Litigation

Arkansas Supreme Court, Having Recently Declined to Abolish its No-Citation Rule, Bars Litigant From Citing Unpublished Opinions

By H. William Allen et al.

The Arkansas Supreme Court recently decided not to abolish its no-citation rule. The rule is contained in Arkansas Supreme Court Rule 5-2 and bars litigants from citing any unpublished decision of the Arkansas Court of Appeals in a brief filed in the Arkansas appellate courts.

Today, in Dodson v. Norris, No. 07-1179, the Arkansas Supreme Court sent the message that it was quite serious about its decision to keep the no-citation rule. The petitioner, who is briefing a criminal law question certified to the Court by the Eastern District of Arkansas, requested permission to cite some unpublished Court of Appeals opinions because "only four published opinions exist on the issues involved in this appeal."

The Court replied, "no," by way of citation to Weatherford v. State, 352 Ark. 324, 101 S.W.3d 227 (2003). Weatherford was an interesting case that presented a federal due-process challenge to Rule 5-2, as well as arguments under the Arkansas Constitution--all of which were denied. In denying petitioner's motion, the Court wrote:

We dealt extensively with the use of unpublished opinions in Weatherford v. State . . . we said, “While Appellant may prefer those cases that are not published, there is nothing to indicate that Appellant is impaired in seeking immediate appellate relief by not being able to rely on those cases.” Such is the case here.

Full post as published by Arkansas Business Litigation Blog on April 10, 2008 (boomark / email).