In Re: Honorable John Kemp, No. 18-1864 (8th Cir. 2018)
Annotate this CaseAn Arkansas trial judge filed suit against the Arkansas Supreme Court and justices in their official capacities, alleging that they violated his constitutional rights by permanently barring him from presiding over death penalty cases. The district court dismissed claims against the Arkansas Supreme Court as barred by sovereign immunity and denied the justices' motion to dismiss. The Eighth Circuit granted the justices' motion for writ of mandamus and directed plaintiff to dismiss the complaint with prejudice. The court held that plaintiff's free speech claim failed because he did not allege that he engaged in a protected activity where the recusal order applied to him in his role as a public employee and where recusal from death penalty cases was not an adverse employment action; the recusal order did not affect defendant's right to practice religion and his Free Exercise Clause claim failed; plaintiff's claim under the Arkansas Religious Restoration Act also failed; plaintiff was not deprived of his due process rights where he alleged no cognizable life, liberty or property interest; plaintiff failed to plausibly allege an equal protection claim; and the district court erred in allowing plaintiff's civil conspiracy claim to proceed were he failed to allege a plausible constitutional violation to support the claim.
Court Description: Benton, Author, with Colloton and Kelly, Circuit Judges] Petition for a Writ of Mandamus. In action by an Arkansas circuit court judge challenging an Arkansas Supreme Court order immediately reassigning the judge's death penalty and execution protocol cases, including any future cases, as a violation of his constitutional and statutory rights, the district court erred in denying the defendants' motion to dismiss; plaintiff's free speech claim fails because he failed to allege he engaged in a protected activity and because there is no adverse employment action; with respect to plaintiff's Free Exercise Clause First Amendment claim, it fails because nothing in the Arkansas Supreme Court's order affects his right to practice his religion; even assuming the order substantially burdens plaintiff's exercise of religion, his claim under the Arkansas Religious Freedom Restoration Act claim fails because Arkansas has compelling interests in the impartiality of the judiciary and in public perception of an impartial judiciary; plaintiff does not allege any less restrictive means of furthering these compelling interests and the district court erred in allowing the claim to proceed; plaintiff alleged no cognizable life, liberty or property claim and his due process claims should have been dismissed for failure to state a claim; plaintiff failed to properly plead an Equal Protection Clause argument as he failed to allege he was treated differently than similarly situated persons or that defendants had an intent to discriminate; plaintiff failed to state an actionable civil conspiracy claim. Judge Kelly, dissenting. Home | Contact Us | Employment | Glossary of Legal Terms | Site Map | RSS Privacy Policy|BrowseAloud
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