On Tuesday, the seven justices of the Arkansas Supreme Court petitioned the U.S. Eighth Circuit Court of Appeals to overturn a decision made by a federal district court earlier this month that allowed a lawsuit against the justices to proceed.

The suit against the justices was brought by Wendell Griffen, the Pulaski County circuit judge who ignited controversy last year by participating in a Good Friday protest against the death penalty in front of the Governor’s Mansion. Around the same time, Griffen ruled on a case that had the effect of delaying the executions. (After he was removed and a new circuit judge appointed, that judge made the same conclusion on the same facts.) The Supreme Court subsequently removed Griffen from hearing death penalty cases and instigated a disciplinary investigation.

In October, Griffen struck back by filing a federal civil rights lawsuit against the Supreme Court and its individual justices. The justices asked U.S. District Judge James Moody to dismiss the complaint, but on April 12 Moody issued an order saying Griffen’s lawsuit against individual justices could proceed. He dismissed the state Supreme Court as a whole from the suit, citing sovereign immunity.



The docket for that case shows that as of yesterday, Judge Moody has set a jury trial for the case sometime in February 2019. (Imagine the spectacle, should it be allowed to proceed, of a federal jury trial that pits two tiers of the state judicial system against one another.)

The Supreme Court hopes to prevent that trial from coming to pass. Today, it asked the Eighth Circuit for a writ of mandamus, which says Moody “committed clear legal error in denying dismissal” of Griffen’s complaint. The federal district court thereby 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.”

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The introduction continues:

The District Court, in a single sentence, stated it “examin[ed] the record” and “cannot state that Plaintiff has failed to state plausible claims for relief.” ((ECF No. 48, at 8; attached as Exh. 1). That sentence, without legal analysis, effectively permits a state court judge, ordered recused by a state supreme court, to go federal court and seek free-ranging discovery of the justices’ deliberations to fish for support for his conclusory allegations.

Mandamus may be an extraordinary remedy, but this is an extraordinary case. Mandamus exists to correct clear error and forestall vexatious discovery into high-ranking government officials. See, e.g., In re United States, 197 F.3d 310, 316 (8th Cir. 1999); In re Justices of Supreme Court of Puerto Rico, 695 F.2d 17, 25 (1st Cir. 1982) (Breyer, J.). The Complaint should have been dismissed as a matter of law for failure to make a claim, and mandamus lies to remedy that error.

Here’s the justices’ petition to the 8th Circuit.

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The justices are also racking up huge attorney fees in the case. The Supreme Court had incurred $160,000 in legal bills as of February. It has asked for spending authority from the legislature to spend up to $500,000 over two years for future bills, if necessary.