Arkansas: if the Supreme Court loses its rulemaking power, will it get merit selection in exchange?

I’ve noted the ongoing fight over the Arkansas Supreme Court’s rulemaking authority, the citation to that authority to overturn tort reform laws, and the effort to constitutionally remove the Supreme Court’s power on this score. Coming up later today, however, are bills that tie merit selection into the equation.

First, some background.

When Arkansas voters approved Amendment 80 in 2000, they moved the state away from partisan elections to nonpartisan ones, but kept open the possibility to a switch to merit selection for the appellate courts at some future time. Under Section 18 of Amendment 80, a simple majority of the legislature can refer the issue to the voters. Since 2000 there has been only one effort to even propose such a change: SB 744 of 2011 would have put the question of merit selection for the Court of Appeals only to voters. It went nowhere.

In the alternative, the Arkansas constitution allows for an amendment to be submitted to the public with a single session majority vote, which is where a series of placeholder bills set for a hearing today comes into play, all proposed by the same member of the Arkansas House.

HJR 1005 is straightforward, providing a merit selection system for state supreme court justices only and explicitly prohibiting the justices from engaging in partisan/party activity.

The other House bills are more ambiguous placeholders. The official text, not the preamble or synopsis but the text itself, of HJR 1012 and HJR 1014 echo language from SJR 5, a bill to remove the court’s rule making power with respect to civil claims and procedural law.

HJR 1012: “The purpose of this joint resolution is to amend the Arkansas Constitution concerning the judicial department of state government, including without limitation amending the process for selecting justices of the Supreme Court and amending Amendment 80 to the Arkansas Constitution and other constitutional provisions concerning the litigation of civil claims.”

HJR 1014: “The purpose of this joint resolution is to amend the Arkansas Constitution concerning the judicial department of state government, including without limitation amending the process for selecting justices of the Supreme Court and clarifying substantive and procedural law and rights under Amendment 80 to the Arkansas Constitution.”

It is not uncommon for such placeholder language to be replaced by operative text. For example SJR 5 as introduced read

The purpose of this joint resolution is to propose an amendment to the Arkansas Constitution concerning civil claims and court procedures.

The author then amended in the operative text to remove the Supreme Court’s rulemaking power.

The General Assembly shall delegate nonexclusive authority to the Supreme Court shall to prescribe the rules of pleading, practice and procedure and the rules of evidence 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.

All 4 bills (HJR 1005, HJR 1012, HJR 1014 & SJR 5) are up for a hearing before theĀ  Arkansas Joint Committee on Constitutional Amendments later today.