In today's AD-G there is an article about Judge Wendell Griffien's disciplinary hearing. The article focuses on the fact that the disciplinary hearing will be closed to the public, despite Judge Griffen's request to make it open. Rule 7 states that a hearing shall be open as shall the records. The same rule also states, "The Commission may, however, onduct its deliberations in executive session which shall not be open to the public." The decision must be announced in open session. What possible purpose could a closed hearing serve? First, let me say I think any formal hearing should be open if Judge Griffen wants it open, but the issue isn't as clear as it may seem. From what I can tell – the hearing at issue is not a final hearing. Instead it is an investigative hearing in which the Commission gathers evidence and testimony to decide whether to file formal action. This stage of the process is similar to a grand jury hearing. Although rarely used in Arkansas circuit courts, many other states, as well as the federal courts, have always had the tradition of grand juries in which the testimony is confidential until the decision to indict is made. Confidentiality also protects the witnesses and the accuser.
The commission's guidelines can be found here
That being said, my real interest in the case is whether Judge Griffen is right. That is, does he have a First Amendment right to freely exercise his opinion while at the same time being a judge on the Court of Appeals? Let me start by saying I think Judge Griffen is a great American. He is sincere, honest, intellectual, well versed in the law, and most importantly, his positions agree with mine most of the time. But for his penchant to exercise freedom of speech on a host of topics I would like to see him appointed or elected to higher posts in the future. I say "but for" because I do not think a full-time judge in this state should be announcing his views on policical topics. At the same time, just because I don't think he should express his opinion – doesn't mean I don't think he has the right to do so. The U.S. Supreme Court has clearly held in Republican Party of Minnesota v. White, 536 U.S. 765 (2002) that a judge, while running for office, has the right to announce his views on certain topics. They did not uphold Judge Griffen's position that as long as he does not speak in his judge mode, he can say anything he wants.
After the last case he appealed to the Arkansas Surpeme Court, and won because the Judicial Code was vague, they changed the judicial code. I'm still not sure if the code is clear to instruct judges as to what they can and cannot discuss publicly. The amended rule ( Judicial Code Rule 4 C ) states in relevant part:
C. Governmental, Civic or Charitable Activities.
(1) A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice.
The standard to test whether a rule or law is unreasonably vague is whether it gives a person of ordinary intelligence fair notice that his contemplated conduct is forbidden and it must not be so vague and standardless that it leaves judges free to decide, without any legally fixed standards, what is prohibited and what is not on a case-by-case basis. Thompson v. Arkansas Social Servs., 282 Ark. 369, 669 S.W.2d 878 (1984). Can a person of merely ordinary intelligence, such as myself, understand what this rule prohibits? I'm not so sure. I predict yet another deeply divided Arkansas Supreme Court on this issue but I think the Court has tilted a little to the right and Griffen will not prevail.
As judicial infractions go, Judge Griffen's actions are minor and a simple admonishment or caution should be an appropriate and sufficient sanction.