Griffen's attorneys say Supreme Court justices' alleged procedural error should prompt default judgment | Arkansas Blog

Friday, May 4, 2018

Griffen's attorneys say Supreme Court justices' alleged procedural error should prompt default judgment

Posted By on Fri, May 4, 2018 at 11:50 AM

click to enlarge JUDGE VS JUDGE: Wendell Griffen (left) and attorney Mike Laux (file photo). - BRIAN CHILSON
  • Brian Chilson
  • JUDGE VS JUDGE: Wendell Griffen (left) and attorney Mike Laux (file photo).

Attorneys for Pulaski County Circuit Judge Wendell Griffen on Friday filed a motion for default in Griffen's federal lawsuit against the seven justices of the Arkansas Supreme Court, alleging the defendants had failed to answer Griffen's complaint before a deadline prescribed by federal rules of civil procedure.

The motion notes that U.S. District Judge James Moody ruled on April 12 that Griffen's lawsuit against the individual justices could proceed (though Moody dismissed the Supreme Court as a whole from the suit, citing state sovereign immunity). On April 25, the justices petitioned the U.S. Eighth Circuit Court of Appeals for a writ of mandamus, asking the appellate court to reverse Moody and halt Griffen's suit. But, Griffen's lawyers say, the justices never answered Griffen's complaint before petitioning the Eighth Circuit.

In a press release distributed by attorney Mike Laux, they state:
Federal Rule of Civil Procedure 12(a)(4)(A) “Effect of a Motion” provides that once a defendants’ motion to dismiss is denied, that defendant must answer the plaintiff’s complaint within 14 days of the denial. Here, the District Court denied the Justices’ motion to dismiss on April 12, 2018, meaning they were required by the federal rules to file an answer on or before April 26, 2018. That date has come and gone without any answer. Thus, the Justices have blown off that important deadline, jeopardizing their very expensive defense. 
Laux and the other attorneys also poked the justices for hiring out-of-state counsel at taxpayer expense, citing their "retention of 11 expensive lawyers who have rung up close to $200,000 in legal bills in just a few months."

Griffen's fight with the state Supreme Court began about a year ago, when he ignited controversy by participating in a Good Friday protest against the death penalty in front of the Governor's Mansion. Around the same time, Griffen ruled on a case that had the effect of delaying the executions. (After he was removed and a new circuit judge appointed, that judge made the same conclusion on the same facts.) The Supreme Court subsequently removed Griffen from hearing death penalty cases and instigated a disciplinary investigation.

In October, Griffen filed a federal civil rights lawsuit against the Supreme Court and its individual justices, saying their actions violated his First Amendment rights of free speech and religious expression. Griffen also alleges racial bias in the court's actions that violated the Fourteenth Amendment. The justices say Griffen's allegations are baseless and that removing the circuit judge from death penalty cases was clearly warranted.

The full release from Laux and the other attorneys:
JUDGE GRIFFEN MOVES FOR DEFAULT AGAINST AR SUPREME COURT JUSTICES FOR FAILING TO ANSWER HIS COMPLAINT

Despite the retention of 11 expensive lawyers who have rung up close to $200,000 in legal bills in just a few months, the Arkansas Supreme Court Justices have failed to answer Judge Griffen’s complaint prior to petitioning the 8th Circuit for the extraordinary relief of a writ of mandamus. This is a very costly error, especially considering the $975 per hour just one of those out-of-state lawyers (NYC, DC, etc.) is charging Arkansas taxpayers. Consequently, we moved for default against the Justices yesterday before Judge James Moody in the District Court.

Federal Rule of Civil Procedure 12(a)(4)(A) “Effect of a Motion” provides that once a defendants’ motion to dismiss is denied, that defendant must answer the plaintiff’s complaint within 14 days of the denial. Here, the District Court denied the Justices’ motion to dismiss on April 12, 2018, meaning they were required by the federal rules to file an answer on or before April 26, 2018. That date has come and gone without any answer. Thus, the Justices have blown off that important deadline, jeopardizing their very expensive defense. This is a major error that threatens to squander the $200,000 that Arkansas taxpayers have already kicked in to their defense, while awarding Judge Griffen the relief he seeks.

Federal Rule of Civil Procedure 55(a) “Entering a Default” provides that “[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default.”

Despite the hollow charge that Judge Griffen’s complaint is “without merit,” it is clear that the Justices are having big troubles with their defense. We knew that they were frightened of being deposed but this latest misstep indicates that they also have major concerns about answering Judge Griffen’s well-pled, factually-detailed and clearly meritorious complaint. So determined are they to avoid discovery, that they have dropped the ball in a most basic way with this latest oversight. Even if they are able to have the default vacated, they cannot run forever.

Judge Griffen’s complaint alleges violations of his First Amendment rights of free speech and freedom of religious expression, which are bedrock rights guaranteed by the U.S.
Constitution. It also alleges violations of the Procedural Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution. Further, it alleges a breach of the ARFRA, and civil conspiracy in violation of 42 U.S.C. § 1985.

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