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Removing the gag 

Wendell Griffen wins but wants more.

GRIFFEN
  • GRIFFEN

Judge Wendell Griffen does not let his judicial robe impair his vigorous exercise of the right to free speech. “I revere my robe, but I revere my Constitution more,” he says.

This attitude was bound to make him unpopular in some quarters, he says. “In Arkansas, we have a culture of censorship as opposed to a culture that affirms liberty when it comes to judicial speech.” Because of that culture, he says, he has met with hostility in the legal profession, at the Arkansas Supreme Court, and most especially at the Arkansas Judicial Discipline and Disability Commission, which recently dropped charges against him and which he is now suing in federal court.

(Federal Judge David S. Doty dismissed Griffen's lawsuit Oct. 24, saying that the commission's dismissal of charges against Griffen, along with its promise to no longer enforce rules against discussion of disputed political or legal issues, made the lawsuit moot. Griffen said he might appeal.)

After two years of fighting with the commission over a judge's right to speak, Griffen finds the commission's simple order of dismissal insufficient for the wrong that was done him. He wants the federal court to rule that the commission violated his First Amendment rights to free speech, free exercise of religion, and free association, as well as denying him the due process of law that is guaranteed by the Fourteenth Amendment. He also wants the federal court to say that portions of the Arkansas Code of Judicial Conduct, which the commission enforces, are unconstitutional. The code was adopted by the Arkansas Supreme Court. Griffen is a member of the Arkansas Court of Appeals, which ranks just below the Supreme Court, and he ran for chief justice of the Supreme Court in 2004, losing to Jim Hannah, who was then a circuit judge and is now the chief justice.

Only the federal courts can change the “culture of censorship” in Arkansas, Griffen says. James A. Badami, longtime executive director of the Judicial Discipline and Disability Commission, was a particular antagonist of Griffen's. Badami retired in the spring, while the charges against Griffen awaited a ruling, and was succeeded by David A. Stewart on July 1. Griffen filed suit in federal court July 20. The judicial discipline commission dismissed the charges against him on Sept. 27, by a 5-1 vote. The commission consists of lawyers, judges and members of the public.

The commission said not only that the White decision had trumped the Arkansas canons, but that the Arkansas canons themselves had been amended by the Arkansas Supreme Court in 1996 to remove a provision that prohibited discussion of disputed political or legal issues. That change was made in response to a federal court ruling by Judge George Howard. Why the change was not stressed earlier in the proceedings against Griffen is unclear. Stewart pointed out to the commission that the old prohibition had been removed.

Badami's departure will not solve the problem, Griffen says, even though Badami's successor, Stewart, is “a far cry from Badami. At least he knows the Constitution and respects it.” Stewart advised the commission on the Griffen case and signed the commission's decision in favor of Griffen.

“Badami was not a Don Quixote,” Griffen says. “He did what he did with the tacit approval of the commission. They allowed him to prosecute me. Had I not filed my lawsuit in federal court, the commission would have been very content to uphold the old rules, and possibly to impose sanctions on me.” The sanctions for violation of the Code of Judicial Conduct include removal from office.

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