On his blog, Justice is a verb!, Pulaski County Circuit Judge Wendell Griffen defends granting the drug supplier McKesson’s request to issue a temporary restraining order against the Arkansas Department of Correction from using a drug supplied by McKesson in executions. The suit said McKesson supplied ADC with vercuronium bromide under the auspices it would be used in a health care setting. When McKesson learned it might be used in executions, the complaint said McKesson refunded the ADC the cost of the drug and requested it back. ADC held onto it, according to the lawsuit. Shortly after granting a temporary restraining order on Friday, Griffen joined an anti-death penalty protest outside the Governor’s Mansion.
McKesson later asked for the lawsuit to be dismissed and the restraining order vacated. On Monday, Arkansas Supreme Court vacated the order, barred Griffen from hearing any cases related to the death penalty and recommend him to the Judicial Discipline and Disability Commission to consider whether he violated the Code of Judicial Conduct.
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Griffen has long maintained that being a judge doesn’t strip him of his First Amendment rights and has been outspoken on issues of race, police brutality, school equity and more. Griffen was disciplined by the JDDC in the early 2000s after he urged the state legislative Black Caucus to hold back an appropriation to the University of Arkansas in response to what Griffen saw as poor efforts at racial inclusion by the university over the years. Griffen successfully appealed the JDDC decision to the state Supreme Court.
Yesterday, McKesson refiled its lawsuit in Pulaski County, though Attorney General Leslie Rutledge, citing a new law that allows the plaintiffs in civil cases filed by parties outside of the state to move a case to any circuit it desires.
Here is Griffen’s post:
When I was a child, the King James Version (KJV) of the Holy Bible was the only one found in our home (in Delight, Arkansas), read in our church (Harrison Chapel Baptist Church), and quoted by most people I knew (parents, pastors, other preachers, relatives, friends, neighbors, and strangers). So when people read or quoted Isaiah 1:18, this is what they read and said: Come now, and let us reason together, saith the LORD. The New Revised Standard Version (NRSV) rendering of that passage reads: Come now, let us argue it out, says the LORD.
The passage is a call to engage in honest and thoughtful conversation. It reminds us that humans are blessed with the capacity to contemplate situations and experiences involving ourselves and others, including our Creator. Indeed, the passage is an urgent call from our Creator to engage in that effort. Come now, let us argue it out. I grew up in a family, neighborhood, church, and around elders of people who valued and enjoyed thinking, debating, re-thinking, and challenging the thinking of others.
I suspect that was one reason I became a lawyer, a minister of the religion of Jesus, a legal educator, a judge, and a strategic consultant about cultural competence and inclusion. I have long enjoyed pondering the possible interpretations and meanings of what others do, write, and say, and weighing facts, ideas, values, and competing arguments and interpretations about the situations and conditions that we call life.
Along the way I learned that the words that John Adams spoke in December 1770, while defending soldiers charged in the Boston Massacre, are true. “Facts are stubborn things, and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” As a lawyer, pastor, judge, law professor, and consultant, I work at learning facts, weighing competing facts, and deciding whether facts prove what people claim to be true.
When a judge gets a motion for a temporary restraining order (TRO), the judge considers whether facts show some imminent and irreparable harm is threatened unless the judge issues an order that preserves things as they are – “the status quo” – until the judge can hold a full hearing and consider all the available evidence. The law requires that judges determine whether the party that claims it is threatened by a situation that poses imminent and irreparable harm is likely to succeed on the merits of the dispute before issuing the TRO. If no facts are presented showing that an imminent and irreparable harm is threatened, the TRO must not be granted. But even if facts are presented showing that an imminent and irreparable harm is threatened, if the facts do not show that the threatened party has a legal claim that is likely to succeed, the TRO must not be granted. No matter what the judge’s personal views may be about the dispute, the judge must be governed by whether the facts show some imminent and irreparable harm is threatened unless a TRO is issued and whether the party seeking the TRO has a legal claim that is likely to succeed.
On Friday, April 14, 2017, I was preparing to join other members of New Millennium Church for a Good Friday prayer vigil outside the Arkansas Governor’s Mansion when I received a motion seeking a temporary restraining order. The moving party was a distributor of medical supplies and pharmaceutical products. Its motion was accompanied by a verified complaint, meaning a pleading signed under oath.
In that verified complaint, the moving party declared that the Arkansas Department of Corrections had purchased vercuronium bromide – a pharmaceutical product sold by the distributor – under false pretenses in violation of Arkansas law. The moving party declared in its verified complaint that it attempted to retrieve the vercuronium bromide after learning what the Department of Correction had done. The moving party declared in its verified complaint that the Department of Correction had refused all requests to return the vercuronium bromide after the moving party refunded the purchase price and provided a pre-paid return mail container. And the moving party declared in its verified complaint that the Department of Correction was going to dispose of the vercuronium bromide on April 17, three days later, unless a TRO was issued.
The issue was plain: whether a party who claimed that someone else was wrongfully in possession of its property and about to dispose of it was entitled to a court order directing the other party to preserve the disputed property and not dispose of it until a full hearing could be conducted on the dispute. Under the facts shown in the verified complaint and supporting sworn testimony, the moving party was entitled to the court order if that moving party was likely to succeed on its claim of ownership of the disputed property under the law that governs ownership of property. If the moving party was not likely to succeed under property law, it was not entitled to a TRO. If the moving party was not threatened by imminent and irreparable harm, it was not entitled to a TRO. A TRO was only justified if, and only if, the moving party was threatened by imminent and irreparable harm and was likely to succeed on its legal claim concerning the disputed property.
I understood the facts. I understood the law. Under the facts shown by the verified complaint and property law, I concluded that the moving party was entitled to the requested TRO. My order directed the Department of Correction to preserve the vercuronium bromide – meaning not use it or otherwise dispose of it – until I held the hearing. My court assistant scheduled the hearing for Tuesday morning, April 18, at 9 AM., even though I was already scheduled to begin a two-day non-jury civil trial on that date.
I attended the Good Friday vigil with other members of New Millennium Church. In solidarity with Jesus, the leader of our religion who was put to death by crucifixion by the Roman Empire, I lay on a cot as a dead man for an hour and a half. Other members of New Millennium Church were present. They led other persons in singing This Little Light of Mine and Amazing Grace, songs long associated with the religion of Jesus.
Property law is property law, no matter whether one supports or is opposed to capital punishment. My job as a judge was to apply property law to the facts presented by the verified complaint and decide whether the medical supplier moving party was likely to succeed on its property law claim for return of the vercuronium bromide. If the medical supplier was not likely to succeed on its property law claim, it was not likely to succeed whether I support or am opposed to capital punishment. If the medical supplier was likely to succeed, but there was no proof that the vercuronium bromide was in imminent risk of being disposed of before a hearing, then there was no reason to issue a TRO whether I support or am opposed to capital punishment.
And whether the medical supplier was entitled to a TRO or not, I was entitled to practice my religion on Good Friday. I was entitled to practice my religion if there was no TRO motion. I was entitled to practice my religion whether I granted the TRO or not. I was entitled to practice my religion as a follower of Jesus with other followers of Jesus from New Millennium Church. I was entitled to practice my religion as a follower of Jesus with other New Millennium followers of Jesus in front of the Arkansas Governor’s Mansion.
So because I am a follower of Jesus and a citizen of the United States and Arkansas, I portrayed a dead person – the Jesus who was crucified by the Roman Empire on what we call Good Friday – by lying motionless on a cot in front of the Arkansas Governor’s Mansion. The hat shown on in photographs of my prone figure covered a black leather bound King James Version of the Bible, the book that my parents taught me to read and love as a child.
Whether I attended the Good Friday vigil or not does not change property law. Whether anyone approves or disapproves of me attending the Good Friday vigil does not change property law. Whether I support or am opposed to capital punishment does not change property law. I am entitled to practice my religion – whether I am a judge or not – even if others disapprove of the way I practice it.
There is nothing improper about applying the law to facts. That is what judges are supposed to do. There is nothing improper about applying the law to facts in cases where people have strong feelings. That is what judges are supposed to do. There is nothing improper about judges who support or oppose capital punishment hearing and deciding cases involving property law disputes about the right to ownership of drugs used for capital punishment. Property disputes about ownership of drug products are property disputes, not decisions about the morality of capital punishment, the method by which persons who have been convicted of capital murder are put to death, or whether doing so violates the Constitution of the United States.
People have strong views about capital punishment. I know that. I have strong views about capital punishment also. But none of our views about capital punishment, whatever they may be and however strongly we may hold them, affect the facts in the TRO motion I reviewed and decided on Good Friday. None of our views about capital punishment, whatever they may be and however strongly we may hold them, are relevant on whether anyone has a legal claim to recover property that has been wrongfully obtained and is threatened to be imminently and irreparably used despite the demand of its rightful owner.
Whether you approve or disapprove of my religion, how I practice it, or what influence my religious beliefs have on the way I understand life, I hope you’ll ponder my decision to grant the TRO motion in light of these realities. I hope you’ll remember that my sworn duty as a judge on Good Friday 2017 was to apply property law to the facts shown in the TRO motion and decide whether imminent and irreparable harm would happen – meaning that the rightful owner of the vercuronium bromide would lose the chance to recover it forever – unless I issued an order to the Arkansas Department of Correction to preserve the vercuronium bromide until we could hold a full hearing.
I was not supposed to think about whether making the correct legal decision would be popular to anyone, including myself, the moving party, the Department of Correction, or anyone else. I was supposed to focus on the facts and the law.
That is what judges do, whether we are religious or not. That is what judges do, whether we support or oppose capital punishment. This is what judges do, whether other people like it or not.
That is what I did.