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7 Arkansas Supreme Court justices cite error, get a stay

Pretrial pause hit in Griffen’s suit

A federal judge agreed Wednesday to temporarily halt the pretrial information-gathering process in a lawsuit that a Pulaski County circuit judge, Wendell Griffen, has pending against the seven justices of the Arkansas Supreme Court.

The justices sought the temporary stay of discovery May 3, citing a petition they filed April 24 at the 8th U.S. Circuit Court of Appeals in St. Louis, which oversees federal courts in Arkansas. The petition is for a writ of mandamus, a rare request asking the appellate court to order U.S. District Judge James Moody to correct a "clear error" that they say he committed by refusing to dismiss Griffen's allegations against the justices and allowing the discovery process to begin.

Griffen, who is also a Baptist minister, alleges in the lawsuit that the justices violated his federal civil rights and retaliated against him for exercising his First Amendment rights when they permanently banned him April 17, 2017, from presiding over death-penalty cases.

The ban followed Griffen's participation in an anti-death-penalty rally at the state Capitol and a silent anti-death-penalty protest near the Governor's Mansion. The protests took place the same day* Griffen issued a temporary restraining order blocking the state from using one of the drugs in its lethal three-drug cocktail, effectively stopping executions at least until a longer hearing could be held a few days later. The drug's manufacturer had sought the order, saying the state illegally obtained the drug.

In an April 12 ruling, Moody refused to dismiss Griffen's lawsuit against the individual justices in their official capacities, saying Griffen had presented sufficient facts to state a plausible claim. Moody did, however, dismiss all claims against the Supreme Court itself, citing sovereign immunity.

The justices then asked the 8th Circuit to intervene to correct an injustice. They said Moody's order created "an unprecedented situation in which members of the state's highest court must submit to depositions and other discovery by a state trial judge about the Justices' decision to issue a recusal order in a pending case."

Before the Supreme Court issued its directive, the attorney general's office asked it to vacate Griffen's temporary order and remove him from the drug manufacturer's lawsuit. While the justices have referred to their action as a "recusal order," Griffen contends that's a misnomer because the disqualification order went "well beyond the narrow relief" requested by the attorney general.

Moody's two-sentence order filed Wednesday afternoon simply said discovery in the federal case is temporarily stayed pending resolution of the defendants' petition at the 8th Circuit.

In a motion filed earlier Wednesday, an attorney for Griffen opposed the request for a temporary stay, arguing that Moody has given attorneys only until Nov. 9 -- less than six months -- to gather evidence before the Feb. 19 trial date.

Attorney Mike Laux also said in response to discovery requests sent to the justices that they "have indicated they have no intention of complying, and will instead stonewall Judge Griffen's requests by asserting the dubious 'deliberative-process privilege.'"

Laux said the justices filed the petition at the 8th Circuit in an attempt "to get the immediate appeal to which they are not entitled." He said federal rules don't allow the justices to file a pretrial appeal just yet.

"In their petition and motion, Defendants imply that this Court made a grave and clear error or abused its discretion in partially denying their motions to dismiss, and they predict dire consequences will occur if they are forced to respond to discovery," Laux said.

He also asserted that the justices aren't likely to succeed with the 8th Circuit.

"Mandamus is an always-unlikely remedy, and more so here, where Defendants are trying to use it as an extraordinary vehicle for an ordinary appeal," he said. He noted that the discovery process itself will allow the justices to raise their concerns about the information Griffen is seeking.

Laux also defended Moody's order as "neither an abuse of discretion nor a usurpation of power."

In a response that Griffen filed May 7 to the 8th Circuit petition, he said the justices "seek a judicial license to retaliate against a black Baptist minister and trial court judge who engaged in extra-judicial speech and religious expression protected by the First Amendment."

"Judge Griffen alleged in his well-pled civil rights complaint that the Defendants, without notice to Judge Griffen, without having been asked to do so by any litigant in any case, and without any basis in law, permanently disqualified Judge Griffen from ever again hearing any case involving the death penalty or the state's method of execution after he and his congregation attended a prayer vigil against the death penalty," the response said.

Griffen's attorneys called the mandamus petition "improper" and said it was "based on a fallacy repeated 65 times ... that there was a 'recusal' order in a case. There was no such recusal order. What Judge Griffen is challenging in this lawsuit is an administrative personnel action by the Supreme Court to permanently bar Judge Griffen from an entire category of cases -- the most important cases any judge can hear -- in retaliation for his expression of his personal, constitutionally protected religious and moral views."

Griffen's attorneys called the petition a "delay tactic," and asked, "Are Arkansas Supreme Court Justices above the law, such that their administrative personnel actions that violate the United States Constitution may never be reviewed in any way by any federal court?"

Metro on 05/17/2018

*CORRECTION: The Arkansas Supreme Court stripped Pulaski County Circuit Judge Wendell Griffen of his authority to preside over any death penalty-related cases April 17, 2017. The judge had participated in anti-death-penalty protests three days earlier, the same day he issued a temporary restraining order blocking the state from using one of its execution drugs. The timeline of the events was incorrect in a previous version of this article.

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