ELECTRONICALLY FILED

2015-Apr-01 10:42:22
60CV-15-569
C06D12 : 8 Pages

IN THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS

TWELFTH DIVISION

ANGELIA FRAZIER-HENSON, et al

VS.

PLAINTIFFS

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.).

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.).

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, 911-109, 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 Courts order. On Monday, May 12, 2014, the State obtained a partial record from the
Pulaski County Clerks 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 Courts May 9, 2014 order.
3.

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

States appeal in Arkansas Supreme Court No. CV-2014-414, arguing that the Circuit Courts
May 9, 2014 order was not final and appealable because, although the underlying complaint

The Circuit Courts 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
States 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 States Motion to Dismiss as Exhibit 2.

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 States appeal of the Circuit
Courts 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 States appeal without
prejudice and denied the States petition for an emergency stay.
4.

In its Per Curiam opinion in which it determined that the Circuit Courts May 9,

2014 order was not final and appealable, the Arkansas Supreme Court noted the States
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 courts 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 Courts May 14, 2014 Per Curiam in Case No. CV-2014-414 is
attached to the States Motion to Dismiss as Exhibit 3.
5

The Arkansas Supreme Courts May 14, 2014 Formal Order in Case No. CV-2014-414
is attached to the States Motion to Dismiss as Exhibit 4.

the injunctive relief issue, and did not rule on the constitutionality of Ark. Code Ann. 9-11208(b), which forbids circuit clerks from issuing marriage licenses to persons of the same sex.
Id., p. 5. The Supreme Court noted the States agreement with the plaintiffs that the circuit
courts order fails to rule on the injunctive relief or the constitutionality of Ark. Code Ann. 911-208(b) and the States 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 courts order is not final, and we have no jurisdiction to hear the appeal. Id. at 6.
5.

Turning to the States request for a stay of the Circuit Courts May 9, 2014 order,

the Supreme Court held that a stay was unnecessary because the Circuit Courts 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 courts 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 States petition for an
emergency stay of the circuit courts 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 Courts 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 States request for a stay of the Circuit Courts orders.

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 Courts May 9, 2014 order had no effect on Arkansas laws prohibition against
circuit and county clerks issuing same-sex marriage licenses, codified at Ark. Code Ann. 9-11208(b). Additionally, as also explained by the Arkansas Supreme Court, the Circuit Courts 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
Arkansass 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

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

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
Judiciarys 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