The state calls for current justices to hear marriage case; plaintiffs say whoever is OK | Arkansas Blog

Monday, April 13, 2015

The state calls for current justices to hear marriage case; plaintiffs say whoever is OK

Posted By on Mon, Apr 13, 2015 at 2:25 PM

Briefs are due today at the Arkansas Supreme Court in a jurisdictional question related to the challenge of the state's ban on same sex marriage.

To no surprise, the state of Arkansas says the seven justices now on the Arkansas Supreme Court should decide the case. When the case was completed last November, Justice Donald Corbin and Special Justice Robert McCorkindale, appointed to replace the recused Justice Cliff Hoofman participated. Corbin has retired, to be replaced by Robin Wynne and Hoofman, whose term expired, was succeeded by Rhonda Wood.

Despite have six weeks to get it completed, the Supreme Court didn't get an opinion issued by Jan. 1, when the seats changed. Subsequently, Attorney General Leslie Rutledge asked for a new round of oral arguments and said Wynne and Wood should hear the case. The plaintiffs in the case originally objected to both arguments and, particularly, Wood hearing the case. Last week, one of the attorneys for the plaintiffs, Cheryl Maples, reversed course and said she'd be fine with Wood hearing the case. Another attorney, Jack Wagoner, said he'd file a brief continuing to argue for a decision by the original panel. So far today, he hasn't filed a separate pleading. (UPDATE: He said he and Maples have reached an "accord" and there will be an amendment coming to her pleading of last week.)

The state's brief said there is no longer a disqualification warranting McCorkindale's appointment, though it conceded it could find no specific rule, statute or practice governing the question.

 In the absence of any existing practice, the State believes that the question should be resolved in favor of duly-elected and sitting Associate Justice Wood, who undeniably has the constitutional authority to participate in deciding cases during her term

The state said only those justices sitting the day an opinion is filed are entitled to participate. It cited case law about the inability of a judge no longer on the bench to sign an order, something that would clearly provide for Corbin's inability to participate. But that's not a definitive argument on McCorkindale, who was appointed by the governor to decide the case. That appointment remains in effect. Hannah has contended it violates the separation of powers for the court to override that appointment.

UPDATE: The plaintiffs' amended pleading on the matter basically says "whatever."

 In appellees' April 8 pleading, appellees stated that they believed that the "Justices that presently constitute the Court" should decide this case. After extensive debate and consideration, Appellees and their counsel do not wish to take a position upon which justices should decide this case. All pleadings previously filed by appellees are withdrawn to the extent that they take a position on which justices should decide the case. Appellees specifically waive any objection to whatever determination this court might make itself as to the appropriate justices to decide the matter.

After briefing the question of new arguments and participating judges on Rutledge's motion, the current Supreme Court, with Wood disqualifying, created a separate case solely for the purpose of deciding who should decide the underlying case. That decision drew recusals from Chief Justice Jim Hannah and Justice Paul Danielson, who called the separation of the question a delaying tactic.

The state also continues to want another round of oral arguments, saying they'd be helpful to the court. Though Maples, attorney for the plaintiffs, now says she'd accept Wood on the case, she said the new judges could simply listen to recordings of the argument and hurry a conclusion to the case, pending since last May.

I expect county officials to also call for a decision in the case by the current members of the court. And I'll be very surprised if the governor's appointees aren't drawn from a pool likely to be sympathetic to the thinking of the Republican attorney general. And further surprised if the ruling members of this court DON'T get what they and Rhonda Wood want — her on the deciding panel. And I'll be really surprised if the case is completed before the U.S. Supreme Court rules, though it should have been decided last year.

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