An Arkansas ethics board has filed dis­ci­pli­nary charges against six mem­bers of the Arkansas Supreme Court alleg­ing that they vio­lat­ed the canons of judi­cial ethics in remov­ing a tri­al judge from all death-penal­ty cas­es as a result of the judge’s par­tic­i­pa­tion in an anti-death-penalty vigil. 

On September 20, 2018, the Arkansas Judicial Discipline and Disability Commission announced that it had filed for­mal dis­ci­pli­nary charges against state Supreme Court Chief Justice John Dan Kemp and Justices Robin Wynne, Courtney Goodson, Jo Hart, Karen Baker, and Rhonda Wood, after an inves­ti­ga­to­ry pan­el of the com­mis­sion found prob­a­ble cause that the Justices had ​“act­ed arbi­trar­i­ly and capri­cious­ly” in remov­ing Pulaski County Circuit Judge Wendell Griffen from drug dis­trib­u­tor McKesson Medical-Surgical, Inc.​‘s case against Arkansas for alleged mis­con­duct in obtain­ing exe­cu­tion drugs and from all pend­ing cas­es involv­ing the death penal­ty or the state’s exe­cu­tion pro­to­col. The pan­el found that the jus­tices had giv­en Judge Griffen no mean­ing­ful oppor­tu­ni­ty to respond to a motion filed by the state attor­ney gen­er­al’s office that sought to remove him from the McKesson lawsuit. 

Prosecutors had com­plained that Griffen, who is also a Baptist min­is­ter, had com­mit­ted mis­con­duct by strap­ping him­self to a mock gur­ney in front of the Governor’s man­sion as part of an April 14, 2017 Good Friday anti-death-penal­ty vig­il and protest. After the close of busi­ness that day, the attor­ney gen­er­al’s office noti­fied the state supreme court — but not Judge Griffen — that it intend­ed to seek his dis­qual­i­fi­ca­tion from pre­sid­ing over the McKesson case. On Saturday, April 15, the court set a 3:00 p.m. dead­line that day to respond to the attor­ney gen­er­al’s peti­tion, but failed to noti­fy Judge Griffen of its order. That same evening, the supreme court clerk’s office sent an email to Griffen’s cham­bers final­ly noti­fy­ing him of the pro­ceed­ings and giv­ing him until 9:00 a.m. Monday, April 17 to respond. 

The pan­el wrote: ​“It can­not be rea­son­ably assumed that Judge Griffen would receive the email at his cham­bers address on a week­end” and that he ​“could not have rea­son­ably been expect­ed to have effec­tu­at­ed a mean­ing­ful response to the state’s peti­tion to remove him from the McKesson case.” Even more seri­ous­ly, the pan­el found that Griffen ​“was nev­er giv­en notice of, and the oppor­tu­ni­ty to be heard on, the Supreme Court’s ulti­mate action — [his removal] from all death penal­ty and exe­cu­tion pro­to­col cas­es pend­ing and in the future.” 

None of the par­ties to the McKesson lit­i­ga­tion ​“had even raised or argued the issue of Judge Griffen’s blan­ket dis­qual­i­fi­ca­tion,” the pan­el said, only dis­qual­i­fi­ca­tion from the McKesson case. Nonetheless, the pan­el wrote, the jus­tices went beyond the request­ed rem­e­dy and ​“act­ed sua sponte to remove judi­cial duties from Judge Griffen which he would oth­er­wise have been legal­ly oblig­at­ed to dis­charge regard­ing oth­er death penal­ty and exe­cu­tion protocol cases.” 

The pan­el con­clud­ed, ​“where dis­ci­pli­nary action is tak­en against anoth­er judge with­out suf­fi­cient notice to that judge and goes beyond the relief request­ed by any par­ty, we believe that such arbi­trary and capri­cious con­duct could form the basis for dis­ci­pli­nary action by the Commission of the judge or judges order­ing the action tak­en against anoth­er judge.” The ethics pan­el did not find prob­a­ble cause to believe that the jus­tices had any improp­er com­mu­ni­ca­tions with the attor­ney gen­er­al’s office in remov­ing Griffen from the death-penal­ty cas­es and dis­missed those alle­ga­tions against the justices.

The pan­el’s action does not mean that Judge Griffen has been cleared of mis­con­duct charges filed against him aris­ing out of his death-penal­ty protest. A dis­ci­pli­nary hear­ing in his case is now sched­uled for March 22, 2019.