UNWRITTEN RULES: The Supreme Court's "customs and practices" drew attention in judicial misconduct complaint. Brian Chilson

The state Judicial Discipline and Disability Commission today released letters it had sent to four Arkansas Supreme Court justices informing them that an investigation had concluded with a finding no ethical rules were violated by the protracted delay in handling of an expedited appeal of Judge Chris Piazza’s ruling striking down the ban on same-sex marriage.

The letter suggested that some customs and practices of the court — not set down in written rules — contributed,but didn’t amount to misconduct.


David Sachar, executive director of the Commission, referenced two complaints in the letter. One was by Tippi McCullough, who filed her complaint in April. Another was filed by David Blackburn of Fayetteville. The complaints were based on the publicly filed assertions by then-Supreme Court Chief Justice Jim Hannah, since retired, and Associate Justice Paul Danielson that a separate proceeding to decide whether new Justice Rhonda Wood should hear the case rather than a special justice appointed to the case in 2014 was a delaying tactic. Danielson raised the ethical question of whether it amounted to delaying justice for political reasons. The case was decided in November 2014, but no decision was issued before a change in court personnel Jan. 1. Further delays and the separate action that installed Wood’s right to hear the case ensued. Still the Supreme Court never ruled. It finally dismissed the case as moot, without a statement on the merits, after the U.S. Supreme Court declared.

The three-person panel that considered the investigation and made the recommendation to close the case without action was composed of a lawyer, Blake Hendrix of Little Rock, Circuit Judge Jim Spears of Fort Smith and Dr. Cheryl Stuart  of Lewisville.


The letter from Sachar to relate this said:

* The investigation found no testimonial or documentary evidence that the delay was due to “bias, prejudice or fear of public clamor.”


* There WAS a delay caused by several factors, but these factors didn’t amount to judicial misconduct.

* Unwritten “customs and practices” contributed to the delay, but they are unavailable to the public in written or even anecdotal form in case law.

I think that last can be taken as at least a mild rebuke of court procedures. It is not much of explanation to blame an extraordinary delay in an officially expedited case of great public interest  — with huge political resonance — by saying, “Well, that’s just how we do things.”

The letters — separate ones for Justices Courtney Goodson, Karen Baker, Jo Hart and Robin Wynne, who provided the majority that took control of the case from Hannah and Danielson and Special Justice Robert McCorkindale —  provide a time-line of proceedings in the case, from Piazza’s ruling May 7, 2014 to a July 25, 2015 mandate declaring the case moot. It differs little from what I’ve supplied before from confidential sources and doesn’t delve into my discovery that Goodson controlled the case by drawing the majority opinion in 2014 and refusing to release her opinion in favor of upholding Piazza because Hart didn’t finish a dissenting opinion. It also doesn’t provide information about the shaping of a subsequent, much different opinion that also was never released. In it — to be released if the U.S. Supreme Court had ruled against same-sex marriage — Goodson would have been in a majority agreeing that the ban was legal.


Sachar’s letter concluded:

Numerous procedural reasons existed for the extended time this case remained under consideration. The lack of information to the public, the absence of written internal rules of the court and the nature of this case contributed to suspicion about the reason for the Court not rendering a decision. Nevertheless, suspicion does not equal proof and this investigation concluded with no proof of wrongdoing on the part of justices named in the complaint.

Nearly identical letters were sent to the four judges named in the complaint. Wynne’s letter notes that elements in the timeline didn’t apply to him except for the time after he took office Jan. 1.

The completion of this query naturally calls to mind Associate Justice Donald Corbin, whose retirement opened a seat on the court that Wynne filled. He was expected to vote to affirm Piazza. He’d made enemies on the court because of a famous observation that the court was outcome-oriented.
That is, it tailors procedures and decisions to desired results, often influenced by politics. This may not be misconduct. But it is a fact and not particularly surprising for an elected court. Without Corbin and Hannah — and, in a year, Danielson — it is only likely to get worse.

The rules on response time, assigning judges, giving deference to dissenters and all the rest are customs made to be manipulated for political or even personal reasons. I believe that happened here. So do two justices  who were in the middle of it. But absent spoken or written proof, that’s just the way it goes.

Will the court issue some written rules on internal practices? They traditionally don’t make comments to the press.

UPDATE: A comment from Tippi McCullough:

Sadly, this is what I expected. I do have respect for the system. I have respect for judges that did the investigation. I still have an extreme lack of respect for judges who are elected to make decisions even when they are hard decisions and don’t. I still don’t understand why it was not their job to make a decision. The perception of impropriety is just embarrassing for our state. If anything,  this will show people that no one will sit around and allow them not to do their job. 

UPDATE II: Only one justice commented, Karen Baker, in a statement obtained by the Arkansas Democrat-Gazette.

“I was pleased to be notified today by the Judicial Discipline and Disability Commission that after a diligent and extensive investigation of the complaints that were filed based on the accusations contained in the recusal letters of [Hannah and Danielson] in the same sex marriage case, that the allegations leading to the investigation have proven to be groundless.”

Satire’s letter indeed used the word “groundless.” A mistake, I think. This is more of a “not proved” result. There was a delay. There was a delay in an expedited case. The court could have ruled but didn’t. Two justices believed delays were intentional. The court never did rule on the issues before it. “Groundless?” Hardly. Lacking in sufficient proof for a conviction? Sure.