John Albert Fogleman (1911–2004)

John Albert Fogleman was a lawyer who spent seventy years in the profession, including fourteen years as a justice of the Arkansas Supreme Court, the last one as chief justice. Fogleman was an unusually congenial litigant and judge, liked by his colleagues and opponents and known for his scholarship, copious opinions, and rigid, conservative application of constitutional and statutory law.

A descendant of pioneer settlers of Crittenden County, John Fogleman was born in Memphis, Tennessee, on November 5, 1911, one of three sons of John Franklin Fogleman and Marie Julia McAdams Fogleman. He was reared and educated in Marion (Crittenden County) and enrolled at the University of Arkansas (UA) in Fayetteville (Washington County) at the age of fifteen, where he received a bachelor of arts degree. As a freshman at the university, he met and, three years later, married Annis Adell Appleby of Fayetteville. They had three children.

While studying law at the University of Memphis and living in Marion, Fogleman was a deputy Crittenden County court clerk. He received his law degree and a license to practice law in 1934. He and a college friend, James C. Hale, opened a practice in Marion, and he practiced law there or in Little Rock (Pulaski County) until after his ninetieth birthday.

During World War II, Fogleman served in the Judge Advocate General Corps, mostly in the Philippines, and was discharged as a first lieutenant. He was president of the Crittenden County Bar Association, the Northeast Arkansas Bar Association, and, in 1958–1959, the Arkansas Bar Association, which gave him the Golden Gavel Award in 1991 for a lifetime of exemplary service to the legal profession. He was inducted into the American College of Trial Lawyers in 1961, was chairman of the Arkansas Judiciary Commission from 1963 to 1965, and served in 1967–1968 on the state Constitutional Revision Study Commission, which recommended a model constitution for the state. The Constitutional Convention of 1969–1970 altered the document, and Arkansas voters rejected the convention’s draft at the general election in 1970.

In 1966, he was elected to a seat on the Arkansas Supreme Court, one of four new justices chosen at the election, along with Conley Byrd, Lyle Brown, and J. Fred Jones. Fogleman formed a close friendship with the chief justice, Carleton Harris, whom he succeeded as chief justice in 1980 after his ailing friend’s retirement. Governor Bill Clinton appointed him to move to the chief justice’s position his final year on the court.

Fogleman was one of the most prolific justices, if not the most prolific, in the court’s history. His opinions, more than 1,000, which were profusely documented and footnoted, usually ran three or four times the length of the weekly opinions of other justices. His friend George Rose Smith, the court’s longest-serving justice, prided himself on opinions that were concise and uncomplicated, usually no more than five pages. It seemed to court observers that each took pleasure in contrasting his brevity or complexity with the other’s.

Whether a case hinged on interpretation of the state or federal constitution or civil or criminal statutes, Fogleman usually took the most conservative approach, especially on appeals of criminal convictions and particularly those involving the death penalty. In 1977, he wrote the court’s majority opinion, favoring execution, in a case challenging the constitutionality of the death penalty. The U.S. Supreme Court refused to hear an appeal of that case and six other death-penalty appeals from the Arkansas court.

In one of the earliest and most controversial of the court’s decisions during Fogleman’s tenure, the court split four to three in its private conference over a Pulaski County Chancery Court order invalidating the 1928 Arkansas law that criminalized the teaching of evolution in the schools (Epperson v. Arkansas). Fogleman wrote a lengthy opinion reversing the trial judge, Murray O. Reed, in which Fogleman said the state was within its rights to dictate what could be taught in the schools. Justices Smith, Jones, and Brown dissented, saying that the initiated act violated the establishment and free-speech clauses of the First and Fourteenth Amendments to U.S. Constitution. Chief Justice Harris, believing the issue was so politically perilous that an opinion from a divided court would harm the court, would not release the decision for much of a year. Finally, on the last week of the court’s term in 1967, two of the dissenting justices agreed to go along with upholding the evolution law as long as they would not have to sign on to Fogleman’s elaborate opinion on the virtues of the law and the state’s power to say what could be taught in the schools. The case was decided six to one, but there was no opinion—only a brief per-curiam order reversing Judge Reed. The U.S. Supreme Court overturned the decision in 1968. A year after Fogleman’s retirement, another anti-evolution law, enacted by the Arkansas General Assembly in 1981, was struck down by a U.S. district judge, who cited the Epperson case and others.

After retiring from the court in 1981, Fogleman taught at what is now the University of Arkansas at Little Rock William H. Bowen School of Law and served “of counsel” for twenty years at the Little Rock law firm of Gill, Elrod, Ragon, Owen & Sherman. Throughout his career, he and his wife maintained their home in Marion. At the time of his death, he was the senior member of the Marion United Methodist Church, where he became a member when he was nine.

Fogleman died on March 10, 2004. He is buried at Crittenden Memorial Park in Marion.

For additional information:
“Obituaries, Chief Justice John Albert Fogleman.” March 11, 2004, p. 4B.

Zeman, Jill. “Former Chief Justice in State Dead at 92; Peers Knew Fogleman as Brilliant Jurist.” Arkansas Democrat-Gazette, March 11, 2004, p. 12B.