Arkansas Court of Appeals

The Arkansas Court of Appeals (ACA) serves the state as its intermediate appellate court. For a large number of cases, however, it functions as the final court of review. Parties to lawsuits in Arkansas do not have a right to appeal beyond the Court of Appeals, and the Arkansas Supreme Court generally hears only appeals raising unique questions of law. Thus, for most cases in which the law is settled, the Court of Appeals serves as the parties’ only opportunity for review of lower court decisions.

The ACA is composed of twelve judges and primarily hears appeals from Arkansas Circuit Courts and the Arkansas Workers’ Compensation Commission. Created by constitutional amendment in 1978, the Court of Appeals was established to relieve the Arkansas Supreme Court of the mounting caseload pressures it experienced during the 1960s and 1970s. The Court of Appeals has little discretion over its own docket, and the court must work in three-judge panels (called “divisions”) to remain current in its caseload. According to Amendment 80 of the Arkansas Constitution (ratified in 2000), the Arkansas Supreme Court determines the Court of Appeals’ jurisdiction, internal rules, and processes. The Arkansas General Assembly, however, determines composition of the court and the circumstances of elections. It may overturn or adapt rules made by the Supreme Court for the Court of Appeals by a two-thirds vote in both houses. The Court of Appeals has experienced various changes in size, processes, and procedures over time because of increased membership and a reorganization of the Arkansas judiciary. The original court was composed of six members—that number gradually expanded to the current membership of twelve judges.

The Internal Rules and Procedures of the Arkansas Court of Appeals remain unpublished because Amendment 80 places the constitutional and statutory authority to make its rules with the Arkansas Supreme Court. With one exception, the Arkansas Supreme Court has not created an official set of rules for the Court of Appeals. In the absence of rules, the Court of Appeals has outlined a complex internal process for handling cases, including a requirement that the three judges making up the original division hearing a case reach a unanimous decision. Should they fail to do so, the rules require additional stages of review within the court. These complex internal processes make the Arkansas Court of Appeals somewhat unique among other state-level intermediate appeal courts in the United States. Moreover, the rule requiring unanimity at the division level—the norm of the court, as it encouraged all judges to read and comment on cases—coupled with a 2007 decision making all cases decided by the Court of Appeals carry the weight of precedent point to the goals of the court for maintaining quality of justice and consistency in law across the state.

Jurisdiction and Workload
Rule 1-2 of the Rules of the Arkansas Supreme Court establishes the Court of Appeals jurisdiction. It states: “All cases appealed shall be filed in the Court of Appeals.” The Court of Appeals has general subject matter jurisdiction, which includes the jurisdiction of Arkansas trial courts across the entire state. Furthermore, parties have an automatic right of first appeal to the Arkansas Court of Appeals with the exception of a set of case subjects that may be appealed directly to the Arkansas Supreme Court. These are established in Arkansas Supreme Court Rule 1-2 and include death penalty cases, extraordinary writs, cases requiring “interpretation or construction” of the Arkansas constitution, appeals pertaining to elections and election law, and cases required by law to come directly to the Arkansas Supreme Court.

The Court of Appeals cannot set its own docket. The resulting workload for court of appeals judges is significant. Including the 2001 through 2009 terms, the average number of majority opinions written by the court per term was 869, and the average per judge was 72.4 per term. The Arkansas Court of Appeals is the workhorse of the Arkansas judiciary, allowing the Arkansas Supreme Court to function as a certiorari court, hearing and deciding cases of constitutional interpretation and construction, those raising issues of first impression, and those pertaining to areas in which there are real or perceived inconsistencies in Arkansas law.

History and Composition
Like many states with only two courts of record (trial courts and a supreme court), Arkansas saw an increase in workload for judges during the 1960s and 1970s. In 1976, the Supreme Court of Arkansas issued a statement noting that its caseload had doubled in the previous fifteen years, and that it had begun the practice of sitting in two divisions to keep up with its expanding workload. During the 1978 term, the Supreme Court issued 539 majority opinions with each justice averaging seventy-seven majority opinions. In 1979, the Supreme Court wrote in a majority opinion that “the volume of litigation in Arkansas had grown to such an extent that it could not be handled promptly and properly by a single appellate court.…It had become impossible for one court of last resort to give careful consideration to every case.”

In a 1978 statewide election, Arkansas voters ratified Amendment 58 and created the Arkansas Court of Appeals. During the 1979 term, the Arkansas General Assembly established the court by Act 208, and the Arkansas Court of Appeals handed down its first opinion in August of the same year. Act 208 created six judgeships filled through partisan judicial elections from districts across the state. The Arkansas General Assembly increased the size of the court in 1993 to twelve members. It then amended that legislation in 1995 to allow for staggered expansion—three appointments in January 1996 and another three in January 1997.

In 2000, Arkansas voters ratified Amendment 80, which reorganized the Arkansas judiciary, placed all Arkansas courts under the authority of the Supreme Court, and changed the selection method for judges in Arkansas to non-partisan elections. In 2003, in response to the ratification of Amendment 80, the Arkansas General Assembly repealed “all statutes concerning pleading, practice, and procedure in all courts” by Act 1185. That act also placed authority for creating the internal operating rules and procedures of the Court of Appeals in the hands of the Arkansas Supreme Court.

Internal Rules, Processes, and Procedures
Despite these significant changes, the Arkansas Court of Appeals has always been subject to the “general superintending control of the Supreme Court” as noted in Amendment 58, which established the Court of Appeals. Amendment 80 adopted this same phrase as applied to all courts in Arkansas. After ratification of Amendment 80 in 2000, it appears that almost all previous arrangements (jurisdictional and procedural) for the Court of Appeals remained in effect even though the statutes by which they had been created were repealed. With one exception, the Supreme Court has not created rules for the Court of Appeals. The single rule pertaining to its internal functions empowers the Court of Appeals to apply “existing practice” if the Supreme Court has not created rules governing the particulars of its internal processes. As a result, the Court of Appeals has adapted its practices over time, and done so without the necessity of a formal rules statement from the Supreme Court. This state of affairs has persisted since 2000. The practice of giving the Court of Appeals discretion over its own rules, processes, and practices is now the established custom.

Because the Court of Appeals lacks authority to make and publish its own official rules, the rules of the court exist simply as an unpublished internal document setting out the processes the court will use to assign cases to the three-judge divisions, hear cases, and decide them. The court has adopted these processes out of convenience, history, and tradition to manage its work and internal procedural arrangements. The rules would remain (at least officially) a mystery to the Arkansas bar but for an article that outlines the processes for assigning cases for disposition within the court.

The Court of Appeals uses a complex process for assigning and reviewing cases making up its docket. This process begins when the clerk of the Court of Appeals dockets cases and assigns them by random selection to the three-judge divisions around which the court is organized. According to its internal rules, the twelve members of the ACA sit in four randomly constituted divisions composed of three judges each. The Office of the Clerk of Court determines division composition through random designation, and each division sits for no longer than four weeks before the divisions are reconstituted by another random assignment of judges. The court determines majority opinion writing responsibilities by random designation. As long as the judge initially assigned to write the majority opinion remains in the majority, that opinion is his or hers to write. Should the judge initially assigned to write the majority opinion end up in the minority, judges in the majority select the majority opinion writer amongst themselves.

Once the clerk dockets a case and assigns it to a division, the parties submit briefs, and the division hears oral argument if the parties request it; the division will then meet on a case’s submission date either to approve the majority opinion unanimously, or simply to fill out the vote sheet noting that the division did not come to a unanimous opinion. At the division level, all three judges must agree on how to resolve the case for the court to have officially decided that case on appeal.

Should a division fail to reach a unanimous decision, it does not hand down an opinion. Unlike three-judge panels of federal courts of appeal who (unencumbered by a unanimity requirement) release a majority opinion, on the Arkansas Court of Appeals, the next stage of the process occurs before it formally decides a case. According to the internal rules of the Court of Appeals, in those instances in which the division cannot come to a unanimous decision, the case is re-conferenced, with the judges composing the next highest numbered division assigned to review the case along with the original panel. This is called en banc review. This arrangement differs significantly from the en banc rules of federal circuit courts of appeal. In those federal courts, en banc review is usually the final stage of review by the court and involves all, or a large number, of the judges making up the court. In Arkansas, en banc refers to the section of three distinct stages of review, and involves only half the members of the court.

At the en banc stage, a majority (4–2) will decide the case. In that event, the court will hand down a majority opinion, and judges are free to write concurring, special concurring, or dissenting opinions that are the official product of the court. If a tie vote occurs at the en banc stage, the Court of Appeals follows the same practice for review at the division level—the panel does not hand down opinions, the case is once again re-conferenced with the next highest numbered division added, and disagreeing judges write a memo outlining areas of disagreement. The inclusion of an additional division composes a super en banc panel of nine judges. The super en banc panel is the final stage of review possible at the Court of Appeals.

If a division agrees unanimously on the outcome of a case, the division will circulate its opinion to the full court. During the opinions conference, all judges may comment on all opinions issued from all divisions. The practice allowing judges to comment on and suggest revisions to the division opinions is a unique one. Out of courtesy, a division will hold up the publication of an opinion when another judge not sitting on that panel requests it. Reasons for doing so include suggestions for improving the opinion, for considering previously decided cases that a division may have neglected to include, or concern about the decision itself. When a judge has concerns about the opinion issued in a unanimous decision of a division upon which he or she does not sit, that judge may invoke the rarely used “failsafe rule.” Josephine Linker Hart and Guilford M. Dudley describe the rule this way: “Any judge, after reading a circulated opinion, may ask that a case be heard by an expanded panel, and the following week a vote is taken on the request. Only if at least six judges vote for the case to be reconferenced will an additional division be added.”

The Court of Appeals added the failsafe to its internal rules in 2007. Judges provide various reasons for its addition. The primarily concern appears to be that a three-judge panel could speak for the entire court on a matter of particular regional importance within the state, or that a division might simply come to a bad decision. The failsafe rule circumvents the need for the parties to petition for rehearing, allowing six members of the ACA to trigger en banc review.

The rules, processes, and norms of the Court of Appeals support its mission to preserve consistency in law across the state. Its complex internal processes ensure that many judges have the opportunity to review and decide cases, or to comment on decisions handed down by unanimous divisions. A recent change in the way the Court of Appeals reports its decisions also supports its role within the Arkansas justice system. Until 2007, the Court of Appeals published approximately one-third of its decisions. It officially reported only those cases “resolving novel or unusual questions” for use as precedent in future cases. The remaining two-thirds had value only for the parties in each particular lawsuit. The Arkansas Supreme Court revised its rules to require that all cases decided by the Court of Appeals have precedential value beginning midway through the 2008–09 term. This change extended the Court of Appeals’ longstanding commitment to consistency in law within the state to all cases it decides.

For additional information:
Court of Appeals. Arkansas Judiciary. https://www.arcourts.gov/courts/court-of-appeals (accessed June 22, 2023).

Gingerich, James D. “The Arkansas Court of Appeals—Was It Worth the Trouble?” Arkansas Lawyer, July 1984, pp. 140–145.

Hart, Josephine Linker, and Guilford M. Dudley. “The Unpublished Rules of the Arkansas Court of Appeals: The Internal Rules and Procedures of the Arkansas Court of Appeals.” UALR Law Review 33 (Winter 2011): 109–117.

Hans J. Hacker
Arkansas State University