Justices again shift rules, now on appeal opinions

The Arkansas Supreme Court changed judicial rules on Thursday to give the Court of Appeals more work, for the second time in about three months.

In an unsigned per curiam opinion, the higher court said the lower court would no longer be allowed to issue short memorandum opinions. According to the Cornell Law School website, a “per curiam” decision is a decision delivered via an opinion issued in the name of the court rather than specific judges.

According to the Supreme Court, the rationale for allowing the lower court’s short opinions had expired.

When the Court of Appeals came up with the rule, it “was just six years old and consisted of only six judges. The court faced a large backlog of cases, and as a means of managing a crushing workload, it promulgated its memorandum-opinion policy,” the Supreme Court said in its order.

Since then, “the legislature doubled the number of judges on the court of appeals. Moreover, while the court of appeals averaged 869 cases per year disposed of by written opinion during the years 2001-2009, in 2016 it handed down only 570 written opinions.”

A clerk of courts staff member — who serves both the higher and lower courts — said not to expect any statements from either the Court of Appeals or the Supreme Court about the matter on Thursday.

The move follows a May opinion by Judge Phillip Whiteaker, a member of the Court of Appeals, that berated the high court for shifting many post-conviction relief cases from it to the lower court.

In that opinion, Whiteaker noted the significance of transferring a “majority” of the Rule 37, or post-conviction relief, cases. Those cases involve questions about whether sentences were imposed in violation of the U.S. or state constitutions, whether the convicting court had jurisdiction and if important facts were omitted in a case, among other issues.

“On March 2, 2017, however, our supreme court, without effectuating a rule change and without any explication or further explanation as to why it was no longer required by law to hear such cases, summarily transferred a majority of its Rule 37 cases to this court by means of a footnote in an unsigned per curiam opinion,” Whiteaker wrote in May.

He continued: “To assist in the exercise of this jurisdiction, the supreme court employed, and still employs for its exclusive use, an entire office to handle these types of cases.”

The Supreme Court subsequently issued a statement to reporters disputing several points.

In that news release, the Supreme Court said that it had the authority to transfer the cases under existing rules and Amendment 80 to the Arkansas Constitution; that the transfer was explained to members of the Court of Appeals; and that training was provided to legal staff and judges about the cases.

“The Supreme Court has complete confidence that the Court of Appeals’ twelve judges and 28 lawyers can handle these cases,” according to the May release. “This is especially true given that these cases are universally handled by intermediate courts of appeal throughout the United States.”

The news release described the cases transferred as “a limited number of ineffective-assistance-of-counsel cases.”

Whiteaker issued his opinion the day after Supreme Court Chief Justice Dan Kemp told a state salary commission that the judicial branch proposed an 11 percent raise for Supreme Court justices and a 2 percent raise for district judges, circuit judges and members of the Court of Appeals.

Kemp is paid $180,000 a year as the chief justice. The other Supreme Court justices are paid $166,500. Members of the Court of Appeals are paid $161,500. The chief judge is paid $164,000.

Thursday’s per curiam opinion by the Supreme Court specifically addressed a memorandum opinion handed down by the Court of Appeals on

March 15.

The case centered on whether Jefferson County Deputy Sheriff Cleon Morgan was an employee or independent contractor when, while working as a security guard at a grocery store, he was injured while pursuing a shoplifter who he had arrested and who subsequently escaped.

In its memorandum opinion, the Court of Appeals affirmed an opinion by the Arkansas Workers’ Compensation

Commission that Morgan was an employee and not an independent contractor.

The Supreme Court said Thursday: “We decline to consider appellant’s petition without the issue first being analyzed by a court of law. The court of appeals’s opinion provides no meaningful analysis. We therefore vacate the court of appeals’s opinion and remand this case to the court of appeals to properly analyze this case.”