Judge told again: Lawsuit against justices dismissed

The 8th U.S. Circuit Court of Appeals on Wednesday refused to reconsider its July 2 dismissal of Pulaski County Circuit Judge Wendell Griffen’s lawsuit against the Arkansas Supreme Court.

An order filed in Griffen’s federal case in Little Rock denied not only Griffen’s request for reconsideration by the three-judge panel that ordered the case thrown out last month, but also closed the book on Griffen’s effort to have the issue examined by the full 8th Circuit.

The order didn’t elaborate, but it notes that one of the panel judges, U.S. Circuit Judge Jane Kelly of Cedar Rapids, Iowa, would have granted Griffen’s request for a rehearing before the full 11-member court. Kelly issued a dissent to the majority’s July 2 order, saying her fellow panelists — Steven M. Colloton of Des Moines and Duane Benton of Kansas City, Mo. — jumped the gun on dismissing the case. She said the Arkansas Supreme Court justices had not yet exhausted all means of obtaining relief at the district court level.

The majority opinion directed U.S. District Judge James Moody Jr., who had allowed Griffen’s lawsuit to proceed against the justices individually, in their official capacities, to dismiss the case altogether. Moody had

dismissed only the court itself, saying it was protected from lawsuits by sovereign immunity.

Griffen’s lawsuit, filed Oct. 5, contended the justices violated his constitutional rights when they permanently barred him on April 17, 2017, from presiding over death-penalty cases. The ban was issued three days after Griffen lay on a cot at the Governor’s Mansion during a Good Friday protest against the death penalty. Earlier that day, he had issued an order preventing the state from using one of its three lethal-injection drugs, in response to a lawsuit filed by the drug’s distributor, McKesson Corp.

Griffen’s order was overturned by the Arkansas Supreme Court and assigned to another judge, who reached the same conclusion as Griffen and then was also overturned by the justices.

The majority opinion of the 8th Circuit panel said in July that while Griffen claimed he has a right to discharge the duties that voters elected him to do, “the voters elected him to discharge powers circumscribed by Arkansas law. And Arkansas law states: ‘No judge shall sit on the determination of any case in which he or she is interested in the outcome.’”

Robert Peck, a New York attorney who represented the Supreme Court justices in the lawsuit, said last month that he was pleased with the 8th Circuit’s dismissal of “this ill-conceived lawsuit.” He said Griffen “failed to make a viable claim that his rights were infringed.”

Peck had pursued an unusual petition on behalf of the justices, complaining that by allowing Griffen’s lawsuit to proceed and the pretrial information gathering process to begin, Moody had 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 petition was unusual in that it asked the 8th Circuit to intervene for the purpose of requiring a lower court to follow the law. It sought to stave off depositions about the justices’ internal deliberations and complained that materials Griffen sought aren’t matters of public record.

Griffen’s attorneys couldn’t be reached for comment Wednesday, but have indicated that they are likely to appeal to the U.S. Supreme Court.

Meanwhile, Griffen, who is also a Baptist minister, is facing nine ethics charges filed against him by the state Judicial Discipline and Disability Commission over his public protests against the death penalty. Last week, the commission refused to dismiss the charges at the request of Griffen’s attorneys, who described his actions as constitutionally protected free speech.

The commission said that Griffen’s conduct “failed to uphold and promote the independence, integrity, and impartiality of the judiciary and failed to avoid not only impropriety, but the appearance of impropriety. Actual bias is not necessary.”

In its order Tuesday denying the rehearing requests, the 8th Circuit noted that Chief U.S. Circuit Judge Lavenski Smith of Little Rock didn’t participate in considering or deciding the matter.