# Mendoza v. WIS International, Inc./Dissent Hart

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* Dissenting Opinions Baker Hart Wood
​JOSEPHINE LINKER HART, Justice, dissenting. This court accepted a very specific certified question from the United States District Court for the Eastern District of Arkansas. The very first clause in the certified question expressly limits the inquiry to the "facts of this case." There is no dispute that Ms. Mendoza, at the time of the accident, was asleep in the back seat of the vehicle being driven by Anthony Adams. Likewise, in clear language, the Arkansas Mandatory Seat Belt Use Law requires only the occupants of the front seat of a vehicle to wear seat belts. Because Arkansas Code Annotated section 27-37-703 applies only to the driver and the front seat passengers, it is inapplicable to the factual situation that confronted the district court. Accordingly, the majority's opinion regarding the provision of ​section 27-37-703 can have no practical effect on the outcome of Ms. Mendoza's case. Thus this court's musings are purely advisory or the answer to an academic question, tasks which this court has repeatedly said it would not untertake. Woodrome v. Daniels, 2010 Ark. 244, 370 S.W.3d 190; Saunders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995); Walker v. McCuen, 318 Ark. 508, 886 S.W.2d 577 (1994); Dougan v. Gray, 318 Ark. 6, 884 S.W.2d 239 (1994); Gladden v. Bucy, 299 Ark. 523, 772 S.W.2d 612 (1989); Neeley v. Barber, 288 Ark. 384, 706 S.W.2d 358 (1986).
Under these circumstances, this court must remain true to its rules and well-established practices and decline to answer this certified question. Arkansas Supreme Court Rule 6-8 (2012), contemplates just such a disposition:
   (a)(5) In its discretion, the Supreme Court may at any time rescind its decision to answer a certified question. The Clerk shall promptly mail notice to the certifying court, counsel of record, and parties appearing without counsel.
I contend that it is only prudent to rescind this court's acceptance of the certified question.
In my view, the majority was not only wrong for agreeing to answer this question, it is wrong in its answer as well. Although the majority recognizes it, it fails to honor the presumption of validity attending every consideration of a statute's constitutionality. Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135. Before this court can declare an act to be unconstitutional, the incompatibility between it and the constitution must be clear. Id. Any doubt as to the constitutionality of a statute must be resolved in favor of its constitutionality. Id. When possible, we must construe a statute so that it is constitutional. Id. There is ample basis to construe this statute so as to find it constitutional. ​Amendment 80, section 3 of the Arkansas Constitution gives this court the authority to make rules regarding pleading, practice, and procedure for the courts of this state. It states, "The Supreme Court shall prescribe the rules of pleading, practice and procedure for all courts; provided these rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as declared in this Constitution." In Rockwell Automation, supra, this court cited this provision of the Arkansas Constitution as authority for striking down the nonparty-fault provision of the Civil Justice Reform Act as violative of the separation-of-powers clause found in article 4, section 2. The Rockwell court acknowledged that the legislature has the power to enact "substantive" law, which it defined as "the part of the law that creates, defines, and regulates the rights, duties, and powers of parties." 2009 Ark. 241, at 8, 308 S.W.3d at 141 (internal citations omitted). Conversely, it defined procedural law, which is the exclusive province of the supreme court, as "the rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves." Id.
With the substantive/procedural dichotomy in mind, we turn to the challenged "Failure to Comply" provision of our Mandatory Seat Belt Use law, codified at Arkansas Code Annotated section 27-37-703 (Repl. 2014):
   (A) The plaintiff has filed a products liability claim other than a claim related to an alleged failure of a seat belt;
   (B) The defendant alleging noncompliance with this subchapter shall raise this defense in its answer or timely amendment thereto in accordance with the rules of civil procedure; and
   (C) Each defendant seeking to offer evidence alleging noncompliance has the burden of proving:
   (i) Noncompliance;
   (ii) That compliance would have reduced injuries; and
   (iii) The extent of the reduction of the injuries.
   (b)(1) Upon request of any party, the trial judge shall hold a hearing out of the presence of the jury as to the admissibility of such evidence in accordance with the provisions of this section and the rules of evidence.
When we interpret a statute, our goal is to give effect to the intent of the legislature. State v. Colvin, 2013 Ark. 203, 427 S.W.3d 635. The process requires us to place the statute beside other statutes relevant to the subject matter in question so that we can derive the meaning and effect from the whole. Id. Statutes relating to the same subject must be construed together and in harmony, if possible. Id.
As stated previously, section 27-37-703 is part of the Arkansas Mandatory Seat Belt Use Law. From its inception as Act 562 of 1991, the law was intended by the legislature to ​be strictly a penal statute, making the failure of front-seat occupants of a motor vehicle to wear a seat belt a traffic violation. See Ark. Code Ann. § 27-37-706. Section 27-37-706 states,
   (a) Any person who violates this subchapter shall be subject to a fine not to exceed twenty-five dollars ($25.00).
   (b) When a person is convicted, pleads guilty, pleads nolo contendere, or forfeits bond for violation of this subchapter, court costs under § 16-10-305 shall be assessed, but other costs or fees shall not be assessed.
Further, the original version of section 27-37-703, as it appeared in section 5 of Act 562, was the expression of the legislature's intent to not concomitantly create a civil cause of action for failure to wear a seatbelt:
   SECTION 5. The failure to provide or use a seat belt shall not be considered under any circumstances as evidence of comparative or contributory negligence, nor shall such failure be admissible as evidence in the trial of any civil action with regard to negligence. Neither shall the failure to provide or use seat belts be considered under any circumstances as evidence in any prosecution for negligent homicide.
As such, this section is substantive law because it "defines and regulates the rights, duties, and powers of parties," relative to the newly created requirement to use seat belts. See Rockwell Automation, 2009 Ark. 241, at 8, 308 S.W.3d at 141. While the original version of this statute was amended by Act 1118 of 1995 so as to not foreclose the use of evidence of seat belt nonuse in products-liability cases, the legislature's intent to keep the Arkansas Mandatory Seat Belt Use Law from creating a civil cause of action, or having pecuniary consequences for an injured person pursing a civil cause of action, has remained.
When the Rockwell court struck down the nonparty-fault provision of the Civil Justice ​Reform Act, it noted that Arkansas Code Annotated section 16-55-202 "established its own procedure by which the fault of a nonparty shall be litigated." 2009 Ark. 241, at 8, 308 S.W.3d at 141. In essence, the substantive right to have fault apportioned already existed, and the legislature unconstitutionally invaded the province of the courts to prescribe how the parties' relative fault may be proved in a court of law. In contrast, through section 27-37- 703, the legislature has expressed its intention that its requirement that motorists use seat belts shall not be a basis for diminishing an injured person's recovery of damages in a simple motor- vehicle negligence case, regardless of how the case is tried. Accordingly, because section 27- 37-703 is substantive law, it does not offend the separation-of-powers clause in article 4, section 2 of the Arkansas Constitution.
I am mindful that the plain language of section 27-37-703 proscribes admitting into evidence a party's nonuse of seat belts in a civil case. I am likewise mindful that the Rockwell court also struck down the medical-costs provision of the Civil Justice Reform Act, which stated as follows:
   Any evidence of damages for the costs of any necessary medical care, treatment, or services received shall include only those costs actually paid by or on behalf of the plaintiff or which remain unpaid and for which the plaintiff or any third party shall be legally responsible.
Ark. Code Ann. § 16-55-212(b) (Supp. 2013). The Rockwell court reasoned,
Rockwell Automotive, 2009 Ark. 241, at 10–11, 308 S.W.3d at 142. Nonetheless, I contend that Rockwell does not control the question before us.
The mere use of the word "evidence" in the statute does not make the statute a rule of evidence. "Evidence" appears in more than 4000 sections and subsections of the Arkansas Code, and it is truly absurd to think that each and every time the legislature enacted one of these statutes it violated the separation of powers. A more searching analysis is required.
While amendment 80, section 3 of the Arkansas Constitution gives this court the authority to make rules regarding pleading, practice, and procedure for the courts of this state, our constitutional rule-making authority does not give us the power to "abridge, enlarge or modify any substantive right." Id. As noted previously, section 27-37-703 is substantive law, which, under our separation-of-powers doctrine, is the province of the legislature. Our rules of evidence substantiate this analysis. Rule 402 of the Arkansas Rules of Evidence contemplates the legislature's power to identify certain matters of substantive law that will affect the admissibility of certain pieces of evidence. Rule 402 states, "All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible." (Emphasis supplied.) The question therefore becomes whether it was this court that violated the separation of powers when we drafted Rule 402 or the legislature when it accepted the rule's ​plainly stated invitation for the legislature to input substantive law. I submit that neither violates the separation-of-powers clause.
In Bedell v. Williams, 2012 Ark. 75, 386 S.W.3d 493, this court held that the legislature did not violate the separation-of-powers clause when it created by statute, Arkansas Code Annotates section 16-114-207(3), a privilege to not testify at a trial involving certain matters. The Bedell court held that an equivalent clause in Rule 501 of the Arkansas Rules of Evidence, "Except as otherwise provided by constitution or statute," justified the legislature's creation of the privilege as a specific grant of authority. The majority's effort to distinguish the case before us falls well short. In both instances, the net result is that there will be no evidence presented for a particular purpose.
In my view, section 27-37-703 is also like our rape-shield law, codified at Arkansas Code Annotated section 16-42-101:
   (b) In any criminal prosecution under § 5-14-101 et seq. or § 5-26-202, or for criminal attempt to commit, criminal solicitation to commit, or criminal conspiracy to commit an offense defined in any of those sections, opinion evidence, reputation evidence, or evidence of specific instances of the victim's prior sexual conduct with the defendant or any other person, evidence of a victim's prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true, or evidence offered by the defendant concerning prior allegations of sexual conduct by the victim with the defendant or any other person if the victim denies making the allegations is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.
This court has upheld the constitutionality of section 16-42-101. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000), cert. denied, 531 U.S. 998. In short, the rape-shield law, like section ​27-37-703 in the Arkansas Mandatory Seat Belt Use Law, involves a broad prohibition on the admission of certain evidence that the legislature has determined to be not relevant in civil actions.
In comparison, the medical-costs provision of the Civil Justice Reform Act that was struck down by the Rockwell court dictated not only what evidence could be admitted, but also what foundational predicates would be required before that evidence could be admitted, which essentially invaded the circuit court's discretion in admitting evidence, which conflicts with the Arkansas Rules of Evidence. See, e.g., Ark. R. Evid. 403. I am mindful that whenever a statute conflicts with a rule of evidence, it is a violation of the separation of powers. Broussard v. St. Edward Mercy Health Sys., Inc., 2012 Ark. 14, 386 S.W.3d 385. However, there is nothing in section 27-37-703 that conflicts with the Arkansas Rules of Evidence. Thus, in my view, the majority has clearly erred in finding that, by enacting section 27-37-703, the legislature violated the separation-of-powers clause.