Judge clash with panel centers on free speech
Posted on Sunday, January 28, 2007
In his fight with the state panel that disciplines judges, Appeals Court Judge Wendell Griffen claims his controversial political remarks are protected by a U. S. Supreme Court decision.
The outspoken jurist isn’t the first to claim the 2002 decision, Republican Party of Minnesota v. White, shields speech by judges when they are off the bench.
Legal scholars say a broad interpretation of the court’s opinion could save Griffen from censure, but the few courts in other states that have tested the decision haven’t always been sympathetic to those claims, at least when cases center on campaign promises made by candidates for judgeships, a situation a little different from Griffen’s case.
For more than a year, the 54-year-old judge has been embroiled in a dispute with James Badami, executive director of the state Judicial Discipline and Disability Commission.
The dispute involves not only questions of law but also conflicting notions of how judges should comport themselves off the bench. If the case winds up in the Arkansas Supreme Court and Griffen’s view prevails, it also might lead to candidates for judicial office giving more information about what they think about issues of interest to the public, a theme that arose in campaigns last year.
Badami and his staff contend that to maintain the public’s trust in the impartiality of its courts, judges shouldn’t engage in public debates on heated political subjects. In donning the black robe and as- suming the power of the bench, judges give up certain rights, including that of unfettered free speech, they argue.
Griffen, on the other hand, argues that the U. S. Constitution gives him a right to speak his mind, as long as he doesn’t opine on matters or cases that could come before him in court.
Badami is a former military attorney who has spent the past 17 years looking into complaints of Arkansas judges ’ misconduct, including cases of conflicts of interest, favoritism, and prohibited campaign practices.
He has accused Griffen of breaking rules intended to guard the integrity and appearance of impartiality of the judiciary.
In speeches and writings, Griffen has advocated an increase in the state minimum wage and criticized the Bush administration’s response to Hurricane Katrina and the president’s nomination of John Roberts as U. S. chief justice. Lately, he has spoken out against homophobia in political campaigns and against the war in Iraq. Badami questions those remarks.
The nine-member commission of attorneys, judges and others, whom Badami advises, has a hearing scheduled for March 19 to determine if it should censure Griffen, proceed to a more serious disciplinary hearing or dismiss the matter. If the commission rules against Griffen, he will almost certainly appeal to the state Supreme Court.
In his defense, Griffen argues that the free-speech guarantees of the First Amendment of the U. S. Constitution give him the right to speak his mind, citing the White decision. He also cites the Arkansas Constitution.
In the White case, the U. S. Supreme Court ruled 5-4 that a Minnesota regulation prohibiting candidates for judicial office from announcing their positions on disputed legal and political issues was unconstitutional. In the majority opinion, Justice Antonin Scalia wrote that during a judicial election voters need to know candidates’ positions on the issues, but the Minnesota rule, which was intended to promote impartiality in the judiciary, wasn’t narrowly tailored to achieve that goal and was therefore an unconstitutional restriction on candidates’ free speech.
“We have never allowed the government to prohibit candidates from communicating relevant information to voters during an election,” he wrote.
At first glance, Griffen’s case seems to depart from the White decision.
The U. S. Supreme Court case dealt with speech in the context of a campaign, and Griffen wasn’t a candidate when he made his remarks.
Also, the Supreme Court struck down a Minnesota rule that Arkansas took off the books 10 years ago. The unconstitutional Minnesota rule said a candidate for judicial office, including a sitting judge, can’t “announce his or her views on disputed legal or political issues.”
Griffen, however, is accused of violating rules requiring that a judge “uphold the integrity and independence of the judiciary,” and “avoid impropriety and the appearance of impropriety,” and other rules.
Legal scholars said the nature of the American common law, in which judges look not to statutes but to precedents set by other, often higher, courts, means the White decision can be construed to apply to Arkansas’ rules, even though it directly addressed a different one in Minnesota.
“The U. S. Supreme Court doesn’t decide a lot of cases, so in any cases it decides on any issues, the lower courts have to look and see, ‘What can we glean from this case ?’” said Cynthia Gray, Chicago-based director of the Center for Judicial Ethics of the American Judicature Society, who has studied White’s effect on judicial rules.
If Griffen’s case winds up in the Arkansas Supreme Court, he’ll have to show that the principle of unrestricted judicial speech applies even outside of the campaign, and Griffen said in an interview that the White decision can be interpreted broadly to apply to sitting judges.
“While the specific situation in White involved a candidate for judicial office,” Griffen said, “the holding in White is that the First Amendment does not allow a state to use its judicial disciplinary rules as a reason for prohibiting a judge or a judicial candidate from making public comments about public policy issues that do not involve pending or impending litigation.”
First Amendment scholar professor Richard Peltz of the William H. Bowen School of Law at the University of Arkansas at Little Rock said that because elected officials are always accountable to the public they’re in a sense forever in campaign mode. While White invalidated a rule dissimilar to the one Griffen is accused of violating, Peltz said it’s more important to consider the kinds of speech the ruling protects.
“It doesn’t matter as much what the language of the code is,” Peltz said. “If the judge is doing essentially the same thing as the complainant in White, than we know that’s got to be protected.” Peltz said Griffen isn’t attacking the judicial rule itself as unconstitutional, just the way the rule is used to prosecute him.
In an interview, Badami of the Judicial Discipline and Disability Commission disagreed with Griffen’s and Peltz’s interpretations.
“I don’t think it would be a fair analysis that [the White decision ] applies in all judicial speech that is not campaign speech,” Badami said.
The few state panels that have tested the decision in judicial discipline cases have produced mixed results.
In Vermont, the Judicial Ethics Committee in 2003 ruled that a judge was allowed to participate in anti-war vigils because “the activities and issues proposed by the inquiring Vermont judge do not raise even an inference that the judge would be unwilling or unable to follow the law.”
In two other states, appellate courts found that White didn’t protect judges who had pledged to rule in favor of prosecutors and police. They said the Supreme Court decision covered statements of views but not campaign promises.
During her 1998 campaign for county court judge in Escambia County, Fla., Patricia Kinsey posed in campaign literature with heavily armed police and released a brochure declaring that “Above all, Pat Kinsey identifies with the victims of crime.”
Kinsey claimed her campaign rhetoric was protected by the White decision, but Florida’s Supreme Court disagreed, finding in 2003 that White doesn’t allow candidates to pledge support and favorable treatment for certain parties and witnesses, in her case police and crime victims.
Arkansas’ code of judicial conduct has a rule identical to that which Kinsey was found to have violated. Griffen is not accused of breaking that rule.
Similarly, in 2003, the New York State Court of Appeals censured a judicial candidate who had proclaimed his intention to “work with” and “assist” police from the bench. As in the Florida case, the New York court said the White decision doesn’t protect campaign-trail promises to rule in a certain way.
Since the White decision, some states have changed their rules governing what judicial candidates are allowed to say. Since many states’ codes of judicial conduct, including those of Minnesota and Arkansas, are modeled on a code developed by the American Bar Association, the White decision provided clear guidance about what rules are no longer constitutionally permissible.
Regardless of how other states have treated judges since the White decision, Griffen, an ordained Baptist minister, says that expressing what he says are moral and religious beliefs isn’t unethical. He’s a judge, but the war in Iraq, Bush’s nomination of Roberts to the U. S. Supreme Court, and other issues he has remarked on won’t appear in his court, he said. Nor, as he sees it, are there other reasons why he should keep quiet.
“This is America, for crying out loud, and I’m not talking about stuff that would violate national security, that threatens the safety of the republic, or undermines the integrity of the government,” Griffen said.
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