Though he’s become known as a spirited defender of free speech, Judge Wendell Griffen says “I didn’t set out to be a First Amendment champion. But I certainly don’t mind it. My particular interest is in open government. I want to demystify the way the judicial system works. Too few people understand it.”
A black member of the Arkansas Court of Appeals, one step down from the Arkansas Supreme Court, Griffen is once again entangled with the state agency that disciplines errant judges, charged with judicial misconduct because of things he’s said. He won a skirmish last week, the Arkansas Supreme Court granting Griffen’s request that a hearing on the charges be open to the public. The Supreme Court Commission on Judicial Discipline and Disability, a group of lawyers appointed by the court, had wanted closed proceedings, in line with the way the committee normally operates. The hearing is tentatively set for March 16.
The talkative Griffen has beaten a similar rap before. In 2002, he publicly complained to a group of black legislators about racial policies at his alma mater, the University of Arkansas at Fayetteville, including the firing of basketball coach Nolan Richardson and what he said was the university’s failure to attract more black students. The commission gave him a letter of admonition, but the Supreme Court, in a 4 to 3 decision, overturned the commission’s action, saying that the state Code of Judicial Conduct, which the commission enforces, was too vague. The Court has since revised the code.
In 2005, Griffen was accused again, this time for public endorsement of an increase in the state minimum wage (a statewide campaign to raise the wage was in progress at the time and eventually succeeded), and public criticism of the Bush administration – for what Griffen says was an inadequate response to Hurricane Katrina, and for nominating John Roberts to be chief justice of the United States. He also derided leaders of the Religious Right – Jerry Falwell, James Dobson, Pat Robertson. “They’d talked about moral values, but where were they when folks on the Gulf Coast needed help?” Over a period of time, he piped up on other issues.
These are not matters that a supposedly impartial judge should be publicly addressing, according to the commisson’s executive director, James Badami, who began an investigation of Griffen after reading his remarks in the newspaper. And some individuals complained to the commission too, Badami said, although the names of the complainants have not been made public. Griffen says the increase in the minimum wage was needed and was a moral issue, for which a number of other clergy expressed support. He felt compelled to do the same. Griffen is a minister as well as a lawyer, a combination not uncommon in the black community.
The administration’s bumbling – some said unconcerned - reaction to Katrina and the suffering of the storm’s victims, most of them black, was “awful, shameful,” Griffen said. “I watched it on TV and it was painful to see. We expect the government to take care of people when disasters hit.”
As for Roberts, who was confirmed by the U.S. Senate, Griffen said that Roberts’ record on civil rights did not suggest a commitment to protecting those rights. In any event, Griffen says that his right of free speech, guaranteed by the First Amendment, overrides any commission rules.
An anonymous lawyer/blogger has said that “Without a doubt, Wendell Griffen is one of this state’s most intellectual judges.”
If true, that’s a side of Griffen unfamiliar to most people, especially those outside the legal profession. They’re more apt to use words like outspoken, fearless, unprofessional, mouthy, depending on how they feel about him. One adjective that everybody could agree on is “controversial,” a word used too often in journalism but still one that fits Griffen nicely. Controversy, not intellectual achievement, has made him Arkansas’s best-known judge. Controversy and race, some say, although Griffen himself stops short of that.
Asked whether any of the hostility toward him is based on race, Griffen says “I don’t know. I try not to burden myself with that kind of concern. You can expect criticism from any quarter if you speak your mind. Motive is hard to determine.” Controversy or not, he was the first black person to win election to the Court of Appeals and he has tried twice, unsuccessfully, to be elected to the Arkansas Supreme Court, on which only a few blacks have served and all by appointment. Had he won, he would have been the first black elected to statewide office in Arkansas. (A few years ago, one couldn’t attend a Democratic political rally without hearing that Rodney Slater, a lawyer and high-ranking member of the Clinton administrations, state and national, would be the first black governor of Arkansas. But Slater never sought elective office, Clinton left the White House in 2000, and nobody talks about Governor Slater anymore.)
Griffen’s critics believe that judges shouldn’t speak up on issues of great public interest, because they later may have to rule on cases involving those very issues. Griffen believes that judges and judicial candidates have the same right to say where they stand as other people, and that judges who don’t speak up are letting the public down.
“Judges have the longest terms of any elected officials and they’re not term-limited,” Griffen says. “They should be more forthcoming about what kind of people they are. It’s a bad thing if people say ‘I don’t know what Wendell Griffen believes, but we’re going to trust him with our most serious concerns.’ Before I can ask you to trust me with your vote, you deserve to know who I am. In a state like Arkansas, people expect candidates to engage them that way. Judges have acted like it was beneath them.”
Griffen recalled that when Clarence Thomas was seeking confirmation to the U.S. Supreme Court, Thomas was asked about the Roe v. Wade decision, which legalized abortion and is one of the most divisive issues of the times. “He said he hadn’t thought about it. Do we want a judge who has never thought about Roe v. Wade?” Thomas was confirmed by the Senate and is believed to be pining for a chance to overturn Roe v. Wade.
“Judicial candidates try to come across as Andy Griffith or Bill Cosby,” Griffen said. “But that way, voters learn nothing about me – my values, my ideals.” A judge or candidate shouldn’t be silenced because some issue might come before the court, he said. “Anything can come before the court.” Judges and candidates shouldn’t have to remain silent on an issue unless it’s being litigated or litigation is threatened, Griffen said. “Sometimes you can see that legislation will be challenged on legal grounds, and then you don’t want to be seen as trying to influence decisions. But that’s a very small number of cases.”
“Aside from pending cases and threatened litigation, judges have as much right to be involved with issues as anybody else. No litigant has raised the issue of me being biased. I think that says a whole lot. They don’t think my political opinions will bleed over into the way I decide their cases.”
N In 1998, well before he faced charges of judicial misconduct himself, Griffen wrote an article for the Duke University Law Review about judicial accountability and discipline. He said:
“State court judges have always been mindful of the potential for political defeat due to public displeasure with our rulings and opinions. Now we must also contend with the prospect of defending ourselves in disciplinary proceedings based on allegations that our rulings and opinions demonstrate misconduct in office. Nothing prevents a political officeholder, political opponent, interest group or disgruntled litigant from filing such charges. When and if they are filed, the targeted judges must finance their defenses with personal funds. They cannot engage in fundraising efforts to underwrite the cost of defending their conduct. Additionally, the fact that charges are pending against a judge can be used in campaign material by opponents or in retention elections. … Instead of employing counsel at their own expense, judges should be reimbursed from state funds, particularly when judges are exonerated or when the complaints are dismissed as improperly lodged. We must put our money behind our rhetoric about judicial independence.”
The charges against Griffen concern statements he made outside the courtroom, not “rulings and opinions,” but the points he makes about the dangers judges face, and the expense of defending themselves, are still valid. The cost factor has pressed the allegedly intellectual Griffen into violating one of the law profession’s oldest, if informal, rules. The saying is that a lawyer who represents himself has a fool for a client. Griffen is representing himself.
“I know the case better than any other lawyers, and I don’t want to pay them to learn what I already know. Also, I think I’m a good enough lawyer that I can handle the case and handle it well.” (Isn’t this what every foolish lawyer tells himself?) Also, Griffen says, if the case goes to a higher level, “We’re talking about five figures in legal fees.” He’d rather spend that on tuition for his two sons in college. Griffen is the type to take a case to a higher level, all the way to the U.S. Supreme Court maybe, if he thinks he has the resources and a reasonable chance to win. He signs off his e-mails with “We will either find a way or make one. Hannibal of Carthage”
N Griffen, 54, was born in Prescott and grew up near Delight. His parents were laborers, not lawyers. He entered the University of Arkansas at Fayetteville as a 15-year-old freshman physics major, spent more time studying women and whiskey than biology and chemistry, and flunked out. He returned to Fayetteville, now a political science major, after spending a year in South Arkansas hauling hay. He knew now that he wanted to be a lawyer, because lawyers seemed on the cutting edge of everything – the Vietnam War; the social issues confronted by a progressive U.S. Supreme Court that included the first black justice, Thurgood Marshall; an Arkansas lawsuit challenging the constitutionality of the state prisons.
After earning a bachelor’s degree, Griffen served three years in the Army. Discharged as a first lieutenant, he packed off to Fayetteville again and entered the UAF Law School. He did well. He was associate editor of the Arkansas Law Review, which is the sort of thing that lawyers take seriously. After graduation, he joined the mainline Little Rock law firm of Wright, Lindsey and Jennings. He was, he says, the first black lawyer in a major Arkansas law firm, and later the first black partner in a major law firm. He practiced business and tort litigation, defending the Establishment instead of attacking it. Between shifts at the Wright firm, he was chairman of the state Workers Compensation Commission, by appointment of Gov. Bill Clinton.
He was appointed to the Court of Appeals by Gov. Jim Tucker in 1996. In 2000, he was elected to an eight-year term without opposition. His district consists of Pulaski, Perry and Saline Counties.
In judicial races, lawyers make the difference, with their money and their endorsements. Laymen usually know little about the candidates, and the rules under which judicial races are conducted keep the laymen from learning more. Judicial candidates aren’t permitted to say much beyond “I’m qualified.”
“The system now is like a student council election,” Griffen says. “You get your buddies to talk you up.” Most of the campaign contributions for judicial candidates come from lawyers, and, Griffen says, the lawyers who make the biggest contributions are those who have the richest clients – not a good arrangement for the average Arkansan.
Still, a decisive defeat in a judicial race is a pretty good indicator that the losing candidate is not highly regarded by his peers. In a 2004 race for chief justice of the Supreme Court, Griffen got only 36 percent of the vote against James Hannah. There were, he says, extenuating circumstances. “Hannah had run before. He had name recognition and a statewide organization.” (Hannah was already a member of the court when he ran for the position of chief justice.) And, like most losing candidates, Griffen was dissatisfied with the media coverage of his race. He ran just after the judicial discipline proceeding that included the Nolan Richardson affair, and, he says, “The Democrat-Gazette disliked Richardson and made that a big part of their reporting on my campaign.” He’s also puzzled that the Arkansas media don’t rally to his side of the First Amendment argument. The Arkansas media is almost entirely corporate-owned now, and reluctant to go out on any limb.
Griffen notes that he did better in 2006, when he got 43 percent of the vote against Paul Danielson. That was still a fairly solid defeat. But neither defeats nor the system nor the Judicial Discipline and Disability Commission will force Griffen out of judicial politics. Resolute as Hannibal, he’ll run for re-election to the court of appeals next year. After all that’s happened, he likely he won’t be unopposed again.