Chief Justice Kemp's comments on SJR8

By Ms. Denise Hoggard posted 02-15-2017 09:54 AM


My comments are limited to Section 3 of the proposal concerning the rule making authority for the judicial branch. Neither I nor the Supreme Court nor others in the judiciary offer any comment or position on the other sections of the resolution.

 * One of the grounding principles of our democracy, established at the time of our country's founding, enshrined in our national constitution and replicated in the constitutions of each of our states - including our own - is the separation of powers of each of the branches of government.

* Separation of powers was adopted out of a fear of the concentration of power within any one institution or any one person and in order to protect the public generally from an over-reaching government as well as to protect individual citizens and their individual rights from an over-reaching majority.

* The application of separation of powers throughout our history as a country and as a state has been contentious. The executive and legislative branches get angry and frustrated by the exercise of judicial powers. The judicial and legislative branches get angry and frustrated by the exercise of executive powers. The executive and judicial branches get angry and frustrated by the exercise of legislative powers. And it is all consistent with the original design of our founding fathers and has served our country, our state, and our democracy well.

 *Section 3 of SJR 8 destroys the delicate balance which our state constitution has provided for the separation of powers within state government.

 *Article 5, Section 12 of our state constitution provides that the Arkansas House of Representatives and the Senate shall have the power to "determine the rules of its proceedings".  I think that you would agree with me that if the Supreme Court proposed to you a constitutional amendment which provided that the Supreme Court should make and/or approve all the rules of the House and the Senate, you would find that proposition unacceptable. And I agree with you. Each of our branches of government must have the ability to "make the rules" for the effective and efficient operation of the proceedings for which we are responsible under the constitution. That is why I, the Supreme Court, and all the members of the judicial branch react so strongly to this proposal.

* The process of rule making is a meticulous process in order to maintain fairness and impartiality. It is a slow process subject to review by committees which study rule changes and propose those changes to the Supreme Court, which puts them out for comment by the public and the bar before adopting those rules.  It is important that the Supreme Court be fair and impartial in adopting these rules and also be perceived as being fair and impartial.