Protect Fayetteville v. City of Fayetteville

Robin F. Wynne, Justice, concurring.

I agree with the majority that our decision in Protect Fayetteville v. City of Fayetteville , 2019 Ark. 30, 565 S.W.3d 477, renders this interlocutory appeal moot. The issue, in my opinion, with applying the substantial-public-interest mootness exception in this case is that mere recognition of the privileges will not prevent any future litigation. See Terry v. White , 374 Ark. 387, 288 S.W.3d 199 (2008) (declining to apply the substantial-public-interest exception where a decision would in no way prevent future litigation). The majority opinion gives no direction to the bench or bar that would permit the privileges to be properly applied, thus requiring the scope of the privileges to be developed entirely in future litigation. Because we cannot delve into the scope of the applicable privileges in this case, I would wait to address this issue until we are presented with a case that permits us to address what materials are covered by the privileges. Accordingly, I would simply dismiss the appeal as moot.

Baker, J., joins.