LITTLE ROCK -- The same-sex marriage case pending before the Arkansas Supreme Court took an unusual turn Thursday when the court announced a dispute about whether to hold a second round of arguments would proceed as its own, separate case.
The court ordered the parties -- a group of plaintiffs who challenged Arkansas' same-sex marriage bans and won at the trial level, and the attorney general's office, which appealed the trial judge's ruling -- to submit briefs outlining their arguments for and against a second round of arguments within 10 days.
The parties already filed their briefs stating their positions on a second round in response to the court's similar, Feb. 5 directive in the same-sex case. That order stemmed from newly elected Attorney General Leslie Rutledge's request for a second round of arguments, citing a change in the court's makeup since the first round heard Nov. 20.
Then on Thursday, a brief announcement appeared in the court's weekly syllabus. The announcement noted Justice Paul Danielson dissented on the decision to create a separate case, but there were no written opinions, dissents or other written statements attached.
Also Thursday, Justice Rhonda Wood recused from the arguments case, citing questions about whether she "should appropriately sit" on the same-sex marriage case, since she took office Jan. 1, after the 2014 court already heard arguments.
"I am recusing from Case No. CV 15-227 [the newly created oral-arguments case] in the same manner as I have continued to elect not to participate and vote on this specific issue and did not vote or participate in the [decision] issued today," she wrote in a letter to Chief Justice Jim Hannah.
Wood, a former Court of Appeals judge, was elected to replace Justice Cliff Hoofman, whom then-Gov. Mike Beebe appointed in 2012 to finish out the unexpired term of Justice Bob Brown, who retired. Hoofman wasn't eligible to pursue election to the court.
On Sept. 10, Hoofman recused from hearing arguments in the same-sex marriage case without explanation. Later that month, an anonymous person filed a complaint with the Judicial Discipline and Disability Commission accusing him of improperly discussing the case earlier in the year during a telephone call with state Sen. Jason Rapert, R-Bigelow, an outspoken opponent of gay marriage.
Beebe appointed a special justice, retired Boone County Circuit Judge Robert McCorkindale, to hear the arguments in Hoofman's place, and state judicial officials later cleared Hoofman of any wrongdoing.
Also new to the court on Jan. 1 was Robin Wynne another former Court of Appeals judge. He replaced Justice Donald Corbin, who retired Dec. 31 after 20 years on the court. Corbin was among the justices who heard arguments in the same-sex marriage case on Nov. 20.
On Jan. 23, Rutledge requested a new round of arguments, noting the court didn't rule on the case before the start of the new year and now there are two new judges on the court who haven't been able to question attorneys. The request raised a question about whether the newly constituted court would decide the case or whether a ruling would be issued by the justices who were in place during arguments, including Corbin and McCorkindale, who was appointed for the sole purpose of hearing the same-sex marriage case.
Attorneys for the plaintiffs contend Rutledge's request for additional arguments is a stalling tactic and have asked the court to lift the stay it imposed May 16 on Pulaski County Circuit Judge Chris Piazza's May 9 ruling declaring the bans on same-sex marriage unconstitutional. The stay prevents the plaintiffs from enjoying the financial and social benefits that Piazza's order bestowed on them, the attorneys say.
Both sides seemed surprised by the Supreme Court's action Thursday.
Judd Deere, a spokesman for Rutledge, said the office has no additional information beyond the court's brief announcement in the syllabus, and plaintiffs' attorneys said they were puzzled by the creation of the new case
John DiPippa, dean emeritus and professor of law and public policy at the W.H. Bowen School of Law at the University of Arkansas at Little Rock, also said he was puzzled, and plaintiffs' attorney Jack Wagoner of Little Rock commented: "I have never heard of such a thing in 26 years of practicing law. I have never heard of a new case being opened in the middle of an existing case. I don't know what the purpose of that would be."
"It makes no sense," said co-counsel Cheryl Maples of Searcy. "We've already briefed the issue. Everything has been submitted. ... I've never heard of such a thing. ... All of this has just dragged this out longer and longer."
Maples said the Arkansas Supreme Court has "an obligation to rule" on the appeal of Piazza's ruling but by creating a new case, "they apparently aren't going to have time" to decide whether Arkansas' same-sex marriage bans violate the state constitution before the U.S. Supreme Court likely issues a ruling in June on questions about same-sex marriage.
The U.S. Supreme Court plans to hear arguments this month on whether other states' bans prohibiting same-sex marriages and the recognition of such marriages performed in other jurisdictions violate the U.S. Constitution.
Although Maples has already argued the Arkansas justices who were in place during arguments in November should be the ones who decide the case, rather than the newly constituted court, she said Thursday, "At this point, I really don't care who makes a decision -- the new judges, the old judges or some combination of them."
DiPippa said Thursday "I'm just as confused as everyone else" as to why the court would take the unusual action of creating a new case to deal solely with the oral-arguments question, especially when attorneys have already submitted written briefs on that issue in the original case.
Stephanie Harris, a spokesman for the Arkansas Supreme Court, said Thursday she has "no idea" how soon the court will rule on the oral-arguments case after the 10-day deadline for filing briefs.
NW News on 04/03/2015