SUPREME COURT OF ARKANSAS

PER CURIAM

The General Assembly created the District Court Resource Assessment Board, and among its duties, is to study and make recommendations regarding the creation and placement of state-funded, full-time district court judgeships. See Ark. Code Ann. §§ 16-17-1001-1003. Related to this task, is the determination of the types of cases to be heard by these judges. Under Ark. Const. Amend. 80 § 7, the supreme court establishes the civil jurisdiction of these courts.

In conjunction with the Board’s recommendation to the General Assembly for the creation and placement of state district courts, the Board has submitted to the supreme court a recommendation regarding the expansion of these courts’ jurisdiction pursuant to Administrative Order No. 18. These recommendations are the product of numerous meetings over the past year, including a meeting of the state district court judges and the administrative judges of the circuit courts.

We  appreciate  the  Board’s  work  on  this  difficult  task.  We  have  reviewed  the

recommendations regarding the changes to the civil jurisdiction, and we agree with the Board’s proposed amendments to Administrative Order No. 18 (6). To permit some of these changes, we are authorizing the use of electronic recording equipment to make the record. Such equipment is in use in many state and federal courts throughout the country. With that said, based on the types of cases included in this expansion of jurisdiction, the need for a transcript to be prepared should be rare. When needed, however, the circuit court's court reporter will prepare the transcript from the electronic recording. It must be remembered that these are circuit court cases and are being heard by the state district court judges on the bases of consent of the parties or reference by the circuit court.

The changes regarding electronic recording are set out in Administrative Order No. 4 (e) and Regs. Ark. Bd. Certified Ct. Rep. Examiners § 1. In addition to the revision of Administrative Order No. 18 (6), we are updating the provisions in Administrative Order No. 18 (8) dealing with special judges in district court in line with our action last year regarding their use in circuit court. In re Amendments to Admin. Orders Nos. 1, 14 and 16, 2010 Ark. 269 (per curiam).

Accordingly, we adopt, effective July 1, 2011, the amendments to Administrative Orders No. 4, No. 18 (6) and (8), and Regs. Ark. Bd. Certified Ct. Rep. Examiners § 1, as set out below, and republish them. The changes to the rules are illustrated in the End Notes. Administrative Order No. 4. Verbatim Trial Record.

(a)  Verbatim Record. Unless waived on the record by the parties, it shall be the duty of any

circuit court to require that a verbatim record be made of all proceedings, including any communications between the court and one or more members of the jury, pertaining to any contested matter before the court or the jury.

(b) Back-up System. When making a verbatim record, an official court reporter or substitute court reporter shall always utilize a back-up system in addition to his or her primary reporting system in order to insure preservation of the record.

(c) Exhibits. Physical exhibits received or proffered in evidence shall be stored pursuant to the requirements of Section 21 of the Regulations of the Board of Certified Court Reporter Examiners, Official Court Reporter Retention Schedule.

(d) Sanctions. Any person who fails to comply with these requirements shall be subject to the discipline provisions of the Rules and Regulations of the Board of Certified Court Reporter Examiners in addition to the enforcement powers of the court, including contempt.

(e) Electronic Recording.

1.  Applicability. This subsection (e) shall apply to state district court judges presiding over matters pending in circuit courts pursuant to Administrative Order Number 18 and to circuit court judges upon request to and approval by the Supreme Court.

2.  Electronic recording. An audio recording system may make the verbatim record of court proceedings. A recording system used for the purpose of creating the official record of a court proceeding shall meet the standards adopted and published by the Administrative Office of the Courts (“AOC”). The system shall be approved by the AOC, and it shall be

tested and court personnel shall be trained before the system is implemented. The system shall include a back-up capability to satisfy the requirement of subsection (b) of this Administrative Order.

3.  Record security. (A) The trial court shall maintain the electronic recordings of court proceedings and all digital files, backup files, and archive files consistent with standards adopted and published by the AOC. (B) Subsection (c) of this Administrative Order regarding the storage of trial exhibits when using an electronic recording system is supplemented by the following: During the period in which the records are required to be retained, the trial court may order items of physical evidence held for storage and safekeeping by the attorneys of record, and such arrangements shall be appropriately documented. Forms of orders and receipts are appended to the Regulations of the Board of Certified Court Reporter Examiners. When physical exhibits include firearms, contraband, or other similar items, the trial court may order such items transferred to the sheriff or other appropriate governmental agency for storage and safekeeping. The sheriff or governmental agency shall sign a receipt for such items and shall acknowledge that the items shall not be disposed of until authorized by subsequent court order. See Regulation 21 of the Regulations of the Board of Certified Court Reporter Examiners for the record retention schedule and other requirements for maintaining records and exhibits.

4. Official transcripts. When a transcript is required and is to be prepared from an audio recording, the official court reporter of the circuit judge to which the case is assigned shall be

responsible for preparing the transcript, and the statutory rate and payment provisions shall apply. A transcript prepared from an audio recording of a court proceeding prepared and certified by an official court reporter is an official transcript for purpose of appeal or other use. Regulations of the Board of Certified Court Reporter Examiners

Section 1.

The following definitions are set forth: ***

“Verbatim Reporting” means the making of a verbatim record of court proceedings, depositions, or proceedings before any grand jury by means of manual or machine shorthand or mask dictation. As authorized by Administrative Order Number 4 (e), an audio recording made pursuant to the requirements of Administrative Order Number 4 shall constitute a verbatim record.

Administrative Order No. 18. Administration of District Courts

***

6. Jurisdiction of State District Court Judgeships. [This section (6) applies to State District Court Judgeships (“Pilot District Courts”) upon their effective date.] In addition to the powers and duties of a district court under this administrative order, a state district court shall exercise additional power and authority as set out in this section.

(a)   Original Jurisdiction. A state district court shall have original jurisdiction within its territorial jurisdiction over the following civil matters:

(1)  Exclusive of the circuit court in all matters of contract where the  amount in

controversy does not exceed the sum of one hundred dollars ($100), excluding interest, costs, and attorney's fees;

(2)  Concurrent with the circuit court in matters of contract where the amount in controversy does not exceed the sum of twenty-five thousand dollars ($25,000), excluding interest, costs, and attorney’s fees;

(3) Concurrent with the circuit court in actions for the recovery of personal property where the value of the property does not exceed the sum of twenty-five thousand dollars ($25,000);

(4) Concurrent with the circuit court in matters of damage to personal property where the amount in controversy does not exceed the sum of twenty-five thousand dollars ($25,000), excluding interest and costs.

(b)   Reference. A state district court judge may be referred matters pending in the circuit court. A state district court judge presiding over any referred matter shall be subject at all times to the superintending control of the administrative judge of the judicial circuit. The following matters pending in circuit court may be referred to a state district court judge:

(1)   Consent Jurisdiction. Matters filed in the civil, domestic relations or probate division of circuit court upon the consent of all parties (see subsection (d) below);

(2)   Protective Orders. Ark. Code Ann. §§ 9-15-201 - 217;

(3)   Forcible Entry and Detainers and Unlawful Detainer. Ark. Code Ann.

§§ 18-60-301-312 ;

(4)   Other Matters. Matters of an emergency or uncontested nature pending in the civil, domestic relations, or probate division of circuit court (such as, ex parte emergency involuntary commitments pursuant to Ark. Code Ann. § 20-47-209-210, decedent estate administration, uncontested divorces, and defaults) under guidelines and procedures set out in the judicial circuit’s administrative plan; and

(5)   Criminal Matters. (A) Any of the following duties (the rules referenced below are the Arkansas Rules of Criminal Procedure) with respect to an investigation or prosecution of an offense lying within the exclusive jurisdiction of the circuit court:

(i)    Issue a search warrant pursuant to Rule 13.1.

(ii)     Issue an arrest warrant pursuant to Rule 7.1 or Ark. Code Ann.§ 16-81-104, or issue a summons pursuant to Rule 6.1.

(iii)     Make a reasonable cause determination pursuant to Rule 4.1(e).

(iv)    Conduct a first appearance pursuant to Rule 8.1, at which the judge may appoint counsel pursuant to Rule 8.2; inform a defendant pursuant to Rule 8.3; accept a plea of “not guilty” or “not guilty by reason insanity”; conduct a pretrial release inquiry pursuant to Rules 8.4 and 8.5; or release a defendant from custody pursuant to Rules 9.1, 9.2, and 9.3.

(v)    Conduct a preliminary hearing as provided in Ark. Code Ann. § 5-4-310(a).

If a person is charged with the commission of an offense lying within the exclusive jurisdiction of the circuit court, a state district court judge may not accept or approve a plea of guilty or

nolo contendere to the offense charged or to a lesser included felony offense but, may accept or approve a plea of guilty or nolo contendere to a misdemeanor.

(B) If authorized by an Act of the General Assembly, a state district court judge may preside over a drug court program, probation revocation proceedings, or parole revocation proceedings.

(c)   Reference Process. Except for the exercise of consent jurisdiction which is governed by subsection (d), with the concurrence of a majority of the circuit judges of a judicial circuit, the administrative judge of a judicial circuit may refer matters pending in the circuit court to a state district court judge, with the judge’s consent, which shall not be unreasonably withheld. A final judgment although ordered by a state district court judge, is deemed a final judgment of the circuit court and will be entered by the circuit clerk under Rule 58 of the Arkansas Rules of Civil Procedure. Any appeal shall be taken to the Arkansas Supreme Court or Court of Appeals in the same manner as an appeal from any other judgment of the circuit court. An order that does not constitute a final appealable order may be modified or vacated by the circuit judge to whom the case has been assigned as permitted by Rule 60 of the Arkansas Rules of Civil Procedure.

(d)   Consent Process.

1.  Notice. The circuit clerk shall give the plaintiff notice of the consent jurisdiction of a state district court judge when a suit is filed in the civil, domestic relations, or probate division of circuit court. The circuit clerk shall also attach the same notice to the summons

for service on the defendant. Any party may obtain a “Consent to Proceed before a State District Court Judge” form from the Circuit Clerk’s Office.

2.  Consent. By agreeing to consent jurisdiction, the parties are waiving their right to a jury trial, and any appeal in the case shall be taken directly to the Arkansas Supreme Court or Court of Appeals.

3.  Transfer. Once the completed forms have been returned to the circuit clerk, the circuit clerk shall then assign the case to a state district court judge and forward the consent forms for final approval to the circuit judge to whom the case was originally assigned. When the circuit judge has approved the transfer and returned the consent forms to the circuit clerk’s office for filing, the circuit clerk shall forward a copy of the consent forms to the state district court judge to whom the case is reassigned. The circuit clerk shall also indicate on the file that the case has been reassigned to the state district court judge.

4.  Appeal. The final judgment, although ordered by a state district court judge, is deemed a final judgment of the circuit court and will be entered by the circuit clerk under Rule 58 of the Arkansas Rules of Civil Procedure. Any appeal shall be taken to the Arkansas Supreme Court or Court of Appeals in the same manner as an appeal from any other judgment of the circuit court.

***

8.  Special Judges.

(a)   When the judge of a district court shall fail to attend on any day scheduled for the

holding of that court or when a judge is disqualified from presiding in a pending case, a special judge may be elected.

(b)   When a special judge is to be elected, notice shall be given by the clerk of the court to the regular practicing attorneys in the district served by the court in the most practical manner under the circumstances, including giving notice by telephone or by posting the notice in a public and conspicuous place in the courtroom. Upon notice from the clerk of the court, the regular practicing attorneys attending the court may elect a special judge. The attorneys present in the courtroom shall elect one of their number as special judge. The election shall be conducted by the clerk of the court, who will accept nominations from the attorneys present. Only attorneys who are qualified to serve as special judge may vote in the election of a special judge. The election shall be by secret ballot. The attorney receiving a majority of the votes shall be declared elected as special judge. He or she shall immediately be sworn in by the clerk and shall immediately enter upon the duties of the office. He or she shall adjudicate those causes pending at the time of his or her election.

(c)   No person who is not an attorney regularly engaged in the practice of law in the State of Arkansas and duly licensed and in good standing to do so, and who is not a resident possessed of the qualifications required of an elector of this state, whether registered to vote or not, shall be elected special judge. A law clerk is not eligible to be elected as a special judge.

(d)   For purposes of this rule, each division of district court in a multi-judge district shall be considered to be a separate court.

(e)   The clerk of the court shall make a record of the proceedings, which shall be a part of the record of the court. Forms for the clerk’s use are appended to Administrative Order No. 1.

FORMS

IN THE CIRCUIT COURT OF __________________ COUNTY, ARKANSAS

NOTICE OF RIGHT TO CONSENT

TO DISPOSITION OF CASE BY A STATE DISTRICT COURT JUDGE

In accordance with Administrative Order Number 18, you are hereby notified that upon the consent of all the parties in a case, a State District Court Judge may be authorized to conduct all proceedings, including trial of the case and entry of a final judgment. Copies of appropriate consent forms are available from the Circuit Clerk.

You should be aware that your decision to consent or not to consent to the disposition of your case before a State District Court Judge is entirely voluntary, and by consenting to the reference of this matter to a State District Court Judge, the parties waive their right to a jury trial, and any appeal in the case shall be taken directly to the Arkansas Supreme Court or Court of Appeals as authorized by law.

You should communicate your consent by completing the Form -- CONSENT TO PROCEED BEFORE A STATE DISTRICT COURT JUDGE -- and return to the

Circuit Clerk.

IN THE CIRCUIT COURT OF __________________ COUNTY, ARKANSAS

_____________ DIVISION

CONSENT TO PROCEED BEFORE A STATE DISTRICT COURT JUDGE

__________________________ (Plaintiff)

v.                                                                                 CASE NO. ______________

__________________________ (Defendant)

The undersigned parties (or counsel, if so authorized) to this proceeding are fully aware of the right to proceed before a State District Court Judge and do hereby consent to the reference of the matter to a State District Court Judge in accordance with Administrative Order No. 18.

By consenting to the reference of this matter to a State District Court Judge, the parties waive their right to a jury trial, and any appeal in the case shall be taken directly to the Arkansas Supreme Court or Court of Appeals as authorized by law. The State District Court Judge shall be empowered to conduct all further proceedings and to order the disposition of the matter and the entry of an appropriate judgment.

PLAINTIFFS                    DATE                    DEFENDANTS                    DATE

____________________     ___________          ___________________      ___________

____________________  ___________                    ___________________    ___________

ORDER OF REFERENCE

IT IS HEREBY ORDERED that this matter be referred to _______________________, State District Court Judge, for the conduct of further proceedings and the entry of judgment in accordance with the foregoing consent.

_____________________          ____________________________________ Date                                                            CIRCUIT JUDGE

END NOTES

Administrative Order No. 4.

(e) Electronic Recording.

            1. Applicability. This subsection (e) shall apply to state district court judges presiding

over m atters pending in circuit courts pursuant to Adm inistrative O rder N um ber 18 and to

circuit court judges upon request to and approval by the Supreme C ourt.

            2. Electronic recording. An audio recording system m ay m ake the verbatim record of

court proceedings. A recording system used for the purpose of creating the official record of

a court proceeding shall m eet the standards adopted and published by the Administrative

O ffice of the C ourts (“A O C ”). The system shall be approved by the AO C , and it shall be

tested and court personnel shall be trained before the system is implem ented. T he system shall

include a back-up capability to satisfy the requirem ent of subsection (b) of this Administrative

O rder.

            3. Record security. (A) The trial court shall m aintain the electronic recordings of court

proceedings and all digital files, backup files, and archive files consistent w ith standards

adopted and published by the AO C .       

            (B) Subsection (c) of this Adm inistrative O rder regarding the storage of trial exhibits

w hen using an electronic recording system is supplem ented by the follow ing: D uring the

period in w hich the records are required to be retained, the trial court m ay order item s of

physical evidence held for storage and safekeeping by the attorneys o f record, and such

arrangements shall be appropriately documented. Forms of orders and receipts are appended

to the R egulations of the Board of C ertified C ourt R eporter Examiners. W hen physical

exhibits include firearm s, contraband, or other sim ilar item s, the trial court m ay order such

items transferred to the sheriff o r other appropriate governmental agency for storage and

safekeeping. The sheriff or governm ental agency shall sign a receipt for such item s and shall

acknow ledge that the items shall not be disposed of until authorized by subsequent court

order. See R egulation 21 of the R egulations of the B oard of C ertified C ourt R eporter

Examiners for the record retention schedule and other requirements for m aintaining records

and exhibits.    

            4. O fficial transcripts. W hen a transcript is required and is to be prepared from an audio

recording, the official court reporter of the circuit judge to w hich the case is assigned shall be

responsible for preparing the transcript, and the statutory rate and paym ent provisions shall

apply. A transcript prepared from an audio recording of a court proceeding prepared and

certified by an official court reporter is an official transcript for purpose of appeal or other use.

Regulations of the Board of Certified Court Reporter Examiners

Section 1. "Verbatim Reporting" means the making of a verbatim record of court proceedings, depositions, or proceedings before any grand jury by means of manual or

machine shorthand or mask dictation. N o system of direct electrical recording shall be

considered a m eans of verbatim reporting. A s authorized by Adm inistrative O rder N o. 4 (e),

an audio recording m ade pursuant to the requirem ents of Adm inistrative O rder N o. 4 shall

constitute a verbatim record.

Administrative Order No. 18. Administration of District Courts

6. Jurisdiction of State District Court Judgeships. [This section (6) applies to State District

Court Judgeships (“Pilot District Courts”) upon their effective date pursuant to Act 663 of

2007.] In addition to the powers and duties of a district court under this administrative order,

a state district court shall exercise additional power and authority as set out in this section.

(a)     Original Jurisdiction. A state district court shall have original jurisdiction within its territorial jurisdiction over the following civil matters:

(1)   Exclusive of the circuit court in all matters of contract where the amount in controversy does not exceed the sum of one hundred dollars ($100), excluding interest, costs, and attorney's fees;

(2)   Concurrent with the circuit court in matters of contract where the amount in controversy does not exceed the sum of twenty-five thousand dollars ($25,000), excluding interest, costs, and attorney's fees;

(3)   Concurrent with the circuit court in actions for the recovery of personal property where the value of the property does not exceed the sum of twenty-five thousand dollars ($25,000);

(4)   Concurrent with the circuit court in matters of damage to personal property where the amount in controversy does not exceed the sum of twenty-five thousand dollars ($25,000), excluding interest and costs.

(b)   Reference. A state district court judge may be referred matters pending in the circuit court

[that arose w ithin the territorial jurisdiction of the pilot district court]. A state district court judge presiding over any referred matter shall be subject at all times to the superintending control of the administrative judge of the judicial circuit. The following matters pending in

circuit court may be referred to a state district court judge:

(1)   Consent Jurisdiction. Matters filed in the civil, domestic relations or probate division of circuit court upon the consent of all parties (see subsection (d) below);

(2)   Protective Orders. Ark. C ode Ann. §§9-15-201 - 217;

Petitions for temporary orders of protection pursuant to Ark. C ode Ann. Section 9-15-206

(The D om estic Abuse Act of 1991);

(3)  Forcible Entry and D etainers and Unlawful Detainer. A rk. C ode Ann. §§18-60-301 - 312;

Forcible Entry and U nlawful D etainer. Pretrial hearings pursuant to Ark. C ode Ann. Section

18-60-307 (c-e) on a defendant’s objection to a w rit of possession;

(4)    Other Matters. Matters of an emergency or uncontested nature pending in the civil, domestic relations, or probate division of circuit court (such as, ex parte emergency involuntary commitments pursuant to Ark. Code Ann. § 20-47-209-210, decedent estate administration, uncontested divorces, and defaults) under guidelines and procedures set out in the judicial circuit’s administrative plan; and