Removing the gag 

Wendell Griffen wins but wants more.


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.

In bringing charges against Griffen, the commission said it had received complaints about speeches he'd made that were reported in the press. He.had said, among other things, that the federal government's ineffective response to Hurricane Katrina in New Orleans was rooted in racism. He criticized President Bush for nominating John Roberts to be chief justice of the U.S. Supreme Court. He spoke unkindly of various right-wing politicians and political preachers. He endorsed a proposal to raise the state minimum wage. He opposed the Iraq war and defended homosexuals and immigrants against persecution. At least once, Badami himself initiated a complaint against Griffen, after reading a newspaper article about Griffen's remarks.

Griffen is a minister as well as a judge, and one of the controversial speeches was delivered at a meeting of the Baptist National Convention, a black church group. He also spoke for the minimum wage increase as a member of a group of ministers. These occasions account for his claim that his freedom of religion was abridged.

The “due process” claim has to do with Griffen's discovery that the prosecutor in his case (Badami) was meeting regularly with the judge (the commission) to discuss the case, without the knowledge of the accused (Griffen). Commission rules allow this, but even Stewart says it's a weakness in the system that the director of the commission is both the prosecutor of judges and the legal adviser to the commissioners on whether they should proceed with disciplinary action against a judge. In some states, an independent party, sometimes called a “commission counsel,” advises the commissioners on whether discipline is called for. This person may be a fulltime state employee, or he may be a contractor. Stewart has proposed the “commission counsel” idea to the commissioners, he said, and discussions are under way.

Griffen says that any action of this sort now is “too little and too late” as far as he's concerned, and it does nothing to solve the problem that the rules enforced by the commission forbid speech that is permitted by the First Amendment. The rules are too vague and too broad, he says.

“Can a judge be in a skit in the gridiron that pokes fun at a politician? Or a special interest? Or another judge?” He said he was charged with violating Canon Two of the judicial code (“A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.”) after he told the parable of the Good Samaritan in a speech at Fayetteville, pleading against the mistreatment of homosexuals and immigrants. He criticized the war in Iraq in the same speech.

“I'm an ordained minister, speaking in church, about public policy and morality. Can a judge or a judicial candidate be punished for comments in a Sunday School class? What are the standards?” He quoted Badami as saying that supporters of the Bush administration might disagree with Griffen's remarks and thus question his impartiality. “There's always somebody who disagrees,” Griffen said, and by that standard, a judge could never open his mouth without being accused of impropriety.

The Supreme Court can adopt new rules that are fair and clear, Griffen says. He agrees that a judge shouldn't comment on issues that are before him in court. But he says that he was accused of breaking the rules by supporting the proposed minimum-wage increase. “That was never an issue in any court, much less mine.”

“I play golf in War Memorial Park. It's a great place. If I sign a petition asking that the course not be done away with, is that a violation of the code?” (The city of Little Rock is considering proposals to do away with the War Memorial golf course.)

Some people worry that the weakening of the restrictions on judges' and judicial candidates' speech will produce new Jim Johnsons (see accompanying article). Johnson was Arkansas's leading segregationist of the 1950s and ‘60s and was elected to the Supreme Court on a pro-segregation platform. The prospect of another Johnson doesn't frighten Griffen.

“The First Amendment is in our Constitution to encourage honest, open, robust debate, with all of its variety and all of its attendant risk,” Griffen says. Johnson would concur.



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