Legislative Powers And Previous Court Rulings Argued Before The Arkansas Supreme Court

Sep 20, 2019

Joshua Allen, representing the appellant in this case, argues before the Arkansas Supreme Court.
Credit Sarah Kellogg - KUAR News / KUAR

The Arkansas Supreme Court Thursday heard arguments over whether a state law can retroactively uphold a contractual waiver of a jury trial in a specific civil court lawsuit.

The validity of the contractual jury-waiver clause in this specific case was the center of the oral argument. However, the implications of a potential overreach from the legislative branch overruling a decision of the state Supreme Court were also discussed.

Joshua Allen, representing the appellant, argued Kenneth Tilley has the right to a jury trial in his civil lawsuit due to a 2017 decision by the state Supreme Court. In that decision, the court overturned the circuit court ruling, saying Tilley had a constitutional right to a jury trial as long as there was not a specific law that allowed for such clauses.

The case concerns both that ruling and Act 13, which was passed by the Arkansas Legislature in 2018. It allows for “a written provision in a contract to borrow money or to lend money in which the parties agree to waive their respective rights to a trial by jury under [the] Arkansas Constitution.” The law also applies retroactively to previous contracts as well as pending judicial proceedings, meaning the refusal of a jury trial, including Tilley’s case, was legal. 

According to Allen, Act 13 should not apply to this specific case.

“By applying it retroactively to this particular case, the end effect was essentially that the decision in ‘Tilley I,’ was effectively overturned,” Allen said. Justice Rhonda Wood pointed out the “Tilley I” decision ultimately allowed such contracts as long as a law was passed. 

“So the vested right was the jury trial, unless prescribed by law – and wouldn’t you agree that now it is the process prescribed by law?” Wood said. Because the legislature would be overruling a state Supreme Court decision in this specific case, Allen argued this represented a violation of the separation of powers between the legislative and judicial branches. 

“Once the legislature is technically prescribing a procedure, that technically previously had been governed by Arkansas rules as civil procedure, then it is invading the judiciary’s exclusive rulemaking authority,” Allen said. Kristen Moyers, representing the appellees, argued Act 13’s validity, saying since the law did retroactively include pending legal cases, Tilley still does not have the right to a jury trial. Moyers cited the Supreme Court’s previous “Tilley I” decision, which allowed for such legislation if passed.

“I think ‘Tilley I’ was broad enough to contemplate the passage of legislation prescribing manners by which parties could waive their right to a jury trial,” Moyers said. While discussing the previous ruling by the Supreme Court that granted Tilley the right to a jury trial, Justice Karen Baker questioned Moyer on her stance concerning the Supreme Court’s jurisdiction.

“Are you actually arguing that the trial court had no obligation to afford Mr. Tilley a jury trial after this court issued its opinion in ‘Tilley I?’” Baker asked. Moyer reiterated that in the same ruling, the court said jury waiver clauses were not enforceable due to a lack of state law. Once that law was passed, the clauses were then enforceable and Tilley no longer had the right to a jury trial. 

This case marks the second of the Arkansas Supreme Court’s 2019 Fall Term, the next oral argument is set for October 3.