Thursday, January 10, 2008

Arkansas Supreme Court maintains prohibition on citation of unpublished opinions

As noted in an earlier post, the Arkansas Supreme Court on Thursday, January 10, 2008, issued a per curiam opinion concerning proposed amendments to several court rules. One of the proposals sought to change a provision in Arkansas Supreme Court Rule 5-2, which prohibits citation to unpublished opinions of the Arkansas Court of Appeals. (In contrast, under current rules, all signed opinions of the state's supreme court are published--and thus citable precedent.) I've received a number of e-mails requesting more information. Here it is.

The proposed amendment to the rule would have done a number of things:

  • required the Reporter of Decisions to publish and maintain a "searchable library" on the court's website of all opinions issued after January 1, 2000;
  • let both courts decide which opinions to publish (or not) in the state's official reporters;
  • whether an opinion was published or not, would have treated it as "precedent [which] may be relied upon and cited by any party in any proceeding";
  • mandated particular citation formatting for Arkansas opinions available only in online sources;
  • changed Rule 4-2, which covers contents of the brief, to require Bluebook formatting for citations to authorities from other jurisdictions.

There are many things which could have been found objectionable in the proposal, with the most likely candidate the provision making unpublished opinions precedential. The per curiam opinion did not, however, state the reasons for the court's decision to "decline, by a vote of 4 to 3, to approve the [Arkansas Supreme Court Committee on Civil Practice's] proposed change to Rule 5-2."

If I discover more information about the court's decision to reject the amendment, I'll post it here.


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