The most veteran members of the state's highest court, including its chief justice, accused fellow justices of obstructing the judicial process and recused themselves from a case related to the pending challenge to the state's gay-marriage ban.
Late Wednesday afternoon, Chief Justice Jim Hannah and Justice Paul Danielson submitted letters recusing from CV-15-227, a case created just last week to settle which justices should hear, and ultimately rule on, the 2014 decision by a lower court that found the same-sex marriage law unconstitutional.
Last week, freshman Justice Rhonda Wood recused herself from the new case because it would directly decide whether she or a governor-appointed special justice, Robert McCorkindale, would participate in the case.
"After careful consideration and with much regret, I must recuse from Smith v. Wright, No. CV-15-227," Hannah wrote. "I believe that a majority of this court has created out of whole cloth an issue to delay the disposition in Smith v. Wright, No. CV-14-427."
Danielson, in a letter echoing Hannah's, said he recused after "careful consideration."
"I must recuse from this matter because I believe that a majority of this court has manufactured a case where no case or controversy exists," Danielson wrote. "I cannot be complicit in machinations which have the effect of depriving justice to any party before the court."
Hannah and Danielson, who will continue to weigh the challenge to the state's same-sex ban, did not answer questions submitted by the Arkansas Democrat-Gazette by email.
Late Wednesday, court officials delivered a letter to Gov. Asa Hutchinson informing him of the recusals. Hutchinson has 30 days to appoint justices to sit on the case in their place.
Questions about the justices' recusals and their replacements were not answered by Hutchinson's staff Wednesday night.
No other justices responded directly for comment.
A spokesman for the court, Stephanie Harris, replied to a series of questions with a response from the "four justices on CV-15-227." They wrote that Amendment 80 of the Arkansas Constitution requires that seven justices "decide every case" and that until the court can decide whether Wood or McCorkindale hears the case, the gay-marriage challenge cannot proceed.
Cheryl Maples, one of the attorneys trying to sustain the 2014 ruling by Pulaski County Circuit Judge Chris Piazza that nullified the gay-marriage ban, said the delays in the case, and now explicit suggestions from justices that the delays are intentional, are "absolutely unprecedented."
"Everyone is speculating [about the reason for the delays in the gay-marriage case], but to have [Danielson and Hannah] state that, it is remarkable, absolutely remarkable," Maples said. "And very brave of them. They're standing up for the rights of all parties to have their case heard, not just us but both sides."
Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, didn't comment on the justices' announcement and said only that state attorneys will submit a brief in the secondary case by Monday's deadline.
State attorneys appealed Piazza's 2014 ruling to the Arkansas Supreme Court. In September, Justice Cliff Hoofman -- who was appointed by former Gov. Mike Beebe to finish out former Justice Bob Brown's term -- recused himself from the case not long before a complaint was filed alleging Hoofman discussed the case with a staunch gay-marriage opponent, state Sen. Jason Rapert, R-Bigelow.
The complaint against Hoofman was dismissed by the Judicial Discipline and Disability Commission in November after investigators found no justices had instigated conversations about the case.
The commission noted that Hoofman's "recusal suffices to cure any potential appearance of impropriety."
With Hoofman gone, Beebe appointed McCorkindale, a retired Boone County circuit judge, to hear the case in his place.
The court agreed to "expedite" hearing the case, and on Nov. 20, attorneys from both sides argued the constitutionality of the ban, which was enacted by voter-approved constitutional amendment in 2004.
Though many legal experts, including attorneys involved in the case, expected the court to rule before the end of 2014, no ruling on the ban came.
At the start of the new year, two new justices joined the bench. Former Court of Appeals Judge Robin Wynne replaced retired Justice Donald Corbin. Wood took over for Hoofman.
On Jan. 23, Rutledge requested a new round of oral arguments, noting that the court's makeup had changed since the November hearing.
Maples co-counsel Jack Wagoner argued that doing so was unnecessary, that the case had been tried and heard and that any delays would cause undue harm to their clients.
They also argued that McCorkindale was "specifically" appointed to see the gay-marriage case through, while state attorneys argued that either Wood or McCorkindale could hear the case.
Instead of ruling, on April 2, the Supreme Court turned the question into its own case.
Wagoner said the point of creating the case was simple: delay.
"There is no rhyme or reason to this," Wagoner said. "No lawyer looking at [the situation] could guess, could even make an educated guess, as to why this is occurring, not from a legal standpoint."
Since a 2013 ruling by the U.S. Supreme Court in United States v. Windsor struck down a federal definition of traditional marriage as being unconstitutional, challenges nationwide have won out. Gay marriage is now legal in 37 states.
Challenges to the Arkansas ban have proceeded in state and federal courts.
Late in November, U.S. District Judge Kristine Baker of the Eastern District of Arkansas found that the ban was unconstitutional but stayed her ruling until it could be ruled on by the 8th U.S. Circuit Court of Appeals.
Wagoner, who is working on the federal challenge as well, said that appeal is near completion and that the U.S. Supreme Court is set to hear gay-marriage arguments later this month and is expected to rule by late June.
"It's getting harder and harder to believe that we'll see any ruling by the Arkansas Supreme Court before the U.S. Supreme Court decides," Wagoner said.
"At this point I have to shrug my shoulders."
John DiPippa, dean emeritus at the University of Arkansas at Little Rock Bowen Law School, said the justices' sternly worded recusal letters speak volumes.
Typically, DiPippa said, judges keep personal opinions, and squabbles, out of the public sphere to maintain the appearance of impartiality.
DiPippa said the justices' letters don't "get much more direct than that," and he considered their implications "disturbing."
"You have two experienced justices who are suggesting that consideration for [something] other than the facts of the law are being taken into account to make these decisions," DiPippa said.
"If we assume that the creating of a new case was designed to delay the decision of the Arkansas case until the [U.S. Supreme Court] had ruled, then that's the endgame: It's running out the clock."
But DiPippa said the justices' letters, which both stress that McCorkindale, and not Wood, should be involved in the final ruling, raise another concern.
"You begin to think ... maybe people are counting up votes. ... Say if we can get rid of McCorkindale's vote and the Corbin vote and substitute our votes, then our sides wins, and that really is improper," DiPippa said. "You don't expect the courts to act like a legislative committee where you try to gain every advantage for your side. You try to judge the case based on principle."
DiPippa said the court could have openly put the case on hold pending a decision from the U.S. Supreme Court.
"Even if people don't like that and there are reasons to object to it, at least there's a principled reason," he said.
Out of concern for the political fallout that could result from a decision, Maples requested in August that any justices in the case planning to run for office again recuse themselves. None did.
When asked if she thought the airing of dirty laundry by justices in recusal letters signaled greater problems within the court, Maples said she could only answer on behalf of her 44 clients in the case.
"They feel that this court has not lived up to the court's obligation to render a decision in a timely manner," Maples said. "Whoever is responsible for this, apparently, has not been doing what they were elected to do."
DiPippa said the language used in the justices' letters was disconcerting.
"This looks unseemly," DiPippa said. "It causes people to wonder whether or not justice is truly blind, and I think that's a problem, even if that's not the reality. It causes people to question the fairness of the court system."
"And that," DiPippa said, "can't be good."
Metro on 04/09/2015