Arkansas Connection Prompts U.S. Supreme Court Justice Thomas to Make Rare Public Appearance

~ Tasha C. Taylor

Arkansas Appeals thought readers would find this Arkansas connection interesting.

Justice Clarence Thomas, who spoke at the UALR Bowen School of Law in January of 2007 (click on current issue of the Hearsay for the article pertaining to Justice Thomas’s Arkansas appearance), made another rare public appearance yesterday, on March 16, 2009, due to a request by an Arkansas judge’s daughter:

Thomas told the crowd he declines most invitations, but was persuaded to accept the one from William and Lee student Robin Wright. He had met her as a young child, he said, and had known her mother, U.S. District Judge Susan Webber Wright of Arkansas.

See a full story of Justice Thomas’s March 16, 2009 speech here.

Judge Susan Webber Wright presently serves on the United States District Court for the Eastern District of Arkansas.

Comment Period for Proposed Civil Practice Rule Changes Ends May 15, 2009

~ Tasha C. Taylor

ark-judiciarySee the Arkansas Supreme Court’s March 5, 2009 Per Curiam outlining the proposed rule changes that have been recommended by the Arkansas Supreme Court Committee on Civil Practice.

According to the Per Curiam, comments on the suggested rule changes should be directed, in writing, to Clerk Les Steen prior to May 15, 2009.

Note the proposed changes to rules affecting appellate practice:

  • Arkansas Supreme Court Rule 4-8. Procedure for no-merit briefs, pro se points, and responses in involuntary-commitment cases (the proposed rule change outlines this procedure).
  • Arkansas Supreme Court Rule 6-7. Taxation of Costs (the proposed rule change increases the filing fee awarded to an appellant who obtains a reversal to reflect the actual cost of the filing fee).
  • Arkansas Rules of Appellate Procedure–Civil, Rule 6. Record on Appeal (the proposed rule change affects the time frame for appellee to designate additional record materials; harmonizes rule with Rule of Appellate Procedure-Civil 4(a)). 

Arkansas General Assembly Revives Anastasoff Controversy–Pondering the Effect of Act 162

~ Tasha C. Taylor ~ 2 Comments

273659781_159The ability of courts to hand down “unpublished decisions” has long been the subject of much debate in Arkansas, as well as in other jurisdictions.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).

The Arkansas 87th General Assembly recently passed SB33 (by Senator R. Thompson and Representative Harrelson), now Act 162, which might very well put an end to this debate in Arkansas.

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.

State v. Lester, 343 Ark. 662, 668, 38 S.W.3d 313, 316 (2001).

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.

Arkansas Supreme Court Ignores Argument in Appeal of Lower Court Decision Where Only One Basis for the Lower Court Ruling Was Properly Challenged on Appeal

~ Tasha C. Taylor

In its January 15, 2009 decision in Emilia Duke v. Shinpaugh (Case No. 08-311), the Arkansas Supreme Court ruled that “where the circuit court based its decision on two independent grounds and appellant challenges only one on appeal, the appellate court will affirm without addressing either.”

It was clear in that case that the circuit court judge had based its decision on two clearly independent grounds.  The Arkansas Supreme Court clarified that  its standard of review on appeal from a bench trial is whether the lower court’s findings were clearly erroneous or clearly against the preponderance of the evidence.  Under that standard of review, the Arkansas Supreme Court determined that it was precluded from addressing the appellant’s assertions of error because the appellant had failed to challenge both independent grounds for the circuit court’s decision.

Appellate Practice Tip–Perfecting Your Citations

~ Tasha C. Taylor ~ 1 Comment

This week’s tip concerning how to perfect your citations is one way to make your brief stand out among the hundreds of pages of appellate briefs read by Appellate Court Judges and Law Clerks each week.  Your readers will appreciate your efforts to make your citations comply with the same guide they use in drafting the opinions that you read.

The House Style Guide, which is prepared and provided free online by the Reporter of Decisions–the Court’s legal editor–is an excellent resource that provides the following categories of citations, which are frequently used by Appellate Attorneys:

Arkansas Citations
Federal Citations
Miscellaneous Citations
State Reporter Citations

If you ever plan on drafting an appellate court brief, be sure to bookmark this site that is sure to help you perfect your cites.

Appellate Court Rule Changes for Criminal Appeals–Effective October 1, 2008

~ Tasha C. Taylor ~ Leave a comment

The Arkansas Supreme Court handed down a per curiam decision today (September 18, 2008), that will result in changes to the following three rules, effective October 1, 2008: (1) Rule 4-3 of the Rules of the Supreme Court and Court of Appeals; (2) Rule 4 of the Arkansas Rules of Appellate Procedure-Criminal; and (3) Rule 24.3 of the Rules of Criminal Procedure.

Changes to Ark. Sup. Ct.R. 4-3–Briefs in Criminal Cases: The addition of subsection (f) provides that briefs containing “photographs, DVDs, or any other visual medium” that is alleged by either party to be child pornography must be sealed.  It is the responsibility of counsel on appeal to file a motion to seal the brief that must accompany the brief when it is filed with the Clerk of the Court.  Subsection (f) also prohibits anyone other than the court, its personnel, and the attorneys of record from receiving a copy of the brief that contains the materials to be sealed.

* The addition of subsection (f) resulted in the renumbering of the subsequent subsections–this means that the Court’s review of errors in death or life imprisonment cases will now be referred to as a Rule 4-3(i) review rather than a 4-3(h) review.

Changes to Ark. R. App. P.–Crim. R. 4–Time for filing record, contents of record: Three subsections have been added to this rule–(b), (c), (f).  Subsections (b) and (c) provide a method for obtaining an extension of time to file a record in a criminal appeal.  This method now allows a circuit court to grant a motion by a Defendant/Appellant who requests an extension to file the record where both sides consent to the extension.  Pursuant to subsection (f), the same extension is not so easily obtained where the state is the Appellant, as subsection (f) provides that subsections (b) and (c) don’t apply to an appeal by the state.

Change to Ark. R. Crim. P. 24.3–Pleading by the Defendant: The only change here is the addition of a new Conditional Plea Form for use with Rule 24.3(b).

Arkansas Supreme Court Week in Review–Court Kicks Off 2008-09 Term; Honors 21 Years of Service by the Honorable Justice Tom Glaze

~ Tasha C. Taylor ~ 1 Comment

The 2008-09 term of the Arkansas Supreme Court is officially underway.  The short week started with the appointment by Governor Beebe of the new Supreme Court Justice Elana Wills on Tuesday to fill the vacancy left by the retirement of Justice Tom Glaze:

The September 4, 2008 Syllabus of the Arkansas Supreme Court reflects decisions on numerous motions and petitions and lists the first six cases submitted to the Court for the 2008-09 term.  Additionally, the Arkansas Supreme Court handed down a signed per curiam order honoring Justice Tom Glaze’s twenty-one years of service to the Arkansas Supreme Court.

Welcome to ArkansasAppeals.com

~ Tasha C. Taylor

Welcome to ArkansasAppeals.com. Our goal is to provide useful information and helpful insight into cases and developments affecting Appellate Practice in Arkansas. Our postings will focus on significant developments in Arkansas law and how those developments affect Appellate Practice. These entries will cover a broad range of substantive law topics, as well as the Rules of Civil and Appellate Procedure.