Toss judge’s suit, justices ask
Motions say Griffen has no claim over death-penalty recusal
A federal lawsuit accusing Arkansas’ Supreme Court justices of violating laws by disqualifying Pulaski County Circuit Judge Wendell Griffen from presiding over death-penalty cases should be thrown out for failure to state a legitimate claim, attorneys for the justices argued Tuesday in court documents.
“This case is not about the death penalty, freedom of speech, the free exercise of religion, due process, or equal protection. It is about the authority of the Supreme Court of Arkansas to assure that litigants in the state’s courts receive the due process consideration to which they are entitled under the Constitution of the United States,” asserts the first of four motions filed Tuesday, the deadline for filing answers in the federal case.
It was filed by attorney Robert Peck of New York on behalf of the Supreme Court, Chief Justice Dan Kemp and Justices Robin Wynne and Shawn Womack. Different attorneys are representing various justices in the case, and other motions filed Tuesday on behalf of the other justices made similar requests.
Griffen, who is also a Baptist minister, filed suit Oct. 5 in response to the court’s April 17 directive, which came three days after he attended a prayer vigil outside the Governor’s Mansion in Little Rock in opposition to executions while lying on a cot “in solidarity with Jesus.”
Earlier on the day of the vigil, Griffen blocked the use of an execution drug in response to a lawsuit filed by the drug’s manufacturer. His temporary restraining order had the effect of halting the state’s efforts to begin a series of executions.
The circuit court lawsuit alleged that the state had obtained the drug only by intentionally failing to disclose that it would be used in executions.
In the federal lawsuit Griffen filed in October, he referred to the drug manufacturer’s lawsuit as “a property law case,” rather than a death-penalty case.
He also said he “has never made a public statement that has committed him to rule for or against any party in any case before him involving the death penalty.”
In a 33-page brief Peck filed Tuesday in the federal case, he argued that if Griffen were to preside over a death-penalty case, it would be overturned on due-pro-
cess grounds, requiring it to be retried by a different judge. He added, “Nothing in the Constitution or the statutes he invokes requires the [justices] to permit such a meaningless exercise.”
Instead, the Constitution “compels the course adopted by the Arkansas Supreme Court to protect the paramount rights of litigants in the state court system by assuring them a ‘fair trial in a fair tribunal,’” he wrote.
A blog post by Griffen, which he cited as an expression of his view that the death penalty is morally unjustifiable — not legally unjustifiable
— “explicitly addresses the issues in the case pending before him,” the motion to dismiss states.
It quoted the blog as saying, “Arkansas officials plan to commit a series of homicides.”
Despite Griffen’s assertion that he participated “in his personal capacity” in two death-penalty protests four days after the post, as well as a rally against the death penalty at the state Capitol and the prayer vigil at the mansion, “there can be no doubt that his activities conveyed at least an appearance that it was a political protest and an appearance of bias sufficient to warrant recusal,” the filing on behalf of the justices states.
“Because Judge Griffen’s
extraordinary words and actions create the unmistakable impression that he could not fairly and dispassionately adjudicate death penalty cases, the Arkansas Supreme Court ordered him recused from cases involving capital punishment,” states another brief, this one filed on behalf of Justice Courtney Goodson.
It adds, “This recusal order was compelled by Arkansas’ Code of Judicial Conduct, which mirrors the code on the books in almost every state. The order is sustained by centuries of practice requiring the recusal of judges whose words and actions indicate bias.”
Despite Griffen’s theories that the recusal order violated his civil rights, “Judges do not
have a constitutional right to preside over cases where their words or actions indicate they are biased, and states may (indeed, must) only assign cases to unbiased judges,” says that filing, written by attorneys Matt Keil of Texarkana and David Thompson of Washington, D.C.
After Griffen issued a restraining order in response to the circuit court lawsuit, attorneys for the state asked the Supreme Court to vacate the order and remove Griffen from the case because he demonstrated bias, couldn’t avoid an appearance of unfairness and wasn’t impartial.
“There cannot be any doubt that the actions at the center of this lawsuit constituted the discharge of judicial
obligations,” Peck wrote, noting that the Arkansas Constitution gives the Supreme Court “general superintending control over all courts of the state.”
Peck also notes that Griffen remains a circuit judge and has suffered no decrease in title, salary or benefits.
“Instead, he simply cannot preside in any death-penalty cases,” the brief says, adding, “No judge, however, has a right to preside in any particular case or type of case.”
While Griffen contends the Supreme Court’s order has “impugned” his “reputation for judicial integrity, impartiality, and competence,” Peck said that assertion “misapprehends the meaning of an order of recusal.”