A federal appeals court has indicated a "serious level of interest" in a request that it intervene in a case pending before a lower court to keep Arkansas' seven Supreme Court justices from having to testify about their internal deliberations, according to documents filed Thursday.
In the documents, an attorney for the justices seeks a temporary order halting discovery in the lower-court case until the 8th U.S. Circuit Court of Appeals decides how to handle the justices' rare petition for a writ of mandamus, filed last week. Discovery is the pretrial practice of gathering facts from the other side.
The petition asks the St. Louis-based appellate court to order U.S. District Judge James Moody Jr. of Little Rock to fix a "clear error" he committed in allowing discovery to begin in a lawsuit filed against the justices by Wendell Griffen, a state circuit judge.
Griffen sued the justices and the state Supreme Court itself for barring him a year ago from presiding over death-penalty cases or cases involving the state's method of lethal injection. The high court issued the ban after the attorney general's office complained that Griffen had a conflict of interest that prevented him from presiding over a drug manufacturer's lawsuit that sought to stop the drug from being used in executions.
On the same day that Griffen imposed a temporary restraining order at the manufacturer's request, the judge -- who is also a Baptist minister -- 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. Days earlier, he wrote in his blog that the death penalty constitutes "premeditated and deliberate killing," and that a scheduled series of executions amounted to "a series of homicides."
In an April 12 pretrial ruling, Moody refused to dismiss Griffen's federal lawsuit against the individual justices in their official capacities but dismissed claims against the court itself, saying it was protected by sovereign immunity. Moody simultaneously lifted a temporary stay that had halted the discovery process until he decided the motions to dismiss.
One of Griffen's attorneys, Mike Laux of Little Rock, called the ruling "a huge win for Judge Griffen," saying, "We are now permitted to engage in meaningful discovery, much of which will focus on contemporaneous communications among and between the Justices, the Arkansas Attorney General's office and various state senators and representatives. We will also take rigorous depositions of these individuals and others."
But in the petition filed last week at the 8th Circuit, attorney Robert Peck of New York, who represents the justices, complained that Moody's order 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 about the Justices' decision to issue a recusal order in a pending case."
The justices note that the attorney general's office sought Griffen's recusal from the drug manufacturer's lawsuit before the high court issued its broader directive.
The filing of the petition is considered "an extraordinary remedy" that goes beyond a simple appeal of a pretrial ruling and asks the appellate court to order Moody to correct his ruling.
Peck said Monday in a motion asking Moody to temporarily stay discovery until the 8th Circuit addresses the petition that opposing parties are not allowed to respond to a petition unless requested. Yet on Wednesday, he said, the 8th Circuit asked Griffen in a letter to respond "as soon as possible," and gave the justices seven days to reply.
"The request suggests a serious level of interest by the Court of Appeals," Peck asserted.
Peck also complained that the materials Griffen is seeking through discovery aren't matters of public record, are privileged and are "not subject to discovery."
He attached a copy of Griffen's first set of document requests to Chief Justice John Dan Kemp. Among them, Peck noted, are documents and communications regarding Griffen's "fitness or perceived fitness to serve as a judge" and regarding the judge's religious views and his race.
Also included is a request for "all documents and communications exchanged between or among any of the [justices] and the Arkansas Attorney General or any member of her staff regarding Judge Griffen from April 14, 2017 to the present," and "all documents and communications pertaining to the potential impeachment of Judge Griffen."
The requests also seek all documents and communications relating to Griffen that were exchanged between any of the defendants and nine specific people, including three state senators, the speaker of the House, a state representative, three top assistant attorneys general and U.S. Sen. Tom Cotton.
Peck argued that a temporary stay is in order, "because the Court of Appeals has indicated a willingness and interest in moving with dispatch on [the] petition and because no reason exists to embark on the difficult, resource-draining, and disruptive path that discovery in this matter will unquestionably take."
He also argued that "a stay is particularly warranted given the nature of this case and Plaintiff's discovery request, which seeks to use federal court litigation to compel discovery of the internal case deliberations and communications of officials who head an entire branch of a State government."
Meanwhile Thursday, another of Griffen's attorneys, Austin Porter Jr. of Little Rock, filed a motion asking the U.S. district clerk's office to issue a default order against the justices for failing to file an answer to the remaining parts of the lawsuit by April 26.
Metro on 05/04/2018