Five of the seven members of the Arkansas Supreme Court on Wednesday sought to dismiss ethics charges against themselves in a petition filed to their own court, setting the stage for a mass recusal of the state's top judges.
The ethics charges, and the justices' move to clear themselves of wrongdoing, come in the court's ongoing feud with Pulaski County Circuit Judge Wendell Griffen.
The Supreme Court last year stripped Griffen of his ability to hear cases involving the death penalty after he participated in a Good Friday protest against executions. The protest was in front of the Governor's Mansion.
Griffen -- who also faces ethics charges over the demonstration -- filed a complaint against the justices, alleging that they didn't give him ample time to defend himself before they removed him from hearing cases related to the death penalty.
After investigating the justices' handling of the case for more than a year, the Arkansas Judicial Discipline and Disability Commission formally charged the justices, six last month and the seventh this month.
In an emergency petition filed late Wednesday afternoon, five justices, including Chief Justice Dan Kemp, alleged that the commission's charges against them were baseless.
The commission and its investigators "mistakenly treat the order of recusal as a disciplinary measure, although, as a matter of law, recusal is not disciplinary in nature," the petition states.
Because they contend they never violated any of the state's judicial canons, the five justices argue that the judicial disciplinary commission has no authority to investigate the matter.
Joining with Kemp on the petition were Associate Justices Josephine "Jo" Hart, Shawn Womack, Karen Baker and Rhonda Wood.
The other two justices -- Courtney Goodson and Robin Wynne -- did not join their colleagues in seeking to dismiss their charges. Neither justice responded to requests for comment late Wednesday.
The petition was announced in a news release issued just before 5 p.m. Wednesday.
Kemp declined to answer a reporter's questions about the matter, referring all comment to his attorney, Robert Peck.
Peck said in a brief phone call Wednesday that Goodson and Wynne "chose not to be on this petition at this time." He said all of the seven justices, however, planned to recuse in the case now that it is before the court.
Under normal circumstances, the Supreme Court would decide an appeal of a charge against a judge.
In case of recusals, the governor appoints special justices to hear cases. The governor's office did not reply to a request for comment late Wednesday.
Griffen's attorney, Mike Laux, could not be reached for comment Wednesday evening.
It's not the first time the entire Supreme Court has recused from a case.
Former Justice Annabelle Imber Tuck pointed to a 30-year-old per curiam opinion involving Georgia Pacific Corp. in which the justices agreed to set aside their original decision and recuse after it was discovered that one of the justices had a separate pending matter against one of Georgia Pacific's insurers.
Tuck, who was not a member of the court at the time, pointed out that the 1988 case had different circumstances. None of the justices was a direct party to the case before them.
The petition filed Wednesday was against the judiciary disciplinary commission; its director, David Sachar; and Brent Standridge, the special counsel assigned to investigate Griffen's complaint against the justices.
In an interview, Sachar said the commission would respond to the petition, either through the attorney general's office or through other counsel.
Last month, Sachar said the decision to file formal charges against a Supreme Court justice -- let alone the entire court -- was a first in the 30-year history of the commission.
If the charges against the justices stand, they are entitled to a hearing before the commission. If found guilty, the justices could each face a range of sanctions, including informal admonishment, reprimand or censure.
More serious punishments of suspension or removal from office must be reviewed by the Supreme Court, which also would require the justices to recuse.
Charges were filed against six of the justices on Sept. 21. The seventh justice, Shawn Womack, was charged two weeks later. He said the original notice sent to him regarding the complaint got lost in the mail.
Each justice was given 30 days to provide a response to the commission. Sachar said he was not aware of any responses having been sent to the commission.
Peck said he was not representing the justices before the commission.
Metro on 10/18/2018