concurring. The concurring opinion of Justice Turner expresses my views. I wish only to add that I cannot read our opinion in Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986), as holding anything other than that the rules of evidence are rules of practice and procedure and not substantive law.
We were concerned with whether Ricarte could assert a privilege contained in one of the rules of evidence adopted, illegally as it turned out, by the general assembly. He asserted his wife could not testify against him because of the so-called “husband-wife privilege.” The state responded that under Uniform Rules of Evidence 504(b), she could testify because the rule specified that only “confidential” communications were privileged. Ricarte objected to the state’s reliance on the rule because its adoption by the general assembly had occurred in an unconstitutional manner. The trial court overruled the objection and allowed the wife to testify. We reversed.
We agreed with Ricarte that the rules had not been properly adopted by the general assembly. We explained our reasons for exercising our authority to make rules, noting the chaos which might ensue if we were simply to hold the statutory version invalid without replacing it. Although we gave that explanation, we said nothing about the adoption being a stop-gap or temporary. Here is what we said about our authority:
For more than fifty years there has been a steady trend in favor of committing to the courts the regulations of practice and procedure. Dean Wigmore took a strong stand in the matter as early as 1928. Editorial, 23 Ill. L. Rev. 276. Many others agreed. In 1940 the American Bar Association chose as the subject for its annual Ross essay contest: “To What Extent May Courts under the Rule-Making Power Prescribe Rules of Evidence?” the winning essay by Prof. Thomas F. Green, Jr., argued persuasively that all rules of evidence are properly subject to the courts’ rule-making power. 26 A.B.A.J. 482 (1940). Other pertinent articles include another Ross essay submitted by Charles A. Riedly, 26 A.B.A.J. 601 (1940); Morgan, “Rules of Evidence — Substantive or Procedural?,” 10 Vanderbilt L. Rev. 467 (1957); and Joiner and Miller, “Rules of Practice and Procedure: A Study of Judicial Rule Making,” 55 Mich. L. Rev. 623 (1957).
Arkansas has kept step with the progress made elsewhere. Our Constitution of 1874 confers upon the Supreme Court “a general superintending control over all inferior courts of law and equity.” Art. 7 § 4. We note in passing that the Supreme Court of New Mexico relied on almost identical language in the New Mexico constitution as authority for the court’s action in adopting the Uniform Rule of Evidence as the law in that state. Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976), where the court analyzed in depth its rule-making power.
In 1971, the Arkansas legislature used mandatory words in committing the regulation of criminal practice and procedure to this court:
The Supreme Court of the state of Arkansas shall have the power to prescribe, from time to time, rules of pleading, practice, and procedure with respect to any or all proceedings in criminal cases.
Ark. Stat. Ann. § 22-242 (Supp. 1985) [Ark. Code Ann. § 16-11-301 (a)(1987)]. That action was not an improper delegation of legislative power; it merely recognized the court’s inherent power. Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977). The statutory language quoted above was repeated in a 1973 statute by which the legislature recognized the Supreme Court’s power to prescribe rules with respect to procedure in civil cases. § 22-245 [Ark. Code Ann. § 16-11-302 (1987)]. Under those statutes we have adopted the Rules of Criminal Procedure and the Rules of Civil Procedure. More recently we adopted rules for the certification of court reporters. We are not the first court to adopt the Uniform Rules of Evidence by judicial action. That step has been taken not only in New Mexico, as mentioned earlier, but also in Florida, In re Florida Evidence Code, 372 So.2d 1369 (1979); in Montana, Montana Rules of Evidence, Ch. 10 Mont. Code Ann. (1984); and in Wisconsin, In re Promulgation of Rules of Evidence, 59 Wis. 2d R1-R377 (1973). The Supreme Court of the United States adopted the Federal Rules of Evidence pursuant to federal statutes quite similar to the 1971 and 1973 statutes enacted in Arkansas. See Reporter’s Note, 409 U.S. 1132 (1972).
In our discussion concluding that the state would not get the benefit of our adoption of the rules in Ricarte’s case, we suggested that, had the rules been in place and applicable to Ricarte’s case, the state would have prevailed on the question of the limitation on husband-wife privilege contained in Rule 504(b). We made no reference to the privilege being a matter of public policy to be decided only by the general assembly. The psychotherapist-patient privilege is no different.
The substance-procedure distinction is a difficult one, but with respect to the nature of the rules of evidence, we crossed that bridge in the Ricarte case. But for our conclusion that the rules were procedural, we would have had no authority to adopt them, even temporarily. It is inescapable that the case held those rules come within our power to prescribe rules of “pleading, practice, and procedure.”
In our per curiam order adopting the rules as they had been published in Act 1143 of 1975, In re Adoption of the Uniform Rules of Evidence, 290 Ark. 616, 717 S.W.2d 491 (1986), we changed Rule 1102 so that the rules would no longer be named “Uniform Rules of Evidence” but would be named “Arkansas Rules of Evidence,” thus making the title consistent with the “Arkansas Rules of Civil Procedure” and “Arkansas Rules of Criminal Procedure” which this court had adopted earlier. It is clear to me that we have preempted evidence law, and we will be governed by statutes in the area only when we have not adopted a conflicting rule.
The supreme court obviously does not have the exclusive authority to prescribe procedure. As we pointed out in Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990), and St. Clair v. State, 301 Ark. 223, 783 S.W.2d 835 (1990), we share that authority with the general assembly. Absent a rule of court a statue regulating procedure controls. In addition, the general assembly controls procedure in special statutory actions. Arkansas R. Civ. P. 81(a) excepts from the application of court rules “those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.” Bohnsack v. Beck, 294 Ark. 19, 732 S.W.2d 147 (1987); Travelodge International, Inc. v. Handleman National Book Co., 288 Ark. 368, 705 S.W.2d 440 (1986). See also Screeton v. Crumpler, 273 Ark. 167, 617 S.W.2d 847 (1981).
We should have based our decisions in the Curtis and St. Clair cases on the substance-procedure distinction rather than one requiring us to determine whether public policy is involved in a rule or statute. Thus I particularly agree with the majority opinion’s retreat from that aspect of those decisions. I presume, however, that the essence of those decisions, which is that statutory law will govern procedure except in an area preempted by court rule, remains.
I am also in full accord with Justice Turner’s expression of the need for uniformity and clarity so that lawyers and litigants will not have difficulty added to the already complex task of knowing whether our rule or a statute applies. While we will still, from time to time, have to decide whether a matter is substantive or procedural or whether an area has been preempted by court rule and thus is not governed by statute, it will be helpful for all to understand, as a result of this decision, that the Arkansas Rules of Evidence are the primary, general source of evidence law.