Brian Chilson
THE PROTEST: Wendell Griffen’s participation in this demonstration led to an ethics charge that pends more than two years later.

The Judicial Discipline and Disability Commission has postponed Circuit Judge Wendell Griffen’s Thursday hearing on an ethics charge, drawing a blast from the judge’s lawyer, Michael Laux.

The delay apparently was prompted by the disqualification of the special counsel appointed to hear the case, Rachel Michel. She’s an employee of a Mississippi judicial oversight agency and was denied time off to try the case against Griffen because she’d already taken time for military duty. This filing explains Michael’s recusal.

The Arkansas Commission also has issued an order that explains why it believes Griffen’s case should not be dismissed for a failure to act within 18 months, putting it down to an interpretation of when the complaint began.

The Arkansas Supreme Court initiated an ethics case April 17 against Griffen because he participated in a death penalty demonstration on the afternoon of a day in which he’d decided the state must return drugs it intended to use in an execution to the drug’s distributor. The distributor argued the drugs had been improperly obtained for a prohibited use. Griffen has said his religious and personal beliefs didn’t affect his ruling in the property law case (another judge made an identical ruling after the Supreme Court removed Griffen.) He also argued his speech and religion were protected by the First Amendment.

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The  Commission says in an order that the complaint was “initiated” May 1 by Commission executive director David Sachar. Since then, some delays have been in response to requests by Griffen. By the Commission’s calculation, the 18-month time limit still would have had 17 days to run as of Thursday of this week. Thus, it ruled the motion for dismissal was premature. Can it find a new counsel and set a hearing in the time remaining? Thte order doesn’t address that question.

In a news release, Laux blasted the commission:

On Sunday, June 9, 2019, at 1:56 pm, just four (4) days before Judge Griffen’s ethics hearing was set to proceed, the JDDC has again cancelled the hearing. This is the fourth cancellation of the hearing based on a complaint filed against him on April 17, 2017–well over two (2) years ago.

 

The reason for the cancellation is that special counsel, Rachel Michel of Mississippi, has a conflict with the June 13 hearing date, which was ordered by the JDDC two (2) days ago.

 

Earlier on June 9, Ms. Michel emailed parties a copy of her Notice of Recusal (see attached) in which she states that she has an “unresolvable” conflict of interest about which she has “repeatedly advised” the JDDC. She complains that the JDDC was aware of this all along and yet rescheduled the hearing without her knowledge or consent. She says she told the JDDC she cannot work on Judge Griffen’s case during business hours. As of the date of this release, there is no date for Judge Griffen’s hearing.

 

In its June 7 order (see attached), the JDDC also attempted to explain the rationale for denying Judge Griffen’s Rule 15 motion to dismiss, claiming that the starting point for the deadline computation was May 1, 2017, the date the JDDC claims the complaint was “initiated” by Director David Sachar. Again, Rule 15 requires that a sworn JDDC complaint be dismissed if not disposed of “within 18 months from receipt of the complaint by the Commission.” The JDDC came up with “initiated” out of the blue to deny a motion properly granted. Mr. Sachar was directly asked about the Rule 15 starting point and he testified:

 

Q: So let’s say, you know, this — the Monday following that weekend,
the Easter weekend was Monday, April 17.

A: Okay.

*****

Q: So can you tell me to the best of your recollection Mr. Sachar, how
you first became aware of the Supreme Court’s complaints about
Judge Griffen and their referral of this matter to your commission?

A: I became aware of the Supreme Court’s referral when it was sent to
our office. I believe it was that Monday. I would have received a
copy of the Per Curiam that’s in the complaint package.

 

The haphazard, thoughtless and arbitrary nature of the JDDC’s handling of the complaint against Judge Griffen is clear evidence of political “fire-ready-aim” retribution at work here. Combined with the JDDC’s indefensible rulings which defy the letter of its own rules, the unfortunate developments of the past week all but prove that the JDDC case against Judge Griffen is totally baseless. It should therefore probably come as no surprise that when push comes to shove no one wants to advance this case.

Laux had complained previously of the Commission’s refusal to allow Griffen to question Supreme Court justices about the private communications they had with Sachar over the Easter weekend following his participating in a Good Friday demonstration. Publicity about the demonstration had angered many legislators, some of whom apparently got in touch with members of the Supreme Court. Griffen was removed from death penalty cases without a hearing but the specifics of communications outside of court proceedings by Chief Justice Dan Kemp and Justices Rhonda Wood and Shawn Womack have never been revealed.