A Judicial Balancing Act: Evaluating the First Amendment Claims of Sitting Judges.

• Author: Charlton, Zeb J.

1. INTRODUCTION

   On April 14, 2017, members of the New Millennium Church in Little Rock, Arkansas, gathered outside of Arkansas's Governor's Mansion to protest capital punishment. (1) The mansion's resident, Governor Asa Hutchinson, had recently scheduled eight executions for the month of April. (2) Two members of the congregation held signs reading, "Other states are trying to abolish the death penalty[,] mine's putting it on express lane." (3) New Millennium Church's lead minister Wendell Griffen lay on a cot in front of his parishioners to symbolize the use of capital punishment on Jesus Christ. (4)

   In addition to serving as pastor of New Millennium Church, Wendell Griffen serves as an elected judge on Arkansas's Sixth Judicial Circuit. (5) On the same day as the protest, Judge Griffen was assigned to oversee a drug manufacturer's lawsuit involving Arkansas's use of the drug vecuronium bromide in executions. (6) Judge Griffen granted the drug manufacturer's request for a temporary restraining order, preventing the use of vecuronium bromide in Arkansas executions until further notice. (7) Arkansas's Attorney General immediately appealed Judge Griffen's order, arguing that Judge Griffen's participation in the Governor's Mansion protest and subsequent ruling violated Arkansas's Code of Judicial Ethics. (8) The Attorney General requested that Judge Griffen's temporary restraining order be overruled and that Judge Griffen be removed from further proceedings in the instant case. (9)

   The Arkansas Supreme Court subsequently overruled Judge Griffen's temporary restraining order and removed Judge Griffen from all present and future cases involving capital punishment. (10) Judge Griffen filed suit against the Arkansas Supreme Court, alleging, inter alia, that his First Amendment freedom of speech rights had been violated. (11)

   The proper constitutional standard for evaluating the First Amendment claims of sitting judges has been an open question since Republican Party of Minnesota v. White. (12) This Note argues the balancing test governing the First Amendment rights of public employees created in Pickering v. Board of Education (13) should be used to adjudicate the First Amendment suits of active state judges. Pickering's balancing test is then applied to the First Amendment retaliation claims of Judge Wendell Griffen against the Arkansas Supreme Court and its justices to demonstrate the operation of the balancing test in this context. (14) The Note concludes with a short discussion of permanent reassignment, the Arkansas Supreme Court's selected remedy in this case.

2. FACTS AND HOLDING

   Unlike the majority of judges in the American judicial system, Judge Wendell Griffen of Arkansas's Sixth Circuit does not shy away from commenting on public issues. (15) The Judge describes himself on Twitter as a "Pastor, judge, social justice advocate, and consultant on cultural competency, justice, and relation between faith and public policy." (16) From December 2014 to January 2019, Griffen regularly posted political, religious, and social commentary on his personal blog titled "Justice is a Verb!" (17) Judge Griffen blogged on contemporary political topics such as President Donald Trump, (18) the contentious nomination of Justice Brett Kavanaugh, (19) and white supremacy. (20)

   Judge Griffen also frequently disclosed his personal views of the death penalty on "Justice is a Verb!" (21) On April 10, 2017, Judge Griffen's post entitled "Religious Faith and Homicidal Motives During the Holy Week" contained the following statement:

   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. (22) Later that week, on April 14, Judge Griffen participated in an anti-death penalty rally at the Governor's Mansion. (23) Judge Griffen subsequently led a prayer vigil with his congregation outside of the Governor's Mansion. (24) After the vigil concluded, Judge Griffen laid on a cot "in solidarity with Jesus." (25)

   On the same day, McKesson Medical-Surgical, Inc., a distributor of the drug vecuronium bromide, (26) sued the State of Arkansas, the Arkansas Department of Corrections, Arkansas Governor Asa Hutchinson, and Arkansas Department of Corrections Director Wendy Kelley. (27) The suit was assigned to Judge Griffen. (28) McKesson argued the State had obtained the drug under false pretenses and requested the State return the drug before it was used in any executions. (29) McKesson sought a temporary restraining order ("TRO") in the case. (30) On April 14, Judge Griffen granted McKesson's request for a TRO, preventing the State from "us[ing] the vecuronium bromide obtained from [McKesson] until ordered otherwise by this Court." (31)

   The Arkansas Attorney General subsequently filed an emergency petition seeking a writ of mandamus with the Arkansas Supreme Court. (32) The Attorney General requested the Arkansas Supreme Court vacate Judge Griffen's TRO and remove Judge Griffen from further proceedings in the case. (33) The Attorney General's brief stated that Judge Griffen's past conduct, primarily his protest on April 14, violated Arkansas Code of Judicial Conduct Rule 2.11(A)(5). (34) Notably, the Attorney General's emergency petition hinted Judge Griffen would be unfit to hear any death penalty case, arguing that "Judge Griffen cannot be considered remotely impartial on issues related to the death penalty." (35)

   On April 17, the Arkansas Supreme Court granted the Attorney General's mandamus petition. (36) In granting the petition, the court went beyond the stated request of the Attorney General, and "immediately reassigned all cases in the Fifth Division that involve the death penalty or the state's execution protocol, whether civil or criminal." (37) In a lone published dissent, Chief Justice John Dan Kemp would have only removed Judge Griffen from the present case, citing the lack of formal investigation into Judge Griffen's alleged bias in capital punishment cases. (38) The Arkansas Supreme Court also referred Judge Griffen to the "Judicial Discipline and Disability Commission to consider whether he ha[d] violated the Code of Judicial Conduct." (39)

   Judge Griffen sued the Arkansas Supreme Court and its justices in the United States District Court for the Eastern District of Arkansas. (40) Judge Griffen brought his claim under several grounds, including: First Amendment freedom of speech retaliation, First Amendment religious exercise retaliation, violation of Arkansas's Religious Freedom Restoration Act, denial of his Fourteenth Amendment procedural due process rights, violation of his Fourteenth Amendment equal protection rights, and civil conspiracy. (41)

   The justices of the Arkansas Supreme Court filed a motion to dismiss, arguing that Judge Griffen had stated no plausible grounds for relief. (42) The district judge refused to grant the Arkansas Supreme Court justices' motion to dismiss. (43) On April 13, Judge Griffen sought discovery on the Arkansas Supreme Court's internal deliberations regarding Judge Griffen's temporary restraining order and subsequent litigation. (44) On April 24, the Arkansas Supreme Court justices petitioned the United States Court of Appeals for the

   Eighth Circuit for a writ of mandamus preventing Judge Griffen from engaging in discovery. (45)

   In a two-to-one decision, the Eighth Circuit granted the Arkansas Supreme Court justices' mandamus petition and vacated the district court's denial of the justices' motion to dismiss. (46) However, the court refused to discuss the justices' argument that allowing discovery to proceed would interfere with "judicial independence and federalism." (47) The court believed it would be unnecessary to wade into the delicate area of federal-state relations if Judge Griffen failed to state a claim for which relief could be granted. (48)

   In the lone dissenting opinion, Judge Kelly would have granted the Arkansas Supreme Court justices' petition for a writ of mandamus, but only regarding Judge Griffen's discovery attempt. (49) In Judge Kelly's view, the petitioners in the case did not adequately exhaust their remedies at the district court level. (50) Judge Kelly reasoned that, without a total exhaustion of remedies at the lower level, the petitioners still had other adequate means to find the relief they desired, and the court should reject the mandamus petition. (51) Judge Kelly would later cast the sole vote in favor of granting Judge Griffen's motion for a rehearing en banc, (52) but did not file an opinion detailing her reasoning. (53)

   In June 2019, the Arkansas Judicial Discipline and Disability Commission dismissed the pending ethics action against Judge Griffen. (54) Pursuant to this dismissal, Judge Griffen petitioned the Arkansas Supreme Court to reinstate his ability to hear death penalty cases. (55) The Arkansas Supreme Court denied Judge Griffen's petition in a per curiam order, ruling that Judge Griffen had not filed a timely petition for rehearing. (56)

3. LEGAL BACKGROUND

   The proper framework for analyzing the extrajudicial speech of sitting judges has been the subject of disagreement among twenty-first...