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Thursday, September 4, 2014

Arkansas Supreme Court refuses recusal motion in same-sex marriage case

Posted By on Thu, Sep 4, 2014 at 9:37 AM

The Arkansas Supreme Court, back from recess today, issued an order that pdenied without comment plaintiffs' request that judges facing future elections disqualify from hearing the case.

Pulaski Circuit Judge Chris Piazza struck down the state's statutory and constitutional bans on same-sex marriage as unconstitutional denial of equal protection and due process. The state appealed.

Early in August, attorneys for the plaintiffs asked that judges facing future elections to recuse from the case. The request cited legislative action that could raise questions about impartiality of judges hearing the case. This referred to passage of a Legislative Council resolution by Sen. Jason Rapert, a foe of same-sex marriage. The resolution, which was hand-delivered to the Supreme Court, said the legislature would pursue legislative remedies to prevent the popular will from being thwarted by "judicial activism." Legislators have said this could include proposing for the ballot a judicial recall mechanism in 2016. Some legislators have also talked of impeachment of judges who ruled in favor of same-sex marriage.

Two of the court's seven justices — Donald Corbin and Cliff Hoofman — are not seeking election and will leave the court at the end of the year. Three judges, Chief Justice Jim Hannah and Justices Paul Danielson and Jo Hart, are considered unlikely to seek office again because of a state law that requires judges to forfeit retirement benefits if they seek election again after age 70. But they could run. That leaves two justices with likely future races — Courtney Goodson and Karen Baker. Goodson has reportedly been making the rounds of lawyers to line up support for a race for chief justice in 2016. Baker was unopposed for re-election this year.

The attorneys — Jack Wagoner and Cheryl Maples — had said they didn't think the justices would fail to be impartial, but said the appearance would exist because of the legislative action. Wagoner said today:

"We assume that the Justices have looked at the issue and made the right decision and that’s all we asked them to do."

CORRECTION: I wrote incorrectly initially that the order also approved friend-of-the-court briefs in the case. That actually was a decision pertaining to the pending Voter ID law appeal. No amicus brief requests are pending in the marriage case.


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