A Wyoming Supreme Court rule on rehearings may throw a twist into the state's plan to request a rehearing of a major Supreme Court ruling this week.
According to the court's operating procedures, any decision to grant or deny a rehearing will be made by active justices, not justices who initially heard a case.
That means former Justice Barton Voigt, who agreed the law stripping state schools chief Cindy Hill of many of her duties last year was unconstitutional, may not be at the table when a rehearing is discussed. Voigt retired from the court earlier this year.
Gov. Matt Mead's latest Supreme Court appointee, Justice Kate Fox of Cheyenne, could be a fresh set of eyes to re-evaluate the court's 3-2 decision Tuesday that ruled the law unconstitutional. Unless Fox recuses herself, court procedures say she should be part of the five-justice court that hears the case again if the state's request is granted.
Renny MacKay, Mead's spokesman, said turnover among justices will have no effect on the state's approach to its petition for a rehearing of the case.
"This decision (to request a rehearing) was based strictly on the attorney general’s analysis of the opinion," MacKay said in an email to the Star-Tribune. "What that analysis showed was that there are a number of questions which we believe require further review from the Supreme Court."
Steve Klein, staff attorney at the conservative think tank Wyoming Liberty Group, said he "cautiously speculates" that a new justice will not affect the likelihood of the court granting the state's rehearing request.
"Anything is possible," Klein said. "(But) absent anything earth-shattering that the court missed, I do not believe it is very likely at all it will be a rehearing."
Generally, rehearings are granted when the court sees some egregious error of law in a previous ruling or when new facts are presented, Klein said.
It's not a strategy to persuade a new judge to hear an already decided case, he said.
But especially in a narrowly decided case, a new justice could upend the opinion of the former court majority, said Jack Speight, a Cheyenne-based trial attorney and former deputy attorney general who has argued dozens of cases before the Wyoming Supreme Court.
"It puts additional pressure on the new justice in making a determination that would be contrary to the original opinion," Speight said. "That’s a damn tough call as your first case as a judge."
Retired Justice Michael Golden was appointed to sit on the original court that heard Hill's case last year, following Justice William Hill recusing himself because of his affiliation with his wife, Mary Kay Hill, a deputy policy director for Mead.
It is unclear whether Golden will remain on the court to consider the state's rehearing petition, or whether Chief Justice Marilyn Kite will appoint someone else. Court rules give Chief Justice Kite the authority to appoint members of the judiciary to serve in place of any justice who is unable.
The state has not yet filed its petition for a rehearing of the case, but Attorney General Peter Michael said Thursday the state intends to do so. Under court rules, the deadline to file for rehearing is 15 days after the opinion is issued.
Hill, along with two Wyoming citizens who voted for her in the 2010 general election, filed the lawsuit claiming the new law was unconstitutional the day Mead signed it into law more than a year ago. Hill, a Republican, was elected as state superintendent of public instruction in 2010.