Six Supreme Court justices found to have violated ethics code | Arkansas Blog

Thursday, September 20, 2018

Six Supreme Court justices found to have violated ethics code

Posted By on Thu, Sep 20, 2018 at 4:02 PM

MORE FALLOUT: From Wendell Griffen's death penalty demonstration. - BRIAN CHILSON
  • BRIAN CHILSON
  • MORE FALLOUT: From Wendell Griffen's death penalty demonstration.

The Arkansas Judicial and Disability Commission has announced the filing of formal charges of ethics violations against six members of the Arkansas Supreme Court for their handling of a case involving Circuit Judge Wendell Griffen.

A three-member investigative panel, acting on a review by Special Counsel Brent Standridge, found that the Supreme Court had improperly ruled on an extraordinary complaint against Griffen without giving him proper notice. It dismissed his complaint that the court had engaged in improper ex parte communications with the office of Attorney General Leslie Rutledge The release didn't indicate what efforts might have been made to determine if communications had occurred. A political firestorm followed Griffen's actions and legislators began talking immediately about reprisals.

The complaint named Chief Justice Dan Kemp and Justices Robin Wynne, Rhonda Wood, Josephine Hart, Karen Baker and Courtney Goodson.

Justice Shawn Womack was named in Griffen's complaint.  The absence of a reference to him in today's release means the complaint against him is still pending. It's impossible to gauge the significance. It could mean further investigation is underway or it could mean that he's asked for additional time to respond. Womack is interesting because he's a former Republican senator who communicates regularly with members of the legislature. Did he talk to anyone that weekend about this case?

Kemp responded to the complaint that the Commission didn't have jurisdiction over the Supreme Court and also contended Griffen had received proper notice.

The justices have been given notice of the charges and have 30 days to respond. They can request a hearing before the full Judicial Discipline and Disability Commission. It would be a public trial of the charge that the court members acted "arbitrarily and capriciously" in manners that violated various standards of behavior.

Charges had been filed earlier against Griffen on a complaint filed by the Supreme Court for his participation in a demonstration against the death penalty April 14, 2017, the day he ruled in a property rights case by a drug distributor seeking to reclaim drugs it said the state had obtained dishonestly to carry out executions. Griffen's ruling in favor of the drug company had the effect of bringing executions to a halt. The Supreme Court stayed his order, removed him from the case and banned him from all death penalty-related cases. He sued over that action and also filed this ethics complaint.

Griffen ruled at 4:25 p.m. April 14. At 5:56 p.m., the attorney general sent notice of an emergency appeal to the clerk of the Supreme Court, a notice that went to opposing counsel but not to Griffen. At 11:38 a.m., the Supreme Court sent notice of a 3 p.m. deadline for responding, but did not include Griffen. Realizing the omission, Griffen was notified at 4:23 p.m. But it was sent to the email of his chambers over the weekend. He did not respond. At 10:33 a.m. Monday, April 17, the court issued an order removing Griffen from death penalty cases, initiating an ethics complaint against him and ordering a new plan for diving cases in the Sixth Circuit (Pulaski and Perry counties).

The Commission said Griffen didn't get a "meaningful" chance to respond. It said it wasn't reasonable to assume he'd see office email over the weekend. It also said he'd never been given a chance to respond to the blanket removal order, a matter that was brought up by no parties in the case.

Judges are presumed to be impartial, the complaint against the Supreme Court said.  A personal opinion of a judge, even if strongly expressed, is not enough to overcome this presumption, the panel said.

The opinion said the Supreme Court has superintending control over all courts.  But:

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Also the panel said:

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The panel didn't note that another judge, Alice Gray, was assigned the case and made an identical ruling to that made by Griffen on the rights of the drug distributor against those of the Correction Department.

Coincidentally, Griffen had complained recently of Standridge's seeming lack of action in the case and asked for a new special counsel.

Judge David Guthrie of El Dorado, Blake Hendrix, a Little Rock lawyer, and Angela Hopkins, a citizen member from Little Rock, comprised the panel that brought the charge. They were drawn from a nine-member group of alternate commissioners.

An ethics violation can produce a range of penalties from a caution to removal from office.

If the justices are found to have violated rules after a trial, they could appeal. They also could challenge the commission's authority to charge them in the first place. If they did, a special Supreme Court would have to be appointed to hear the request.

The nine-member Commission will meet tomorrow to set a date for a potential hearing. All nine will consider the case if it goes to trial.

Here's the full release.

I've asked for reactions from the Supreme Court and Griffen.

UPDATE: From Griffen’s lawyer Michael Laux:

“Judge Griffen is pleased with today’s decision primarily because it shows that his claims are meritorious. After all, the Eighth Circuit had previously overruled the District Court’s same merit finding.

“And yet, we are puzzled by the Commission’s finding that there were no ex parte communications, especially in light of its simultaneous conclusion that an ex parte hearing, in fact, occurred. How exactly does that work? Nonetheless, we are still analyzing the ruling and its implications, and we will issue a formal statement soon. “

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