Conflict fears stir 2 recusals in ethics cases
Outside lawyers to oversee filings by Griffen, justices
Judicial regulators said Tuesday that they plan to hire independent attorneys to oversee Judge Wendell Griffen’s ethics complaint against the Arkansas Supreme Court, as well as ethics complaints the high court has made against the judge.
The Arkansas Judicial Discipline and Disability Commission is the constitutionally created agency responsible for investigating all misconduct complaints against state judges, but executive director David Sachar and his deputy, Emily White, said in a news release that they are recusing themselves from the competing complaints.
Sachar and White are recusing on the advice of former Supreme Court Chief Justice Howard Brill, the news release stated.
In a three- page letter, also released by the commission, Brill wrote that Sachar and White face potential ethical conflicts if they conduct the investigation themselves.
“It is my belief that both of you are caught in an unacceptable dilemma with these competing allegations. Unique circumstances are present in this situation,” the former chief justice wrote.
“Accordingly, I believe that the commission, and indeed the state, would be best served if both with drew from any major role in the investigation or prosecution of any charges arising from either of these referrals.”
Brill, a recognized authority on legal ethics, is an Arkansas law professor. He was chief justice until January, having served 16 months as Gov. Asa Hutchinson’s appointee to finish the term of Jim Hannah. Hannah, who was chief justice about 10 years, retired for health reasons in August 2015 and died in January 2016.
Dan Kemp was elected chief justice in November.
The only two full- time attorneys on the commission staff, Sachar and White did not say who would select the outside lawyers for the Griffen cross- claims or how they would be paid.
For 2017, the commission reports that it has a budget of $ 690,343, with about 70 percent of that appropriation, $ 481,753, paying the salaries of the six- member staff.
According to the most recent numbers available, the agency received 253
complaints in 2015, which resulted in the sanction of a single judge in 2016. Ethics complaints are kept secret by law from the public and can be disclosed only if the complaint results in sanctions.
Griffen filed complaints with the agency about the way the seven Supreme Court justices in April stripped him of his authority to hear capitalmurder cases or related litigation and asked the discipline commission to investigate the judge for potential misconduct.
Brill’s letter noted that the commission has been at odds with the judge before, when Griffen was a state Court of Appeals judge.
In 2005, before Sachar was hired, the commission concluded that it did not have the authority to sanction Griffen for discussing “disputed political or legal issues” because that speech is protected under the First Amendment.
Now, the commission is being asked to investigate competing accusations that involve potential First Amendment questions, according to the Brill letter.
Brill described several reasons why Sachar and White should bring in independent investigators.
The commission is independent from the Supreme Court, but its function requires it to work closely on questions of judicial conduct with the high court, particularly the chief justice, Brill noted, referring to his own experience with Sachar.
That “appropriate and necessary” communication between commission and court “would make it difficult for you to conduct a truly independent investigation,” Brill stated.
The unique nature of the complaints should also be considered, Brill wrote.
The commission has investigated allegations involving individual justices in the past but never against all seven members of the court. The required probe, with “sharply conflicting allegations, and the scope of the potential charges, would likely make an investigation lengthy and difficult,” according to the letter.
“A proper investigation would likely require interviews, or even depositions, of members of the court and others,” the letter states. “You would be hampered in conducting such interviews.”
In April, the justices — in an unsigned unanimous order — barred Griffen from deciding cases related to the death penalty. The order did not say why they were sanctioning him.
Griffen complained to the discipline commission that the justices should have told him why they were penalizing him and should have given him an opportunity to explain himself before imposing any sanctions.
The high court’s decree was issued three days after Griffen appeared at an antideath- penalty demonstration in front of the Governor’s Mansion in March. Arkansas was planning to execute eight convicted killers over 11 days, an expedited rate required because one of its execution drugs was nearing its expiration date.
But concurrent with Griffen’s appearance at the demonstration, he temporarily barred the state prison department from using that drug, vecuronium bromide, in response to a lawsuit filed by the department’s medical supplier. The company complained that a prison official had tricked it into selling the drug, then reneged on promises to return it to the company.
The high court also overturned Griffen’s temporary order, which would have forced the state to delay two planned executions.
Ultimately, four inmates were executed before another of the execution chemicals, expired on May 1.
Photographs from the Good Friday demonstration, which was organized by the New Millennium Church that Griffen pastors, show him lying on a cot with ropes wrapped around his legs and hands.
He said he was attempting to show his solidarity with Jesus, whose crucifixion was capital punishment imposed by the government.
Several legislators reacted angrily to the display, questioned Griffen’s impartiality as a judge, and began preparing for potential impeachment proceedings.