Fighting on | Arkansas Blog

Thursday, October 25, 2007

Fighting on

Posted By on Thu, Oct 25, 2007 at 6:45 AM

Appeals Court Judge Wendell Griffen sent a note overnight saying he will appeal a federal judge's dismissal of his lawsuit challenging the constitutionality of rules governing judicial conduct. The judge said the lawsuit was moot because the state's judicial disciplinary committee had dropped its complaint against Griffen. Griffen argues that the issue isn't moot as long as the rules remain on the books. Those rules are currently under study and likely to be revised, however.

UPDATE: Judge Griffen sends along an elaboration, which is on the jump.

FROM JUDGE WENDELL GRIFFEN

I respectfully disagree with Judge Doty's view that dismissal of the charges against me and the Commission's subsequent declaration that it now agrees that my political speech is protected by the First Amendment somehow renders my lawsuit moot.  For starters, dismissal of the charges and the Commission's declaration did nothing to correct the vagueness and overbreadth infirmities in the Arkansas Judicial Code provisions challenged by my federal lawsuit.  If anything, the Commission's blithe assertion that "there is no Canon that expressly prohibits a judge or judicial candidate from publicly discussing disputed political or legal issues" and that the First Amendment protects such political speech does not square with the plain wording of the Judicial Code.  Consider the following:
  1. Canon 5A(1)(b) of the Arkansas Judicial Code, which reads:  "A judge or a candidate for election or appointment to judicial office shall not ... publicly endorse or publicly oppose another candidate for public office." 
  2. Canon 5A(1)(d) of the Code states:  "A judge or a candidate for election or appointment to judicial office shall not ... directly or indirectly seek or use endorsements from a political party."
Given these explicit provisions in the Arkansas Code, I must respectfully disagree with Judge Doty's reliance on the Commission's assertion that the "Canons cited in the Formal Statement of Charges [against me] cannot be used as a basis for a finding of judicial misconduct if the alleged misconduct is solely related to a public discussion of disputed political or legal issues."  What can be a more disputed political issue than whether to support or oppose a political candidate, or whether to seek or accept an endorsement from a political party, or other group of persons?
 
I remain subject to these provisions of the Code.  I am an elected Arkansas judge.  I am an ordained Baptist minister who will continue to be forthright about matters of social justice as a matter of conscience and because of my First Amendment rights to freedom of speech, religious expression, and association.  I am seeking reelection to the Court of Appeals in the coming campaign season, and will both actively seek and hopefully receive endorsements from many quarters, including political parties. 
 
Moreover, if the Canons do not "expressly" prohibit a judge or judicial candidate from publicly discussing disputed political or legal issues"--despite the explicit wording of Canon 5A(1)(b) and Canon 5A(1)(d)--does the Commission intend to implicitly prohibit such conduct?  If so, what standards will be used for the implicit prohibition aside from the subjective views (a.k.a. whims) of Commission prosecutors?  If not, why did the Commission qualify its statement with the word "expressly"?
 
Consequently, the vagueness and overbreadth First Amendment claims raised in my federal lawsuit are by no means hypothetical, conjectural, or speculative.  On the contrary, they are precisely why a federal declaratory judgment statute exists.

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