Judge says 17-year-old should have been allowed to marry

Ruling: Commission overstepped bounds in correcting law

By The Associated Press

A Benton County judge ruled Wednesday that an independent commission overstepped its bounds when it corrected an Arkansas law that inadvertently allows those under 18 to marry with the parents' approval.

Legislators this year had attempted to set 18 as the minimum marriage age but allow pregnant teenagers to marry with parental consent. Arkansas' previous law set the minimum marriage age at 17 for boys and 16 for girls.

By inserting an extraneous "not" into the law, legislators inadvertantly paved the way for Arkansas children of any age to marry, if their parents approved.

A woman who gave her 17-year-old daughter permission to marry sued in Benton County after officials there denied her a marriage license. In a decision Wednesday, Circuit Judge Tom J. Keith said the marriage license should be issued.

"The legal issue is whether Arkansas Code Revision Commission had the legal authority to amend Act 441 of 2007 by removing the word 'not,"' Keith wrote in a letter to attorneys Wednesday. "The answer is no."

Keith issued a ruling but did not file a formal order. He asked the woman's lawyers to draft one.

The mixup has led to widespread among county clerks, who say they're not sure which version of the law to enforce.

Gov. Mike Beebe declined to call lawmakers into special session to clear up the marriage law. Beebe has said there is no imminent crisis and that the commission had the authority to make the change it made.

Benton County Clerk Mary L. Slinkard said she would issue a marriage license to the couple and does not plan to appeal Keith's decision.

The Arkansas Legislative Council had initially voted to challenge a decision by the commission to delete the extraneous "not," but relented after the lawsuit was filed. Some lawmakers said they were concerned that pedophiles would try to take advantage of the mistaken law.

"Let the court resolve it," Sen. Dave Bisbee, R-Rogers, told the council. Bisbee said he decided to ask lawmakers to withdraw the request after speaking with Beebe about it.

The Arkansas Code Revision Commission is authorized to correct typographical and technical errors. Keith ruled that the change went beyond that and changed the meaning of the law.

"The removal of the word 'not' in this instance was a substantive change," Keith wrote.

Attorney Timothy Hutchinson, a former Republican state representative who filed the lawsuit on behalf of the 17-year-old's family, had said it was appropriate for a judge to step in after Beebe decided a special session wasn't necessary to fix the law.

Beebe's office did not immediately return a call seeking comment Wednesday.

Attorney General Dustin McDaniel said he was not surprised by the ruling and suggested that clerks follow the court's order. McDaniel did not say whether he believed lawmakers should correct the error before the 2009 legislative session.

"Although the ruling of the Benton County Circuit Judge is not binding anywhere else in the state, it would be reasonable for clerks in other counties to follow it," McDaniel said in a statement issued by his office. "The court said that the act passed by the legislature is controlling and will be until the legislature changes it."