The Arkansas Court of Appeals handed down eighteen opinions on March 4, 2026; the Arkansas Supreme Court handed down three opinions on the following day. One of those Supreme Court decisions deserves careful appellate practitioner attention. We'll note one of those Court of Appeals decisions, too.
Readers may recall a summary of Evans v. Harrison, 2025 Ark. 164, in a post dated November 7, 2025; if you'd like to review that, click on the "Evans exception" tab in the list of "Labels" on the right. I characterized Evans as "a potential exception permitting plain error review of 'glaring constitutional violation[s]' even if they weren't raised and ruled on below." Evans received some elaboration in a concurrence and dissent issued in Wheeler v. State, 2025 Ark. 196, 197.
The Evans exception perhaps made another appearance in Gamble v. State, 2026 Ark. 44. Gamble argued on appeal that the circuit court erred by denying his motion to suppress; he contended that the statement at issue was the product of a pretextual arrest. His argument turned on an earlier decision, State v. Sullivan, 348 Ark. 647, 74 S.W.3d 215 (2002), which adopted a particular interpretation of an Arkansas Constitution provision. The Gamble court summarized Sullivan as holding that pretextual arrests are unreasonable police conduct warranting application of the exclusionary rule.
On appeal, neither party initially asked the Supreme Court to overrule Sullivan. But the court was troubled by Sullivan, so it asked the parties for supplemental briefs - as it did in Evans - on whether Sullivan should be overruled. After that briefing, the court overruled Sullivan, essentially finding its reasoning unsatisfactory: the Sullivan court relied on cases from the '70s and '80s to justify its interpretation of our 1874 constitution, when a proper analysis would have examined how the relevant constitutional provision was understood at the time of its adoption.
Of course, for the appellate practitioner, the intriguing development is the court's decision to ask for supplemental briefs and then to ultimately overrule its own precedent. Again, neither party asked for this. Should we now ask our appellate courts to overturn precedent based on the Arkansas Constitution, following Evans and Gamble? Maybe so, especially if we can offer a textual or originalist argument for overruling that precedent.
The import of this turn of events is underscored by the Gamble dissent. This dissent noted the majority's departure from the rule "that we will not make an argument for a party or raise an issue sua sponte unless it involves the trial court's jurisdiction." Gamble, 2026 Ark. 44, at 15. The dissent tied the majority's departure back to Evans.
In Evans, the majority reversed the circuit court by finding facts absent from the record based on a legal theory that neither party raised either below or on appeal, prompting a critical dissent, which I joined. The Evans dissent recognized the dangers and the inefficiency of this court ordering supplemental briefing rather than addressing the arguments presented by the parties.
Id. at 17-18. The dissent also noted Evans' extension into criminal appeals, thanks to Gamble.
The error in Evans has now been expanded to the criminal realm, where a person’s most fundamental liberty is at stake. By upending the most basic practices of fairness and objectivity, the majority has transformed a once neutral arbiter into legal counsel for the State, which is staffed with attorneys who are experts in criminal law.
All our precedents are now at the mercy of the whims of a majority of this court without regard to the arguments presented by the parties. ...
Id. at 19-20.
The majority's response is found in footnote 2. It claimed an independent power to properly construe governing law; it noted United States Supreme Court cases that overturned precedent not directly challenged on appeal; and it argued that a case relied upon by the dissent was not controlling here.
Finally, Brigance v. State, 2026 Ark. App. 150, noted a couple of rules deserving mention. First, a party cannot agree with a circuit court's proposed course of action and then attack that action on appeal. And second, if you want to preserve a jury instruction argument for appeal, you must proffer an alternate jury instruction and see that it is included in the record.
Thank you for reading.
No comments:
Post a Comment