In a brief order yesterday, the Arkansas Supreme Court denied Attorney General Leslie Rutledge‘s multi-faceted motion in a marijuana permit appeal that included a request that Circuit Judge Wendell Griffen by removed from all cases involving the attorney general’s office on account of his sharp questioning of a lawyer in Rutledge’s office.
As we reported yesterday, the motion was denied 4-3. The brief, unsigned order said Justices Karen Baker, Rhonda Wood and Shawn Womack would take the motion “as a case.”
The Arkansas Democrat-Gazette’s John Moritz got a statement from Rutledge’s office about the decision. Rutledge’s spokesman continued to insist Griffen was biased and the article continued:
“The decision proves the Court is divided on this request with three of the seven justices agreeing that our request has merit,” said the statement from Rutledge’s spokeswoman, Rebecca Jeffrey.
May it please the court: This statement may or may not be accurate as to the court’s position on the removal of Griffen from all state cases.
The record: After Griffen refused to dismiss a marijuana permit denial by a state agency, Rutledge’s office filed an emergency motion.
That motion requested first that Griffen’s order allowing discovery to proceed in the case be set aside. The argument was that allowing access to state files in the case was a violation of sovereign immunity, a recently court-stiffened doctrine that prevents the state from being sued. The state also asked that Griffen be removed. It also asked for a stay of his order and for a writ of certiorari, or an acknowledgment that Griffen had abused discretion in allowing the case to go forward. The motion argued extensively that Griffen doesn’t have jurisdiction in the case and that sovereign immunity bars the lawsuit.
As the order shows, the state asked for a writ of mandamus, a writ of prohibition, a writ of certiorari, a supervisory writ (removal from all state cases) and a stay of proceedings.
All those requests were denied yesterday, though three justices would have taken the motion “as a case.” Does that mean all three agreed with Rutledge’s claim of Griffen bias? Maybe. Maybe not.
If I were betting I’d bet sympathy for that notion could be found with Justices Wood and Womack, highly political justices (Republican) and prime movers in the abrupt removal of (outspoken Democrat) Griffen from death penalty cases after his participation in a death penalty protest. But I don’t know this for sure.
Justice Baker? Who knows? But let’s get into precedent. Baker was a dissenter in the Supreme Court decision that broadened the use of sovereign immunity as a defense of lawsuits against the state. Since then, including yesterday, she’s written a series of fiery opinions saying, essentially: By golly, if we’re to have sovereign immunity, let’s have sovereign immunity. She’d seemingly make quick work of any lawsuit against the state by invalidating it (all the while commenting what a crazy situation that new precedent has created — is there really no recourse to appeal state administrative actions?). Only guessing here, but I could see her finding favor with the state’s motion on the sovereign immunity question in this particular case. That would moot the entire case.
Just yesterday, in an appeal of a convoluted case by UALR law professor Robert Steinbuch over his effort to dig into student records, she cited the landmark ruling that expanded the sovereign immunity doctrine to say the state shall “never” be made a defendant in its courts. She wrote in that case:
… pursuant to Andrews, Steinbuch’s pleadings are inconsequential because the State cannot be sued under any circumstances—never means never.
I’m guessing, when this marijuana permit case is finally decided, we might hear similar commentary from Baker.
So I’m only guessing. But my point is that Rutledge’s office was guessing as well in seeming to assert the three votes yesterday amounted to the validation of its argument about Griffen bias.
I will affirm that it’s safe politics for Republicans to beat up on Wendell Griffen, an outspoken black man with liberal leanings, whether in court pleadings or public statements. He enjoys no immunity from the First Amendment right for which he is occasionally punished.