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Arkansas high court tosses reprimand of appellate judge

By The Associated Press
11.21.03

LITTLE ROCK — State Appeals Court Judge Wendell L. Griffen says a judicial discipline panel should withdraw its letter admonishing him for criticizing the University of Arkansas on racial issues, now that the admonition has been struck down by the state Supreme Court.

The high court ruled yesterday that the standard used to punish Griffen “intrudes on legitimate free speech.” The majority opinion said the standard was too vague, and the court called upon the Judicial Discipline and Disability Commission to recommend changes in its rules.

In a written response, Griffen said the ruling was “a welcome relief.”

“Today’s decision means that Arkansas judges are treated as equal citizens for purposes of the First Amendment,” he said. “It is personally gratifying to prevail after all of the months I spent fighting charges of unethical conduct, based on an anonymous complaint, because I criticized the record of the University of Arkansas concerning racial diversity last year.”

Griffen called upon the commission to immediately remove the admonishment from his record and all references to it from the commission’s Internet site. He also said he hoped for “a long overdue review” of the way the commission does its job.

“Since last November, I woke up every day knowing that a web site was beaming out that I had been found to be an unethical judge and that, if I was to die, that’s what people would remember about me,” he said. “This was never just a slap on the wrist to me.”

James Badami, the commission’s executive director, said the commission was scheduled to meet today, and the Griffen case was likely to be discussed.

“However, I would be very surprised if the commission would appeal” the case to federal court, he said. If no appeal is made, he said, the letter of admonishment would be withdrawn.

“I’m reasonably certain the commission will direct me to have the letter withdrawn,” Badami said, “and, in the normal course of business, that will be done. It’s a matter of, when this court speaks, this agency complies with what it tells us.”

As for the ruling itself, Badami said that, “from reading that opinion, the Supreme Court considered the facts that were presented, and applied the law as they understand it” to provide guidance in applying the standards involved.

In the majority opinion, Associate Justice Robert L. Brown said the standard of conduct “is not sufficiently drawn so as to advise Judge Griffen under what circumstances he might consult with a legislative official on a matter of personal interest. Because of this, the canon did not place Judge Griffen sufficiently on notice as to what is proscribed conduct.”

The commission based its admonishment on a standard, Arkansas Judicial Canon 4c1, that bars a judge from appearing at a public hearing before an executive or legislative body or office, except on matters concerning the law, the legal system or the administration of justice, or when acting on his own behalf in a matter involving the judge or the judge’s interests.

The judicial discipline board admonished Griffen last November for comments made at a March 2002 hearing before the Arkansas Legislative Black Caucus.

At the hearing, Griffen said, “Most of the academic departments within the University of Arkansas have never employed a black faculty member, let alone one who held tenure.” He said also that the way the university handled the buyout of Arkansas basketball coach Nolan Richardson’s contract illustrated that a review of university hiring policies was overdue.

The commission concluded that Griffen violated the canon against lobbying the Legislature by urging members of the black caucus to use the budget process to express displeasure with what Griffen said was a lack of progress at the university in diversifying the faculty and administration.

Griffen’s remarks followed a well publicized dispute between Richardson and university administrators, which resulted in Richardson’s dismissal. The coach, who is black, has since sued to get his job back, although he was replaced.

Three judges dissented from the majority ruling — Jim Hannah, Tom Glaze and Donald L. Corbin — and each wrote a dissenting opinion. In his, Corbin said that the canon was not vague and that “Judge Griffen’s conduct in lobbying members of the Legislature was so egregious that there can be no doubt that it violated the canon.”

But the majority noted that Griffen argued that he “was speaking on a non-legal subject, which constituted one of his interests — that is, racial discrimination at the university.” Griffen is black and graduated from the university at Fayetteville.

The commission argued that “a judge’s interests must be defined narrowly to mean only proprietary or pecuniary interests,” the high court said. The court ruled that the “judge’s interests” exception to the canon was vague and unclear.

The majority opinion also said that the dissenting judges “essentially proclaim that they know a violation when they see one, but offer no guidance on how to extend that special knowledge to others.”

“No doubt Judge Griffen’s outspoken conduct was offensive to some,” the ruling said. But without a narrow tailoring of the standard of conduct to avoid infringing on a judge’s free-speech rights, the canon “violates his First Amendment rights.”

The court urged the judicial commission to study the “judge’s interests” exception and offer recommendations to the high court, which approved the canons, for changes that would “set in place a proper standard to govern this conduct.”

Badami said he was certain commission members “will consider the court’s request, and would not be surprised at all if a subcommittee were to be appointed to consider the matter and make recommendations.”

Griffen’s lawyer, Nate Coulter, said, “The court is, in essence, saying that if you are going to restrict speech you can’t do it with broad, vague, standardless rules that are subject to shifting interpretation and unforeseen consequences.”


Update
Ark. appeals judge faces discipline for speaking out
Wendell Griffen says panel's charges should be tossed because his comments about President Bush, immigration and other issues were protected by First Amendment. 04.25.07

Previous
Judge who criticized university's lack of diversity claims rights violated
'The First Amendment applies to judges like it does to everyone else,' says Arkansas Court of Appeals Judge Wendell Griffen. 12.18.02

Related

N.M. high court: Judges had right to criticize prosecutors

Two municipal judges wrote in a guest newspaper column that they regularly had to dismiss cases because of prosecutorial incompetence. 01.27.06

State commission raps Texas high court justice for support of Miers
Nathan Hecht claims admonishment violates his free-speech rights, hires First Amendment attorney to challenge it. 05.27.06

N.J. high court suspends judge for harsh words
Wilbur Mathesius had argued that First Amendment protected comments he made to jurors, defense lawyer and appeals court judges. 12.02.06

Panel drops case against outspoken Ark. judge
But Wendell Griffen says he will continue to pursue federal lawsuit challenging judicial code of ethics under which he was accused. 09.24.07

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