“Therefore, we reverse and remand for an evidentiary hearing and reconsideration of the motion in light of the proper interpretation of the statutes.”
Echols v. State, 2010 Ark. 417, at 16.
The Arkansas Supreme Court handed down opinions this morning in the West Memphis 3 cases. The Court reversed all three cases and remanded for evidentiary hearings to be held in accordance with the proper interpretation of the relevant statutes.
With 78% of the precincts reporting, the Arkansas Democrat Gazette has called the election for Position 6 on the Arkansas Supreme Court for Judge Karen Baker. Judge Baker led by a slim margin early in the night, but took a bigger lead as the night continued. The race in Pulaski County (Judge Fox’s home county) was close, with Judge Baker edging out Judge Fox 51% to 49%. In Judge Baker’s home county (Van Buren County), Judge Baker defeated Judge Fox by 73% to 27%. As of the time this post was published, Judge Fox had won or was leading in the following counties: Ashley, Perry, Polk, Prairie. and Sevier. Several other counties had not yet reported results.
Judge Karen Baker currently serves as the Court of Appeals Judge for District 2, Position 2. She was elected to that position in 2000 and re-elected in 2004 (Act 1812 of 2003 reapportioned the Court of Appeals districts and required a new election for this position in 2004). Judge Baker’s eight-year term on the Court of Appeals will end in 2012. It is expected that Governor Mike Beebe will appoint a replacement for the vacancy that will be created when Judge Baker takes office as an Associate Justice on the Arkansas Supreme Court in January, 2011.
Judge Tim Fox was elected to serve as a Pulaski County Circuit Court judge in 2002 and then re-elected to another six-year term in 2008.
The seat for which Fite is running represents Crawford and Franklin counties and is currently held by Republican Beverly Pyle. Democrat Leslee Milam Post is also a candidate for that position.
Elections will be held tomorrow, November 2, 2010.
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).
In its October 25 issue, Arkansas Business published an article detailing the amount of money spent on Supreme Court races in Arkansas. The articles provides a thorough analysis on the issue of money and judicial elections, both on the state level and from a national perspectives. Some statistics of note:
Out of the 22 states that hold competitive elections for Supreme Court, Arkansas ranked 18th in spending between 2000 and 2009.
In the election for Supreme Court Position 3, the runoff for which will be held next week, Judge Karen Baker has raised $48,898 and borrowed $250,000, and Judge Tim Fox has raised $322,249 and borrowed $100,010. These numbers are updated through September.
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.
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.
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.
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. SeeArk. 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.
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.
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.
ArkansasAppeals.com 