[Author's Note: Grateful acknowledgments are extended to Emma Jane Ohnemus, Esq., of Little Rock, for research and editorial assistance; Jane Portis Roeder of Conway, for research; the Honorable Darrell Hickman, retired Justice of the Arkansas Supreme Court and currently Circuit Judge for the 17th Judicial Circuit, for candid critique, commentary, and advice; and the Honorable David Stewart of the Little Rock District Court, for a lively point/counterpoint debate on significant issues and candid commentary on early drafts of this article.]

Editor's Note:
     Part I of this article was published in the Fall 2001 issue of The Arkansas Lawyer. The following Introduction is excerpted from that article:

Introduction
     In Part I of this article, we postulated that when a person is stopped for a traffic offense in one town, but cited into the court of another town, regardless of the quality of justice ultimately dispensed, "it doesn't seem cricket" to the non-legally-trained mind. Nor to a lot of legally-trained minds. Law books have indicated only that such filings are not defective because municipal (now district) courts have had "countywide jurisdiction" ­ except for ten counties that are divided into two judicial districts, where the jurisdiction is district-wide. (Footnotes in Part I elaborate on this point.) Amendment 80 gives us, the legal profession, a mandate at least to consider fixing this appearance of impropriety. In Part I, we looked at a century of case law, noting repeated dissent urging that law enforcement officials should file misdemeanor cases, especially traffic offenses, in courts most logically associated with the point of the infractions. In Part II, we analyze Amendment 80's provisions that bear on this issue and consider other jurisdictional points as well.

Part II
     Recalling that the issue is whether a person arrested in an area served by one inferior court may rightfully be hailed into a different area's court, in discussion with other judges, I have identified eight sections of Amendment 80 that seem to bear on this narrow issue:
     Section 3 provides that "The Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts."
     Section 4 provides that the Supreme Court "shall exercise general superintending control over all courts of the state."
     Section 7(B) provides that district courts "shall have original jurisdiction, concurrent with Circuit Courts, of misdemeanors, and shall also have such other criminal jurisdiction as may be provided pursuant to Section 10 of this Amendment."
     Section 7(C) provides that there "shall be at least one District Court in each county. If there is only one District Court in a county, it shall have countywide jurisdiction. ..."
Section 10 grants the legislature "power to establish jurisdiction ... and venue" of district courts.
     Section 16(D) provides that district judges "shall be qualified electors within the geographical area from which they are chosen, and ... shall reside within that geographical area at the time of election and during their period of service. A geographical area may include any county contiguous to the county to be served when there are no qualified candidates available in the county to be served."²⁸
     Section 17(A) provides that district judges "shall be elected on a nonpartisan basis by a majority of qualified electors voting for such office within the circuit or district which they serve."²⁹
     Section 19(B)(2) provides that district courts "shall have the jurisdiction vested in" all inferior courts. One interpretation is that Amendment 80 answers the issue in the negative. The rationale there is that the word jurisdiction in Section 19(B)(2) refers to subject matter jurisdiction only and, therefore, beginning in 2005, a district judge's authority to hear criminal cases, under Section 7(B), will be limited, under Sections 7(C) and 17(A), to those arising within the district in which her electors reside.
     The other interpretation is that Amendment 80 did not really answer the issue. The rationale there is that Section 19(B)(2)'s use of the word jurisdiction is broader, elaborating upon earlier stated concepts, and that it encompasses subject matter, personal, territorial, and whatever other type of jurisdiction there may be,³⁰ and, therefore, the status quo of countywide jurisdiction prevails, until legislation or court rule states otherwise.
     In my opinion, Section 7(B)'s language "original jurisdiction ...of misdemeanors [and] such other criminal jurisdiction as may be provided" so clearly relates to subject matter jurisdiction that the later language of Section 19 arguably is not concerned solely with subject matter. Thus, one must inquire, with what is it concerned? Through what I see as the logic of the language, Section 19 can only be concerned with an all-inclusive concept of jurisdiction.³¹
     To explore the two theories, one must examine whether Amendment 80 supersedes Ark. Code Ann. §16-17-206's grant of countywide jurisdiction to district courts. Section 10 grants the legislature "power to establish jurisdiction ...and venue" of district courts. That seems a logical place to look for language repealing this statute, whether in response to case law or otherwise. While Section 10 seems to address some case-related issues,³² it seems to me to be devoid of express intent to override prior law on this point.
     However, Ark. Code Ann. §16-17-206 was upheld on the basis of the 1874 Constitution's judicial article, which now stands repealed. Other Amendment 80 language arguably is inconsistent with §16-17-206. So, one might ask whether it was implicitly repealed. If the legislature were to enact a law providing for citywide election of certain district judges, but establish territorial jurisdiction as the city's planning jurisdiction (five miles out or half way to the next city³³), effectively establishing an arrangement similar to the one upheld in Holt Civil Club v. City of Tuscaloosa,³⁴ would that Act withstand a challenge?
     The Honorable David Stewart, my colleague on the district court bench in Little Rock, would say no. He believes that Section 7(C) impliedly repealed Ark Code Ann. §16-17-206, reasoning that if there is only one district court in a county, it has countywide jurisdiction "in every respect ­ venue, territorial jurisdiction, election, and service" and that this "logically implies that if the county has two or more separate district courts, those courts also have separate areas that define and restrict venue, territorial jurisdiction, election, and service."³⁵
     That interpretation is logical and easy to embrace. I am not against it. It naturally falls into place if the intent of the amendment was to adopt the dissenting view in the case law. Judge Stewart is not alone in his belief that this was part of the intent. I merely submit that this intent is difficult to find in the language.
     I also submit that if this is the proper interpretation, then it becomes a real chore to fashion a plan calling for any district courts to have overlapping jurisdictions, unless, in those geographic areas, a venue rule is imposed. Otherwise, there will be the appearance of revenue-oriented court selection, at least in some instances. History teaches that traffic cases will be the focal point of forum-shopping allegations. If Amendment 80's intent was to repeal countywide jurisdiction, then surely its intent also was to eliminate "the specter of improper forum-shopping."³⁶
     The end of having a judge sit primarily on cases arising from areas consisting of his electors is achievable. But in my opinion, Amendment 80 alone did not achieve this end.
     The General Assembly may enact legislation establishing district court jurisdiction coextensive only with their respective districts. Unless it does so, I submit that countywide jurisdiction (district-wide in the ten counties named in Note 1) will continue to be the rule. Even if it does so, there is the possibility for some overlapping jurisdictions, such as areas in which one judge is elected countywide and one or more others elected citywide.
     Arguably, a joint reading of Sections 10, 3, and 4, reflect a grant to the Supreme Court of express concurrent authority with the legislature over venue. While venue statutes are sprinkled throughout the state and federal codes,³⁷ venue also may be the topic of procedural rules.³⁸ There is no statute mandating venue for criminal cases in district courts. Absent a statute in an area of concurrent authority, the court may promulgate a rule. The Attorney General, by a directive to all prosecutors, could accomplish the desired end less formally.
     If 2005 finds any of our state's district courts with overlapping jurisdictions, then a venue statute, rule of court, or prosecutorial edict will be needed to bring about optimum fairness, to make things cricket.

Subject Matter Jurisdiction
     The new district courts are to be "trial courts of limited jurisdiction as to amount and subject matter, subject to the right of appeal to Circuit Courts for a trial de novo."³⁹ Limited subject matter jurisdiction, both civil and criminal, reflects the status quo, along with a civil case "jurisdictional amount" ($5,000⁴⁰), within which jurisdiction has been concurrent with circuit courts.
     However, the new district courts' jurisdictional amount and subject matter of civil cases "shall be established by Supreme Court rule."⁴¹ This is new. Determination of civil jurisdiction will be the exclusive province of the Supreme Court. Effecting changes in this area will henceforth involve a different process⁴² from that of passing legislation. Depending on how the Court chooses to employ this power, significant changes are possible at the inferior court level:
     Circuit court backlog. Civil cases that have caused circuit court backlogs may merit concurrent jurisdiction in district court. This is certainly the type of problem that Amendment 80 was intended to solve. This might be more appropriately accomplished by administrative orders on a circuit by circuit basis, according to the needs in geographic areas.
     Real estate cases. Ark. Code Ann. §16-17-206(a)'s provision that "Municipal courts ... shall not have jurisdiction in civil cases where a lien on land or title or possession thereto is involved" is arguably at odds with the provision that the Supreme Court may "establish" subject matter jurisdiction of district court civil cases. This statute, thus, may impliedly have been repealed, portending that district courts might be accorded jurisdiction in real estate matters.
     Case law suggests that there is precedent for a court rule to override a statute in matters of practice and procedure, but not in areas of substance, such as the conferring of subject matter jurisdiction.⁴³ However, the Constitution itself now gives the court the authority to confer civil subject matter jurisdiction.
     Felonies. District courts are to have original jurisdiction over misdemeanors and "such other criminal jurisdiction as may be provided pursuant to Section 10 of this Amendment."⁴⁴ Under the repealed judicial article of the 1874 Constitution, municipal courts were without jurisdiction to try felony cases.⁴⁵ It is now plausible that some degree of felony jurisdiction will devolve upon district courts.
     Especially given the model of United States Magistrate Courts, it makes sense that felony defendants be allowed to enter guilty pleas and be sentenced in district court. It also makes sense that a felony defendant be allowed to plead not guilty in district court, with the case then passing expeditiously to a circuit judge's trial docket. Why arraign a defendant twice?
     Bond set by a district court would be subject to review by the circuit court District judges could even be employed to handle pre-trial discovery and evidentiary matters, an innovation that could enhance efficiency and expedite case progress, especially in rural areas where circuit judges are not in court on a daily basis.

Jury trials?
     May the Supreme Court empower district courts to hold jury trials, thus overriding Ark. Code Ann. §16-17-703's provision that "There shall be no jury trials in municipal court"? The answer to this question will hinge on how the phrase "subject to the right of appeal to Circuit Courts for a trial de novo" in Section 7(B) is interpreted, as well as whether the implementation of jury trials might be considered a matter of practice or fall within the realm of general superintending control.
     To characterize the right to trial by jury as a matter of practice that would be subject to the court's superintending authority is probably out of kilter with the spirit of the common law. It assuredly has always been assumed that only the legislature has the authority to grant or encroach upon this vital right. In my opinion, the legislature could authorize jury trials in district court, and has had the power so to do in the past, but has never chosen to do so, but the Supreme Court could not.
     Amendment 80 does not seem inconsistent with §16-17-703. In specifying "trial de novo" as the appellate right at the circuit court level, Amendment 80 perpetuates the doctrine that has sustained the statutory scheme of exclusively bench trials at the inferior court level.⁴⁶ In my opinion, no one has a right to demand that jury trials be available in district courts, since the right to jury trial is preserved at the circuit court level on appeal.
   If, in some manner, jury trials were allowed in district courts, other issues arise.
     May a de novo appeal to circuit court be something less than another trial? Could a district court jury trial be reviewed by a circuit court on the record, in the de novo manner that chancery matters are reviewed by the appellate courts? (Chancery matters, of course, were always bench trials.) Is the right to a trial de novo in circuit court waivable in the event litigants opt for a jury trial in district court and, if so, then might an appeal to circuit be handled on less than a de novo standard of review?
     Pondering the potential, I can only envision that many of us may have to become more willing to work with others in circumstances where we have been accustomed to working without others. The need for common sense and practical wisdom was not repealed by Amendment 80. Nor was the appropriateness of teamwork and creativity in the judicial process.

Conclusion
     Admittedly, the foregoing discussion raises more questions than it provides answers. But the issues raised in this article are concerned with the grass roots of the judicial system and, as such, deserve the attention of the entire bar.
     The passage of Amendment 80 was a watershed event. Whether you are or are not a regular practitioner in district court, I urge you to reflect on the discussion above and get involved, a dividing point between how things used to be and how they should be.
     We, the legal profession of Arkansas, have an awesome opportunity and responsibility to re-build a court system. We know the areas that have evoked substantial criticism in the past. If we do not learn from the negative lessons of history, to twist and adage, we are destined to go there again.
     Let's all get involved and build Arkansas's new district court system with intelligence, common sense, and pride. Let's make it work. Let's make it be and appear to be cricket in every respect.

These endnotes were inadvertently printed in the first part of this article published in the Fall 2001 Arkansas Lawyer.

Endnotes 28-46
28 The term geographical area (§16(D)) is, if nothing else, a far less definitive term than analogous nouns      of common usage (city, township, county, district, etc.). It seems intended to provide flexibility in areas      where the case law has disallowed reasoned solutions to practical problems ­ such as where a city is      located on a county line ­ without abrogating the provision that there be at least one court per county. It      will be interesting to see how that term develops. While I have omitted any significant discussion of this      section in the text, suffice it to say that, somehow, this section factors into the reasoning of those who      hold that Amendment 80 repealed countywide jurisdiction of municipal courts.
29 For those who argue that Amendment 80 repealed countywide jurisdiction, the phrase majority of      electors within the district they serve triggers a thought pattern envisioning a boundary within which all      voters (in the judge's election) live and within which a crime must occur for that judge to have      jurisdiction over the perpetrator. However, I believe this section's sole significance lies in its changing      the electoral quantum, from plurality to majority, for district court judges.
30 Black's Law Dictionary (5th ed. 1979) states that the word jurisdiction "is a term of large and      comprehensive import" and provides over a page of definitions for the word and for phrases      encompassing the word. Perhaps the most accurate nuclear definition, however, is "the legal right by      which judges exercise their authority." Although it may be error to do so, I avoid extensive definition of      this basic term, assuming the reader to know and understand the basic distinctions among in personam,      in rem, and subject matter jurisdiction.
31 See id.
32 Section 10 provides that the legislature is to establish districts and the appropriate number of judges for      each, districts to be composed of "contiguous territories." This, read with Section 7(D) ("A District      Judge may serve in one or more counties") vis-à-vis Jones, supra. Note 13, and Sexson, supra. Note      13, addresses the need in cities on county lines.
33 Ark. Code Ann. §14-56-413 (Repl. 1998).
34 See Note 26, supra.
35 Judge Stewart graciously agreed to be quoted in this article. Quotes attributed to him are from private      correspondence in August 2001.
36 Webb, supra Note 13, 323 Ark. at 87 (Hickman, dissenting).
37 E.g., Ark. Code Ann. §§ 5-2-317 (venue for some persons committed to DHS custody "may be in"      Pulaski Probate, Ninth Division"; for some who've been conditionally released, "shall be in" probate      court of the county where the person currently resides); 16-60-109 (contract actions against      nonresident may be in county of plaintiff's residence when claim arose); 16-60-202 (no venue change      in civil actions unless necessary for impartial trial); 23-32-1505 ("foreign investor companies" may sue      and be sued in county of residence of any party to the suit; where land is involved, venue shall be in the      county where land is located); 28-40-102 (venue for probate and administration of will); 28-65-202      (venue for appointment of guardian); 28 U.S.C. §§ 1391(general venue statute for all civil actions in      United States District Court); 1965 (venue in RICO cases); 47 U.S.C. § 227(F)(4) (venue for states      to file civil actions against unlawful telephone solicitors). This list is far from complete. Searches for      venue on electronic legal research servers produce dozens of statutes that contain the word.
38 E.g., F.R. Cr. P. 18: "Except as otherwise permitted by statute or by these rules, the prosecution shall      be had in a district in which the offense was committed. The court shall fix the place of trial within the      district with due regard to the convenience of the defendant and the witnesses and the prompt      administration of justice." A search of Arkansas court rules for venue reflects only seven that contain      the word: A.R. Cr. P. 21.3 (two or more offenses are "related" if, inter alia, "within the jurisdiction and      venue" of same court); 24.8 (when pleading to offenses committed in other jurisdictions, defendant      requesting transfer of charges is deemed to waive "venue as to an offense committed in another      governmental unit of the state"); A.R. Inf. Ct. 2 ("These rules shall not be construed to extend or affect      the jurisdiction of the inferior courts Šor the venue of actions therein"); A.R. Civ. P. 8, 12, & 82; and      Procedures of the Ct. Reg. Prof. Conduct §5 (venue for attorney disbarment proceedings).
39 Ark. Const., Amend. 80, §7(A).
40 Ark. Const., Amend. 64; Ark. Code Ann. 16-17-704 (1999 Supp.).
41 Ark. Const., Amend. 80, §7(B).
42 The process for the Supreme Court's promulgation of a rule is, as best I can tell, not reduced to a      formulaic process. Thus, any suggestion I might make regarding how to employ it would be speculative.      There are committees in place as to most sets of rules, and membership of those committees is a matter      of public record.
43 See State v. Lester, 343 Ark. 662, 38 S.W.3d 318 (2001); Curtis v. State, 301 Ark. 208, 783      S.W.2d 47 (1990).
44 Ark. Const., Amend. 80, §7(B).
45 See McGrew v. State, 338 Ark. 30, 991 S.W.2d 588 (1999); McArthur v. Pulaski County Circuit      Court, 253 Ark. 501, 504 488 S.W.2d 5 (1972).
46 See State v. Roberts, 321 Ark. 31, 900 S.W. 2d 175 (1995).

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