Public Service Academy

2021-2022 Public Service Academy

2021-2022 class of the Public Service Academy law Students

Caitlin Alana Campbell Nathan David Coulter

Chelsea N. Harvey Haley M. Heath

Sol Kim Joseph Karl Luebke

Taylor Slover Pray Gregory M. Thomas Sarah E. Cowan Bob Edwards Daniel D. Ford

Benton James Gann

Maegan C. Hodge

Logan M. Mustain

Presley Hager Turner Shelby N. Howlett

Andrew Michael Nadzam

Quinten Johnson Whiteside Marion A. Humphrey, Jr.

Ali Brady Noland

Marquisa Wince Hannah L. Hungate

William Johnson Ogles Jordan B. Hallenbeck

Adam D. Jackson

Kristin L.

Pawlik Deborah L. Hardin

Michael Kiel Kaiser

Jacob Stem Potter Martin Arroyo Jamie Beal Chris Danforth

Hayley Ferguson Ashley D. James

Elizabeth Kimble Gabriela LopezGardner Mikayla Jayroe

The Arkansas Bar Association and the University of Arkansas Clinton School of Public Service, in association with UA Little Rock Bowen School of Law and the University of Arkansas School of Law, are proud to announce the second class of the Public Service Academy. The individuals pictured above participated in the first session in Little Rock on November 12-13, 2021.

See more information at www.arkbar.com/cle--events/public-service-academy.

Thank you to our sponsors

ArkBar Civil Litigation Section

ArkBar Government Practice Section

University of Arkansas School of Law

University of Arkansas at Little Rock William H. Bowen School of Law

Rose Law Firm Steering Committee: Maggie Benson

Former Chief Justice Howard Brill

Judge Earnest Brown

Michael Goswami

Nate Looney

Speaker Matthew Shepherd

Chaired by: Michael Goswami

Nate Looney

Skye Martin, Vice Chair

Madhav Shroff, Vice Chair

With assistance by: Nikolai DiPippa

Understanding the 2017 Revisions to the Arkansas Pro Hac Vice Rule

By Andrew King and Harper L. Kiefer

This article examines the 2017 revisions to Rule XIV of the Arkansas Rules Governing Admission to the Bar, identifies important changes to Arkansas pro hac vice practice, and outlines the process for admission of nonresident attorneys to participate in a case in an Arkansas court.

Andrew King is a litigation partner at Kutak Rock LLP in Little Rock. His practice includes class action defense and representation of financial institutions.

Harper L. Kiefer is a litigation associate at Kutak Rock LLP in Little Rock. Her practice includes representation of businesses and financial institutions in civil litigation. In 2017, Arkansas became one of eleven U.S. states to specifically limit the number of times that an out-of-state attorney can be admitted pro hac vice1 to appear in a court of the state, to three cases per 12-month period.2 In addition to limiting the number of appearances, the amendment to Rule XIV of the Rules Governing Admission to the Bar imposes a new fee of $200 per pro hac vice applicant per case, unequivocally requires Arkansas local counsel, and mandates several new disclosures for a pro hac vice motion.3

In the five years since the revised Rule XIV took effect, more than 1400 nonresident attorneys have submitted the fee and initial paperwork4 to appear in roughly 900 Arkansas cases.5 While there is no reported case law regarding the new Rule XIV, the authors have noted instances of spotty compliance. This article is meant to shed light on the new rule and identify points that could cause trouble for unwary pro hac vice applicants and their local counsel.

A brief history of practice by comity in Arkansas

Until 1975, pro hac vice practice in Arkansas courts was a matter of the trial court’s discretion, framed by a loose statutory guideline.6 By adopting Rule XIV of the Rules Governing Admission to the Bar, the Arkansas Supreme Court superseded the statute and imposed a handful of requirements for admission “by comity and courtesy.”7 Under the 1975 version of Rule XIV,

the lawyer seeking pro hac vice admission must: (a) be admitted in the United States Supreme Court, the United States Court of Appeals for the circuit where the lawyer resides, or the highest appellate court of the lawyer’s state of residence; (b) be in good standing in the court in which the lawyer is admitted;8 and (c) reside outside the state of Arkansas in a state that “likewise accords similar comity and courtesy to Arkansas lawyers.”9 The rule further stated that the nonresident lawyer must sign and file a written statement submitting “to all disciplinary procedures applicable to Arkansas lawyers.”10 The 1975 rule did not mandate the association of Arkansas-licensed local counsel, but permitted the trial court to impose such a requirement.

Over the next 40 years, Rule XIV remained largely unchanged.11 Case law established that the rule required separate admission to appear in an appeal,12 held that oral motions are insufficient,13 and confirmed that association of local counsel was not mandatory.14 The most memorable decisions are those in which a pleading was struck due to an out-of-state attorney’s failure to timely seek admission pro hac vice. 15

Policy reasons for 2017 amendment to Rule XIV

The Arkansas Supreme Court has the constitutional responsibility to regulate the practice of law in Arkansas.16 Regulation of lawyers serves the public interest of ensuring professional competence and adherence to ethical standards by persons answerable to the state’s courts.17 While there is no official public commentary regarding the origins of the 2017 amendment to Rule XIV, the driving factors appear to have been enhancement of compliance with ethics and court rules and to generate revenue. In 2016, members of the Arkansas Access to Justice Commission and the Office of Professional Programs discussed the possibility of revising Rule XIV to collect fees to fund the Commission and other court programs.18 Arkansas courts were seeking to increase efficiency and access to justice in light of a growing number of self-represented litigants and a high demand for legal aid services in the state.19 The Commission and the Court took several actions between 2006 and 2018 to address these issues, including the revisions to Rule XIV.20

The Clerk of the Arkansas Supreme Court collects the new $200 fee in the same manner as annual fees collected from attorneys licensed to practice law in Arkansas.21 The fees are allocated to the Bar of Arkansas and used to fund offices and programs such as the Office of Professional Conduct, Office of Professional Programs, Arkansas Access to Justice Commission, and the Arkansas Lawyer Assistance Program. The Clerk has collected approximately $350,000 in pro hac vice fees since Rule XIV took effect.22

Major changes made in the 2017 amendment

The 2017 amendment to Rule XIV is a major departure from historical Arkansas practice. First, it appoints the Clerk of the Arkansas Supreme Court to an administrative role of collecting fees and issuing payment certificates to pro hac vice applicants.23 As a result, the public now has better information regarding the role of out-of-state attorneys in Arkansas courts. Data from the first five years of Rule XIV answers questions that were previously difficult to ascertain:24

From which States do the most pro hac vice attorneys appear in Arkansas cases? 25 Which Arkansas courts see the most pro hac vice attorneys?26

(1) Texas (19.6%) (1) Pulaski County (18.8%) (2) Missouri (10.8%) (2) Washington County (9.3%) (3) Tennessee (8.5%) (3) Crittenden County27 (8.5%) (4) District of Columbia (6.9%) (4) Benton County (7.0%) (5) Illinois (6.6%) (5) Jefferson County (4.1%) (6) Oklahoma (4.5%) (6) Sebastian County (3.3%) (7) Alabama (4.2%) (7) Union County (2.6%) (8) Florida (3.7%) (8) Lonoke County (2.5%) (9) New York (3.6%) (9) Arkansas Court of Appeals (2.4%) (10) California (3.6%) (10) Arkansas Supreme Court (2.3%) all others (27.9%) all others (39.2%)

Second, the new rule creates disclosure obligations that did not previously exist, including identification of other Arkansas cases in which the nonresident attorney has participated or sought admission, a list of jurisdictions in which the attorney is admitted, a summary of the attorney’s disciplinary history, and a supporting affidavit from local counsel.28

Third, in all cases Rule XIV now requires the association of local counsel,29 who must hold an Arkansas license30 and be a “resident practicing Arkansas attorney.”31 The word “resident” means that the local counsel must reside in Arkansas—if the lawyer has an Arkansas license but resides outside the state, the lawyer cannot serve as local counsel.32 “Practicing” means that the local counsel must be actively engaged in the practice of law for the duration of the proceeding— merely having an Arkansas license is not enough.33

Fourth, the new rule limits the number of appearances by nonresident attorneys to three cases per 12-month period,34 where previously there was no limit.35 The text makes it clear that pro hac vice admission is further limited by the number of cases in which the attorney has “participated” or “served as counsel” within 12 months before filing the motion, regardless of whether pro hac vice admission was sought or granted:

The court shall deny the pro hac vice motion of a nonresident attorney when the non-resident attorney has participated, served as counsel, or entered an appearance pro hac vice in three cases in the State of Arkansas during the twelve months prior to the filing of the motion.36

In a case applying a similar limitation on pro hac vice appearances, the Mississippi Supreme Court defined the word “appearance” under the Mississippi rule limiting out-of-state lawyers to five “appearances” within a 12-month period:37

[A] foreign attorney will be deemed to have made an appearance in a Mississippi lawsuit if the foreign attorney signs the pleadings or allows his or her name to be listed on the pleadings. A foreign attorney may further make an appearance in a Mississippi court by physically appearing at a docket call, a trial, a hearing, any proceeding in open court, at a deposition, at an arbitration or mediation proceeding, or any other proceeding in which the attorney announces that he or she represents a party to the lawsuit or is introduced to the court as a representative of the party to the lawsuit. These actions require that the foreign attorney be admitted pro hac vice and activate the prohibition of [Mississippi’s pro hac vice rule].38

The Mississippi definition of “appearance” is analogous to the Arkansas phrase “participate in proceedings in a court” for which admission pro hac vice must be obtained.39 Rule XIV(f), however, uses the broader terms “participat[ing]” and “serv[ing] as counsel” for non-appearance conduct that also counts against the threecase limitation in addition to “enter[ing] an appearance pro hac vice.” In other words, admission of pro hac vice attorneys is limited by the number of the lawyer’s participations in an Arkansas case, not the number of pro hac vice applications or appearances.

In complex litigation, it is common for multiple lawyers, including those licensed in other states, to assist with tasks such as document production, legal research, and briefing while a smaller number of attorneys actually file appearances in the case. Rule 5.5(d) of the Rules of Professional Conduct permits this practice.40 Even though such services are often performed by out-of-state lawyers who do not obtain pro hac vice admission,41 the work could amount to “participation” and count against the threecase limit if the attorney wishes to appear in court proceedings.42 Therefore attorneys seeking admission under Rule XIV should make candid disclosures43 regarding their activity in Arkansas cases during the previous two years,44 understanding that the terms “participate” and “serve as counsel” are not specifically defined by the rule or Arkansas case law.45

Possible consequences for noncompliance with Rule XIV

Since 2017, the authors have noted instances in which pro hac vice applications were submitted without careful attention to what Rule XIV requires. The lapses usually fall into one of three categories: (1) counsel appeared to be unaware of the amendment, and submitted forms under the old rule; (2) failure to disclose all cases in which the out-of-state lawyer “participated, served as counsel, or entered an appearance;”46 and (3) omissions of other information specifically required under Rule XIV(b)(1)(7). In our experience, the lapses have been quickly corrected without incident.

But if a failure to comply with Rule XIV is not resolved proactively, there are several means to address a deficient application. Under Rule XIV(g), the court may revoke the nonresident attorney’s permission to participate47 and issue a citation for contempt. The court may refer the matter to the Arkansas Supreme Court Office of Professional Conduct48 or Arkansas Supreme Court Committee on the Unauthorized Practice of Law. A grossly deficient pro hac vice application could result in the striking of pleadings filed by the nonresident attorney49 or affect the attorney’s right to legal fees.50 Under some circumstances, it could be possible to seek an injunction.51 Some of these outcomes could be appealable on an interlocutory basis.52

Conclusion

Every year, hundreds of out-of-state lawyers seek permission to practice and appear in Arkansas courts. For those of us who serve as local counsel, our responsibilities begin by paying close attention to Rule XIV of the Rules Governing Admission to the Bar.

APPENDIX: Steps for pro hac vice admission in an Arkansas court

Under the 2017 revisions to Rule XIV, a nonresident attorney (the “movant”)53 must complete the following steps to be admitted pro hac vice in an Arkansas court: (1) confirm that at least one of movant’s states of licensure would permit an Arkansas attorney to be admitted pro hac vice in a case in the state’s courts;54 (2) confirm that the movant has not participated, served as counsel, or appeared pro hac vice in three cases in the state of Arkansas during the 12 months prior to the filing of the motion;55 and (3) complete, sign, and date the Arkansas Supreme Court’s Pro Hac Vice Information and Payment Form56 and submit it to the Arkansas Supreme Court Clerk with a payment of $200.00.57 (4) Upon receipt of the payment certificate from the Arkansas Supreme Court, complete, sign, and notarize the motion for admission pro hac vice and forward the signed motion and certificate to local (sponsoring) counsel. To comply with Rule XIV, the motion must: (a) be accompanied by the Arkansas Supreme Court payment certificate; (b) be written and sworn by the movant; (c) contain the office address, telephone number, fax number, and email address of the movant; (d) identify by name and Arkansas Bar ID number a resident practicing58 Arkansas-licensed attorney with whom the movant will be associated (the “Arkansas local counsel”), and local counsel’s office address, telephone number, fax number, and email address; (e) contain a list of all cases, including case number and caption, in Arkansas courts in which the movant has participated, served as counsel, or sought leave to appear or participate within two years before filing of the motion;

(f) list the jurisdictions in which the movant is licensed, including federal courts; (g) state whether the movant is or is not an active member in good standing in each of those jurisdictions; (h) state whether the movant has or has not been the subject of disciplinary action by the disciplinary authority of any jurisdiction in which the attorney is licensed and describe any such disciplinary actions; (i) state whether the movant has or has not been denied admission, including admission pro hac vice, to the courts of any state or to any federal court; (j) state that the movant is familiar with the Arkansas Supreme Court Rules of Professional Conduct, and will at all times abide by and comply with the rules while serving as counsel in the action;59 (k) be signed by the Arkansas local counsel; (l) be accompanied by an affidavit of the Arkansas local counsel, stating that local counsel recommends that the movant be granted permission to participate in the particular proceeding.60 (5) After affirming compliance with Rule XIV, Arkansas local counsel should file the motion and submit a proposed order granting pro hac vice admission.61 The movant is admitted once the order is entered. (6) To make electronic filings in an Arkansas court (where available), the pro hac vice attorney must attend online training and pay a $100.00 fee to request an online account.62 If an e-filing login is not obtained, the pro hac vice attorney will not receive electronic notices of case filings. (7) If an e-filing account is obtained, the attorney should file a notice of appearance in the case to receive e-filing notices.63

Endnotes:

1. “Pro hac vice” is a Latin phrase meaning “for this occasion only.” 2. Rule XIV of the Rules Governing Admission to the Bar of Arkansas (hereinafter “Rule XIV”); see American Bar Association, Center for Professional Responsibility, CPR Policy Implementation Committee, Comparison of ABA Model Rule for Pro Hac Vice Admission with State Versions and Amendments Since August 2002 (Jan. 26, 2017), available at https:// www.americanbar.org/content/dam/aba/ administrative/professional_responsibility/ prohac_admin_comp.authcheckdam.pdf (last visited Jan. 4, 2022). According to the information compiled by the American Bar Association, as of January 26, 2017, the following states specifically limit the number of pro hac vice appearances by out-of-state counsel: Alabama, Arkansas, Florida, Michigan, Mississippi, Montana, Nevada, New Mexico, Ohio, Rhode Island, and Virginia. In addition, the District of Columbia, Puerto Rico, and Commonwealth of the Northern Mariana Islands restrict the number of pro hac vice appearances in their courts. Id. 3. In re Rule XIV of the Rules Governing Admission to the Bar, 2016 Ark. 354 (per curiam). 4. Arkansas Supreme Court Office of the Clerk, Supreme Court of the State of Arkansas, Pro Hac Vice Appearance Information and Payment Form (rev. Oct. 3, 2017), available at https://www.arcourts. gov/sites/default/files/formatted-files/ ProHacViceForm_0.pdf (last visited Jan. 6, 2022). 5. The authors obtained data for the period from January 1, 2017, to December 31, 2021, from the Arkansas Supreme Court Clerk, and then conducted further analysis to better understand the data. 6. See Brown v. Wood, 257 Ark. 252, 254-55, 516 S.W.2d 98, 99-100 (1974); McKenzie v. Burris, 255 Ark. 330, 334, 500 S.W.2d 357, 360 (1973). 7. Ex parte Arkansas Bar Ass’n, 258 Ark. 1027, 1027-28, 528 S.W.2d 140, 140-141 (1975). 8. The 1975 rule did not address the possibility that a lawyer is in good standing in one but not all courts of admission. 9. See Willett v. State, 334 Ark. 40, 42, 970 S.W.2d 804, 805 (1998) (denying pro hac vice admission to Arkansas resident licensed in Texas). 10. Ex parte Arkansas Bar Ass’n, 258 Ark. at 1027-28, 528 S.W.2d at 140-141; Fisher v. State, 364 Ark. 216, 220, 217 S.W.3d 117, 121 (2005). 11. The rule was amended in 1992, apparently to replace male-gendered pronouns with gender-neutral language. See Rule XIV, history; McKenzie v. State, 354 Ark. 2, 3-4, 116 S.W.3d 461, 461-62 (2003) (quoting gender-neutral version of Rule XIV). 12. McKenzie, 352 Ark. at 4, 116 S.W.3d at 462; Willett, 334 Ark. at 42-42, 970 S.W.2d at 805-06; Walker v. State, 274 Ark. 124, 124-25, 622 S.W.2d 193, 194 (1981). 13. Fisher, 364 Ark. at 219-20, 217 S.W.3d at 120-21. 14. Id. 15. E.g., Clarendon America Ins. Co. v. Hickok, 370 Ark. 41, 47, 257 S.W.3d 43, 47 (2007) (deeming notice of appeal a nullity); Preston v. Univ. of Ark. for Med. Sciences, 354 Ark. 666, 128 S.W.3d 430, 434 (2003) (striking complaint, resulting in limitations bar). But see Tobacco Superstore, Inc. v. Darrough, 362 Ark. 103, 114, 207 S.W.3d 511, 517 (2005) (distinguishing Preston and reversing trial court’s order denying pro hac vice motion and striking answer). 16. Ark. Const. Amend. 28; DeSoto Gathering Co. LLC v. Hill, 2017 Ark. 326, at 12, 531 S.W.3d 396, 404. 17. DeSoto Gathering Co., 2017 Ark. 326, at 12, 531 S.W.3d at 404; Mays v. Neal, 327 Ark. 302, 311, 938 S.W.3d 830, 835 (1997); McKenzie v. Burris, 255 Ark. 330, 344, 500 S.W.2d 357, 366 (1973). 18. Arkansas Access to Justice Commission Meeting Agenda (April 29, 2016), available at https://arkansasjustice.org/wp-content/ uploads/2017/04/2016-0429_CommissionMeeting-Packet.pdf (last visited Jan. 6, 2022). 19. See Arkansas Access to Justice Commission, Commission Accomplishments, available at https://arkansasjustice.org/ our-work/accomplishments/ (last visited Jan. 6, 2021); Arkansas Access to Justice Commission & University of Arkansas Clinton School of Public Service, Justice Measured: An Assessment of the Economic

Impact of Civil Legal Aid in Arkansas, available at https://www.arkleg.state.ar.us/ Calendars/Attachment?committee=420 &agenda=I14130&file=Handout+1++Access+to+Justice.pdf (last visited Jan. 6, 2021). 20. See Arkansas Access to Justice Commission, Commission Accomplishments, available at https://arkansasjustice. org/our-work/accomplishments/ (last visited Jan. 6, 2021); Arkansas Access to Justice Commission Meeting Agenda (April 29, 2016), available at https:// arkansasjustice.org/wp-content/ uploads/2017/04/2016-0429_CommissionMeeting-Packet.pdf (last visited Jan. 6, 2022). 21. Rule XIV(b). 22. Data from the Arkansas Supreme Court Clerk on file with the authors. 23. Rule XIV(b). 24. See supra note 5. 25. Data through December 13, 2021. 26. Data through December 31, 2021. Circuit Court admission unless otherwise stated. 27. A total of 90 attorneys have sought pro hac vice admission to Crittenden County Case No. 18CV-18-268, a lawsuit by 90 plaintiffs against 67 defendants alleging liability for involvement in the opioid industry. The authors are local counsel to two defendants in the case. 28. Rule XIV(b)(1)-(7), (c). 29. Previously, local counsel was only required if directed by the trial court. Fisher, 364 Ark. at 219-20, 217 S.W.3d at 120-21. 30. Rule XIV(b)(2). 31. Rule XIV(c). 32. Cf. Willett, 334 Ark. at 42, 970 S.W.2d at 805 (holding that state of residence is a material requirement under Rule XIV). 33. In a similar context, the Arkansas Supreme Court has denied admission by reciprocity where the applicant was not “engaged in the active practice of law” for three years prior to the application. Undem v. State Bd. of Law Examiners, 266 Ark. 683, 692, 587 S.W.2d 563, 568 (1979). 34. Rule XIV(f). 35. McKenzie, 255 Ark. at 344, 500 S.W.2d at 366. 36. Rule XIV(f) (emphasis added). 37. Miss. R. App. 46(b)(6)(ii). 38. In re Williamson, 838 So. 2d 226, 235 (Miss. 2002) (emphasis added). 39. Rule XIV(b). 40. See Ark. R. Prof’l Conduct 5.5(d). 41. Estate of Condon, 76 Cal. Rptr. 2d 922, 927-28 (Cal. Ct. App. 1998) (holding that Colorado law firm’s assistance of California local counsel in California estate litigation was not unauthorized practice of law); Fought & Co. v. Steel Engineering & Erection, Inc., 951 P.2d 487, 495-97 (Haw. 1998) (permitting award of fees to out-of-state firm that assisted local counsel and stating that a “blanket rule prohibiting the taxing of fees for the services of extrajurisdictional legal counsel who assist local counsel in the conduct of litigation among parties, who are themselves domiciled in different jurisdictions, would be an imprudent rule at best”). 42. Compare Rule XIV(b) (“participate in proceedings in a court”) with Rule XIV(f) (“participated, served as counsel, or entered an appearance pro hac vice”). Future cases could address whether such activity includes advising a client regarding the case, supervising local counsel, assisting with settlement negotiations, or assisting with discovery. 43. See Ark. R. Prof’l Conduct 3.3 (duty of candor). The duty of candor is enhanced in ex parte proceedings. Ark. R. Prof'l Conduct 3.3(d). 44. See Rule XIV(b)(3). Conceivably a lawyer’s non-appearance “participation” in a case could have been limited to an early stage of the case, such that it does not count against the three cases per 12-month limit even though the case remained pending within the 12 months. In such a circumstance, the applicant should carefully explain the nature and duration of the “participation” so that the court can make an informed decision regarding whether the requirements of Rule XIV(f) are met. 45. Cf. Brookens v. Committee on Unauthorized Practice of Law, 538 A.2d 1120, 1123-25 (D.C. 1988) (holding that attorney’s regular practice in District of Columbia violated spirit of limitation on “participating” in five actions or proceedings per calendar year and stating “that apparent technical compliance with a court rule is not dispositive of whether that rule has been violated”); In re Williamson, 838 So. 2d at 236-37 (holding that attorneys’ financial interest in lawsuits and advice to clients constituted unauthorized practice of law). 46. Rule XIV(f). 47. See Brown v. Wood, 257 Ark. 252, 516 S.W.2d 98 (1974) (affirming trial court’s striking of previous order granting enrollment to out-of-state attorney). 48. Rule XIV(g); see also Ark. R. Prof’ l Conduct 5.5(a); Mays, 327 Ark. 302, 938 S.W.2d 830 (affirming sanction against lawyer for violating Rule 5.5 by assisting paralegal in the unauthorized practice of law). 49. See supra note 15. 50. See Fought & Co., 951 P.2d at 495-97; C.D. Summer, Right of attorney admitted in one state to recover compensation for services rendered in another state where he was not admitted to the bar, 11 A.L.R.3d 907 (1967). 51. See McKenzie v. Burris, 225 Ark. 330, 335, 500 S.W.2d 357, 361 (1973). 52. Ark. R. App. – Civil 2(a)(6), (8); Ark. R. Sup. Ct. 1-2(a)(5). 53. Defined in Rule XIV(a) of the Arkansas Rules Governing Admission to the Bar as “an attorney admitted to practice law in another State, District of Columbia, or territory, which would allow an Arkansas attorney to seek permission to participate in the proceedings of any particular case in the other courts of the state of licensure” of the nonresident attorney. 54. Rule XIV(a). 55. Rule XIV(f). 56. See supra note 4. 57. Rule XIV(b). To avoid delays, local counsel can submit the signed form and fee directly. 58. See Rule XIV(c). 59. Rule XIV(b)(1)-(7). 60. Rule XIV(c). 61. Typical practice is to submit the order immediately after filing the motion with notice to all counsel who have appeared, rather than waiting for responses or objections. 62. Arkansas Judiciary, eFile Instructions, available at https://www.arcourts.gov/ administration/acap/efile/efile-instructions (last visited Jan. 10, 2022). 63. Ark. R. Civ. P. 64(a); Ark. Sup. Ct. Admin. Order 21, § 3(b) (electronic filing is mandatory where available), § 7(c)(1) (service on registered users). ■

Observations and Reflections on Litigating and Judging Under the Arkansas Constitution

By Justice Shawn Womack and Christian Harris

After serving for a decade in the Arkansas General Assembly, and eight years as a circuit judge, Justice Womack is now serving in his sixth year as an Associate Justice on the Arkansas Supreme Court.

Mr. Harris is an Assistant Attorney General of Arkansas.*

Introduction

Do you remember your constitutional-law class? That course probably focused exclusively on the United States Constitution. You no doubt covered essential questions of rights arising under the Bill of Rights and the Fourteenth Amendment and explored the structural doctrines that define the powers of the legislative, executive, and judicial branches. Given the role the federal government plays in the lives of its citizens, the course is essential for lawyers. Chances are, however, you did not take a course on Arkansas constitutional law; and if you did, it was offered only occasionally as an elective.1 This is a significant omission—after all, every Arkansan also lives under the law of the Arkansas Constitution of 1874.2 Our state’s constitution plays a vital role in our federalism system of government and has deep and broad effects on the lives of all Arkansans. This article reminds advocates that the Arkansas Constitution deserves an important place in your issue-spotting toolbox. And because jurists, no less than lawyers, must grapple with questions arising under the Arkansas Constitution, this concept is relevant to both bench and bar.

The Big Federalism Picture

“Federalism was our Nation’s own discovery[,]” as Justice Kennedy memorably explained. “The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.”3 The agreement of the founders brought into being a federal government of limited, enumerated powers. On the most basic level, this means that when a litigant challenges a Congressional enactment, the first question is whether the law is legitimately tied to one of Congress’ enumerated powers.4 The question of whether a constitutionally-recognized right invalidates the law need be reached only if the law was properly enacted in the first place.5

“This article reminds advocates that the Arkansas Constitution deserves an important place in your issuespotting toolbox.”

State legislatures, however, act under the authority of the police power—the power to define the criminal law and “provide for the public health, safety, and morals.”6 Accordingly, the relevant question for a state statute is whether any superseding legal rule—federal or state—bars the law.7 In the area of individual rights, it is well established that while a state supreme court may not interpret a right more generously than the United States Supreme Court as a matter of federal law, it is free to do so when considering the rights provisions in its own state constitution.

Two Bites at the Apple

As United States Circuit Judge Jefferey S. Sutton, a leading commentator and scholar of state constitutions, observed, discussions of landmark constitutional decisions usually “begin and end with discussions of rulings by the U.S. Supreme Court, rarely discussing, rarely indeed even mentioning, related rulings of the state supreme courts that construe similar constitutional guarantees.”8 To illustrate this in another setting, imagine the Razorbacks, down by four points to Alabama with 20 seconds left in the game. It’s 3rd and goal and they have one timeout left. They run the ball and get stopped just inches from the endzone. Rather than call the timeout and line up on 4th down for a final chance to score and win the game, they let the clock run out without attempting another play. Of course, no coach who wants to keep his or her job would forego the opportunity to try again, yet highly skilled and talented lawyers are in similar situations and elect to only run one play. They hand the ball to the federal constitutional claim that fails to score for their client and then let time expire without trying the play from the other playbook on their shelf: the state constitution.9

The Arkansas Constitution’s Declaration of Rights enumerates some rights that are textually identical, or nearly so, to their federal counterparts,10 others that differ, sometimes markedly, and some rights that appear only in the state constitution.11 Many state constitutions, including the Arkansas Constitution of 1874, contain guarantees of rights that the federal constitution does not have.12 There are important areas of law affecting Arkansans that arise only under the Arkansas Constitution.13 More formally, as noted above, in determining the rights of our citizens, we start with the United States Constitution as the floor to establish the minimum baseline of rights and we allow the states to build stairs up from there.14 So long as the states build their stairs going up to a higher level of rights for their citizens and do not attempt to create stairs going down below the federal floor, they may determine or recognize additional rights as they see fit.15

Arkansas criminal procedure is a pertinent example. In Griffin v. State16 and Sullivan v. State, 17 the Arkansas Supreme Court interpreted Arkansas’ analogue to the Fourth Amendment to provide heightened protection in the curtilage and against pretextual arrests, respectively, beyond the federal floor.18 Justice Ray Thornton’s opinion for the Court in Griffin held that a warrantless nighttime search of the curtilage violated article 2, section 15 of the Arkansas Constitution. An example of an Arkansas Supreme Court opinion showing special solicitude for the home in the area of individual rights, Griffin cited the “roughand-ready culture of the frontier,” which was “no less pronounced in the Arkansas Territory[,]” in defense of the principle that “a man’s home is his castle, and . . . even the King is prohibited from unreasonably intruding upon that home[.]”19 Later decisions occasionally exceed the federal floor,20 and other times not.21 In all events, however, judicial federalism remains a vital feature of Arkansas criminal-procedure jurisprudence.22

For other examples of Arkansas having adopted strong guarantees of personal liberties that go beyond the federal provisions we need look no further than the Declaration of Rights in Article 2. At least five sections of Article 2 of the Arkansas Constitution arguably provide heightened guarantees to Arkansans in the areas of freedom, independence, equality before the law, priority of the rights to private property and religious liberty, and protection against encroachment on these rights.23 While there are other examples, these five sections speak volumes about the priorities of our

forefathers as they wrote our constitution. Having stood the test of time for nearly 150 years without alteration or diminishment, the statements in these sections regarding personal freedoms and liberties recognized in favor of our citizens are just as relevant today as when they were written, yet they are rarely raised.

Unique Areas and Structural Issues

There are areas of constitutional law that, in Arkansas, fall only in the domain of the state constitution. Ballot initiatives and election cases are both unique areas of law governed to a great degree by state constitutional provisions, and they continue to regularly occupy space on the Court’s docket. As you prepare your case, make sure you know what the Arkansas Constitution has to say about these Arkansas-specific areas of law.

Although separation of powers is not specific to Arkansas, our state’s concept of separation of powers has its own nuances. Recently, the Arkansas Supreme Court addressed structural questions and the separation of powers. In Board of Trustees of the University of Arkansas v. Andrews, the Arkansas Supreme Court overruled two decades of recent opinions to return to prior precedent when it invalidated a legislative waiver of sovereign immunity.24 The Court held that the waiver—which allowed suits against the State under the Arkansas Minimum Wage Act—to be “repugnant to article 5, section 20 of the Arkansas Constitution.”25 Follow-on decisions have just begun to delineate the contours of Andrews. 26 And on the administrative-law front, the Arkansas Supreme Court recently declined to give deference to agency rulings when it held in Myers v. Yamato Kogyo Co. that, “where ambiguity exists” in a statute, an agency’s interpretation of the statute “will be one of [the] many tools used to provide guidance” to the Court’s interpretive task, but that “agency interpretations will be reviewed . . . de novo.”27

The Perspective from the Bench

Lawyers, of course, have the opportunity to raise constitutional issues in appropriate cases, and judges bear the responsibility of deciding them. When, and by what means, a state supreme court should depart from the federal floor is a delicate question demanding the highest degree of jurisprudential legitimacy. As then-New Hampshire Supreme Court Justice David Souter aptly put it:

It is the need of every appellate court for the participation of the bar in the process of trying to think sensibly and comprehensively about the questions that the judicial power has been established to answer. Nowhere is the need greater than in the field of State constitutional law, where we are asked so often to confront questions that have already been decided under the National Constitution. If we place too much reliance on federal precedent we will render the State rules a mere row of shadows; if we place too little, we will render State practice incoherent.28

What Justice Souter said is true when federal and state constitutions overlap, but what about when state constitutions provide unique rights? In that scenario, federal precedent is of little help. One such Arkansas case, one of the most significant Arkansas constitutional decisions in the modern era in terms of its effect on all Arkansas citizens, was Lake View School District No. 25 v. Huckabee. 29 In Lake View, the Arkansas Supreme Court held that the funding formula for public schools violated the requirement in Article 14, § 1 of the Arkansas Constitution that the State “shall ever maintain a general, suitable and efficient system of free public schools[.]”30 In its breadth of reach, perhaps no Arkansas Supreme Court case in the last several decades has had a greater impact than Lake View. This decision affected every public-school student and employee with an entirely rewritten funding formula and view of educational adequacy, and every taxpayer in the state through the redirection of billions of dollars of public funds. The Arkansas Supreme Court in Lake View interpreted a state constitutional provision to force the General Assembly, of which this article’s jurist co-author was a member at the time, to find efficiencies in managing our system of public education while prioritizing education funding within our state’s budget. The General Assembly responded with numerous measures, including a requirement for more rigorous course offerings throughout the state, significant increases in teacher salaries, massive increases in facilities funding, consolidation of smaller districts, and regular reevaluations of what constitutes adequacy. While similar policy initiatives were always in the realm of the legislature’s reach, with many being addressed in smaller ways through the years before Lake View, the impetus for radical change was driven by a renewed focus on the words of the framers in the text of our constitution. Lake View thus shows how fidelity to the text of the Arkansas Constitution can support your client’s position. The change wrought in your case might not be as widespread as in Lake View, but it just might make the difference for your client.

Conclusion

We close with an exhortation: advocates should, indeed are obligated to, include the Arkansas Constitution in their issuespotting toolbox. Perhaps this approach is often overlooked because practitioners and judges tend to rely more heavily on cases interpreting our constitution than on the text of the document itself. Doing so often causes advocates to miss important distinctions between the constitutional text and the way it was applied to the facts of a previous case versus the best application of the text to their current case, resulting in missed opportunities to make winning arguments. This is somewhat understandable given the emphasis on stare decisis. However, as advocates craft their arguments, they should remember that the judicial oath is to uphold the constitution, not the case law that may or may not have correctly interpreted it.

Endnotes:

*The views expressed in this article are not intended to take a position on any case that might come before the Arkansas Supreme Court or litigated by the Arkansas Attorney General's Office. 1. Professor and former Chief Justice Howard Brill first taught his seminar on the

Arkansas Constitution in 2009. In 2012, your non-jurist coauthor, together with Arkansas attorney John Adams, developed and taught a similar seminar at Bowen, entitled The Arkansas Constitution: History, Politics, Law & Litigation. Both have continued on an intermittent basis. 2. The current Arkansas Constitution of 1874 is the fifth, following the statehood constitution of 1836, the secession constitution of 1861, the reconstruction constitution of 1864, and the fourth Constitution of 1868. For an accessible introduction to Arkansas’ constitutions, see Robert A. Leflar, A Survey of Arkansas’ Constitutions, in Arkansas: Colony and State (Leland Duvall ed., 1970). 3. United States Term Limits v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring). 4. Thus, the question presented in United States v. Lopez: does the Commerce Clause authorize Congress to ban possession of a handgun within 1000 feet of a school? 514 U.S. 549, 551 (1995). 5. See Erwin Chemerinsky, Constitutional Law: Principles and Policies 166 (1997) (“[I]n evaluating the constitutionality of any act of Congress, there are always two questions. First, does Congress have the authority under the Constitution to legislate? Second, if so, does the law violate another constitutional provision or doctrine, such as by infringing separation of powers or interfering with individual liberties? In contrast, when evaluating the constitutionality of a state law, there is a single question: Does the legislation violate the Constitution?”). 6. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991); see also, e.g., Gonzales v. Raich, 545 U.S. 1, 42 (2005) (O’Connor, J., dissenting) (“The States’ core police powers have always included authority to define criminal law and protect the health, safety, and welfare of their citizens.”). 7. See, e.g., Chemerinsky, supra note 5, at 166 (explaining, albeit in federally-centric terms, that “[a] basic principle of American government is that Congress may act only if there is an express or implied authority to act in the Constitution; states, however, may act unless the Constitution prohibits the action”). Thus, for example, the question presented in Gallas v. Alexander was not

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whether any provision of the Arkansas Constitution allowed the Arkansas General Assembly to permit communities with dog or horse tracks to hold local referendums on electronic gambling. It was whether the Arkansas Constitution (according to the plaintiffs, nondelegation or the prohibition on special or local legislation) prevented it from doing so. 371 Ark. 106, 109, 263 S.W.3d 494, 497 (2007). 8. Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 1 (2018). Judge Sutton’s book and its sequel, Who Decides? States as Laboratories of Constitutional Experimentation (2021), are invaluable general introductions to state constitutional law. 9. The analogy, modified by the authors to adapt to Arkansas readers, comes from Judge Sutton, who posits a similarly confounding decision made by a Kentucky basketball coach. See Sutton, supra note 8, at 7. 10. Compare, e.g., U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”), with Ark. Const. art. 2 § 15 (“The right of the people of this State to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue, except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”). 11. Compare, e.g., U.S. Const. amend. V (providing, in part, that “No person . . . shall be . . . deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation”), with Ark. Const. art. 2 § 22 (“The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use,

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without just compensation therefor.”). 12. See Ark. Const. art. 14 § 1 (“Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain a general, suitable and efficient system of free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education.”). 13. Ark. Const. amend. § 20 (balanced budget); amend. § 14 (no special legislation); art. 2 § 13 (right to remedy). 14. See, e.g., Oregon v. Hass, 420 U.S. 714, 719 (1975) (explaining that while “a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards[, . . .] it may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them”). 15. It is the interpretive approach of the jurist coauthor that these rights still are limited to the text and original public meaning of those state constitutions. 16. 347 Ark. 788, 67 S.W.3d 582 (2002). 17. 348 Ark. 647, 74 S.W.3d 215 (2002). 18. See Griffin, 347 Ark. at 797-800, 67 S.W.3d at 588-90; Sullivan, 348 Ark. at 650-56, 74 S.W.3d at 217-21. For an effective analysis of judicial federalism and Griffin and Sullivan, see Robert L. Brown, Expanded Rights Through State Law: The United States Supreme Court Shows State Courts the Way, 4 J. App. Prac. & Process 499 (2002). 19. Griffin, 347 Ark. at 792, 67 S.W.3d at 585. 20. See, e.g., State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004) (holding, in the context of a “knock and talk” procedure to obtain consent to search a home, that the Arkansas Constitution requires law enforcement to apprise a homeowner that he or she may refuse consent). 21. See, e.g., Clark v. State, 374 Ark. 292, 301-04, 287 S.W.3d 567, 574-76 (2008) (Arkansas Constitution does not require complete recordation of custodial interviews); State v. Harmon, 353 Ark. 568, 113 S.W.3d 75 (2003) (declining to extend Sullivan to pretextual traffic stops); Rikard v. State, 354 Ark. 345, 123 S.W.3d 114 (2003) (declining to exceed the federal floor set by California v. Greenwood, 486 U.S. 35 (1988), and holding that one has no reasonable expectation of privacy in trash placed in a garbage can at the curb). 22. See, for example, Court of Appeals Judge Brandon Harrison’s forceful reaffirmation of Brown in Virgil v. State, 2020 Ark. App. 314, at 1, 603 S.W.3d 603, 604 (applying Brown to invalidate a consent search and “remind[ing] all who are interested that Arkansans’ right to be free from an unreasonable search of their homes is alive, well, and robust”). 23. Ark. Const. art. 2 §§ 2 (freedom and independence), 3 (equality before the law), 22 (right to private property), 24 (religious liberty), 29 (protection of unenumerated rights). 24. 2018 Ark. 12, 535 S.W.3d 616. 25. Id. at 10, 535 S.W.3d at 622. A good overview of Andrews is Robert C. Dalby, Comment, Too Plain to Be Misunderstood: Sovereign Immunity Under the Arkansas Constitution, 71 Ark. L. Rev. 761 (2019). Additionally, Mark Allison provides a valuable historical perspective on sovereign immunity under the Arkansas Constitution in Mark H. Allison, Sovereign Immunity: Holford Bonds, the Brooks-Baxter War, and the Constitutional Convention of 1874, 54 Ark. Law. 44 (Winter 2019). 26. For an early recap of post-Andrews decisions, see Haley M. Heath, Evolution of Sovereign Immunity After Andrews, 54 Ark. Law. 48 (Winter 2019). 27. 2020 Ark. 135, at 5-6, 597 S.W.3d 613, 617; see also American Honda Motor Co. v. Walther, 2020 Ark. 349, at 10, 610 S.W.3d 633, 638-39 (reaffirming Myers in the context of interpreting the term “business income” in the Arkansas Tax Procedure Act). For an effective introduction to Myers, and its impact on the larger issues of deference, see Joshua C. Ashley, Un-bowing to Deference: Where We’re At, and Might Be Going, on Judicial Deference to Agencies in Matters of Statutory and Regulatory Interpretation, 56 Ark. Law. 10, 10-12 (Spring 2021). 28. State v. Bradberry, 129 N.H. 68, 82–83, 522 A.2d 1380, 1389 (1986) (Souter, J., concurring specially) (quoted in State v. Brown, 356 Ark. 460, 470, 156 S.W.3d 722, 729 (2004)). 29. 351 Ark. 31, 91 S.W.3d 472 (2002). For an essential recap of the Lake View series of decisions, see Justice Brown’s A Judicial Retrospective: Significant Decisions By the Arkansas Supreme Court From 1991 Through 2011, 34 U. Ark. Little Rock L. Rev. 219, 227–30 (2012). 30. Lake View, 351 Ark. at 52–53, 91 S.W.3d at 494.■