LITTLE ROCK — A federal judge dismissed a lawsuit Wednesday in which Arkansas Court of Appeals Judge Wendell Griffen challenged the rules about what a judge can say in public, finding that Griffen lost his standing to sue when the Arkansas Judicial Discipline and Disability Commission dropped its charges against him.
U.S. District Judge David S. Doty of Minnesota wrote in an eight-page order that Griffen"likely" had such standing when he filed his lawsuit in July against the commission, its executive director and members. The suit became moot, Doty wrote, when the commission decided last month to no longer pursue charges that Griffen violated state judicial canons by speaking out on subjects ranging from the minimum wage to Hurricane Katrina, coupled with the body's promise to never again level such charges against an Arkansas judge.
"Indeed," Doty wrote, "in its September 27, 2007, final decision and order, the Commission concluded that the 'Canons cited in the Formal Statement of Charges' [against Griffen] cannot be used as a basis for finding of judicial misconduct if the alleged misconduct is solely related to a public discussion of disputed political or legal issues."
Griffen said Wednesday night that he remains dissatisfied and will consider an appeal to the 8th U.S. Circuit Court of Appeals at St. Louis, which he would have to file within 30 days.
"The fact that this lawsuit challenged the Arkansas Code of Judicial Conduct and the heart of several of the canons that govern such conduct has not changed," he said from his Little Rock home.
State prohibitions on political speech - specifically those in Canon 5 that bar judges from, for example, declaring a party affiliation, donating money to political parties or endorsing politicians - violate First Amendment rights, he said.
The commission made a parallel finding in dropping its charges against him, he noted.
"So it's still on the books, but they promise not to enforce it that way again," Griffen said. "One of those statements can't be the truth. The commission can't have it both ways."
A Court of Appeals judge since 1996, Griffen, 54, faced a disciplinary hearing for 10 public statements in 2005 and 2006.His audiences varied, ranging from the NAACP in Conway to the National Baptist Convention in Atlanta to the congregants at St. Paul's Episcopal Church in Fayetteville, according to the commission's Formal Statement of Charges.
According to that document, Griffen decried "the bashing of immigrants and homosexuals," criticized President Bush's choice of John Roberts as chief justice of the U.S. Supreme Court, shared his "wholehearted support" for an increased minimum wage and blasted the federal government's response - particularly that of the White House - to Hurricane Katrina.
"It is time now for us to hold everyone accountable, beginning with the people incharge," Griffen told members of the National Association for the Advancement of Colored People at a gathering in Conway, according to an account published Sept. 11, 2005, in the Arkansas Democrat-Gazette.
James Badami, former executive director of the judicial discipline commission, ordered a complaint file opened on Griffen. In March of this year, the commission found that probable cause existed to pursue formal charges of misconduct against Griffen. The allegations were severe, citing potential violations of two sections of the Arkansas Constitution and four of the five canons of the Arkansas Code of Judicial Conduct.
Many of the charges had a redundant ring, casting essentially the same aspersions on Griffen's judgment: prejudiced administration of justice, failing to uphold the integrity and independence of the judiciary, casting reasonable doubt on a judge's ability to act impartially, and supporting one political candidate over another.
By mid-July, Griffen had had enough. He sued in U.S. District Court for the Eastern District of Arkansas, based in Little Rock.Doty took the case when all the federal district judges in Arkansas recused.
"Judge Griffen has been, is now, and will continue to be denied due process of law, equal protection of the law, and will continue to experience harassment and unwanted interference with the exercise of his First Amendment rights to freedom of speech, freedom of religious expression, and freedom of association," Griffen wrote in his initial complaint.
Wednesday night he said nothing has changed.
"There are still principles here that are in need of pursuing," Griffen said. "I am not ready to say what my intentions are just yet, but I would imagine this winds up in the hands of the 8th Circuit. This is not yet done."
Arkansas, Pages 9, 13 on 10/25/2007