concurring.
I agree with the majority’s conclusion that Arkansas Code Annotated section 16-55-213(e) is the applicable venue provision in this case. I also agree that section 16-55-213(e) is constitutional under the separation-of-powers doctrine. I write separately because, in my view, it is not necessary to look beyond the provisions of our constitution to reach this conclusion.
The majority correctly concludes that Arkansas Code Annotated section 16-55-213(e) (Repl.2005) is constitutional because “venue is a matter that lies within the province of the General Assembly.” The majority also mentions, however, that “in the Reporter’s Note to 114Rule 82, it states that the rules of civil procedure ‘are intended to be procedural only and do not affect any substantive issues such as venue and jurisdiction.’ ” I believe it is unnecessary to look beyond the language of the Arkansas Constitution to determine the constitutionality of the statute.
The majority properly begins its analysis with the maxim that all statutes are presumed constitutional. I would add to that maxim that
it must always be remembered that the state’s constitution is neither an enabling act nor a grant of enumerated powers, and the legislature may rightfully exercise the power of the people, subject only to restrictions and limitations fixed by the constitutions of the United States and this state. Jones v. Meats, 256 Ark. 825, 510 S.W.2d 857 [ (1974) ]; St. L., I.M. & S. Ry. Co v. State, 99 Ark. 1, 136 S.W. 938 [(1911)]. Under our system of government the legislature represents the people and is the reservoir of all power not relinquished to the federal government or prohibited by the state constitution. Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W.2d 85 [ (1968) ]; Hackler v. Baker, 233 Ark. 690, 346 S.W.2d 677 [ (1961) ].
Wells v. Purcell, 267 Ark. 456, 464, 592 S.W.2d 100, 105 (1979); see also Rockefeller v. Hogue, 244 Ark. at 1041, 429 S.W.2d at 92 (“There can be no doubt that the legislative branch may implement any constitutional provision by legislation which is not inconsistent therewith or repugnant thereto, so long as the legislation does not invade specific powers delegated to one of the other branches or exceed specific constitutional limitations.”).
The appellant invokes the separation-of-powers doctrine as a basis for reversing the circuit court and also alleges that the statute “invades the Arkansas Supreme Court’s constitutional grant of authority to establish the rules of pleading, practice and procedure | ^pursuant to amendment 80, section 3.” The “separation of powers doctrine” is embodied in the provisions of Arkansas Constitution, article 4, sections 1 and 2:
The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another.
No person or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in instances hereinafter expressly directed or permitted.
Under this doctrine, the General Assembly may not “exercise any power belonging to” the judicial department. Our constitution, however, clearly vests the power to establish venue with the legislative branch. Ark. Const. amend. 80, § 10 (“The General Assembly shall have the power to establish jurisdiction of all courts and venue of all actions therein, unless otherwise provided in this Constitution_”) (emphasis added). The power to establish venue thus “belongs” to the legislative department. The statute at issue in this case, Arkansas Code Annotated section 16-55-213(e), is clearly a venue statute, and as such is unquestionably within the powers of the legislative department under our Constitution. It is thus unnecessary, in my view, to refer to the provisions of our rules on the topic. It is immaterial in this case whether our rules declare venue to be procedural or substantive, or to what degree we have adopted rules on the topic, because either way, section 16-55-213(e) is a venue statute for purposes of amendment 80, section 10 and within the power of the General Assembly.
|ifiThe majority traces our recent decisions in the area, stating that in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), “we held that a statute was unconstitutional as it conflicted with our rules of procedure,” and that in Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d 415 (2007), we held the statute at issue there “unconstitutional as being in conflict with Rule 3 and our court’s authority under Amendment 80.”
In Weidrick v. Arnold, supra, a pre-amendment-80 case, this court considered whether Rule 3 of our Rules of Civil Procedure regarding the commencement of civil actions superseded the statutory provision found in Arkansas Code Annotated section 16-114-201 (1987 & Supp.2001). That statute required a plaintiff in a medical-malpractice case to serve the defendant with a notice of intent to sue sixty days prior to filing the complaint. The Weid-rick court held that the statute directly conflicted with Rule 3 and was thus superseded by the rule. Weidrick, 310 Ark. at 146, 835 S.W.2d at 848-49. The court did not, however, hold that section 16-114-201 was “unconstitutional,” as the majority suggests. The Weidrick court viewed the matter more as one of supersession. This was entirely appropriate at a time when this court’s authority to make rules of procedure was only “inherent” or “implied” and was shared with the General Assembly. See State v. Lester, 343 Ark. 662, 38 S.W.3d 313 (2001) (quoting Jackson v. Ozment, 283 Ark. 100, 671 S.W.2d 736 (1984), overruled on other grounds by Weidrick v. Arnold, supra, for the proposition that “Article 7, sections 1 and 4 ‘do not expressly or by implication confer on this Court exclusive authority to set rules of court Procedure’ ” and “this court shares that authority with the General Assembly”). See also Acts 1973, No. 38; Re Rules of Civil Procedure, 264 Ark. App’x 963 (1978) (per curiam); Acts 1971, No. 470; In re Arkansas Criminal Code Revision Comm’n, 259 Ark. 863, 530 S.W.2d 672 (1975) (per curiam).
Later, in Summerville v. Thrower, supra, a post-amendment-80 case, this court was confronted with the constitutionality of another portion of the medical-malpractice statutes, Arkansas Code Annotated section 16-114-209(b). That statute required a plaintiff to submit an affidavit of reasonable cause from a medical expert when filing a medical-malpractice action. There, the court first found that section 16 — 114—209(b) was procedural, and then considered whether the statute conflicted with Rule 3. Because the statute contained a procedural requirement that was not found in Rule 3, this court found the statute to be “constitutionally] infirm[ ]” and struck that provision “as directly in conflict with Rule 3 of our Civil Rules of Procedure and this court’s authority under Amendment 80 of the Arkansas Constitution.” Summerville, 369 Ark. at 239, 253 S.W.3d at 421. In Summerville, the issue was not one involving supersession, where both branches shared power over procedural rules, but was one of constitutional dimension. The passage of amendment 80, including amendment 80, section 3, transformed the inquiry from one of super-session to one involving the separation-of-powers doctrine.
Although we did not mention the separation-of-powers doctrine in Summerville, it is clear to me that the decision was based upon that underlying principle. Acts of the General Assembly are not unconstitutional because they conflict with a rule promulgated by this court. | ^Instead, acts of the General Assembly are unconstitutional when they transgress a provision of the Arkansas or United States Constitution. Wells v. Purcell, supra. Although the court in Summerville held section 16-114-209(b) unconstitutional under amendment 80, section 3, in my view, that provision is not itself a prohibition against the exercise of power by the General Assembly. It simply invests this court with a power — in fact, a duty — to “prescribe the rules of pleading, practice and procedure for all courts.” It carves out and reserves to the judicial branch a power — the power to prescribe rules of pleading, practice, and procedure — that may not be invaded by the other departments of government by virtue of article 4, sections 1 and 2. Thus, after the adoption of amendment 80, the question in cases such as this is no longer to what degree a statute conflicts with our rules, but in which department the organic law confides■ the power for purposes of article 4, sections 1 and 2 and whether a branch other than that to which it is confided has attempted to exercise it.
Our most recent decision in this area, Johnson v. Rockwell Automation, Inc., 2009 Ark. 241, 308 S.W.3d 135, reflects this principle. Although our earlier decision in Summerville v. Thrower, supra, focused at least to some degree on whether the applicable statute directly conflicted with our rules, we stated in Johnson that, “so 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.” Johnson, 2009 Ark. 241, at 7, 308 S.W.3d at 141; see also Cato v. Craighead Cnty. Circuit Court, 2009 Ark. 334, 322 S.W.3d 484 (“Under our holding in | Johnson, the only question that need be asked is whether the challenged legislation dictates procedure. If the legislation bypasses our rules of pleading, practice, and procedure by setting up a procedure of its own, then it violates the separation-of-powers doctrine”).
Likewise, in this case, the power to establish venue is solely the responsibility of the General Assembly. Ark. Const. amend. 80, § 10. As a consequence, the only question that need be asked in this case is whether section 16-55-213(e) dictates venue. The scope of our rules or the extent of the statute’s conflict with our rules is irrelevant in this case. I therefore concur in the majority’s opinion on this point.