A gay-rights activist filed a judicial ethics complaint Thursday against four of the state's Supreme Court justices over legal proceedings related to the state gay-marriage bans.
Tippi McCullough, head of Arkansas Stonewall Democrats, filed the complaint with the Arkansas Judicial Discipline and Disability Commission against Justices Karen Baker, Josephine Hart, Courtney Hudson Goodson and Robin Wynne.
In the complaint, she argues that the recent recusal letters from two of their colleagues illustrate an apparent breach of judicial conduct by one or more justices who may have intentionally delayed a ruling in the challenge to the gay-marriage bans, possibly for political reasons.
McCullough asks that the commission investigate the justices, in part, because recent recusals in a related case by Chief Justice Jim Hannah and Justice Paul Danielson make a "strong case that from one to four members of the Supreme Court have committed grave breaches of the Code of Judicial Conduct" in holding up a ruling in the gay-marriage case.
"Obfuscation and foot-dragging in the marriage case," McCullough wrote, "[shows that] at least some of them have engaged in 'machinations' to delay or avoid making a decision in [the gay-marriage challenge]. The U.S. Supreme Court is widely expected to rule with finality on the central issues ... which would take the Arkansas justices off the hook on a highly politicized issue."
McCullough added: "It behooves the Commission to use its powers to examine exactly what happened in each phase of the case and particularly whether there was collusion or the appearance of collusion in the opinion-writing delays."
The director of the commission, David Sachar, did not return calls seeking comment Thursday.
Two cases are at issue: CV-15-227, a week-old case that's intended to settle which justices will sit on and ultimately rule on CV-14-427. The latter is an appeal of the 2014 ruling by a lower court that invalidated the gay-marriage bans as unconstitutional.
On Thursday night, McCullough said the sternly worded letters from Hannah and Danielson recusing from the CV-15-227 case was "the tipping point" in the more-than-year-long gay-marriage case.
"That's been an ongoing issue: why has it taken so long? The question is, are they waiting until the [U.S. Supreme Court] makes the rulings so they don't have to? Is that the problem? Is there a favorable decision for that that they don't want to put out there? Is there an unfavorable position they don't have the courage to put out there?" McCullough said. "There's no real reason. And lately, it seemed more like stalling tactics [by the court]."
On Thursday, Gov. Asa Hutchinson said he plans to keep his distance from the high court discord.
It falls to the governor to appoint replacements for the two veteran justices who recused from the CV-15-227 case this week, as well as a third justice -- Rhonda Wood -- who recused from the case last week. Wood joined the high court in January.
The case CV-15-227 is aimed at determining whether Wood, or Robert McCorkindale -- who was appointed to hear the gay-marriage case last year -- should decide the gay-marriage appeal.
Hutchinson said Thursday that his role in the matter is limited to appointing special judges to replace those who have recused.
"We recognize the importance and the urgency of it, so ... we want to move quickly on [the appointments]. No time frame, but [we] want to move quickly," Hutchinson said. "I don't know what is going on internally over there [at the Supreme Court]. I am concerned about it, but that's a separate branch of government, and I can't solve the problem for them. They've got to address it."
In their letters, Hannah and Danielson said they recused because the "majority" of the high court, by creating a new case in CV-15-227 to settle CV-14-427 -- which was orally argued and submitted to the Arkansas Supreme Court in November -- were creating "controversy" where none existed, resulting in a delay of justice.
"I cannot be complicit in machinations which have the effect of depriving justice to any party before this court," Danielson wrote.
Both justices, who plan to rule in the gay-marriage appeal, indicated that McCorkindale should hear the gay-marriage case.
Last year, Pulaski County Circuit Judge Chris Piazza declared the bans on gay marriages unconstitutional. His decision was appealed. CV-14-427 is the high court appeal of that ruling.
In September, then-Gov. Mike Beebe appointed McCorkindale -- a retired Boone County circuit judge -- as a special judge to hear the gay-marriage case for former Justice Cliff Hoofman. Hoofman's high court term ended at the end of 2014, and Wood succeeded him.
"Gov. Mike Beebe appointed [McCorkindale] 'as Special Associate Justice of the Arkansas Supreme Court to participate in [CV-14-427],'" Hannah wrote. "The governor's appointment power conferred by the Arkansas Constitution is a matter protected from judicial interference by the separation-of-powers doctrine. This court cannot by judicial fiat usurp the powers of the executive branch."
While Hutchinson kept his distance from the high-court conflict Thursday, Beebe weighed in after reading the two justices' recusal letters.
"He has confidence that [Hannah] is on the right track," a spokesman, Matt DeCample, said for the former governor.
Former Attorney General Dustin McDaniel, a Democrat who supports gay marriage but oversaw the state's defense of the bans until he left office in January, said Thursday that the recent developments in the top court may signal a systemic problem.
It may be time, McDaniel said to revisit the idea of "merit-based" selection of justices, rather than selecting them by popular political vote. Votes for or against something as controversial as gay marriage could loom over justices' heads under the popular-vote system, McDaniel said.
"I said sometime last year that we should take the politics out of the Supreme Court and adopt a Missouri-style appointment retention system," McDaniel said. "People should not fear that their case will be decided on politics, or favoritism or grudges."
Despite putting the gay-marriage case on an "expedited" timetable last year, the Supreme Court failed to rule on it before the terms of some justices ended and those of new justices began.
Justice Donald Corbin's term ended, and he succeeded Justice Robin Wynne.
McDaniel said he had expected a ruling in the case before the makeup on the court changed.
"We were certainly of the mindset that the best-case scenario for [the court] was to have decided the case before that turnover occurred," McDaniel said. "I think that was implicit in the court handling the argument in first place."
McDaniel said he was surprised by the delays and that there is no precedent that proved helpful in determining how to proceed with a case that straddles two different casts of justices.
The current controversy "is reminiscent of decisions that were made decades ago, whether it was creation science or school integration, where the clear signal from the court was that politics were influencing the court," McDaniel said. "To see the veil opened up as much as it has been, you just don't normally see this kind of public exposure of the rifts within the court."
On Jan. 23, newly elected Republican Attorney General Leslie Rutledge asked the Supreme Court to allow a second round of oral arguments on the gay-marriage bans so that Hannah, as well as Wynne and Wood could weigh in.
After attorneys representing gay couples objected on the grounds that every day without a ruling resulted in harm to their clients, on Feb. 5 the high court gave both sides in the case 30 days to submit arguments on "their respective positions regarding the justices who preside over this case."
The attorneys seeking to invalidate the gay-marriage bans argued that McCorkindale was appointed to expedite the proceedings and that "existing practice" suggests that the case should be decided by those justices who first heard the case.
Rutledge's attorney argued that either Wood or McCorkindale could hear the case, but that Corbin has retired and so is no longer a viable option for hearing it.
A brief from some county clerks, who are also parties to the case, argued that Corbin should be barred from hearing the case and that Wood, not McCorkindale, was the appropriate justice to settle the gay-marriage appeal.
Last week, with a dissent from Danielson, the court decided to turn the matter of who should hear the gay-marriage case into a case of its own, and asked attorneys to file new briefs.
Opponents said the new case will result only in delays. Meanwhile, the U.S. Supreme Court is set to hear oral arguments to settle the gay-marriage question later this month.
Also, the 8th U.S. Circuit Court of Appeals is in the middle of considering the November 2014 ruling by U.S. District Judge Kristine Baker that found that the state gay-marriage bans are unconstitutional.
Robert Steinbuch, a law professor at the William H. Bowen School of Law in Little Rock, described the high court controversy as "unusual."
"Recusals are not uncommon, but the manner in which these recusals have taken place, it's quite uncommon," Steinbuch said. "The whole process that is going on regarding the gay-marriage issue at the Arkansas Supreme Court is more than unusual. It's really one surprising event after another surprising event."
Speaking Thursday from Europe, the law scholar said the case is "a level of abstraction" away from where it was expected to be and that disagreements between justices over the process can be rooted in a preferred interpretation of the law, and even a preferred outcome.
"I certainly think that judges are not immune from selecting procedures that would allow in this context, those with whom they are judicially aligned, to vote in the case," Steinbuch said. "I would not put it past judges in general from thinking tactically. ... It happens, and it happens a fair amount. I don't endorse it. ... Their role is to make decisions on the law and not to act tactically, but yes, many do it."
Annabelle Imber Tuck, a former justice, wouldn't speculate Thursday about the inner workings of the court, saying that recusals and decisions to recuse are often "private matters" and usually come with no explanation.
"I've never seen a justice put that in writing in a letter regarding their recusal," she said. "It is an unusual situation for the two justices to come forward and express the concerns they've expressed."
Asked if the recusals hint at some greater discord within the court, Tuck said courts are meant to be adversarial, but collegial, and judges don't have to be friends to do their jobs.
"I'm not going to sit here and say I'm pleased, you know, for the institution of what is going on right now, but I won't sit here and say they can't work through it," Tuck said. "Obviously I would be happier if this had been worked out privately. But it hasn't. So they're going to have to work it out within the context of the public [view]."
However the debate over the legal process shakes out, Steinbuch said, the high court will handle any discord -- real or perceived.
"These are big boys and girls. I think they should know, and I think they do know, that when deciding important issues ... they all need to be strong enough, adult enough and mature enough to withstand heated criticism from one another," Steinbuch said. "If they can't handle the heat, they should get out of there."
Information for this article was contributed by Michael R. Wickline of the Arkansas Democrat-Gazette.
Metro on 04/10/2015