 seats reserved for the media.  The following rules will be enforced for those in attendance at the September 30th oral argument:

  • Everyone who enters the building must go through security.
  • No signs, shirts, buttons, or other displays in support of or against any party in this case or related cases will be allowed (anyone wishing to hold signs or other information must do so outside, although the streets, sidewalks, and entrances must remain unobstructed).
  • No weapons of any kind will be permitted.
  • No cameras or recording devices will be permitted in the courtroom.
  • No umbrellas allowed.
  • No buttons, shirts, or signs supporting any party involved in a case will be permitted.
  • No campaign material permitted.
  • Phones must be turned off in the courtroom.

The William H. Bowen School of Law plans to stream the arguments in the Echols case in the Friday Courtroom on September 30, 2010.  The law school’s event will be open to the public.

UPDATE:  On November 4, 2010, the Arkansas Supreme Court handed down its opinion in the West Memphis 3 cases.  The Court reversed and remanded for an evidentiary hearing and reconsideration of the motion in light of the proper interpretation of the statutes. See Arkansas Supreme Court: West Memphis 3 Cases Reversed and Remanded.

8th Circuit’s Local Rules to Require Electronic Filing Beginning October 1, 2010

~ Tasha C. Taylor
United States Court of Appeals for the Eighth Circuit

The rules of appellate practice are changing for appellate attorneys who practice in front of the United States Court of Appeals for the Eighth Circuit.  Beginning October 1, 2010, the Eighth Circuit will require that all appellate briefs be filed electronically. 

The Arkansas Law Review blog has done a nice job of summarizing the rule changes–check out their summary by visiting their blog post entitled 8th Circuit Revised Local Rules Adopt a Mandatory Electronic Filing Requirement, Effective October 1st.

The Arkansas Appeals Blog Welcomes The Arkansas Appellate Cycle Blog to Arkansas’s Appellate Practice Blogosphere

~ Tasha C. Taylor
The Arkansas Appellate Cycle Blog
The Arkansas Appellate Cycle Blog

The Arkansas Appeals Blog welcomes the newest Arkansas appellate practice blog on the scene: The Arkansas Appellate Cycle.   

Authored by Jess Askew III of Williams & Anderson, The Arkansas Appellate Cycle Blog combines information about appellate practice and procedure with Mr. Askew’s more than twenty years of experience as an appellate attorney in Arkansas.  In his blog posts, Mr. Askew creatively weaves his love for cycling with his passion for appellate practice to provide a helpful frame of reference outside of the law that often helps him explain legal minutiae.  Mr. Askew describes his goal with the blog as follows:  

My goal is to have a conversation about appellate practice in the state courts of Arkansas, and the cycling perspective can help make a point or two along the way. There is also the natural metaphor between the journey of a bike trip and the life of a lawsuit, from trial through appeal. I hope the cycling perspective will make this blog more accessible and enjoyable.  

Check out Mr. Askew’s most recent blog post entitled Final Orders & The Addendum for an example of how he creatively connects the cycling process to Arkansas’s appellate cycle.  

Mr. Askew’s resume as an appellate practitioner is impressive.  He began his legal career as a law clerk to the late Richard S. Arnold, who sat as a judge and later as Chief Judge on the United States Court of Appeals for the Eighth Circuit.  Mr. Askew has been involved in numerous cases on appeal, including the recent cases of Arkansas Blue Cross v. Little Rock Cardiology Clinic, 551 F. 3d 812 (2009), dealing with federal ancillary jurisdiction in a health-care case; Arkansas Democrat-Gazette v. District Court, Ark. S. Ct. No. 08-1435 (Dec. 18, 2008), establishing the availability of a writ of certiorari from a circuit court to an inferior court under Amendment 80 to the Arkansas Constitution; and Cox v. Daniels, 374 Ark. 437 (2008), rejecting a ballot-title challenge to the Arkansas College Scholarship Lottery Amendment under Amendment 7 to the Arkansas Constitution.  Additionally, Mr. Askew was a contributor to the Arkansas Bar Association’s treatise on Handling Appeals in Arkansas.  Mr. Askew is listed in Best Lawyers in America under appeallate practice.

The experience and knowledge Mr. Askew brings to The Arkansas Appellate Cycle Blog makes it a great new resource for Arkansas appellate lawyers.  To follow the blog, click on the links provided in this post or click on the link to The Arkansas Appellate Cycle Blog in our list of Blog Links included in the sidebar to the right.

Watch Arkansas Supreme Court Oral Arguments Live Online From Your Computer This Morning

~ Tasha C. Taylor

Tune in on your computer this morning to become part of Arkansas history as the Arkansas Supreme Court launches its live video feed of oral arguments at 9:00 a.m., CST. 

Two cases are set for oral argument this morning.  Click here to view Arkansas appellate attorneys present arguments to the Arkansas Supreme Court in the following cases:

1.  Tim S. Parker v. Honorable Gerald K. Crow, Circuit Judge, from an Original Action, Case No. 10-327.  The attorney of record for the appellants is Timothy Steven Parker and the attorney for appellee is Colin R. Jorgensen from the Attorney General’s office.

2.  Baptist Health v. Bruce Murphy, M.D., from Pulaski Circuit, hireenth Division, Case No. 09-1070.  The attorneys of record for Baptist Health are Robert  Lee Henry III and Seth Ward III.  The attorney of record for Bruce Murphy, M.D. is Janet Lynn Pulliam.

 

Arkansas Supreme Court Justice Robert L. Brown Editorial: New Day in Court

~ Tasha C. Taylor

In case you missed it, Associate Justice Robert L. Brown of the Arkansas Supreme Court wrote a guest editorial in today’s Arkansas Democrat Gazette entitled New Day in Court.  In his editorial, Justice Brown discusses the Arkansas Supreme Court’s decision to embrace technology by streaming its oral arguments of appellate court cases live on the Internet.  He also shares his opinion concerning the United State Supreme Court’s refusal to embrace the same technology and his hope that it soon will:

Three years ago, I wrote an article that was critical of the United States Supreme Court for not following the leads of the state supreme courts in providing live video telecasts of oral arguments.  Sadly, though, it still has not moved in the direction of these state supreme courts and refuses to record video of its oral arguments, either for live or delayed broadcasts.  My personal opinion is that this recalcitrance on the part of the court denies the people of this country a critically important benefit.  What could be more educational than making these arguments available?

Despite this reluctance, there are hopeful signs that the court may change.  Justice Elena Kagan said in her confirmation hearings this summer that she supported live broadcasts while quipping that this would mean more hair appointments for her.  Justice Ruth Bader Ginsberg is also receptive to the idea, as may be Justices Stephen Breyer, Samuel Alito and Sonia Sotomayor.

For more information about the Court’s decision to stream its oral arguments live, see our post from yesterday, entitled Hear Ye, Hear Ye, the Arkansas Supreme Court is Now in Session . . . Live & Online!

The first oral argument to be streamed live online will take place tomorrow morning at 9:00 a.m.  Watch it live on the Arkansas Supreme Court’s website.