Thursday, October 18, 2018
Last year, on a Friday in April, Judge Wendell Griffen participated in an anti-death penalty rally on the steps of the Arkansas capital building and a prayer vigil in front of the governor's mansion. Later the same day, he issued a temporary restraining order to a pharmaceutical company requesting that the state of Arkansas return the drug the state used in carrying out capital punishment. Moving quickly, on Saturday, the Supreme Court of Arkansas heard an appeal of the TRO, reversed the order, and by Monday had directed the lower court to recuse Judge Griffen from the docket of all death penalty cases.
The Arkansas Supreme Court further referred the judge to the judicial discipline commission to determine if he had violated the code of judicial conduct when he attended the rally, a prayer vigil, and after he posted anti-death penalty commentary on his blog. The court asserted that Judge Griffen should be investigated for judicial misconduct because his prior words and actions tended to show he had a predetermined outcome for death penalty cases.
Shortly thereafter, Judge Griffen filed suit - against the Arkansas Supreme Court justices who issued these orders claiming due process violations. His suit was subsequently dismissed by the Eighth Circuit. But, Judge Griffen filed additional ethics complaints against the justices. Last month the disciplinary commission found probable cause that six of the seven justices violated the canons of judicial ethics. The commission stated that the justices acted arbitrarily and capriciously by ordering recusal and by not giving Judge Griffen enough time to respond.
This week, five justices filed a petition to dismiss the charges. They declared that the disciplinary commission did not have jurisdiction over these claims since the orders to recuse Judge Griffen were not fraudulent, in bad faith, or because of a corrupt motive. The Arkansas Supreme Court has promised to recuse itself in hearing any of these charges.
This case raises many questions of judicial ethics. Should judges curtail their First Amendment activities if they could be construed as bias on future rulings? Is attending a political rally considered a demonstration of a bias? What actions can courts take to discipline their own judges? Is removing a judge from a particular docket considered a due process violation (8th Circuit said no)? This state court situation may seem removed from the national public discourse, but the answers to these questions will be important for a judiciary that is being placed more into the spotlight than ever before.