In re Kemp

Citation894 F.3d 900
Decision Date02 July 2018
Docket NumberNo. 18-1864,18-1864
Parties IN RE: Honorable John Dan KEMP; Honorable Robin F. Wynne; Honorable Courtney Hudson-Goodson; Honorable Josephine L. Hart; Honorable Shawn A. Womack; Honorable Karen R. Baker ; Honorable Rhonda K. Wood, Petitioners
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Robert S. Peck, CENTER FOR CONSTITUTIONAL LITIGATION, Washington, DC, for Petitioners In re: Honorable John Dan Kemp, Honorable Robin F. Wynne, Honorable Shawn A. Womack.

Matt Keil, KEIL & GOODSON, Texarkana, AR, Michael W. Kirk, William C. Marra, David H. Thompson, COOPER & KIRK, Robert S. Peck, CENTER FOR CONSTITUTIONAL LITIGATION, Washington, DC, for Petitioner Honorable Courtney Hudson-Goodson.

Kenneth P. Castleberry, Alfred F. Thompson, III, MURPHY & THOMPSON, Batesville, AR, Robert L. Henry, III, BARBER LAW FIRM, Little Rock, AR, Robert S. Peck, CENTER FOR CONSTITUTIONAL LITIGATION, Washington, DC, for Petitioner Honorable Josephine L. Hart.

Timothy Oliver Dudley, DUDLEY & COMPTON, Little Rock, AR, Robert S. Peck, CENTER FOR CONSTITUTIONAL LITIGATION, Washington, DC, for Petitioner Honorable Karen R. Baker.

David B. Meschke, Christopher O. Murray, BROWNSTEIN & HYATT, Denver, CO, Robert S. Peck, CENTER FOR CONSTITUTIONAL LITIGATION, Washington, DC, for Petitioner Honorable Rhonda K. Wood.

Before COLLOTON, BENTON, and KELLY, Circuit Judges.

BENTON, Circuit Judge.

The Honorable Wendell Griffen, an Arkansas trial judge, sued the Arkansas Supreme Court and Justices John Dan Kemp, Robin F. Wynne, Courtney Hudson Goodson, Josephine L. Hart, Shawn A. Womack, Karen R. Baker, and Rhonda K. Wood, in their official capacities, alleging they violated his constitutional rights by permanently barring him from presiding over death penalty cases. The district court dismissed the claims against the Arkansas Supreme Court as barred by sovereign immunity. The court denied the Justices' motions to dismiss. The Justices now petition this court for a writ of mandamus, to direct the district court to dismiss Judge Griffen's complaint with prejudice. Having jurisdiction under 28 U.S.C. § 1651(a), this court grants the writ, vacates the district court's order denying the Justices' motions to dismiss, and directs the district court to dismiss Judge Griffen's complaint.

I.

In 2010, Judge Griffen, an African-American and ordained Baptist minister, was elected as a judge on the Sixth Judicial Circuit of Arkansas (the Fifth Division).

In 2016, he was reelected to a six-year term.

On April 10, 2017, Judge Griffen wrote a blog post stating, in part:

Premeditated and deliberate killing of defenseless persons—including defenseless persons who have been convicted of murder—is not morally justifiable. Using medications designed for treating illness and preserving life to engage in such premeditated and deliberate killing is not morally justifiable.
Any morally unjustified and unjustifiable killing produces moral injury. Beginning a week from today, and three days after Good Friday—on Monday, April 17—the political, religious, commercial, and social captains of empire in Arkansas will commence a series of morally unjustified and unjustifiable killings. Each death will be a new, and permanent, moral injury. These deaths will join the existing long list of atrocities, oppression, and other moral injuries associated with our state to cause people around the world to associate Arkansas with bigotry, hate, and other forms of injustice as long as human memory continues.

On April 14 (Good Friday), Judge Griffen participated in an anti-death penalty rally on the steps of the Arkansas Capitol. Later that day, he attended a prayer vigil with his church outside the Arkansas Governor's Mansion. During the vigil, he "laid on a cot in solidarity with Jesus."

Also on April 14, McKesson Medical-Surgical, Inc., a distributor of the drug vercuronium bromide, sued the State of Arkansas, the Arkansas Department of Correction, Arkansas Governor Asa Hutchinson (in his official capacity), and the Director of the Arkansas Department of Correction (in her official capacity), alleging they obtained the drug under false pretenses, intentionally failing to disclose its use in upcoming executions. McKesson sought a temporary restraining order, preventing the state from using the drug and seeking its return. The case was assigned to Judge Griffen. That day, he issued a TRO prohibiting defendants from "us[ing] the vercuronium bromide obtained from Plaintiff until ordered otherwise by this Court."

The next day, the Arkansas Attorney General (on behalf of the McKesson defendants) filed an emergency petition for writ of mandamus with the Arkansas Supreme Court, seeking to vacate the TRO and remove Judge Griffen from the case. The petition said:

Judge Griffen cannot be considered remotely impartial on issues related to the death penalty. Judge Griffen has demonstrated that he is unlikely to refrain from actual bias regarding matters related to the death penalty, and at a minimum, he cannot avoid the appearance of unfairness and his impartiality might reasonably be questioned. See Arkansas Code of Judicial Conduct Rules 1.2, 2.2, 2.3(A), 2.10(A), 2.10(B), 2.11(A).

Rule 2.11(A)(5) of the Arkansas Code of Judicial Conduct states:

A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to the following circumstances: The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.

Citing Rule 2.11, the Arkansas Supreme Court issued a per curiam order (Order No. 17-155), to "immediately reassign all cases in the Fifth Division that involve the death penalty or the state's execution protocol, whether civil or criminal," including all "future cases involving this subject matter." The order also referred Judge Griffen "to the Judicial Discipline and Disability Commission to consider whether he has violated the Code of Judicial Conduct."

Five months later, Judge Griffen sued the Arkansas Supreme Court and the Justices in federal court, alleging First Amendment retaliation, violation of the Arkansas Religious Freedom Restoration Act, denial of his procedural due process rights, violation of his equal protection rights, and civil conspiracy. The defendants moved to dismiss, arguing no plausible claims for relief. The district court dismissed the claims against the Arkansas Supreme Court as barred by sovereign immunity. It also held that Judge Griffen was "precluded from seeking injunctive relief against the individual Justices in their official capacities pursuant to Section 1983." However, without analysis, it denied the Justices' motions to dismiss, ruling that "the Court cannot state that Plaintiff has failed to state plausible claims for relief."

On April 13, 2018, Judge Griffen sought discovery on "All Documents and Communications regarding" Judge Griffen, his conduct in death penalty cases, his religion or race, his public statements about the death penalty, his participation in anti-death penalty rallies, his "fitness or perceived fitness to serve as a judge," his grant of the TRO, his potential impeachment, the Arkansas Attorney General's request for his recusal, and the Supreme Court's issuance of Order 17-155. (The district court later stayed discovery, pending the outcome of this petition).

On April 24, the Justices petitioned this court for a writ of mandamus, to vacate the district court's order denying their motions to dismiss and order dismissal of all claims with prejudice.

II.

"Extraordinary writs like mandamus are ‘useful safety valves for promptly correcting serious errors.’ " In re Lombardi , 741 F.3d 888, 893 (8th Cir. 2014) (en banc), quoting Mohawk Indus., Inc. v. Carpenter , 558 U.S. 100, 111, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009). However, " ‘only exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion’ will justify the invocation of the extraordinary remedy of mandamus." Id. at 893-94, quoting Cheney v. United States Dist. Court for D.C. , 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004). To grant a writ of mandamus, this court weighs three factors: (1) the "petitioning party must satisfy the court that he has ‘no other adequate means to attain the relief he desires;’ " (2) "his entitlement to the writ is ‘clear and indisputable;’ " and (3) " ‘the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.’ " Id. at 894, quoting Cheney , 542 U.S. at 380-81, 124 S.Ct. 2576.

The Justices argue that subjecting "internal deliberations in a judicial matter to discovery will evade appellate review" and "threaten[ ] judicial independence and federalism." While these concerns are "significant and complex," this court "express[es] no view on them, because it is clear and indisputable that the discovery" sought by Judge Griffen "is not relevant to any claim that should survive a motion to dismiss." Id. at 895. "Although denial of a motion to dismiss ordinarily is not appealable, a writ of mandamus to correct an erroneous denial may be warranted in extraordinary circumstances where continued litigation would have significant unwarranted consequences." Id. "Discovery orders likewise are not ordinarily appealable, but mandamus may issue in extraordinary circumstances to forbid discovery of irrelevant information, whether or not it is privileged, where discovery would be oppressive and interfere with important state interests." Id. "These propositions taken together, along with the unavailability of alternative means for ... relief, lead [this court] to conclude that a writ should issue." Id.

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