Arkansas Supreme Court

Arkansas Supreme Court Justice Position 4

• Court of Appeals Judge Jo Hart  65%
• Raymond Abramson  35%

Arkansas Court of Appeals

District 1 Position 2

*Runoff will be held November 6, 2012.

• Circuit Judge Philip Whiteaker   38%  Runoff
• Jeannette Robertson  32%  Runoff
• Richard Lusby  29%

District 2 Position 2

• Judge Rhonda Wood  63%
• District Judge Mitch Cash  37%

District 3 Position 2

• Kenneth Hixson  51%
• Niki Cung  49%

District 4 Position 1

• Brandon Harrison  53%
• Circuit Judge Jake Looney  47%

For an excerpt from Justice Glaze’s book about “The day vote-buying stopped” click here to read the Arkansas Times issue from June 29, 2011.

Elections for seven positions on Arkansas’s appellate courts will be held during the preferential primary next month, on May 22, 2012.

One position on the Arkansas Supreme Court is open along with six positions on the Arkansas Court of Appeals.  For more information about the candidates for each position, click on the links below.

Arkansas Supreme Court

Arkansas Supreme Court Justice Position 4

• Court of Appeals Judge Jo Hart
• Raymond Abramson

Arkansas Court of Appeals

District 1 Position 2

• Circuit Judge Philip Whiteaker
• Jeannette Robertson
• Richard Lusby

District 2 Position 2

• Judge Rhonda Wood
• District Judge Mitch Cash

District 3 Position 2

• Kenneth Hixson
• Niki Cung

District 4 Position 1

• Brandon Harrison
• Circuit Judge Jake Looney

District 4 Position 2

• Court of Appeals Judge Mac Glover (Uncontested)

District 5 Position 1

• Court of Appeals Judge Robin F. Wynne (Uncontested)

Punitive Damages Cap Declared Unconstitutional

“We hold that section 16-55-208 is unconstitutional under article 5, section 32 as it limits the amount of recovery outside the employment relationship.”

In a decision that affirmed a $48 million dollar judgment in favor of Arkansas rice farmers, the Arkansas Supreme Court ruled that the punitive damage limitations contained in Arkansas Code Annotated section 16-55-208 are unconstitutional. Schafer, 2011 Ark. 518, at 12.

That statute, passed by the Arkansas General Assembly as part of the Civil Justice Reform Act of 2003, provided for each plaintiff a cap on punitive damages in the amount of $250,000 or three times the amount of compensatory damages (not to exceed $1,000,000). See Ark. Code Ann. § 16-55-208.

In its opinion, the Arkansas Supreme Court observed that the Arkansas Constitution gives the Arkansas General Assembly the power to limit the amount of recovery “only in matters arising between employer and employee.” Schafer, 2011 Ark. 518, at 12.  Article 5, section 32 of the Arkansas Constitution, as amended by amended 26, provides the following:

The General Assembly shall have the power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made.  It shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of the same. Provided that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted.

Ark. Const art. 5, § 32.

On appeal, Bayer argued that article 5, section 32 of the Arkansas Constitution referred only to compensatory damages and not to punitive damages.  The Arkansas Supreme Court, however, disagreed: “Although compensatory and punitive damages serve differing purposes, an award of punitive damages is nonetheless an integrant part of ‘the amount recovered for injuries resulting in death or for injuries to persons or property.’” Schafer, 2011 Ark. 518, at 12 (quoting Ark. Const art. 5, § 32).  Accordingly, the Arkansas Supreme Court held that section 16-55-208 is unconstitutional under the Arkansas Constitution because it limits the amount of recover outside the employment relationship, which is expressly prohibited by article 5, section 32.

Possible Departure from Arkansas’s Strict Preservation Rules?

The ruling on the punitive damages caps is monumental in and of itself, but what makes it even more interesting is the Court’s analysis of how it was able to reach the merits of that decision, which was an issue that split the Court 6-1.

In her concurring opinion, Justice Karen Baker explained that while she agrees with the outcome reached by the majority, she would not have reached the merits of the constitutionality of Arkansas Code Annotated section 16-55-208 because she did not believe that issue was preserved for appellate review. Schafer, 2011 Ark. 518, at 24–25 (Baker, J., Concurring).  Justice Baker argued that because the circuit court ruled on the constitutionality of that statute from the bench and entered no written opinion concerning that issue, it was not preserved for appellate review. Id.  In support of her opinion, Justice Baker cited to a number of cases in which the Arkansas Supreme Court has previously declined to rule on constitutional issues that had been ruled on from the bench only and that had not been included in the written orders. See, e.g., Boellner v. Clinical Study Ctrs., LLP, 2011 Ark. 83, at 23, ___ S.W.3d ___, ___ (holding that the constitutional issue presented in that case was not preserved for appellate review because “[a]lthough the circuit court ruled on this issue from the bench, the final, written order did not address this issue.”).

In footnote 5, Justice Courtney Hudson Goodson, writing for the majority, responded to Justice Baker’s concurring opinion concerning the issue of the constitutionality of the punitive damages cap: “Despite the concurring justice’s protestations to the contrary, it is without question that the issue concerning the constitutionality of the statutory cap on punitive damages is preserved for appeal.”  Schafer, 2011 Ark. 518, at 14 n.5.  In this case, the constitutional issue was raised in a pretrial motion and discussed in a hearing, at which time the circuit court orally declared from the bench that the statute in question was unconstitutional.  According to the Arkansas Supreme Court, its preservation rules “require nothing more.”  Id.

The majority went on to explain that “[a]lthough considered the better practice for a circuit court to explain its decision, findings of fact and conclusions of law are not necessary with regard to decisions on motions.” (emphasis added). Id.  In footnote 5, the majority further explained that if the concurrence was correct in its view, then the Court would also have been precluded from reaching the merits of the circuit court’s decisions in a couple of other issues regarding motions in this appeal, as the circuit court also disposed of those other motions by ruling from the bench. Id.  The Court’s conclusion is that “the circuit court’s failure to specify the ground upon which it found the statute unconstitutional does not deter us from performing our duty to review the circuit court’s decision.” Id.

Although couched as a decision rooted in precedent, Justice Baker seemed to view the Arkansas Supreme Court’s decision to reach the merits of the constitutional issue in this case as a departure from the Court’s strict preservation rules.  It will be interesting to see whether the Schafer preservation rule is followed by the Court in decisions to come.  Regardless of whether it is cited in future decisions, there can be no doubt that it will be cited in numerous appellant’s briefs in the months and years to come.

Perfecting the Notice of Appeal in Light of Posttrial Motions

“A notice of appeal must be judged by what it recites and not what it was intended to recite.” 

Among other arguments on appeal, Bayer also challenged the $42,000,000 punitive damages award as excessive under the U.S. Constitution.  The Arkansas Supreme Court refused to reach this issue because it held that it was not preserved for appellate review. Schafer, 2011 Ark. 518, at 23.

Bayer made its arguments to the circuit court concerning the excessiveness of the damages award in its posttrial motion for new trial and remittitur. Id.  Because the circuit court did not take action on the posttrial motion within the 30-day window allowed pursuant to Rule 4(b)(1) of the Arkansas Rules of Appellate Procedure—Civil, that motion was deemed denied at the expiration of the 30-day period. Id. at 23–24.  When the Bayer defendants filed their notices of appeal (all of which were identical), they failed to state in the notices of appeal that the appeal was being sought from both the judgment that was entered as well as the denial of the motion for new trial and remittitur. Id.  The Arkansas Supreme Court held that it is necessary to file a notice of appeal from the denial of the posttrial motion in order to appeal from the issues raised therein. Id. at 24.  According to the Court, unless the notice of appeal references both the final judgment and the deemed-denied ruling, the only appealable matter will be the original order. Id.

The following is a timeline of the post-trial procedural events that occurred in this case:

• May 5—Judgment Entered
• May 19—Bayer timely filed motions for judgment notwithstanding the verdict, new trial, and remittitur.
• June 18—Motions deemed denied.
• July 19—Each Bayer defendant filed separate and timely notices of appeal from the judgment entered on May 5, 2010.

See Schafer, 2011 Ark. 518, at 8.

To have preserved this issue for appeal, each of the Bayer defendants could have explained in their notices of appeal that they were appealing from both the May 5th judgment and the lower court’s denial of its motion for new trial and remittitur in the notice of appeal it filed on July 19th.  Another option would have been to file a notice of appeal within 30 days of the date the judgment was entered in this matter.  Then, following the deemed-denied date of June 18th, Bayer could have filed an amended notice of appeal within 30 days of June 18th that indicated that it was appealing from both the May 5th judgment and the denial of its motion for new trial and remittitur.

Related Posts:

• Ten Tips to Remember When Filing Your Next Notice of Appeal
• Arkansas Supreme Court Overrules Previous Arkansas Appellate Court Decisions Inconsistent with the Court’s Strict Preservation Rule

Fort Smith Attorney Brandon Harrison

Fort Smith Attorney Brandon Harrison, a former law clerk to U.S. District Judge D.P. Marshall Jr., has officially announced his candidacy for Arkansas Court of Appeals, District 4, Position 1.  Currently Judge John Robbins holds that position, but plans to retire in 2012.

Harrison, a published legal writer, is currently a practicing attorney at his own firm in Fort Smith, concentrating on civil and criminal appeals and civil litigation.

In announcing his candidacy, Mr. Harrison stated, “Our greatest responsibilities are to ensure access to the courts in the first instance and see that parties have their appeals decided on the merits as often as possible.”

Mr. Harrison has been published in The Arkansas Lawyer, the Arkansas Law Review, and the newsletter of the Pretrial Practice and Discovery Committee of the American Bar Association, and he also authored a chapter of the Arkansas Bar Association’s Handling Appeals in Arkansas.

Harrison’s Press Release is available here.

Circuit Court Judge Looney of Mena has also announced his candidacy for District 4, Position 1.

UPDATE: Attorney Brandon Harrison’s announcement letter to attorneys in his district is attached here.

Prior to being elected District Court Judge, Judge Cash was a trial lawyer for more than 10 years.  In addition to his role as a judge and maintaining a law practice, Judge Cash owns a title insurance agency, a car wash, and a beef cattle operation.  Judge Cash and his family were recently selected as this year’s Searcy County Farm Family of the year.

View Judge Cash’s announcement letter here.

Circuit Court Judge Rhonda Wood

Earlier this month, Judge Rhonda Wood announced her decision to run for the Arkansas Court of Appeals seat for District 2, Position 2, which is currently held by Cliff Hoofman.  Hoofman was appointed to that seat in January of this year when newly elected Justice Karen Baker left that position to begin her term on the Arkansas Supreme Court.  Because he was serving by appointment, Hoofman cannot run for that seat in the 2012 election.

Judge Rhonda Wood is a Judge for the 20th District Circuit Court of Arkansas.   She was appointed by Governor Mike Huckabee to that position in 2006 to serve  a two-year term, and in 2008 she was elected to remain in the position for another six-year term.

Prior to taking the bench, Judge Wood was the Assistant Dean of Student Development at the UALR Bowen School of Law.  Before her tenure at the law school, Judge Wood owned a private law practice in Conway.  She was also a former Associate Attorney at Williams & Anderson, LLP.

Cabot Circuit Court Judge Philip Whiteaker

Cabot Circuit Court Judge Philip Whiteaker announced last month that he will be a candidate for District 1, Position 2 of the Arkansas Court of Appeals.  That seat is currently held by Judge Raymond Abramson, who was appointed to that position last year by Governor Mike Bebee.

Because Judge Abramson is serving by appointment, he is unable to run for the seat in the upcoming election.   Earlier this year, Abramson announced his candidacy for the Arkansas Supreme Court seat that is currently held by Justice Jim Gunter.  Justice Gunter announced in May of this year that he will not seek re-election for that position when his term ends in 2012.

Currently, the Honorable W. Douglas Martin holds the seat for District 3, Position 2.  Judge Martin was appointed by Governor Mike Beebe to complete the term that was left vacant when Justice Courtney Henry was elected to the Arkansas Supreme Court.  Arkansas law prohibits Judge Martin from seeking reelection for that position because he was appointed, and not elected, to that seat.

Currently Mr. Hixson is one of two attorneys to announce their candidacies for District 3, Position 2 are Mr. Hixson and Niki Cung. See Niki Cung Announces Candidacy for Arkansas Court of Appeals.

The 2012 elections for open positions on the Arkansas Court of Appeals and the Arkansas Supreme Court will take place on May 22, 2012.

(Arkansas Supreme Court Photo)

The Arkansas Supreme Court kicked off its 2011-12 term with its first oral argument in the old Supreme Court Chamber at the Arkansas State Capitol and a birthday celebration at the Arkansas Supreme Court.  This week marks the 175th birthday of the Arkansas Supreme Court.

The Court handed down its first decisions for its new term on Thursday, September 8, 2011.  Five cases were submitted to the Court for decision on Thursday, September 8, 2011.  Of those five cases, one is a criminal appeal and four are civil matters.

The criminal appeal to be decided by the Arkansas Supreme Court this week, Lemuel Session Whiteside v. State of Arkansas, was the case that was argued orally on Thursday, September 8, 2011, in the Old Supreme Court Chamber at the State Capitol Building.  Attorney Tom Sullivan represented the appellant, an Arkansas teenager who is serving a life sentence for capital murder.  Sullivan argued that the sentence was unconstitutional because the appellant was a minor at the time of the crime and he did not fire the fatal shot.  The Arkansas Supreme Court is expected to hand down a decision in Whiteside, as well as in the civil cases submitted to the Court this week, within the next month.