GOOD FRIDAY: Wendell Griffen at protest that led to ethics finding, Supreme Court order and today's appeals court ruling. BRIAN CHILSON

The 8th U.S. Circuit Court of Appeals today in a 2-1 decision dismissed Circuit Judge Wendell Griffen’s lawsuit claiming a violation of his constitutional rights by the Arkansas Supreme Court’s order that he not participate in death penalty cases.

Federal District Judge Jay Moody had dismissed Griffen’s complaint against the individual justices on grounds of sovereign immunity, but had declined to dismiss the entire lawsuit. The 8th Circuit reversed Moody today.

Advertisement

Griffen still has a judicial ethics complaint pending against the Supreme Court for its actions in this case, which began with his ruling in favor of a drug company seeking to stop a  product from being used in Arkansas executions. Griffen ruled for the drug distributor the same day he participated in a Good Friday demonstration outside the Governor’s Mansion against capital punishment. There was a political outcry. The Supreme Court subsequently removed Griffen from death penalty cases. Incidentally, another judge hearing the same facts made the same ruling Griffen did — that its property rights had been violated by the state’s dishonest means of obtaining drugs for a use for which they weren’t intended.

I’m seeking reaction.

Advertisement

UPDATE: From Michael Laux, Griffen’s lawyer:

The faulty legal arguments and sleight of hand contained in the Justices’ writ was unfortunately embraced by a panel of the 8th Circuit, though we are buoyed by the thoughtful dissent penned by Judge Kelly. While we are indeed disappointed by the granting of the extraordinary writ, we will petition the court for an en banc review of the matter. We have known since day one that this was going to be an uphill battle every step of the way. Cases like this are never cakewalks. But we are undaunted and prepared to continue this important fight for this great judge. 

Griffen’s lawsuit sought to discover internal communications by the justices. They argued this threatened judicial independence.

Advertisement

The 8th Circuit said Griffen’s 1st Amendment complaint failed because the court hadn’t restricted his right as a citizen, only as a public official. It cited many precedents and said appellate courts have often reassigned cases on account of the appearance of impartiality created by statements of judges. The opinion also said Griffen had suffered no adverse employment action. “Minor changes in duties” do not constitute adverse action, it said,. After finding no plausible free speech claim, the 8th Circuit took up his claim of a religion abridgment. But it said of the Supreme Court order:

Order 17-155 does not prohibit Judge Griffen’s free exercise of religion: it does not “compel affirmation of religious belief,” “punish the expression of religious doctrines,” “impose special disabilities on the basis of religious views,” or “lend its power to one or the other side in controversies over religious authority.”  Rather, the order reflects neutral principles applicable to all judges who exhibit potential for bias

Griffen also cited state law on religious freedom, but failed there, too.

Advertisement

Judge Griffen asserts a violation of the Arkansas Religious Freedom Restoration Act (RFRA) which prohibits the government from substantially urdening “a person’s exercise ofreligion” unlessthe burden is “[t]he least restrictive means of furthering [a] compelling governmental interest.”

….Even assuming that Order 17-155 substantially burdens Judge Griffen’s exercise of religion, the claim fails. Arkansas has compelling interests in the impartiality of the judiciary and in public perception of an impartial judiciary. 

The 8th Circuit also rejected a due process claim. It said Griffen has a property interest in his job, but not in presiding over different kinds of cases.

Even if Judge Griffen had a property interest in discharging his job duties, those duties do not include presiding over cases where he has actual or apparent bias

Griffen also failed, the court said, in an equal protection argument.

Advertisement

Griffen argued that justices had conspired against him, but the 8th Circuit said, absent a constitutional violation, there’s no basis for a conspiracy claim. It ordered the case dismissed.

Judge Jane Kelly dismissed on a procedural ground, the state’s claim for an order of mandamus making the judge dismiss the case.

Advertisement

If the petitioners were seeking mandamus to quash a discovery order that would compel disclosure of the internal deliberations of the Arkansas Supreme Court, their petition would be well taken. But that is not what the petitioners seek. Instead, they ask for—and the court today grants them—reversal of the district court’s denial of their motion to dismiss. The petitioners did not ask the district court to limit the scope of discovery, or  to shield disclosed records from public view, They only asked the district court to dismiss Judge Griffen’s suit on the merits. Mandamus is appropriate only when the petitioners “have no other adequate means to attain the relief desired.  Because the petitioners have not attempted to exhaust their “adequate means” in the district court, I cannot conclude that mandamus is “the only means of forestalling intrusion by the federal judiciary on a delicate area of federal-state relations.”

The ruling.

Be a part of something bigger

As a reader of the Arkansas Times, you know we’re dedicated to bringing you tough, determined, and feisty journalism that holds the powerful accountable. For 50 years, we've been fighting the good fight in Little Rock and beyond – with your support, we can do even more. By becoming a subscriber or donating as little as $1 to our efforts, you'll not only have access to all of our articles, but you'll also be helping us hire more writers to expand our coverage and continue to bring important stories to light. With over 63,000 Facebook followers, 58,000 Twitter followers, 35,000 Arkansas blog followers, and 70,000 daily email blasts, it's clear that our readers value our great journalism. Join us in the fight for truth.

Previous article Hutchinson names J.D. Neeley of Camden to Game and Fish Commission Next article Marijuana commission to be live-streamed