Editor’s note: On Oct. 25, U.S. District Judge David S. Doty dismissed
Judge Wendell Griffen’s lawsuit against the Arkansas Judicial Discipline and
Disability Commission. In his ruling, Doty said Griffen hadn’t demonstrated “a
real and immediate threat of repeated injury nor shown any continuing present
adverse effects.” Griffen later asked Doty to vacate his ruling, but Doty rejected that request on Feb. 11, 2008. Doty is from Minnesota; all the federal district judges in
Arkansas recused themselves from the case.
LITTLE ROCK, Ark. — A panel that disciplines judges dropped its case late
last week against Arkansas Appeals Court Judge Wendell Griffen, who was cited
for his comments on political issues such as the minimum wage and the war in
The Arkansas Judicial Discipline and Disability Commission voted 5-1 on Sept.
21 to accept a lower panel’s
recommendation last month to drop the case on grounds that Griffen has a
constitutional right to speak out and shouldn’t be sanctioned by the state.
“It’s about time,” Griffen said.
David Stewart, executive director of the commission, declined to comment
after the ruling.
Griffen has tangled with the commission over his public remarks since 2002,
and the case dropped Sept. 21 stemmed from remarks he made in 2005 and last
year. The comments included a 2005 speech he made criticizing the Bush
administration’s handling of Hurricane Katrina and a statement he made last year
supporting an increase in Arkansas’ minimum wage.
The commission had also cited comments Griffen made against the war in Iraq
and against critics of immigrants and homosexuals.
Griffen had said the commission was violating his constitutional rights and
said the panel was ignoring the U.S. Supreme Court’s 2002 decision in Republican
Party of Minnesota v. White, which struck down a Minnesota rule barring
judicial candidates from speaking out on disputed legal or political issues.
Stewart said earlier last week that Griffen’s case would probably change the
way the commission views political speech by judges.
“I think it’s certainly been clarified,” Stewart said. “That’s the important
thing. ... As candidates and judges look to the guidelines of what is
permissible, I think it has been appropriately clarified what those limits now
Griffen, however, has a lawsuit pending in federal court challenging the
judicial code of ethics under which he was accused.
Griffen said after last week’s ruling that he intends to continue with that
lawsuit because he believes there is still a danger that judges could be
sanctioned for speaking out on issues.
“People have got to understand that a person does not become less human when
he or she raises a hand and takes the oath to become a judge,” he said.
Griffen said he did not understand why the commission had targeted comments
he had made in public speeches and columns he had written.
“At one point, you have to admit there is a certain intolerance of freedom of
speech, even within a profession that is supposed to safeguard freedom of
speech,” Griffen said. “That is not a comforting thought.”
Jim Badami, who retired as the commission’s director earlier this year and
had pursued the case against Griffen over the past two years, declined to
comment on the commission’s ruling.
“I’m no longer the spokesperson for the commission, therefore it would be
inappropriate for me to make any comment,” Badami said.
Badami first brought a complaint against Griffen in 2002, after the judge had
commented on the University of Arkansas’ history of hiring and promoting blacks,
following Nolan Richardson’s dismissal as Razorback basketball coach.
The judicial commission admonished Griffen over those remarks, but the state
Supreme Court dismissed the complaint.
Don Judges, a law professor at the University of Arkansas at Fayetteville,
said the commission’s decision vindicates Griffen’s right to speak on political
issues but said the rules for judges must be clarified to include those
“I don’t think that the outcome in this case provides the same level of
protection and avoidance of a potential chilling effect that a judicial ruling
would or a modification of the rules,” Judges said.
The Arkansas Bar Association has appointed a task force of lawyers and judges
to recommend changes in the state’s judicial rules. Howard Brill, a University
of Arkansas legal ethics professor and the task force chairman, said the group
hoped to make recommendations to the state Supreme Court in 2008.