Supreme problems

A lot of attention is focused on goings-on related to the U.S. Supreme Court – and rightly so given the stakes and given the nature of the saga that continues to unfold.

But, lost in the shuffle is the fact that 2 state Supreme Courts in our nation are, at present, entirely in a state of disarray.  One of them – West Virginia – has descended into chaos as a result of something that appears, to some extent, to simply be a naked political power play.  The West Virginia legislature has impeached all 4 0f the justices remaining on its state supreme court.  That court has only 4 justices because one resigned shortly before the impeachment proceedings were set to begin.  Some media reports focus on the fact that this effort could permit the current Governor of West Virginia to appoint an entirely new state supreme court.  But the effort seems to go beyond party-line politics as elections for the West Virginia Supreme Court became non-partisan in 2015 and two of the justices impeached previously ran as Republicans while two had run as democrats.  And to make matters a bit less clear, one of the four justices also is the subject of a 20+ count federal indictment, and the one who resigned before impeachment proceedings began has also agreed to plead guilty to a criminal charge.  The impeachment charges vary a bit as the only thing that all four justices alike were charged with was failing in their administrative duties, three of them were impeached for paying senior status judges more than the law allows, and two of them were also impeached in connection with monies they spent refurnishing their offices.

The other situation also has the portent of removal from office of a majority of members of a state’s highest court but involves the prosecution of a judicial ethics complaint instead of something that is complicated by issues involving separation of powers and what sort of role politics is playing in the process.

In Arkansas, the Judicial Discipline and Disability Commission filed formal disciplinary charges against six of the seven sitting justices in that state over the Court’s treatment of a trial court judge.  The trial court judge filed a disciplinary complaint against all seven of the justices, and, just this past week, a special disciplinary counsel has filed a formal complaint for discipline against 6 justices for their actions in ordering that all of the trial court’s cases involving the death penalty be reassigned after giving the trial judge next to no notice of what was happening.

Now there is certainly a political undercurrent to the Arkansas situation – given that the underlying issues revolve around the death penalty – but, unlike what appears to be going on in West Virginia, the Arkansas process at least feels less like anything that could be described as a political power grab.

You can read the 10-page disciplinary complaints against each of the six justices here [each complaint is essential identical), but let me offer a very short synopsis of the events.

Arkansas, like my own state, has watched its judicial process struggle with questions about the mechanics involved in carrying out death penalty sentences, specifically questions about whether the use of a particular three-drug compound to accomplish lethal injection is constitutional or amounts to cruel and unusual punishment.

In Arkansas, a lawsuit was filed on April 14, 2017 by one of the manufacturers of one of the drugs proposed to be used in Arkansas’s three-drug protocol seeking an order that the State of Arkansas not be permitted to use its drug for that purpose.

That case was assigned to Judge Wendell Griffen, and Judge Griffen swiftly entered a requested TRO prohibiting such use by 4:25 pm on April 14.  Judge Griffen is outspoken in his personal opposition to the death penalty and even reportedly participated in an anti-death penalty march around the time of the entry of this injunction.  The Arkansas Attorney General immediately filed an emergency petition for mandamus and prohibition on the next day April 15, which was a Saturday.  The Attorney General was seeking to have the TRO vacated and Judge Griffen removed from the case.  By a little before noon on April 15, the Court sent out a notice providing the parties with a deadline for responding to the petition by 3:00 pm on that Saturday.  Because of the nature of the proceeding – one seeking mandamus and prohibition – Judge Griffen should have been copied on all of the filings to this point but had not been.  The Clerk of the Court realized later in the day that Judge Griffen had not been given any notice and sent an email with copies of the filings to Judge Griffen’s chambers email address just before 4:30 pm on that Saturday providing a deadline for responding by 9:00 a.m. on Monday April 17, 2017.

When that deadline came and went without a response from Judge Griffen, the Arkansas Supreme Court entered an order that not only vacated the TRO but made a ruling regarding Judge Griffen that no party had requested – that all the cases assigned to him involving the death penalty were to be reassigned and that any future cases also be reassigned and that he be referred to the Committee for potential discipline.

Ten days later, Judge Griffen filed a judicial disciplinary complaint against all seven members of the Arkansas Supreme Court.  In what seems like a remarkably bad judgment call, one of the justices responded – apparently on behalf of all of them – with an argument that the Commission did not have jurisdiction to take any action.

The fundamental takeaway from the decision of the Judicial Discipline and Disability Commission to move forward with formal charges is difficult to pinpoint as the order finding probable cause does not directly engage in much analysis of any particular judicial ethics rule.  Rather, the order sets out a number of rules stated as being implicated in evaluating all the parties but does not do more than that.  The only one in the mix that seems to apply directly to the question of the justices conduct in taking action against Judge Griffen with the barest of notice though is Arkansas Code of Judicial Conduct Rule 2.6(a): “A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law.”

The other rules flagged largely would appear to be more pertinent to questions about whether it is appropriate for Judge Griffen to hear cases involving the death penalty or not.  Along those lines, the order manages with one noteworthy paragraph to put in stark relief the Commission’s willingness to conclude that the justice may have acted arbitrarily and capriciously and explain why those who would jump to a conclusion about whether Judge Griffen’s conduct was wrongful should not move so hastily:

In acting on such matters involving judges, it is important to consider the well established case law that judges are presumed to be impartial and unbiased and presumptively will act with honesty and integrity in adjudicating cases.  [citations omitted] A personal belief of a judge, even if expressed publicly by word or conduct, is insufficient to overcome this strong presumption of a judge’s impartiality in ruling on matters of law before the court.

Any outcome in this matter will certainly bear watching.  Not only is a special prosecutor involved in the bringing of the charges, but any ultimate resolution of the case would likely eventually have to be heard by a specially-appointed set of replacements for the sitting justices.

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