Wendell Griffen declines to get off Little Rock school takeover lawsuit | Arkansas Blog

Thursday, March 12, 2015

Wendell Griffen declines to get off Little Rock school takeover lawsuit

Posted By on Thu, Mar 12, 2015 at 2:44 PM

click to enlarge WENDELL GRIFFEN
Circuit Judge Wendell Griffen today denied a motion by defendants that he not preside over the lawsuit challenging the state takeover of the Little Rock School District.

The lawsuit — by former School Board members and residents of the district — says the state Board of Education decision was arbitrary and not supported by law. The case was assigned by random draw to Griffen who wrote an article posted on the Arkansas Times blog the morning of the state Board vote opposing such a takeover.

The state defendants asked the judge to recuse. It said his writing presented at least the appearance of partiality.

The judge didn't see it that way in a 25-page order that also reprinted his earlier statement in full.

He said he found no basis for a recusal motion "in fact or law."

The judge said his statements about the issue don't demonstrate an "unwillingness to apply the law in an even-handed way to the parties in this litigation. He also said he had not made an extrajudicial statement during the pendency of the litigation. He also said he'd made no statement that indicated he'd rule in a particular way outside a judicial proceeding, which he says is the key point about public utterances.

He said it would be a "dereliction of duty" for him to get off the case. 

The judge lectured the defendants on impartiality. It "means willingness to hear and decide controversies diligently and by applying the law equally to all parties. Impartiality has never been held to require ignorance about or isolation from the affairs of life. The fact that a judge has expressed views about a subject does not disable him or her from being able to apply the law equally to all parties concerning that subject."

Perhaps not. But such statements DO give rise to a perception on the part of observers that a judge will go with the side for which he's expressed a preference.

Griffen cited Supreme Court Justice Antonin Scalia as having similarly defended the ability of judges to make remarks on controversial subjects that might someday figure in lawsuits. He cited Scalia's decision in a Minnesota case that said the appearance of impartiality was not a compelling state interest and thus the court struck down a rule that limited speech by judicial candidates. 

Griffen said the disqualification rule applied to statements during a proceeding or, when outside a proceeding, that they indicated a commitment to a particular result. He said neither circumstance applied to his remark.

He also said judges might change their mind on issue after hearing arguments. He said none of his criticism dealt with the issue of the state Board's legal authority to dissolve a school board or whether such an action would be arbitrary and capricious.

Griffen wrote that the recusal motion was a "naked ploy by defendants to have this lawsuit heard and decided by an impartial judge they favor, as opposed to an impartial judge with whom they disagree."

Several lawyers have indicated to me success of an appeal of such a decision is unlikely should it be tried. Lawyers for the plaintiffs in the suit, who include former Circuit Judges Marion Humphrey and Willard Proctor, said they saw no need for Griffen to get off the case.

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