Opinion
Delivered December 21, 1987
The Arkansas Supreme Court Committee of Rules of Pleading, Practice, and Procedure (Civil) has submitted to us its annual suggestions for changes in the Arkansas Rules of Civil Procedure and the Arkansas Rules of Appellate Procedure. We are again grateful to committee chairman Judge Henry Wilkinson and reporter Professor John Watkins and all the members of the committee for their faithful and excellent work. Beginning with this order, the annual revisions of the rules, if any, will be made around the first of each calendar year in order to synchronize the promulgation of changes with the publication schedule for the soft bound rules volume accompanying the Arkansas Code of 1987 Annotated.
While the changes we adopt today at the suggestion of the committee are generally explained in the accompanying reporter's notes, we wish to comment upon the abolition of Arkansas Rule of Civil Procedure 83. In 1984 the committee suggested that we abolish all local court rules. We declined to do so at that time, but asked the committee to document its complaint that local rules were unnecessary and were serving as little more than traps for the unwary lawyer or litigant participating in a case while away from home. The committee came back to us with documented instances of conflict between local rules and the Arkansas Rules of Civil Procedure. We noted that at that juncture some trial judges announced that they could well do without local rules and declared that they would no longer have them.
We then embarked upon a compromise. We asked the trial courts to review their local rules and to tender revised versions of their local rules. We then received proposed local rules from a number of the trial judges. We submitted those proposals to our committee for review, and we ultimately approved most of them, excepting from approval those which were in direct conflict with Arkansas Rules of Civil Procedure. The many trial judges who did not respond to our order that they review and submit proposed rules to us for review no longer have local rules, as our per curiam order of December 22, 1986, stated: "As of July 1, 1987, the only local rules in effect in the circuit, chancery and probate courts will be those filed subsequent to June 24, 1985, and approved by this court after review by the appropriate committee or committees."
In our initial screening, and as we have continued to review local rules tendered to us, we and the committee have observed that many of the rules are no more than "housekeeping" orders having nothing to do with the conduct of lawyers or litigants. Others are duplicative of the Arkansas Rules of Civil Procedure and thus serve no purpose except to say the same thing a different way and provide unnecessary fodder for disagreement. Sometimes, hidden within these innocuous and repetitious provisions, there are procedural requirements which do not conflict with the Arkansas Rules of Civil Procedure and which may seriously affect the rights of litigants. To become aware of these rules, a litigant or counsel may have to wade through many pages of confusing materials.
A member of the bar of this state, or a litigant representing himself or herself, should be able to go into any of our courts and know what to expect without having to read, in some instances, 50 pages of local rules trying to discern their effect. We recognize that some of the local rules may have great merit, and if they do, we should consider adopting them for all our courts. The Uniform Rules for Circuit and Chancery Courts apparently resulted from an attempt to create uniform "local rules." We are also abolishing those rules as of March 14, 1988, as we find them to be unnecessary in view of the since-adopted Arkansas Rules of Civil Procedure and Arkansas Rules of Criminal Procedure. The useful portions of those rules have been transferred to the Arkansas Rules of Civil Procedure and to the Administrative Orders we also publish today.
We recognize that not all our judges operate under the same conditions, however, when the inconvenience caused by not having local rules is balanced against the inconvenience caused by them and, more importantly, against the often unanticipated and unnecessary effect they may have upon the rights of litigants, we conclude the scales tip in favor of not having them. We note that the Supreme Court of Kentucky, the state which gave us so much of our original statutory procedure, abolished its comparable Rule 83 in 1982.
It is not our intention to subvert the power of the trial courts to preside as they see fit within the universal procedural rules we have established. We presume there will be a need for trial judges to publish administrative orders which will attend to necessary "housekeeping" matters, such as the time and place court shall commence, the duties of the bailiff and the reporter and so on. It is, however, our intention that we will no longer sanction the promulgation by the trial courts of orders which may be characterized as procedural rules which will detract from the ability of any litigant or member of the bar of this state to know the fundamental rules of litigation which may affect their rights adversely no matter what court of this state they may be before. By doing away with Rule 83, we relieve the trial courts of filing local rules with this court, and we no longer sanction or recognize those which have been filed to date.
As always, we invite the members of the bench and bar, and indeed any person, to make suggestions of rules changes to us through the appropriate committee. The reporters of our civil and criminal procedure rules committees, respectively, are:
Professor John J. Watkins Samuel A. Perroni, Esq. School of Law Suite 215 University of Arkansas 10810 Executive Center Dr. Fayetteville, AR 72701 Little Rock, AR 72211
We invite comment upon the changes to the Arkansas Rules of Civil Procedure and the Arkansas Rules of Appellate Procedure and the Administrative Orders which will become effective as follows on March 14, 1988, unless previously withdrawn or altered by per curiam order prior to that date:
Rule 45, Arkansas Rules of Civil Procedure, is amended as follows:
(1) by deleting the semicolon in the first sentence of the second paragraph of subsection (c) and replacing it with a period, deleting the remainder of that sentence beginning with the word "provided," and inserting a new sentence as follows:
The subpoena must be accompanied by a tender of a witness fee calculated at the rate of $30 per day for attendance and $0.20 per mile for travel from the witness' home to the place of trial.
(2) by deleting the last sentence of the first paragraph of subsection (d) and replacing it with the following:
The subpoena must be accompanied by a tender of a witness fee calculated at the rate of $30 per day for attendance and $0.20 per mile for travel from the witness' home to the place of deposition.
The following amendment to the Reporter's Note accompanying Rule 45 is adopted:
Addition to Reporter's Note, 1988 Amendment: Rule 45 is amended in an attempt to refine some changes made in subsections (c) and (d) in 1986. First, language in both subsections requiring payment of the witness fee at the time and place of the trial or deposition has been deleted. Under the amended rule, the witness fee must be paid or tendered when served with the subpoena, as was the case prior to the 1986 amendment. Second, language in both subsections basing the witness fee on the witness' "reasonable expenses for the loss of time based on [his] earnings" has been deleted. Accordingly, the witness fee is a flat $30 per day. The latter change was made because of problems caused by occurrence witnesses who have claimed extremely high fees based on their earnings for a single day. Such highly paid individuals, like all other citizens, have a societal obligation to come forth and give evidence, much as they have an obligation to serve, when called, as jurors. To vary the witness fee to take into account their high salaries would cause obvious difficulties for litigants unable to pay such a fee. Expert witnesses are covered by Rule 26 (b)(4)(C).
The Arkansas Rules of Civil Procedure are amended by adding the following as new Rule 72, which supersedes Ark. Stat. Ann. 27-402:
SUITS IN FORMA PAUPERIS
(a) Every indigent person who shall have a cause of action against another may petition the court in which the action is pending, or in which it is intended to be brought, for leave to prosecute the suit in forma pauperis.
(b) All such petitions shall be accompanied by an assertion of indigency, verified by a supporting affidavit. The affidavit form will be provided by the court for such purposes. Any petition not in compliance with this provision will be returned to the petitioner. There shall be attached to the petition a copy of the complaint or proposed complaint.
(c) The court to which such petition is presented, if satisfied of the facts alleged that the petitioner has a colorable cause of action, may by order allow him to prosecute his suit in forma pauperis. Every person so permitted to proceed in forma pauperis may prosecute his suit without paying any fees to the officers of the court, and shall not be prevented from prosecuting the same by reason of his being liable for the costs of a former suit brought by him against the same defendant.
(d) No person shall be permitted to prosecute any action of slander, libel or malicious prosecution in forma pauperis.
The following Reporter's Note is adopted to accompany the rule:
Reporter's Note. New Rule 72 tracks, with some changes, the former statutory provisions governing suits by indigents. A similar rule was proposed in 1986 but was withdrawn by the Supreme Court prior to its effective date. The former statutes, Ark. Stat. Ann. 27-401, 27-403 — 27-406 (Repl. 1979), were repealed by Act 208, 75th General Assembly, in 1985. Section 27-402 [Ark. Code Ann. 16-58-133 (1987)], adopted in 1981 to replace an earlier provision, was not repealed; however, it is superseded by this rule, which contains in paragraph (b) the requirements of 27-402. The new rule departs from the former statutes and the rule previously proposed by the Court in two ways. First, the rule does not require that the trial court assign counsel, without fee, for the petitioner. Second, the rule does not include the statutory provision allowing the trial court, in its discretion, to annul the in forma pauperis order in the event of "improper conduct" or "wilful or unnecessary delay" on the part of the petitioner. The Rules of Civil Procedure contain adequate sanctions that the court may employ in the event of such misconduct.
Rule 79 is abolished and replaced by Administrative Order No. 2. The number, 79, is reserved for future use.
Rule 83 is abolished.
Rule 4, Ark. R. App. P.
Rule 4 of the Arkansas Rules of Appellate Procedure is hereby amended as follows:
(1) by deleting subsection (c) in its entirety and replacing it with the following:
(c) Disposition of Posttrial Motion. If a timely motion listed in section (b) of this rule is filed in the trial court by any party, the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion. Provided, that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day. A notice of appeal filed before the disposition of any such motion or, if no order is entered, prior to the expiration of the 30-day period shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion or from the expiration of the 30-day period. No additional fees shall be required for such filing.
(2) by deleting subsection (d) in its entirety and replacing it with the following:
(d) Time for Appeal from Disposition of Motion. Upon disposition of a motion listed in section (b) of this rule, any party desiring to appeal from the judgment, decree or order originally entered shall have thirty (30) days from the entry of the order disposing of the motion or the expiration of the 30-day period provided in section (c) of this rule within which to give notice of appeal.
The following addition is made to the Reporter's Note accompanying Rule 4:
Addition to Reporter's Note, 1988 Amendment: Sections (c) and (d) of Rule 4 are amended significantly in an effort to simplify Arkansas appellate practice. The amended provisions are modeled on Rule 4 of the Federal Rules of Appellate Procedure, though the federal practice has not been followed in all particulars. When the Arkansas Rules of Civil Procedure were promulgated in 1979, the federal approach with respect to judicial action on posttrial motions was not adopted for fear of excessive delay. It is now apparent, however, that precisely the same sort of delay occurs regularly under the more complex Arkansas rule, which also has become a trap for the unwary. The Arkansas practice has been further complicated by decisions construing Rule 4 in such a manner as to impose additional requirements not found on the face of the rule. E.g., Brittenum Assocs. v. Mayall, 286 Ark. 427, 692 S.W.2d 248 (1985). Thus, the 1988 amendment follows the more simplified procedure established in the federal rule, but adds a 30-day "window" for judicial action on posttrial motions to prevent problems with excessive delay. Under Rule 4 (c), a motion is deemed denied if the trial court neither grants nor denies the motion within 30 days of its filing, and, under Rule 4 (d), the time for filing the notice of appeal begins to run at the end of that 30-day period. If, however, an order granting or denying the motion is acted upon within the 30-day period, the time for filing the notice of appeal begins to run upon entry of the order.
Further, the 1988 amendment expands from 10 to 30 days the time period in Rule 4 (d) for filing the notice of appeal when a posttrial motion has been made. This change, which makes consistent the time periods found in Rule 4 (a) and 4 (d), should eliminate confusion as to the time for filing the notice of appeal. Moreover, the amendment works an important change in prior Arkansas law. Because of the shorter time period contained previously in Rule 4 (d), it was possible for an appellant to miss the 10-day deadline but still file a notice of appeal from the order denying the posttrial motion by complying with the 30-day period provided in Rule 4 (a). E.g., Cornett v. Prather, 290 Ark. 262, 718 S.W.2d 433 (1986). In that event, the appellant could challenge only the trial court's action with respect to the posttrial motion and could not attack other errors underlying the judgment. Id. By establishing a uniform 30-day period for filing the notice of appeal, amended Rule 4 (d) eliminates this possibility and is thus consistent with Rule 5 (b), which provides that an appeal from an order disposing of a posttrial motion under Rule 4 "brings up for review the judgment, decree and any intermediate order involving the merits and necessarily affecting the judgment, as well as the order appealed from."
Arkansas Supreme Court Administrative Order Number 1. Special Judges
Sec. 1. When the judge of a circuit, chancery, or probate court shall fail to attend on any day scheduled for the holding of that court, or if such a judge is disqualified from presiding in any pending case, upon notice from the clerk of the court, the regular practicing attorneys attending the court may elect a special judge. The attorneys present in the courtroom shall elect one of their number as special judge. The election shall be conducted by the clerk of the court, who will accept nominations from the attorneys present. Only attorneys who are qualified to serve as special judge may vote in the election of a special judge. The election shall be by secret ballot. The attorney receiving a majority of the votes shall be declared elected as special judge. He shall immediately be sworn in by the clerk and shall immediately enter upon the duties of the office. He shall adjudicate those causes pending at the time of his election.
Sec. 2. When a special judge is to be elected, notice shall be given by the clerk of the court to the regular practicing attorneys in the county served by the court in the most practical manner in the circumstances, including giving notice by telephone or by posting the notice in a public and conspicuous place in the courtroom.
Sec. 3. No person who is not an attorney regularly engaged in the practice of law in the State of Arkansas and duly licensed and in good standing to do so, and who is not a resident possessed of the qualifications required of an elector of this state, whether registered to vote or not, shall be elected special judge.
Sec. 4. For purposes of this rule, each division of a court in a county shall be considered to be a separate court.
Sec. 5. The clerk of the court in the county in which the special judge election is held shall make a record of the proceedings, which shall be a part of the record of the court and shall be in substantially the following form:
IN THE _________ COURT OF ________ COUNTY, ARKANSAS
IN THE MATTER OF __________________ SPECIAL JUDGE
Now on this _____ day of _____, 19 _____, the Honorable notified the clerk that he was unable to attend and preside over this court on this day. WHEREUPON, the Clerk gave notice pursuant to Administrative Rule No. 1 that an election was to be held of a Special Judge to preside during the absence of said Judge.
AND THEREAFTER, the Honorable _______________, an attorney at law, a resident of the State of Arkansas and possessing the required qualifications, having received a majority of the votes cast at such special election, at which only the practicing attorneys in attendance on the Court were allowed to vote, was found and declared to be duly elected Special Judge to preside during the absence of the Honorable _______________.
WHEREUPON, the Clerk did administer the oath of office required by law as such Special Judge and he assumed the bench and entered upon the discharge of his duties herein.
_____________ Clerk
OATH OF OFFICE
STATE OF ARKANSAS) ) COUNTY OF )
I, _______________, do solemnly swear that I will support the Constitution of the United States and the Constitution of the State of Arkansas, and that I will faithfully discharge the duties of the office of Special Judge of _____ Court, _____ Division, _____ County, upon which I am about to enter.
_____________ Special Judge
Witnesses
_____________
_____________
_____________
Subscribed and sworn to before me this _____ day of _____, 19__.
________________ Circuit/Chancery Clerk
By: ____________ Deputy Clerk
Arkansas Supreme Court Administrative Order No. 2
(a) Dockets. The clerk shall keep a book known as a "civil docket," a book known as a "chancery docket," a book known as a "probate docket," and a book known as a "criminal docket," and shall enter therein each action. Cases shall be assigned docket numbers in the order of filing and beginning with the first case filed each year in each court, the last two digits of the current year shall be entered, followed by a hyphen and the number assigned to the case, beginning with the number "1". For further identification, the court may direct that the letters "CIV" or "CR" precede the docket number for cases filed in circuit court, that the letter "E" precede the docket number for cases filed in chancery court, and that the letter "P" precede the docket number for cases filed in probate court.
All papers filed with the Clerk, all process issued and returns thereon, all appearances, orders, verdicts and judgments shall be noted chronologically in the dockets and filed in the folio assigned to the action and shall be marked with its file number. These entries shall be brief, but shall show the nature of each paper filed or writ issued and the substance of each order or judgment of the Court and of the returns showing execution of process. The entry of an order or judgment shall show the date the entry is made. Where there has been a demand for trial by jury it shall be shown on the docket along with the date upon which demand was made.
(b) Judgments and Orders. The clerk shall keep a judgment record book in which shall be kept a correct copy of every final judgment or appealable order, or order affecting title to or lien upon real or personal property, and any other order which the Court may direct to be kept.
(c) Indices. Suitable indices of the civil, criminal, chancery, and probate docket and of every judgment or order referred to in Section (b) of this rule shall be kept by the clerk under the direction of the court.
(d) Other Books and Records. The clerk shall also keep such other books and records as may be required by law and as directed by the Court.
(e) Clerk Defined. When used herein, the term clerk refers to the clerks of the various circuit, chancery or probate courts of the state.