Griffen v. Ark. Judicial Discipline Com'n

• Decision Date: 20 November 2003
• Docket Number: No. 03-662.,03-662.
• Citation: 355 Ark. 38,130 S.W.3d 524
• Parties: Judge Wendell L. GRIFFEN v. The ARKANSAS JUDICIAL DISCIPLINE AND DISABILITY COMMISSION.
• Court: Arkansas Supreme Court

130 S.W.3d 524

Judge Wendell L. GRIFFEN v. The ARKANSAS JUDICIAL DISCIPLINE AND DISABILITY COMMISSION.

No. 03-662.

Supreme Court of Arkansas.

November 20, 2003.

Wendell L. Griffen, Judge, pro se; and Wilson, Engstrom, Corum & Coulter, by: Nate Coulter, Little Rock, for petitioner.

Mike Beebe, Att'y Gen., by: Jeff R. Priebe, Ass't Att'y Gen., Little Rock, for respondent.

ROBERT L. BROWN, Justice.

Petitioner, Judge Wendell L. Griffen, petitions this court to grant a writ of certiorari to the respondent, Arkansas Judicial Discipline and Disability Commission (Judicial Commission), declaring a letter of admonishment invalid and quashing it. Judge Griffen mounts several arguments in support of his petition: (1) he did not violate the Arkansas Code of Judicial Conduct; (2) the remarks he made to the Arkansas Legislative Black Caucus are protected under the First Amendment to the United States Constitution as free speech and as the free exercise of religion; and (3) he was denied his right to due process of law because the complaint made against him was anonymous and because the Judicial Commission's decision was arbitrary, capricious, and contrary to the evidence. We issue the writ of certiorari and quash the admonishment because the canon involved, Canon 4C(1), is not sufficiently drawn so as to advise Judge Griffen under what circumstances he might consult with a legislative official on a matter of personal interest. Because of this, the canon did not place Judge Griffen sufficiently on notice as to what is proscribed conduct. As a result, the canon intrudes on legitimate free speech.

On March 18, 2002, Judge Griffen, who is African-American, appeared before the Arkansas Legislative Black Caucus in a public meeting called to discuss the recent dismissal of University of Arkansas at Fayetteville (University) basketball coach, Nolan Richardson. At that meeting, Judge Griffen first introduced himself:

My name is Wendell L. Griffen. I am a native Arkansan, grew up near Delight in Pike County, and now live in Little Rock with my wife (Dr. Patricia L. Griffen) and our two teenage sons. Since January 1, 1996, I have served on our state Court of Appeals. Before then, I practiced law in Little Rock and served briefly as Chairman of the Workers Compensation Commission (from April 15, 1985 to February 2, 1987). I am also an ordained Baptist minister serving as Coordinator of Educational Ministries at Mt. Pleasant Baptist Church in Little Rock.

He next described his educational background at the University in college and law school and his involvement with the University since graduation, including his presidency of the Black Alumni Society of the Arkansas Alumni Association.

Following this introduction, Judge Griffen traced African-American enrollment at the University since 1948. He discussed what he described first as the absence and later the low percentage of black faculty. He next voiced his concern about black student recruitment, reduced black student enrollment, reduced financial aid to black students, the absence of black full professors, and the absence of black chairs of departments. He then discussed Coach Nolan Richardson and his firing despite his record of having the highest won-loss record in University basketball history. Because of these facts, Judge Griffen called upon the legislators to engage in economic retaliation during the legislative session:

Please weigh these facts alongside what will, no doubt, be similar to patterns at other state-supported schools of higher education in Arkansas. Bear in mind that these colleges and universities operate with tax dollars taken from hard working citizens of all races and ancestries. Our citizens are still paying, financially, emotionally, academically, and culturally, for inequities in public secondary education that followed the curse Governor Faubus left on our state. In the coming weeks and months, you will be approached by leaders from these schools and their supporters. They will urge you to appropriate more tax revenue for their institutions. Do not reward the captains of colleges and universities with personnel actions, admission standards, and institutional practices and policies that exclude, inhibit, and mistreat black students, faculty, staff, and citizens by appropriating more tax revenue to their schools. Previous appropriations have been used to maintain longstanding inequities, so use your appropriation votes to show that you will not be a willing accomplice to that injustice. As legislators, cast your votes on budget appropriation bills to send a clear signal to the University of Arkansas and other schools. Show them you will not support schools where black students, professors, and staff members are forced to watch their opportunities in higher education languish while their white counterparts enjoy most favored status at state expense. Chancellor White and Frank Broyles say they fired Coach Richardson because they lack confidence in his leadership, despite the successful results he produced over the past seventeen years. Whether you believe them or not—and I do not believe them—send them a budgetary vote of no confidence concerning sorry leadership about racial inclusion over the past 130 years at the University of Arkansas. SHOW THEM THE MONEY! [Emphasis omitted.]

In 2002, the Judicial Commission received three complaints against Judge Griffen relating to his public comments:

(1) On March 3, 2002, an email was sent from a named complainant objecting to Judge Griffen's comment that "People of color want to send their children to places where they will have strong positive role models." The statement was made in conjunction with the University's dismissal of basketball coach, Nolan Richardson. The complainant stated that positive role models are wanted by all races and that Judge Griffen had turned this into a "racist situation." The complaint became Case No. 02-161.

(2) On March 29, 2002, a named complainant wrote a handwritten letter to the Judicial Commission, also complaining about Judge Griffen's "people of color" remarks in connection with the University. The complainant charged that Judge Griffen "expressed racist views" and "votes in line to his racist views" on the court of appeals. This became Case No. 02-091.

(3) On April 8, 2002, the Judicial Commission received a four-page letter written by an anonymous complainant, who complained about Judge Griffen's appearance before the Arkansas Black Legislative Caucus on March 18, 2002, and subsequent radio programs. The letter listed Judge Griffen's actions in (a) writing a letter from the University of Arkansas Black Alumni Society that complained about the University's decision to terminate Coach Richardson; (b) a quote by Judge Griffen in USA Today, stating that race was a factor in the Richardson firing; (c) Judge Griffen's letter to the University withdrawing all of his recruiting and fundraising support because of the demotion of a black administrator at the University; and (d) other comments about the University's lack of commitment to racial diversity. The letter pointed to violations by Judge Griffen of Canon 2 and Canon 4 of the Arkansas Code of Judicial Conduct. The anonymous complainant also alluded to a questionable dissent written by Judge Griffen in a court of appeals case and other public statements he had made, which exhibit his "outspokenness." The writer called on the Judicial Commission to investigate Judge Griffen for "unethical and improper conduct." This became Case No. 02-197.

By letter dated April 17, 2002, the Judicial Commission advised Judge Griffen of the complaints and the asserted violations of the canons and suggested that Judge Griffen also review Canons 3B(5) and 4C(1) of the Arkansas Code of Judicial Conduct. The Judicial Commission requested any comments from Judge Griffen within thirty days.

On May 10, 2002, Judge Griffen wrote to the Judicial Commission and denied any impropriety or violation of the canons. He discussed each canon raised by the Judicial Commission and wrote regarding Canon 4C(1):

Had the complainant bothered to study the newspaper article that reported that appearance [before the Legislative Black Caucus], he or she would have learned that I appeared in my own capacity, that I am an alumnus of the University of Arkansas, past president of the Black Alumni Society of the Arkansas Alumni Association, and past board member of the Arkansas Alumni Association. I disclosed those facts at the outset of my remarks and indicated that I was appearing on my own behalf.

Judge Griffen concluded by urging the Judicial Commission not to lend its office in support of tactics aimed at "chilling legitimate involvement by judges in issues of public interest."

By letter dated July 17, 2002, the Judicial Commission advised Judge Griffen that it was proceeding to investigate his conduct and enclosed a Statement of Allegations, which enumerated the canons in question:

• Canon 2A: "A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

• Canon 2B: "A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others...."

• Canon 3B(5): "A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race...."

• Canon 4A: "A judge shall conduct all of the judge's extra-judicial activities so that they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge...."

• Canon 4C(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...