THE ROOT CAUSE: Wendell Griffen's role in a death penalty protest figures prominently in Attorney General Leslie Rutledge's effort to remove him from all civil cases involving the state.

 

Andrew DeMillo of the Associated Press breaks news of a court filing in which Attorney General Leslie Rutledge wants Circuit Judge Wendell Griffen barred from hearing cases in which her office participates.

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She says he routinely “bullies” lawyers from her office in court proceedings.

When state attorneys attempt to do their jobs and advocate for their clients, Judge Griffen routinely erupts in anger, treating the lawyers’ advocacy for their clients as personal attacks on his authority as the trial judge,” the filing said.

Mike Laux, attorney for Griffen, told AP there’s no bias.

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“The problem for the AG’s office is the infirmity of its arguments, not the mean old judge.”

Laux commented further to me:

The AG‘s office needs to speak in terms of the law and not in terms of hurt feelings. In reality, Judge Griffen is a smart, well-read and evenly-tempered jurist who treats fairly all litigants before him. No one can credibly say otherwise. Might you get an earful if you come before him unprepared? Yes, you might, but that’s part of the game. The AG’s ill-advised motion smacks of politics.

Rutledge’s criticism came in an “emergency” petititon to the Arkansas Supreme Court after Griffen refused the state’s request to dismiss the appeal of Carpenter Farms, an unsuccessful applicant for a medical marijuana dispensary permit. The state claimed sovereign immunity, which has become a broad avenue for dismissal of lawsuits naming state agencies, but the doctrine does have exceptions.

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Rutledge, of course, originated the complaint that got Griffen removed from all death penalty cases. He ruled against the state in a property rights case over execution drugs the state had illicitly obtained. The judge ruled that the drug distributors should get their drugs back. This had the effect of delaying scheduled executions. Griffen ruled the same day he participated in a church demonstration against the death penalty at the Governor’s Mansion.

Griffen has sued, so far unsuccessfully, against removal from death penalty cases and has said the Supreme Court should not hear his case on that issue because of improper ex parte communications outside court. Ernest Dumas burrowed into this controversy earlier this summer.

Here’s the full Rutledge petition.

It asks the court to overrule Griffen on a ruling from the bench in the case as well as seeking his removal. He refused a protective order on evidence sought in the appeal and set a short time line for response. On disqualifying him, Rutledge says:

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Petitioners respectfully ask the Court to remove Judge Griffen from this case and all other cases in which the Office of the Attorney General is involved. Judge Griffen has a long history of unprofessional, improper, and biased conduct in cases involving the Attorney General’s Office and cannot be considered remotely impartial in cases involving the Attomey General’s Office. At a minimum, he cannot avoid the appearance of unfairness and his impartiality might reasonably be questioned.

This is, to put it mildly, an extraordinary move in the midst of a court proceeding. Challenging an evidentiary order as beyond his authority on ground of sovereign immunity is one thing. But removing a judge from all civil cases of the state of Arkansas?

Rutledge knows well this action will play well to the voters to which she and her party appeal. Wendell Griffen is a popular punching bag with Republican politicians. See Sen. Trent Garner particularly.

It’s important to note the appeal goes to a court that Griffen has suggested — with some evidence — as being biased against him.

The attorney general, indeed, cites the death penalty issue as proof that he should be removed after saying:

Moreover, a supervisory writ also lies with regard to Judge Griffen’s improper, unprofessional, abusive, and biased conduct against Attorney General staff in numerous cases. This bias has repeatedly prejudiced the Attorney General’s clients, who include most instrumentalities of the State of Arkansas.

 

Judge Griffen’s conduct towards the State and the Attorney General’s Office, therefore, harms “public confidence in the independence, integrity, and impartiality of the judiciary.”

There’s much more. A lot of it boils down, it appears, to the fact that Griffen often rules against the state and isn’t very nice about it. The state isn’t entitled to presumption of correctness, of course. And some judges are nicer than others. But there is a place to take complaints about temperament, the Judicial Discipline and Disability Commission, which in its history has called down judges for their demeanor. But I’m not aware they’ve ever removed judges from all cases of a complaining counsel. On Rutledge goes:

Judge Griffen has for years exhibited a pattem and practice of
injudicious conduct that establishes he lacks impartiality, judicial temperament, and an ability to fairly adjudicate cases involving the Attorney General’s Office.

 

Multiple Assistant Attomeys General who have appeared in his Court have reported that Judge Griffen regularly yells at them, refuses to allow them to make a record or preserve arguments for appeal, belligerently argues with State attorneys and State witnesses, rules against the State despite a preponderance of the evidence and/or controlling case law in its favor, and imposes unfair requirements (such as unreasonably shortening time) in their cases. When State attorneys attempt to do their jobs and advocate for their clients, Judge Griffen routinely erupts in anger, treating the lawyers’ advocacy for their clients as personal attacks on his authority as the trial judge. The transcript of the recent motions hearing in this case, which is being transcribed by the court reporter and will be submitted to the Court as soon as it is available, reflects just ore recent example of Judge Griffen’s unprofessional and unjudicial conduct.

 

Judge Griffen also routinely bullies Assistant Attorneys General by threatening them with sanctions and even finding, sua sponte and without notice or an opportunity to be heard, that their good-faith representation of their clients violates Arkansas Rule of Civil Procedure.

Rutledge also said Griffen had falsely made a misconduct complaint, later withdrawn, against the attorney general’s office for alleged out-of-court contact with the Supreme Court on the death penalty case. She complains further he’s written disparagingly about her on his blog. (Maybe that’s why she’s barred herself from talking to the Arkansas Times.)

She said the harm to the state was simply too great not to ask for Griffen’s blanket removal from all civil cases involving the attorney general.

The filing was submitted in the name of Rutledge and her solicitor general, Nicholas Bronni and signed by Jennifer Merritt, a senior assistant attorney general.

In Laux’s formal response, he might do well to ask the attorney general if this filing is a political ploy. Rutledge has refused to say whether she will file for Arkansas Supreme Court herself this year to succeed Justice Jo Hart, who’s past retirement age but hasn’t said if she’ll run again. Hart and Rutledge are close. There have been rumors Hart has been keeping quiet on plans to set up a last-minute run by Rutledge without opposition. That plan has been disturbed by Judge Chip Welch’s announcement that he’s planning to make the race.

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I’ve said before that Wendell Griffen talks and writes too much for his own good, however much the Constitution should protect that speech from government restriction. He can be imperious and condescending. In recent weeks, I’ve found myself essentially lumped in his writings with “white supremacists and sycophants” for not joining his excoriation of those supporting an Elaine Massacre memorial in Helena. (Background here.)

But Wendell Griffen is entitled to his opinions and he is often right. He was right on the execution drug case, to name one, as another judge ruled. He’s right, as Ernest Dumas explains, that the Supreme Court has tarnished itself in politically motivated actions directed at Griffen (encouraged by Republican politicians, including a former Republican senator on the court).

Also: The removal action can’t be separated from his race. It is politically safe — maybe even a plus — in Arkansas these days to go after an outspoken black man like Wendell Griffen.

Just remember that Leslie Rutledge is NOT the state. She is only its elected representative. Rutledge’s record of animus toward women’s rights, gun safety, the environment, organized labor, sexual minorities and many others might lead me to say she’s not fit to fairly represent the people of Arkansas in court. But the electoral system says otherwise. And there are avenues of appeal and higher courts to judge her on the legal issues.

Rutledge should fight Griffen on legal grounds. But this case is not a sure thing. The sovereign immunity issue has been turned into a hopeless morass by a divided Supreme Court. She’s not entitled to an immediate free pass in Griffen’s or any other court. Losing a motion on the point is not prima facie evidence of bias.

lf there is a provable case of unacceptable judicial conduct, there’s a venue for that, too, the Judicial Discipline and Disability Commission. Not an emergency pleading to an already over-politicized Supreme Court.

Given the Supreme Court’s mishandling of the execution case, however, Rutledge has reason to like her odds.