I overlooked yesterday an additional filing in the curious matter of the Arkansas Supreme Court asking for briefs on a question that had already been briefed — which justices should decide the appeal of the lawsuit challenging the state ban on same-sex marriages.
What I overlooked was the recusal by Supreme Court Justice Rhonda Wood from deciding the question raised by Attorney General Leslie Rutledge of who should decide the case. That issue was turned into a separate case of its own yesterday in a brief and unexplained Supreme Court order.
Also yesterday, Wood filed this letter recusing from that separate new case.
Dear Chief Justice Hannah:
An opinion in CY 14-427 was not issued prior to the expiration of former Justice Hooftnan’s and former Justice Corbin’s term on the court. As the court has stated in their pleadings the parties have taken competing positions regarding the justices that will serve on this case.
As it is in question whether I should appropriately sit on CV 14-427, I am recusing from Case No. CV 15-22 in the same manner as I have continued to elect not to participate and vote on this specific issue and did not vote or participate in the per curium [sic] issued today.
The strange doings at the Supreme Court prompted a derisive blog item by Democrat-Gazette columnist John Brummett.
It had the collateral benefit of showing that Justice Wood remains a big presence on social media, even to the point of engaging a columnist by Twitter. (The judge blocked me from following her Twitter account after I too often noted her political activities there. Nonethless, the web has many back alleys.)
Her Tweets show she has every intention and desire of participating in the underlying case if she can. But to do that, she needs the court to decide to depart from past practice and say the current justices will hear the case, not those who heard (and decided) the case last November, but didn’t get an opinion out before court positions changed in January. Wood can’t very well vote on her own inclusion in the panel in place of Special Justice Robert McCorkindale to decide the underlying case. But she makes clear she’d like to do so.
Wood’s Tweets also include a remonstrance of the Ellen Show for identifying Asa Hutchinson as being from Alaska; a thank you to the legislature for freeing parking places around the Capitol, a picture of herself swearing Agriculture Secretary Wes Ward into office, and a Tweet congratulating legislators for passing a piece of child abuse legislation SB 810. (Coincidentally, a reader complained to me that Wood was at the Capitol buttonholing legislators to lobby for the bill, a sight that made several lawyers uneasy. Was she using prestige of office to advance a poltical interest? Or merely applying her learned expertise to the administration of justice?)
What’s going on at the court? The thinking is that the Supreme Court voted in favor of upholding Judge Chris Piazza in November and, as is custom, the majority opinion was assigned by formula to a justice on the prevailing side. For whatever reason (foot dragging by the losers is a popular theory), the decision wasn’t completed, though the case was heard on an expedited basis. Some theorizing has the split at 5-2 on the original decision. The vote is important because, for example, if it was 7-0, a change in two justices couldn’t change the outcome and there’d be no need — except delay — for not clearing this case expeditiously. But if it was 5-2 — and both retiring Justice Donald Corbin and Special Justice Robert McCorkindale were in the majority — that wouldn’t leave a clear majority of the seven-member court in the majority. It’s already a given that new Justice Robin Wynne will vote on the case in place of Corbin. That leaves the special justice in doubt. Wood wants to hear this case and that’s what Attorney General Leslie Rutledge favors. I’m on record as saying that seems the proper outcom, even though Wood’s Republican politics, endorsement by anti-gay Mike Huckabee and her emphasis of herself as a “values” candidate could be bad news for forces of equality. Back when she still talked to me, she and friends gave some indication that she wasn’t necessarily the neanderthal I presumed on social issues.
None of this explains what’s going on with this rebriefing — seen as unprecedented by every lawyer quoted so far. But the rebriefing DOES mean a further delay, as I noted yesterday. It increases the likelihood the U.S. Supreme Court will decide the broad marriage issue before the Arkansas Supreme Court completes an “expedited” case decided at the trial level almost a year ago. It must rule someday. Even if the U.S. Supreme Court doesn’t rule for equality, the state court could on state constitutional grounds. (I’m dreaming, I know.)
Don’t forget Arkansas now has a Religious Freedom Restoration Act. What if Arkansas justices decide to pull a Roy Moore and say that this gives public officials an avenue to resist issuance of marriage licenses and otherwise treating same-sex couples equally even if the federal courts rule against bans on same-sex marriage? Far-fetched idea, maybe. But nothing has been ordinary about this case.
SPEAKING OF MARRIAGE: The federal case in which a district judge struck down Arkansas’s marriage ban will be heard on appeal by a panel of the 8th U.S. Circuit Court of Appeals in Omaha the week of May 11. The court has not yet said which justices will hear the case, but there’s a conservative lot to draw from in this circuit.