Retired Justice Donald Corbin confirms account of Supreme Court vote on same-sex marriage case | Arkansas Blog

Tuesday, November 10, 2015

Retired Justice Donald Corbin confirms account of Supreme Court vote on same-sex marriage case

Posted By on Tue, Nov 10, 2015 at 10:25 AM

DONALD CORBIN
  • DONALD CORBIN
A new interview has been added to the growing collection of Arkansas Supreme Court oral histories, Ernest Dumas' interview with recently retired Justice Donald Corbin.

It's a newsmaker. Corbin confirms, as I've written, that the Supreme Court voted 5-2 to overturn the same-sex marriage bans on both state and federal grounds and favored 6-1 overturning the bans on federal grounds alone. But the opinion was never issued before Corbin retired. 

Corbin, a plain-talking former legislator, doesn't disappoint, with inside looks at the Lakeview school funding case (his threat to stick it to legislators who resisted the order likely changed the dynamics of the political reaction) and the decision to strike down the voter ID law. He also talks of an issue that could arise in this year's race for chief justice between Associate Justice Courtney Goodson and Circuit Judge Dan Kemp. That's the same-sex marriage case.

As I've written in detail from anonymous sources, Courtney Goodson controlled the handling of the appeal of Judge Chris Piazza's ruling striking down the ban. She drew the majority opinion by rotation among those on the prevailing side (to strike down the ban), but never released the opinion. Court personnel changed Jan. 1, 2015 and the case was delayed by internal disputes because new Justice Rhonda Wood demanded to have a vote on the case. Finally, no decision was issued. Instead, the case was dismissed after the U.S. Supreme Court invalidated bans on same-sex marriage. My sources have also said Goodson had an opinion ready to uphold same-sex marriage bans, had the U.S. Supreme Court allowed them.

You can go to Page 39 of the interview to find what Corbin revealed about internal deliberations on the marriage case. Among other comments:

* He said he considered holding legislators, including Sen. Jason Rapert, in contempt of court for making an ex parte communication to the court objecting to Piazza's ruling. He said Chief Justice Jim Hannah and Justice Paul Danielson talked him out of it.

* He confirms, as I've reported, that four members of the court essentially voted to override his routine decision on the Thursday after Piazza's ruling to give a shortened three-day window for the state and plaintiffs to file briefs on the attorney general's request for a stay of Piazza's order. The four, led by Justice Karen Baker, moved the deadline up to noon the next day, a move that caught Corbin and Hannah by surprise at a conference in Kentucky.

I said, “Well, this is unprecedented but y’all have got the votes. I won’t stand in the way.” It would have been senseless of me anyway because they had the votes. The old court would not have done that without first saying, “Donnie, we’ve had a change of heart. We want to change that over. Would you mind making that change?” There’s nothing illegal about it. 

The court then stayed Piazza on that Friday, which brought an abrupt end to a flood of marriages of same-sex couples, mainly in Eureka Springs and Little Rock. Had Corbin's initial order stood, the order couldn't have been issued until the following week.

* Corbin essentially confirms Dumas' recounting that Goodson controlled the opinion process. Says Corbin: "See, that’s not supposed to be known, but somebody’s told it."

* On the merits of the case, Corbin said it was clear on the federal precedents that the bans had to fall. But Corbin said he believed the Arkansas Constitution's declaration of rights also should be addressed. He doesn't dispute Dumas' account that the vote was 5-2 to overturn the ban (I've reported Justice Jo Hart and Karen Baker were dissenters, Baker on the state constitutional question.) Says Corbin:
 I think the initial vote on whether to write on the state Constitution was maybe five-two. It was a six-one vote on the U.S. 

The transcript continues:

Corbin: Well, we had another vote and the vote changed then to a five-two vote to affirm on both state and federal [constitutional grounds.] The time factor there was really crowding because of the Thanksgiving holidays and the break and a two-week break in December and then I was gone. [His term ended December 31, 2014.] I tried to encourage them to conference over the Christmas holidays. I had an opinion ready and I didn’t think it was right for us to take a two-week vacation or a one-week vacation and not get that case out.

Dumas: But, at any rate, they didn’t get the case out.

Corbin: We didn’t get it out.

Dumas: Justice [Josephine] Hart never wrote the dissenting opinion, so the case didn’t come out. [Other accounts were that Justice Baker voted to affirm Piazza on grounds that the law violated the U.S. Constitution but not on the ground that it violated fundamental law in the Arkansas Constitution.]

Corbin: No dissent was ever written.

Corbin said he and Justice Paul Danielson both had opinions ready. But, as I've reported, Goodson wouldn't release her opinion until Justice Jo Hart filed her dissent. Corbin also mentioned Rhonda Wood, who joined the court in January and whose desire to sit on the case instead of Special Justice Robert McCorkindale further delayed a court ruling.

Corbin: Yeah, it was so easy. I did it, you know… My law clerks… The briefs were… I think I heard that [Justice] Wood said that the briefs were poorly done, or something. That’s not true. They were well-written briefs.

Dumas: The same briefs were written probably in about forty states and for all the [U.S.] courts of appeal.

Corbin: Yeah, yeah. And, of course, I had the benefit of all these decisions in all these other state courts that had ruled on it and some federal circuits. I think the Fifth Circuit wrote a real good opinion. I would have drawn from all of those. It was a tough political issue, but legally it was a cakewalk. Anybody who knows anything about the law or had any training whatsoever as a constitutional lawyer would know that. 

Corbin wasn't around for the aftermath, but he offered an opinion on the court's decision — over objections from Hannah and Danielson — to delay the case to decide if Rhonda Wood should participate. A court packed with special justice appointees of Republican Gov. Asa Hutchinson, in an opinion sought by Republican Attorney General Leslie Rutledge, decided that Wood, who's always identified with Republicans in her judicial races, should hear the case and not McCorkindale. McCorkindale was appointed by Gov. Mike Beebe after then-Justice Cliff Hoofman disqualified himself. Hoofman had talked about the case with fierce same-sex marriage foe Jason Rapert of Conway. Corbin commented on the aftermath and the political climate and the new day on the court in which a majority of four justices has been able to usurp power — including administrative hiring — from the chief justice.

Corbin: They had all kinds of stuff going on there. As a matter of precedent, though, I agreed with Hannah and Paul [Danielson] that historically when a governor makes an appointment to a case [in which a justice recuses] that is an executive decision and that person stays on that case until it is decided. They changed that. Looking back, old courts would not have, because they would honor the separation-of-powers doctrine. That’s a governor’s deal. But they had the votes.

Dumas: If you’ve got the votes, you can do it.

Corbin: Yeah.

Dumas: Apparently, there were opinions written in 2015 but they were never released.

Corbin: We were getting letters from that Christian Coalition guy that lobbies the legislature…

Dumas: The Family Council?

Corbin: Yeah.

Dumas: He was writing you letters?

Corbin: Yeah. And that senator from Conway. They had all these churchgoing folks writing us and calling us and what have you. I got some threats. But I’d had those down through the years. What I worried about was whether my family was in danger in any way. 

This is momentous contemporary stuff, but Corbin has a lot more to say, including about the voter ID case, where a change in political makeup of the court could open the door for a reversal of the majority opinion in which four justices ruled on constitutional grounds, but three only found a procedural reason to strike down the law.

There are tales, too, of political squabbles with Bill Clinton; being troubled by capital cases, the changing tide in the West Memphis Three case, and his enduring threats for being on court majorities that struck down the criminal sodomy statute and a referred act aimed at preventing gay people from adopting children. Dumas asked Corbin if he'd received a lot of serious threats.

Only a few. I have a Beretta by my bedside over there. It’s not that I’m scared, but they’re not going to catch me by surprise, I don’t think. It’s just part of it, Ernie. You’re out there and you’re dealing with people’s issues, problems, and it’s not a vacuum. People are very, very motivated in what they believe. I was in the business of pissing people off. At least half of them were going to be, and the half that won thought they deserved to win anyway. So it just left the ones that were mad at me out there.

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