Dismissal of judge's lawsuit against Arkansas Supreme Court appealed

Griffen’s lawyers urge second look

In this June 2017 photo, Judge Wendell Griffen speaks at a news conference on the steps of the Arkansas State Capitol in Little Rock.
In this June 2017 photo, Judge Wendell Griffen speaks at a news conference on the steps of the Arkansas State Capitol in Little Rock.

Attorneys for Pulaski County Circuit Judge Wendell Griffen on Monday asked the 8th U.S. Circuit Court of Appeals in St. Louis to reconsider its recent dismissal of Griffen's lawsuit against the Arkansas Supreme Court.

On July 2, a divided three-judge panel of the federal appellate court granted a request by the justices to vacate a lower court order allowing Griffen's case to proceed against the justices individually, in their official capacities.

The lower court -- U.S. District Judge James Moody Jr. in Little Rock -- dismissed the Supreme Court itself from the case, saying the court was entitled to sovereign immunity. But by allowing the case to advance toward trial against the individual justices, Moody allowed attorneys for Griffen to begin the discovery process, through which he sought information about their conversations about him. The justices said that created an unprecedented situation that interfered with their ability to do their jobs.

In a 2-1 opinion, the panel said Moody had "erred in allowing this claim to proceed," and directed him to dismiss Griffen's lawsuit altogether. The appellate court's decision to grant a writ of mandamus, which orders a lower court to apply the law, is so rare that it "is the only such use of mandamus we have located in this Court's history," Griffen's attorneys argued in the motion filed Monday.

[DOCUMENT: View related filing in 8th Circuit U.S. Court of Appeals]

The majority opinion of the 8th Circuit panel was penned by U.S. Circuit Judge Steven Colloton of Des Moines, Iowa, and joined by U.S. Circuit Judge Duane Benton of Kansas City, Mo. But the third judge on the panel, U.S. Circuit Judge Jane Kelly of Cedar Rapids, Iowa, said in a dissent that she believed her colleagues acted too hastily because the justices still hadn't exhausted other means of attaining their desired relief at the district court level.

Griffen's lawsuit, filed Oct. 5, 2017, alleged that the Supreme Court and the seven individual justices violated his constitutional rights by permanently barring him from presiding over death-penalty cases.

One of 17 elected judges in the state's 6th Judicial District, which covers Pulaski and Perry counties, Griffen is also an ordained Baptist minister. On April 17, 2017, the Arkansas Supreme Court banned him from presiding over all future death-penalty cases and cases involving the state's method of execution after the Arkansas attorney general's office complained that Griffen had demonstrated an inability to be impartial in such cases.

Three days earlier, on Good Friday, Griffen had issued a temporary restraining order prohibiting the state from using one of three drugs in its execution protocol, after the drug's distributor complained that the state illegally obtained it for the purpose of executions. Later that same day, Griffen attended an anti-death penalty rally at the state Capitol and then lay on a cot "in solidarity with Jesus" at a death-penalty protest at the Governor's Mansion.

In a blog post he had written on April 10, 2017, Griffen said, "Premeditated and deliberate killing of defenseless persons -- including defenseless persons who have been convicted of murder -- is not morally justifiable."

He also wrote that beginning April 17, the state "will commence a series of morally unjustified and unjustifiable killings," referring to a series of executions planned by the end of the month.

In his federal lawsuit, Griffen alleged that the Supreme Court had retaliated against him for expressing his views under the First Amendment, and denied him due process and equal protection.

After Moody allowed discovery to begin, Griffen, who is black, sought information about the justices' discussions of his conduct, his religion, his race and his perceived fitness to serve as a judge.

The 8th Circuit panel said, among other things, that Griffen's free-speech claims failed because the ban applied to him in his role as a public employee.

Attorneys Mike Laux and Austin Porter Jr., both of Little Rock, argued in their motion for a rehearing by the panel and a review by the entire 8th Circuit that "alternative means of relief remain available" in which the justices can try to stop or limit the discovery process. The attorneys argued that the majority of the panel "leapfrogged" over those options to decide too quickly that Griffen's complaint didn't state a legitimate claim for relief.

"If mandamus can be used this way, this Court will surely be flooded by mandamus petitions," they complained, adding that "bedrock law guarding against piecemeal appeals will be decimated."

"Mandamus is an extraordinary remedy, not a substitute for ordinary appellate review, and is available only where the district court clearly abuses its discretion or usurps judicial power," they wrote.

"As Judge Kelly observed in dissent, the Justices "did not ask the district court to limit the scope of discovery ... or to shield disclosed records from public view. ... Rather, the Justices 'only asked the district court to dismiss the suit on the merits,' when they 'have not attempted to exhaust their adequate means' in the district court."

Asking that the panel decision be vacated and a rehearing be granted by the full 8th Circuit, Laux and Porter wrote, "If this Court grants such an end-around to state supreme court justices, fairness will require the Court afford the same treatment to all future litigants, opening the floodgate to a swell of mandamus petitions from district court denials of motions to dismiss."

Without the full 8th Circuit's review, the attorneys argued, "the effects of the panel decision will be harmful and far-reaching."

Metro on 07/17/2018

Upcoming Events