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2014 Ark. 222
SUPREME COURT OF ARKANSAS
No. CV-14-414
NATHANIEL SMITH, M.D., MPH, Opinion Delivered May 14, 2014
INTERIM DIRECTOR OF THE
ARKANSAS DEPARTMENT OF APPEAL FROM THE PULASKI
HEALTH, IN HIS OFFICIAL COUNTY CIRCUIT COURT
CAPACITY, AND HIS SUCCESSORS [NO. 60CV-13-2662]
IN OFFICE;
RICHARD WEISS, DIRECTOR OF HONORABLE CHRISTOPHER
THE ARKANSAS CHARLES PIAZZA, JUDGE
DEPARTMENT OF FINANCE AND
ADMINISTRATION, APPEAL DISMISSED WITHOUT
IN HIS OFFICIAL CAPACITY, AND PREJUDICE; PETITION FOR
HIS SUCCESSORS EMERGENCY STAY DENIED.
IN OFFICE; PULASKI
CIRCUIT/COUNTY CLERK,
LARRY CRANE, IN HIS OFFICIAL
CAPACITY, AND
HIS SUCCESSORS IN INTEREST;
WHITE COUNTY CLERK,
CHERYL EVANS, IN HER OFFICIAL
CAPACITY, AND
HER SUCCESSORS IN INTEREST;
LONOKE COUNTY CLERK,
WILLIAM “LARRY” CLARKE, IN HIS
OFFICIAL CAPACITY,
AND HIS SUCCESSORS IN
INTEREST; CONWAY COUNTY
CLERK, DEBBIE HARTMAN, IN HER
OFFICIAL CAPACITY,
AND HER SUCCESSORS IN OFFICE;
SALINE COUNTY CLERK,
DOUG CURTIS, IN HIS OFFICIAL
CAPACITY, AND HIS
SUCCESSORS IN OFFICE;
FAULKNER COUNTY CLERK,
MELINDA REYNOLDS, IN HER
OFFICIAL CAPACITY, AND
HER SUCCESSORS IN OFFICE;
WASHINGTON COUNTY
CLERK, BECKY LEWALLEN, IN HER
OFFICIAL CAPACITY,
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AND HER SUCCESSORS IN OFFICE
APPELLANTS
V.
M. KENDALL WRIGHT AND JULIA E.
WRIGHT; INDIVIDUALLY
AND ON BEHALF OF THEIR MINOR
CHILDREN, G.D.W.
AND P.L.W.; RHONDA L. EDDY AND
TREBA L. LEATH;
CAROL L. OWENS AND RANEE J.
HARP; NATALIE
WARTICK AND TOMMIE J.
WARTICK; INDIVIDUALLY
AND ON BEHALF OF THEIR MINOR
SON, T.B.W.;
KIMBERLY M. KIDWELL AND
KATHRYN E. SHORT;
JAMES BOONE AND WESLEY
GIVENS; KIMBERLY M.
ROBINSON AND FELICITY L.
ROBINSON; LINDA L. MEYERS
AND ANGELA K. SHELBY;
GREGORY A. BRUCE
AND WILLIAM D. SMITH, JR.;
MONICA J. LOYD
AND JENNIFER L. LOCHRIDGE;
JENNIFER D. MOORE
AND MANDY A. LYLES; JONATHAN
K. GOBER AND
MARK R. NORWINE; ANDRA
ALSBURY AND
AMBER GARDNER-ALSBURY;
ANGELA SPEARS GULLETTE;
AND LIVICIE C. GULLETTE;
SHANNON HAVENS; AND
RACHEL WHITTENBURG; CODY
RENEGAR; AND
THOMAS STADE; KATHERINE
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HENSON AND
ANGELIA BUFORD; CHRISTOPHER
H. HORTON; AND
MICHAEL E. POTTS; JOHN
SCHENCK AND ROBERT LOYD;
WILLIAM A. KING; AND JOHN
MCCLAY RANKINE;
ARICA NAVARRO AND PATRICIA
NAVARRO; AND RANDY
EDDY-MCCAIN AND
GARY EDDY-MCCAIN
APPELLEES
PER CURIAM
Before this court is the appellants’ petition for emergency stay filed by Nathaniel
Smith, M.D., Interim Director of the Arkansas Department of Health in his official capacity
and his successors in office; Richard Weiss, Director, Arkansas Department of Finance and
Administration, in his official capacity, and his successors in office; Pulaski Circuit/County
Clerk, Larry Crane, in his official capacity, and his successors in interest; White County Clerk,
Cheryl Evans, in her official capacity, and her successors and interest; Lonoke County Clerk,
William “Larry” Clarke, in his official capacity, and his successors in interest; Conway County
Clerk, Debbie Hartman, in her official capacity, and her successors in office; Saline County
Clerk, Douglas Curtis, in his official capacity, and his successors in office; Faulkner County
Clerk, Melinda Reynolds, in her official capacity, and her successors in office; Washington
County Clerk, Becky Lewallen, in her official capacity, and her successors in office
(hereinafter “the State”). Additionally before this court is the appellees’ motion to dismiss
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appeal filed by M. Kendall Wright and Julia W. Wright, individually and on behalf of their
minor children, G.D.W. and P.L.W.; Rhonda L. Eddy and Treba L. Leath; Carol L. Owens
and Ranee J. Harp; Natalie Wartick and Tommie J. Wartick, individually and on behalf of
their minor son, T.B.W.; Kimberly M. Kidwell and Kathryn E. Short; James Boone and
Wesley Givens; Kimberly M. Robinson and Felicity L. Robinson; Linda L. Meyers and
Angela K. Shelby; Gregory A. Bruce and William D. Smith, Jr.; Monica J. Loyd and Jennifer
L. Lochridge; Jennifer D. Moore and Mandy A. Lyles; Jonathan K. Gover and Mark R.
Norwine; Andra Alsbury and Amber Gardner-Alsbury; Angela Spears Gullette and Livicie C.
Gullette; Shannon Havens and Rachel Whittenburg; Cody Renegar and Thomas Stade;
Katherine Henson and Angelia Buford; Christopher H. Horton and Michael E. Potts; John
Schenck and Robert Loyd; William A. King and John McClay Rankine; Arica Navarro and
Patricia Navarro; and Randy Eddy-McCain and Gary Eddy-McCain (hereinafter “Wright”).
The parties responded respectively.1
The State petitions the court for an emergency stay of the Pulaski County Circuit
Court’s May 9, 2014 “order granting summary judgment in favor of [Wright] and finding Act
144 of 1997 and Amendment 83 unconstitutional.” The State asserts that an emergency stay
is necessary “while this court considers the State’s appeal, in order to avoid confusion and
uncertainty about the effect of the circuit court’s order on Arkansas marriage law.” Further,
the State asserts that circuit clerks across Arkansas are uncertain about whether they are
1
Also before this court is a separate expedited motion for stay filed by the Clerks of
White, Washington, Lonoke, and Conway County which is rendered moot for the reasons
explained in this opinion.
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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.
Wright responds that we should deny the State’s petition for emergency stay because
the circuit court has yet to rule on a pending motion for stay; therefore, the petition is
premature.
Additionally before the court is Wright’s motion to dismiss the appeal. Wright
contends that we should dismiss the State’s appeal because there is no final order in this case.
Specifically, Wright asserts that the circuit court “only ruled on the declaratory judgment
aspect of the case and has not ruled upon the injunctive relief issue,” and “did not rule on the
constitutionality of Ark. Code Ann. § 9-11-208(b), which forbids circuit court clerks from
issuing marriage licenses to persons of the same sex.” The State agrees with Wright 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 asserts that if we determine there is no final and appealable order,
then the State will not object to granting the motion to dismiss because it will file its appeal
when it is ripe. The State further responds that whether or not we dismiss the appeal, we
should use our superintending authority over circuit courts to issue the stay.
First, with regard to the finality of the circuit court’s order, the circuit court’s order
provides in pertinent part:
THIS COURT HEREBY FINDS the Arkansas Constitutional and Legislative ban on
same-sex marriage through Act 144 of 1997 and Amendment 83 is unconstitutional.
Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure–Civil (2013) provides that
an appeal may be taken only from a final judgment or decree entered by the trial court. Searcy
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Cnty. Counsel for Ethical Gov’t v. Hinchey,
2011 Ark. 533. Under Arkansas Rule of Civil
Procedure 54(b), an order that fails to adjudicate all the claims as to all the parties, whether
presented as claims, counterclaims, cross-claims, or third-party claims, is not final for purposes
of appeal. Dodge v. Lee,
350 Ark. 480,
88 S.W.3d 843 (2002). See J-McDaniel Constr. Co. v.
Dale E. Peters Plumbing Ltd.,
2013 Ark. 177, ___ S.W.3d ___. Accordingly, here, we have
carefully reviewed the record, and the record reflects neither an adjudication of all claims nor
a proper certification pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure;
therefore, the court’s order is not final, and we have no jurisdiction to hear the appeal. See
Ark. R. Civ. P. 54(b)(2) (2013); Dodge v. Lee,
350 Ark. 480,
88 S.W.3d 843 (2002); see also
Myers v. McAdams,
366 Ark. 435,
236 S.W.3d 504 (2006). We therefore dismiss the present
appeal without prejudice.
Second, the State asserts that even if we dismiss the appeal, we should use our
superintending authority to grant a stay because circuit and county clerks are confused as to
whether they may issue same-sex marriage licenses. We turn again to the circuit court’s
order. 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.
Motion to dismiss appeal granted without prejudice; motion for emergency stay
denied.
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CORBIN AND DANIELSON, JJ., concur. By way of syllabus entry, we would grant the
motion to dismiss due to the lack of a final order and deny the petition for emergency stay
as the matter is still before the trial court.
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