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IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS TWELFTH DIVISION

ANGELIA FRAZIER-HENSON, et al PLAINTIFFS VS. Case No. 60CV-15-569 LARRY WALTHER, et al DEFENDANTS

MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR STAY

COME NOW Larry Walther, Director of the Arkansas Department of Finance and

Administration, in his official capacity; Nathaniel Smith, MD, MPH, Director of the Arkansas

Department of Health, in his official capacity; Asa Hutchinson, Governor of the State of

Arkansas, in his official capacity; and Leslie Rutledge, Attorney General of the State of

Arkansas, in her official capacity (collectively, the “State Defendants” or the “State”), by and

through undersigned counsel, and offer the following Motion to Dismiss or, in the Alternative,

Motion for Stay in response to the Amended Complaint filed by the Plaintiffs on March 2, 2015

(the “complaint”). The State Defendants are represented herein by the Office of the Arkansas

Attorney General pursuant to Ark. Code Ann. § 25-16-702(a), which requires the Attorney

General to serve as counsel for state agencies and entities when requested. See id. (“The

Attorney General shall be the attorney for all state officials, departments, institutions, and

agencies. Whenever any officer or department, institution, or agency of the state needs the

services of an attorney, the matter shall be certified to the Attorney General for attention.”).

ELECTRONICALLY FILED2015-Apr-01 10:42:22

60CV-15-569C06D12 : 8 Pages

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1. At the general election held on November 2, 2004, Arkansas voters approved a

constitutional amendment by a vote of 753,770 (74.95%) for, to 251,914 (25.05%) against, see

www.sos.arkansas.gov/electionresults/index.php?elecid=66, which became Amendment 83 to

the Arkansas Constitution. Amendment 83 provides in full:

§ 1. Marriage

Marriage consists only of the union of one man and one woman.

§ 2. Marital Status

Legal status for unmarried persons which is identical or substantially similar to marital status shall not be valid or recognized in Arkansas, except that the legislature may recognize a common law marriage from another state between a man and a woman. § 3. Capacity, rights, obligations, privileges and immunities

The Legislature has the power to determine the capacity of persons to marry, subject to this amendment, and the legal rights, obligations, privileges, and immunities of marriage.

Id. The Arkansas General Assembly had previously adopted Ark. Code Ann. § 9-11-109, which

declares that “[m]arriage shall only be between a man and a woman. A marriage between

persons of the same sex is void.” See also Ark. Code Ann. § 9-11-107(b) (Arkansas recognition

of certain foreign marriages “shall not apply to a marriage between persons of the same sex”);

Ark. Code Ann. § 9-11-208 (providing that “[i]t is the public policy of the State of Arkansas to

recognize the marital union only of man and woman[;]” that “[a] license shall not be issued to a

person to marry another person of the same sex, and no same-sex marriage shall be recognized as

entitled to the benefits of marriage[;]” and that “[m]arriages between persons of the same sex are

prohibited in this state.”).

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2. In Wright et al. v. Smith et al., Pulaski County No. 60CV-13-2662 (2nd Division),

plaintiffs challenged the constitutionality of Amendment 83 and Ark. Code Ann. §§ 9-11-107, 9-

11-109, and 9-11-208, under the Arkansas Constitution and the United States Constitution. On

May 9, 2014, the Circuit Court entered an order1 granting declaratory judgment to the plaintiffs

and holding that Amendment 83 violates the state and federal constitutions. In its May 9, 2014

order, the Circuit Court did not grant injunctive relief to the plaintiffs. The Circuit Court did not

enjoin the defendants from enforcing Amendment 83 and the marriage statutes, including the

statutory prohibition against issuing same-sex marriage licenses. The Circuit Court did not

declare Ark. Code Ann. § 9-11-208 unconstitutional. See Exhibit 1. Minutes after the Circuit

Court entered its May 9 order, the State filed a motion requesting an immediate stay from the

Circuit Court. The next day, which was a Saturday, the State filed a notice of appeal of the

Circuit Court’s order. On Monday, May 12, 2014, the State obtained a partial record from the

Pulaski County Clerk’s Office and lodged the partial record with the Arkansas Supreme Court,

docketing appeal No. CV-2014-414. Also on May 12, 2014, the State filed an emergency

petition with the Arkansas Supreme Court, in which the State requested an immediate stay of the

Circuit Court’s May 9, 2014 order.

3. On May 13, 2014, the plaintiffs in Wright v. Smith filed a motion to dismiss2 the

State’s appeal in Arkansas Supreme Court No. CV-2014-414, arguing that the Circuit Court’s

May 9, 2014 order was not final and appealable because, although the underlying complaint

1 The Circuit Court’s May 9, 2014 “Order Granting Summary Judgment in Favor of the

Plaintiffs and Finding Act 144 of 1997 and Amendment 83 Unconstitutional” is attached to the State’s Motion to Dismiss as Exhibit 1.

2 The Wright plaintiffs’ Motion to Dismiss Appeal, filed in Arkansas Supreme Court No. CV-2014-414 on May 13, 2014, is attached to the State’s Motion to Dismiss as Exhibit 2.

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requested both declaratory and injunctive relief, “[t]he trial court only ruled on the declaratory

judgment aspect of the case and has not ruled upon the injunctive relief issue.”3 Id., ¶ 2. The

Wright plaintiffs argued further that “[t]he trial court also did not rule on the constitutionality of

Arkansas Code Ann. § 9-11-208(b), which forbids circuit clerks from issuing marriage licenses

to persons of the same sex.” Id., ¶ 3. On May 14, 2014, the Arkansas Supreme Court issued a

Per Curiam opinion4 in which the Supreme Court dismissed the State’s appeal of the Circuit

Court’s initial order for lack of a final and appealable order. The Arkansas Supreme Court also

issued an accompanying Formal Order5 in which it dismissed the State’s appeal without

prejudice and denied the State’s petition for an emergency stay.

4. In its Per Curiam opinion in which it determined that the Circuit Court’s May 9,

2014 order was not final and appealable, the Arkansas Supreme Court noted the State’s

contention that “circuit clerks across Arkansas are uncertain about whether they are required to

immediately issue marriage licenses to same-sex couples, pursuant to the circuit court’s order, or

are required to refrain from doing so pursuant to Amendment 83.” Exhibit 3, p. 4-5.

Additionally, the Supreme Court noted the plaintiffs’ contention that the appeal should be

dismissed because there was no final order in the case. “Specifically, Wright asserts that the

circuit court ‘only ruled on the declaratory judgment aspect of the case and has not ruled upon

3 This factual statement made by the plaintiffs in Wright v. Smith, represented by the same counsel as Plaintiffs in the instant case, directly contradicts Plaintiffs’ representation to this Court that “[o]n May 9, 2014 the Hon. Chris Piazza declared Amendment 83 and the above cited statutes to be in violation of the Arkansas and United States Constitutions and issued a permanent injunction against state and county officials from enforcing same.” Amended Complaint, ¶ 29 (emphasis added).

4 The Arkansas Supreme Court’s May 14, 2014 Per Curiam in Case No. CV-2014-414 is

attached to the State’s Motion to Dismiss as Exhibit 3. 5 The Arkansas Supreme Court’s May 14, 2014 Formal Order in Case No. CV-2014-414

is attached to the State’s Motion to Dismiss as Exhibit 4.

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the injunctive relief issue,’ and ‘did not rule on the constitutionality of Ark. Code Ann. § 9-11-

208(b), which forbids circuit clerks from issuing marriage licenses to persons of the same sex.’”

Id., p. 5. The Supreme Court noted the State’s agreement with the plaintiffs “that the circuit

court’s order fails to rule on the injunctive relief or the constitutionality of Ark. Code Ann. § 9-

11-208(b)” and the State’s agreement “that if we determine there is no final and appealable

order, then the State would not object to granting the motion to dismiss because it will file its

appeal when it is ripe.” Id. After analyzing applicable law, the Supreme Court concluded that

“the court’s order is not final, and we have no jurisdiction to hear the appeal.” Id. at 6.

5. Turning to the State’s request for a stay of the Circuit Court’s May 9, 2014 order,

the Supreme Court held that a stay was unnecessary because the Circuit Court’s order did not

disturb the statutory prohibition against the issuance of same-sex marriage licenses:

Here, the circuit court did not issue a ruling with regard to Ark. Code Ann. § 9-11-208(b) (Repl. 2009), “License not issued to persons of the same sex.” Therefore, the circuit court’s order has no effect on Ark. Code Ann. § 9-11-208(b) and its prohibition against circuit and county clerks issuing same-sex marriage licenses. Accordingly, we deny the State’s petition for an emergency stay of the circuit court’s May 9, 2014 order.

Exhibit 3, p. 6 (emphasis added). According to the Arkansas Supreme Court in its opinion

issued May 14, 2014, the Circuit Court’s May 9, 2014 order granted no injunction, and it had “no

effect” on the “prohibition against circuit and county clerks issuing same-sex marriage licenses.”

Id. On May 15, 2014 (after Plaintiffs obtained marriage licenses on May 12), the Circuit Court

entered additional orders granting injunctive relief and declaring Ark. Code Ann. § 9-11-208(b)

unconstitutional. The State again lodged a partial record and requested an emergency stay from

the Arkansas Supreme Court in Case No. CV-2014-427, and on May 16, 2014, the Arkansas

Supreme Court granted the State’s request for a stay of the Circuit Court’s orders.

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6. The complaint should be dismissed for failure to state a claim for which relief can

be granted. Ark. R. Civ. P. 12(b)(6).

7. The complaint fails to state a claim because Plaintiffs’ marriage licenses were

issued in violation of Arkansas law, and the marriage licenses are therefore void from inception

as a matter of law. As explained by the Arkansas Supreme Court on May 14, 2014 (after

Plaintiffs were issued marriage licenses by the Pulaski County Circuit Clerk on May 12, 2014),

the Circuit Court’s May 9, 2014 order had “no effect” on Arkansas law’s prohibition against

circuit and county clerks issuing same-sex marriage licenses, codified at Ark. Code Ann. § 9-11-

208(b). Additionally, as also explained by the Arkansas Supreme Court, the Circuit Court’s May

9 order included no injunction of any sort, and the Circuit Court did not order the defendants to

refrain from enforcing Amendment 83 and the marriage statutes, including the statutory

prohibition against issuance of same-sex marriage licenses. The complaint should be dismissed

with prejudice for failure to state a claim for which relief can be granted.

8. If the Court declines to immediately dismiss Plaintiffs’ complaint, the Governor

and the Attorney General should be dismissed from this lawsuit because they are not proper

defendants. Plaintiffs’ claims against Governor Hutchinson and Attorney General Rutledge are

barred by sovereign immunity. The Governor and the Attorney General are also not proper

defendants, because they have no responsibility or authority to enforce Amendment 83 or

Arkansas’s marriage laws.

9. If the Court declines to immediately dismiss the complaint, the Court should stay

this case pending the outcome of same-sex marriage appeals currently pending at the Arkansas

Supreme Court and the United States Supreme Court. Whether same-sex couples will be

allowed to marry in Arkansas, and whether Arkansas officials will be required to recognize

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same-sex marriages, will soon be decided by the Arkansas Supreme Court and/or the U.S.

Supreme Court. The Court has the inherent power to enter a stay under these circumstances. A

stay will promote efficiency of time and effort for both the Court and counsel. Without a stay,

the parties and the Court will be forced to pursue unnecessary and unwarranted litigation over

issues that may be significantly impacted by rulings from the U.S. Supreme Court or the

Arkansas Supreme Court. In order to promote economy of time and effort for itself, for counsel,

and for the parties, and in order to avoid confusion and the risk of an inconsistent result with

cases presenting controlling constitutional questions to the Arkansas Supreme Court and the U.S.

Supreme Court, this Court should stay proceedings pending guidance from a controlling court.

10. In support of this Motion to Dismiss, the State relies upon Exhibits 1-4 attached to

this Motion, and the supporting brief being filed contemporaneously herewith.

WHEREFORE, the State prays that the Amended Complaint be dismissed with prejudice,

or alternatively, that the Governor and the Attorney General be dismissed as defendants and that

this case be stayed pending final resolution of the appeals pending before the Arkansas Supreme

Court and the United States Supreme Court.

Respectfully Submitted, LESLIE RUTLEDGE Arkansas Attorney General By: /s/ Colin R. Jorgensen Colin R. Jorgensen, Ark. Bar # 2004078 Assistant Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201 Phone: (501) 682-3997 Fax: (501) 682-2591 Email: colin.jorgensen@arkansasag.gov Attorneys for the State Defendants

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CERTIFICATE OF SERVICE

I, Colin R. Jorgensen, Assistant Attorney General, certify that on this 1st day of April, 2015, I electronically filed the foregoing with the Circuit Court Clerk using the Arkansas Judiciary’s eFlex electronic filing system, which shall provide electronic notification to the following: Cheryl K. Maples Attorney for the Plaintiffs ckmaples@aol.com /s/ Colin R. Jorgensen