Smith v. Wright

2015 Ark. 189, 461 S.W.3d 687, 2015 Ark. LEXIS 443
Supreme Court of Arkansas·Decided May 7, 2015·No. CV-15-227·Published·Cited by 6 cases

Opinions

KAREN R. BAKER, Associate Justice

b The Arkansas Constitution provides that “[t]he Supreme Court shall be composed of seven Justices.” However, in Smith v. Wright, Case No. CV-14-427, in violation of our constitution, there are eight justices poised to decide that appeal. Consequently, the question presented in this case is: In accordance with the Arkansas Constitution and our law, which justices properly constitute the Arkansas Supreme Court to decide the case of Smith v. Wright, Case No. CV-14-427? Specifically, the question is whether Justice Rhonda K. Wood or Special Justice Robert W. McCorkindale is one of the seven justices required by the Arkansas Constitution, amendment 80, to constitute the Arkansas Supreme Court in Case No. CV-14-427? The question before us is neither trifling nor insignificant. Instead, it is a question of major constitutional significance; therefore, it became necessary- to take the issue as a case so that it may be properly decided. After a careful examination of our constitution, |2our statutes, and our case law, we conclude that the answer to this question is clearly and unambiguously that Justice Rhonda K. Wood, having been duly elected by the people of this state and having begun her eight-year term as a justice on the Arkansas Supreme Court on January 1, 2015, is the qualified justice invested with the judicial power to participate in Case No. CV-14-427 and that Special Justice Robert W. McCorkindale’s constitutional authority to participate in Case No. CV-14-427 expired December 31, 2014.

Factual and Procedural Background

The history of the matter before us begins with the companion case of Smith v. Wright, Case No. CV-14-427, wherein the appellant, Smith (hereinafter “the State”) appealed the Pulaski County Circuit Court’s order in favor of the appellee, Wright, declaring amendment 83 of the Arkansas Constitution and related statutes unconstitutional.1 Several county clerks are also appellants in this case. Here, appellants, White, Lonoke, Conway, Saline, Faulkner, and Washington County Clerks (hereinafter ‘White County”), filed responses regarding the instant case, which will be considered accordingly. The merits of Smith v. Wright, Case No. CV-14-427 are not at issue in the matter before us in this opinion.2

On May 15, 2014, an appeal was lodged in Smith v. Wright, Case No. CV-14-427. |oOn September 10, 2014, Justice Cliff Hoofman recused from the matter. On October 2, 2014, then Governor Mike Beebe appointed Robert W. McCorkindale to serve as special justice in place of justice Hoofinan. On October 13, 2014, we granted Wright’s request for oral argument. On October 23, 2014, a majority of this court, with Special Justice McCorkin-dale joining the majority, granted Wright’s motion to expedite the appeal, with Justice Hart dissenting and Justice Hoofman not participating. On October 28, 2014, oral argument was scheduled by the Supreme Court Clerk at the direction of Chief Justice Jim Hannah, to be held on November 20, 2014. Thereafter, the parties timely filed their briefs. Additionally, eight ami-cus briefs were filed. Further, prior to the November 20, 2014 oral argument, pursuant to Rule 5-l(j) of the Arkansas Supreme Court Rules, the parties filed multiple notices of additional authority that they intended to rely on during oral argument for a combined total of approximately fifteen additional cases.

On November 20, 2014, the court held oral argument. In accordance with the supreme court’s previously adopted and published calendar, the 2014 term concluded on December 18, 2014 without an opinion in Smith v. Wright, Case No. CV-14-427 having been issued. On December 31, 2014, Justice Donald Corbin and Justice Cliff Hoofman completed their terms on the Arkansas Supreme Court. Prior to the end of their terms, Chief Justice Hannah, approved a statement for release to the press by Stephanie Harris, Supreme Court Communications Counsel, that it was this court’s custom and practice that a special justice who is appointed to replace a justice who had recused and whose term had ended, would continue to participate in the case. We note that although this statement was released to the press, after a diligent and exhaustive search of this court’s case law and docket, we have been Dutiable to find a single case in which a special justice continued to serve on a case when an opinion had not been delivered by the end of the term of the disqualified justice who had been replaced by a newly elected, qualified justice.3 Accordingly, this court does not have a settled custom or practice to apply in this situation.

On January 1, 2015, Justices Rhonda K. Wood and Robin F. Wynne, having been duly elected to the Arkansas Supreme Court, began their eight-year terms on the court. Justice Wood replaced Justice Hoofman, and Justice Wynne replaced Justice Corbin. The 2015 Supreme Court first convened on January 6, 2015, for the investiture of Justice Wood, Justice Wynne, and Justice Karen R. Baker, whose previous term had expired but who had been elected to a subsequent eight-year term. The first conference of the newly constituted court was held on January 7, 2015. At that time, there were a total of four eases, which had been previously submitted to the court in 2014 but were removed from submission when the | sterm ended without a mandate having been issued in those cases. In two of those cases, a special justice had been appointed due to the disqualification of Justice Hoofman.

At the January 7, 2015 conference, Justice Wood expressed her belief that it was her constitutional duty to participate in any matter before the court, unless she had a reason to recuse. Arkansas Code of Judicial Conduct, Rule 2.7, “Responsibility to Decide,” provides: “A judge shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or other law.” The comment to the rule provides:

Judges must be available to decide the matters that come before the court. Although there are times when disqualification is necessary to protect the rights of litigants and preserve public confidence in the independence, integrity, and impartiality of the judiciary, judges must be available to decide matters that come before the courts. Unwarranted disqualification may bring public disfavor to the court and to the judge personally. The dignity of the court, the judge’s respect for fulfillment of judicial duties, and a proper concern for the burdens that may be imposed upon the judge’s colleagues require that a judge not use disqualification to avoid cases that present difficult, controversial, or unpopular issues.

See also Rule 2.11, “Disqualification.”

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Smith v. Wright, 2015 Ark. 189, 461 S.W.3d 687, 2015 Ark. LEXIS 443 (Ark. 2015).

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