Another Unconstitutional Bill About the Judiciary: HB1832

NEWS. March 25, 2025, from Little Rock.

House and Senate leadership has teamed up to attempt to fix the problem of the Pulaski County Circuit Court's liberal judges and how they wrongly rule on constitutional matters.  The fix is simple, according to Senator Bart Hester and Representative Matthew Shepherd, the former Speaker of the House.  All we need to do is give the Arkansas Court of Appeals original jurisdiction of constitutional challenges.

The legislators say that Amendment 80, § 9 allows two-thirds of both houses to amend, change, create, or nullify rules of the Arkansas Court of Appeals. The bill would change the constitutional language that only makes that court one of appellate review to give it the power of original jurisdiction to hear facial constitutional challenges.

A facial challenge to the constitutionality of an Act or statute is one that avers that in no set of circumstances is the law at issue permissible under the framework of the constitution.  For example, Amendment 89, § 3 of the Constitution caps the maximum interest rate that can be charged in Arkansas on private loans at 17%.

If the legislature were to pass a law that provided the maximum rate on loans between banks and citizens could be up to 25%, then there is no set of circumstances when that 25% interest rate would be permissible.  This is true because the Constitution has spoken about interest rates and that constitutional provision was approved by the people at the polls.  Elected officials to the House and Senate do not get to pass laws in contravention of the Constitution.

With that said, Amendment 80, § 5 says:

The Court of Appeals shall have such appellate jurisdiction as the Supreme Court shall by rule determine and shall be subject to the general superintending control of the Supreme Court.

I have put special emphasis on “shall have appellate jurisdiction.”  It does not say the court of appeals can have any other jurisdiction.  And this is not a rule about jurisdiction.  Instead, it’s a constitutional provision. The legislature cannot add or delete words from the constitution. 

That makes this bill another one of the many unconstitutional salvos fired at the people and their constitution this session.

ANALYSIS. To repeat myself from an earlier article, “this bill dies in committee, it dies on the floor, or it dies in the courts.”  My question is always “why.”  Why are you doing this? 

And I totally get the why here. The Pulaski County Circuit Court has become a cesspool of judicial activism.  I, along with so many others, were so glad to see Chip Welch and Herb Wright leave the bench.  We are also counting down the days until Tim Fox must leave, and that day cannot come soon enough. 

But there are good judges coming into the court.  You have Amy Moore and Karen Whatley, who are my personal favorites.  There is also Cathleen Compton and Andy Gill.  Melanie Martin has always been fair to me—and she is the only judge I have ever seen cry from the bench when she had to sentence my client, a concentration camp survivor, for trespassing at an abortion clinic.  I even like Cara Connors, who I finally convinced to let my client, Jeremy Hutchinson, out of jail one time.

My point here is that the people set out the recipe in the constitution. Neither the senate nor house gets to change the recipe because they don’t like what it produces. The people make the recipe, you, legislature, make the sauce.  You “shall” make the sauce according to the recipe.