Attorneys for the state Education Department
objected yesterday afternoon to Judge Wendell Griffen's
refusal to recuse from the lawsuit challenging the state Board of Education'
s takeover of the Little Rock School District.
In a letter. the state said the judge had not given the full five days he'd promised to reply to the plaintiffs' response to the state's recusal motion. It also said a defendant added to the case — Baker Kurrus, a volunteer assisting Education Commissioner Tony Wood on financial matters in the district — should be afforded time to respond, particularly since the judge yesterday scheduled a temporary injunction hearing March 18.
The state also said it intended to file a motion to dismiss the lawsuit that will say the state has sovereign immunity from the suit.
It was filed after the judge's order, but the state's reply brief reiterated the belief that the judge had made comments that demanded he not hear the case. It said it didn't allege a specific violation of the Code of Judicial Conduct, but said the code also speaks of the judge's obligation to "avoid both impropriety and the appearance of impropriety" and to "aspire at all times to conduct that ensures the greatest public confidence in their impartiality."
The state said the court may believe it can be fair and impartial. "However, when viewed objectively, the court's Jan. 28, 2015 statements point to a bias in favor of the plaintiff's position. At minimum, those statements point to an appearance of unfairness and partiality." The state said court precedent held that judges must avoid all appearances of unfairness.
The state noted that the judge had written in a letter posted on the Arkansas Blog that the state Board should not remove the Little Rock School Board and referred to that action the day the vote was taken as an "attempt to disenfranchise voters," "taxation without representation," actions rooted in "naked hypocrisy" and an "act of tyranny." Griffen concluded by saying "history will not be kind to the people who seek to have the current Little Rock School Board dissolved."
The lawsuit, assigned randomly to Griffen, argues against the dissolution of the School Board and says the action was arbitrary and capricious. Plaintiffs are some former school board members and residents of the district.
Should Griffen proceed with his hearing next week and grant an injunction, it would upend the ongoing state takeover process and presumably reinstate the School Board.
This is the state's letter to the judge.
This is the state's legal argument.
UPDATE: David Stewart,
the retired executive director of the Arkansas Judicial Discipline and Disability Commission
, sent observations on Griffen's decision to stay on the case. He's not complimentary:
Historically, Judge Griffen has brewed for every 1st Amendment fight he can generate. His proclivity for social and political commentary as a judge has always been his platform. Perhaps he does not believe any other platform would be available to him with as much credibility and notoriety. In any event, the current controversy is made to order for him.
Having read his order, it seems to me he has missed the point and misstated the ethical standards he is bound to observe. He thinks Justice Scalia has paved his way to say whatever he wants and never disqualify unless the case is already filed in his court and he has announced a decision before the case is even tried.
His public letter published on January 28 was his 1st Amendment right, however unseemly it may be for a judge to utter. However, it is laughable for him to conclude that it was not foreseeable that a lawsuit would be filed in Pulaski County if state takeover occurred. Equally laughable is his conclusion that he did not prejudge the legality (no credible evidence, etc.) or propriety of such a takeover in his January 28 statement.
I don't question his conclusion that both the school district's poor history and the present takeover is tainted with abject racism. The presence or absence of racism is not the issue.The real issue is whether his statements have conveyed the appearance that he cannot be impartial in weighing the evidence and following the law. His January 28 statement must be evaluated as a body of work to determine it's impact on appearances. For him to split hairs and say his statement does not expressly commit him to a legal result is sophistry.
Scalia only said that a state cannot prohibit an elected judge from publicly commenting on social and political issues, (not just one case), during the course of a political campaign. That decision also indicated that the cure for any appearance of impartiality for those statements is for the judge to disqualify, even if not because of an actual expressed bias. Appearances do matter.
In my opinion Judge Griffen wants this fight. He has waited a long time for a fight like this, and it will accomplish nothing. Any other judge would have immediately disqualified from the case assignment under the present circumstances and not waited for a party to ask for it. And rightfully so. Such is the fallout from a judge commenting on the social and political events of the day.