The Arkansas Supreme Court dithers on | Arkansas Blog

Thursday, April 23, 2015

The Arkansas Supreme Court dithers on

Posted By on Thu, Apr 23, 2015 at 1:09 PM

The Arkansas Supreme Court issued opinions today on its normal weekly schedule. Though the workload was light — two cases decided — nothing of substance was revealed on the same-sex marriage case, decided last May by Circuit Judge Chris Piazza and still hanging fire in a ball of confusion at the Justice Building.

There WAS this:

The Court took under submission requests by plaintiffs in the case to forget about their argument that the judges who originally heard the case should decide it. Instead, the plaintiffs said whichever justices the Supreme Court wanted were fine by them. The plaintiffs had originally argued for letting the original justices decide and to make moot a second case the Supreme Court created.

That second case is for the specific purpose of deciding which justices vote. Attorney General Leslie Rutledge had asked that the current seven members vote — not six plus a special justice appointed last year in place of newly elected Justice Rhonda Wood. Plaintiffs originally objected. Now they don't. If four of the current members of the court favor letting Wood hear it, presumably the second case could be eliminated if they'd just vote for this.

Three special justices were appointed to hear the derivative case because Wood and Chief Justice Jim Hannah and Justice Paul Danielson recused. Wood because it was about her participation (she wants to decide the underlying case) and Hannah and Danielson because they said the second case was just a delaying tactic, perhaps even an unethical one. Their recusal motions form the basis of a judicial ethics complaint filed recently by Tippi McCullough.

Confused? Understandable. Internal division and timidity have made a joke of the Supreme Court in this case.

When the court deems a case or motion "submitted," as happened today, it often means a decision is reached and an opinion can be expected in a week or two.

So  what might the decision be? Will the Court  reconsider the need for the second case in light of the plaintiffs' motion that there's no longer controversy? Justices Courtney Goodson, Karen Baker, Robin Wynne and Jo Hart could, for example, cast a majority vote to dismiss the second case and decide that they, Wood, Danieson and Hannah should decide the marriage case. That would mean sending Special Justice Robert McCorkindale (I had the name wrong originally) packing. They'd also have to answer the question of whether new oral argtuments are needed so Wood and Wynne can get some TV time asking questions of lawyers repeating themselves.

At a minimum, should this be the route chosen, the court would have to "conference" again, vote again, assign a majority opinion again and, in the great by and by, issue an opinion.

Or. Will a majority of the court simply say they're sticking with their decision to have the second case on the participation question? If so, we still don't know if that will require oral arguments and more briefing.

Or, might this actually be a decision only on the second case, though the syllabus said the motion was submitted in the first case.

Whatever all this means, it still doesn't shape up like a decision in Arkansas before the U.S. Supreme Court. But predictability long ago stopped being a factor in this case.

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