A request for additional funds to pay appointed attorneys

 

The 95th Arkansas General Assembly is nearing completion of its 2026 fiscal session.  One of the matters under consideration is contained in an April 1, 2026, letter from the Arkansas Court of Appeals requesting $30,000 in additional funds "to supplement its current $360,000 legal-counsel appropriation."

These funds are "used to award modest attorney's fees to attorneys appointed to represent indigent appellants in direct criminal appeals...."  The Court of Appeals noted a "substantial increase" in the number of fee awards this fiscal year.

Thus far in fiscal year 2026, the court of appeals has awarded attorney's fees 132 times totaling $289,109.75.  By comparison, the court had awarded fees 96 times totaling $225,054.71 on April 1, 2025.

The Court of Appeals anticipates that its criminal caseload will remain "steady and heavy."  These additional funds are requested to ensure fee payments through the current fiscal year; the next fiscal year starts on July 1, 2026.

Those numbers are revealing, in terms of fee payments for these appointments.  There was an average fee payment of $2,344.32 in fiscal year 2025, falling to an average fee payment of $2,190.23 in fiscal year 2026. The cap currently appears to be $2,500.00.

This request was approved by the legislature's Joint Budget Committee this morning, without comment or dissent.  I am not certain if any additional approval is needed, but I do not think so.

If you would like to read the letter, it is the second page of this document: https://www.arkleg.state.ar.us/Home/FTPDocument?path=%2FAssembly%2FMeeting+Attachments%2F005%2F27876%2FB.+vta.pdf

 

Tidbits of appellate CLE here and there

I am not aware of any Arkansas continuing legal education programs dedicated solely to appellate matters appearing in the near future.  However, a couple of upcoming CLE programs do have appellate components.

The United States Bankruptcy Court for the Eastern and Western Districts of Arkansas hosts the annual Honorable James G. Mixon Trial Practice Symposium.  This program alternates locations between Little Rock and northwest Arkansas.  This year, the program will be held at the William H. Bowen School of Law in Little Rock on June 5, 2026.

The agenda includes an hour-long session presented by Justice Barbara Webb, entitled "Through the Appellate Lens: A Perspective from the Arkansas Supreme Court."  If you would like to know more about this program, see the information at this link: https://www.areb.uscourts.gov/news/honorable-james-g-mixon-trial-practice-symposium-1

The Arkansas Bar Association's 128th Annual Meeting is scheduled for June 10-12, 2026, in Hot Springs.  On Wednesday, June 10, there are two appeals-related sessions in the "family law" track: two Court of Appeals judges are presenting a session entitled "Life after Nalley," immediately followed by Tory H. Lewis' presentation of "Appellate Update: The Latest and Greatest in Family Law Appeals."  Ms. Lewis, of Taylor & Taylor, is an accomplished advocate in this field.

Then, on Friday, June 12, there is a morning session entitled "Judges' Roundtables."  The participating judges are not named yet, but if memory serves, appellate judges have participated in the recent past.

Here is the home page for the Annual Meeting: https://www.arkbar.com/?pg=annual-meeting

Am I missing anything?  Let me know in the comments, please.

Opinion highlights for the week of April 19, 2026

 

The Arkansas Court of Appeals issued thirteen opinions on April 22, 2026.  The next day, the Arkansas Supreme Court issued five opinions.  We'll note one opinion from each court.

Thornton v. State, 2026 Ark. 71, involved a number of felony convictions resulting in consecutive life sentences.  Thornton's first point on appeal challenged the trial court's denial of his motions to dismiss.  Citing Ark. R. Crim. P. 33.1(c), the Supreme Court found that these challenges were not preserved.  A general motion merely asserting the State failed to prove its case does not preserve an issue; the trial court must be advised "of the exact element of the crime that the State failed to prove." Thornton, 2026 Ark. 71, at 8-9

Thornton's motion at trial exceeded a page of text in the report.  But the majority characterized it as "general in nature and lack[ing] the specificity required to preserve his sufficiency challenge for appeal." Id. at 10. The motion included none of the arguments raised on appeal; it merely claimed that the State failed to make a prima facie case and then recited the offenses' elements.  Nor was there any reference to the evidence presented in the case.

The dissent noted the length of Thornton's motion and argued that it addressed each element of the charges. Id. at 15.  The majority responded that "the length of a motion for dismissal is not the relevant inquiry under Rule 33.1...." Thornton, 2026 Ark. 71, at 11 n.5.

There's a Wicks issue thrown into Thornton for good measure.  Thornton argued that his defense counsel was not certified by the Public Defender Commission to serve in Class Y felony cases, and since this affected the structure of his trial, the matter could be raised for the first time on appeal under the third Wicks exception.  The Supreme Court declined the invitation: "[T]he mere possibility that counsel did not obtain a certification from the public defender commission does not constitute a structural error within the third Wicks exception." Thornton, 2026 Ark. 71, at 12.

Conway Lakeside v. Washington County, 2026 Ark. App. 246, is a procedurally complex case to describe.  Your correspondent hesitates to attempt this.  Long story short, the state trial court entered judgment imposing a permanent injunction; the next day, in a parallel federal proceeding, a federal court enjoined some of the parties from taking certain action; then, in response to timely pleadings, the state trial court retroactively stayed the entry of its already-entered judgment in light of the federal action.

The Court of Appeals dismissed the appeal because "there is nothing for us to review." Id. at 6.  The only relief initially ordered by the state trial court was the permanent injunction, but that was now stayed.  The state trial court further "expressed that there was no longer a judgment to speak of" and that a written order would be entered in the future if the situation changed, so "there will be a future written order from which a party could appeal." Id. at 5.

This passage from the opinion may explain the reasoning:

There is a jurisdictionally significant difference between staying entry and staying enforcement of a judgment. A judgment is not effective until it is entered. The judgment the circuit court referred to had already been entered on December 17. 

The Arkansas Rules of Civil Procedure do not expressly contemplate staying entry of an order or judgment; and we particularly discourage doing so retroactively. But we have given effect to a retroactive stay at least once, in a case where staying entry of an order prevented conflict with our jurisdiction during an appeal. ... [The state trial court] could do so in the circumstances.

Id. at 4-5 (citations omitted).  No one appealed from the state trial court's retroactive stay of the entry of the judgment imposing the permanent injunction.  Again, there was nothing to be reviewed.

I told you I was hesitant.  Thanks for reading. 

Opinion highlights for the week of April 12, 2026

 

The Arkansas Court of Appeals handed down ten signed opinions on April 15, 2026.  The next day, the Arkansas Supreme Court handed down five opinions.  There are a couple of items outside of those lists that are worth noting this week, in addition to one of the opinions.

In Hughes v. Bright, the Supreme Court dismissed an appeal because review was improvidently granted.  Three justices dissented in an opinion found at 2026 Ark. 69.  The dissent notes errors in the Court of Appeals' decision previously under review, including error in affirming a trial court conclusion and misapplication of a particular doctrine.  The opinion claims that "[t]he court of appeals has a fundamental misunderstanding of the difference between factual allegations and legal conclusions." Id. at 3.  To the dissenters, "this all ties into a broader problem that has plagued circuit courts and the court of appeals for years: an unwillingness to effectuate the statutory preference for joint custody." Id.

The Court of Appeals' per curiam opinion in Ballegeer v. Ballegeer, 2026 Ark. App. 240, addresses a trial court's authority to enforce its orders while an appeal is pending.  The "mere filing of a notice of appeal" does not deprive a circuit court of that authority, nor does the lodging of the record.  "The purpose of a supersedeas bond is to preserve the status quo during the pendency of an appeal; absent such a bond or a properly granted stay, there is nothing preventing the circuit court from proceeding to enforce its judgment." Id. at 1.  In this case, the appellant did not request a stay or file a supersedeas bond, so "the circuit court retains full authority to enforce its order notwithstanding the pending appeal." Id. at 1-2.

In Mata v. Reyes, 2026 Ark. App. 229, the Court of Appeals reversed and remanded a case for specific written findings.  This was a child custody matter; joint custody was not ordered by the trial court.  The statutory presumption favoring joint custody could be rebutted, but the trial court had to enter findings in support of a decision that the presumption was rebutted.  Those findings were not in the trial court's order.

Without the required written findings, we have no way to reliably determine whether the court properly analyzed the facts under the statute.  Due to the statute’s requirement for specific written findings, we cannot presume that the circuit court made such findings as were necessary to support its decision.  Accordingly, we reverse and remand for the circuit court to make the necessary findings concerning whether the joint custody presumption has been rebutted.

Id. at 3 (citations omitted).

Thank you for following along.

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.