IN THE ARKANSAS SUPREME COURT

STATE OF ARKANSAS; ARKANSAS

DEPARTMENT OF FINANCE AND
ADMINISTRATION; ARKANSAS
ALCOHOLIC BEVERAGE CONTROL
ADMINISTRATION; AND ARKANSAS
MEDICAL MARIJUANA COMMISSION PETITIONERS

v. Case No. CV-19-727

CARPENTER FARMS MEDICAL GROUP, LLC RESPONDENT

MOTION TO SUPPLEMENT THE RECORD AND FOR ORDER

DIRECTING COURT REPORTER TO COMPLETE THE RECORD OR, IN
THE ALTERNATIVE, FOR A WRIT OF CERTIORARI TO COMPLETE
THE RECORD

Petitioners the State of Arkansas, the Arkansas Department of Finance and

Administration (“DFA”), the Arkansas Alcoholic Beverage Control Administration

(“ABC”), and the Arkansas Medical Marijuana Commission (“MMC”), for their

Motion to Supplement the Record and for an Order Directing Court Reporter Neva

Warford to Complete the Record pursuant to Ark. R. App. P.—Civil 6(e) or, in the

alternative, for a Writ of Certiorari to Complete the Record to include an audio

recording of a September 13, 2019, hearing in the case below pursuant to Sup. Ct.

R. 3-5, state:

1
 
 1. On September 17, 2019, Petitioners filed an Emergency Petition for

an extraordinary writ seeking, among other relief, an order removing Judge

Wendell Griffen from this case and all other civil cases involving the Attorney

General’s Office due to his long history of unprofessional, improper, and biased

conduct in cases involving the Attorney General’s Office.

2. The certified transcript of a hearing held before Judge Griffen on

September 13, 2019, in the case below, Carpenter Farms Medical Group, LLC. v.

Arkansas Department of Finance and Administration et al., Circuit Court of

Pulaski County, Arkansas, No. 60CV-18-8555, standing alone demonstrates cause

for reassignment. See Exhibit 1 (transcript of hearing). The Court should permit

Petitioners to supplement the record to include a certified original of the

transcript, which will be tendered to the Court tomorrow.

3. Yet even more than the transcript, an audio recording of the

September 13, 2019, hearing underscores why this Court should remove Judge

Griffen from all cases involving the Attorney General’s Office. Indeed, unlike

bare transcription, audio recordings capture tone of voice, volume, demeanor, and

temperament, and those factors are critical to this Court’s evaluation of Judge

Griffen’s conduct.

4. On Wednesday, September 18, 2019, the Attorney General’s Office

requested a copy of the audio recording of the September 13, 2019, hearing from

2
 
Judge Griffen’s court reporter, Neva Warford. The Attorney General’s Office

requested the audio file because Judge Griffen’s tone of voice, volume, demeanor,

and temperament cannot be fully ascertained by a review of a written transcript of

the hearing. The following morning, the Attorney General’s Office asked Ms.

Warford to transmit a copy of the audio file on a flash drive along with the

certified transcript to the Pulaski County Appeals Clerk for certification.

5. On Thursday, September 19, 2019, the Attorney General’s Office

confirmed in multiple telephone conversations with Ms. Warford that she is in

possession of an electronic file containing a complete audio recording of the

September 13, 2019, hearing. Ms. Warford agreed to provide copies of that

recording to the Attorney General’s Office in connection with this Petition and a

related appeal. The Attorney General’s Office hand delivered flash drives to Ms.

Warford at her office to assist her in providing the requested copies of the audio

file. Finally, the Attorney General’s Office confirmed in writing its request for

the audio file and Ms. Warford’s oral agreement to provide same. See e-mail

messages attached and incorporated herein as Exhibit 2.

6. On the afternoon of Friday, September 20, 2019, Ms. Warford

suddenly reversed course. That afternoon, the Attorney General’s Office called

Ms. Warford to ascertain the status of its requests, and Ms. Warford informed the

Attorney General’s Office that she would not provide a copy of the hearing audio
3

 
file in connection with this matter or the related appeal after all. When asked to

explain the sudden change, Ms. Warford stated that, upon reflection, it is her

opinion that the audio file is protected “work product.”

7. That same day, undersigned counsel requested a copy of the audio

file pursuant to the Freedom of Information Act. Id. As of the filing of this

motion, Ms. Warford has not yet responded to the FOIA request or provided a

copy of the audio file as repeatedly requested.

8. Despite refusing to provide the Attorney General’s Office with the

audio recording, just this afternoon, Judge Griffen sent a letter to counsel in the

case below indicating that he will play the audio recording of the September 13,

2019, hearing in open court at 10:30 a.m. on September 24, 2019. See Letter to

Counsel, attached as Exhibit 3. Judge Griffen’s letter notes that he is specifically

prohibiting any recording of the audio playback. It is unclear whether Judge

Griffen intends this proceeding to be a hearing or whether any other remarks he

makes at that hearing will be transcribed so that this Court may review them.

9. The audio recording of the September 13, 2019, hearing is crucial to

the Court’s decision on the pending Petition because it uniquely illustrates—as

bare transcription never will—Judge Griffen’s tone of voice, volume, demeanor,

and temperament. The demeaning tone of the following exchange, for example, is

not evident from the bare transcript:

4

 
 THE COURT: -- let me ask you a question. You see that name on the
thing? It says “judge.”

MS. MERRITT: I do.

THE COURT: I get to decide whether the questions are fair. You get
to answer the questions, whether you think they’re fair or not. Now,
the answer is – you’re going to -- the question is whether you're going
to answer or not. Let’s pretend I’m the judge and you’re the lawyer.
We got that straight?

Ex. 1, Hearing Tr. at 19-20. Nor is Judge Griffen’s demeaning tone evident each

of the more than twenty times he interrupts counsel with “excuse me” or “excuse

me, ma’am” throughout the course of the hearing. See generally Hearing Tr. Nor

does it fully capture Judge Griffen’s tone in interjecting with, “No, no, no, no, no.

We are not getting to the merits, ma’am” (Hearing Tr. at 17) and “No, no, no, no.”

Hearing Tr. at 67, 70 (twice). It likewise does not capture Judge Griffen’s tone in

suggesting that he would sanction counsel for seeking this Court’s review. See

generally Hearing Tr. at 67-70. This will only be apparent from the audio

recording of the hearing. Therefore, this Court should allow Petitioners to

supplement the record with that recording.

10. Judge Griffen’s bias against the Attorney General’s Office is clear

from this hearing and others, in addition to conduct outside the courtroom. His

behavior ranges from personal attacks against State attorneys, to threatening

attorneys with (and imposing) sanctions simply for disagreeing with him, and

 
requiring immediate compliance with orders he issues, under threat of contempt

citation, so as to make appellate review impossible. The following are but a few

readily-available examples of Judge Griffen’s conduct which merit reassignment

of all cases involving the Attorney General’s Office:

 Repeated instances of making belittling remarks to an attorney with

the Attorney General’s Office, including a remark that accepting

attorney’s position would amount to “wearing my BooBoo-The-

Fool T-Shirt,” Kelley v. Johnson, Ark. Sup. Ct. No. CV-15-992, at

Ab. 64 (emphasis added); accord id. at Ab. 114 and demeaning

comments questioning whether the same attorney ever took

contracts in law school (a mandatory course), id. at Ab. 76.

 At the conclusion of a hearing—after business hours—ordering the

Arkansas Department of Correction, the Office’s client, to release

execution-drug information under the Freedom of Information Act

within thirty minutes. Judge Griffen specifically instructed the

Office’s attorney to ignore Administrative Order 2(b)(2)’s

requirement of a written ruling, preventing the ADC from appealing

his order. When that order was finally reduced to writing, the ADC

filed an appeal and sought an emergency stay from this Court. In

response, Judge Griffen entered a supplemental order purporting to

6

 
 require the ADC to immediately provide the disputed information on

threat of a contempt citation, and scheduled a contempt hearing.

This Court granted an emergency stay, and that case was reassigned

pursuant to this Court’s April 17, 2017 order. See Ark. Dep’t of

Corr. v. Shults, Arkansas Supreme Court Case No. 17-CV-267.

 Judge Griffen has previously threatened Rule 11 sanctions against

attorneys with the Attorney General’s Office for filings with which

he disagreed. For example, in one of the execution cases that has

since been reassigned by this Court, attorneys with the Attorney

General’s Office filed a motion asking Judge Griffen to dissolve a

five-month TRO that he issued sua sponte and without prior notice

to the ADC. In addition to simply denying the ADC’s motion,

Judge Griffen went further and issued a Rule 11 show-cause order.

This Court vacated that TRO, and ultimately issued a stay of all

proceedings pending its reversal of Judge Griffen’s denial of

summary judgment. On remand, the case was reassigned pursuant

to this Court’s April 17, 2017 order, preventing Judge Griffen from

resolving his show-cause order. See Kelley v. Johnson, 2016 Ark.

268. Similarly, here, Judge Griffen strongly implied, if not outright

threatened counsel with Rule 11 sanctions if the MMC took an

7

 
 interlocutory appeal, explaining that he saw no good faith basis for

disagreeing with his view of this Court’s case law. See Hearing Tr.

at 68-71.

 Judge Griffen held the Arkansas Department of Human Services in

criminal contempt for a supposed violation of a preliminary

injunction order, referring several state attorneys (including a deputy

director who is not counsel for the agency) to the Office of the

Committee on Professional Conduct due to their work on the case.

This Court determined that DHS did not violate Judge Griffen’s

order. Arkansas Dep’t of Human Servs. v. Ledgerwood, 2019 Ark.

121.

 As previously mentioned in the Petition, Judge Griffen made a false

ethics complaint against the Attorney General and several of her

staff, which he later retracted. See Pet. ¶ 19. Yet despite that

retraction, Judge Griffen still maintains the same allegations on his

public blog, detailing his request for an investigation and repeating

the false accusations of his complaint. See

http://wendelllgriffen.blogspot.com/2017/04. (Attached as Exhibit

4.)

 
  Judge Griffen has derided countless state officials on his blog as

“fascists,” including Governor Asa Hutchinson, Education Secretary

Johnny Key, state legislators, this Court, and the Attorney General.

See http://wendelllgriffen.blogspot.com/2017/05/fascism-donald-

trump-politics-and.html. (Attached as Exhibit 5.)

11. Moreover, uniquely illustrating the value of audio to assessing Judge

Griffen’s conduct is a recent public exchange—widely reported in the press—

where Judge Griffen rudely gestured and shouted “We are not your Slaves!” at a

member of the Arkansas Board of Education. Video of that exchange is available

at https://www.youtube.com/watch?v=o5Y-9bdJMF4 and elsewhere online.

12. Indeed, given Judge Griffen’s record, this Court may also want to

review audio of hearings held in other cases, as well, such as the motion to

dismiss hearing abstracted in Kelley v. Johnson, if such recordings are still

available.

13. Pursuant to Ark. R. App. P.—Civil 6(e), Petitioners seek an order

from this Court directing Ms. Warford to correct the omissions in the record and

to transmit an audio recording of the September 13, 2019, hearing in this case.

See Anderson v. State, No. CACR05-1132, available at 2006 WL 2687010 (Ark.

App. Sept. 20, 2006) (ordering the court reporter to supplement the record with an

audio recording “vital to our determination of the issues presented”).

9

 
 14. In the alternative, the Clerk should issue a writ of certiorari to Court

Reporter Neva Warford pursuant to Supreme Court Rule 3-5 directing her to

transmit a copy of the hearing audio recording to the Pulaski County Appeals

Clerk for certification as soon as practicable.

WHEREFORE, Petitioners pray that the Court grant this motion,

enter an order directing Court Reporter Neva Warford to complete the record

or, in the alternative, issue a writ of certiorari to complete the record, and for all

other just and appropriate relief.

Respectfully submitted,

LESLIE RUTLEDGE
Attorney General

JULIA C. BENAFIELD
Chief Deputy Attorney General

NICHOLAS J. BRONNI
Solicitor General

By: /s/ Jennifer L. Merritt

Jennifer L. Merritt (Bar No. 2002148)
Senior Assistant Attorney General
Arkansas Attorney General’s Office
323 Center Street, Suite 200
Little Rock, AR 72201
Phone: (501) 682-1319
Fax: (501) 682-2591
Email: Jennifer.Merritt@ArkansasAG.gov

Attorneys for Petitioners

10

 
 CERTIFICATE OF SERVICE

I, Jennifer L. Merritt, hereby certify that on this 23rd day of September,

2019, I electronically filed the foregoing via eFlex, which shall send notice of the

filing to all participants. I also certify that I served a copy of the foregoing upon

the following via electronic mail:

Judge Wendell L. Griffen

wlgriffen@pulaskimail.net

Ms. Neva Warford

neva_warford@yahoo.com

/s/ Jennifer L. Merritt

Jennifer L. Merritt

11