Gov. Asa Hutchinson has appointed three special justices to fill openings on the Arkansas Supreme Court in a case to decide which justices should rule on the lawsuit challenging the ban on same-sex marriage.
They are former Republican senator Shawn Womack, now a circuit judge in Mountain Home; former Republican attorney general candidate and former appointed Supreme Court Justice Betty Dickey, and Brett Watson, a Searcy lawyer.
No word yet on how quickly the three are expected to come up to speed on the question carved off as a separate case by Justices Courtney Goodson, Karen Baker, Jo Hart and Robin Wynne. Judge Rhonda Wood recused in this specific decision — though she wants to hear the same-sex marriage case — because the separate case specifically will decide whether Wood sits on the case or Special Justice Robert McCorkindale hears it. McCorkindale was appointed by Gov. Mike Beebe after the judge then holding Wood’s seat, Cliff Hoofman, recused. She took that seat Jan. 1.
The separate case was set up by a request from Republican Attorney General Leslie Rutledge, who is defending the same-sex marriage ban. She wants new oral arguments in the case completed Nov. 20 but not officially decided by issuance of an opinion before two seats on the court changed. In addition to Wood, Wynne succeeded the retiring Donald Corbin.
Chief Justice Jim Hannah and Justice Paul Danielson recused from the case after four members of the court made the decision to make a separate case out of whether Wood should hear the case or not. They said it was a delaying tactic. The appeal of Judge Chris Piazza’s invalidation of the marriage ban has been pending since May. With the new delays, few expect an Arkansas Supreme Court ruling before the U.S. Supreme Court rules and takes pressure off whatever the Arkansas court decides. A separate federal case will be argued next month before the 8th U.S. Circuit Court of Appeals. The Arkansas ban was struck down in federal court as well.
The state wants Wood to hear the case. So do counties named as defendants. Plaintiffs in the case originally favored a decision by the original panel that heard the case, but this week — after some differences between two lawyers on the plaintiffs’ side — said the composition of the court was up to the court, though both still personally favored the original panel. Plaintiffs withdrew an objection to going with the current justices in hopes of speeding a decision in the case. That’s not likely to speed things up much.
The biggest pending question is whether the decision of the Arkansas Supreme Court, whenever it’s finally issued, has the same outcome as the vote taken by justices in conference Nov. 20.Justices sometimes change their minds in the course of preparing opinions, if rarely. But a reversal of course because of the machinations and delays engineered by certain members of the court and the influence of Republican officials — Rutledge, Hutchinson, Womack, Dickey and even Wood, who ran effectively as a Republican with endorsements from anti-marriage Republican Mike Huckabee — in bringing it about will be cause for comment. The Republican Party remains opposed to same-sex marriage in Arkansas.
Not that anyone would or should ever suggest that a Republican governor would try to bake a judicial decision with his appointees. Because Hutchinson thinks merit appointments are an insurance against overly political courts.
Nonetheless, a reminder:
When a legislator, Shawn Womack introduced, but didn’t pass, a bill to prohibit adoptions by homosexuals. Not that discrimination against homosexuals is squarely at issue in who decides how to rule on the marriage case. Or is it? Womack failed, but voters in 2008 approved an initiated act to accomplish Womack’s aim. The Arkansas Supreme Court struck it down as unconstitutional, but the membership in that court has changed dramatically, even more so in this special derivative case. UPDATE: I’m reminded by AP that Betty Dickey was in the unanimous opinion on a 2006 case that invalidated a state regulation, not law, aimed at preventing gay people from being foster parents, but read on….
(CLARIFICATION: This post now contains a corrected version of the timeline of various legal efforts to discriminate against gay people.)
Shawn Womack and Betty Dickey seem certain to be welcomed collegially by the remaining justices. Womack, you’ll remember, pleaded long and hard for huge pay raises for judges. And after the judges got an 11 percent pay raise, he took the additional insurance policy of thanking the independent citizens commission for his pay raise but saying that Supreme Court judges should make $20,000 more than lowly circuit judges like himself. (He’s rumored as a future Supreme Court candidate himself in two years when Paul Danielson retires.) Betty Dickey likewise, no doubt won some court friends by writing the independent commission about how hard the work on the court was and that she thought the justices were deserving of far more than a raise from about $150,000 to $165,000.
Do we really need much time for the newbies to brush up on this case? Or, God forbid, to have oral arguments? I think Asa has found a solid majority for this question. @judgerhonda will get to hear the marriage case.
PS — I forgot to mention that Betty Dickey endorsed Leslie Rutledge. Rutledge started this whole special case on which Dickey will now rule.
I’ve asked Gov. Asa Hutchinson’s office about his appointment of someone with an animus toward same-sex marriage and a supporter of a key party in the case to hear this matter. No response so far. In Womack’s case, this also amounts to a rare appointment of a sitting judge, but quite helpful to his future electoral plans.