Changed Arkansas Supreme Court to hear marriage case | Arkansas Blog

Friday, January 2, 2015

Changed Arkansas Supreme Court to hear marriage case

Posted By on Fri, Jan 2, 2015 at 12:13 PM

click to enlarge NEW TO MARRIAGE CASE: Justice Robin Wynne.
  • NEW TO MARRIAGE CASE: Justice Robin Wynne.
With the beginning of a New Year, the Arkansas Supreme Court has two new members. They were sworn in privately yesterday but will be formally invested in a ceremony Tuesday.

Justice Donald Corbin has retired and been succeeded by Robin Wynne. Justice Cliff Hoofman completed an unexpired term and departed for a Court of Appeals appointment. He's been succeeded by Rhonda Wood.

This means for certain that Wynne will now cast a vote rather than Corbin on the appeal of Judge Chris Piazza's ruling invalidating the state ban on same-sex marriage. From comments at oral arguments, Corbin had widely been presumed a likely vote to uphold Piazza. Hoofman, who had an ex parte conversation about the case with marriage foe Sen. Jason Rapert, recused from hearing the case and Robert McCorkindale was appointed as special justice to rule in his place.

The court heard oral arguments in the case six weeks ago and in a conference afterward decided how to rule. The majority opinion was assigned according to a numerical rotation from among those on the prevailing side of the argument. That assignment is not a matter of public record until the opinion is issued.

If Wynne holds a different opinion in the case, it might or might not affect the decision depending on how the vote split initially on the seven-member court. But who else will participate?

So far, the prevailing position from the court has been that it is customary for special justices stay on a case until completion, even if an election changes the holder of the seat for which the appointment was made. As precedent, there's at least one major case where a special justice stayed through a period of court changes. Carol Dalby of Texarkana sat as a special justice for 10 years on the monumental Lakeview school funding case. However, I don't think that case is analagous to the current situation. Dalby, as best as I can determine, served throughout in place of a continuously serving justice, Annabelle Imber, who recused because of having sat as a lower court judge on the school funding case.

As of today, that expectation of custom holds. Wynne will replace Corbin in the vote and McCorkindale will continue as a special justice. Court spokesman Stephanie Harris confirms that the case will be "reconferenced." That is, another vote will be held.  A new term of the court begins Tuesday. It's possible the court could ask for a repeat of oral arguments. Or the parties could request that, given the new court membership. A new attorney general, Leslie Rutledge, will take office Jan. 12 and defend the state ban.

However ..... I remain convinced that four judges of the court could decide that Wood should also participate with Wynne as an elected judge rather than the appointed judge, even if it broke with custom. I think a strong argument could be made that's the proper course now. Chief Justice Jim Hannah himself, I've been told, was denied the ability shortly after he joined the court to participate in a case to which a special justice had been appointed to the seat for which he was elected. But it was a petition for rehearing from which Hannah was excluded, not the initial ruling in the case.

A six-week delay on a decision after oral arguments is highly unusual. I've yet to hear of another such delay. This case now seems likely to lag seven weeks at a minimum and perhaps many weeks longer if more arguments are scheduled. If events ultimately produce a different decision than might have occurred with the court that heard the case originally on an expedited basis, it will be, well, interesting.

PS — The marriage case is one of three held over from last year. A case submitted Dec. 4, over visitation for a former same-sex partner who'd served as parent for the natural mother's child, and a case submitted Dec. 11 over a financial transaction also will fall under the new membership.

Tags: , , , , , , , ,


Comments (9)

Showing 1-9 of 9

Add a comment

Subscribe to this thread:
Showing 1-9 of 9

Add a comment

More by Max Brantley

  • Manafort will offer no defense case

    The prosecution has rested and the defense says it will call no witnesses in the fraud trial of Donald Trump's former campaign manager Paul Manafort. A local defense lawyer thinks he's toast.
    • Aug 14, 2018
  • Frank Scott adds name to mayor's race

    There are now officially four candidates for Little Rock mayor with Frank Scott Jr.'s filing on Monday.
    • Aug 14, 2018
  • Frank Broyles remembered in film

    A 14-minute film on the late Frank Broyles, Razorback football coach and athletic director, is now online on the UA website.
    • Aug 14, 2018
  • More »

Readers also liked…

  • Women's March planned in Arkansas to mark Trump inauguration

    Speaking of Donald Trump and in answer to a reader's question: There will be a women's march in Arkansas on Jan. 21, the day after inauguration, as well as the national march planned in Washington.
    • Dec 30, 2016
  • ADEQ denies C&H Hog Farm permit

    The Arkansas Department of Environmental Quality has denied a new permit for the C&H Hog Farms' concentrated animal feeding operation near Mount Judea (Newton County). This is a big and somewhat surprising victory for critics who have viewed C&H's large-scale pig farm and the pig waste it generates as an existential threat to the Buffalo National River.
    • Jan 10, 2018
  • Your daily dose of Jason Rapert

    Sen. Jason Rapert really, really didn't like it when a KATV reporter asked him about the hypocrisy of his political arguments.
    • Feb 4, 2017

Most Viewed

Most Recent Comments



© 2018 Arkansas Times | 201 East Markham, Suite 200, Little Rock, AR 72201
Powered by Foundation