CLEARED: Arkansas Supreme Court.

After an executive session today, the Judicial Discipline and Disability Commission voted unanimously to dismiss an ethics charge against the Arkansas Supreme Court in its handling of a decision by Circuit Judge Wendell Griffen related to ownership of a drug used in executions.

In September, a three-member panel of the Commission found after an investigation by special counsel Brent Standridge that the Supreme Court hadn’t given Griffen proper notice in lifting his order in a property rights case and removing him from all death-penalty related cases. Griffen had ruled on Good Friday last year that a drug distributor had a valid claim to stop the state from using its drug in executions, a use prohibited by the distributor of the drug, which the state obtained by dishonest means. He participated later that day with church members in a demonstration against the death penalty. The Supreme Court apparently conferred over the weekend as a political storm developed and ruled Monday morning against Griffen. That investigative panel dismissed a potentially telling part of the case, about potential ex parte communications by members of the court with politicians and others.

Today, the Commission acted on pending motions by Supreme Court justices to dismiss the ethics charge without a trial. The nine-member Commission, none of whom were on the investigative panel, cited two factors in the dismissal, according to Commission Executive Director David Sachar. A commission rule says that it doesn’t review judicial actions absent evidence of bad faith or corrupt motives. That rule was cited. And the Commission also cited Amendment 80, which gives the Supreme Court superintending authority over lower courts. Thus it is able to make docket allocation decisions, such as saying a judge can’t hear certain types of cases.

Rule 6B:

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In the absence of fraud, corrupt motive or bad faith, the Commission shall not take action against a judge for making findings of fact, reaching a legal conclusion or applying the law as he or she understands it. Claims of error shall be considered only in appeals from court proceedings.

I’m seeking comment from Griffen, who faces a public trial on an ethics charge lodged against him for giving cause by his actions to have his impartiality questioned. He’s contended he’s being punished for a 1st Amendment exercise of free speech and religion.

UPDATE: Mike Laux, Griffen’s lawyer, learned of the dismissal from me. He wrote:

“This clandestine Friday afternoon dismissal of the sustained ethics charges against the Arkansas Supreme Court was totally unknown to us until now because we were not given any notice of a hearing or session regarding same. Unfortunately, this appears to be a recurring theme when it pertains to Judge Griffen’s constitutional rights and protected interests. We will attempt to review whatever materials we can get our hands on and issue a statement as soon as possible.” 

Chief Justice John Dan Kemp responded to my inquiry:

Thanks for that news about the dismissal. Neither my attorney nor I have received official word from the JDDC yet. We will need to review the JDDC decision before making any comment.

The Supreme Court had reacted angrily to the ethics finding and questioned the participation of a panel member, Judge David Guthrie of El Dorado, because the Supreme Court had ruled against his interest in a matter pertaining to judicial retirement law.

The Supreme Court, in addition to asking the JDDC to dismiss the charge, had filed a case in the Supreme Court itself and Gov. Asa Hutchinson had to appoint seven special justices to hear the case. I presume this action today should make that case moot.