LITTLE ROCK — After a state legislative panel adopted a resolution Friday blasting a judge for striking down Arkansas’ ban on same-sex marriage, the resolution’s sponsor said more backlash against the ruling may be coming.
Pulaski County Circuit Judge Chris Piazza "may end up being the poster child for judicial recall in this state," Sen. Jason Rapert, R-Conway, told reporters.
Piazza issued his ruling May 9. The state Supreme Court stayed the ruling on May 16 pending an appeal, but in the intervening week several hundred same-sex couples obtained marriage licenses and wed.
Rapert initially proposed impeaching Piazza for the ruling, but after that idea failed to gain traction in the Legislature, Rapert proposed a resolution that was adopted Friday by the Arkansas Legislative Council.
The non-binding resolution states that Piazza "overstepped his judicial authority" and contradicted his oath to uphold the Arkansas Constitution. It urges the state Supreme Court to overturn his ruling and pledges that remedies will be explored to "prevent the Arkansas Constitution and the will of the people of this state from being negated by judicial activism."
When reporters asked what those remedies might be, Rapert said that "a loosely affiliated group of leaders in the state" is working on a proposed initiated act to create a system of judicial recall.
"Unless they change their mind, you’re going to see a petition drive, and they’ll get it," he said.
Rapert said Piazza’s ruling "went against what the people of Arkansas voted for" and said he believes Arkansans want the marriage amendment defended.
Rapert named Jerry Cox, president of the Christian conservative Family Council, as one of the people working on judicial recall. Cox led the push for the amendment to the Arkansas Constitution defining marriage as between one man and one woman, which voters approved with a 75 percent majority in 2004.
Cox said Friday it was too early to make an announcement, but he said he would support allowing the public to recall judges.
"I think there’s a high level of frustration among many voters about what they would call judicial activism — legislating from the bench," he said.
Cox also said he would support impeaching Piazza, though he acknowledged that legislative support is currently lacking for that approach.
Jack Wagoner, attorney for a group of same-sex couples who challenged Arkansas’ same-sex marriage ban, said Piazza did not overstep his authority or legislate from the bench.
"The judicial branch decides if the actions of the electorate or the Legislature or the executive branch are constitutional or not, and that’s been the case since the Marbury v. Madison Supreme Court case in 1803," Wagoner said.
Marbury v. Madison involved an appointee of President John Adams, William Marbury, who had not yet taken office as a justice of the peace for the District of Columbia when Thomas Jefferson succeeded Adams as president. Jefferson tried to block Madison and other later-term Adams appointees from taking office by ordering his Secretary of State, James Madison, not to deliver their commissions.
The U.S. Supreme Court’s decision in the case established the principle of judicial review, according to Robert Steinbuch, a law professor at the University of Arkansas at Little Rock.
"The court said that if we have a question as to whether a law is in conflict with the Constitution, it’s our job to decide that," he said. "If we think it is, then we have to tell them it’s in conflict."
Steinbuch said there are arguments for and against allowing judicial recall, as there are arguments for and against electing judges versus appointing them.
Circuit judges are elected in Arkansas. Piazza’s re-election in May was unopposed.
"Judges are ultimately political positions, but we like to try to remove at least some level of political influence so that they are not simply the same as a Legislature," Steinbuch said.
As for impeachment, Steinbuch said that should be reserved for serious misconduct.
"A judge should not be impeached for making an unpopular ruling," he said. "A judge should be impeached for, essentially, significant wrongdoing. Let’s be clear: That goes beyond even making a bad decision. Sometimes judges simply make bad decisions; they get the law wrong. If a judge does that once, that’s not enough of a basis to impeach."