SAMANTHA EDWARDS, INDIVIDUALLY AND AS A SPECIAL ADMINISTRATRIX OF THE ESTATE OF WILLIAM BOBBY WRAY EDWARDS, DECEASED, AND ARLEIGH GRAYCE EDWARDS, DECEASED; AND AS PARENT AND NEXT FRIEND FOR PEYTON HALE, A MINOR v. ERIC JAMES CORNELL THOMAS AND MCELROY TRUCK LINES, INC.
No. CV-20-492
SUPREME COURT OF ARKANSAS
June 17, 2021
2021 Ark. 140
CERTIFIED QUESTION FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS, TEXARKANA DIVISION, HONORABLE SUSAN O. HICKEY, CHIEF JUDGE. CERTIFIED QUESTION ANSWERED.
This case presents a question of law concerning the failure to comply with the Child Passenger Protection Act,
Under the facts of this case, whether
Arkansas Code Annotated section 27-34-106(a) violates the separation-of-powers doctrine underarticle 4, section 2 , andAmendment 80, section 3, of the Arkansas Constitution .
As explained below, we answer the certified question in the negative and hold that
As set out in the certifying court‘s order, the facts relevant to the certified question are as follows:
This wrongful death and survival action arose out of an August 2, 2018, two-vehicle accident that took place in Howard County, Arkansas. Defendant Eric James Cornell Thomas failed to obey a stop sign while driving a tractor trailer in the course and scope of his employment with Defendant McElroy Truck Lines, Inc. The tractor Mr. Thomas was operating struck a pickup truck driven by William Bobby Wray Edwards, in which Mr. Edwards’ daughter, Arleigh, and stepson, Peyton, were riding. Following the initial impact, the pick-up struck a tree. Arleigh was then ejected from the cab of the pick-up. Mr. Edwards and Arleigh were killed as a result of the accident.
At the time of the collision, Arleigh was two years old. Plaintiff will offer proof at trial that at the time of the collision, Arleigh weighed less than sixty pounds. Arleigh was not restrained in a child passenger safety seat or any other passenger restraint system at the time of the collision. A “Cosco Scenera Next” brand child safety seat was in the back seat of the pick-up at the time of the collision.
For purposes of this civil action, Defendant Thomas admits he was negligent and his negligence was the cause of the collision between the tractor and the pick-up. Defendant McElroy admits the same and admits it is vicariously liable for any injuries proximately caused by Mr. Thomas‘s negligence. However, both defendants allege (as a defense) fault on the part of Mr. Edwards for failing to put or maintain Arleigh in a child passenger safety seat. Defendants will offer expert biomechanical proof at trial that, had Arleigh been properly restrained, then she would not have been ejected and would have survived the accident.
Pursuant to
Ark. Code Ann. § 16-111-111 , Defendants have given notice to the Arkansas Attorney General of their challenge to the constitutionality ofArk. Code Ann. § 27-34-106(a) insofar as itwould bar or limit admission of evidence at trial of the failure to use a child passenger safety seat.
Mr. Edwards‘s wife, Samantha Edwards (plaintiff), filed suit in February 2019, individually and as special administratrix of the estate of William Bobby Wray Edwards, deceased, and Arleigh Grayce Edwards, deceased, and as parent and next friend for Peyton Hale, a minor. Defendants’ answer asserted fault on the part of Edwards for failing to put Arleigh in a child-safety seat, and plaintiff then filed a motion for partial summary judgment with respect to comparative fault and nonparty fault related to child-safety restraint nonuse. She argued that the defense was precluded as a matter of law by
We begin our analysis with an overview of the Child Passenger Protection Act (CPPA). In passing the CPPA, the General Assembly recognized “the problems, including death and serious injury, associated with unrestrained children in motor vehicles” and sought to “encourage and promote the use of child passenger safety seats.”
(a) While operating a motor vehicle on a public road, street, or highway of this state, a driver who transports a child under fifteen (15) years of age in a passenger automobile, van, or pickup truck, other than one operated for hire, shall provide for the protection of the child by properly placing, maintaining, and securing the child in a child passenger restraint system properly secured to the vehicle and meeting applicable federal motor vehicle safety standards in effect on January 1, 1995.
(b) A child who is less than six (6) years of age and who weighs less than sixty pounds (60 lbs.) shall be restrained in a child passenger safety seat properly secured to the vehicle.
(c) If a child is at least six (6) years of age or at least sixty pounds (60 lbs.) in weight, a safety belt properly secured to the vehicle shall be sufficient to meet the requirements of this section.
(a) The failure to provide or use a child passenger safety seat shall not be considered, under any circumstances, as evidence of comparative or contributory negligence, nor shall failure be admissible as evidence in the trial of any civil action with regard to negligence.
(b) Neither shall the failure to provide or use a child passenger safety seat be considered, under any circumstances, as evidence in any prosecution for negligent homicide.
(Emphasis added.)
This court recognizes the existence of a strong presumption that every statute is constitutional. Ark. Dep‘t of Hum. Servs. v. Cole, 2011 Ark. 145, at 8, 380 S.W.3d 429, 434. The burden, therefore, of rebutting a statute‘s constitutionality is on the party challenging the legislation. Id. An act should be struck down only when there is a clear incompatibility between the act and the constitution. Id.
In Mendoza v. WIS International, Inc., 2016 Ark. 157, 490 S.W.3d 298, this court distinguished section 27-34-106(a) from the seat-belt statute at issue in that case, which was held to violate the separation-of-powers doctrine. This court wrote: “The seat-belt statute states that evidence of nonuse may not be admitted, whereas section 27-34-106 provides that the failure to place children in child-restraint seats may not be admitted as evidence of comparative or contributory negligence.” Mendoza, 2016 Ark. 157, at 7, 490 S.W.3d at 302. This court further noted that the language of the statutes had been nearly identical, but in 1995 the legislature removed from the seat-belt statute the language “shall not be considered under any circumstances as evidence of comparative or contributory negligence” and “with regard to negligence.” Accordingly, Mendoza supports a conclusion that section 27-34-106(a) is a rule of substantive law.
In the present case, defendants argue that section 27-34-106(a) is a legislative attempt to deprive trial courts of their authority to control the admission of evidence. Defendants point to the plain language of the statute, which indeed speaks partly in terms of the admission of evidence. Plaintiff points out that the substantive law always has at least some effect on what evidence is admissible because the substantive law determines what facts are relevant to liability or to defenses. We acknowledge that there are both substantive and procedural aspects to the statute at issue. On the whole, however, we agree with plaintiff that section 27-34-106(a) is a legislative pronouncement that failing to use a child-safety seat is not a negligent act and therefore cannot be used to compare the injured plaintiff‘s fault to the fault of the defendant. Accordingly, we hold that section 27-34-106(a) is more substantive than procedural, and it does not constitute a violation of the separation-of-powers doctrine.
Certified question answered.
WOOD, WOMACK, and WEBB, JJ., and SPECIAL JUSTICE MARK D. WANKUM concur.
KEMP, C.J., not participating.
RHONDA K. WOOD, Justice, concurring. I join the majority opinion: the statute is constitutional because it is substantive. I would overrule Mendoza v. WIS International, Inc., for the reasons set forth in my dissenting opinion in that case, although today we reach no consensus on this reasoning.1
MARK WANKUM, Special Justice, concurring. This statute and the arguments of the parties epitomize the difficulties posed by the bright-line rule announced in Johnson as well as its limits. While I concur in the Court‘s judgment, I write separately to point out the foundational flaw in Johnson that this Court must explicitly address and correct.
The statute in question undoubtably reflects a substantive policy determination of the General Assembly regarding the consequences and implications of the use of child passenger safety seats. It reflects a legislative determination of legal liability bound to arise in tort litigation with evidentiary consequences.
Both parties argue that Johnson controls; however, the majority fails to directly engage this precedent, which creates uncertainty for lower courts and practitioners attempting to navigate inconsistencies in this Court‘s separation-of-powers decisions applying Johnson. In a departure from earlier decisions, Johnson held that “so long as a legislative provision dictates procedure, that provision need not directly conflict with our procedural rules to be unconstitutional.” Johnson v Rockwell Automation, Inc., 2009 Ark. 241, at 7, 308 S.W.3d 135, 141. A few years later, this Court went further to state, “[t]he General Assembly lacks authority to create procedural rules, and this is true even where the procedure it creates does not conflict with already existing court procedure.” Broussard v. St. Edward Mercy Health Sys., 2012 Ark. 14, at 5-6, 386 S.W.3d 385, 389.
As presented, the question becomes whether the statute speaks to substantive or procedural law. If it is substantive, then it does not run afoul of
Both parties are partially correct in their characterization of the statute. The statute indeed reflects substantive law which “creates, defines, and regulates the rights, duties, and powers of the parties.” See Summerville v. Thrower, 369 Ark. 231, 237, 253 S.W.3d 415, 419-20 (2007). As counsel for the petitioner acknowledged during oral argument, this statute effectively immunizes a party from claims of contributory negligence for noncompliance, including the injuries that flow from such
Conversely, respondent accurately acknowledges the evidentiary component of this statute. The statute prescribes (or in this case proscribes) “the steps for having a right or duty judicially enforced.” See Summerville, 369 Ark. at 237, 253 S.W.3d at 420. It announces a rule of evidentiary admissibility by declaring that evidence of noncompliance shall not be admissible as evidence to prove negligence. The evidentiary component is a necessary corollary to the substantive component of the law. Rules of evidence have been characterized by this Court as procedural law. See generally State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990). Indeed, limiting particular evidence for a particular purpose is found throughout the Rules of Evidence, see, e.g.,
It is unavoidable that there will be overlap in procedural and substantive law in statutes just as such overlap can be found in court rules and common law doctrines expounded by this Court. See Sypult, 304 Ark. at 7, 800 S.W.2d at 404 (“It is obvious that, in the interests of promoting important public policies and interests of the state, legislation enacted in this spirit will, on occasion, bring about conflict with the rules of the court.“). It is not our role to second guess a substantive policy determination of the General Assembly. See Cato v. Craighead Cty. Cir. Ct., 2009 Ark. 334, at 9, 322 S.W.3d 484, 490 (“The resolution of questions of policy is addressed in a democracy to the policy-making branch of government, the General Assembly, and it is not for the courts to make a statute say something that it clearly does not.“).
The bright-line standard of Johnson requires if there is any procedural component then a statute is unconstitutional. Johnson does not apply a balancing test or invite the Court to weigh whether a statute is more substantive than procedural with the outcome based on a tipping of the scales one way or the other on the substantive-procedural divide. For the benefit of the people we serve, the Court should be explicit when it effectively changes the standard as the majority does here.
In this case, the logic of Johnson‘s bright-line rule runs aground, for if this statute is unconstitutional because of its incidental evidentiary implications, then we are invalidating a substantive policy decision of the General Assembly.
majority‘s decision implicitly acknowledges the flaw in Johnson by ignoring it, but the majority fails to make the departure explicit.
Where a statute creates a substantive right or alters certain common law doctrines, the General Assembly‘s statute controls as the legislative power is seated with that body so long as it does not run afoul of another explicit constitutional limitation.
The dividing line between substance and procedure is not clear-cut and appears weakest when dealing with evidentiary matters. This fact was highlighted in earlier decisions discussing the medical care provider privilege,
Rules of Evidence. However, a privilege is also substantive as this Court correctly explained in Mendoza. “[A] statute granting a privilege is substantive law.” Mendoza v. WIS Int‘l, Inc., 2016 Ark. 157, at 8, 490 S.W.3d 298, 303. The Mendoza majority explained: “In
Do statutes which incidentally touch on evidentiary matters as part of substantive policy decisions run afoul of separation-of-powers under
I concur in judgment.
WOMACK and WEBB, JJ., join.
power, Johnson dictates that we must strike down any statute that incidentally touches on procedure even when the statute is otherwise substantive and is designed to further legislative policy decisions. This bright-line rule leaves no room to consider the interwoven relationship between substance and procedure. It certainly does not allow this Court to determine whether a statute‘s substantive components outweigh its procedural aspects. Though today‘s decision does just that, Johnson curiously lives on.
The Court today takes a step in the right direction by unanimously recognizing that a statute containing both substantive and procedural aspects may be predominately substantive. It also unanimously concludes that such laws, like the challenged provision here, are constitutional under separation of powers. Though these conclusions are correct, they cannot be squared away with Johnson. Yet the majority refuses to grapple with, much less abandon, Johnson and its progeny. As a result, today‘s decision risks sowing even more confusion and uncertainty about how and when this Court will strike down a statute under
I.
The judicial power was originally outlined in
preserve the right of trial by jury as declared in this Constitution.”
In determining whether a rule falls within our constitutional authority, we first consider whether it is substantive or procedural. Substantive law “creates, defines, and regulates the rights, duties, and powers of the parties.” Summerville v. Thrower, 369 Ark. 231, 237-38, 253 S.W.3d 416, 419-20 (2007) (quoting Black‘s Law Dictionary 1443 (7th ed. 1999)). In contrast, procedural law is defined as “[t]he rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.” Id. (quoting Black‘s Law Dictionary 1221 (7th ed. 1999)). Procedural rules regulate “the judicial process for enforcing rights and duties recognized by substantive law and for justly administering remedy and redress for disregard or infraction of them.” Casement v. State, 318 Ark. 225, 229, 884 S.W.2d 593, 595 (1994) (quoting Sibbach v. Wilson, 213 U.S. 1, 14 (1924)). The rules “are not an end in themselves, but provide a means to vindicate substantive rights and remedy or penalize substantive wrongs.” 3A Sutherland Statutory Construction § 67:1 (8th ed. 2020).
The distinction between procedural and substantive law is often blurry. Indeed,
outcomes,’ and may in some instances become so bound up with the [legislatively created] right or remedy that it defines the scope of that substantive right or remedy.” Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393, 419-20 (2010) (Stevens, J., concurring in part and concurring in the judgment) (quoting S.A. Healy Co. v. Milwaukee Metro. Sewerage Dist., 60 F.3d 305, 310 (7th Cir. 1995) (Posner, J.)). “Such laws, for example, may be seemingly procedural rules that make it significantly more difficult to bring or to prove a claim, thus serving to limit the scope of that claim.” Id. To strike “those portions of substantive state law that operate as procedural devices . . . could in many instances limit the ways that [the legislature] may define [statutory] rights and remedies.” Id.
The challenged provision in this case highlights the hazy distinction between procedure and substance. Recognizing “the problems, including death and serious injury, associated with unrestrained children in motor vehicles,” the General Assembly passed the Child Passenger Protection Act (“CPPA“) in 1983 “to encourage and promote the use of child passenger safety seats.”
By dictating admissibility of evidence for a particular purpose, the statute “prescribe[s] the steps for having a right or duty judicially enforced.” Summerville, 369 Ark. at 237-38, 253 S.W.3d at 419-20. At the same time, the evidence at issue was created and authorized solely by legislative design to define the boundaries of the causes of action and the defenses thereto for issues addressed by the CPPA. As part of that legislative design, the General Assembly expressed that the evidence should not be admitted for purposes of proving the statutory defense of comparative or contributory negligence or to show negligence in any civil trial. Section 27-34-106(b) also prohibits use of the evidence in any prosecution for negligent homicide. In other words, the legislature indicated that violation of the CPPA cannot provide a basis for holding an individual liable for any form of negligence. In sum, though section 27-34-106(a) is cast in evidentiary terms, it is more akin to a substantive policy choice addressing causes of actions and defenses.
II.
Today‘s decision errs by not explicitly abandoning Johnson and its progeny even though the decision today directly conflicts with that precedent. First, the bright-line rule in Johnson does not allow consideration of the nuances in the procedural-substantive dichotomy. Even if an otherwise substantive statute incidentally touches on procedure, it must be stricken down under Johnson. Second, Johnson‘s
relevancy of evidence despite the authority granted by
A.
The majority pays lip service to Johnson by citing the case for the proposition that “rules regarding pleading, practice, and procedure are the responsibility of this court.” But Johnson went further than that: “[S]o long as a legislative provision dictates procedure, that provision need not directly conflict with our procedural rules to be unconstitutional. This is because rules regarding pleading, practice, and procedure are solely the responsibility of this court.” Johnson, 2009 Ark. 241, at 8, 308 S.W.3d at 141 (emphasis added). In other words, Johnson held that our procedural rulemaking power is exclusive and it created out of whole cloth a bright-line rule that questions only “whether the challenged legislation dictates procedure.” Id. Building on Johnson, this Court later held that the legislature “lacks authority to create procedural rules, and this is true even where the procedure it creates does not conflict with already existing court procedure.” Broussard v. St. Edward Mercy Health Sys., 2012 Ark. 14, at 5-6, 386 S.W.3d 385, 389.
The bright-line rule goes beyond the authority granted to this Court under the constitution. Our constitution creates a mandatory duty for us to act when it says “[t]he Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts; provided these rules shall not abridge, enlarge, or modify any substantive right and shall preserve the right of a trial by jury as declared in this Constitution.”
prohibits the General Assembly from acting concurrently on procedural issues or acting in areas where this Court grants it authority to do so within our rules. See id.
Application of the rule may violate the “substantive right” limitation imposed on this Court. If incidental impingements on procedural rules are sufficient to render an otherwise substantive law inoperative, the very objective of the “substantive rights” limitation would be imperiled. Consider this case. Had this Court applied Johnson‘s standard, the substantive statute would have necessarily been stricken down as unconstitutional solely based on its evidentiary component. Such an outcome would “abridge, enlarge or modify a substantive right” in clear violation of the constitution.
Moreover, this rule has been unevenly applied through the years, beginning with our first case interpreting Johnson. A month after handing Johnson down, we cited the bright-line rule in Cato v. Craighead County Circuit Court, 2009 Ark. 334, 322 S.W.3d 484, but did not apply it. In Cato, we considered whether a statute exempting service members from civil process during military activities was valid under
Two years later, we similarly upheld the rape-shield statute based on legislative purpose. See Nelson v. State, 2011 Ark. 429, at 6-8, 384 S.W.3d 534, 538. The statute
created “a precise procedure, including hearings, and how evidence must be admitted at trial.” Id. at 11, 384 S.W.3d at 540 (Hannah, C.J., concurring). Nevertheless, we upheld the provision because it “achieves its purpose without supplanting this court‘s rulemaking power and ability to control the admissibility of evidence in the courts.” Id. at 8, 384 S.W.3d at 538. We also noted that the statute did not impose a total bar on admissibility and vested wide discretion in the trial court. Id.
Given Johnson‘s error and inconsistent application, we should abandon the bright-line rule at this time. Overruling Johnson‘s bright-line rule should take us directly back to our prior standard described in State v. Sypult, 304 Ark. 5, 7-8, 800 S.W.2d 402, 404 (1990): “[W]e will defer to the General Assembly, when conflicts arise, only to the extent that the conflicting court rule‘s primary purpose and effectiveness are not compromised; otherwise, our rules remain supreme.” Absent a direct conflict with our rules, we should decline to strike down a legislative act under
B.
Johnson also held that rules of evidence are exclusively procedural and fall within this Court‘s domain; any statutory rules regarding the admissibility of evidence are unconstitutional. Johnson, 2009 Ark. 241, at 11, 308 S.W.3d at 142. To be sure, rules of evidence have been characterized by this court as procedural law. See Sypult, 304 Ark. at 7, 800 S.W.2d at 404. Yet Johnson‘s categorical approach fails to acknowledge the distinction between procedural rules of evidence and evidentiary rules of substantive law. This sweeping approach, like the bright-line rule above, fails to take into account underlying substantive policy determinations made by the General Assembly.
We have implicitly recognized that such a distinction exists in the context of privileges. A testimonial privilege is undoubtedly a procedural rule of evidence that “clearly limits the evidence that may be introduced.” Johnson, 2009 Ark. 241, at 11, 308 S.W.3d at 142. Indeed, privileges are explicitly addressed within our Rules of Procedure. At the same time, we have expressly stated that “a statute granting a privilege is substantive law.” Mendoza v. WIS International, Inc., 2016 Ark. 157, at 8-9, 490 S.W.3d 298, 303 (citing Cato, 2009 Ark. 334, at 9, 322 S.W.3d at 489). Similarly, our decision upholding the rape-shield provision in Nelson recognized that some evidentiary statutes embrace substantive policy and do not fall under the same umbrella as procedural rules of evidence. See Nelson, 2011 Ark. 429, at 6-8, 384 S.W.3d at 538.
We should no longer mechanically characterize any statute that touches on an evidentiary matter or dictates the admissibility of evidence as procedural law. This is particularly true where, as here, the statute has been explicitly authorized by this Court through our Rules of Evidence.
Five years ago, this Court erroneously rejected this natural reading of
relevancy of evidence. Id. (citing Johnson, 2009 Ark. 241, at 11, 308 S.W.3d at 142). This holding flouted our rules of interpretation by rendering the language “except as otherwise provided by statute” meaningless. We should correct that error today as well.
To avoid
Mendoza further ignored precedent recognizing the General Assembly‘s right to enact statutes regarding the relevancy and admissibility of evidence under identical language in then-controlling
Ignoring
II.
Any respect due Johnson and its progeny under the doctrine of stare decisis does not warrant perpetuating the error within those decision. Stare decisis is an important legal principle that should not be taken lightly. It assures our citizens that there will be some consistency in how the courts interpret our laws and it provides stability in the litigation process. See Brickhouse v. Hill, 167 Ark. 513, 523, 268 S.W. 865, 868 (1925). Overturning precedent should not be done cavalierly or without considerable thought. See Zinger v. Terrell, 336 Ark. 423, 430, 985 S.W.2d 737, 741 (1999). But stare decisis “isn‘t supposed to be the art of methodically ignoring what everyone knows to be true.” Ramos v. Louisiana, 140 S. Ct. 1390, 1405 (2020). It is not “an inexorable command,” or “a mechanical formula of adherence to the latest decision.” Payne v. Tennessee, 501 U.S. 808, 828–29 (1991). The doctrine “is at its weakest when we interpret the Constitution because a mistaken judicial interpretation of that supreme law is often practically impossible to correct through other means.” Ramos, 140 S. Ct. at 1405 (internal quotations omitted). Indeed, there is nothing untoward about reconsidering a prior decision that perpetuates constitutional error across a wide array of cases. See Brickhouse, 167 Ark. at 522, 268 S.W. at 868 (our “strong respect for precedent . . . is a reasonable respect which balks at the perpetuation of error“).
III.
Though today‘s decision reaches the right conclusion, it will undoubtedly leave the parties puzzled by its reasoning. The majority‘s decision does nothing more than perpetuate the confusion and uncertainty that resulted from Johnson. This is not fair to the parties, the courts, and the people of Arkansas who rely on our decisions when interpreting state law under
Special Justice MARK WANKUM joins.
BARBARA W. WEBB, Justice, concurring in part and dissenting in part. I concur that
Amendment 80 is a constitutional amendment voted on by the people directly, and is not a creature of the legislative branch. Amendment 80 clearly states that:
The Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution.
”Stare decisis” is the idea that today‘s court should stand by yesterday‘s decisions and a “foundation stone of the rule of law.” Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455 (2015) (quoting Michigan v. Bay Mills Indian Cmty., 572 U.S. 782 (2014)). This doctrine “permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact.” Vasquez v. Hillery, 474 U.S. 254, 265–66 (1986). Writing in Federalist 78, Alexander Hamilton emphasized
Overruling precedent is never a small matter. Ramos, 140 S. Ct. at 1411. Application of that doctrine, although “not an inexorable command,” is the “preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Id. (citing Payne v. Tennessee, 501 U.S. 808, 827–28 (1991)). It also reduces incentives for challenging settled precedents, saving parties and courts the expense of endless re-litigation. Kimble, 576 U.S. at 455. Upon belief that precedent was made in error, the court must delicately weigh the injustice that arose from the error with the potential injury that will result from the correction. People v. Hobson, 384 N.Y.S.2d 419, 488 (N.Y. 1976). Upon the scales of justice must lie the recognition that consistent development of legal principles fosters the actual and perceived integrity of the judicial process. This is because, to be free, is to live under a government by law. Rex v. Shipley, 21 St. Tr. 847 (K.B. 1784) (Lord Mansfield presiding). “Miserable is the condition of individuals and in danger is the condition of the state if there is no certain law, or, which is the same thing, no certain administration of the law[.]” Id. Under the doctrine of stare decisis, we are bound to follow prior case law. Chamberlin v. State Farm Mut. Auto. Ins. Co., 343 Ark. 392, 397–98, 36 S.W.3d 281, 284 (2001).
However, as valuable as it is to the rule of law, stare decisis does not require stagnation. Shannon v. Wilson, 329 Ark. 143, 161, 947 S.W.2d 349, 358 (1997). Precedent only governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable. Chamberlin, 343 Ark. at 397–98, 36 S.W.3d at 284. The test for overruling precedent is whether adherence to the rule would result in great injury or injustice. Id. To overrule precedent, the court demands a special justification or strong grounds or “otherwise the doctrine [of stare decisis] would be no doctrine at all.” Ramos, 140 S. Ct. at 1414 (citing Hubbard v. United States, 514 U.S. 695, 716 (1995)).
It is an important feature of stare decisis that the doctrine is not as strict “when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.” Id. at 1413 (quoting Agostini v. Felton, 521 U.S. 203, 235 (1997)). The court “must balance the importance of having constitutional questions decided against the importance of having them decided right.” Id. (quoting Citizens United v. Fed. Election Comm‘n, 558 U.S. 310, 378 (2010) (Roberts, C.J., concurring) (emphasis in original)). The highest value of stare decisis—respecting past decisions that are
This leads to the dissonance with this case and our prior holdings in Johnson and Mendoza. Not all rules of evidence are exclusively ones of pleading, practice, or procedure. Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 406–07 (2010).
Amendment 80 contains a meaningful portion of the same language as the Federal Rules Enabling Act: “these rules shall not abridge, enlarge, or modify any substantive right.” Compare
The test is not whether the rule affects a litigant‘s substantive rights; most procedural rules do. Id. (citing Miss. Publ‘g Corp. v. Murphree, 326 U.S. 438, 445 (1946)). What matters is what the rule itself regulates: If it governs only “the manner and the means” by which the litigants’ rights are “enforced,” it is valid; if it alters “the rules of decision by which [the] court will adjudicate [those] rights,” it is not. Id. While it is true that some rules of evidence may dictate the manner in which evidence is presented, they are not wholly procedural. Instead, evidentiary rules may detail what information can be used to prove a doctrine of substantive law. Stated differently, rules of evidence are rules related to not just procedure but also substantive doctrines of law. We erred when we previously held that all rules of evidence are ones of pleading, practice, or procedure and beyond the reach of the legislature. With this in mind, we should focus on whether to overturn past decisions that conflict with the majority decision in this case.
I look to four factors to determine if there has been a great injustice or injury which would justify abrogating Johnson and Mendoza. I first look to whether the decisions were erroneously and egregiously decided and find that they were so decided as detailed above. All rules of evidence are not ones of pleading, practice, or procedure and can blend harmoniously with substantive law promulgated by the legislature. The erroneous decisions are egregious because they offend the Arkansas Constitution. Not only did this court abrogate the will of the people as expressed through their representatives, but we also made it nearly impossible for correction to occur absent another constitutional amendment or this court‘s intervention—and this court has a duty to intervene on behalf of the Constitution.
Next, I look for any significant negative jurisprudential or real-world consequences caused by the existing decisions, such as workability, consistency, coherence with other decisions, and any other significant factors. The focus of this inquiry is whether
Additionally, under the current case law, every statute that touches the admissibility of evidence will have to be challenged to determine its constitutionality. The battle will wage into infinity as every statute limiting evidence is procedural in process and substantive in effect. This will result in increased litigation, delayed conclusions of an already lengthy trial for parties who have likely suffered a significant loss, and increased legal fees for the parties. This is an absurd result, as it is not judicially economical, puts an undue burden on our judiciary, runs counter to the spirit of Amendment 80, and violates our own evidentiary Rule 402. The goal of any court should be to create law that lends itself to an efficient use of the adjudicatory process, not conflating it at the benefit of the bar and the expense of the public.
Then, I look to whether overruling these precedents would unduly upset reliance interests and find little reliance interests that would be affected. The statutes in Johnson and Mendoza are an issue only during a trial. To the extent parties have relied on the holdings in Johnson and Mendoza, today‘s opinion should be made prospective in future cases. In fact, I find that carving out an exception or otherwise failing to overrule Johnson and Mendoza would take an already settled, but wrongly decided rule of law, and unsettle it—so that it is now both wrongly decided and unsettled. Moreover, because this is a constitutional issue, any reliance interests must yield to the importance of having our Amendment 80 case law decided rightly. Correcting these constitutional errors would create case law that will foster reliance interest and as parties and their attorneys will be able to approach each statute as constitutional and preclude additional litigation to determine the constitutionality of the statute.
Finally, I look to the age of the precedents that I am considering overruling. Both Johnson and Mendoza are relatively new decisions as Amendment 80 is also a relatively new constitutional provision. There is great hesitation in overruling judicially “young” precedents because, at the root of the principle of stare decisis, is the humble assumption that no particular court possesses wisdom that surpasses that of its predecessors. People v. Hobson, 384 N.Y.S.2d 419, 488 (N.Y. 1976). However, the paramount concern is that any erroneous interpretation of Amendment 80 will be exceptionally difficult for the populace to correct as passing amendments is a much greater undertaking than passing legislation. We also are duty bound to correct an erroneous interpretation which has not only deprived the citizenry who passed Amendment 80 at the polls of its constitutional force but has also hamstrung their elected legislators from regulating substantive doctrines of law.
For these reasons, I concur in part and dissent in part.
Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks; and Rainwater, Holt & Sexton, P.A., by: Denise Reid Hoggard and Jeremy McNabb, for appellant.
Wright, Lindsey & Jennings LLP, by: Gregory T. Jones and Kristen S. Moyers; and Dover Dixon Horne PLLC, by: Todd Wooten, for appellees.