AG Rutledge files appeal to Arkansas Supreme Court on Judge Griffen TRO, seeks his removal from case

Arkansas Attorney General Leslie Rutledge filed an emergency petition to the state’s Supreme Court to overturn a lower court’s decision to halt seven executions and to remove the circuit judge from the case.

On Friday afternoon, Pulaski County Judge Wendell Griffen issued a temporary restraining order (TRO) on behalf of drug manufacturer McKesson-Medical Surgical.

McKesson-Medical Surgical filed a request in Pulaski County Circuit Court arguing that a drug produced by the company may be one of the three drugs used in Arkansas’ lethal injection protocol. The company said its drugs are not to be used for carrying out a death penalty. Griffen granted the the request, suggesting that if the executions are carried out the harm to the company could not be reversed.

In filing the appeal to the Arkansas Supreme Court, Rutledge argued that McKesson’s original lawsuit does not meet the threshold for temporary restraining orders and should be vacated. She also said that efforts to provide proper notice under procedures for a TRO were not followed.

In her argument, the AG outlined how communications between Arkansas Department of Correction officials and McKesson unfolded as it relates to usage of one of the lethal injection drugs, vecuronium bromide.

The AG said that McKesson voluntarily sold the drug to ADC officials and later asked the state to return the drug. “Although an ADC official initially ‘indicated to McKesson that the Vecuronium had been set aside for return,’ the ADC director ultimately declined to return the drug to McKesson. The ADC did offer to return the drug if McKesson would provide an alternative drug to be used in executions,” according to the new filing.

The AG request to the state’s high court also stipulates that McKesson is not seeking monetary damages, but “does seek to force the ADC to return the vecuronium bromide to McKesson. At bottom, McKesson plainly seeks a judgment that will ‘operate to control the action of the State.’ The complaint is barred by sovereign immunity, and Judge Griffen lacks jurisdiction,” it reads.

Rutledge also argued that the drug manufacturer’s claim that its reputation would be injured if its drugs are used in the state’s execution process are unfounded.

“McKesson’s tireless platitudes about the vast reputational injury that it claims it will suffer by association with Arkansas’s executions are entirely incredible and implausible. McKesson has never said or done anything to intentionally associate itself with executions,” the request reads. It further notes that Arkansas law allows for the confidentiality of drug manufacturers providing the ingredients for the state’s lethal injection cocktail.

In the second request as part of the appellate filing, Attorney General Rutledge said that Judge Griffen should not be allowed to participate in the case because of his bias in opposing the death penalty.

Griffen appeared on Friday afternoon at a protest of the executions at the Governor’s Mansion and conveyed his opposition.

Rutledge writes, “[p]etitioners respectfully ask the Court to remove Judge Griffen from this case. Judge Griffen cannot be considered remotely impartial on issues related to the death penalty. Judge Griffen has demonstrated that he is unlikely to refrain from actual bias regarding matters related to the death penalty, and at a minimum, he cannot avoid the appearance of unfairness and his impartiality might reasonably be questioned.”