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.