Kelley v. Shults.dissent

Cite as 2017 Ark. 112
SUPREME COURT OF ARKANSAS
No. CV-17-261
Opinion Delivered: April 3, 2017
WENDY KELLEY, IN HER OFFICIAL
CAPACITY AS DIRECTOR OF THE EMERGENCY MOTION FOR
ARKANSAS DEPARTMENT OF IMMEDIATE STAY
CORRECTION, AND THE ARKANSAS
DEPARTMENT OF CORRECTION
APPELLANTS
V.
STEVEN SHULTS DISSENTING OPINION.
APPELLEE
RHONDA K. WOOD, Associate Justice
The circuit court, from the bench, ordered the State to disclose within thirty minutes
unredacted copies of the package insert and label for the State’s recently-acquired potassium
chloride. The State immediately appealed and filed a motion for an emergency stay. At the
time, the oral order was not issued in written form and filed by the circuit clerk. A written
order has subsequently been filed; however, the State has not supplemented the record on
appeal to include the written order. The majority dismisses the appeal for this reason. It
maintains that our rules impose a jurisdictional requirement that a written order be filed in
order for this court to consider the State’s emergency request for a stay. I dissent because
the proper course is to order the State to supplement the record.
This court has jurisdiction to grant stays in an expedited and extraordinary fashion
under Rule 6-1 of the Rules of the Arkansas Supreme Court. Appellants have sought relief
Cite as 2017 Ark. 112
under this rule. Rule 6-1(c) provides a necessary mechanism for applications of temporary
relief such as this. The Rule requires only certified copies of the pleadings, which “are
treated as the record.” Ark. Sup. Ct. R. 6-1(a). At the time the motion was filed, it is
undisputed by the parties that the circuit court ordered immediate relief, despite not entering
a written order until the following afternoon. The State complied with the requirements of
Rule 6-1.
The majority sua sponte dismisses the stay request for lack of jurisdiction, once again
conflating procedural issues with jurisdictional ones. Certainly, under Arkansas Rule of Civil
Procedure 58 and Administrative Order No. 2, we require circuit courts to reduce their
oral pronouncement to a written form to be filed with the clerk. Yet these two rules are
procedural rather than jurisdictional. Procedural law is defined as “[t]he rules that prescribe
the steps for having a right or duty judicially enforced, as opposed to the law that defines
the specific rights or duties themselves.” Summerville v. Thrower, 369 Ark. 231, 237, 253
S.W.3d 415, 420 (2007). As I have noted in an earlier case, “Clarity would be facilitated if
courts and litigants used the label ‘jurisdictional’ not for claim-processing rules, but only for
prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons
(personal jurisdiction) falling within a court's adjudicatory authority.” Bradley v. State, 2015
Ark. 144, at 7, 459 S.W.3d 302, 306 (Wood, J., dissenting) (citing Kontrick v. Ryan, 540
U.S. 443, 454-55 (2004). Because neither party objected to the lack of a filed, written order,
we are under no obligation to raise the issue on our own.
I recognize that the question whether an order is final and subject to appeal is a
jurisdictional question that this court will raise sua sponte. Kowalski v. Rose Drugs of
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Cite as 2017 Ark. 112
Dardanelle, Inc., 2009 Ark. 524, 357 S.W.3d 432. However, what is before us today is a
request for a temporary stay alone, not the merits of an appeal or a motion to dismiss the
appeal. We have never addressed the final-order issue at this early stage.
The most deliberate action for us would be to order the State to supplement the
record with the subsequent written order. We have authority for doing so under the rules:
“If anything material to either party is omitted from the record by error or accident . . . the
appellate court . . . on its own initiative, may direct that the omission nor misstatement be
corrected, and if necessary, that a supplemental record be certified or transmitted.” Ark. R.
App. P.–Civ. 6(e). Rather than dismissing the request for a stay, we should give the State
an opportunity to provide the most up-to-date record. For this reason, I dissent.
WOMACK, J., joins.
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