In Re: Honorable John Kemp v. , 894 F.3d 900 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-1864
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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
lllllllllllllllllllllPetitioners
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: April 25, 2018
Filed: July 2, 2018
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Before COLLOTON, BENTON, and KELLY, Circuit Judges.
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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.”
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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.
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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.
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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 (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 (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.
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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Judge Griffen asserts six claims: (1) “First Amendment Retaliation on the
Basis of Speech;” (2) “First Amendment Retaliation on the Basis of Religious
Exercise;” (3) “Violation of the Arkansas Religious Freedom Restoration Act;” (4)
“Denial of Procedural Due Process;” (5) “Violation of the Equal Protection Clause;”
and (6) “Civil Conspiracy in Violation of 42 U.S.C. § 1985.” None of these states a
plausible claim for relief.
A.
Judge Griffen alleges that by permanently barring him from all death penalty
cases, the Arkansas Supreme Court “retaliated against Judge Griffen for exercising
his First Amendment right to free speech.” A First Amendment retaliation claim must
allege: (1) the plaintiff “engaged in a protected activity,” (2) “the government official
took adverse action” against the plaintiff “that would chill a person of ordinary
firmness from continuing in the activity,” and (3) “the adverse action was motivated
at least in part by the exercise of the protected activity.” Revels v. Vincenz, 382 F.3d
870, 876 (8th Cir. 2004).
The free speech claim fails for two reasons. First, Judge Griffen does not
allege he engaged in a protected activity. The recusal order applies to him in his role
as a public employee. See Bauer v. Shepard, 620 F.3d 704, 718 (7th Cir. 2010)
(“The recusal clause applies to a judge in his role as public employee.”). It thus
specifies how he “will perform official duties,” or rather, to which duties he is
assigned. Id. Citing Garcetti v. Ceballos, 547 U.S. 410 (2006), the Seventh Circuit
held that “[t]he state, as employer, may control how its employees perform their work,
even when that work includes speech (as a judge’s job does).” Id. Therefore, the
state also may “assign to each lawsuit a judge who has not made any statement that
commits or appears to commit the judge to reach a particular result or rule in a
particular way in the proceeding or controversy.” Id. (internal quotation marks
omitted). See Ligon v. City of New York, 736 F.3d 166, 169 n.8 (2d Cir. 2013) (“The
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freedom of speech protected by the First Amendment does not mean that there can be
no limitations, such as those contemplated under section 455(a), on what a federal
judge may say, much less on where she can say it, especially as it relates to pending
litigation. As discussed in our accompanying opinion, numerous courts of appeals
have reassigned cases due to an appearance of partiality that was traceable to speech
by a district judge.”).
Second, there is no adverse employment action. An “adverse employment
action must be one that produces a material employment disadvantage,” such as
“[t]ermination, cuts in pay or benefits, and changes that affect an employee’s future
career prospects,” or “circumstances amounting to a constructive discharge.” Kerns
v. Capital Graphics, Inc., 178 F.3d 1011, 1016 (8th Cir. 1999) (internal quotation
marks omitted). “Minor changes in duties or working conditions that cause no
materially significant disadvantage do not meet the standard of an adverse
employment action.” Id. at 1016-17. Recusal from death penalty cases is not an
adverse employment action. See Bauer, 620 F.3d at 718 (“No public employee is
entitled to do any particular task; a state may select the employee who can best do the
job. . . . [A] state may decide to assign each case to a judge whose impartiality is not
in question. . . . States are entitled to protect litigants by assigning impartial judges
before the fact, as well as by removing partial judges afterward.”).
Judge Griffen does not plausibly allege a free speech claim. The district court
erred in allowing this claim to proceed.
B.
Judge Griffen claims the “permanent reassignment in Order No. 17-155 chills
[his] religious exercise.” Yet, nothing in the order affects his right to practice
religion. “The Free Exercise Clause of the First Amendment, which has been made
applicable to the States by incorporation into the Fourteenth Amendment, provides
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that ‘Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.’” Employment Div., Dep’t of Human Res. of
Oregon v. Smith, 494 U.S. 872, 876-77 (1990) (internal citation omitted), quoting
U.S. Const., Amdt. 1. “The free exercise of religion means, first and foremost, the
right to believe and profess whatever religious doctrine one desires.” Id. at 877.
“The government may not compel affirmation of religious belief, punish the
expression of religious doctrines it believes to be false, impose special disabilities on
the basis of religious views or religious status, or lend its power to one or the other
side in controversies over religious authority or dogma.” Id. (internal citations
omitted).
Order 17-155 does not prohibit Judge Griffen’s free exercise of religion: it
does not “compel affirmation of religious belief,” “punish the expression of religious
doctrines,” “impose special disabilities on the basis of religious views,” or “lend its
power to one or the other side in controversies over religious authority.” Id. Rather,
the order reflects neutral principles applicable to all judges who exhibit potential for
bias. See Olsen v. Mukasey, 541 F.3d 827, 832 (8th Cir. 2008) (“Absent evidence of
an intent to regulate religious worship, a law is a neutral law of general
applicability.”) (internal quotation marks omitted). This does not violate the free
exercise clause. See Cornerstone Bible Church v. City of Hastings, 948 F.2d 464,
472 (8th Cir. 1991) (holding that in Smith, 494 U.S. at 879, “the Court held that a
neutral law of general applicability that incidentally impinges on religious practice
will not be subject to attack under the free exercise clause”). Additionally, Judge
Griffen does not allege the order has an anti-religious purpose or was intended to
regulate religious worship. See id. Thus, it is “properly viewed as a neutral law of
general applicability” that does not offend the free exercise clause. Id.
Judge Griffen does not plausibly allege a free exercise claim. The district court
erred in allowing this claim to proceed.
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C.
Judge Griffen asserts a violation of the Arkansas Religious Freedom
Restoration Act (RFRA) which prohibits the government from substantially
burdening “a person’s exercise of religion” unless the burden is “[t]he least restrictive
means of furthering [a] compelling governmental interest.” Ark. Code Ann. §
16-123-404(a)(2). The Arkansas RFRA is “interpreted consistent with the Religious
Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb, federal case law, and federal
jurisprudence.” Ark. Code Ann. § 16-123-402(2).
Even assuming that Order 17-155 substantially burdens Judge Griffen’s
exercise of religion, the claim fails. Arkansas has compelling interests in the
impartiality of the judiciary and in public perception of an impartial judiciary. Cf.
Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1666 (2015) (“The importance of
public confidence in the integrity of judges stems from the place of the judiciary in
the government. . . . The judiciary’s authority therefore depends in large measure on
the public’s willingness to respect and follow its decisions. . . . It follows that public
perception of judicial integrity is a state interest of the highest order.”) (internal
citations and quotation marks omitted); Caperton v. A.T. Massey Coal Co., Inc., 556
U.S. 868, 889 (2009) (recognizing “a vital state interest” in safeguarding “public
confidence in the fairness and integrity of the nation’s elected judges”); Mistretta v.
United States, 488 U.S. 361, 407 (1989) (“The legitimacy of the Judicial Branch
ultimately depends on its reputation for impartiality and nonpartisanship.”); Platt v.
Board of Comm’rs on Grievances & Discipline of Ohio Supreme Court, 2018 WL
3097582, at *12 (6th Cir. June 25, 2018) (holding that “maintaining judges’ actual
independence and impartiality, and maintaining the public’s trust in the judiciary’s
independence and impartiality” are “compelling” interests); French v. Jones, 876
F.3d 1228, 1237 (9th Cir. 2017), cert. denied, 138 S. Ct. 1598 (2018) (holding that
“an interest in both actual and perceived judicial impartiality” is a “genuine and
compelling” interest). Judge Griffen does not allege any less restrictive means of
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furthering this compelling interest. The district court erred in allowing this claim to
proceed.
D.
Judge Griffen alleges the Arkansas Supreme Court violated his due process
rights by depriving him of his “constitutionally-protected property interest in his
ability to discharge” his duties as a judge and his “constitutionally-protected liberty
interest in his reputation and his good name.” To state a claim for procedural due
process, a plaintiff must show “a deprivation of life, liberty, or property without
sufficient process.” Hughes v. City of Cedar Rapids, 840 F.3d 987, 994 (8th Cir.
2016).
Judge Griffen alleges no cognizable life, liberty, or property interest. He
asserts a property interest in discharging the responsibilities of his office. “A
protected property interest must be derived from a source independent of the
Constitution, such as state law.” Buchanan v. Little Rock Sch. Dist. of Pulaski Cty.,
84 F.3d 1035, 1038 (8th Cir. 1996). While he has a property interest in his
employment as a state judge in Arkansas, he does not allege the source of his property
interest in presiding over specific types of cases. See id. at 1039-40 (holding no due
process violation when a principal was reassigned to an administrative post without
a hearing because he “had no property interest in a particular assignment”). To the
contrary, Judge Griffen has no right to hear specific categories of cases. See Ark.
Const. amend. LXXX, § 6 (establishing circuit courts “as the trial courts of original
jurisdiction of all justiciable matters not otherwise assigned pursuant to this
Constitution,” but not establishing that a particular judge has a right to hear specific
cases); Ark. Const. amend. LXXX, § 4 (“The Supreme Court shall exercise general
superintending control over all courts of the state.”); Parker v. Crow, 368 S.W.3d
902, 906 (Ark. 2010) (“Superintending control is an extraordinary power that is
hampered by no specific rules or means.”). See also Ligon, 736 F.3d at 169 n.8
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(“[T]he Due Process Clause of the Fifth Amendment is inapplicable in these
circumstances, because reassignment of a case is not a legal injury to the district
judge.”). Cf. Nevada Comm’n on Ethics v. Carrigan, 564 U.S. 117, 126 (2011)
(“The legislative power thus committed is not personal to the legislator but belongs
to the people; the legislator has no personal right to it.”).
Even if Judge Griffen had a property interest in discharging his job duties,
those duties do not include presiding over cases where he has actual or apparent bias.
Judge Griffen claims he has the right to “discharge those aspects of his position that
are set forth in the Arkansas Constitution and that voters elected him to discharge.”
But the voters elected him to discharge powers circumscribed by Arkansas law. And
Arkansas law states: “No judge of the circuit court shall sit on the determination of
any case in which he or she is interested in the outcome . . . or is otherwise
disqualified under the Arkansas Code of Judicial Conduct.” Ark. Code Ann. §
16-13-214. The Arkansas Code of Judicial Conduct prohibits a judge from presiding
over “any proceeding in which the judge’s impartiality might reasonably be
questioned.” Ark. Code Jud. Conduct 2.11(A).
Judge Griffen also asserts a liberty interest in “his reputation and his good
name as it relates to his duties as an elected circuit court judge.” But neither his
status as a judge nor his reputation is affected by recusal. See Ligon, 736 F.3d at 169
n.8 (“[T]he Due Process Clause of the Fifth Amendment is inapplicable in these
circumstances, because . . . . we have made no finding of judicial misconduct that a
judge might have the right to contest.”). Even if forced recusal affected his
reputation, this would be insufficient to allege a due process violation because an
interest in reputation alone “is neither ‘liberty’ nor ‘property’ guaranteed against state
deprivation without due process of law.” Paul v. Davis, 424 U.S. 693, 712 (1976).
Judge Griffen does not plausibly allege a due process claim. The district court
erred in allowing this claim to proceed.
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E.
Judge Griffen asserts that Order 17-155 violates his “rights as guaranteed by
the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution, in that he has been afforded less favorable terms and conditions of his
employment as a state circuit court judge on the basis of his race
(African-American).” He then provides four examples “where white Circuit Court
Judges have been accused of and have admitted to committing criminal acts” and “the
Arkansas Supreme Court did not take the extraordinary steps against these white
judges as it has against Judge Griffen.”
“The Equal Protection Clause generally requires the government to treat
similarly situated people alike.” Klinger v. Dep’t of Corr., 31 F.3d 727, 731 (8th Cir.
1994), citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439
(1985). “Thus, the first step in an equal protection case is determining whether the
plaintiff has demonstrated that she was treated differently than others who were
similarly situated to her.” Id. “Absent a threshold showing that she is similarly
situated to those who allegedly receive favorable treatment, the plaintiff does not
have a viable equal protection claim.” Id. Judge Griffen fails to allege he “was
treated differently than others who were similarly situated.” Id. Judge Griffen admits
that he “did not engage in conduct that was remotely similar to that allegedly
committed by” the comparison judges. Because “[d]issimilar treatment of
dissimilarly situated persons does not violate equal protection” Judge Griffen does
not state a claim. Id.
To state a plausible equal-protection violation, Judge Griffen also must allege
an intent to discriminate. See Foster v. Wyrick, 823 F.2d 218, 221 (8th Cir. 1987)
(“Proof of discriminatory racial purpose is required to establish an equal protection
violation.”). He does not. Instead, he makes conclusory allegations that he was
“afforded less favorable terms and conditions of his employment with the State of
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Arkansas on account of his race, than similarly situated white judges.” This is
insufficient to establish racial animus. Id. (“[A]ppellant’s allegation that MSP’s
employment practices and procedures have a discriminatory impact on black inmates
fails to state a cause of action under the Equal Protection Clause, because there is no
allegation of intentional discrimination.”). See Henley v. Brown, 686 F.3d 634, 642
(8th Cir. 2012) (“In the absence of any allegations of intentional discrimination, we
therefore concluded the Equal Protection Clause did not provide a ground for relief
for appellant’s section 1983 race discrimination claim.”).
Judge Griffen does not plausibly allege an equal protection claim. The district
court erred in allowing this claim to proceed.
F.
Judge Griffen claims the Justices “conspired among themselves and with others
for the purpose of depriving” him of his constitutional rights. “Absent a
constitutional violation, ‘there is no actionable conspiracy claim.’” Slusarchuk v.
Hoff, 346 F.3d 1178, 1183 (8th Cir. 2003), quoting Cook v. Tadros, 312 F.3d 386,
388 (8th Cir. 2002). Judge Griffen has failed to allege a plausible constitutional
violation to support a claim for civil conspiracy as required by 42 U.S.C. § 1985(3).
The district court erred in allowing this claim to proceed.
*******
This court grants the petition for a writ of mandamus and vacates the district
court’s order denying the Justices’ motions to dismiss. The case is remanded for
proceedings consistent with this opinion.
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KELLY, Circuit Judge, dissenting.
If the petitioners were seeking mandamus to quash a discovery order that
would compel disclosure of the internal deliberations of the Arkansas Supreme Court,
their petition would be well taken. But that is not what the petitioners seek. Instead,
they ask for—and the court today grants them—reversal of the district court’s denial
of their motion to dismiss. See Fed. R. Civ. P. 12(b)(6). The petitioners did not ask
the district court to limit the scope of discovery, see Fed. R. Civ. P. 26(b)(1), (c), or
to shield disclosed records from public view, see Fed. R. Civ. P. 5.2(d). They only
asked the district court to dismiss Judge Griffen’s suit on the merits. Mandamus is
appropriate only when the petitioners “have no other adequate means to attain the
relief [they] desire[].” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004)
(quoting Kerr v. U. S. Dist. Court for N. Dist. of Cal., 426 U.S. 394, 403 (1976)).
Because the petitioners have not attempted to exhaust their “adequate means” in the
district court, I cannot conclude that mandamus is “the only means of forestalling
intrusion by the federal judiciary on a delicate area of federal-state relations.” Will
v. United States, 389 U.S. 90, 95 (1967) (emphasis added). Therefore, I respectfully
dissent from the grant of mandamus.
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