Downtown Lawyer

Cato v. Craighead County Cir. Ct., No. 09-4.

In 2007, Kevin Lawrence filed a lawsuit in Craighead County Circuit Court against Barrett Cato and other defendants relating to the firing of a gun, which struck Lawrence in the abdomen.  Lawrence was able to serve Cato with a summons and complaint while he was on uniformed duty with the Arkansas National Guard at the Prescott Armory.  Cato filed a motion to dismiss the complaint, arguing that service was improper and violated Ark. Code Ann. § 12-62-403, which provides the following:

No person belonging to the organized militia shall be served with any civil process while going to, remaining at, or returning from any place at which he may be required to attend for military duty.

The trial court held a hearing on the motion and ruled that Ark. Code Ann. § 12-62-403 violated the separation of powers doctrine because it was in conflict with Rule 4 of the Arkansas Rules of Civil Procedure.  Cato, in turn, filed a petition for writ of prohibition or certiorari.

The Arkansas Supreme Court held that (1) Cato was entitled to a writ of certiorari, (2) Ark. Code Ann. § 12-62-403 provided a substantive right for members of organized militias to be except from civil process during military duty, and (3) because Ark. Code Ann. § 12-62-403 was not a procedural statute, it did not violate separation of powers.  The court further explained that it had issued a bright-line rule as to the constitutionality of statutes in accordance with the separation of powers doctrine:

[S]o long as a legislative provision dictates procedure, that provision need not directly conflict with our procedural rules to be unconstitutional. This is because rules regarding pleading, practice, and procedure are solely the responsibility of this court.