The plaintiffs whose lawsuit led a judge to strike down an amendment to the state constitution prohibiting gay marriage formally objected Tuesday to the state's request for additional oral arguments before the Arkansas Supreme Court.
A four-page response to Attorney General Leslie Rutledge's request, made Friday, called it "unprecedented," saying that "This extraordinary and very unusual request should be denied."
Rutledge, who took the helm of the attorney general's office this month after being elected Nov. 4, cited the swearing-in of two new justices since oral arguments were heard Nov. 20 and the chief justice's absence on the day of the arguments as reasons a second round of arguments was needed.
But plaintiffs' attorneys Cheryl Maples of Searcy and Jack Wagoner of Little Rock said that in accordance with existing practice, "the case should be decided by the Justices who participated in the case."
All attorneys in the case knew Nov. 20 that Chief Justice Jim Hannah was out of town at a meeting and that he would have access to the entire proceedings by video, Maples and Wagoner noted. They also pointed out that one of the judges who was present, Robert McCorkindale, was appointed by then-Gov. Mike Beebe to hear "this specific case" and that there is no reason he shouldn't remain on the case for its duration.
Associate Justice Rhonda Wood, a former Court of Appeals judge, has since replaced Associate Justice Cliff Hoofman, who had recused from hearing the same-sex marriage case, leading to McCorkindale's appointment.
Associate Justice Robin Wynne, also a former Court of Appeals judge, was sworn in earlier this month to replace Associate Justice Donald Corbin, who retired Dec. 31. Corbin was among the associate justices who heard the oral arguments and was the most critical in questioning the state's defense of the voter-approved amendment.
Amendment 83 was overwhelmingly approved by voters in 2004. After Pulaski County Circuit Judge Chris Piazza declared it unconstitutional May 9 in response to the lawsuit brought by several gay couples -- but before his ruling was stayed a few days later -- 580 same-sex couples were married in Arkansas.
Wagoner has said he expected the Supreme Court to rule before the end of 2014 and that he was surprised when U.S. District Judge Kristine Baker, who held oral arguments the same day on a related federal case, issued a ruling Nov. 25 declaring the state's ban on same-sex marriages unconstitutional.
The Arkansas Supreme Court hasn't said when it expects to issue a ruling or if it is holding off until the U.S. Supreme Court decides appeals from the 6th U.S. Circuit Court of Appeals, which upheld bans on same-sex marriages in Kentucky, Michigan, Ohio and Tennessee. The U.S. Supreme Court is set to hear arguments in April and render a decision by late June.
Maples and Wagoner said in their response to Rutledge's request that she cited no legal authority for a second round of oral arguments. They noted that they also can find no legal authority.
"No 'existing practice' of the Supreme Court provides for holding a second oral argument before different Justices after seven Justices have already heard oral argument, participated in the case, and taken the case under submission," their response states. "Even in the case of petitions for rehearing, a second round of oral arguments is not permitted."
The response also notes that the case "has been the subject of intense public interest and passions run strong. Unusual procedures such as [Rutledge's request] should be avoided."
Maples said last week that any further delays in the case would be financially and emotionally damaging to her clients, whose legal status as couples in Arkansas is uncertain. She said the state Supreme Court needs to address issues concerning Arkansas that weren't specifically addressed in the federal judge's ruling.
Meanwhile in the federal case, court records show that the state paid $505 Tuesday in response to a notice filed Monday by the 8th Circuit Court of Appeals in St. Louis, to which the state is appealing Baker's ruling. The notice said docketing fees had not been paid and directed the state to "show cause, within 14 days of the date of this order, why this appeal should not be dismissed for failure to prosecute."
Metro on 01/28/2015