Page:Mendoza v. WIS International, Inc.pdf/17

 medical expenses paid or the amount to be paid by a plaintiff or on a plaintiff's behalf, thereby dictating what evidence is admissible. Because rules regarding the admissibility of evidence are within our province, we hold that the medical-costs provision also violates separation of powers under article 4, § 2 and amendment 80, § 3 of the Arkansas Constitution and, therefore, is unconstitutional.

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