Griffen argues to proceed with suit over Supreme Court bar from death cases | Arkansas Blog

Griffen argues to proceed with suit over Supreme Court bar from death cases


THE START OF IT ALL: Wendell Griffen at prayer vigil.
  • THE START OF IT ALL: Wendell Griffen at prayer vigil.

Michael Laux,
the attorney for Circuit Judge Wendell Griffen, filed a 57-page response in federal court today objecting to the state's motion to dismiss Griffen's suit challenging the Arkansas Supreme Court's order permanently barring Griffen from hearing death penalty cases.

Griffen was removed after issuing a ruling in a property dispute the same day he participated in demonstrations at the Governor's Mansion and Capitol that included opposition to the death penalty. At the Mansion, Griffen lay bound on a cot, an action he said was meant on Good Friday to recall the crucifixion, but which observers took as representing an inmate awaiting death by chemical injection. That day, Griffen ruled in favor of a lawsuit by a pharmaceutical company objecting to the state's plan to use its drug for executions, contrary to the company's rules for use of the drug. It contended the state had obtained the drugs by dishonest means.

Griffen's decision, hastily stayed by the Supreme Court, had the effect of halting executions. In a decision without hearing from Griffen, the Supreme Court took the unusual step of deciding in private, without hearing arguments and, apparently based on news accounts, of removing Griffen from that case and any subsequent death penalty cases. He contends this is a violation of his First Amendment rights to speech. Another judge subsequently issued an identical ruling in the case. Griffen's ruling, however, set off a political storm and talk in the legislature of impeaching him.

The state says the suit should be dismissed saying the Supreme Court's action under its state supervisory authority is not reviewable by the federal court. Laux's brief argues otherwise and says that the order effectively partially impeached Griffen without equal protection and due process of the law.  He also contends he's been subject not only to a violation of his First Amendment rights but potentially of the Arkansas Religious Freedom Restoration Act by being punished by joining a church demonstration.

It's a difficult case. I've said before that, while the case law has clearly given judges broad First Amendment rights, Griffen hasn't always made wise choices in speaking so forcefully about issues that could and have landed in his court. The Arkansas Supreme Court, in turn, clearly acted improvidently in responding to political winds in its extraordinary actions against Griffen in this case. Many facts remain yet to be explored in companion dueling complaints before the state Judicial Discipline and Disability Commission about actions by Griffen and the Supreme Court. Who was providing the Supreme Court with information? How did they come to decisions they reached without the usual judicial process?

But .... I think Griffen has a steep hill to climb in overcoming the Supreme Court's claim to total authority over supervision of inferior courts. This, by the way, is why the legislature is pushing the constitutional amendment that would usurp rule-making authority from the court. Many legislators are happy to see Wendell Griffen put down, but not so happy about other court decisions.

Here's Laux's argument for Griffen in the case before Judge Jay Moody, who last week refused Griffen's motion that he get off the case for having once been a colleague on the Pulaski Circuit Court bench.

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