Pulaski County judge sues Arkansas Supreme Court after execution case ban

Pulaski County Circuit Court Judge Wendell Griffen on Thursday (Oct. 5) filed a federal lawsuit against the Arkansas Supreme Court, saying Chief Justice Dan Kemp and the state high court’s other seven members conspired to violate his 1st and 14th Amendment rights and the state’s religious freedom act.

The 25-page filing in the U.S. District Court for the Eastern District of Arkansas in Little Rock stems from an April 17 state Supreme Court’s ruling removing Griffen from participating in any of the state’s execution cases after he attended an anti-death penalty rally within hours of filing an injunction halting the executions of seven death row inmates.

In the lawsuit, Griffen calls the high court’s decision “unconstitutional,” and alleges that the seven high court justices, all white, deprived Griffen’s “rights to freedom of speech, freedom of assembly, and freedom of religion and religious exercise that are guaranteed by the First Amendment to the Constitution of the United States.”

The Pulaski County circuit court judge, who is black, also states that his rights to due process of law and equal protection are guaranteed by the 14th Amendment, and that the defendants violated his rights to exercise his calling “as an ordained member of the clergy and follower of Jesus’ religion, prohibited by the Arkansas Religious Freedom Restoration Act.”

The fight between Griffen and the Arkansas Supreme Court first came to a head after the lower court judge issued a temporary restraining order (TRO) on behalf of drug manufacturer McKesson-Medical Surgical to halt executions dates for seven Arkansas death-row inmates over a 11-day period from April 17 to April 27. McKesson-Medical Surgical had 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 request, suggesting that if the executions are carried out the harm to the company could not be reversed.

Immediately following Griffen’s ruling, Arkansas Attorney General Leslie Rutledge argued the TRO should be removed because McKesson’s original lawsuit does not meet the threshold for temporary restraining orders and should be vacated. Rutledge also said that efforts to provide proper notice under procedures for a TRO were not followed. She further argued Griffen should be removed because of his blatant bias towards the death penalty. McKesson signaled over the weekend that it might withdraw its filing due to a federal court’s preliminary injunction that was released on Saturday.

In addition, the Judicial Discipline & Disability Commission opened an ethics investigation into Griffen’s conduct. At the end of the 2017 General Assembly, the Arkansas House of Representatives also adopted rules that would allow lawmakers to move forward with impeachment proceedings if members so choose.

Without mentioning Griffen’s name, House Speaker Jeremy Gillam said the debate over his resolution would be a “Rorschach test” for House members because of concerns expressed publicly in recent weeks by several lawmakers that the Pulaski County judge should be impeached. Sen. Trent Garner, R-El Dorado, made a public plea to fellow lawmakers to move forward with impeachment proceedings against Griffen.

In the end, House members approved the resolution by a vote of 73-13, with 13 members not voting. Gov. Hutchinson told reporters later after the vote that it “made sense” to him for the House to adopt impeachment rules, but said he does not believe it was directed at any specific person. When asked about possible impeachment proceedings against Griffen, the governor refused to weigh in on the matter.

“This is a legislative function in our Constitution,” Hutchinson said of HR1001. “I don’t see a specific role for the executive branch.”

In his court filing, Griffen said the high court’s actions against him was because of “racial animus” toward him as an African-American.

“In the history of Arkansas, no white member of the Arkansas judiciary has ever been summarily banned from hearing an entire category of cases based on his or her exercise of the First Amendment protected freedoms of speech, peaceful assembly, religion, and exercise of religion. No white member of the Arkansas judiciary has ever been pre-emptively, prospectively, and indefinitely barred from hearing any category of cases based on the exercise of First Amendment liberties. No white member of the Arkansas judiciary has ever been denied notice and an opportunity to be heard before being pre-emptively, prospectively, and indefinitely barred from hearing any category of cases based on the exercise of those First Amendment liberties,” Griffen states.

Griffen highlighted several other cases across the state where he alleges the state Supreme Court has treated white judges differently. In its original decree against Griffen, the Arkansas high court said the Pulaski County judge did not live up to state judicial standards.

“Judges should maintain the dignity of their judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public conduct in their independence, impartiality, integrity, and confidence,” a decree by the high court stated. “A judge shall disqualify himself or herself in any proceeding in which … the judge … has made a public statement … that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.”

In Thursday’s federal filing, however, Griffen said he has been barred for life from presiding over any death penalty cases just for exercising his First Amendment right “to pray silently on (my) time. There is no possible excuse for this disparate treatment.”

Since April, Griffen said he has been banned or disqualified from any capital punishment or death penalty cases, as well as any criminal or civil proceedings involving application of the confidentially provisions involving Arkansas’ execution methods, which deals with legislation approved by the General Assembly in 2015 that allows Department of Correction officials to hide the state’s execution protocol from public view.

Griffen, a pastor of New Millennium Church in Little Rock, further states he has been “materially harmed by the loss of prestige, job satisfaction, and job duties suffered as a result of the Arkansas Supreme Court’s Order, by virtue of being barred and disqualified, forever, from hearing the most serious cases a judge can hear in Arkansas.”

Griffen is asking a federal court to overturn the high court’s permanent reassignment on death penalty-related cases. He also asks that the Supreme Court pay his attorney fees and associated costs, and award him any further relief that the federal court deems proper. Griffen is requesting a jury trial. His local attorney, Austin Porter Jr., would not comment on the case.