By my count the Arkansas Supreme Court handed down seven opinions on October 30, 2025. The day before, the Arkansas Court of Appeals handed down twenty-three opinions. Several of these decisions are candidates for mention here, but two - one from each court - really merit your attention.
Evans v. Harrison, 2025 Ark. 164, reversed a trial court's order requiring a county clerk to certify a local ballot initiative. The court held that the Arkansas Constitution required this result - the timing of the ballot initiative's filing didn't meet the constitutional time limits. How the court got to this issue makes this case interesting to appellate lawyers.
The majority noted that the parties focused on other issues in their initial briefing. The court "ordered two rounds of supplemental briefing, eventually asking the parties to address a problem that the record revealed in this case: whether a circuit court can require a county clerk to certify a local ballot initiative when the proponent failed to timely file it." Id. at 3.
Responding to the dissent's criticism, the majority contended that it was "at most supplementing the contentions of counsel." Id. at 8. Both parties had opportunities to argue the issue raised by the court. Even if that had not happened, the majority believed it still acted correctly to address this issue not originally raised by the parties:
It should go without saying, but "[w]e took an oath to uphold the Arkansas Constitution, not the Arkansas Reports." When the record reveals such an apparent violation of our constitution - a violation that affects every single Arkansan anytime there is an election for a local initiative - we are perfectly within our right to address it.
Id. at 8-9. The court added in a footnote: "To turn a blind eye to such a glaring constitutional violation in this specific case would be a dereliction of our duty." Id. at 9 n.30.
The three-justice dissent observed that "[t]he majority raises legal issues on its own" and that "[a] fundamental proposition of appellate procedure is that the parties raise the issues and the court decides them." Id. at 10, 11. It also noted that "[w]e will not reverse a circuit court based on an argument raised for the first time on appeal." Id. at 12. The dissent questioned the status of these rules going forward.
Moving forward, where do all these doctrines stand? Will the court now reach constitutional issues raised for the first time on appeal? What about in criminal appeals? Do we still follow preservation principles? Certainly, a criminal defendant facing life in prison would like for us to address potential constitutional defects. The court, or members of the majority, can now raise issues sua sponte for parties. It is imperative that the court treat all litigants the same. ...
Id. at 14.
There you have it: a potential exception permitting plain error review of "glaring constitutional violation[s]" even if they weren't raised and ruled on below. The majority's reference to this "specific" case, and the language in footnote 26, may be attempts to limit the scope of this ruling.
Turning to the Court of Appeals, in McCain Mall v. Nick's Bar Louie, 2025 Ark. App. 505, the court expressed concern about a case reviewed and remanded by the Arkansas Supreme Court. In an earlier opinion, the Court of Appeals dismissed McCain Mall's appeal brought under Ark. R. App. P. - Civ. 2(a)(1) for lack of finality - some matters remained outstanding below. McCain Mall did not invoke Rule 2(a)(2).
McCain Mall successfully obtained review by the Arkansas Supreme Court. McCain Mall cited Ark. R. App. P.-Civ. 2(a)(2) as a basis for jurisdiction, even though that wasn't the provision McCain Mall cited previously. Apparently without explanation, the Arkansas Supreme Court also cited Rule 2(a)(2), vacated the Court of Appeals' earlier decision, and remanded the case.
Members of the Court of Appeals were taken aback. The majority noted that "[t]he supreme court's docket order appears to signal a sea change in our finality jurisprudence." McCain Mall, 2025 Ark. App. 505, at 2. A concurrence went further.
I would anticipate well-read and enterprising appellate attorneys will use this precedent to circumvent and avoid lack-of-finality holdings in the future. Going forward, if an order is not final and appealable under the usual standard of Arkansas Rule of Appellate Procedure-Civil 2(a)(1), a party can avoid a dismissal if the order has the effect of determining or discontinuing the action under Rule 2(a)(2).
Id. at 8-9. The concurrence predicted this result:
Therefore, in the future, I would anticipate that appellate attorneys will predicate the jurisdiction of their appeals under either Rule 2(a)(1) or Rule 2(a)(2). Why not? That will require this court to analyze a circuit court's order not only to determine whether it is final but it will also require this court to analyze whether the order has the effect of determining or discontinuing the action, whatever that means.
Id. at 9.
There is an interesting common thread here: in both of these cases, the Arkansas Supreme Court was willing to consider matters raised for the first time in that court, and not before lower courts.
Thanks for reading this very long post!
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