Plaintiffs' attorneys in marriage case split on which justices should hear appeal | Arkansas Blog

Plaintiffs' attorneys in marriage case split on which justices should hear appeal

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Cheryl Maples, one of the attorney for plaintiffs in the state case challenging the ban on same-sex marriage, says the plaintiffs she represents have changed course on which members of the Arkansas Supreme Court should hear the appeal of Judge Chris Piazza's decision striking down the ban. Now she backs letting the current members here the case, rather than including a special justice appointed last year.

UPDATE: However, her co-counsel, Jack Wagoner, who has separate representation agreements with some of the plaintiffs in the case, tells me he will be filing a separate pleading and will disagree with Maples on this point.

Previously, all the plaintiffs had objected to Attorney General Leslie Rutledge's motion that the current members of the court should hear the case, as well as a new round of oral arguments. The plaintiffs originally said the judges who heard the case should decide it. That would be five existing members of the court, plus Special Justice Robert McCorkindale, appointed when Justice Cliff Hoofman recused. Though there motion didn't say so, they seemed to agree to what has become a general understanding that Donald Corbin, who retired Jan. 1, would be replaced by Robin Wynne, who succeed Corbin. Rhonda Wood has taken Hoofman's seat and the question of McCorkindale's continued appointment in her place has become the crux of the matter.

The case was completed Nov. 20, but an opinion wasn't completed before the change in court seats on Jan. 1. Rutledge subsequently asked for new arguments and different justices on the case.

After a round of briefs over Rutledge's request, the current Supreme Court, with Wood recusing, issued a brief order April 2 making a separate case of which justices should hear the case. It said it wouldn't decide the marriage case until the voters were set.

The court asked for more briefs, in 10 days. The dispute boils down to the question of whether Wood should replace McCorkindale.This action of creating a second case drew recusals from Chief Justice Jim Hannah and Justice Paul Danielson, who said the separate case was unnecessary, a delaying tactic and perhaps unethical. Those recusals, in turn, formed the basis yesterday for a judicial ethics complaint seeking to determine whether four justices — Courtney Goodson, Karen Baker, Jo Hart and Robin Wynne — had indeed engaged in "machinations" aimed at delaying the case. The allegations carry implicit suggestions that delays could be either to move a state decision past one by the U.S. Supreme Court or even to alter the outcome of the case as voted in conference Nov. 20.

But Wednesday, Maples filed a motion that said she wanted to withdraw her previous objection.

She wrote:

Appellees believe that the Justices that presently constitute the Court should decide the case and watch the video of the oral argument even though two did not participate.

She cited two cases in other states on the question of whether new arguments were needed when a panel changed.

She said further arguments would be unnecessary and contended the end of her objections made the separate case moot. It should be dismissed, her motion said. She noted that the case was expedited Oct. 23. "This case should not be delayed longer," she wrote.

Meanwhile, Gov. Asa Hutchinson has been asked to appoint three special justices to sit on the separate case (not the underlying marriage case.) The court has said the Constitution requires the appointments, but the court frequently issues rulings without participation of all seven justices, most recently last week when no more than six justices participated in the per curiam order that made a separate case of which judges should rule,

Confidence in your judicial system yet? This is a fight over a decision completed last May. Hundreds of newlywed couples have been deprived answers on such matters as how to file state income tax returns as a result of the extended court delay.

I'll have Wagoner's reponse when it is filed.

UPDATE: County defendants in the case have filed a brief saying that Amendment 80 requires that Rhonda Wood hear the case. 

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