'HE WAS FOLLOWING THE LAW:' Austin Porter says his client, Circuit Court Judge Wendell Griffen, was simply carrying out his duty as judge during his questioning of Jennifer Merritt, a senior assistant attorney general, in a Sept. 13 hearing. Rebekah Hall

On Tuesday morning, Circuit Judge Wendell Griffen replayed in his courtroom the audio recording of a Sept. 13 hearing on a challenge of the state’s refusal to consider a marijuana dispensary permit for Carpenter Farms. Griffen’s replaying of the audio comes after Attorney General Leslie Rutledge petitioned the Arkansas Supreme Court to bar the judge from hearing cases in which the attorney general’s office participates. Rutledge said Griffen “routinely erupts in anger” to state attorneys, specifically citing the Sept. 13 hearing as an example of rude behavior. 

Rutledge submitted an “emergency” petition to the Arkansas Supreme Court Sept. 18 after Griffen denied the state’s request to dismiss the appeal of Carpenter Farms. In addition to asking that Griffen be barred from hearing all civil cases of the state, Rutledge’s petition was an effort to overturn an order that the state produce evidence sought in Carpenter Farms’ challenge of its denial of a marijuana dispensary permit. The state claimed sovereign immunity in the case, which prevents the government from being sued without its consent, but Griffen ruled against a protective order, in turn requiring the state to provide evidence and to do so in a short timeline. 

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The attorney general’s motion for disqualification didn’t cite specific Griffen comments, but promised a record of the hearing would be filed. Griffen announced yesterday he’d play the audio recording for all who wanted to listen.

In the recording, Griffen can be heard repeatedly interrupting Jennifer Merritt, a senior assistant attorney general who represented the state in seeking to dismiss the Carpenter Farms challenge. He instructed her to answer his questions and cut her off or talked over her after she answered the question to his satisfaction but before she could elaborate.

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Griffen raised his voice in a few terse exchanges between the state and the court. Merritt argued that because Carpenter Farms’ dispensary application was disqualified for consideration by the state Medical Marijuana Commission, it was not subject to the same review process granted to denied applicants — those whose applications were denied after being scored. Griffen asked Merritt if she was saying that the state could apply different standards to disqualified applicants than it does to denied applicants; Merritt says that was not a fair question. Griffen then asked Merritt if she can see where the lettering on the front of his dais reads “judge.” Merritt replied that she could. 

“That means I get to decide whether the questions are fair,” Griffen said. “Let’s pretend I’m the judge and you’re the lawyer.” 

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Griffen also cut off and talked over the lawyer representing Carpenter Farms, but less frequently. 

Later in the recording of the hearing, Merritt said she was having difficulty answering Griffen’s questions because he was interrupting her.  Griffen replied that interrupting her to ask questions is “part of my prerogative.” 

Merritt argued that because the Medical Marijuana Commission was an administrative body, not a ruling one, its denial of an application “does not require adjudication.” Griffen asked how she could say there was no “subject matter jurisdiction” for the Circuit Court to even hear the complaint. Merritt again told Griffen that he wouldn’t let her answer the question. 

“I don’t let you finish because I know you’re not answering my question,” Griffen replied. 

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In his ruling from the bench Sept. 13, Griffen called the state’s argument “absurd on its face” and denied its motion to dismiss Carpenter Farms’ challenge.

The Arkansas Supreme Court currently has Rutledge’s request for Griffen’s disqualification under advisement, as well as the attorney general’s argument that the judge’s ruling on the evidentiary issue be overruled because of sovereign immunity. 

After the recording of the hearing was played, Griffen’s lawyer, Austin Porter, told reporters that in this “particular situation,” Griffen was “simply following the law.” 

“Whenever you have a motion to dismiss, the case law is very clear, that motions to dismiss are viewed disfavorably by the courts,” Porter said. “In this situation, the Attorney General filed a motion to dismiss, they had the burden of proof to establish that the court did not have jurisdiction, and so they had that burden. …  So we feel that Judge Griffen, in this situation, acted appropriately, and followed the law.” 

Porter said the purpose of replaying the recording of the hearing was to let the audio reveal whether Griffen mistreated Merritt during the proceedings. 

“There’s something the law calls the ‘silent witness rule,’ that [means] video speaks for itself, that tape speaks for itself,” Porter explained. “Therefore, you can make your own conclusion. That’s the point of this.” 

Porter also said that in his own experience as a lawyer, controlling their courtrooms and being “pretty tough” is “typically what judges do.” 

Griffen also spoke to reporters, telling them he has no animosity toward the attorney general’s office. 

“If you go to law school, one of the things you learn in the first week of law school is ‘be prepared.’ When you’re not prepared, expect the professor to show you [that] you’re not prepared,” Griffen said. “But there is no rule in the law that says that any lawyer has a right to only get rulings they like. There is no law that says judges only have to render decisions that lawyers like. And there is no law that requires judges who render decisions according to the law to not do so based on who the lawyers are who argue the case.” 

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Griffen also said the recording dispels the attorney general’s accusations that the judge was guilty of “mistreating a lawyer, of being abusive to a lawyer, of brow-beating a lawyer.” 

“The lawyer was never mistreated, nor did the lawyer allege that she was mistreated. The lawyer was thoroughly questioned,” Griffen said. “There’s [a thing] called ‘hot benches.’ Those of us who’ve tried cases know that a hot bench is a bench where when you walk in the courtroom, the judge has read the stuff and you’d better have your stuff together. Or if you don’t, you’ll feel the heat. I have a reputation of having a hot bench. That’s not wrong, that just means I’m prepared.” 

Griffen said that he treats all lawyers who appear in his courtroom the same way, and if one took a “poll” of those lawyers, “they will tell you, when you come into the Fifth Division, be prepared.” 

“When you come to this division, assume that the judge has read the case, has read the pleadings, had read the cases, and probably has read the footnotes on the cases,” Griffen said. “And if you are not right, assume the judge will know, and will call your short. 

“It’s called treating everybody the same,” Griffen added, lowering his voice almost to a whisper.  “That’s not being abusive. That’s being fair.”