Pulaski County circuit judge's lawsuit against Arkansas Supreme Court rejected by panel

Judge Wendell Griffen.
Judge Wendell Griffen.

An attorney for Pulaski County Circuit Judge Wendell Griffen said Monday that he found it "kind of shocking" that a federal appellate panel would grant a request from Arkansas' Supreme Court justices to completely dismiss Griffen's case against them.

But an attorney for the Supreme Court had a much different take on the 2-1 opinion issued Monday by a three-judge panel of the 8th U.S. Circuit Court of Appeals in St. Louis.

"I'm very pleased with the Eighth Circuit's decision ordering dismissal of this ill-conceived lawsuit," said attorney Robert Peck of the Center for Constitutional Litigation in New York City. "As we contended from the start, Judge Griffen failed to make a viable claim that his rights were infringed, and the Eighth Circuit agreed. No judge has a right to sit on any particular case or set of cases."

Griffen filed his lawsuit Oct. 5 against the Supreme Court itself and its seven individual justices, contending that they violated his constitutional rights by permanently barring him from presiding over death-penalty cases.

[DOCUMENT: Read full order from 8th Circuit Court of Appeals]

On April 12, U.S. District Judge James Moody dismissed the heart of the case by saying the high court itself had sovereign immunity from such lawsuits. However, Moody didn't dismiss the entire case, allowing it to proceed, at least in its early stage, against the justices individually, in their official capacities.

Moody's order allowed the discovery process to begin, and Griffen's attorneys promised to use that green light to dig into communications among and between the justices, the Arkansas attorney general's office and various state senators and representatives, and "take rigorous depositions of these individuals and others."

The justices promptly appealed to the 8th Circuit using a rare tool called a writ of mandamus that asked the appellate court to direct Moody to correct a "clear error" and dismiss the entire complaint with prejudice -- meaning without the possibility of it being refiled. The petition said Moody's order had created "an unprecedented situation in which members of a state's highest court must submit to depositions and other discovery by a state trial judge."

In a 13-page opinion Monday, the majority of the panel, U.S. Circuit Judges Steven M. Colloton of Des Moines and Duane Benton of Kansas City, Mo., did just that. A third judge, Jane Kelly of Cedar Rapids, Iowa, issued a half-page dissent, saying her colleagues jumped the gun by dismissing the entire case when the justices still had not exhausted other means at the district court level of attaining the relief they desired.

"We believe the dissent got it right," Little Rock attorney Austin Porter Jr., who is one of Griffen's attorneys, said Monday after reviewing the panel's opinion. "We were honestly not anticipating that. We're just kind of looking to see what our options are."

Among those potential options, Porter said, are asking the panel to reconsider or seeking a rehearing before the full 8th Circuit.

"The court kind of went off on a tangent and decided to dismiss the case itself," Porter added.

A short time later, co-counsel Mike Laux said, "Judge Moody had it totally right, as does the 8th Circuit dissenting jurist, Judge Kelly. We will seek en banc review of the 3-judge panel's decision. We are certainly not finished here."

En-banc review occurs when all judges on the 8th Circuit agree to take up the matter. There are currently 11 active judges, including two from Arkansas, and four senior judges, including one from Arkansas, on the 8th Circuit.

But Peck said, "At its core, the decision makes plain that courts exist for the litigants, not for the judges. It is the parties' due-process rights that are primary."

He added, "The decision does not hinder those who have legitimate claims of a rights violation from pursuing those rights in court. Here, there simply was no violating of Judge Griffen's rights."

Griffen didn't return a reporter's telephone call.

Griffen is one of 17 elected judges in the state's 6th Judicial Circuit, which consists of Pulaski and Perry counties. He was first elected in 2010 and was re-elected in 2016 to a six-year term. He is also an ordained Baptist minister.

The Arkansas Supreme Court banned him from presiding over death-penalty cases or cases involving the state's method of execution on April 17, 2017, three days after he stopped the state from using one of the three drugs it uses during executions, at the request of the drug's distributor.

Griffen's temporary restraining order halting the drug's use -- and suspending pending executions -- was issued on April 14, the Friday before Easter, and the same day he attended an anti-death-penalty rally at the state Capitol and lay on a cot "in solidarity with Jesus" at a death-penalty protest at the Governor's Mansion. The distributor alleged the state had obtained the drug, vercuronium bromide, under false pretenses, by failing to disclose that it would be used in the upcoming executions.

In a blog post written April 10, 2017, Griffen said in part, "Premeditated and deliberate killing of defenseless persons -- including defenseless persons who have been convicted of murder -- is not morally justifiable. Using medications designed for treating illness and preserving life to engage in such premeditated and deliberate killing is not morally justifiable."

The post continued: "Any morally unjustified and unjustifiable killing produces moral injury. Beginning a week from today, and three days after Good Friday -- on Monday, April 17 -- the political, religious, commercial, and social captains of empire in Arkansas will commence a series of morally unjustified and unjustifiable killings. ... These deaths will join the existing long list of atrocities, oppression, and other moral injuries associated with our state to cause people around the world to associate Arkansas with bigotry, hate, and other forms of injustice as long as human memory continues."

On April 15, a day after the restraining order prohibited the state from using the drug "until otherwise ordered by this Court," the attorney general's office filed an emergency petition with the Arkansas Supreme Court, asking the court to vacate Griffen's order and remove him from the case.

The petition said in part, "Judge Griffen cannot be considered remotely impartial on issues related to the death penalty. Judge Griffen has demonstrated that he is unlikely to refrain from actual bias regarding matters related to the death penalty, and at a minimum, he cannot avoid the appearance of unfairness and his impartiality might reasonably be questioned."

The petition cited Arkansas Code of Judicial Conduct rules, including Rule 2.11(A) (5), which states that a judge shall disqualify himself in any proceeding in which his impartiality might be questioned, including when the judge "has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy."

According to the 8th Circuit opinion, the Arkansas Supreme Court cited that rule in issuing an order to "immediately reassign all cases in the Fifth Division [Griffen's court] that involve the death penalty or the state's execution protocol, whether civil or criminal," including all "future cases involving this subject matter," and referred Griffen to state judicial officials to determine whether he violated the Code of Judicial Conduct.

Griffen, who is black, alleged in his federal lawsuit that he was a victim of First Amendment retaliation, violation of the Arkansas Religious Freedom Restoration Act, denial of his procedural due process rights, violation of his equal protection rights and civil conspiracy. Among the discovery he sought after Moody allowed the case to proceed against the justices were any documents and conversations regarding his conduct in death-penalty cases, his religion or race and his perceived fitness to serve as a judge.

The 8th Circuit panel's opinion, written by Benton, noted that "although denial of a motion to dismiss ordinarily is not appealable, a writ of mandamus to correct an erroneous denial may be warranted in extraordinary circumstances where continued litigation would have significant unwarranted consequences."

The opinion analyzed each of Griffen's claims in his lawsuit, finding, among other things, that his free-speech claims fail because the ban applied to him in his role as a public employee, and quoting from a 2013 case in the 2nd U.S. Court of Appeals that "numerous courts of appeals have reassigned cases due to an appearance of partiality that was traceable to speech by a district judge."

The panel also said Griffen hasn't suffered from any adverse employment action such as termination, cuts in pay or benefits and changes affecting his career prospects. It said the ban doesn't prohibit Griffen's free exercise of religion but instead "reflects neutral principles applicable to all judges who exhibit potential for bias."

The panel noted that while Griffen claimed he has a right to discharge the duties that voters elected him to do, "the voters elected him to discharge powers circumscribed by Arkansas law. And Arkansas law states: 'No judge of the circuit court shall sit on the determination of any case in which he or she is interested in the outcome.'"

Griffen is also facing ethics charges filed last month by the Judicial Discipline and Disability Commission over his attendance at the prayer vigil and the anti-death-penalty protest.

Metro on 07/03/2018

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