Justices back shift of cases to lower court

Workload doable, they say in reply to judge’s complaint

The Arkansas Supreme Court is disputing several points made by a Court of Appeals judge who berated the high court about a decision to shift some post-conviction cases to the lower court.

In a news release, the Supreme Court said it had the authority to transfer the cases under existing rules and Amendment 80 to the Arkansas Constitution; the transfer was explained to members of the Court of Appeals; and 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 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.” To date, the reassignment resulted in nine new case submissions to the Court of Appeals, according to the release. The change went into effect March 2.

The news release followed an opinion released Wednesday by Judge Phillip Whiteaker, a member of the Court of Appeals. He noted the significance of transferring a “majority” of the Rule 37 cases.

“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,” he wrote.

Post-conviction cases, also called Rule 37 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.

In an interview Saturday, former state Supreme Court Justice Robert Brown, who served on the court from 1991 to 2012, said he believed most of the Rule 37 cases would go to the Court of Appeals under the rule change. He also said he believed the Supreme Court had the authority to reassign the cases.

“I’m going to issue a caveat,” he said. “I’m gone from the court and it could have changed, but my sense would be the majority were being transferred to the Court of Appeals.”

The Arkansas Supreme Court said it was shifting to the Court of Appeals “all appeals arising from a petitioner’s allegation that the petitioner was denied effective assistance of counsel at trial or on direct appeal from a judgment of conviction except in instances when the death penalty or life imprisonment has been imposed on the petitioner.”

It also ordered the Court of Appeals to “assume jurisdiction of petitions for post-conviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 in cases wherein the Rule required the petitioner in cases where the judgment was entered before July 1, 1989, to obtain permission from the appellate court before proceeding in the trial court with a petition under the Rule.”

Brown said there was no talk of shifting the cases in his time at the court.

“To tell you the truth, I never thought about it,” he said. “It was just something that happened every week. It was just part of the routine.”

He said the cases did take up a lot of time and few post-conviction appeals were granted. Most involved allegations of incompetent counsel. For example, Brown recalled one case involving a lawyer who was drunk during trial.

“It was a lot of work for our staff, as I recall, and from time to time it was necessary to borrow some of our law clerks to help [staff] out because there had been some backlog,” he said.

The issue of staff was one where the Supreme Court and Whiteaker took different tacks last week.

Of the nines cases transferred, only in three “would the [Criminal Justice Coordinator’s] staff have assisted the Supreme Court,” the Supreme Court news release states. “This slight reduction in the [Criminal Justice Coordinator] workload allowed them to better focus on the 220 criminal justice post-conviction cases that were not transferred.”

But Whiteaker said in a footnote in his opinion: “Our review of the record is mandatory given the Supreme Court’s most recent rule change relieving pro se appellants in Rule 37 cases from the abstracting requirements — the burden now falls on court of appeals’ staff to review the entire record, without the benefit of assistance from the Criminal Justice Coordinator’s office.”

Brown said he didn’t know if Criminal Justice Coordinator staff were available to the lower court during his time on the bench.

Sue Newbery, criminal coordinator, “was the focal point in this and the woman who made the engine go,” Brown said.

Sen. Missy Irvin, R-Mountain View, the sponsor of a proposed constitutional amendment that would give the Legislature some control over court rules, said in an interview Saturday that lawmakers would potentially be interested in scrutinizing rules that allow the high court to transfer some of the post-conviction cases.

“I and others have worked with the Supreme Court justices in the past addressing areas of the law and would be willing to work with them if this needed to be addressed,” she said.

Irvin sponsored Senate Joint Resolution 8, the proposed constitutional amendment primarily aimed at limiting civil-lawsuit payouts. It would also allow the Arkansas Supreme Court’s rules to take effect without a legislative vote, but lawmakers would be allowed to amend and repeal court rules as well as adopt new rules with a three-fifths vote. Currently, lawmakers do not have a role in court rules. The Legislature voted this year to put the proposal on the ballot in November 2018.

A review of data from the state’s electronic court record system showed 102 post-conviction appeal cases filed in 2016, 91 filed in 2015, 93 filed in 2014 and 119 filed in 2013.

Of the 456 opinions in all types of cases issued so far this year by the two courts, 302 were issued by the Court of Appeals and 154 were issued by the Supreme Court. The Court of Appeals has 12 justices. The Supreme Court has seven justices.

A spokesman for Arkansas Attorney General Leslie Rutledge said Saturday he did not have any comment. Former Chief Justice Howard Brill did not return a request for comment on Friday or Saturday. Attempts to get in touch with law professors to shed light on the decision were unsuccessful Friday. Lee Short, president of the Pulaski County Bar Association, did not return a request for comment Saturday.