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Wednesday, August 13, 2014

Arkansas Supreme Court: Another sign of fracturing

Posted By on Wed, Aug 13, 2014 at 7:01 AM

click to enlarge DISSENTER: Justice Karen Baker, with Jo Hart, broke from court on civil rules change.
  • DISSENTER: Justice Karen Baker, with Jo Hart, broke from court on civil rules change.
A lawyer friend calls attention to a bit of arcane legal business posted last week on the Arkansas Supreme Court website during the court's summer recess.

The Supreme Court in one case adopted changes proposed by a task force and committee on the rules of civil procedure and it put two other rules out for comment. The rules pertain to such matters as allocation of fault in damage suits and non-party liability. Medical malpractice lawsuit rules are addressed in one of the proposals out for comment.

These technical rules can have a big impact, with great sums at issue (one of the rules, for example, sets an upper limit $25 million bond on certain appeals.)

All this requires more analysis than I'm capable of providing this morning, but my counsel notes this: It's the first occasion he can recall when the Supreme Court split on a rule change

Two justices — the frequently paired Karen Baker and Jo Hart — dissented from the rule changes. Baker, an increasing force on the court (you'll recall my sources have told of her role in stymying the planned employment of a new clerk of the court and of her taking command of enforcing a stay in the marriage equality ruling) said the bar and public hadn't been given adequate notice to consider the rules changes. A task force had issued two reports, but she said these didn't amount to adequate notice. She said rules shouldn't be considered in piecemeal fashion. Hart wrote of problems with addressing nonparty liability. She said the court had ruled in an earlier case that the General Assembly had erred in attempting to limit plaintiff recovery by assigning responsibility to non-parties. She wrote:

That opinion, however, failed to address other possible constitutional infirmities. Today, through the votes of four justices—including three who decided Johnson—these same procedures now rise, Phoenix-like, from the ashes. I, however, respectfully dissent from the promulgation of these rules. First, the rules are unclear. Second, the rules are unfair. Third, the rules may not survive further constitutional scrutiny. Fourth, there are other solutions.

Is the court drifting into substantive law-making, as my counsel would argue. Is this another sign of a deeply fractured Supreme Court?

Let me roll into this discussion a report that Justice Courtney Goodson has been visiting law offices. She's widely expected to run for chief justice in 2016, unless a law change opens the door for Chief Justice Jim Hannah to avoid retirement. He'd have to forfeit his pension to run again, a law that some believe unconstitutional.

UPDATE: I overlooked in the opinion a point I was unclear about earlier. Hart referred to four justices. There are seven on the court and two dissented. Appointed Justice Cliff Hoofman, as he's done before, did not take part in the decision.

UPDATE II: Few lawyers want to comment on the Supreme Court on the record. But I liked a comment from one lawyer, who said the Supreme Court was too ready to adopt overly broad rules for situations that need to be faced on facts. Big rules don't work with difficult facts and flexibility is sometimes needed. So when the hard cases come, the court ignores its rules or twists them into unrecognizable shapes. This lawyer commented, too, that the rules are moving beyond procedure. The comment:

The Court is too concerned with what the legislature thinks about them and showing them how sensitive the court is to the legislatures concerns. It is not their job to please the legislature.

What we don't need in Arkansas is more legislative influence on the court, though that's precisely what some of the new ruling class not only wants, but expects.

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