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SUPREME COURT OF ARKANSAS

No. CV-16-375

KATHY ROBERTS AND KAREN

MCSHANE

PLAINTIFFS

V.

UNIMIN CORPORATION

DEFENDANT

Opinion Delivered May 26, 2016

REQUEST TO CERTIFY A

QUESTION OF LAW FROM THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

ARKANSAS

DISSENTING OPINION.

PAUL E. DANIELSON, Associate Justice

I dissent from the majority’s refusal to accept certification of this question of law. 

Pursuant to section 2(D)(3) of amendment 80 to the Arkansas Constitution and Arkansas

Supreme Court Rule 6-8 (2015), the United States District Court for the Eastern District of

Arkansas, Batesville Division, has attempted to certify to this court a question of Arkansas law 

that may be determinative of a cause now pending in the certifying court and as to which it

appears to the certifying court there is no controlling precedent in our decisions. See Ark.

Sup. Ct. R. 6-8(a)(1). As the federal court has explained in its certification order, the

question to be certified is one of first impression in Arkansas, and the parties agree on the facts

relevant to the question. See Longview Prod. Co. v. Dubberly, 352 Ark. 207, 99 S.W.3d 427

(2003) (per curiam) (explaining that this court will accept certification of a question of law

when all facts material to the question are undisputed and the question is one of first

impression). In this respect, and in every other respect, the federal court’s certification order
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complies with Rule 6-8 and our precedent regarding certification of questions of law. Yet

the majority refuses to accept the certified question, providing no good reason for its refusal.

I recognize that we have discretion in deciding to accept and answer certified

questions. See Ark. Sup. Ct. R. 6-8(a)(1). However, this court’s treatment of certified

questions as of late has gone completely off the rails. See, e.g., Columbia Ins. Grp., Inc. v.

Cenark Project Mgmt. Servs., Inc., 2016 Ark. 185 (Danielson, J., dissenting). When we are

asked to answer a certified question and the requirements of the rule are unquestionably met,

we should simply answer the question. Our recent refusal to do so is baffling to me and

probably also to the federal judges who have attempted to certify questions to us. In our first

case accepting a certified question under the newly adopted Rule 6-8, we noted the many

advantages of the procedure:

Many commentators have noted the benefits of certification. The procedure: (i)

allows federal courts to avoid mischaracterizing state law (thereby avoiding a

misstatement that might produce an injustice in the particular case and potentially

mislead other federal and state courts until the state supreme court finally, in other

litigation, corrects the error); (ii) strengthens the primacy of the state supreme court

in interpreting state law by giving it the first opportunity to conclusively decide an

issue; (iii) avoids conflicts between federal and state courts, and forestalls needless

litigation; and (iv) protects the sovereignty of state courts. (See, e.g., Braun, A

Certification Rule for California (1996) 36 Santa Clara L. Rev. 935, 937–942 (Braun);

Schneider, “But Answer Came There None”: The Michigan Supreme Court and the

Certified Question of State Law (1995) 41 Wayne L. Rev. 273, 299–301; see also

Goldschmidt, Certification of Questions of Law: Federalism in Practice (1995 Amer.

Judicature Soc’y.) pp. 3–10.)

Longview, 352 Ark. at 209, 99 S.W.3d at 428 (quoting Los Angeles All. for Survival v. City of

Los Angeles, 993 P.2d 334, 338 (Cal. 2000)). If this court no longer finds these benefits to

exist, and if it prefers to dispense with the certification process altogether, it should say so

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explicitly.

For these reasons, I dissent and would accept and answer the question certified to us.

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