Opinion highlights for the week of April 5, 2026

This was a relatively light week, in terms of issued decisions.  The Arkansas Court of Appeals issued eleven decisions on April 8, 2026.  Two decisions appeared on the Arkansas Supreme Court's docket issued the next day.  We'll note two of those Court of Appeals decisions - see if you can spot a theme!

In Golden v. State, 2026 Ark. App. 226, the Court of Appeals affirmed, but noted problems with Golden's statement of the case and the facts.  The court cited Ark. Sup. Ct. R. 4-2(a)(6) and quoted the requirements for concise statements without argument and discussing all material facts and procedural information contained in the record.

Here, the statement of the case consists of eight short sentences basically stating that appellant was charged, tried, and convicted. Clearly, this is woefully deficient and ordinarily merits rebriefing. However, Rule 4-2(b) allows an appellee’s brief to supplement the statement of the case if the appellee believes it to be insufficient, which the State did in this case.

Golden, 2026 Ark. App. 226, at 1 n.1.  Since the State saved the day, the court did not order rebriefing "this time because it is not in the interest of judicial economy to do so." Id. (emphasis in original).

Another footnote in Golden finds that an argument was preserved, despite the State's insistence to the contrary.

 

The State argues that appellant’s argument is not preserved because appellant mistakenly references only the motion for continuance filed by [a private attorney attempting to appear] and not the motion filed and argued by appellant’s counsel. Because appellant’s counsel essentially adopted the motion for continuance filed by [the private attorney] and because both motions argued that a continuance was needed to allow appellant to proceed with private counsel, we address appellant’s arguments on appeal.

Id. at 11 n.2.

Foster v. Sutton, 2026 Ark. App. 224, also addressed a deficient statement of the case and the facts.  A footnote references Ark. Sup. Ct. R. 4-2(a)(6) and quotes the requirements to discuss all material facts and procedural information, and to cite to pages in the record where those items can be found.  "Terry's statement of the case does none of these things" but the court did not order rebriefing "because the appellees' brief supplies the missing information in the missing format." Foster, 2026 Ark. App. 224, at 6-7 n.1.  The court also concluded that certain arguments were not preserved for appeal because they "were neither presented to nor ruled on by the circuit court." Id. at 7.

Thanks for reading.

An interesting request for relief on appeal: invited amici

 

Readers may be familiar with ongoing litigation involving the Arkansas Board of Corrections.  Without getting too far into the weeds, the composition of the Board has changed, and the Board's new majority no longer wishes to make the same arguments advanced by the former majority.

One of the cases involved is on appeal.  There is a trial court decision favorable to the Board, but the parties to the appeal want the Arkansas Supreme Court to reverse the trial court and remand the matter so that it may be dismissed in light of a settlement.

Here's where appellate practitioners might be interested, regardless of their views about the underlying politics.

A former Board member joined with a current Board member to seek relief from the Supreme Court.  They asked to intervene to defend the trial court decision.  But in the alternative, they asked the Supreme Court to appoint an attorney to defend the trial court decision on appeal, since the new Board is disinterested in doing so.

This alternative relief is based on U.S. Supreme Court practice.  The notion is that when a decision on appeal is "orphaned" - that is, a party no longer wishes to defend it - the Supreme Court will appoint an attorney - "invited amici" - to defend the decision.  The Court benefits from full briefing and argument provided by the appointed attorney.

It will be interesting to see how the Arkansas Supreme Court addresses this matter.  I am not aware of an "invited amici" ever being appointed here, but it could have happened.

If you want to review the pleadings and keep up with this case's disposition, you can find the case on the Arkansas Judiciary website, here: https://arcourts.gov/  Search the court records tab for the docket number, CV-25-742.

And if you would like to know more about "invited amici" practice at the U.S. Supreme Court, here's a Cornell Law Review article on the topic: https://scholarship.law.cornell.edu/clr/vol101/iss6/3/

Enjoy - and stay tuned!

Opinion highlights for the week of March 29, 2026

 

Spring Break is over.  On April 1, 2026, the Arkansas Court of Appeals handed down eighteen decisions.  On April 2, 2026, the Arkansas Supreme Court did not hand down any decisions.  Let's take a look at three of those Court of Appeals decisions.

In Toney v. State, 2026 Ark. App. 197, Toney challenged the sufficiency of the evidence to support her lesser-included second-degree murder and first-degree battery convictions.  She argued that there was insufficient evidence that she acted as an accomplice.  The Court of Appeals opined that she failed to preserve her arguments on appeal.

While it is not necessary to specifically state the lesser-included offense by name, the elements of that lesser-included offense must be addressed in the directed-verdict motion. Neither of the elements addressed by Toney are elements of the crimes of which she was convicted. Furthermore, none of the arguments below preserved the arguments raised on appeal regarding lack of evidence to prove that Toney was an accomplice. Accordingly, Toney has failed to preserve her challenge to the sufficiency of the evidence of either offense.

Id. at 5 (citations omitted).

Rebriefing was ordered in Mumtaz Mf v. Lindsey, 2026 Ark. App. 214.  The Court of Appeals noted "briefing deficiencies" that left it "unable to reach the merits of appellant's arguments...." Id. at 1.  These deficiencies under Ark. Sup. Ct. R. 4-2(a) included:

• a brief cover that displayed an incorrect case number and failed to include attorney contact information;
• a jurisdictional statement that did not comply with Ark. Sup. Ct. R. 1-2 by stating which appellate court should hear the appeal;
• a one-page statement of the case and the facts that was argumentative, provided little to no factual or procedural information, and lacked record citations; and
• an argument section with improperly placed standards of review, case citations not in the format required by Ark. Sup. Ct. R. 5-2(d), and the use of at least two opinions that were not designated for publication issued before July 1, 2009.

The court could raise the issue of deficiencies sua sponte, at any time; the mandatory language of Rule 4-2 required doing so here.

Finally, Scallion v. State, 2026 Ark. App. 207, offers guidance for preserving a corroboration challenge.  Scallion argued the State failed to provide sufficient evidence to corroborate her co-defendant's testimony linking her to the murder.  The Court of Appeals determined that this argument was not preserved.

"In order to preserve an accomplice-corroboration challenge to the sufficiency of the evidence for appellate review, a defendant must either have the trial court declare a witness to be an accomplice as a matter of law or submit the issue to the jury." Id. at 5.  Stallings never asked the trial court to declare her co-defendant to be an accomplice as a matter of law, and the trial court never did so.  Nor did she ask the jury to decide the matter, even though two model jury instructions were available for this purpose.  "Because Scallion failed to have [her co-defendant] declared an accomplice as a matter of law or to have the jury instructed on the issue, her claim is barred." Id. at 6.

Thank you for reading.