Death penalty controversy in Arkansas

Top judicial ethics stories of 2018

A 2017 controversy about the death penalty in Arkansas resulted in cross judicial discipline complaints by a circuit court judge and the supreme court justices and other legal proceedings.  In 2018, some of those cases were resolved although some remain pending for resolution in 2019.  A timeline of the events follows.

2017

April 10
Judge Wendell Griffen writes a blog post stating, in part, “[u]sing medications designed for treating illness and preserving life to engage in . . . premeditated and deliberate killing is not morally justifiable,” and referring to a series of executions that the state will carry out “[b]eginning a week from today, and three days after Good Friday—on Monday, April 17.”

April 14 (Good Friday)
~ 2:00 p.m. — Judge Griffen participates in an anti-death penalty rally on the steps of the Arkansas Capitol.
4:22 p.m. — McKesson Medical-Surgical, Inc., a distributor of the drug vecuronium bromide, files a lawsuit and moves for a temporary restraining order to prevent the state from using its drug in scheduled executions.
4:37 p.m. — Judge Griffen grants the motion.
~5:30 p.m. — Judge Griffen attends a prayer vigil with his church outside the Governor’s mansion.

April 15
The state attorney general files an emergency petition for a writ of mandamus with the Arkansas Supreme Court, seeking to vacate the TRO and remove Judge Griffen from the vecuronium bromide case.

April 17
In an order, the Court immediately and permanently re-assigns all cases involving the death penalty or the state’s execution protocol, whether civil or criminal, that had been assigned to Judge Griffen and refers Judge Griffen to the Commission on Judicial Discipline & Disability.

April 27
Judge Griffen files a complaint about the 7 justices of the Court with the Commission.

September
Judge Griffen files a federal lawsuit alleging that the Court and the 7 individual justices, by entering the April 17th order, retaliated against him for his exercise of his First Amendment rights, violated the Arkansas Religious Freedom Restoration Act, denied his procedural due process rights, violated equal protection, and constituted a civil conspiracy.

2018
April 12
The federal district court denies the justices’ motions to dismiss Judge Griffen’s lawsuit, ruling that “the Court cannot state that Plaintiff has failed to state plausible claims for relief.”  It does dismiss his claims against the Court itself as barred by sovereign immunity and held that the judge is “precluded from seeking injunctive relief against the individual Justices in their official capacities pursuant to Section 1983.”

April 13
In discovery, Judge Griffen seeks from the justices all documents and communications regarding him, his conduct in death penalty cases, his religion or race, his public statements about the death penalty, his participation in anti-death penalty rallies, his “fitness or perceived fitness to serve as a judge,” his grant of the TRO, his potential impeachment, the request for his recusal, and the April 2017 order.

April 24
The justices petition the U.S. Court of Appeals for the 8th Circuit for a writ of mandamus to vacate the district court’s order denying their motions to dismiss.

June 8
In a statement of allegations, an investigative panel of the Commission on Judicial Discipline & Disability alleges that Judge Griffen committed misconduct by failing to disqualify himself from the vecuronium bromide case and making comments in opposition to the death penalty on his social and electronic media sites.

July 2
Vacating the district court’s order, the 8th Circuit holds that Judge Griffen’s federal lawsuit fails to state any plausible claims for relief and remands the case to be dismissed.  In re Kemp, 894 F.3d 900 (8th Circuit 2018).

August 20
The Commission denies Judge Griffen’s motion to dismiss the statement of allegations.

August 29
The 8th Circuit denies Judge Griffen’s motion for re-hearing and re-hearing en banc of its decision directing that his lawsuit be dismissed.

September 20
In statements of allegations, an investigative panel of the Commission alleges that 6 of the 7 justices acted arbitrarily and capriciously by entering the April 2017 order.

October 4
The Commission files a statement of allegations against the 7th justice.

October 17
In an expedited petition for a writ of mandamus, prohibition, and/or certiorari, 5 of the justices argue that the Commission has no jurisdiction to issue a complaint against them based on a ruling of law.

November 22
The Commission dismisses the statements of allegations filed against the 7 justices, finding that the April 2017 order was a legal conclusion or application of the law over which the Commission had no jurisdiction in the absence of allegations of fraud, corrupt motive, or bad faith.

November 27
Judge Griffen files a petition for writ of certiorari with the U.S. Supreme Court from the 8th Circuit decision directing that his lawsuit be dismissed.

December 19
The Arkansas Supreme Court, with special justices appointed by the governor after the justices disqualified themselves, finds that the justices’ petition for a writ is moot based on the Commission’s dismissal of the allegations against them.

2019

February 19
U.S. Supreme Court denies Judge Griffen’s cert petition.

March 22
The hearing on the statement of allegations against Judge Griffen is scheduled to begin.

Throwback Thursday

20 years ago this month:

  • Pursuant to an agreement, the California Commission on Judicial Performance publicly admonished a judge for committing fraud during settlement negotiations in a suit in which he was party. Inquiry Concerning Blackwell, Decision & Order (California Commission on Judicial Performance February 23, 1999).
  • The California Commission on Judicial Performance publicly censured a judge for denying due process in a civil trial, argumentative questioning of a minor in a contempt proceeding, and labeling a lawyer “unethical and dishonest.” Inquiry Concerning Broadman, Decision & Order (California Commission on Judicial Performance February 26, 1999).
  • Affirming the recommendation of the Judicial Qualifications Commission, the Florida Supreme Court removed a judge from office for mishandling an appeal before becoming a judge, back-dating the certificate of service on a brief, making serious and substantial falsehoods in a deposition she gave in the malpractice suit arising out of her mishandling of the appeal, overcharging her client and misrepresenting to her client how much work she performed on the appeal, depositing some of the cash payments from the client into her own operating account and spending the money rather than depositing it into a trust account, and failing to advise parties when an attorney who was representing her in the pending, personal civil litigation appeared before her. In re Ford-Kaus, 730 So. 2d 269 (Florida 1999).
  • The Mississippi Supreme Court privately reprimanded a judge for inappropriately remarking to a deputy clerk that he noticed that she checked out men. Commission on Judicial Performance v. Justice Court Judge R.R., 732 So. 2d 224 (Mississippi 1999).
  • Pursuant to the presentment filed by the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court publicly reprimanded a retired judge for driving while intoxicated. In the Matter of D’Ambrosio, 723 A.2d 943 (New Jersey February 1999).

A sampling of recent judicial ethics advisory opinions

  • A judge may participate, identified as a judge and wearing a robe, in a state agency video explaining successful truancy measures for juveniles. West Virginia Opinion 2018-19.
  • Judges must assume their attendance at a march, rally, or protest will be scrutinized, publicized, and depicted in reports of the event, including in press coverage or on social media, and consider whether their participation would appear to a reasonable person to undermine their independence, integrity, or impartiality or demean the judicial office, which is an objective standard. Unless an event is directly related to the law, the legal system, or the administration of justice, judges should refrain from publicizing their affiliation with the judicial branch when participating.  The same restrictions apply to judges’ personal staff, courtroom clerks, and court managers.  Arizona Opinion 2018-6.
  • A judicial official may not act as a reference for a support enforcement officer who regularly testifies before him and is applying for a promotion Connecticut Informal Opinion 2018-17.
  • A judge may host a “meet & greet” in her home for the new dean of the Oklahoma City University law school if there will be no fund-raising. Oklahoma Opinion 2018-10.
  • A judge may serve on a committee that interviews applicants to his alma mater and recommend a student for admission as long as his title is not mentioned in the recommendation. Florida Opinion 2018-31.
  • A judicial official may not accept an award at a fund-raising dinner for a non-profit human relations organization that promotes inclusion and acceptance through education, advocacy, and building respectful and just communities. Connecticut Informal Opinion 2018-16.
  • A judge may accept a raffle prize valued at approximately $500 at a charity event hosted by the probation department, which regularly appears in her court. New York Opinion 2018-133.
  • A judge may not participate in an interview with a former juror writing a book about a case over which she presided when related proceedings remain pending or impending. New York Opinion 2018-134.
  • A judge may serve as a manager in a real estate investment limited liability company formed to manage his real estate investments and those of close family members but should avoid that role if other members could easily undertake the duties and may not serve if doing so would require frequent disqualification. North Carolina Formal Opinion 2018-1.
  • A judge may serve as an executor/administrator for a great nephew’s estate when they had a close family relationship and may receive the statutorily mandated compensation. West Virginia Opinion 2018-4.
  • A magistrate may participate in a street/block yard sale in his neighborhood. West Virginia Opinion 2018-8.
  • A circuit court judge’s spouse may be the executive director of an organization that provides domestic violence victim advocacy services, including in proceedings before the circuit court, but they judge should not discuss with her the organization’s policies, activities, or clients or attend the organization’s events and should advise her not to promote or comment on their relationship in a job interview or any aspect of her duties. Wyoming Opinion 2018-2.
  • Judicial candidates must disavow third-party/PAC advertisements that contain statements that are false or misleading; that indicate the candidate would be biased in favor of or against an individual, group, or legal issue; or that do not accurately reflect the duties and role of a judge. West Virginia Opinion 2018-22.

 

Throwback Thursday

25 years ago this month:

  • Accepting the findings of fact and legal conclusions of the Judicial Conduct Commission, the Arizona Supreme Court removed a judge from office for (1) reinstating charges brought by 2 of his friends against his election opponent and issuing a summons requiring the opponent to appear in his court; (2) after a private meeting with a defendant’s family and employer, telling the investigating police officer that he had strong reason to believe this was a case of mistaken identity; (3) issuing a criminal complaint against the wife of a married couple who owed him about $300 in unpaid rent, plus damages for breaching a lease for office space in a building owned by the judge; and (4) presiding over a landlord-tenant dispute in which the defendant had previously filed a criminal complaint against the judge, accusing him of fraudulently registering to vote in violation of state law. In re Peck, 867 P.2d 853 (Arizona 1994).
  • In a letter, the California Commission on Judicial Performance publicly reproved a judge for making improper and offensive remarks while presiding in cases and for abusive and demeaning language and behavior toward court staff. Letter to Judge Stevens (California Commission on Judicial Performance February 14, 1994).
  • Adopting the findings and recommendations of the Judicial Qualifications Commission, the Florida Supreme Court publicly reprimanded a judge who sent a letter on his official court stationery to a federal judge as a character witness and reference on behalf of a defendant who had pled guilty in federal court. Inquiry Concerning Abel, 632 So. 2d 600 (Florida 1994).
  • Adopting the findings and conclusions of the Judicial Qualifications Commission, the Georgia Supreme Court publicly reprimanded a judge and ordered him suspended for 90 days without pay for (1) failing to process or dispose of citations filed by certain rangers of the Game and Fish Division of the state Department of Natural Resources; (2) stating that there were too many laws dealing with fish and game violations, that he did not agree with those laws, that he could not stand a particular DNR officer, and that he was not accountable to anyone; (3) dismissing citations without hearing evidence; (4) stating that he would not accept cases initiated by a particular DNR ranger; and (5) failing to forthrightly address the charges filed by the Commission. Inquiry Concerning Cannon, 440 S.E.2d 169 (Georgia 1994).

 

2018 state judicial discipline sanctions

Top judicial ethics stories of 2018

In 2018, as a result of state disciplinary proceedings:

  • 7 judges (or a former judge in 1 case) were removed from office.
  • 25 judges resigned or retired in lieu of discipline and agreed to never serve again pursuant to public agreements with conduct commissions.
  • 1 judge agreed to resign and was publicly admonished.
  • 11 judges were suspended without pay as a final sanction. 1 suspension was indefinite and included a public censure.  The other suspensions ranged from 6 days to 3 years and included suspensions for 15 days, 30 days, 35 days (plus a public censure), 45 days (plus a public censure), 60 days, 3 months (plus a $1,000 fine), 6 months, and 180 days (to be reduced to 90 days if the judge agreed to conditions such a mentor and monthly reports on pending cases).
  • 84 judges (or former judges in 11 cases) received public censures, reprimands, admonishments, or warnings. There were:
    • 15 public censures (2 former judges were barred from serving in judicial office as well as censured; 1 censure included a $2,000 fine, 1 included an agreement not to run for re-election, and 3 included orders of additional education)
    • 39 public reprimands (1 included a suspension without loss of compensation, 9 included additional conditions)
    • 23 public admonishments (in 6 cases, additional education was also ordered)
    • 7 public warnings (5 also ordered additional education)
  • 3 cease and desist orders.
  • 5 former judges were disbarred or their law licenses were suspended in attorney discipline proceedings for conduct while they were judges.

Approximately 57% of the sanctions were entered pursuant to an agreement.  This count does not include pending recommendations or decisions pending on appeal, and “judge” refers generically to judicial officers, including justices, magistrates, commissioners, and hearing officers.

The counts for 2017 is available in a previous post.