Mendoza v. WIS International, Inc./Dissent Wood

by Rhonda K. Wood

RHONDA K. WOOD, Justice, dissenting. Because I think the majority's analysis is inherently flawed and only further confuses this court's application of amendment 80, § 3 of the Arkansas Constitution, I dissent. Arkansas Rule of Evidence 402 reads, "All relevant evidence is admissible, except as otherwise provided by statute . . . ." Ark. R. Evid. 402 (2015) (emphasis added). Therefore, our Rule of Evidence, which this court alone may promulgate, permits the General Assembly to pass statutes regarding the relevancy and admissibility of evidence.

Inexplicably, the majority finds that our rules do not mean what they say. Instead of giving the words of Rule 402 their ordinary meaning, the majority incorrectly interprets Rule 402 as stating "all relevant evidence is admissible, except as otherwise provided by statute [unless it is a Rule of Evidence which is solely the province of the supreme court]." Ark. R. Evid. 402. The majority's interpretation renders the language "except as otherwise provided by statute" meaningless.

In addition, the majority attempts to rectify its ruling with conflicting precedent by rewriting its analysis in Bedell v. Williams, 2012 Ark. 75, 386 S.W.3d 493. In Bedell, we held that Arkansas Code Annotated section 16-114-207, which provides medical-care providers the privilege of refusing to testify to certain matters, did not violate the separation-of-powers doctrine. In upholding the constitutionality of the statute, we explained that the court, via a Rule of Evidence, had provided the General Assembly the power to enact such statutes:

This court has specifically given the General Assembly the power to enact statutes regarding testimonial privilege. See Ark. R. Evid 501 (no person has a privilege to refuse to testify or prevent another from being a witness "except as otherwise provided by constitution or statute") (emphasis added).

Bedell, 2012 Ark. 75, at 17, 386 S.W.3d at 505. Thus, despite our holding in Johnson in 2009 that the General Assembly cannot enact a statute that "clearly limit[s] the evidence that may be introduced," our court more recently held in Bedell that our words mean what they say.

Despite this clear precedent, the majority now concludes that the statute in Bedell is distinguishable from the statute for the following reason:

In Rule 501 of the Arkansas Rules of Evidence, we granted the legislature the authority to enact statutes regarding privilege because the power of the legislature to enact statutes regarding privilege is substantive law and does not conflict with amendment 80 and the separation-of-powers doctrine. Rule 402, however, is procedural in that it dictates what evidence is relevant.

What the majority does not explain, because it cannot, is that Rule 402 and Rule 501 have virtually identical language.^[1] If we did not intend to give the General Assembly the authority to modify or supplement Rule 402 then why would we have a rule that states exactly that? I believe this court should follow the plain meaning of its own rules. Furthermore, I believe the majority opinion only further confuses practitioners and legislators. Accordingly, I dissent.

 

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1. In addition to Arkansas Rule of Evidence 402 and 501, Rules 508(b), 901(10), 902(10) and 1002 also contain language that permits the General Assembly to modify or supplement the evidentiary rules.