In refusing to dismiss Pulaski County Circuit Judge Wendell Griffen's lawsuit against the seven justices of the Arkansas Supreme Court, a federal judge "committed clear error" and created "an unprecedented situation," attorneys for the justices said in a filing this week at the 8th U.S. Circuit Court of Appeals.
In a writ of mandamus lodged at the St. Louis-based appellate court, the attorneys took issue with U.S. District Judge James Moody Jr.'s April 12 ruling allowing Griffen's lawsuit to proceed against the justices individually even though he dismissed the high court itself from the suit, saying it was entitled to sovereign immunity.
In his lawsuit, Griffen, who is also a Baptist minister, challenges the state Supreme Court's ruling last year that permanently bars him from presiding over death-penalty cases or any cases concerning the state's method of execution.
The high court issued the ban on its own volition after Griffen attended an anti-death penalty rally and lay on a cot "in solidarity" with Jesus on the same day he granted a temporary restraining order that halted the state's plans to execute a record eight death-row inmates in 11 days.
Griffen has said he considered the case a property-rights case, since the drug's manufacturer sued the state to stop it from using vecuronium bromide, one of the components of the state's lethal three-drug cocktail, because the state had obtained it without authorization.
Griffen also wrote in a blog post 10 days earlier that the death penalty is "not morally justifiable," constitutes "premeditated and deliberate killing," and called the scheduled executions "a series of homicides."
A writ filed at the 8th Circuit on Tuesday and made available online Wednesday asserts that Moody's ruling has created "an unprecedented situation in which members of a 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."
The justices contend that the ban "does not implicate any constitutional rights" of Griffen.
The filing is an "extraordinary remedy" that, unlike an appeal of a lower court's ruling, asks the 8th Circuit to order Moody to change his pretrial ruling, which it says should have dismissed the case outright "as a matter of law" for failing to make a proper claim.
It says Griffen "has filed a baseless complaint alleging that the Justices ordered him recused (among other reasons) because of his race and because of his religion, rather than because Judge Griffen engaged in a patent display of bias never tolerated by any other jurist before or since."
The filing goes on to the say that the high court's order, "mandated by respect for the due-process rights of litigants," doesn't constitute a sanction or punishment.
"Well-established law makes clear that recusal is not punishment and does not impair a judge's ability to engage in free speech or practice his religion, as the Plaintiff claims," the writ states, adding, "Nor does a judge have a right to sit on any particular case or challenge a reassignment."
The filing complained that Moody's order declared in a "single sentence ... without legal analysis" that Griffen passed the first hurdle for pursuing his case: presenting plausible claims. It said the declaration "effectively permits a state court judge, ordered recused by a state supreme court, to go [to] federal court and seek free-ranging discovery of the justices' deliberations to fish for support for his conclusory allegations."
The filing by attorney Robert Peck of the Center for Constitutional Litigation in New York states that while a writ of mandamus is reserved for extraordinary situations, it is necessary because "this is an extraordinary case."
According to the filing, "Mandamus exists to correct clear error and forestall vexatious discovery into high-ranking government officials."
In the filing, the justices complain that Moody refused to dismiss "even the outrageous allegations, leveled without factual support, that the Justices acted based on animus towards Judge Griffen's race and religion."
Since the order was filed, it says, Griffen "has sought incredibly wide-ranging and vexatious discovery of the elected members who head a branch of government of a sovereign state."
The filing asks the appellate court to decide whether the Supreme Court's ban gives rise to a "plausible federal cause of action" that allows Griffen to "take discovery of the court's internal deliberations on a judicial matter."
Metro on 04/26/2018