On Monday, a federal judge allowed the seven justices of the Arkansas Supreme Court to file a late response to Pulaski County Circuit Judge Wendell Griffen, who is suing the justices for alleged violations of his federal constitutional rights.

U.S. District Judge James Moody’s order came after attorneys for the justices admitted in a brief on Friday that they had made a procedural mistake in not responding to Griffen’s complaint within a timeline prescribed by federal rules of civil procedure. Griffen’s lawyers had moved for default earlier that day, citing the plaintiffs’ failure to respond (and noting the six-figure legal fees accumulated by the justices retention of private counsel at taxpayer expense).

The plaintiffs essentially acknowledged Griffen was correct on the procedural deadline issue, with the justices’ attorneys saying the error was theirs, not that of their clients. In a brief asking permission to file their answer “out of time,” the justices’ attorneys said their answer was “only” tardy by eight days:

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Although the Justices have actively litigated this case before and after this Court denied in part the motions to dismiss, including by producing their initial disclosures, complying with ongoing discovery obligations, and filing a petition for writ of mandamus in the Eighth Circuit concerning the denial of their motions to dismiss, the Justices’ counsel regrettably overlooked the deadline to answer. The Justices were alerted to this oversight yesterday when they received electronic service of Judge Griffen’s Motion for Clerk’s Entry of Default Pursuant to FED. R. CIV. P. 55(a) (May 3, 2018), ECF No. 53, and the Justices have endeavored to promptly remedy their counsel’s oversight by lodging their answer today.



The Justices are filing their answer only one week and one day late, and within one day of ascertaining the oversight. Moreover, this case has already gone through motion-to-dismiss proceedings, and the eight-day delay has not halted or otherwise impacted the judicial proceedings. As discussed, the Justices are currently engaged in the discovery process, and that timeline is unaffected by this eight-day delay. In short, all relevant deadlines will remain in effect, including the trial date.

Moody’s order on Monday, which permitted the justices to file several days late, states that their motion was unopposed: In other words, although Griffen moved for default last week based on the justices’ blown deadline, he did not attempt to prevent them from correcting the error.

“We did not oppose their motion, which was a voluntary, collegial act, the type of which they do not afford Judge Griffen,” Mike Laux, an attorney for Griffen, said in an email.

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Laux also said Griffen’s lawyers had responded to the justices’ petition to the federal Eighth Circuit Court of Appeals to undo a ruling by Moody in April that allowed Griffen’s suit to proceed in the first place. That brief is here.

The backstory: Griffen’s fight with the state Supreme Court began about a year ago, when he ignited controversy 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 filed a federal civil rights lawsuit against the Supreme Court and its individual justices, saying their actions violated his First Amendment rights of free speech and religious expression. Griffen also alleges racial bias in the court’s actions that violated the Fourteenth Amendment. The justices say Griffen’s allegations are baseless and that removing the circuit judge from death penalty cases was clearly warranted.

Judge Moody ruled on April 12 that Griffen’s lawsuit against the individual justices could proceed (though Moody dismissed the Supreme Court as a whole from the suit, citing sovereign immunity). On April 25, the justices petitioned the U.S. Eighth Circuit Court of Appeals for a writ of mandamus, asking the appellate court to reverse Moody and halt Griffen’s suit.

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