The opinion
Digitally signed
by Susan
Williams
Reason: I attest
to the accuracy
and integrity of
this document
Cite as 2021 Ark. 140
Date:
2023.06.20
SUPREME COURT OF ARKANSAS
15:03:15 -05'00' No. CV-20-492
Opinion Delivered June 17, 2021
SAMANTHA EDWARDS,
INDIVIDUALLY AND AS A SPECIAL
ADMINISTRATRIX OF THE ESTATE CERTIFIED QUESTION FROM THE
OF WILLIAM BOBBY WRAY UNITED STATES DISTRICT
EDWARDS, DECEASED, AND COURT FOR THE WESTERN
ARLEIGH GRAYCE EDWARDS, DISTRICT OF ARKANSAS,
DECEASED; AND AS PARENT AND TEXARKANA DIVISION
NEXT FRIEND FOR PEYTON HALE,
A MINOR
PETITIONER/PLAINTIFF HONORABLE SUSAN O. HICKEY,
CHIEF JUDGE
V.
ERIC JAMES CORNELL THOMAS CERTIFIED QUESTION
AND MCELROY TRUCK LINES, ANSWERED.
INC.
RESPONDENTS/DEFENDANTS
ROBIN F. WYNNE, Associate Justice
This case presents a question of law concerning the failure to comply with the Child
Passenger Protection Act, Ark. Code Ann. §§ 27-34-101 et seq. (Repl. 2014), which was
certified to this court by the United States District Court for the Western District of
Arkansas in accordance with Arkansas Supreme Court Rule 6-8. The certified question is
as follows:
Under the facts of this case, whether Arkansas Code Annotated section 27-
34-106(a) violates the separation-of-powers doctrine under article 4, section
2, and Amendment 80, section 3, of the Arkansas Constitution.
As explained below, we answer the certified question in the negative and hold that Arkansas
Code Annotated section 27-34-106(a) does not violate the separation-of-powers doctrine.
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 of Ark.
Code Ann. § 27-34-106(a) insofar as it would 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
2
comparative fault and nonparty fault related to child-safety restraint nonuse. She argued that
the defense was precluded as a matter of law by Arkansas Code Annotated section 27-34-
106(a) and Potts v. Benjamin, 882 F.2d 1320 (8th Cir. 1989). In response, defendants argued
that the statute is an unconstitutional encroachment on the judiciary’s exclusive power to
make rules of pleading, practice, and procedure.
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.” Ark. Code Ann. § 27-
34-102. With certain exceptions not applicable here, see Ark. Code Ann. § 27-34-105, the
CPPA imposes the following requirements on drivers of motor vehicles with regard to child
passengers:
(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.
3
Ark. Code Ann. § 27-34-104. Any person who violates the CPPA is subject to a fine of not
less than twenty-five dollars nor more than one hundred dollars. Ark. Code Ann. § 27-34-
103. The provision at issue here, section 27-34-106, provides:
(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.
Regarding separation of powers, our state constitution provides that “[n]o person or
collection of persons, being of one of these departments, shall exercise any power belonging
to either of the others, except in the instances hereinafter expressly directed or permitted.”
Ark. Const. art. 4, § 2. Furthermore, amendment 80, section 3 to the Arkansas Constitution
instructs that the Arkansas Supreme Court “shall prescribe the rules of pleading, practice
and procedure for all courts.” Accordingly, rules regarding pleading, practice, and procedure
are the responsibility of this court. See Johnson v. Rockwell Automation, Inc., 2009 Ark. 241,
at 8, 308 S.W.3d 135, 141. The legislative branch of the state government has the power
4
and responsibility to proclaim the law through statutory enactments. Dep’t of Hum. Servs. v.
Howard, 367 Ark. 55, 66, 238 S.W.3d 1, 8 (2006). This court has stated that substantive law
is “[t]he part of the law that creates, defines, and regulates the rights, duties, and powers of
parties,” while 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.” Summerville v. Thrower, 369 Ark. 231, 237, 253 S.W.3d 415, 419–20
(2007) (quoting Black’s Law Dictionary 1443, 1221 (7th ed. 1999)). Here, plaintiff argues that
Arkansas Code Annotated section 27-34-106(a) is a substantive rule of law, while defendants
contend that it is procedural and therefore unconstitutional in that it violates the separation-
of-powers doctrine.
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.
5
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.
WOMACK and WEBB, JJ., and SPECIAL JUSTICE MARK D. WANKUM concur in part
and dissent in part.
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,
6
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.
1
2016 Ark. 157, at 19, 490 S.W.3d 298, 309.
7
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 Amendment 80; however,
if it is procedural in any respect, then it is an unconstitutional invasion of this Court’s authority
over “rules of pleading, practice and procedure.” Departing from the bright-line rule of
Johnson, the majority now upholds the statute by stating that it “is more substantive than
procedural.” The majority acknowledges “that there are both substantive and procedural
aspects to the statute at issue” but provides no standard to determine how much is too much
procedure before it runs afoul of separation-of-powers. This conclusion cannot be squared
with Johnson or Broussard without the practical effect of abandoning those precedents—
something that neither party requested but which necessarily follows the holding announced
today.
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 negligence. The policy merits are not for this
Court to decide, but practical immunity is a matter of substantive law and public policy.
Ray & Sons Masonry Contrs., Inc. v. U.S. Fid. & Guar. Co., 353 Ark. 201, 219, 114 S.W.3d
189, 200 (2003) (characterizing a statute of repose as a “substantive grant of immunity
derived from a legislative balance of economic considerations affecting the general public
and the respective rights of potential plaintiffs and defendants”).
8
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., Ark. R. Evid. 404(b), 407, 409, 502(d), 503(d),
504(d), 606(b), 803, 804, as well as statutes with evidentiary components sprinkled
throughout the Arkansas Code.
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.”).
9
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. Amendment 80 explicitly confirmed
our previously inherent and implied authority to promulgate rules of pleading, practice, and
procedure, but it did not expressly or by implication forbid the exercise of incidental
authority by the General Assembly to enact evidentiary statutes where there is no conflict
and where such statutes are necessary to achieve the substantive policy decisions of the
legislature. Here, Johnson went too far in its bright-line approach because by invalidating a
statute with any evidentiary component, this Court abrogates substantive policy
determinations of the General Assembly, which Amendment 80, § 3 explicitly forbids. This
flaw was evident when we invalidated the medical cost provision of the Civil Justice Reform
Act, Ark. Code Ann. § 16-55-212(b), in Johnson as well as the same specialty requirement
of Ark. Code Ann. § 16-114-206(a)(1) & (2) in Broussard. In striking provisions with
incidental evidentiary implications necessary to achieve the substantive purpose of the
statutes, we invalidated substantive public policy decisions of the General Assembly. The
10
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. Ark. Const. art. 4,
§ 1. Likewise, where there is a conflict in procedural rules found in statute or this Court’s
promulgated rules, that is a matter peculiarly within the judicial sphere, and our procedural
rule controls. Ark. Const. art. 4, § 1; Ark. Const. Amend. 80, § 3; Sypult, 304 Ark. at 7,
800 S.W.2d at 404 (“To protect what we hold inviolate we now declare that we 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.”). Where the two find no conflict, there is no constitutional infirmity; particularly,
where this Court has consistently maintained language in its own Rules of Evidence
acknowledging the General Assembly’s authority to speak to such matters. See, e.g., Ark. R.
Evid. 402 & 501.
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, Ark. Code Ann. § 16-114-207(3). In Bedell,
we explained that Ark. R. Evid. 501 explicitly acknowledged the authority for statutory
privileges that implicate the admissibility of certain testimony. Bedell v. Williams, 2012 Ark.
75, at 17, 386 S.W.3d 493, 505. A testimonial privilege is in some respects an evidentiary
rule on the admissibility of certain testimony at trial, hence privileges are addressed in our
11
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 Rule 501
of the Arkansas Rules of Evidence, we granted the legislature the authority to enact statutes
regarding privilege because the power of the legislature to enact statutes regarding privilege
is substantive law and does not conflict with amendment 80 and the separation-of-powers
doctrine.” Id.
Do statutes which incidentally touch on evidentiary matters as part of substantive
policy decisions run afoul of separation-of-powers under Amendment 80, § 3, especially
where our rules contemplate such statutes? Certainly not. Turning to the statute at issue,
Ark. Code Ann. § 27-34-106(a) is a constitutional exercise of the shared authority of the
General Assembly to promulgate incidental rules of evidence within the context of a
substantive policy judgment considering the statute as a whole. No specific evidentiary rule
conflicts with this statute, and the statute is perfectly in line with Rule 402 regarding the
admissibility of relevant evidence. Ark. R. Evid. 402 (“All relevant evidence is admissible,
except as otherwise provided by statute or by these rules or by other rules applicable in the courts
of this State.”) (emphasis added).
I concur in judgment.
WOMACK and WEBB, JJ., join.
SHAWN A. WOMACK, Justice, concurring in part and dissenting in part. The
time has come to correct the egregious error of Johnson v. Rockwell Automation, Inc., 2009
Ark. 241, 308 S.W.3d 135, and its progeny. In cases involving our procedural rulemaking
12
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
amendment 80, section 3. Respectfully, we owe the people of this State better guidance
than this. Accordingly, I concur only in the judgment.
I.
The judicial power was originally outlined in article 7 of the Arkansas Constitution
of 1874. That changed in 2000 when voters approved amendment 80, which repealed most
of article 7 and substantially revised the state court system. See 2 David Newbern et al., Ark.
Civil Prac. & Proc. § 1:2 (5th ed. 2020). Among other things, the amendment provides that
this 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
13
preserve the right of trial by jury as declared in this Constitution.” Ark. Const. amend. 80,
§ 3. Though our rulemaking power was recognized long before amendment 80, see Curtis
v. State, 301 Ark. 208, 210, 783 S.W.2d 47, 48 (1990), this provision made our procedural
rulemaking authority explicit and our responsibility to act mandatory, see Clark v. Pine Bluff
Civil Serv. Comm’n, 343 Ark. 810, 814, 120 S.W.3d 541, 544 (2003).
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,
“procedural issues may engender and corrode substantive rights, and substantive rights as
well may embrace certain expectations about the procedures that will be used to enforce
those rights.” Id. A seemingly procedural statute “may exist ‘to influence substantive
14
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.” Ark. Code Ann. § 27-34-102. Toward that end, specified
drivers must place, maintain, and secure child passengers under the age of fifteen in a restraint
system that meets applicable federal safety standards. See Ark. Code Ann. § 27-34-104(a).
Of particular relevance here, the CPPA sets out inadmissibility standards for failure to
provide or use a child safety seat. See Ark. Code Ann. § 27-34-106. The provision at the
center of this case states that “[t]he 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.” Ark. Code Ann. § 27-34-106(a).
15
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 sweeping assertion that all rules of
evidence are procedural should be corrected. This latter assertion propped up this Court’s
erroneous conclusion in Mendoza v. WIS International, Inc., 2016 Ark. 157, 490 S.W.3d 298,
that the legislature is barred from adopting statutes that dictate the admissibility and
16
relevancy of evidence despite the authority granted by Arkansas Rule of Evidence 402. We
should take this opportunity to correct the error created by these cases.
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.” Ark. Const. amend. 80,
§ 3. While it expressly prohibits this Court from acting in substantive areas, it neither
17
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 amendment 80, section 3. Id. We held
the statute created a “substantive right to be free from service of process.” Id. at 5, 322
S.W.3d at 487. Our reasoning was based on our view that the statute was rooted in public
policy. Id. at 10, 322 S.W.3d at 490. To hold the statute unconstitutional “would be to
impede upon the legislature’s policy-making authority.” Id. In other words, we upheld the
statute based on the legislature’s purpose, not the text of the statute. Though Cato alleged
to rely on Johnson, this approach is entirely inconsistent with Johnson’s bright-line rule.
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
18
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 amendment 80, section 3. Id.
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.
19
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. Rule 402 provides that “[a]ll relevant evidence is admissible,
except as otherwise provided by statute or by these rules or by other rules applicable in the
courts of this State.” Ark. R. Evid. 402 (2020) (emphasis added). Through our Rules of
Evidence, we have authorized the General Assembly to pass statutes regarding the relevancy
and admissibility of evidence. The challenged provision here falls squarely within the scope
of that authority.
Five years ago, this Court erroneously rejected this natural reading of Rule 402 in
Mendoza, 2016 Ark. 157, at 7–9, 490 S.W.3d at 302–03. Relying on Johnson, Mendoza held
that the legislature was barred from adopting statutes that dictate the admissibility and
20
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 Rule 402’s plain language, Mendoza erroneously distinguished precedent
interpreting identical language within Rule 501. See Bedell v. Williams, 2012 Ark. 75, 386
S.W.3d 493. There, we held that a statute granting medical providers the privilege of
refusing to testify in certain matters did not violate separation of powers. Bedell recognized
that the court, through Rule 501, provided the General Assembly power to enact statutes
regarding testimonial privilege. Id. at 17, 386 S.W.3d at 505; see Ark. R. Evid. 501 (no
person has a privilege to testify or prevent another from being a witness “except as otherwise
provided by constitution or statute” (emphasis added)). Despite the identical language in
Rule 402 and Rule 501, Mendoza determined that Bedell was distinguishable because “the
power of the legislature to enact statutes regarding privilege [under Rule 501] is substantive
law,” and Rule 402 is “procedural in that it dictates what evidence is relevant.” Mendoza,
2016 Ark. 157, at 9, 490 S.W.3d at 303. The Mendoza majority failed to explain how this
purported distinction could be reconciled with the identical language within both rules.
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 Uniform Rule of Evidence 402. See Winston v. Robinson, 270 Ark. 996,
1001–1002, 606 S.W.2d 757, 761 (1980).1 Like current Rule 402, Uniform Rule of
1
We adopted the Uniform Rules of Evidence as the Arkansas Rules of Evidence in
1986. See In re Adoption of the Uniform Rules of Evidence, 290 Ark. App’x 616 (1986) (per
curiam).
21
Evidence 402 provided that “[a]ll relevant evidence is admissible, except as otherwise
provided by statute . . . .” This language “acknowledges that other statutes may render
inadmissible evidence that would be admissible under the rules.” Id. “Even with the
enactment of the Uniform Rules of Evidence, the General Assembly still may have enacted
or may later enact specific statutes dealing with the admissibility of evidence. Such statutes
legitimately express the public policy of the State of the admissibility of evidence, for
example, that may be of dubious reliability.” Id. In short, Mendoza stands as an outlier in
our Rule 402 jurisprudence.
Ignoring Rule 402’s recognition of statutory authority places numerous statutes at
risk and could upend statutory schemes across multiple areas of law. For example, the capital
murder sentencing scheme provides that “[e]vidence as to any mitigating circumstance may
be presented by either the state or the defendant regardless of the evidence’s admissibility under
the rules governing admission of evidence in a trial of a criminal matter.” Ark. Code Ann. § 5-4-
602(4)(B)(i) (emphasis added); but see Ark. Code Ann. § 5-4-602(4)(C) (evidence relevant
to aggravating circumstance governed by evidentiary rules). This statute is one of many
provisions that dictate a procedural rule of evidence and, without the statutory authority
recognized under Rule 402, could potentially violate amendment 80, section 3. 2 It is thus
imperative that we correct the error in both Johnson and Mendoza.
2
See, e.g., Ark. Code Ann. § 27-50-804 (no record of bond forfeiture or conviction
of person under motor vehicular traffic subtitle shall be admissible in any civil action); Ark.
Code Ann. § 16-80-104(c) (mental health evaluation for minor convicted of capital murder
or first degree murder not admissible over objections of minor); Ark. Code Ann. § 16-97-
103 (list of evidence relevant to sentencing, provided no evidence overrides rape shield);
Ark. Code Ann. § 3-3-405 (in felony prosecution for unlawful manufacturing of alcoholic
beverages, general reputation of defendant for moonshining, bootlegging, or being engaged
22
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
in the manufacture of or trade in intoxicating liquors shall be admissible); Ark. Code Ann.
§ 9-27-345 (limits admissibility of evidence against juvenile in juvenile court); Ark. Code
Ann. § 9-27-321 (statements made by juvenile to intake or probation officer during intake
process before hearing inadmissible); Ark. Code Ann. § 16-114-211 (result of state or federal
regulator surveys or inspections, or by accrediting organizations, not otherwise privileged
and that the plaintiff seeks to use as evidence against medical care provider must be relevant
to plaintiff’s injury to be admissible); Ark. Code Ann. § 17-11-343 (abstract or verbatim
copy of any public record certified and impressed with official seal of any licensed abstracter
shall be admissible); Ark. Code Ann. § 4-2-724 (when prevailing price or value of goods
regularly bought and sold in any established commodity market is in issue, reports in official
publications or trade journals or in newspapers or periodicals of general circulation shall be
admissible; circumstances of the preparation of such a report may be shown to affect its
weight but not its admissibility); Ark. Code Ann. § 16-47-110 (admissibility of instruments);
Ark. Code Ann. § 12-12-704 (results of psychological stress test inadmissible); Ark. Code
Ann. § 5-65-206 (admissibility of chemical analysis for DWI); Ark. Code Ann. § 9-17-316
(special rules of evidence and procedure in Uniform Interstate Family Support Act); Ark.
Code Ann. § 6-21-608 (evidence of drugs, guns, or contraband in school obtained by
statutory procedure shall be admissible); Ark. Code Ann. § 17-80-116 (failure of healthcare
professional to request background check before issuing erectile dysfunction prescription
not admissible as evidence of negligence); Ark. Code Ann. § 4-88-114 (assurance of
voluntary compliance not admissible in any separate criminal proceeding within Deceptive
Trade Practices Act); Ark. Code Ann. § 4-3-505 (documents admissible as evidence of
dishonor).
23
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”).
In determining whether to revisit precedent, courts have traditionally considered
factors such as “the quality of the decision’s reasoning; its consistency with related decisions;
legal developments since the decision; and reliance on the decision.” Ramos, 140 S. Ct. at
1405 (internal quotation omitted). As illustrated above, each of these factors point toward
overturning Johnson and Mendoza. Rather than ignoring the erroneous precedent, as the
majority does today, we should take this opportunity to correct our 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 amendment 80, section 3. We should strive to clarify our decisions rather than further
muddy the waters. Hopefully a majority will provide that clarity when another case
implicating Johnson and its progeny inevitably returns to this Court.
Special Justice MARK WANKUM joins.
24
BARBARA W. WEBB, Justice, concurring in part and dissenting in part. I
concur that Ark. Code Ann. § 27-34-106(a) is a doctrine of substantive law and
constitutional. However, I write separately and dissent at the court’s failure to overturn
Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135, and Mendoza v. WIS
International, Inc., 2016 Ark. 157, 490 S.W.3d 298.
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.
Ark. Const. amend. 80, § 3. After Amendment 80 was passed, this court began building a
progeny of cases excluding attempts by the legislature to invade the court’s rule-making
powers. Our case law has clearly stated that statutes which dictate what evidence is
admissible are rules of practice and procedure, offend Amendment 80, and are
unconstitutional. Johnson, 2009 Ark. 241, at 11, 308 S.W.3d at 142. Only a few short years
ago, we reaffirmed this principle when we answered another certified question and held that
a nearly identical statute was unconstitutional because it dictated a rule of evidence in
violation of Amendment 80. Mendoza, 2016 Ark. 157, at 5–6, 490 S.W.3d at 301–02
(quoting Summerville v. Thrower, 369 Ark. 231, 237, 253 S.W.3d 415, 419–20 (2007)). Based
on these prior decisions, the doctrine of stare decisis would appear to control the outcome of
this case.
“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
25
(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 the importance
of stare decisis: To “avoid an arbitrary discretion in the courts, it is indispensable” that federal
judges “should be bound down by strict rules and precedents, which serve to define and
point out their duty in every particular case that comes before them.” Ramos v. Louisiana,
___ U.S. ___, ___, 140 S. Ct. 1390, 1411 (2020) (Kavanaugh, J., concurring in part) (citing
The Federalist No. 78, p. 529 (J. Cooke ed. 1961)). Stare decisis’ “greatest purpose is to serve
a constitutional ideal—the rule of law.” Id. (citing Citizens United v. Federal Election Comm’n,
558 U.S. 310, 378 (2010)); see also City of Bryant v. Boone Tr., 2018 Ark. App. 547, 564
S.W.3d 550 (the policy of stare decisis is designed to lend predictability and stability to the
law).
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
26
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
27
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
wrong to keep the law settled—is not the priority when the Constitution is the thing that
has been wrongly decided. See Kimble, 576 U.S. at 455–56 (citing Burnet v. Coronado Oil &
Gas Co., 285 U.S. 393 (1932)). There is a history of overruling erroneous constitutional
interpretations instead of upholding stare decisis when correction through legislative action is
practically impossible. Citizens United, supra; Agostini, supra; Burnet, supra.
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 Ark. Const. amend. 80, § 3 with 28 U.S.C. § 2072(a). The limitation in
Amendment 80 means that to be procedural, a rule of evidence must “really regulat[e]
procedure—which is 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.” Shady Grove, 559 U.S. at 406–07 (citing Sibbach v. Wilson, 312 U.S. 1, 14 (1941);
Hanna v. Plumer, 280 U.S. 460, 464 (1965); Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 8
(1987)).
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
28
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 the current
precedent has had a cognizable and quantifiable negative effect on the citizenry. In the
29
instant case, the answer is a resounding “yes.” The litigants in this case passed Amendment
80, which allows the court to make only rules of practice, pleadings, and procedure so long
as no substantive right is abridged. The litigants also, through their elected representatives,
have made a substantive doctrine of law regarding contributory negligence in a civil case. A
great injustice occurs if we continue to apply the bright-line rules found in Johnson and
Mendoza because we may only make rules of procedure, but instead, we allow our judicial
power to continue to abridge the substantive rights found in acts passed by the legislature.
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
30
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.
Stare decisis is not an end in itself but a means to effectuate consistency and
predictability in the law. That doctrine must yield in constitutional settings because our state
cannot be a constitutional form of government if the judiciary enforces the constitution
wrongly. This court should correct the errors of Johnson and Mendoza by handing the power
31
back to the people’s representatives to make law based on policy decisions of the legislature,
not the judiciary. I would overrule Mendoza, abrogate Johnson’s holding that rules of
evidence are rules of pleading, practice, and procedure, answer the certified question in the
negative, uphold Ark. Code Ann. § 27-34-106(a) as constitutional, and correct the course
of Amendment 80 jurisprudence to its proper position.
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.
32