A clear sign summer break is near: the Arkansas Court of Appeals issued five and a half pages worth of signed opinions this week. I have not read them all yet, so this post is limited to Arkansas Supreme Court decisions. But there is at least one Court of Appeals decision that really needs notice - I may get to these opinions during break, but they will be reviewed.
On to the Supreme Court. There are five opinions on the docket, one dissent from denial of a petition for review, some per curiam opinions addressing committee appointments, and a couple of items dipping the court's toes into artificial intelligence. We'll look at a couple of those opinions, and note the AI related items.
Lovett v. State, 2025 Ark. 100, applied some familiar rules: you can't raise arguments for the first time on appeal, you must obtain a ruling at trial to preserve an issue for appeal, and you are bound to the nature and scope of the arguments made at trial. Fairly standard stuff.
What makes the decision interesting is the concurrence, which starts strong: "Our preservation rules shouldn't be a trap for litigants. Yet that's how the majority treats them, foreclosing appellate review whenever a defendant hasn't uttered certain magic phrases." Id. at 5. The concurrence takes the majority to task for elevating form over substance, and suggests that the court "focus instead on substance and ask whether, in context, an objection fairly encompassed the argument made on appeal." Id. at 6. Applying that standard, the concurrence believed at least one argument was preserved for review.
The concurrence also believes there was a ruling on this argument: "The record confirms that the circuit judge shook her head in direct response to Lovett's request for a curative instruction. That's sufficient; there's no requirement that a circuit court verbalize its ruling." Id. at 7. Lovett shouldn't be penalized "for the circuit judge's decision to convey her ruling with a gesture instead of words." Id.
Unfortunately, no other justice joined the concurrence.
Sanders v. Arkansas Board of Corrections, 2025 Ark. 102, addresses an ongoing dispute between the Governor and the Board over the employment of a Secretary of the Department of Corrections and the enforcement of certain legislation. The Board obtained an injunction halting enforcement of the legislation. The Attorney General appealed. After this interlocutory appeal was lodged in the Supreme Court, the appellants moved the court to disqualify the Board's counsel. This motion was considered with the rest of the case.
For our purposes, the interesting point is the basis upon which the court dismissed this motion to disqualify. Generally, an interlocutory appeal only brings up for review the decision being appealed. Here, the interlocutory appeal was from the granting of an injunction. "Accordingly, because the motion to disqualify is outside the scope of our interlocutory review of the order granting the preliminary injunction, we dismiss the motion to disqualify." Id. at 7.
Finally, the two AI items deserve note. The court published a proposed new Administrative Order 25, which includes a discussion about mixing confidential data with AI. The court also published a proposed change to the Rules of Professional Conduct relating to attorney use of AI and professional responsibility. The court is currently accepting comments on both of these proposals.
Thanks for reading!
