THE SUPREMES: Five of them have challenged an ethics finding against all seven. Robin Wynne (second from left) and Courtney Goodson (thired from right) didn't join the action.

The Arkansas Supreme Court issued a news release today indicating  five of the seven members are challenging a finding by the Judicial Discipline and Disability Commission of an ethics violation by the court in removing Circuit Judge Wendell Griffen from cases related to the death penalty without affording him proper notice and due process. In short, the court says the commission has no jurisdiction over the court.

The news release in full:

Today the majority of the Arkansas Supreme Court, in order to protect the independence of the judiciary established by the Arkansas Constitution, filed a Petition for Writs of Prohibition,
Mandamus, and Certiorari in the Arkansas Supreme Court against the Arkansas Judicial Discipline and Disability Commission [JDDC], David Sachar, Executive Director of the JDDC, and, J. Brent Standridge, Special Counsel of the JDDC. The justices intend to recuse themselves from participation as members of the Court reviewing the petition.

Each justice of the Arkansas Supreme Court took an oath to support and defend the Constitution of the State of Arkansas. The five individual members of the Arkansas Supreme Court, by filing the Petition for Writs to protect the Arkansas Supreme Court’s authority and jurisdiction under the Arkansas Constitution, are fulfilling their sworn duty to defend the Arkansas Constitution.

The exercise of the Arkansas Supreme Court’s superintending control over all courts is established by the Arkansas Constitution. Orders of the Arkansas Supreme Court concerning matters of law and interpretation of the Arkansas Constitution are not subject
to review by the JDDC. The Petition states that the JDDC is without jurisdiction to hear complaints about a decision of law, that its charges fail to and cannot cite any provision of the
Code of Judicial Conduct that applies to the ruling that was the subject of the JDDC’s review, and that a federal appeals court has already determined that the justices did not violate anyone’s due process rights.
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The news release didn’t name the justices who joined the petition. The filing is reflected online, but so far without the actual document. It shows that the request for a writ of prohibition was filed by Chief Justice Dan Kemp and Justices Josephine Hart, Karen Baker, Rhonda Wood and Shawn Womack. That means Justices Courtney Goodson and Robin Wynne didn’t join the filing. The filing indicates Timothy Dudley of Little Rock is representing the justices seeking the write. He’ll be joined by Robert Peck of Washington, with the Center for Constitutional litigation.

Gov. Asa Hutchinson will have to appoint special justices to hear the case.

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As yet, there’s no filing indicating that Wynne and Goodson will ask to recuse themselves from the case involving fellow justices. If they do, the governor would appoint seven to hear the case.

UPDATE: Here’s the petition the five filed today. It goes in detail into the arguments summarized in the news release.

EDITORIAL COMMENT: The law will play out slowly and finely. But the appearances were terrible when the Supreme Court rushed over a weekend to remove Griffen from all death penalty cases forever and seek his punishment because of a hot political reaction to Griffen’s decision in a property law case over execution drugs (duplicated later by a separate judge) the same day he participated in an anti-death penalty demonstration. Griffen got no notice and no chance to be heard. He continues to sue over being referred for discipline by the court for exercising his constitutional right to speech about his religious beliefs.

The five who are suing will lose no favor in racist, Republican Arkansas for further attempting to put Griffen in his place. But they will continue to support the case to end election of judges.

And, also, again: Wendell Griffen would do the judiciary a favor by tempering his penchant for robust speech.