When the Arkansas Chief Justice is absent or unable to serve, how is an acting Chief Justice selected, and is the statutory seniority rule consistent with Amendment 80?

Plain-English summary

Senator Bart Hester asked the AG to address what he saw as a possible conflict between Amendment 80 to the Arkansas Constitution and Ark. Code Ann. § 16-10-101 over how an acting Chief Justice gets chosen when the elected Chief Justice is absent or unable to serve.

The AG concluded there is no conflict. Reading the two provisions side by side, the AG found three points of agreement:

1. Both establish criteria for when an Acting Chief Justice needs to be selected (absence or incapacity, with the statute adding "inability to perform the duties" and "as required by rule or order of the Supreme Court").
2. Both have the same effect: when those criteria are met, an Acting Chief Justice must be selected. The opinion noted a wording difference: Amendment 80 says the Court "shall" select an Acting Chief Justice while the statute says the duties "may be performed by" the senior associate justice, and the AG observed that to the extent there's any tension, the constitution wins, so an Acting Chief Justice must be selected.
3. Both limit the pool of candidates to the remaining elected associate Justices.

The statute then goes one step further. It prescribes the method of selecting among that pool: by order of seniority of service on the Supreme Court. Amendment 80 is silent on method. The AG read the statute as filling in the gap rather than contradicting the amendment.

A separate question the opinion addressed: is the Arkansas Supreme Court required to follow § 16-10-101(d)'s seniority rule? The AG said the Court has its own constitutional authority over its practice and procedures under Amendment 80, § 3 (citing Summerville v. Thrower and Johnson v. Rockwell Automation), so the Court could, by rule or order, prescribe a different method. But in the absence of such a rule or order, the seniority rule in § 16-10-101(d) governs.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What does Amendment 80, § 2 say?

"During any temporary period of absence or incapacity of the Chief Justice, an acting Chief Justice shall be selected by the Court from among the remaining justices."

What does Ark. Code Ann. § 16-10-101(d) add?

"In the event of the absence of the Chief Justice or his or her inability to perform the duties described in this section, or as required by rule or order of the Supreme Court, the duties may be performed by the several associate justices of the Supreme Court in the order of their seniority of service on the Supreme Court."

Why aren't the two provisions in conflict?

Because they govern different layers of the same question. Amendment 80 establishes the pool of eligible candidates and the duty to select an Acting Chief Justice when needed. The statute fills in the gap that Amendment 80 leaves open: which member of the pool gets selected when the constitution doesn't say. Both can be followed at the same time.

Can the Supreme Court override the seniority rule?

Yes. Amendment 80, § 3 gives the Arkansas Supreme Court authority over its own practice and procedures, and the AG read the manner of selecting an Acting Chief Justice as a practice-and-procedure question. The Court could, by rule or order, adopt a different selection mechanism. But until the Court does so, the statutory seniority rule controls.

What if a future Chief Justice tries to deviate from the seniority rule informally?

The opinion does not address that scenario directly. By its logic, an ad hoc deviation that doesn't come through a Supreme Court rule or order would not displace the statute.

Background and statutory framework

Amendment 80 to the Arkansas Constitution, adopted in 2000, restructured the state's judicial branch. Section 2 of Amendment 80 created the Acting Chief Justice mechanism. Section 3 gave the Supreme Court rulemaking authority over practice and procedure, and Arkansas Supreme Court cases (Summerville v. Thrower, Johnson v. Rockwell Automation) confirmed that this rulemaking authority displaces conflicting statutes within its scope.

Ark. Code Ann. § 16-10-101(d) had described the Acting Chief Justice mechanism before Amendment 80. The AG read the statute as continuing to operate alongside Amendment 80, filling in the method of selection (seniority) that Amendment 80 leaves open. The opinion noted that the statute's use of "may" creates a small tension with Amendment 80's "shall," and resolved it in favor of the constitution.

Citations

• Ark. Const. amend. 80, § 2
• Ark. Const. amend. 80, § 3
• Ark. Code Ann. § 16-10-101
• Ark. Code Ann. § 16-10-101(d)
• Summerville v. Thrower, 369 Ark. 231, 238-39, 253 S.W.3d 415, 420 (2007)
• Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2015-038
July 17, 2015

The Honorable Bart Hester
State Senator
P.O. Box 85
Cave Springs, Arkansas 72718

Dear Senator Hester,

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

You have requested my opinion regarding, what you describe as, "the potential conflict between Amendment 80 to the Arkansas Constitution and Ark. Code Ann. § 16-10-101." Specifically, you ask "[W]hat is the process or policy in the absence of the Chief Justice of the Arkansas Supreme Court?"

RESPONSE

I take this question to be asking about the rules for selecting an acting Chief Justice (ACJ) when the elected Chief Justice (ECJ) is unable to serve in a given case or set of cases. For the reasons explained below, I do not think there is a conflict between Amend. 80, § 2 and Ark. Code Ann. § 16-10-101(d). They can be read harmoniously. Both provisions establish the pool of candidates who (under certain circumstances) are qualified to serve as an ACJ: namely, the remaining elected associate Justices. Section 16-10-101(d) goes further to prescribe the method for selecting the ACJ from among the remaining Justices: namely, by order of seniority. Thus, the statute is more specific than Amendment 80 but does not conflict with it.

DISCUSSION

Before expounding the two provisions, it will be useful to have both provisions stated in full:

• Amend. 80, § 2: "During any temporary period of absence or incapacity of the Chief Justice, an acting Chief Justice shall be selected by the Court from among the remaining justices."

• Ark. Code Ann. § 16-10-101(d): "In the event of the absence of the Chief Justice or his or her inability to perform the duties described in this section, or as required by rule or order of the Supreme Court, the duties may be performed by the several associate justices of the Supreme Court in the order of their seniority of service on the Supreme Court."

Three observations show that these provisions are compatible. Each provision establishes: (1) criteria for when the ECJ is considered unable to serve; (2) that, if those criteria are met, an ACJ must be selected; (3) that only the remaining elected associate Justices are eligible to serve as an ACJ. The statute then goes further than Amendment 80 by specifying that the elected associate justices are eligible to serve as an ACJ by order of seniority.

If Amendment 80 stated that order-of-seniority was not the manner of selecting an ACJ, then there would be a conflict between the two provisions. But there is clearly no express conflict between the two provisions. Further, in my opinion, there is no latent conflict because both provisions can be followed.

In response to your question, therefore, when the ECJ is considered absent or otherwise unable to serve in a case or set of cases, the Court selects the next most senior, elected associate Justice to serve in place of the ECJ.

A final question is whether the Arkansas Supreme Court is required to follow section 16-10-101(d)'s prescription regarding the method of selecting the ACJ. Amendment 80 gives the Arkansas Supreme Court authority over its own practice and procedures. Because the manner of selecting an ACJ is almost certainly considered a matter of practice and procedure, the Arkansas Supreme Court has the authority to provide (by rule or order) a different manner of selecting an ACJ. But, in the absence of such a rule or order (as is the case here), the Arkansas Supreme Court is required to follow the manner of selection stated in section 16-10-101(d).

[Footnote: There is an important difference between the two provisions regarding the effect of the ECJ's absence or inability. Amendment 80 states that, when the ECJ is absent or unable to serve, an ACJ "shall be selected." But the statute states that the ECJ's "duties may be performed by" the ACJ. (Emphases added.) When the constitution and a statute conflict, the constitution trumps. Thus, to the extent there is a conflict between Amend. 80 and the statute regarding whether the Court must select an ACJ, the answer is clear. The constitution trumps, and an ACJ must be selected.]

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/RO:cyh