The mess made by the Arkansas Supreme Court; did self-interest play a role? | Arkansas Blog

Wednesday, January 24, 2018

The mess made by the Arkansas Supreme Court; did self-interest play a role?

Posted By on Wed, Jan 24, 2018 at 8:54 AM

THE ARKANSAS SUPREME COURT: What a mess they've made.
  • THE ARKANSAS SUPREME COURT: What a mess they've made.
The fallout is piling up fast from the Arkansas Supreme Court's ruling last week that the state Constitution means precisely what it says — the state of Arkansas cannot be sued in its courts. This is the doctrine of so-called sovereign immunity.

Already a suit against a Geology Commission action has been tossed. Monsanto's challenge of the dicamba ban is in peril. The ruling seems likely to nullify the city of Little Rock's effort to sue the Ethics Commission to make it punish opponents of incumbent Mayor Mark Stodola for raising money. Is a suit over FOI possible anymore (Secretary of State Mark Martin tried to stop one on this ground once)? Over illegal expenditures?

In a 5-2 decision, dissenting Justices Jo Hart and Karen Baker said it was disingenuous for the majority to suggest the ban only applied to cases where money damages were being sought. But the majority didn't say that explicitly, though they might have hinted as much in a conference on the case. They said the Constitution says "never." The end.

Now comes the matter of Circuit Judge Wendell Griffen in his federal lawsuit challenging the legality of the Arkansas Supreme Court ruling barring him from hearing any cases pertaining to the death penalty. This was their dubious, ex parte and highly political instant decisionby the court following Griffen's ruling in a property rights case that had the effect of preventing the state from using drugs it had obtained by deceit to kill inmates. Griffen presented an ill appearance in participating the same day he issued his ruling in an anti-death penalty demonstration. He contends his ruling wasn't influenced by that and that he has a First Amendment right to his beliefs, as well as protection under the state religious freedom act not to be punished for speech.  The court record of that case is interesting:

The Supreme Court asked in December that Griffen's suit be dismissed. They cited, among others, sovereign immunity. (That constitutional provision applies only in state courts, not federal courts, which still may consider federal constitutional violations.)

Griffen responded through his attorney Mike Laux that sovereign immunity didn't apply, in part because the Arkansas Religious Freedom Restoration Act waived sovereign immunity over expressions of religious faith.

Jan. 16, lawyers for the Supreme Court asked to file a reply brief, not normal procedure. Laux said he agreed. Jan. 18, federal Judge Jay Moody approved the request, without objection from Griffen.

Later that day, the Arkansas Supreme Court reversed 20 years of precedent and said the legislature did not have the power to waive the sovereign immunity provision in the Constitution, despite years of court cases providing circumstances when it could.

Tuesday, the Supreme Court filed its reply brief to Griffen's federal court case. In it, they cited their own decision last Thursday in support of the notion they could not be sued.

The Supreme Court cited a number of reasons why Griffen's lawsuit must fail (and I tend to think the odds are against him generally) but the interesting part is when the Arkansas Supreme Court relies on its own ruling to make its case. Griffen argues that the Supreme Court must be a defendant because of the violation of his rights under the state religious freedom statute. But the Supreme Court, through its lawyers, said a plaintiff can't go to federal court against a state officer unless such a suit is specifically authorized by state law. The Religious Freedom statute has no such provision.

Even if it did, the brief said, "the legislature is without power to authorize suit in state court." Authority cited for this statement included the Supreme Court decision in University of Arkansas v. Andrews last Thursday.

This takes judicial home cooking to a whole new level. Here's the Supreme Court's full argument
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The sad state of the Arkansas Supreme Court is exemplified by this mess. Its use of its own decision-making for personal purposes is almost the least of it against the obstacle it has thrown up against the people of Arkansas. They have been deprived constitutional rights of jury trial and compensation for wrongs when the wrongdoer is the state of Arkansas. Leaving a limited alternative with the overtly political Claims Commission and the legislators who control the checkbook is no comfort, whatever the Supreme Court majority said.

UPDATE: I asked Mike Laux about these developments.

He agreed that the Supreme Court decision last week nominally involves only state court, "but immunity cases are frequently used for dogmatic support whether defending in state or federal court."

But he said it is most concerning when it comes to Griffen's separate state claim alleging a violation of the Religious Freedom Restoration Act. Should the fedral judge reject federal constitutional claims and declines to exercise jurisdiction on the state claim (a course he took in declining to rule on the lawsuit over the debtor's prison class action case in Sherwood) Griffen would be forced back to state court. There, we can conclude from last week's case, he'd be summarily dismissed by the judges he's suing.

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