Attorney General Leslie Rutledge today announced that she’d asked the Arkansas Supreme Court to have a second round of oral arguments in the state’s appeal of Circuit Judge Chris Piazza’s ruling striking down the state ban on same-sex marriage.
Significantly, she specifies her support for having the seven-member court include two judges in place of two who heard it originally.
Her release says:
“Two Associate Justices were not seated on the Arkansas Supreme Court when the first oral argument was held in November 2014, and Chief Justice Hannah was absent due to a national meeting of chief justices. I believe the Court would benefit greatly from a second oral argument. The people of Arkansas should know that as Attorney General, I will vigorously defend any challenge against Arkansas’s Constitution.”
Because the U.S. Supreme Court has announced that it will review the marriage cases arising out of Michigan, Ohio, Kentucky, and Tennessee, the Arkansas Supreme Court may decline to announce a decision until after the U.S. Supreme Court rules. However, neither side has requested a stay in the case before the Arkansas Supreme Court. The Court has the authority to rule on the issues before it, including state constitutional issues that will not be addressed by the U.S. Supreme Court.
Attorney General Rutledge’s predecessor filed a notice of appeal with the Eighth Circuit Court of Appeals in St. Louis on Dec. 23, 2014, regarding U.S. District Judge Kristine Baker’s decision in the separate federal-court challenge against Amendment 83. The State’s opening brief to the Eighth Circuit is due Feb. 17, 2015.
Add this to the string of unusual occurrences in this case.
The case was heard on an expedited basis Nov. 19. A decision of the court was reached in conference (this is a secret proceeding) and a justice was assigned to write the majority opinion. Two months later, nothing has been forthcoming.
The case was heard by Justice Donald Corbin, who retired effective Jan. 1. It also was heard by Special Justice Robert McCorkindale, appointed after then-Justice Cliff Hoofman recused. Hooffman had had a discussion about same-sex marriage with Sen. Jason Rapert, a marriage foe and someone who’s promised retribution against judges who allow same-sex marriage. Hoofman’s term also expired Jan. 1.
Justice Robin Wynne succeeded Corbin. Justice Rhonda Wood succeeded Hoofman, but there’s been question whether tradition should hold in this case and it be decided by McCorkindale or have Wood replace him as the elected justice. Wynne has been expected to rule. Wood ran for office as a “values” candidate with Republican ties. She used robocalls by Mike Huckabee to support her candidacy. In recent days, he’s been getting headlines for inveighing against same-sex marriage as contrary to God’s will and saying states need not obey a U.S. Supreme Court ruling in favor of marriage equality.
Chief Justice Jim Hannah was not present in person at the argument and couldn’t question. He was able to view it later on the court’s archived videos. I wrote incorrectly later that he’d been able to watch it live via Internet. Other justices are Karen Baker, Courtney Goodson and Paul Danielson.
Rutledge’s request gives the court, if it has been looking for one, an excuse to speak on its plans for the case and explain who will hear the case and when. The internal decision on those questions could be interesting, given wide reports of sharp dissension on the court. Rutledge’s motion says Wynne and Wood should sit on the case.
As Rutledge notes, the U.S. Supreme Court decision could be immaterial in this case should the Arkansas Supreme Court decide to rule that the ban should fall on Arkansas constitutional grounds, as plaintiffs have also argued. The ban has also been struck down in federal court in a separate case and an appeal to the 8th U.S. Circuit Court of Appeals is pending.
Rutledge campaigned for Justice Jo Hart in her races for appellate court and once worked for her as a clerk on the Court of Appeals. In speculation on the outcome of this case, Hart has generally been viewed as a vote against marriage equality. The preacher who presided at the funeral of Hart’s husband spoke about the ills of same-sex marriage in the course of the service.
Rutledge’s office said no change was planned in office counsel handling the case. Colin Jorgensen has been arguing for preservation of the ban.
UPDATE: Jack Wagoner, one of the attorneys for plaintiffs, said he’d have to consult with Cheryl Maples, the lead counsel, but it was his inclination to object to a re-argument of the case. He has said all along it should be decided as and by whom it was heard in the time frame established by the court.
The Supreme Court has 10 days to reply to the motion.