Wednesday, April 15, 2015

Gov. Hutchinson appoints three to select panel to rule on state gay-marriage ban

'Gay agenda' foe selected to hear nuptials spinoff

2 others also named to pick justices to decide main case

Posted: April 15, 2015 at 3:48 a.m.
Updated: April 15, 2015 at 3:48 a.m.
Current 14th Judicial Circuit Judge Shawn Womack of Mountain Home
Current 14th Judicial Circuit Judge Shawn Womack of Mountain Home
Gov. Asa Hutchinson on Tuesday appointed a former Republican legislator and self-proclaimed opponent of the "gay agenda" as one of the three special justices set to participate in deciding which Arkansas Supreme Court justices will rule on a challenge to the state's gay-marriage ban.
Attorney Cheryl Maples, left, and her colleague attorney Jack Wagoner leave federal court in Little Rock, Ark., Thursday, Nov...(By: DANNY JOHNSTON)(Credit: AP)
Supreme Court Chief Justice Betty Dickey of Heber Springs(By: Staton Breidenthal) (Credit: Arkansas Democrat-Gazette)
Searcy attorney Brett Watson(Credit: Special to the Democrat-Gazette)
Hutchinson appointed a former state senator, current 14th Judicial Circuit Judge Shawn Womack of Mountain Home, to take the place of Justice Paul Danielson in ruling on CV-15-227, a spinoff case created to resolve a dispute over whether last year's court or this year's lineup should rule on the gay-marriage ban challenge.
That challenge, known as CV-14-427, has languished without a ruling for nearly five months while the U.S. Supreme Court is set to hear oral arguments on the question later this month.
To fill the three vacancies on the case, two of which were created by the recusals of Chief Justice Jim Hannah and Danielson, who accused other justices of creating CV-15-227 to delay a ruling on the gay-marriage challenge, Hutchinson also appointed two others.
Hutchinson tapped Searcy attorney Brett Watson to fill in for Hannah and former Supreme Court Chief Justice Betty Dickey of Heber Springs to replace first-year Justice Rhonda Wood.
Womack has been a judge in Mountain Home since his 2008 election, but in 2007, the then-state senator sponsored legislation meant to ban homosexuals from being able to adopt or foster children.
Senate Bill 959 by Womack said the legislation would counter the "gay agenda" and protect children. During debate on the Senate floor, a Democratic colleague asked Womack whether he was gay. Womack described himself as "proudly heterosexual."
On Tuesday, Hutchinson spokesman J.R. Davis said that the governor was not worried about Womack's political past clouding his ability to be an impartial judge.
"The governor based his decision on Judge Womack's judicial experience and not his legislative history," Davis said.
An official at Womack's office said Womack was not available for an interview.
The employee did send out a statement on Womack's behalf:
"I want to express my appreciation to Governor Hutchinson for selecting me to participate in this important process," Womack wrote. "I am very humbled and grateful for the trust he is placing in me to decide this case."
Cheryl Maples, the attorney who, in 2013, first challenged the state's 2004 constitutional amendment and preceding statute that both barred same-sex marriage, said she thought Hutchinson erred by appointing a judge with a well-documented aversion to gay rights.
"The rules of governing judicial conduct require that there not be any perception of a conflict of interest [for a judge]," she said. "[Womack's] history of taking a place adverse to any one party in this action would definitely be a perceived conflict of interest if not an absolute conflict of interest."
Maples said she thought that Womack should decline the appointment or recuse himself.
Maples and fellow attorney Jack Wagoner were successful in their challenge in May when Pulaski County Circuit Judge Chris Piazza struck down the state's gay-marriage ban as unconstitutional.
The ruling was stayed after several hundred same-sex couples were wed in the state and the case proceeded to oral arguments at the Arkansas Supreme Court on Nov. 20.
The attorneys and other legal experts including former Arkansas Attorney General Dustin McDaniel expected the case to be decided before the end of last year.
It wasn't.
In late January, the state's new attorney general, Republican Leslie Rutledge, requested a new round of oral arguments for the benefit of the court's two new members, justices Wood and Robin Wynne.
Plaintiffs' attorneys argued that the case should be decided by the justices who heard the case the first time, including now retired Justice Donald Corbin and Special Justice Robert McCorkindale.
McCorkindale was appointed to hear the case by former Gov. Mike Beebe after former Justice Cliff Hoofman recused himself in September.
But state attorneys argued that it was Wood and Wynne who should ultimately rule on CV-14-427.
At the start of this month, the high court created CV-15-227 to handle the question, only to see the two most veteran justices recuse themselves from a case that they said was manufactured to address a legal controversy that did not exist.
In their recusal letters, both justices accused other members of the court of delaying justice in allowing a ruling on CV-14-427, and Hannah argued that to displace McCorkindale would be to "usurp" the former governor's decision and would amount to judicial overreach.
After the letters were released, a gay-rights activist filed a complaint with the Judicial Discipline and Disability Commission to investigate whether justices intentionally delayed the legal proceedings and to see if those delays were politically motivated.
Plaintiffs have withdrawn any objections to the current court hearing the case because they want to expedite a ruling.
Asked why she thought Womack's appointment presented a problem, since he wasn't ruling directly on the gay-marriage question, Maples said that his ruling on who decides could effectively decide the case on its own.
"There's an apparent push by some judges to seat judges with a particular political persuasion, at least, that's the way this is appearing," Maples said. "By seating this particular judge, it would seem that [Hutchinson] is stacking the court against us. I don't think that is constitutionally permissible and it flies in the face of the rules of judicial conduct."
Rutledge, in a statement, said she was glad to hear of the appointments.
"Governor Hutchinson indicated that he would move quickly to appoint three special justices in this case, and I am pleased that he has done so. Any individual appointed as a special judge or justice must give deliberation to ensure justice is served in every case," she said.
While Womack unsuccessfully pushed for a ban on gay adoptions in 2007, another of Hutchinson's appointees, Dickey, ruled against a similar state policy a year before.
Dickey was the first woman chief justice of the Arkansas Supreme Court after Gov. Mike Huckabee appointed her to the position in 2003. In 2006, she joined a unanimous opinion that struck down a similar ban by a state agency.
In 1997, the Child Welfare Agency Review Board, a group of governor appointees that sets policies for child-welfare agencies, enacted a rule that barred gays from adopting in the state.
The state Department of Human Services followed that policy. But in 2006, the Arkansas Supreme Court found the rule violated the separation of powers doctrine, finding there was no connection between a foster child's well-being and the sexual orientation of a parent figure.
Womack's legislation was filed in direct response to that ruling, and, though it failed, the idea succeeded as an initiated act passed by popular vote in 2008.
That act was then invalidated by the Arkansas Supreme Court in 2011.
Before sitting on the state's highest court, Dickey, a Republican, was a prosecutor in Pine Bluff and lost to former U.S. Sen. Mark Pryor in the 1998 race for the attorney general's office.
Attempts to reach her by phone were unsuccessful Tuesday.
The third appointee, Watson, has run his own firm since 2011.
Although there was no answer at his firm Tuesday afternoon, Watson's website says that he is a graduate of the Bowen School of Law at the University of Arkansas in Little Rock and that he began private practice in 2003.
He has a wide range of litigation experience and is admitted to practice in both of Arkansas' federal courts as well as the U.S. Supreme Court.
While Arkansans wait for the state's highest court to move forward, a challenge to the state ban is on appeal at the federal 8th Circuit Court of Appeals.
A week after hearing oral arguments late last November, U.S. Eastern District of Arkansas District Judge Kristine Baker ruled that the state's laws on same-sex marriages were unconstitutional.
The U.S. Supreme Court, meanwhile, is set to take oral arguments on the constitutionality of similar same-sex marriage bans.
The court is expected to render a verdict by the end of its spring session sometime in late June.
Metro on 04/15/2015