Gay-marriage spinoff divides plaintiff teams

The attorneys challenging the state's bans on gay marriage are split this week on which justices should ultimately rule on the case.

Nearly five months after the Arkansas Supreme Court heard oral arguments in the challenge to the bans, also known as CV-14-427, the court opted to create a new case, CV-15-227, to figure out which justices should rule on the bans.

In May, Pulaski County Circuit Judge Chris Piazza sided with gay couples who argued that Arkansas' anti-gay-marriage laws were unconstitutional. But Piazza's ruling has been stayed until the state's Supreme Court hears the appeal.

The court heard oral arguments before Thanksgiving, and during the wait for a ruling, the terms of two justices expired. (One of those judges had recused from the case.)

Initially, both attorneys representing the gay couples argued against a new round of oral arguments before a newly constituted Supreme Court.

Earlier this week, one attorney, Cheryl Maples, deferred to state attorneys' wishes to let the new court hear the case, arguing that the case has taken too long already and that she wanted to expedite a verdict.

On Friday, Maples' partner in the case, Jack Wagoner, said he plans to submit his own brief arguing that the two new Supreme Court justices should not weigh in on the case.

Wagoner said he will argue that the special justice appointed by former Gov. Mike Beebe to hear the challenge to the gay-marriage bans, former Boone County Circuit Judge Robert McCorkindale, should finish the job he was appointed to do.

"There is a difference of opinion. I represent three of the appellees, and difference of opinion developed ... on this issue about the appropriate justices that should decide the case," Wagoner said. "[Maples] filed a pleading without consulting with me. She filed [her motion] without my name; she said she wanted a decision, good or bad, as soon as possible."

On Wednesday, Chief Justice Jim Hannah and Justice Paul Danielson recused themselves from CV-15-227.

Danielson described the spinoff case as "manufactured" and one lacking any real "controversy."

Hannah described CV-15-227 as being "created out of whole cloth" to delay a ruling in the appeal of Piazza's invalidation of the same-sex marriage bans.

"I swore to uphold the Constitutions of the United States and the State of Arkansas. Moreover, I am bound by the Code of Judicial Conduct ... that a judge shall uphold and promote the independent integrity, and impartiality of the judiciary," Danielson wrote. "I cannot be complicit in machinations which have the effect of depriving justice to any party before this court."

So far, Gov. Asa Hutchinson has yet to appoint special justices to replace Hannah and Danielson as well as Rhonda Wood, who recused from that case because it would decide whether she or McCorkindale would participate in deciding the gay-marriage question.

The recusals prompted a gay-rights activist, Tippi McCullough, to file a complaint Thursday against Justices Robin Wynne, Karen Baker, Jo Hart and Courtney Goodson.

In the complaint, McCullough argued that the recusal letters' suggestion that other justices had intentionally delayed the case warranted a full investigation from the Judicial Discipline and Disability Commission.

Maples' pleading withdrew her earlier argument that having any other justice but McCorkindale involved in the case would cause undue delays to her clients. She suggested that instead of a second round of arguments, the current seven justices could review the video of last year's oral arguments.

"Further oral argument is unnecessary," Maples wrote. "Therefore, CV-15-227 becomes moot and should be dismissed. ... This case should not be delayed any longer."

The state Supreme Court "expedited" the gay-marriage challenge in October and it was submitted to the justices in November after oral arguments.

Wagoner and Maples won a challenge to Arkansas' same-sex marriage laws in federal court in November. U.S. Eastern District of Arkansas District Judge Kristine Baker ruled that the bans were unconstitutional but stayed her ruling. That case is currently before the U.S. 8th Circuit Court of Appeals.

On Thursday, Wagoner declined to go into detail but said that he had found some case law to suggest that McCorkindale, and not Wood, should hear the case.

"We respectfully disagree with the position taken by the other appellees," Wagoner said.

Although the history of the gay-marriage ban has been unusual, John DiPippa, dean emeritus at the University of Arkansas at Little Rock's law school, said it's not uncommon for attorneys representing different clients in the same case to diverge in their arguments.

"This is not a class action [case] and it makes it more likely that attorneys will diverge tactically because they are representing diverse interests," he said. "In a class action, legally you're representing the same interest."

Both DiPippa and former Arkansas Supreme Court Justice Bob Brown said it was unclear how the competing motions by attorneys seeking the same ruling will affect the case.

Wagoner said he doubts that his motion will cause any more delays. Ultimately, Wagoner said, the justices who haven't recused will rule on who will rule. After that, he said, there's only CV-14-427.

But with the U.S. Supreme Court set to rule on the gay-marriage debate once and for all by late June, Wagoner said he expects that the nation's highest court will rule first.

"If the [U.S.] Supreme Court wasn't ruling for another year or two, it'd be a different thing, but right now I don't have an inclination to force a decision [from the state court] at this point," Wagoner said. "Look at how much time has already been delayed. Everyone thinks we'll get the right ruling in the [U.S.] Supreme Court. So what's the point in rolling the dice and pushing the court and getting the wrong [decision] before then or risking the wrong one before then?"

Given the lengthy timeline, Brown said he didn't know whether the gay-marriage question in Arkansas would be settled first in Washington, D.C., or in Little Rock. But he said he hoped for the latter.

"I think it's something where a [state] decision needs to be made. You have the state constitutional issues and the federal constitutional issues. Make a decision one way or the other."

Metro on 04/11/2015