Panel says judges should think before speaking out
Posted on Saturday, January 5, 2008
A task force recommending changes to the Arkansas Code of Judicial Conduct has proposed that judges “consider the impact” of speaking out on social and political issues because such statements could suggest bias.
The task force, a committee of the Arkansas Bar Association, made the recommendation despite a 2002 U. S. Supreme Court decision stating that the First Amendment protects judicial candidates’ speech.
David Stewart, executive director of the Arkansas Judicial Discipline and Disability Commission, said Friday that in light of the Supreme Court ruling it would be confusing if the task force’s proposed wording ends up in a revised Arkansas Code of Judicial Conduct. Part of Stewart’s role is investigating judges suspected of violating the code.
“What I’m saying is you put our office in a very touchy situation,” Stewart said.
The proposed revisions come after a two-year case in which Arkansas Court of Appeals Judge Wendell Griffen was accused of violating the Code of Conduct by speaking out on issues such as the Iraq war, homosexuality and immigration. Last year, the commission dropped its charges against Griffen after Stewart took over as executive director.
Professor Howard Brill of the University of Arkansas School of Law at Fayetteville, chairman of the task force making the recommendations, said the group intentionally included the cautionary language as a “comment” attached to the code — not as a rule.
“It is not intended to be enforceable,” Brill said. “All we’re saying is that judges should be cautious and consider those factors. It’s almost common sense.”
The language is included in a 72-page draft based primarily on the American Bar Association’s 2007 Model Code of Judicial Conduct. It addresses issues from campaign finance to judges’ personal affiliation with private organizations.
The Arkansas Bar Association’s House of Delegates will consider on Jan. 26 whether to recommend the changes to the Arkansas Supreme Court, which can put them into effect in Arkansas. The task force suggested that the state adopt most of the national model, with several revisions.
An addition recommended for Arkansas that is not in the national model would be the comment including the following: “Before speaking or writing about social or political issues, judges should consider the impact of their statements. Comments may suggest that the judge lacks impartiality.”
Griffen said Friday that he believes the cautionary language would create unnecessary problems.
“I don’t want to see another Arkansas judge have to go through all that mess,” he said.
Griffen pointed out that the task force included a note stating that some of its members “were concerned the language is inappropriate or unconstitutional.”
“Why would the profession that has sworn an oath to uphold the freedoms of our democracy advance codes that on their face raise First Amendment problems ?” Griffen said. “We lawyers are better people than this.”
He said he thought the inclusion of the language was a slap against him.
“I guess this is an attempt to say we’re going to get back at Wendell Griffen,” he said. “This is transparent.”
Brill said that’s not the case at all.
“There was no attempt to deal with any particular individual or situation. We were looking to the future,” Brill said.
Brill said the 16-member task force that included eight judges had a “very frank discussion” about free speech by judges and judicial candidates. The task force members had a variety of political, legal and constitutional opinions, he said.
Some members questioned the wisdom of including that cautionary language. Brill declined to say whether he was for or against it.
Stewart said he’s sending written comments to Brill outlining his concerns.
Stewart has said he agrees with Griffen that the 2002 Supreme Court ruling in the case of Republican Party of Minnesota v. White seems to shield judges ’ speech.
The court ruled 5-4 that a Minnesota regulation prohibiting judicial candidates 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.
Stewart said that while the ruling related to the candidates ’ speech, it seems to suggest that judges are political animals when a state chooses them through elections, as Arkansas does.
Griffen said it would make more sense to adopt a rule saying that judges shall not talk about pending or impending matters in their courts. Judges already have a means to correct any comments they might make related to pending cases.
“It’s called a motion to recuse,” he said.
The Supreme Court has posted the proposed changes to the Code of Conduct on its Web site, http: // courts. state. ar. us /.
Brill said he’s taking comments until the middle of next week and will share them with other task force members before the House of Delegates meeting at the end of the month.
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