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.

Opinion highlights for the week of May 11, 2025

 

The Arkansas Supreme Court issued two decisions this week; the Arkansas Court of Appeals issued fourteen signed decisions.  Several of the Court of Appeals decisions are relevant here.

Two decisions touched on - or raised questions about - the Arkansas Rules of the Supreme Court and Court of Appeals.

In Centofante, et al. v. Ferguson, et al., 2025 Ark. App. 303, the court resolved a question about county court subject matter jurisdiction under Ark. Const. art. 7, sec. 28.  The interesting thing is that the court decided this case without mentioning Ark. Sup. Ct. R. 1-2(a)(1), which assigns jurisdiction over "[a]ll appeals involving the interpretation or construction of the Constitution of Arkansas" to the Supreme Court.  It is uncertain whether this opinion tells us anything about the meaning of Rule 1-2(a)(1), but the precedent is there.

Please note that I'm working with another attorney on an appeal involving this same issue - but that appeal is in the Supreme Court.

In City of Pine Bluff Advertising and Promotion Comm'n v. Aramark Educational Services, 2025 Ark. App. 306, the court addressed a circuit court ruling finding Aramark exempt from a tax.  Footnote 1 explains the jurisdictional question involving Ark. Sup. Ct. R. 1-2(a)(8), which assigns "[a]ppeals required by law to be heard by the Supreme Court" to that court.

After this appeal was filed in our court, we certified the case to the supreme court pursuant to Arkansas Supreme Court Rule 1-2(a)(8), which provides that appeals required by law to be heard by the supreme court shall be filed in that court. We cited Ark. Code Ann. § 26-18-406(c)(2) (Supp. 2023) of the Arkansas Tax Procedure Act, which provides that an appeal of a circuit court decision under this section lies from the circuit court to the supreme court. The supreme court denied certification and declined to accept jurisdiction. Accordingly, our court has jurisdiction of this appeal.

City of Pine Bluff, 2025 Ark. App. 303, at 1-2 n.1.  A concurring opinion offers further explanation behind the Court of Appeals' decision to certify the case under the rule.

Turning to other issues, the Court of Appeals dismissed an appeal for lack of a final order in University Medical Pharmaceuticals Corp. v. Team Direct Management, 2025 Ark. App. 297.  The order appealed from disposed of fewer than all of the claims, and no Ark. R. Civ. P. 54(b) certificate was in the record.  Three claims were asserted in the complaint, but the order only adjudicated one of them.  Of the other two claims, one was voluntarily nonsuited without prejudice, meaning it could be refiled within one year.  And the second of the two remaining claims was not addressed at the trial level, at all.  Because these two claims were not disposed of below, the court lacked jurisdiction to reach the merits of the appeal.

In Dosia v. State, 2025 Ark. App. 299, the court declined to consider the argument presented on appeal.  Dosia argued in a written motion to suppress that the officers entered his home illegally in violation of the Arkansas Rules of Criminal Procedure.  At the hearing on the motion, he argued that the search was conducted in an unreasonable manner; the motion to suppress was denied.  On appeal, Dosia argued that the officers entered the home illegally in violation of statutory requirements.  This argument was made for the first time on appeal - there was no ruling on it below - therefore it was not preserved for review.

Finally, in Briley v. Arkansas Department of Human Services, 2025 Ark. App. 302, Briley argued that the court could consider his due process arguments for the first time on appeal under the third Wicks exception.  This is a termination of parental rights case, not a criminal appeal, so the Wicks discussion occurs in a different context.  The third Wicks exception concerns a court's duty to intervene, even if there is no objection, to correct a serious error either by a jury admonition or by ordering a mistrial.  Briley's claims involved insufficient service of process, lack of participation in the hearings, and an appointed counsel so ineffective that he was denied due process.  Ultimately, the court determined that Briley's claimed errors were not "serious" enough to warrant application of this exception.

As always, thanks for reading.

Eighth Circuit Judicial Conference, July 31 - August 1, 2025

 

Registration and other information for the Eighth Circuit Court of Appeals' upcoming conference is now available.  You can find that information at this link: 2025 Eighth Circuit Judicial Conference

Specific information about the agenda is here: Agenda: 2025 Eighth Circuit Judicial Conference

2025 Appellate Defender Training - Day Four (final)

We had a three-and-a-half hour session this morning entitled "Unequal Justice: Strategies to Address Racial Bias in Your Briefs."  This was fairly intense, and I'm still pondering what we discussed.

Our lead presenter challenged us to use words like "discrimination" and "racism" in our briefs.  He counseled forcing courts to confront these issues - give them the choice between acting and saying it doesn't matter.

If we keep citing the cases against us, we will continue to lose.  So, we should challenge the standards.  We should change the narrative.

How best to do that?  As with yesterday afternoon's session, we were counseled to view the common law as evolving on these issues.  The law isn't static.  We should push for change.  We can use law review articles, social science studies, cases from other jurisdictions, etc., to document this change.  Support in the data is particularly useful.

Tell your story from the client's perspective.  This point goes back to the first day: this is about client-centered representation.  But make the deciders decide.

There was more - my notes are pretty extensive - but I really do need to think through this session.  No client will benefit from un- or ill-supported charges of racism or discrimination.  But in cases where the evidence is there - and these exist, I've seen them - wouldn't it be unprofessional not to pursue these arguments?

There's no doubt that it was worth the time and effort to attend this program.  If you do criminal appeals, direct or habeas, I highly recommend NLADA's Appellate Defender Training to you.

I'll spend some time in the very near future typing up my notes and thinking of ways to deliberately incorporate these lessons into the criminal appeals side of my practice.  I'll also consider which lessons might be incorporated into my civil appeals, too.

Thanks for reading.

2025 Appellate Defender Training - Day Three

There was one skills-oriented session today, focusing on oral argument.  This was a good overview.

The overarching purpose for oral argument is to answer the court's questions.  It complements the brief by helping the court understand your arguments.  Treat these questions as an opportunity to help the court reach the right result - this is a conversation about your case and how it should be resolved - so welcome these questions.

In case you do get uninterrupted argument time, you should think about what you want the court to take away from your argument (and your questions should return to this, as well).  This particularly applies to your opening - this is usually your one opportunity to make a statement before questioning begins.  Think carefully about what you want to say.

Judges can only retain so much, and too many weak arguments dilute your strong ones - so you should really stick to your strongest argument(s).

We were given several prompts to help anticipate questions.  When you first review the record, write down the questions you have - the court may well have those same questions.  What questions might follow from the State's argument?  If a judge wants to avoid deciding the case, what questions might that judge have?  And consider what concessions may be necessary, and how far you'll go with them.

Going slower and pausing occasionally are good ways to get a "cold" court involved.

Prepare "headlines" or statements to use for transitioning from one point or argument to another.

The other substantive session from today explored how to apply recent case law involving juveniles to young adults, from eighteen to twenty-one or so years old.  This was an interesting discussion about strategizing and effecting development of the law.

Throughout the program, we've had small group meetings to put into practice the skills sessions.  I won't say more about these, but they've all been good for tips and advice.

We have a half-day meeting tomorrow, then I'm heading back to Arkansas.  I may blog about that meeting, too.  Thanks for reading!

2025 Appellate Defender Training - Day Two

Today's sessions focused on brief writing and editing.  These topics are difficult to condense down into short presentations, but both presenters did a good job with the time allotted.

When writing, we were advised to use emotion to encourage the reader to engage or be involved with our arguments.  Compassion is to be preferred over empathy - the latter is exhausting, while the former can be grounds to improve someone's situation.

Our "lede" - our most essential point - should lead every paragraph.  Our best, most compelling argument should not be last.  Don't bury that point in your brief.

Everything we write should be intentional: organization, word choice, and punctuation.  And we should tell our client's story everywhere, even in the table of contents - make those headings fact-laden and interesting.

The editing discussion was fairly wide ranging.  Apparently, there's a preference for Century Schoolbook font.  ALL CAPS should be avoided everywhere.  Write with such clarity that your mother can understand your argument.

One really interesting suggestion made in the editing discussion applies to brief writing: if your record is thin, fill in facts with material drawn from dictionaries, studies, articles, newspapers, etc.  "Create" supporting facts in this fashion.

We should not adopt language used by prosecutors or law enforcement.  We should use language that is more favorable to our clients.  For example, we can place our client's names into quotes about the law: "The Fourth Amendment protects Mr. Smith's right to...."  Personalize the law in this fashion.

Again, there was a lot of food for thought.

2025 Appellate Defender Training

There likely won't be any Opinion Highlights this week.  I am attending the 2025 Appellate Defender Training program in Worcester, Massachusetts, sponsored by the National Legal Aid & Defender Association.  My goal is to improve my ability to handle criminal appeals, but I suspect some of the lessons will be useful in my civil practice, too.

The program is designed for counsel appointed to represent indigent criminal defendants on appeal.  This includes both full-time public defender staff and appointed counsel in private practice.  There are about fifty attendees here from around the country.

Today's session provided a lot of food for thought.

We first heard from a couple of former incarcerated individuals - in both cases, jailed for decades - who were ordered released upon proof of their innocence, as well as one of the attorneys who represented them.  They all stressed the need to listen to your client - some clients know their cases and what was unfair about them, and they can contribute to developing your arguments and writing more accurate briefs.  They can help you demonstrate that justice was not done.

Two drafting tips stood out.  First, shift the narrative about your client - don't simply restate the State's proof.  And second, lead with your best point.  If new DNA evidence exonerates your client, that needs to be the leading statement, not buried in the brief.  Think outside the box on your brief's structure.

The subsequent session on brainstorming emphasized that the focus should always be about the injustice - how was your client treated unfairly?  Tell a fact-driven, emotional, easy to understand story.  These elements make a great brief.

This session also emphasized the need to change the narrative about your client.  That can have real impact on your brief - for example, you might be able to utilize a more forgiving standard of review, if you can change the narrative or view of what happened.  Why would you argue sufficiency of the evidence when a problem might be recast as a structural error or misconduct in the trial?

The final session of the day - story telling - elaborated on these same points and others.  We were admonished to always give the reader all of the facts; otherwise, the reader might draw harmful inferences.  Bad facts must be embraced and made a part of the narrative.

Of course, this advice must be considered in the context of Arkansas's rules concerning appellate practice.  Our standards of review might prevent following some of this advice; the prohibition against changing arguments on appeal is another consideration.

As the program continues, I may blog about other points worth repeating.  Comments are always welcome.

A ceremony at the Arkansas Court of Appeals

One perquisite of former service on the Arkansas Court of Appeals (in my case, very brief service) is the occasional invitation to attend the court's ceremonies.  Today, the court hosted an "Oath of Office Ceremony" for Chief Judge Mark Klappenbach and Judge Casey R. Tucker.  Despite the weather, there was a good crowd.

Events such as this are always worth attending.  They are a good reminder of the history and traditions of the court and our profession.  They are also an opportunity to see a dwindling number of former colleagues, current personnel of the court, and other lawyers.

A few pictures from the ceremony are posted below.

Chief Judge Klappenbach being sworn in by Chief Justice Karen Baker, who appointed him to this post.

Judge Tucker being assisted with her robe by her family.

Both judges offered remarks after taking the bench.

Today's program.

Opinion highlights for the week of April 27, 2025

 

This week, the Arkansas Supreme Court handed down six decisions, while the Arkansas Court of Appeals handed down fifteen signed decisions.  We'll concentrate on a few of the candidates for mention here.

A standard of review discussion occupied part of the opinion in Parker v. State, 2025 Ark. 55.  Parker challenged the trial court's decision not to instruct the jury on a lesser-included offense.  The Arkansas Supreme Court's majority stated the standard of review:

If the slightest evidence supports giving an instruction on a lesser-included offense, a circuit court commits reversible error by refusing to give it. ... We review a circuit court's rulings concerning jury instructions for abuse of discretion.  This is a high standard that does not simply require error in the circuit court's decision, but that the circuit court acted improvidently, thoughtlessly, or without due consideration.

Id. at 6-7 (citations omitted).  The majority appended a footnote to this statement:

The concurrence asserts that our standard for lesser-included-offense instructions imposes a higher bar than we currently recognize.  That said, while we do not deny our ability to address potentially confusing issues in our case law when properly before us, that is not the case here.

Id. at 7 n.2.

The concurrence asserts that the court applies a different standard of review than suggested by the language used in the majority opinion.  The concurrence takes a deep dive into the basis and history of the "failure to give a lesser-included instruction" standard of review, and suggests clarifying the standard actually applied:

I’d take a different approach and use this case as an opportunity to clarify the law and hold that: (1) a lower court isn’t required to give a lesser-included instruction unless there’s a sound evidentiary basis for acquitting the defendant of the charged crime and instead convicting him of the lesser; and (2) on appeal, reversal is only warranted (not required) where a judge has abused his or her discretion—that is acted thoughtlessly, improvidently, or without due consideration—in making that determination.

Id. at 14.

Turning to the Court of Appeals, in Love v. State, 2025 Ark. App. 263, the court found that an issue was not preserved for review because the motion for a directed verdict was not specific enough.  Love argued on appeal that the evidence was insufficient to prove he possessed a rifle found in his truck; at trial, his motion stated that "the State has failed to make a prima facie case that [Love] possessed a firearm." Id. at 1.  "An argument that the State has not made a prima facie case is insufficient to preserve any specific deficiency in the State's case for appellate review." Id. at 1-2.

Smith v. Arkansas Department of Human Services, 2025 Ark. App. 271, addressed a preservation issue of interest to parents' counsel.  One of the arguments raised in this termination of parental rights appeal was that the evidence was not sufficient to show meaningful efforts by DHS.  The court found that this argument was not preserved.

Here, [the parent] did not appeal from the finding in the permanency-planning order that DHS had made reasonable efforts to provide family services. Furthermore, she made no objection at the termination hearing that DHS had failed to provide services; therefore, she has waived that issue on appeal.

Id. at 13.  Failure to raise a timely objection - and to the correct order - deserves consideration.

Finally, in Howard v. Jefferson Regional Medical Center, 2025 Ark. App. 277, the court offered a reminder to diligently consider amending notices of appeal.  The trial court granted a motion to dismiss against the Estate for failure to state a claim on September 29, 2023.  The Estate filed a motion for reconsideration on October 9, 2023, and a notice of appeal on October 26, 2023.

Significantly, the trial court never ruled on the motion for reconsideration, nor did the Estate amend its notice of appeal regarding this deemed denial.  That was fatal.  The "Estate did not amend its notice of appeal to include the deemed denial of the motion; therefore, this argument is not preserved for our review." Id. at 7.

I hope these summaries are beneficial - have a great rest of your week!