Sunday, June 28, 2015

Arkansas Supreme Court on marriage case: Delay, delay and a change of heart

Posted By on Sun, Jun 28, 2015 at 1:23 PM

click to enlarge JUSTICE GOODSON: For marriage equality before she turned against it, reports say.
  • JUSTICE GOODSON: For marriage equality before she turned against it, reports say.
The Arkansas Supreme Court's 13-month involvement with the lawsuit seeking to invalidate the state ban on same-sex marriage ended with a quiet footnote at 5:10 p.m. Friday — a brief order saying the case was moot because of the U.S. Supreme Court ruling that same-sex marriage was a national right.

Court deliberations are secret by custom. But information has come to me from a variety of sources that now provides a window on what transpired in sometimes confusing and acrimonious internal debates.

My information reveals that a court that voted 5-2 Nov. 20 in favor of upholding Judge Chris Piazza's decision last May, voted June 10 this year, with two different members, to reverse Piazza. Justice Courtney Goodson wrote majority draft opinions in both cases, despite the change of direction. The second opinion, authorized barely more than two weeks ago, was withheld pending the U.S. Supreme Court decision and would have been released only if Justice Anthony Kennedy had swung a different direction and produced a U.S. Supreme Court decision supporting state marriage bans.

An investigation continues by the state Judicial Discipline and Disability Commission of a complaint by Tippi McCullough of the Stonewall Democrats that the decision in the case was delayed to such an extent that it amounted to unethical behavior. The complaint followed public remarks in court papers by Chief Justice Jim Hannah and Justice Paul Danielson that they believed actions by other justices were pretexts to delay the decision.

I'd guess that it will be difficult to prove malicious delay. The Supreme Court's procedures are arcane and, though not set in written rules, include long-followed  custom on scheduling and decision-making that offer ample excuses for how the court managed to not deliver a ruling in a case originally decided Nov. 20, more than seven months ago.

The Judicial Discipline investigation  may ultimately provide some formal insight into handling of a case that has left the court in disrepute with many lawyers. As one veteran  judge said to me (not for quote for fear of retribution from justices with a reputation for vindictiveness that employees in the Justice Building have commented on):

I do not know of any other case where our Supreme Court has acted so cowardly. Trial judges are called upon every day to make decisions that anger some people and we do it. This group abdicated their responsibility to decide the case before them.

Here's the timeline that I've been able to piece together.

JULY 1, 2013: Cheryl Maples files a lawsuit for a group of plaintiffs challenging the state marriage bans in both statute and, by voter amendment, the Arkansas Constitution. The case is assigned to Pulaski Circuit Judge Chris Piazza. Shortly afterward, a separate federal lawsuit would be filed by Jack Wagoner on behalf of different plaintiffs.

MAY 9, 2014: Judge Piazza, in a sweeping ruling, strikes down the Arkansas ban. He does not stay his order. In the following week, some 500 same-sex couples are married in Arkansas.

MAY 15, 2014: The state begins the appeal of Piazza's ruling.

MAY 16, 2014: After initially refusing to stay Piazza's ruling, the state Supreme Court issues a stay. My sources have previously said that Justice Karen Baker rounded up four votes to override the earlier decision by Justice Donald Corbin not to issue an immediate stay, in part because Piazza had not yet issued his mandate in the case. She would continue as a leader of resistance to the Piazza ruling.

SEPT. 10, 2014: Justice Cliff Hoofman, serving out an unexpired term by appointment by Gov. Mike Beebe, recused from hearing the appeal. He'd had a discussion that touched on the case with Sen. Jason Rapert, an outspoken foe of same-sex marriage who was stirring up legislative retribution for judges who supported same-sex marriage. This recusal would be a critical event. At that time, there was a 4-3 sentiment on the court, to NOT rule on the case until it was known if the U.S. Supreme Court would take up developing differences in federal court marriage cases around the country.

OCT. 2, 2014: Gov. Beebe appoints retired Circuit Judge Robert McCorkindale of Harrison to replace Hoofman.

OCT. 9, 2014; The Supreme Court denies the state's request to delay the case until the U.S. Supreme Court could be heard from. McCorkindale provides a critical vote against delay.

OCT. 23, 2014: The Supreme Court grants the plaintiffs' motion to expedite the case. Only Justice Jo Hart is recorded as a dissent. Justices Karen Baker and Goodson also opposed expediting the case, but did not want to be recorded publicly as having dissented.

Supreme Court procedure assigns all cases on a rotating basis to each of the seven justices, that justice known as the "main." Goodson was the "main" on the marriage case. That meant she would write the opinion in the case if she voted on the prevailing side. If not, the job of being the "main" would fall to the next justice in line on the rotating schedule.

Goodson and others had wanted to follow the normal docketing procedure. That would have delayed completion of briefing and oral arguments into 2015.

NOV. 20, 2014: Oral arguments were held before the Supreme Court. The court met in conference afterward and voted 5-2 to uphold Piazza. Hart and Baker were the  dissenters. Goodson voted to affirm — with Hannah, Danielson, Corbin and McCorkindale — and thus controlled the majority opinion.

Goodson prepared an opinion and circulated it early in December. Justices discussed it December 17 and that led to a revised opinion that addressed some relatively minor legal points. It was circulated. Hart said she wanted to file a dissent. She also argued that, under court procedure, she should have as long to prepare her dissent as Goodson had to prepare her majority opinion. Goodson had taken more than three weeks. A similar time period would push completion of a dissent into 2015, when the court makeup would change. Robin Wynne would take the retiring Donald Corbin's seat and, more critically, Rhonda Wood would assume the seat held by Hoofman, whose vote in the marriage case was given over to McCorkindale.

Hart never produced a dissent. Corbin argued that the majority opinion should be issued with a note that a dissent was to follow. Goodson refused to issue the opinion. She said she might wish to respond to points in Hart's dissent. 

So it was that the year ended without a decision, but not before some acrimonious discussions. Hart — well-known for a sharp tongue and authoritarian bearing reflecting her military background — particularly aimed at Corbin, who'd been pushing to get the opinion out before he left the court.

click to enlarge JUSTICE WOOD: Aggressively pushed for participation in marriage case. Eventually, sources say, she opposed marriage equality.
  • JUSTICE WOOD: Aggressively pushed for participation in marriage case. Eventually, sources say, she opposed marriage equality.
JAN. 1, 2015. A new court is seated. New Justice Rhonda Wood aggressively pushes to replace McCorkindale on the case. She mentioned the possibility of a third-party legal action challenging McCorkindale's authority to vote. At one point, there's a vote of the six justices, not including McCorkindale or Wood, that splits 3-3 on who should hear the case, with Hannah, Danielson and Wynne saying the justice appointed to the case by the governor should complete it and Goodson, Baker and Hart saying it should be Wood.

Finally, a new political player breaks the logjam.

JAN. 16, 2015: The U.S. Supreme Court announces it will decide the same-sex marriage issue.

JAN. 23, 2015: New Republican Attorney General Leslie Rutledge files a motion asking that Rhonda Wood hear the case rather than McCorkindale. Rutledge is a marriage foe. Wood, though judges run as nonpartisans, has historic Republican ties, including using marriage foe Mike Huckbee as campaigner for her through robocalls. Rutledge, who once clerked for Justice Hart and worked in her election campaign, also wants a new round of oral arguments.

At this point, court procedure has come into play in ways not publicly evident. By custom, Goodson wasn't scheduled to present to the conference of justices, now including at least Wynne as a new member, on her marriage case until February. The arrival of a new request in the case further pushed that presentation back.

FEB. 5, 2015: An unsigned court order asked for arguments on the state's motion. The responses included an initial disagreement among plaintiffs' lawyers on whether the appointed or new justice should hear the case.

APRIL 2, 2015: The Supreme Court rules, with Danielson expressly dissenting, that the question of who should hear the case would become a separate case all to its own, with a new briefing schedule.

APRIL 8, 2015: Justices Hannah and Danielson recuse from the separate case on the question of which justices should hear the case. They say the new case is only a delaying tactic. Wrote Danielson: "I cannot be complicit in machinations which have the effect of depriving justice to any party before this court."  Their disqualification would alter the outcome of the case.

APRIL 14, 2015: Gov. Asa Hutchinson, a Republican, appoints three solid Republicans to decide who should hear the case — Betty Dickey, Shawn Womack and Brett Watson. Hannah, Danielson and Wood had recused.

MAY 7, 2015: With three Hutchinson appointees on board, the Supreme Court rules, in an opinion by Baker, that Wood, not McCorkindale, should decide the marriage case. Supporters of Hannah saw the language as an almost  personal rebuke of Hannah's position that separation of powers dictated that the governor's appointee should complete the case. The opinion gratuitously mentioned a statement issued by the court's then-communications director, Stephanie Harris, about a point in the case. Harris had been guided by Hannah in the statement. Harris would eventually be fired (the euphemism was that her job was eliminated) at the instigation of some of the same justices who'd blocked the chief's choice of a new Supreme Court clerk months before.

The court membership was fixed, but no decision was forthcoming. By contrast, federal Judge Kristine Baker, who heard oral arguments Nov. 20, the same day as the Arkansas Supreme Court, produced a long and carefully reasoned decision in support of same-sex marriage only five days later.

Goodson remained the "main" justice on the Arkansas marriage case. The Court, for once passing up a delaying tactic, did decide not to hear any more oral arguments.

JUNE 10, 2015: The Arkansas Supreme Court quietly notes, without publishing the news in its customary weekly "syllabus," that the marriage case had been "submitted." This is a term of court art. It means a case has been completed. Briefing and arguments have been completed (there'd been no change in either of these fundamental elements since Nov. 20, 2014 in this case). It means the Court has voted and an opinion is in the works, generally to be released in a couple of weeks.

And how did the court vote? The court voted to REVERSE Chris Piazza. The decision remained Goodson's to write because she voted with the majority, after having voted with the majority to uphold Piazza in November. I have two different versions of this vote — 4-3 or 5-2. Danielson and Hannah remained in support of Piazza's ruling. The question mark concerns Robin Wynne. Goodson, Baker, Hart and Wood were in the majority.

An opinion was prepared. But it was to be released only in the event of a U.S. Supreme Court ruling against same sex marriage.

JUNE 26, 2015: At 9 a.m., Justice Anthony Kennedy begins reading his historic opinion affirming a right to same-sex marriage. At 5:10 p.m., after the close of normal business, and eight hours after the U.S. Supreme Court opinion was released, the Arkansas Supreme Court issued an unsigned three-sentence order dismissing the appeal of Piazza's decision as moot. Nothing remained to be decided, the court said.

Supporters of equal rights have reason to be grateful. Though the details of the adverse opinion reached by the Arkansas Supreme Court in the second opinion aren't fully known, it didn't take the broad view of the Arkansas Constitution's declaration of rights taken by Piazza and upheld in the original decision of the court.

The Supreme Court's failure to rule, along with Goodson's change of position, leads naturally to speculation that Goodson hoped never to have to rule. Rather  she hoped, first, for delay and then salvation by the U.S. Supreme Court.  It was a path with risks. The U.S. court had options other than a strict up or down decision, such as by allowing state marriage bans but forbidding them from denying marital rights to those legally married in other states, as Arkansas did. And even a negative vote wouldn't have answered the question about those married in the week after the Piazza ruling.

Reluctance to take on tough issues is not uncommon among elected judges. Goodson plans to run for chief justice in 2016 on Hannah's expected retirement. Her husband, John Goodson, is a powerful trial lawyer with deep political tentacles in judicial and other races. He boasts of his political influence and knowledge of court workings. He was, incidentally, widely rumored to have been upset as a University of Arkansas Board of Trustees member when the UA System moved ahead with partnership insurance coverage immediately after Piazza's ruling, a decision stopped when the Supreme Court stepped in with a stay.

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