An eight-member panel of the Judicial Discipline and Disability Commission on Friday threw out ethics charges that were lodged against the seven members of the Arkansas Supreme Court amid the justices' ongoing feud with a circuit judge.
The unanimous decision came more than a month after a special counsel working for the commission, J. Brent Standridge, found probable cause to move forward with the ethics charges against the justices. The charges were based on a complaint filed by Pulaski County Circuit Judge Wendell Griffen.
Griffen filed his complaint after the justices stripped him of his ability to hear death penalty cases in 2017 and then referred their own complaint against Griffen to the commission.
The back and forth between Griffen's attorneys and the Supreme Court also spurred a federal lawsuit that was dismissed; accusations of racial bias; and a third ethics complaint brought by Justice Shawn Womack, who accused another circuit judge who was looking into the court's actions of tainting the investigation.
Charges against Griffen are pending. The commission did admonish two district judges in unrelated cases.
David Sachar, the director of the Judicial Discipline and Disability Commission, said Friday that Griffen is not a party to the charges against the justices and thus cannot appeal the decision to dismiss the charges.
Standridge, who essentially served as the prosecutor in the case against the justices, said Friday afternoon that he will review his options once he is provided with a formal written order from the commission.
The genesis of the feud dates back to an anti-death-penalty demonstration that Griffen joined in front of the Governor's Mansion in April 2017. The judge strapped himself to a cot "in solidarity" with Jesus Christ. Earlier that day, which was Good Friday, Griffen had issued an order that threatened to disrupt the state's plans to carry out a series of executions later that month.
Over the weekend after Griffen's protest, the Supreme Court considered a state request to vacate Griffen's order. On that Monday, the court decided to toss the order and strip Griffen of his ability to hear any and all future cases involving the death penalty. (In a partial dissent, Chief Justice Dan Kemp said he would have only removed Griffen from the case at hand, not all future cases.)
The justices then referred Griffen's actions to the Judicial Discipline and Disability Commission for an inquiry.
Griffen then filed his own complaint against the justices, alleging that they violated his due process rights by seeking his response only via work email over the holiday weekend. Griffen also alleged that the justices colluded with Attorney General Leslie Rutledge to strip cases from him, though that accusation was never substantiated or included in the charges against the judges.
Six of the justices responded with separate motions to dismiss, ranging from two short paragraphs to a filing about 100 pages thick. Justice Courtney Goodson didn't file a motion to dismiss.
On Friday, the commissioners considered the motions during a closed session for about an hour. They then voted to dismiss all of the charges against the justices, pointing to a rule in the commission's bylaws that prevents them from taking action against any judge "in the absence of fraud, corrupt motive or bad faith" for making a legal decision.
"In light of there being no controversy about the facts, these arguments have been well presented in the motions before the commission," said commissioner Rex Terry. "As presented, the complaint should be dismissed."
"Moreover the Arkansas Constitution, specifically Amendment 80, gives general superintendent authority over all of the courts of this state to the Arkansas Supreme Court," Terry said. "I believe there is a constitutional basis for dismissal as well."
Kemp could not be reached for comment Friday. His attorney, Robert Peck, said Friday afternoon that he had not been made aware of the commission's decision.
Neither Peck nor Standridge could say Friday whether the commission's decision made moot a petition filed by five court justices, including Kemp, seeking to have the Supreme Court dismiss their ethics charges before the commission.
That filing, made in October, required all seven justices to recuse. Gov. Asa Hutchinson appointed special justices to hear the case.
"I don't know what effect all of this would have on that," said Standridge.
Separately, ethics charges against Griffen remain pending. Those charges are based on his public demonstrations against the death penalty. Griffen's attorney, Mike Laux, did not respond to messages seeking comment Friday.
That case has been set for a full hearing in March. On Friday, the commission approved the appointment of a new special counsel, Timothy Discenza of the Tennessee Board of Judicial Conduct, to work on the case against Griffen. The original attorney appointed to oversee the case, Rachel Michel of the Mississippi Commission of Judicial Performance, was called away on military orders last month.
The commission also has yet to take any action on the complaint filed by Womack against David Guthrie of El Dorado, a circuit judge and commission member. Womack accused Guthrie of bias and having "tainted" the investigation against him.
Judicial ethics charges, if substantiated by the commission, carry a range of penalties from admonishment to censure.
More serious penalties, including suspension or removal from office, require review by the Supreme Court.
OTHER ACTIONS
The commission on Friday also took action against two judges.
The first sanction was against Sebastian County District Judge Jim O'Hern, who attracted publicity in December of 2016 when police arrested a woman for drug possession in a Little Rock hotel room registered in O'Hern's name. O'Hern was a judge-elect at the time.
In the letter of admonishment issued by the commission Friday, it was noted that O'Hern was detained and questioned but never charged with a crime. Still, the letter states, "the incident and actions ... did not provide good optics."
The second judge admonished Friday was Monroe County District Judge David Carruth for having out-of-court contacts with people who had business before his court.
Both judges agreed to accept admonishment as a sanction, instead of going to a full hearing.
A Section on 11/17/2018