The Arkansas Judicial Discipline and Disability Commission on Thursday (Sept. 20) filed formal charges against Arkansas Supreme Court Justice Dan Kemp and five other justices more than a year after Pulaski County Judge Wendell Griffin and the state’s high court filed clashing complaints over the local judge’s death penalty protests.
Last summer, the state’s nine-person judicial disciplinary panel began an investigation after receiving a complaint from Griffin stemming from an April 17, 2017 state Supreme Court ruling removing the Pulaski County circuit court judge from participating in any of the state’s execution cases. That high court ruling came hours after Griffen attended an anti-death penalty rally within hours of filing an injunction halting the executions of seven death row inmates.
The state Supreme Court stepped in after Arkansas Attorney General Leslie Rutledge filed an emergency petition to overturn Griffen’s decision to halt seven executions in April 2017 that brought nationwide attention to Arkansas. Rutledge’s filing, which the Supreme Court approved, also sought to remove the Pulaski County circuit judge from the case involving drug manufacturer McKesson-Medical Surgical.
“To protect the integrity of the judicial system this court has a duty to ensure that all are given a fair and impartial tribunal. We find it necessary to immediately reassign all cases in the Fifth Division that involve the death penalty or the state’s execution protocol, whether civil or criminal,” the state’s high court said in its April 17, 2017 order removing Judge Griffen from the case.
Griffen struck back on April 27, 2017, requesting that the judiciary panel and the Arkansas Committee on Professional Conduct investigate the state Supreme Court, AG Rutledge and certain members of her legal staff “for possible violations of the Arkansas Code of Judicial Conduct and the Arkansas Code of Professional Conduct.”
In its findings, written by Special Counsel J. Brent Standridge, the judicial commission said Chief Justice Judge Kemp and Justices Robyn Wynne, Courtney Goodson, Jo Hart, Karen Baker and Rhonda Wood violated their judicial ethics by “improperly ruling on a petition for an extraordinary writ without giving Judge Griffen sufficient notice and an opportunity to be heard …”
Standridge wrote that Kemp had submitted a letter to the judiciary panel in response to Griffen’s complaint from May 2017, stating that the commission did not have jurisdiction over the matter and that, regardless, Griffen was provided inadequate notice. That letter, the panel wrote, served as an “individual response” by the six high court justices on the complaint. In reviewing the state Code of Judicial Conduct, Standridge wrote that the nine-personal judicial panel found that all justices must uphold and promote independence, integrity and impartiality of the judiciary, while also avoiding impropriety or the appearance of impropriety, among other things.
“The Panel finds probable cause to believe that you have violated the canons and rule of judicial conduct,” Standridge wrote. “The Panel finds that Judge Griffen was given an opportunity to respond to the extraordinary petition filed with the Supreme Court. The Panel, however, does not find that the notice to Judge Griffen and his ability to response were sufficient.”
In explaining the panel’s findings in the “statement of formal charges,” Standridge further wrote that although the state high court has “superintending control” over the lower courts, the Supreme Court justices were not insulated from the processes of the commission. “(E)specially when the Supreme Court’s own actions result in the de facto disciplining of another judge without him being subjected to the same safeguards and protections contained in the rules governing the Arkansas Judicial Discipline and Disability Commission,” wrote Standridge, who has law offices in Benton and Mount Ida.
The nine-person judiciary panel also looked at allegations made by Griffen that the high court had impermissible communications with the Attorney General’s office concerning his anti-death penalty protests. However, the judicial commission said they did not find “probable cause” that any ex parte communication occurred. That complaint was denied and dismissed.
Standridge wrote that the high court justices are entitled to a hearing before the panel where all allegations against them “must be proven by clear and convincing evidence.” He said each of the justices would be formally served with the charges by the panel and given 30 days to respond. Talk Business & Politics was unable to reach Supreme Court Chief Justice Kemp and the other high court justices. Judge Griffen also could not be immediately reached for comment at his downtown Little Rock office.
The Judicial Discipline and Disability Commission is comprised of nine members who are residents of Arkansas. The three judicial members are appointed by the Supreme Court. The three lawyer members that are licensed to practice in Arkansas are appointed by the Attorney General, state Senate president, and the Arkansas House Speaker. The three public members, who are neither lawyers nor judges, are appointed by the governor.
Commission Executive Director David Sachar told Talk Business & Politics more than a year ago the three-panel team had opened an ethics investigation into Griffen’s conduct. It’s highly unusual for the JDDC to admit it’s investigating a judge, but the crush of national publicity surrounding Arkansas’ attempt to execute seven prisoners in the spring of 2017 necessitated the change in protocol, Sachar said, adding then it could take months or more than a year for the agency to conclude.
Besides the judicial panel’s investigation, the Arkansas House of Representatives also adopted rules at the end of the 2017 legislation session that would allow lawmakers to move forward with impeachment proceedings against a judge if members so choose to do so. While Griffen was not specifically singled out, his case was front-and-center when the legislative action occurred.