The attorneys for the plaintiffs in a lawsuit challenging the constitutionality of the state's ban on gay marriage on Monday asked any justices on the Arkansas Supreme Court who planned to run for re-election to consider whether to recuse from the case.
But Attorney General Dustin McDaniel said that under the Arkansas constitution, it would be inappropriate for a judge to steer clear of a case simply to avoid controversy.
In a motion for recusal filed with the court, attorneys Jack Wagoner and Cheryl Maples wrote that a resolution passed by the Arkansas Legislative Council last month and impeachment threats in response to Pulaski County Circuit Judge Chris Piazza's ruling were "intimidation tactics intended to sway this court's ultimate decision in this case." State Sen. Jason Rapert, R-Bigelow, who sponsored the resolution, said at the time that he expected to see an initiated act to create a process in the state to recall judges.
Piazza ruled in May that Amendment 83 to the Arkansas Constitution, approved by voters in November 2004, and Act 144 of 1997, a separate law prohibiting same-sex marriage, violated provisions of the state and federal constitutions. He later expanded his order to include all state laws that banned gay marriage
The state appealed the ruling, which is pending before the Supreme Court. The state's brief, which lays out its case for overturning Piazza's ruling, is due Sept. 8.
The Legislative Council resolution expressed support for Amendment 83 and condemned Piazza's decision, which it said was "in direct contradiction to his oath to uphold the Arkansas Constitution and the overall right of the State of Arkansas to declare policy on such matters."
Chief Justice Jim Hannah said in his June 13 "State of the Judiciary" address at the Arkansas Bar Association annual meeting that "recent comments" and calls for Piazza's impeachment "indicate a profound lack of understanding about the basic role of judges and courts."
The attorneys wrote Monday that the resolution "create[s] an appearance that outside influences could have an impact on those sitting justices who expect to seek [re-]election" and that they "respectfully request that any justice who plans to run for reelection or election to a different position on the court in future years to consider whether recusal would best facilitate the public perception of an independent judiciary."
The appellees, represented by the attorneys, did not contend that any of the justices cannot be impartial, they wrote. But Rule 2.4 of the Arkansas Code of Judicial Conduct states that "[a] judge shall not ... permit others to convey the impression that any person or organization is in a position to influence the judge."
"Those justices of this court who plan to seek election to any position on the court in future years should consider recusal from this case. That way, appellees and the public have no basis to believe that the Legislative Council's actions served in any way to influence the ultimate decision of this court," the attorneys wrote.
The court did not immediately rule on the motion, and it was unclear when it would meet to do so. The court is not in session during the summer months, but it meets to rule on motions.
Wagoner declined to answer questions when reached by phone Monday afternoon.
"Everything we have to say about that motion is in the motion," Wagoner said.
McDaniel, whose office appealed Piazza's decision, said in a statement that he has "come to believe that it is a mistake to elect our Supreme Court justices" and that the state should consider a system like Missouri's where they are appointed and subject to retention elections.
"However, so long as we have our current system, it is a nonstarter to file recusal motions simply because justices must hear controversial cases and then stand for election, as that is precisely what is contemplated in our constitution," McDaniel said.
In response to a reporter's question, McDaniel said his position on Supreme Court elections had changed "over time, but [I] have never articulated it publicly before now."
Metro on 08/05/2014