CV-14-427

IN THE ARKANSAS SUPREME COURT

NATHANIEL SMITH, M.D., et al.

vs.

APPELLANTS

NO. CV-14-427

M. KENDALL WRIGHT AND JULIA E. WRIGHT,

INDIVIDUALLY AND ON BEHALF OF THEIR
MINOR CHILDREN, G.D.W. AND P.L.W., ET AL.

APPELLEES

ON APPEAL FROM THE CIRCUIT COURT

OF PULASKI COUNTY, SECOND DIVISION
THE HONORABLE CHRIS PIAZZA, CIRCUIT JUDGE
____________________________________________________________
STATE APPELLANTS RESPONSE TO APPELLEES
MOTION FOR THE IMMEDIATE LIFTING OF STAY
____________________________________________________________

LESLIE RUTLEDGE
Arkansas Attorney General
By:

Colin R. Jorgensen (2004078)

Assistant Attorney General
323 Center Street, Suite 200
Little Rock, AR 72201-2610

MEMORANDUM OF AUTHORITIES
Barefoot v. Estelle, 463 U.S. 880 (1983) ................................................................... 3
Brown v. Allen, 344 U.S. 443 (1953) ......................................................................... 3
Campaign for Southern Equality v. Bryant, 773 F.3d 55 (5th Cir. 2014) ............. 5-7
House v. Mayo, 324 U.S. 42 (1945)........................................................................... 3
Maryland v. King, 567 U.S. 1 (2012) ........................................................................ 5
New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345 (1977) ............ 5
Ritter v. Smith, 811 F.2d 1398 (11th Cir. 1987) ........................................................ 3
Strange v. Searcy, ___ U.S. ___, 2015 WL 505563 (Feb. 9, 2015) .................. 4-5, 8
Sunal v. Large, 332 U.S. 174 (1947) ......................................................................... 3

I.

Introduction

On May 9 and May 15, 2014, the Pulaski County Circuit Court entered
orders finding that Amendment 83 to the Arkansas Constitution and Arkansas Act
144 of 1997 violate certain provisions of the Arkansas Constitution and the United
States Constitution.

See Order Granting Summary Judgment in Favor of the

Plaintiffs and Finding Act 144 of 1997 and Amendment 83 Unconstitutional (R.
1431-1443); Final Order and Rule 54(B) Certification (R. 1463-1465); and Order
Entering Final Order and Rule 54(B) Certification Nunc Pro Tunc (R. 14661467). On May 15, 2014, the State Defendants-Appellants (the State) lodged a
partial record with this Court and filed a Petition for Emergency Stay. Also on
May 15, 2014, the County Clerks of White, Washington, Lonoke, and Conway
Counties filed an Expedited Motion for Stay. On May 16, 2014, the Court entered
a Formal Order granting the request for a stay of the Circuit Courts orders pending
this appeal.
This appeal is fully briefed, and oral argument was held on November 20,
2014. The Court has not issued an opinion. On February 5, 2015, the Court
entered a per curiam order in which the Court noted that the parties have taken
competing positions regarding the justices who will serve on this case and
directed the parties to advise this court by formal response, within thirty days of
this order, of any authority supporting their respective positions regarding the
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justices who will preside over this case. The Plaintiffs-Appellees (Appellees)
filed their response to the Courts per curiam order on February 17, 2015. The
State will file a response by the Courts deadline of March 6, 2015.
On February 17, 2015, over nine months after this Court stayed the trial
courts orders, Appellees filed their Motion for the Immediate Lifting of Stay, in
which Appellees state: In light of the current position and decisions of and by the
United States Supreme Court, [Appellees] respectfully request that this Court
reconsider the necessity of its stay and immediately order that said stay be
vacated. Id., 3. Appellees note that, in October 2014, the U.S. Supreme Court
denied certiorari in marriage cases arising out of the Fourth, Seventh, and Tenth
Circuit Courts of Appeals, which effectively dissolved stays of lower court
decisions in those cases, and that the Court has since denied requests for stays of
lower court injunctions by Florida and Alabama. Id., 4-5 & 7. Appellees then
proceed to re-litigate the merits of the Courts stay in this case. Appellees attempt
to place the burden on the State to again demonstrate the propriety of a stay, and
Appellees re-argue the merits of this appeal in support of their request that the
Court lift its stay, despite the fact that both sides have already filed full briefs on
the merits of this appeal.

Id. at 9-16.

For the reasons explained below,

Appellees request to lift the stay should be denied.

II.

Analysis

Because of perceived favorable action from the United States Supreme

Court in marriage cases arising out of other states, Appellees now contend that
there is a sudden emergency over nine months after this Court issued its stay of the
trial courts rulings in this case. As a threshold matter, the Court should reject
Appellees contention that the U.S. Supreme Courts certiorari rulings in certain
cases, and denial of stays in other cases, has precedential value regarding the
propriety of a stay in this case or the Courts ultimate decision in this case. See,
e.g., Barefoot v. Estelle, 463 U.S. 880, 907 n.5 (1983) (Denials of certiorari never
have precedential value . . . and the denial of a stay can have no precedential value
either[.]) (citing Brown v. Allen, 344 U.S. 443, 497 (1953); Sunal v. Large, 332
U.S. 174, 181 (1947); House v. Mayo, 324 U.S. 42, 48 (1945)); Ritter v. Smith, 811
F.2d 1398, 1404-05 (11th Cir. 1987) ([I]t is well established that the grant of
certiorari has no precedential value.). Because the U.S. Supreme Courts actions
on certiorari petitions and stay requests have no precedential value, Appellees
proffered authority for lifting the stay in this case is not controlling, persuasive, or
even instructive. Appellees motion should be denied because Appellees have
offered no meaningful authority in support of their request.
Appellees essentially ask this Court to rule immediately on the merits of this
appeal, and rule in favor of Appellees. The Court certainly has the authority to

issue its opinion in this appeal, but the Court should not effectively rule for
Appellees by dissolving the stay prior to issuing the Courts opinion in this appeal.
An order dissolving the Courts stay prior to the issuance of the Courts opinion
would cause confusion, uncertainty, and additional litigation regarding the effect of
the trial courts orders, especially given the fact that those orders are the subject of
an appeal that is ripe for decision by this Court. While the State does not object to
the Court issuing its opinion, the State strongly objects to the dissolution of the
stay prior to issuance of the Courts opinion on the merits in this case.
This case presents both novel and substantial legal questions. There is a
substantial public interest in having stable marriage laws and avoiding unnecessary
uncertainty, confusion, and additional litigation that will be produced by dissolving
a stay and implementing the trial courts rulings that may be quickly overturned by
this Court or the U.S. Supreme Court. Contrary to Appellees assertions, there is
no question that the State will suffer injury if the stay is vacated. When courts
declare state laws unconstitutional and enjoin state officials from enforcing them . .
. ordinary practice is to suspend those injunctions from taking effect pending
appellate review. Strange v. Searcy, ___ U.S. ___, 2015 WL 505563, at *1 (On
Application for Stay, Feb. 9, 2015). As Justice Thomas stated in dissent: Any
time a State is enjoined by a court from effectuating statutes enacted by
representatives of the people, it suffers a form of irreparable injury. The equities

and public interest likewise generally weigh in favor of enforcing duly enacted
state laws. Id. (citations omitted). See also, Maryland v. King, 567 U.S. 1, 3
(2012) (Roberts, C. J., in chambers) (same) (quoting New Motor Vehicle Bd. of
Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)
(same)). Here, Justice Thomas argument is even stronger because an Arkansas
constitutional amendment adopted by a supermajority of Arkansas citizens would
be enjoined, in addition to legislatively enacted statutes.
If Appellees are irreparably harmed by the stay, as they claim in their
motion, they could have immediately requested vacation of the Courts stay
decision. They did not; in fact, they waited over nine months to file their motion
for the immediate lifting of the Courts stay. In Campaign for Southern Equality
v. Bryant, 773 F.3d 55 (5th Cir. 2014), the court recognized the seriousness of the
legal issues presented, the States interest in having a stay pending appeal of a
judgment enjoining enforcement of the States marriage laws, and the mitigation of
potential harm to the plaintiffs given consideration of the case on appeal:
We have little difficulty concluding that the legal
questions presented by this case are serious, both to the
litigants involved and the public at large, and that a
substantial question is presented for this court to resolve.
In reaching the merits of this appeal, this court will be
confronted with a potential conflict between the state's
historic power and authority over marriage and the
constitutional rights of persons to make decisions in the
most intimate and personal aspects of their lives. See
United States v. Windsor, U.S. , 133 S.Ct. 2675,
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2691, 186 L.Ed.2d 808 (2013); Lawrence v. Texas, 539

U.S. 558, 57374, 123 S.Ct. 2472, 156 L.Ed.2d 508
(2003). Further, while the majority of circuits to confront
this issue have determined that marriage bans similar to
the ones at issue here do not comport with the values of
our constitution, that conclusion has not been universally
shared. Compare Latta v. Otter, 771 F.3d 456, 467 (9th
Cir. 2014); Baskin v. Bogan, 766 F.3d 648, 672 (7th Cir.
2014); Bostic v. Schaefer, 760 F.3d 352, 384 (4th Cir.
2014); Kitchen v. Herbert, 755 F.3d 1193, 122930 (10th
Cir. 2014) with DeBoer v. Snyder, 772 F.3d 388, 42021,
2014 WL 5748990, at *2627 (6th Cir. Nov. 6, 2014). It
is not our task today to resolve the merits of this conflict
in deciding the instant motion, however, we are
convinced by the opinions of our sister circuits that a
detailed and in depth examination of this serious legal
issue is warranted before a disruption of a long standing
status quo. See Baylor Univ. Med. Ctr., 711 F.2d at 40.
Further, considerations of intra-circuit uniformity and the
avoidance of confusion, should this court lift the stay that
is currently in place only to shift gears after individuals
have relied on this change in law, also militate in favor of
granting the States motion. As the district court
recognized, a race to the courthousewith same-sex
couples rushing to the circuit clerks office, and the State
rushing to the Fifth Circuitdoes not serve anyones
interest. The inevitable disruption that would arise from
a lack of continuity and stability in this important area of
law presents a potential harm not just to Mississippi but
to the Plaintiffs themselves and to the public interest at
large. See Evans v. Utah, 21 F.Supp.3d 1192, 119699,
2014 WL 2048343, at *14 (D.Utah May 19, 2014)
(discussing the confusion resulting from Utahs marriage
ban being enjoined and then subsequently reinstated). We
note that these same concerns may have animated the
Supreme Court when it granted a similar stay application
while the issue of Utahs marriage ban was pending
before the Tenth Circuit. See Herbert v. Kitchen,

U.S. , 134 S.Ct. 893, 187 L.Ed.2d 699 (2014)

(Sotomayor, J.).
Finally, while we recognize that Plaintiffs are potentially
harmed by a continued violation of their constitutional
rights, this harm is attenuated by the imminent
consideration of their case by a full oral argument panel
of this court. The court is scheduled to hear challenges
related to Louisianas and Texass marriage bans in one
month and has recently issued an order granting
Plaintiffs application to expedite their appeal and
scheduled the case for oral argument before the same
panel. Given that Plaintiffs claims will soon be heard in
conjunction with these two other cases, a temporary
maintenance of the status quo balances the possibility of
this harm with the need to resolve Plaintiffs claims in a
manner that is both expeditious and circumspect.
773 F.3d at 57-58. As recognized in Bryant, the potential harm to Appellees by
any allegedly ongoing violation of their constitutional rights is mitigated by the
imminent consideration of Appellees case by this Court, and by a decision by the
U.S. Supreme Court this term on the same federal questions. Id.
Additional considerations militate in favor of keeping the stay in place until
this Court issues its opinion. If the stay is lifted, marriages could be recognized
that are ultimately determined to be inconsistent with Arkansas law, resulting in
confusion in the law and in the legal status of marriages. Arkansas law on this
issue can only be settled definitively by a ruling from this Court or the U.S.
Supreme Court that is certainly binding on all state and local officials in Arkansas.

The issues presented in this appeal are serious, and deserve the review of
this higher Court before the trial courts injunction becomes effective. The State
respectfully asks that the Court refrain from doing what Justice Scalia and Justice
Thomas cautioned against in Strange, 2015 WL 213648, at *2, namely, speculation
about what a stay decision by the U.S. Supreme Court means regarding its future
determination of a case on the merits. As explained above, Appellees authority
has no precedential value, and this Court should not reverse itself based upon
unwarranted speculation about non-binding, non-precedential actions of the U.S.
Supreme Court. The confusion, conflict, and additional litigation that will result if
the Court lifts the stay prior to issuing the Courts opinion would serve no purpose
because this Court can soon rule on the merits of the appeal and whether this Court
rules or not, the answers to the federal questions presented by this appeal will be
clear and binding for all involved by the end of this term when the U.S. Supreme
Court will rule in the Sixth Circuit cases.

III.

Conclusion

For the reasons explained above, the State requests that the Court deny
Appellees Motion for the Immediate Lifting of Stay.
Respectfully Submitted,
LESLIE RUTLEDGE
Arkansas Attorney General

By:

/s/ Colin R. Jorgensen

Ark. Bar #2004078
Assistant Attorney General
323 Center Street, Suite 200
Little Rock, AR 72201
(501) 682-3997
(501) 682-2591 (facsimile)
colin.jorgensen@arkansasag.gov
Attorneys for the State

CERTIFICATE OF SERVICE
I, Colin R. Jorgensen, Assistant Attorney General, certify that on this 27th
day of February, 2015, I have served the foregoing upon the following via
electronic mail attachment:
Cheryl K. Maples
ckmaples@aol.com
Jack Wagoner III
jack@wagonerlawfirm.com
David M. Fuqua
dfuqua@fc-lawyers.com
Jason E. Owens
owens@rainfirm.com
/s/ Colin R. Jorgensen

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CERTIFICATE OF COMPLIANCE
I, Colin R. Jorgensen, do hereby certify that I have submitted and served on
opposing counsel an unredacted PDF document that complies with the Rules of the
Supreme Court and the Court of Appeals of Arkansas. The PDF document is
identical to the corresponding parts of the paper document from which it was
created as filed with the Court. To the best of my knowledge, information, and
belief formed after scanning the PDF document for viruses with an antivirus
program, the PDF document is free from computer viruses. A copy of this
certificate has been submitted with the paper copies filed with the Court and has
been served on all parties.

/s/ Colin R. Jorgensen

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