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Thursday, September 23, 2010

Judge backs partisan endorsements

Posted By on Thu, Sep 23, 2010 at 6:30 AM

Judge-elect Wendell Griffen is up early this morning. He rises here to defend Judge Karen Baker's acceptance of a $250 contribution from a Republican Party committee in her race for state Supreme Court against Judge Tim Fox. The state Judicial Discipline and Disability Commission director David Stewart, according to a Democrat-Gazette article this morning about the contribution, thinks accepting a political contribution is problematic. From here, it certainly looks tantamount to accepting a political party endorsement and thus prohibited by the state's ethics rules covering judges. Baker believes a contribution is not an endorsement (dubious reasoning, that.)

Griffen takes a third view, supported by evolving case law, if not Arkansas judicial canons. He says a judge can take money and take endorsements from political parties. Any prohibition is an infringement of free speech. I'll give you some of his detailed explanation on the jump. But if he eventually proves right — as he has in his own battles to speak freely in a previous stint as appeals clourt judge — we won't be far removed from the day when the notion that Arkansas has non-partisan judicial races will become a sham.

I should also say this about accepting political party contributions, as I've said about some of Griffen's own past pronouncements:

Just because a judge can say or do something, doesn't mean it's judicious behavior to actually do it. Here, Karen Baker has advertised her Republican bona fides by taking this money, a sneer at the state's non-partisan judicial election system. I think it was intentional and meant to send a signal. Even this year, Judge Baker, that signal could cut both ways.

UPDATE: A campaign consultant and others have noted that Baker also took cash from a Democratic women's committee and Fox has noted kind words said about him in a slate of judicial candidates recommended by Republican Party officials. My opinion is unchanged: I think Griffen is right. The Constitution allows this, ethics rule or no rule. But as long as we have non-partisan judicial elections, judicial candidates should avoid promoting partisan coloration by taking party money or advertising party associations.

From Wendell Griffen:

Arkansans should know that on August 2, 2005, the United States Court of Appeals for the 8th Circuit issued an en banc decision in Republican Party of Minnesota v. White in which the majority ruled that the Minnesota Judicial Code ban on seeking or receiving endorsements in judicial campaigns violates the First Amendment. That was five years ago. Yet, to this day the Arkansas Judicial Code contains a similar ban. The Arkansas Supreme Court has failed to direct the Arkansas Judicial Discipline and Disability Commission (JDDC) to revise the Arkansas Code so that it

comports with the 8th Circuit's 2005 ruling. Instead, Rule 4.1 of the Arkansas Code presently states:

RULE 4.1
Political and Campaign Activities of Judges and Judicial Candidates in General

(A) Except as permitted by law, or by Rules 4.2, 4.3, and 4.4, a judge or a judicial candidate shall not:


(7) seek, accept, or use endorsements from a political organization;

We should expect candidates for judicial office to respect the U.S. Constitution and cases which interpret it. After all, the Constitution is the supreme law of the land. It is telling that the Arkansas Judicial Discipline and Disability Commission continues to impose a clearly unconstitutional ban on judicial campaign conduct through its endorsement ban at such a late date.

The First Amendment exists to promote citizen involvement in our democracy. Executive Director Stewart's position is incorrect, as it was invalidated five years ago by the 8th Circuit. I hope Arkansas voters will not read the Democrat-Gazette article and draw the inaccurate conclusion that Judge Baker's campaign acted improperly by accepting the endorsement from a political organization. In a free society, candidates for public office are entitled to be endorsed and supported by whoever wants to endorse and support them.

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