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 COURTS PER CURIAM ORDER
____________________________________________________________

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
Commonwealth of Penn. v. Conrad, 892 A.2d 826 (Penn. 2006) ............................. 8
Dept of Human Resources v. Howard, 918 A.2d 441 (Md. 2007) ........................... 3
Gupta v. McGahey, 737 F.3d 694 (11th Cir. 2013) ............................................... 6-7
Jackson v. Sedgwick Claims Mgmt. Servcs., 731 F.3d 556 (6th Cir. 2013) .............. 7
Jackson v. State, 969 A.2d 277 (Md. 2007) ........................................................... 4-5
Jones v. State, 282 Ark. 507, 669 S.W.2d 456 (1984)........................................... 3-4
Polasek v. State, 16 S.W.3d 82 (Tex. App. 2000) ................................................... 10
Rapp v. Mandell & Wright, 127 S.W.3d 888 (Tex. App. 2004) ................................ 8
State v. Speedis, 256 P.3d 1061 (Or. 2011) ............................................................... 8
Tranchant v. State, 5 So.3d 832 (La. 2009) ........................................................... 8-9
U.S. v. McDaniel, 433 Fed. Appx. 701 (10th Cir. 2011) ........................................... 7
U.S. v. Page, 542 F.3d 257 (1st Cir. 2008) ................................................................ 7
U.S. v. Wyatt, 672 F.3d 519 (7th Cir. 2012) .............................................................. 7
Virginia Vermiculite v. W.R. Grace & Co., 156 F.3d 535 (4th Cir. 1998) ................ 7
Wildwood Medical Ctr., LLC v. Montgomery County, 954 A.2d 457 (Md. 2008) ... 5
Winn v. Chateau Cantrell Apt. Co., 304 Ark. 146, 801 S.W.2d 261 (1990) ............. 3
Ark. Const. Amend. 80 .............................................................................................. 4
Rule 1-7 of the Rules of the Supreme Court and Court of Appeals
of the State of Arkansas ................................................................................... 2
21 C.J.S. Courts 191, Number of Judges Necessary to Make a Decision .............. 8

I.

Introduction

On February 5, 2015, the Court entered an 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 justices who will preside over this case. On
February 17, 2015, Plaintiffs-Appellees (Appellees) filed a response in which
Appellees stated that [t]here is no authority that Appellees can find directly on
point in a search of all state and federal courts and [t]he issue presented is
novel. Id., 3. Although Appellees concede that they have offered no authority
to support their position, Appellees ask that this appeal move forward for decision
by the Justices under whom it was previously submitted. Id., 9.
II.

Analysis

A.

Associate Justice Wood should participate in the Courts decision, but

the Court has the discretion to determine whether Special Justice
McCorkindale or Associate Justice Wood will participate in the
decision.

Initially, the State wishes to clarify that the State has never argued that
Associate Justice Wood must decide this case or that Special Justice McCorkindale
cannot decide the case. In its January 23, 2015 motion requesting a second oral
argument, the State noted the following:

Former Associate Justice Cliff Hoofman recused from

this case and was replaced on this case by Special Justice
Robert W. McCorkindale, appointed by former Governor
Mike Beebe. Justice Hoofmans term on the Court has
ended, and on or about January 6, 2015, Associate Justice
Rhonda K. Wood replaced Justice Hoofman on the
Court. Justice Wood was not present at the oral
argument on November 20, 2014.
Id., 3. The State has not taken a formal position regarding whether Special
Justice McCorkindale or Associate Justice Wood should hear this case. The State
believes that the Court has the discretion to decide which Justice will hear the case,
and the State will not contest the Courts decision. The State simply wished to
note for the purpose of the States oral argument request that if Justice Wood
participates in deciding this case, Justice Wood should have the opportunity to
participate in oral argument if she wishes to do so.
The State has searched for authority to guide the Court regarding whether
Associate Justice Wood or Special Justice McCorkindale should participate in
deciding this case. The State has not found a statute or rule that specifically
governs the question. The State agrees with Appellees that Rule 1-7 of this Courts
Rules calls for any decision that is not governed explicitly by statute or rule to be
made in accordance with existing practice, but the State is unaware of any
existing practice regarding whether a Special Justice appointed to hear a case in the
place of a former Associate Justice, or the Associate Justice who has now replaced
the former Associate Justice on the Court, should decide a case that is submitted
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during the former Justices term, but not decided until the new term. In the
absence of any existing practice, the State believes that the question lies within the
Courts discretion.
[T]he dynamics of conferencing and deciding a case is sometimes a delicate
process influenced by the presence or absence of certain judges. Dept of Human
Resources v. Howard, 918 A.2d 441, 451 n.18 (Md. 2007). In Winn v. Chateau
Cantrell Apt. Co., 304 Ark. 146, 801 S.W.2d 261 (1990), this Court issued its
ruling on December 17, 1990, and then denied rehearing on January 22, 1991, after
the composition of the Court changed. The Court noted in a footnote that Justice
Corbin and Justice Brown, who began their first terms in January 1991, did not
participate in the decision to deny rehearing. Winn does not answer the question
presented here because in Winn, the Court filed its opinion before the composition
of the Court changed.
In Jones v. State, 282 Ark. 507, 669 S.W.2d 456 (1984), Jones appealed a
first-degree murder conviction to the Arkansas Court of Appeals.

After oral

argument before a three-judge division, the case was transferred to the court in
banc. The trial courts decision was affirmed, with a dissent by two of the judges
who had heard the oral argument. Petitioning for review by this Court, Jones
argued that: (1) an affirmance of a first-degree murder conviction by a 42 vote in
banc, after two members of a division had apparently voted to reduce the

conviction to second-degree murder, had the effect of placing Jones in double

jeopardy; (2) a statute that calls for an in-banc decision when the vote of a division
is not unanimous is arbitrary and denies equal protection of the law; and (3) a
decision by an in banc majority, three of whom did not hear the oral argument,
denies due process and equal protection. Id., 282 Ark. at 507-508. After noting
that the oral arguments were tape-recorded and made available to both appellate
courts, this Court quickly disposed of Jones arguments:
All these assertions are contrary to the routine procedure
followed by both federal and state courts sitting in
divisions throughout the nation. We need not consider
such assertions, which are made without convincing
argument or authority, for it is apparent without research
that they are not well taken.
Id. at 508. Thus, this Court has recognized that the Courts internal decisions
regarding oral arguments and which Justices will hear cases are flexible and
discretionary, and parties who complain about such issues that lie in the Courts
discretion will obtain no relief.
The Arkansas Constitution requires the concurrence of at least four Justices
of this Court for a decision in any case. See Ark. Const. Amend. 80, 2(C) (The
concurrence of at least four justices shall be required for a decision in all cases.).
Quorum requirements generally must be satisfied as of the date on which the
opinion is filed, regardless of whether an opinion is filed after one member leaves
the panel. See, e.g., Jackson v. State, 969 A.2d 277 (Md. 2007) (three-judge panel
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opinion was valid where one of the three judges died before the case was decided,
but the two remaining judges agreed on the reasoning and result and filed a 2-0
opinion); Wildwood Medical Ctr., LLC v. Montgomery County, 954 A.2d 457 (Md.
2008) (where the nominal author of the opinion of a three-judge panel passed away
before the final opinion was filed and the remaining judges split over the result, the
opinion was invalid). If the quorum requirement is determined on the date of the
Courts opinion, then the composition of the Court on the date that the Court files
its opinion is arguably the correct composition in all cases.
The State contends that when the Court files its opinion in this case, the
participating Justices should consist of the Courts seven duly elected and sitting
Justices on the date of the opinion. However, recognizing the Courts discretion,
the State will not object if the Court determines that Special Justice McCorkindale
will participate in deciding this case.
B.

Associate Justice Wynne, and not former Associate Justice Corbin,

should participate in the Courts decision.

Appellees contend that this case should be decided by the Justices who
comprised the Court in 2014 (and Special Justice McCorkindale).

Appellees

presume that this case was fully and finally considered and decided by the Court in
2014, but the Court has not filed an opinion, nor has the Court announced that it
has ever reached a final opinion in this case. Presumably, if the 2014 Court

finalized a decision prior to former Associate Justice Corbins retirement,1 the

Court would have filed the opinion weeks ago. In any event, the Court continues
to grapple with this case and consider issues in this case, months after former
Justice Corbins retirement. And the Court has yet to file an opinion. Under these
circumstances, former Justice Corbin should not participate in the Courts ongoing
consideration of issues in this case, nor should he participate in the Courts final
opinion.
Because federal judges are appointed for life with no specific terms, they
remain qualified to handle cases after retirement, so federal judges can and
sometimes do participate in decisions handed down after retirement. However,
federal judges typically participate in decisions handed down post-retirement only
where consideration of the case and any internal vote of the court occurred prior to
retirement. Where deliberation regarding a case occurs after a judges retirement,
even a federal judge who remains qualified for life typically does not participate in
the courts decision. See, e.g., Gupta v. McGahey, 737 F.3d 694, n.* (11th Cir.
2013) (As an active judge of this Court at the time the en banc poll was
conducted, Judge Barkett participated in this case.
1

Because she retired from

As noted in the States oral argument motion, former Associate Justice

Corbin retired at the end of 2014 and Associate Justice Wynne now holds that seat
on the Court.

service on September 30, 2013, she did not participate in the consideration of this
case after that date.); Jackson v. Sedgwick Claims Mgmt. Servcs., 731 F.3d 556,
n.* (6th Cir. 2013) (The Honorable Boyce F. Martin, Jr., who was a member of
the en banc court who heard this case, retired on August 16, 2013, and did not
participate in the decision.); U.S. v. Wyatt, 672 F.3d 519, n.* (7th Cir. 2012)
(Circuit Judge Coffey retired on January 1, 2012, and did not participate in the
decision on this petition for rehearing.); U.S. v. McDaniel, 433 Fed. Appx. 701,
n.* (10th Cir. 2011) (The Honorable Deanell Reece Tacha, who participated in
the panel decision regarding this appeal, retired from service on June 1, 2011. As a
result, she did not participate in the reissuance of this opinion. The remaining two
judges are in agreement with respect to this disposition.); U.S. v. Page, 542 F.3d
257, n.* (1st Cir. 2008) (Judge Cyr retired from the Court on March 31, 2008, and
did not participate in consideration of this matter.); Virginia Vermiculite v. W.R.
Grace & Co., 156 F.3d 535, n.* (4th Cir. 1998) (Senior Judge Merhige
participated in the hearing of this case at oral argument but retired before the
decision was filed. The decision is filed by a quorum of the panel.).
Of course, this is not federal court, and the Justices of this Court are elected
to serve specified terms, not appointed for life. Arguably, a Justice of this Court
lacks authority to participate in consideration of a case after the end of the Justices
term under any circumstances. The State has found no authority to the contrary,

and Appellees have offered none. The citizens of Arkansas have now elected
Associate Justice Wynn to decide cases before this Court, commencing in January
of 2015. Justice Wynne should participate in the Courts final opinion, and former
Justice Corbin should not.
Like in the federal courts, the general practice among state supreme courts
seems to be that retired justices do not participate in decisions announced after
retirement. See, e.g., State v. Speedis, 256 P.3d 1061 (Or. 2011) (noting that a
former justice retired on December 31, 2010, and did not participate in the 2011
decision); Commonwealth of Penn. v. Conrad, 892 A.2d 826 (Penn. 2006) (noting
that retired justice did not participate in the decision); Rapp v. Mandell & Wright,
127 S.W.3d 888 (Tex. App. 2004) (same). See also, 21 C.J.S. Courts 191,
Number of Judges Necessary to Make a Decision (As a general rule, and in the
absence of statutory provisions to the contrary, the death, disqualification,
retirement, or absence of a judge will not deprive the other judges of authority to
hold court and decide a case, provided the number of judges legally required for
the transaction of business remains.). Although there are cases where justices of
state supreme courts have participated in decisions filed post-retirement, the
participation note in such a case generally clarifies that the case was considered
and decided prior to the participating justices retirement. See, e.g., Tranchant v.
State, 5 So.3d 832 (La. 2009) (noting that the former chief justice, who was retired

when the opinion issued on January 21, 2009, participated in this decision which
was argued prior to his retirement).
Though there does not appear to be a governing law, rule, or common law
principle, and it is difficult to extract a principle from footnotes in judicial
opinions, federal and state courts seem to share a common practice: when an
appellate judge retires, the judge does not participate in an opinion filed after the
judges retirement unless the case was fully considered and finally decided prior to
the judges retirement. In this case, the Court is considering the States motion for
a second oral argument, and has now directed the parties to brief the proper
composition of the Court. The State assumes that former Justice Corbin is not
participating in the Courts current consideration of issues in this case, months
after his retirement. Former Justice Corbin should not participate in any future
consideration of issues in this case, nor should he participate in the final opinion by
the Court in this case.
Although the Court could decide this case with only six Justices
participating (the Court could technically issue a valid ruling with a concurrence of
four Justices, supra), there is no reason or authority to prohibit Associate Justice
Wynne from participating in the Courts deliberation and decision at this juncture.
Justice Wynne is a duly elected member of this Court and has been seated on the
Court for two months. As noted in the States initial motion, Justice Wynne was

not present at the oral argument held in November 2014. If he will participate in
this case, as he should, then Justice Wynne should have the opportunity to
participate in oral argument if he wishes to do so.
III.

Conclusion

The State contends that the members of the 2015 Court should decide this
case, including Associate Justice Wood and Associate Justice Wynne. The State
concedes that the Court has the discretion to determine whether Special Justice
McCorkindale or Associate Justice Wood will participate in deciding this case, but
unless the case was fully and finally considered and decided by the Court in 2014,
which seems unlikely if not impossible given the ongoing issues presented to the
Court, former Associate Justice Corbin should not participate in deciding this case.
The State respectfully requests that if it would be helpful to the Court, the
Court schedule a second oral argument in this appeal. See Polasek v. State, 16
S.W.3d 82, 84 (Tex. App. 2000) (The purpose of oral argument is to help the
court. Therefore, it must be the court that decides what it thinks would be helpful.
At any point in the process, the court can always stop and hold oral arguments, if a
majority of the court thinks it would be helpful.).

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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)
[email protected]
Attorneys for the State

CERTIFICATE OF SERVICE
I, Colin R. Jorgensen, Assistant Attorney General, certify that on this 6th
day of March, 2015, I have served the foregoing upon the following via electronic
mail attachment:
Cheryl K. Maples
[email protected]
Jack Wagoner III
[email protected]
David M. Fuqua
[email protected]
Jason E. Owens
[email protected]
/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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