Opinion highlights for the week of May 25, 2025

 My count reflects nine Arkansas Supreme Court opinions and thirteen signed Arkansas Court of Appeals opinions handed down this week.  We'll concentrate on certain Supreme Court opinions today.

In State v. Russell, 2025 Ark. 89, the Supreme Court dismissed the State's appeal for lack of jurisdiction.  The trial court granted Russell's motion in limine to exclude inculpatory chat sessions between Russell and an officer posing as a fourteen year old girl.  The State brought an interlocutory appeal; Russell moved to dismiss, arguing the appeal was not sanctioned by Ark. R. App. P.-Crim. 3.

The court noted that the State's right to appeal is limited by Rule 3.  None of Rule 3(a)'s terms permit an appeal from a trial court's decision granting a motion in limine.  The State argued that a motion in limine is similar to a suppression motion, which could be appealed by the State under the rule.  The court disagreed - nothing was "seized" here, and Russell's motion in limine below was not filed under the suppression motion rule, Ark. R. Crim. P. 16.2.  The court concluded: "[W]e lack jurisdiction to consider the merits of the State’s interlocutory appeal because it is not from an order granting a motion under Rule 16.2 to suppress seized evidence, or from one of the other pretrial orders listed in Ark. R. App. P.–Crim. 3(a). Accordingly, we grant Russell’s motion to dismiss the appeal on this basis...." Russell, 2025 Ark. 89, at 11.

The court granted a petition for a writ of certiorari, determined that the trial court's gag order constituted "a plain, manifest, clear, and gross abuse of discretion," and vacated that order, in Spencer v. State, 2025 Ark. 91.  The majority opinion is an instructive essay on the constitutional implications of an overbroad gag order applicable to parties, attorneys, court personnel, and others.  But I want to note a couple of the concurrences here.

One concurring judge analyzed the issue under the Arkansas, not Federal, Constitution.  This may be a useful road map for presenting constitutional arguments under our constitution.

And this has probably happened before, but it must be rare: another concurring judge cited and quoted an English opinion, R v. Sussex Justices, Ex parte McCarthy (1924) 1 KB 256, 259, All ER Rep 233, 234.  See Spencer, 2025 Ark. 91, at 28.  This is noteworthy, particularly in light of another judge's comment about the use of foreign opinions quoted in last week's Highlights.

In TikTok v. State, 2025 Ark. 97, the court denied a petition for a writ of certiorari.  Petitioners claimed the trial court's denial of their motion to dismiss for lack of personal jurisdiction justified relief - they had no other adequate remedy.  The court disagreed: personal jurisdiction is a fact-intensive issue, making it an improper subject for an extraordinary writ, and the lack of personal jurisdiction could be raised on appeal.  Because the petitioners had another adequate remedy, the request for a writ was denied.

Turning to the Court of Appeals, a number of cases relied on familiar rules, such as how an appellant is limited by the arguments raised below, that arguments cannot be changed on appeal, and the requirements for issue preservation.  Because this post is long enough, I won't go into those.

Thank you for reading!

Opinion highlights for the week of May 18, 2025

 

I count five Arkansas Supreme Court opinions and sixteen signed Arkansas Court of Appeals opinions handed down this week; a concurrence and dissent from the denial of a petition for review to the Supreme Court are also noteworthy.  Let's highlight three cases.

The underlying dispute in Griffin v. Arkansas Board of Corrections, 2025 Ark. 81, is interesting in its own right, but we'll focus on the appellate jurisdiction question.  The trial court dismissed the Attorney General's ("AG") complaint without prejudice.  The AG appealed that dismissal.  The Board moved to dismiss the appeal, arguing that since it was denied without prejudice, it could be refiled, and thus the trial court's order was not a final, appealable order.

The court first noted the general rule: "[W]hen a complaint has been dismissed without prejudice, a party may either appeal the dismissal or elect to plead further." Id. at 4.  If a party chooses to appeal and the lower court is affirmed, then the dismissal converts to one with prejudice.

There are exceptions to this rule.  If a party voluntarily dismisses one of multiple claims in order to appeal the remaining claim(s), that will not be a final order.  The court gave other examples of exceptions, including a defendant's appeal from an order granting a plaintiff's motion for nonsuit or the nonsuit of a compulsory counterclaim - these orders are not final, because of the potential for refiling.

Here, the general rule applied to the AG's dismissal and appeal.  The trial court's order covered all of the AG's claims; nonsuits and counterclaims were not an issue.  Thus, jurisdiction vested in the court to consider the appeal.

The denial of a petition for review sparked a concurrence and dissent in Crain, et al. v. Crain, et al., 2025 Ark. 86.  One justice authored a dissent, joined by another justice, that cited a number of cases from other states (and from Arkansas, too).  Yet another justice wrote a concurrence, noting that she did "not share the dissenting justice's penchant for relying on cases from foreign jurisdictions...."

This is likely of no moment, but there apparently are differing views on the use of other states' caselaw.  There is a law review article discussing the use of such authority (and other authorities) by our appellate courts; you can find a cite to that article here: https://areylaw.blogspot.com/search/label/Articles%20-%20Arkansas%20appeals

Turning to the Court of Appeals, Burtrain v. State, 2025 Ark. App. 323, provides a lesson in presenting and supporting one's arguments.  Burtrain objected to a witness's statement; the trial court admonished the witness; but Burtrain did not request a mistrial.  Failure to request a mistrial precluded review of that issue on appeal.

Burtrain attempted to justify review, but his argument was unavailing.

Recognizing that he did not request further relief, Burtrain now argues that the error was so serious that the circuit court should have acted on its own initiative to declare a mistrial. Burtrain is apparently referring to the third Wicks exception to the contemporaneous-objection rule that applies when the error is so flagrant and so highly prejudicial in character as to make it the duty of the court to intervene on its own motion. However, Burtrain does not cite Wicks... or discuss its exceptions to the contemporaneous-objection rule and provides no convincing authority for the assertion that the court should have acted on its own initiative to declare a mistrial. Accordingly, we hold that the circuit court did not err in failing to grant a mistrial sua sponte in the absence of a request by Burtrain.

Id. at 10 (citations omitted).

There are a couple of other Court of Appeals decisions we could discuss, but they present fairly common problems, and I'm ready to start my long weekend.  Thanks for reading - comments are welcome.

Federal Advisory Committee appointment

Having seen written confirmation, I can now report my appointment to the Federal Advisory Committee for the United States Court of Appeals for the Eighth Circuit.  This committee studies rules of practice and internal operating procedures for the court and makes recommendations concerning these rules and procedures.  It also studies the rules of the Judicial Council of the Circuit.  My understanding is that my term runs through December 2027.

Many thanks to Judge Lavenski R. Smith for submitting my name and to Tim Cullen for that suggestion.  The opportunity to serve on this committee is greatly appreciated.