Chapter 18 Special and Extraordinary Proceedings

• Library: Handling Appeals in Arkansas (2021 Ed.)

CHAPTER 18 SPECIAL AND EXTRAORDINARY PROCEEDINGS Brian G. Brooks, Heather Goodson Zachary and Joseph R. Falasco

A. What are Extraordinary Proceedings and What Allows Them?

This book is about appeals. Appeals, after all, are what the Arkansas Supreme Court and Court of Appeals do. As a general proposition, our appellate system is structured around the notion that each party is entitled to one appeal of a final order at the end of the case before a circuit court. In the interest of judicial economy, we scrupulously avoid "piecemeal" appeals of individual issues as they arise.

In certain "extraordinary" situations, however, a piecemeal approach can advance judicial economy. Moreover, sometimes it is best that an action begin, or be original to, the appellate courts. Our State Constitution contemplates these actions.

In 2000, the people adopted Amendment 80 to the Arkansas Constitution, which redefined and clarified the powers of the Arkansas Judiciary. It vested the Supreme Court with original jurisdiction to:

• Issue writs of quo warranto to all persons holding judicial office, and to officers of political corporations when the question is the legal existence of such corporations;
• Answer questions of state law certified by a federal court;
• Determine the sufficiency of state initiative and referendum petitions and proposed constitutional amendments;
• Issue and determine any and all writs necessary in aid of its jurisdiction and to delegate to its several justices the power to issue such writs; and
• Exercise other original jurisdiction as the Constitution provides.

Ark. Const. amend. 80, § 2(D)(2)-(5), (E). In addition, Section 4 of Amendment 80 gives the Arkansas Supreme Court "general superintending control over all courts of the state." The Supreme Court's rules further embody the court's jurisdiction to hear and decide extraordinary writs. See ASCR 1-2(a)(3).

These sections, taken together, set forth areas where the Arkansas Supreme Court may act outside its normal role of reviewing cases that have been fully litigated in the circuit courts. Most jurisdictional anomalies under Amendment 80 are self-explanatory, and a litigating attorney knows she has one when it arises, and knows that the Supreme Court has a basis for acting. For example, no one doubts whether a case is certified from a federal court because an order certifying the case is issued. Likewise, a case challenging the sufficiency of a state initiative or referendum is clearly within the Supreme Court's original jurisdiction.

On the other hand, the Arkansas Supreme Court's "original jurisdiction" for issuing extraordinary writs is not always obvious. The availability of such writs, which are usually issued to fulfill the court's ability to superintend the lower courts, is sometimes inconspicuous. They are also more common and more important to the every-day practitioner.

B. What are the Common Extraordinary Writs?

So what is a writ? The simplest definition is "[a] court's written order . . . commanding the addressee to do or refrain from doing some specified act." Black's Law Dictionary 1747 (9th ed.). An example is useful. One of the great writs is the writ of habeas corpus ad testificandum. That phrase is a mouthful, but its meaning is simple. Habeas corpus means "you have the body." Habeas corpus ad testificandum means "you have the body to testify." This writ, then, commands an authorized person to bring a prisoner to court to testify. Black's Law Dictionary 778 (9th ed.).

This basic understanding is useful when examining the four writs commonly used in Arkansas cases: quo warranto, mandamus, prohibition, and certiorari. Each writ has a purpose. Mastering the purposes, some definitions, and a few basic maxims is necessary.

1. The Writ of Quo Warranto

The writ of quo warranto was originally a "writ of right for the king," and demands that someone who exercises authority explain or justify the basis for the authority to act. It questions whether the person exercising a power is legally entitled to do so. The purpose of the writ is to prevent someone from exercising authority he has no power to exercise. Black's Law Dictionary 1371 (9th ed.).

2. The Writ of Mandamus

Mandamus means "we command." Black's Law Dictionary 1046 (9th ed.). A writ of mandamus is used to enforce an established right or to enforce the performance of a duty. Manila Sch. Dist. No. 15 v. White, 338 Ark. 195, 196, 992 S.W.2d 125, 126 (1999). It is issued only to compel an official or judge to take some action. Raines v. State, 335 Ark. 376, 378, 980 S.W.2d 269, 270 (1998). The party requesting a writ of mandamus must show a clear and certain right to the relief sought and the absence of any other adequate remedy. Hanley v. Ark. State Claims Comm'n, 333 Ark. 159, 164, 970 S.W.2d 198, 200 (1998). A writ of mandamus cannot be issued to control or review matters of discretion. Saunders v. Neuse, 320 Ark. 547, 550, 898 S.W.2d 43, 45 (1995).

3. The Writ of Prohibition

Prohibition is "[a]n extraordinary writ issued by an appellate court to prevent a lower court from exceeding its jurisdiction or to prevent a nonjudicial officer or entity from exercising a power." BLACK'S LAW DICTIONARY 1331 (9th ed.).

(a) General Scope of the Writ of Prohibition

A writ of prohibition is available when the circuit court is wholly without jurisdiction, that is, without power to hear the controversy. Jordan v. Cir. Ct. of Lee Cnty., 366 Ark. 326, 330, 235 S.W.3d 487, 490 (2006); Conner v. Simes, 355 Ark. 422, 425-26, 139 S.W.3d 476, 478 (2003); Finney v. Cook, 351 Ark. 367, 370, 94 S.W.3d 333, 336 (2002); State v. Cir. Ct. of Lincoln Cnty., 336 Ark. 122, 125, 984 S.W.2d 412, 414 (1999). The jurisdictional question, moreover, must be legal rather than factual; the Supreme Court thus confines its review to the pleadings in the case. Conner, 355 Ark. at 426, 139 S.W.3d at 478. If a circuit court has jurisdiction, prohibition will not issue — even if the circuit court has erroneously used its...