The state Judicial Discipline and Disability Commission today voted 5-3 to have a full hearing on whether to punish Appeals Court Judge Wendell Griffen for speaking publicly about such matters as racial discrimination and the Bush administration handling of Hurricane Katrina. (The vote is taken in private and only the tally, not the individual votes, is disclosed.)
At that hearing, a full case will be presented and Griffen will be allowed to mount a defense. The commission then can decide to 1) dismiss the case 2) issue a reprimand or censure 3) recommend a suspension with or without pay to the Arkansas Supreme Court or 4) recommend removal by the Arkansas Supreme Court. The hearing could take place late this summer.
The decision followed a closed session. That followed a probable cause hearing at which a complaint developed by commission director James Badami was presented to the commission. Griffen was not allowed to present a full case or call witnesses, though he did have an opportunity to say the allegations were unproved and, that even if they were true, his speech was protected by he First Amendment. He wanted to call five witnesses, including Badami. He argued that, because the Commission could vote at the conclusion of the morning session to dismiss the complaint or issue a mild admonishment that he should have an opportunity to present a full case.
The question is whether Griffen, or any judge, is strictly bound by the state's code of ethics for judges not to comment on such matters, even if they are not issues in any way related to cases in his court. Griffen argues (and we agree) that U.S. Supreme Court precedent prohibits the state's abridging of the First Amendment rights of judges.
The commission has had a long vendetta against Griffen. He successfully overturned one prior admonishment on account of his public speech. The latest case includes the allegation that he violated ethics rules by writing a guest column for the Arkansas Times. No good deed goes unpunished.
Griffen's determination to protect his free speech rights -- and his vigorous exercise of them -- will undoubtedly be an issue in his bid for re-election next year. Juvenile Judge Rita Gruber is planning to challenge him.