Up-dated June 2019
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.
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.
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.
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.
Judge Griffen files a complaint about the 7 justices of the Court with the Commission.
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.
The Commission’s executive director files a complaint against Judge Griffen based on media reports and the Court’s referral.
Due to the disqualification of the executive director and deputy director of the Commission, special counsel is retained to investigate the complaint against Judge Griffen.
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.”
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.
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.
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.
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).
The Commission denies Judge Griffen’s motion to dismiss the statement of allegations.
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.
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.
The Commission files a statement of allegations against the 7th justice.
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.
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.
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.
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.
U.S. Supreme Court denies Judge Griffen’s cert petition.
In an order granting the judge’s motion, the Commission dismisses the statement of allegations against Judge Griffen with prejudice based on “special counsel’s failure to prosecute the matter and bring it to completion” within the 18 months required by the Commission’s rules. The Commission explains that, “the path of this case since its inception has been beset with obstacles atypical to any previous case before the Commission, a perfect storm if you will” and emphasizes that its decision “is not intended to be a decision as to the merits.”