Attorneys for the plaintiffs in the lawsuit challenging the Arkansas ban on same-sex marriages filed a motion today asking any Arkansas Supreme Court justice who expects to seek election again to recuse from the case on account of legislative retaliation threatened against judges who overturn the constitutional ban.
This request could cover from two to five of the current seven justices.
The attorneys, Cheryl Maples and Jack Wagoner, said they didn’t think any Supreme Court justice would fail to be impartial. But they said recent legislative actions present the possibility of the public perceiving a loss of impartiality.
Judge Chris Piazza struck down the state’s statutory and constitutional bans on same-sex marriage. His decision has been appealed, but its effectiveness stayed. As it now stands, it might be decided by November, depending on whether delays are requested.
In the meanwhile, the Legislative Council has adopted a resolution sponsored by Sen. Jason Rapert that said Piazza had overreached in his decision. It called on the Supreme Court to uphold the constitutional ban on same-sex marriage and to nullify any of the roughly 500 marriages that occurred in the week before his ruling was stayed. The resolution, hand-delivered to the court, said the legislature would pursue legislative remedies to prevent the popular will from being thwarted by “judicial activism.” Legislators have said this could include proposing for the ballot a judicial recall mechanism in 2016.
The motion said the legislature had filed the resolution with the court, essentially a threat to take action against a judge who ruled contrary to legislative wishes.
The attorneys said they believe the legislature’s action is unprecedented. They said it and public statements threatening judicial recall are
“…intimidation tactics intended to sway this court’s ultimate decision in this case. Furthermore, the actions create the appearance that outside action could have an influence on the case.
“If this court rules differently than the unbroken string of over 20 state and federal court decisions striking down same-sex marriage bans since the United States Supreme Court’s June 2013 Windsor decision, it is a certainty that a fair number of Arkansas citizens will wonder whether Interim Resolution 2013-004 played a role.”
Judicial conduct rules say that a judge “should not … permit others to convey the impression that any person or organization is in a position to influence the judge.”
The attorneys continue: “Appellees fully trust each justice’s ability to render an impartial decision. However they respectfully request that any justice who plans to run for re-election or election to a different position on the court in future years consider whether recusal would best facilitate the public perception of an independent judiciary.”
Of the current seven justices, Cliff Hoofman and Donald Corbin will retire at the end of this year. Chief Justice Jim Hannah and Justices Paul Danielson and Jo Hart could run again, but have a strong disincentive being at ages where, if they ran again, they’d lose retirement benefits. Justice Karen Baker is unopposed for re-election this year. Justice Courtney Goodson could run again and is rumored to be considering a race for chief justice in two years.
The governor would appoint temporary justices were anyone to recuse.
Though the lawyers kindly quote me and the Arkansas Times in the pleading to support their case, I’d predict it won’t succeed. Legislators criticize court decisions all the time and threaten reprisals openly and behind the scenes. If legislative criticism in the form of a resolution was a ground for a successful recusal motion, we could begin to expect them routinely. Judges are appointed to interpret the law without fear or favor. You’d hope — in this case — the U.S. Constitution carried the same promise of equal treatment and due process of law in Arkansas that it has been found to carry in 20 other jurisdictions. On that point, I’m not ready to make a prediction.
On the other hand: The legislature intended to threaten the court with its resolution and intended fully, I believe, to influence the court’s action. Can justices really act in a way that demonstrates they are unaffected by that?
UPDATE: Attorney Geberal Dustin McDaniel said today that he had come to believe electing judges was a bad idea. But that is the system and while in effect it means elected judges must handle controversial cases. Also: Rapert distributed a tweet saying the recusal request was “ridiculous.” Think that means he and his intimidation resolution have the justices where he wants them?