Irritation at Arkansas judges stirs talk of change

Lawmakers take steps in conflict

Sen. Trent Garner, R-El Dorado, is shown in this 2016 file photo.
Sen. Trent Garner, R-El Dorado, is shown in this 2016 file photo.

Judges -- especially those working in Pulaski County -- have drawn the ire of legislators more than once over the years.

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NWA Democrat-Gazette

Former Supreme Court Chief Justice Howard Brill is shown in this photo.

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Judge Wendell Griffen

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AP file photo

Sen. Bart Hester, R-Cave Springs, is shown in this Feb. 5, 2015, file photo.

Lawmakers upset with the rulings of judges working in the county that is home to the state Capitol in Little Rock have called for investigations, issued subpoenas and even raised talk of impeachment.

Last week, in reaction to Circuit Judge Wendell Griffen's anti-death penalty demonstration a few weeks ago, House lawmakers, for the first time, took the step of approving rules for impeaching an official.

Even though the state's 1874 constitution gives the House the power of impeachment, the House had never before adopted rules outlining the procedures it would follow, because the chamber had never impeached anyone.

After adopting the rules, lawmakers went home. More than a dozen Republicans said in interviews last week that they will wait for a judicial disciplinary panel to do its work before they decide whether to file articles of impeachment against Griffen.

Filing articles of impeachment would not be the first action taken against the Pulaski County judiciary by the 91st General Assembly. Act 967, passed by both chambers with broad support earlier this year, allows the state to ask that lawsuits against it be moved out of Pulaski County into another jurisdiction. Many existing state laws require that suits involving state agencies be filed in Pulaski County.

Before actively urging the House to impeach Griffen in last week's special session, Sen. Trent Garner, R-El Dorado, said he sponsored the bill that became Act 967 to replace an "archaic" system. But in an interview last week, he also said he had Griffen in mind.

"I've been tracking Judge Griffen's radical action for the last couple years," said Garner, who is serving his first term.

Griffen's April demonstration -- in which he took off his panama hat and lay on a cot in front of the Governor's Mansion -- followed his issuance of a restraining order preventing the state from using one of the drugs needed for executions. In the end, the state executed four of eight prisoners originally scheduled to die in April.

Twice before, Griffen had ruled against the state's death-penalty laws.

Whether lawmakers agree with Griffen's outspokenness or not, the state's rules of judicial ethics do not necessarily bar out-of-court commentary by judges, said former Supreme Court Chief Justice Howard Brill, who wrote the book on the topic, Arkansas Professional and Judicial Ethics.

"Extrajudicial activities" are permitted under Rule 3.1 of the Arkansas Code of Judicial Conduct, as long as they do not undermine a judge's "independence, integrity or impartiality." A comment attached to the rule states that judges speaking out on social or political issues should weigh the impact of their comments, and consider recusing from cases when necessary.

Attorneys have the option of asking a judge to recuse, and if the judge does not, the typical remedy is to appeal to a higher court, not seek discipline, Brill said.

In public statements after Griffen issued his restraining order in April, Attorney General Leslie Rutledge's office said Griffen should have recused himself as a "public opponent of capital punishment."

Days later, the Supreme Court vacated Griffen's order. Later that week, the high court took the same action after another Pulaski County circuit judge issued a similar restraining order.

"I believe for the Legislature to get involved would be highly unusual," Brill said.

Circuit Judge David Guthrie, the president of the Arkansas Judicial Council, declined to comment specifically on impeachment talks surrounding Griffen. He said there's a "natural tension" between the two branches of government.

Despite earlier calls to remove judges, lawmakers have never before take action to do so.

After Griffen wrote a blog post in 2015 criticizing the Cleveland, Ohio, police shooting of a 12-year-old as an example of "white privilege and racial preferences," Sen. Jason Rapert, R-Bigelow, called for the judge's removal from office for "anti law-enforcement remarks."

There was a proposal -- by then-Rep. Justin Harris, R-West Fork -- to impeach Pulaski County Circuit Judge Chris Piazza in 2014 for declaring Arkansas' same-sex marriage ban unconstitutional.

And lawmakers on the Joint Performance Review Committee subpoenaed Pulaski County Circuit Judge Patricia James in August 2016 after she did not respond to questions about her placement of children in foster homes.

The speaker of the House and the Senate president pro tempore never signed the subpoena, and it went away.

The Legislature has appeared close on several occasions to impeaching other elected officials, including Gov. Jim Guy Tucker and later Lt. Gov. Mark Darr, before the cases were made moot by resignations.

With social media accounts, lawmakers have found another way to express discontent with judicial decisions. After the Arkansas Supreme Court blocked three of the first four scheduled executions last month, Sen. Bart Hester, R-Cave Springs, tweeted the personal cellphone number of Chief Justice Dan Kemp. Hester also tweeted his own cellphone number.

In an interview, Hester said he wanted more "transparency" after the Supreme Court called off executions without issuing a written opinion explaining its rulings. His tweet came after he said he waited in the parking lot of Cummins prison to serve as a citizen witness to one of the first executions, before it was called off near midnight.

"If it took some pretty extreme measures to get justice for the families [of the victims], then absolutely, I'm extremely proud of what I did," Hester said last week.

Attempts to reach Kemp on his cellphone last week were unsuccessful.

Brill, who since leaving the bench has returned to a professor position at the University of Arkansas School of Law, said he would occasionally receive comments from the public through his listed office line, but never heard from legislators.

The former chief justice declined to comment on Hester's tweet, but said he "always had a good working relationship with the General Assembly."

Information for this article was contributed by Michael R. Wickline and Brian Fanney of the Arkansas Democrat-Gazette.

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