'WHOLE CLOTH': Chief Justice Jim Hannah recuses from case he said majority of Supreme Court made up out of 'whole cloth' to delay having to rule in same-sex marriage challenge.
The letters say it all. Supreme Court Justice Chief Justice Jim Hannah and Justice Paul Danielson
have recused from a new case created out of the appeal of Judge Chris Piazza's
decision to strike down the ban on same-sex marriage. Danielson did so, he said, because other members of the court had "manufactured a case" where no controversy exists.
Hannah's similar letter said he believed the new case was created out of "whole cloth" by the majority of the court to delay the decision in the marriage case. Most observers had long ago reached a similar conclusion, such as Ernie Dumas this week.
Both justices will remain on the underlying challenge of the marriage ban.
Their letters refer to the Supreme Court's unexplained and unsigned order last week to make a separate case out of an issue it had already briefed — which justices should hear the Piazza appeal. Two justices who were on the court when the case was completed are no longer on the court — Cliff Hoofman
and Donald Corbin.
Corbin was succeeded by Robin Wynne and Hoofman by Rhonda Wood. But the situation is complicated because Cliff Hoofman had recused and Special Justice Robert McCorkindale was appointed to hear the case. Custom holds that an appointed justice stays on a case until its completion. Danielson and Hannah clearly hold the view that McCorkindale should decide the case. Hannah said it would be a usurpation of executive authority to remove a gubernatorial appointee.
The case was completed Nov. 20 and, according to my sources, the court voted on how to rule, with one justice drawing the majority opinion. The opinion wasn't completed before the end of the year. After a period of no word from the court, newly elected Republican Attorney General Leslie Rutledge
filed a motion saying she thought the case should be argued again and that Wood, who ran with Republican ties, and Wynne, should decide the case. Briefs were requested and filed. Rather than rule, the court, with Wood recusing, last week established a free-standing case of its own to decide who should vote on the case and gave parties 10 days to brief the case again. Danielson dissented from the order creating a separate case, though Hannah did not.
I think the court, likely with the emerging dominance of Justices Courtney Goodson, Karen Baker, Jo Hart and Wood, has created a situation whereby the remaining court members will ultimately determine that Wood should sit on the case — after a new round of oral arguments. Wood has made it clear she wants to decide the case. But whatever happens, it won't likely happen until after the U.S. Supreme Court rules, perhaps on the side of marriage equality.
I'd like to talk to Supreme Court members about this latest development. But it is not their custom to speak about internal matters. They've been highly perturbed about some leaks reported here about some of their other internal machinations. (Wood occasionlly takes to social media such as Twitter, however, so I'll check her account after a while. She bars my regular Twitter account from access.)
Danielson has made a strong implication that the steps taken in this case amount to a violation of judges' code of ethical conduct. It's possible a member of the public could be moved to filed a Judicial Discipline complaint seeking an investigation based on Danielson's comments
"I cannot be complicit," he wrote, "in machinations which have the effect of depriving justice to any party before this court."
Curious and curioser. It is a poorly kept secret that relationships among some court members have become poisonous. Whatever else is true, justice delayed is justice denied. Piazza ruled for equality last May. At least 500 couples await word of whether their marriages remain legal and if they'll be accorded the full rights granted married couples in most other states.
Hannah addressed his recusal letter to Danielson, with a copy to all other justices. Danielson's letter was addressed to Hannah, with copies to all other justices.
PS: That leaves four justices on the separate case: Goodson, Hart, Baker and Wynne. Will the governor have to appoint special justices to decide the separate case? Presumably, his appointees would be Republican-friendly and thus more likely to produce the result Rutledge and Wood want.
As I've said before, the unseemly machinations demand that Rhonda Wood recuse herself from the underlying marriage case. She'll be tainted if she gets a vote by these means.
I've sought comments from the other justices, but don't expect to receive any.
UPDATE: This is the response through a court spokesperson, "On behalf of the four justices on CV-15-227" which means Wynne joins with Baker, Hart and Goodson:
Amendment 80, §2(A) of the Arkansas Constitution mandates that seven justices decide every case. The issue presented in CV-15-227 is whether Associate Justice Rhonda Wood or Special Justice Robert McCorkindale will hear CV-14-427. Until this issue is resolved, CV-14-427 cannot proceed.
Upon receipt of today’s recusal letters from Justices Hannah and Danielson, a request was made to the Governor to appoint special justices. A request was also made last week to appoint a special justice to replace Justice Wood, who recused from CV-15-227
You heard it here first. Republican-appointed justices, (with the notable aid of Robin Wynne), will hear the question of who decides the same sex marriage case. It could be decided in years. Justice must move slowly. And the U.S. Supreme Court may — or may not — take these political animals off the hook on deciding a tough case.
Reminder: The state Constitution still sets a clear path to marriage equity. Not that these cowardly so-and-sos likely give a rip about the Arkansas Constitution. Missing Bob Brown and Annabelle Imber? I am.