dissenting. I disagree with the majority opinion. The Commission’s decision to issue an admonishment should be upheld, but the sanction should be for Judge Griffen’s having violated Canon 2(B), which, in relevant part, provides that a judge “shall not lend the prestige of judicial office to advance the private interests of... others.” During oral argument, the Judge’s counsel conceded that lobbying for someone else is a violation of the canons; however, counsel did not believe Judge Griffen’s actions in this matter amounted to judicial misconduct. At the end of the probable cause hearing, the Commission dismissed all allegations (including those founded on Canon 2(B)) except those concerning Canon 4(C)(1).
While I do not take issue with the Commission’s ruling that Judge Griffen violated Canon 4(C)(1), the record clearly reflects that he violated Canon 2(B). The Legislative Black Caucus called its meeting because Coach Nolan Richardson had been terminated by Chancellor John A. White and Athletic Director Frank Broyles. This controversy not only gave impetus for the Black Caucus to call a meeting, but also led the Caucus to invite leading state officials to attend and present their views on the brouhaha concerning Coach Richardson’s legal problems with the University of Arkansas. Judge Griffen’s prepared remarks speak for themselves. One relevant part of his remarks follows:
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 added.)
Although Judge Griffen’s position is that his appearance and remarks pertained mainly to diversity and racial issues over 130 years at the University of Arkansas, he took the added license and opportunity to mention Coach Richardson a minimum of eighteen times in his speech, and in doing so, Judge Griffen drove home the message to the legislators attending the Caucus meeting that they should take action and obtain results by limiting or stopping altogether money to state officials and leaders by “letting the money flow according to the results they show.” Judge GrifFen’s rush to Coach Richardson’s aid was most admirable as a friend, but not as a judge who is ethically forbidden to use his position to gain some advantage on behalf of a friend who finds himself in a legal controversy. This is true whether or not the judge would or could be a presiding judge over the legal dispute. There is nothing vague about Canon 2(B); as conceded by counsel in oral argument, using the prestige of the Judge’s office to advance the private interests of another violates this Canon. A judge cannot rectify such a breach of Canon 2(B) merely by announcing before his speech that, besides being a judge, he also wears other “hats.”
Our court’s procedural rules that implement Amendment 66 to the Arkansas Constitution, entitled “Judicial Discipline and Disability Commission,” are suigeneris and expressly give this court the authority and the right to review any action taken upon any complaint filed with the Commission, and the court may also bring up for review any case in which the Commission has failed to act. Given this authority of review, this court can clearly decide this case de novo and declare that Judge Griffen violated Canon 2(B); or the court has the option to remand the matter to the Commission to relitigate the law and evidence bearing solely on Canon 2(B). Because this matter has already been developed, I would decided this Canon 2(B) issue in this de novo review.
To summarize, this court is availed the procedural authority to review judicial discipline matters filed with the Commission under Ark. Const, amend. 66(c) and (f), and in accordance with Ark. Code Ann. § 16-10-401 to -411 (Repl. 1999), and Ark. Jud. Disc. & Disab. Comm’n R. 1 through 14. In particular, Rule 12 provides in relevant part as follows:
C. ... If the court desires an expansion of the record or additional findings, either with respect to the recommendation for discipline or sanction to be imposed, it shall remand the case to the Commission for the appropriate directions, retaining jurisdiction, and shall withhold action pending receipt of the additional filing.
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The Supreme Court may accept or solicit supplementary filings with respect to medical or other information without remand and prior to an imposition of discipline provided that the parties have notice and an opportunity to be heard thereon.
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E. Based upon a review of the entire record the Supreme Court shallfile a written opinion and judgment directing such disciplinary action as it finds just and proper. It may accept, reject, or modify in whole or in part, the findings and recommendation of the Commission. In the event that more than one recommendation for discipline for the judge is filed, the court may render a single decision or impose a single sanction with respect to all recommendations.
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F. The Supreme Court may bring up for review any action taken upon any complaint filed with the Commission, and may also bring up for review a case in which the Commission has failed to act. (Emphasis added.)1
In this case, Judge Griffen was given notice and a probable cause hearing concerning several complaints numbered 02-161, 02-191, and 02-197. Those complaints contained allegations that Judge Griffen’s conduct violated five canons — 2(A), 2(B), 3(B)(5), 4(A), and 4(C)(1). After the Commission’s hearing, it dismissed all alleged violations except Canon 4(C)(1). As already stated, it is my view that the evidence and record clearly support a finding that Judge Griffen’s conduct advancing Coach Richardson’s interests violated Canon 2(B) for the reasons described above. The Commission was clearly wrong in dismissing the Canon 2(B) claim.
Rule 12’s language in provisions C, E, and F empowers this court to review any action taken upon any complaint filed with the Commission, and we may also bring up for review a case in which the Commission failed to act. Because this court has broad discretion to review the evidence pertaining to any or all allegations filed with the Commission, I would affirm the Commission for reaching the right result, but for a different reason. Here, the record demonstrates that Judge Griffen violated Canon 2(B), and, for that reason, the admonishment sanction should be affirmed. Again, there is nothing vague about Canon 2(B); as Judge Griffen concedes — he appeared before legislative officials and encouraged them to use their authority over the University of Arkansas to obtain a favorable result on Coach Richardson’s behalf. The Judge did not mince words, as the majority court does in this appeal, in his attempt to influence legislation and gain support for the Coach’s interests in his legal controversy with the University. The majority’s vagueness argument regarding Canon 2(B) is nothing but a poorly veiled attempt to inject a “free speech” defense that is nonexistent.
The majority court parses Rule 12 in an apparent attempt to limit the court’s right of review of the Commission’s actions or inactions. However, the breadth and scope of Rule 12 is all too obvious by a fair reading of its terms. In this special and unique review of disciplining judges, this court is endowed with the authority to sua sponte bring up for review any action taken or not taken upon any complaint filed with the Commission, No one challenges Rule 12 as being in conflict with Amendment 66, so the Rule’s plain language should be recognized and applied as it so clearly reads. In the present case, the Commission notified Judge Griffen of complaints the Commission received, which included allegations that he violated Canon 2(B). At the end of the hearing on all allegations, the Commission determined Judge Griffen had violated Canon 4(C)(1), but not Canon 2(B) or the other three canons. Because there was evidence that showedjudge Griffen had violated Canon 2(B), the Commission was clearly wrong in dismissing the Canon 2(B) complaint. While the majority suggests that this court does not have the power to overrule the Commission’s decision to dismiss the Canon 2(B) violation, it is sorely mistaken. This is not a criminal case where double jeopardy could be an issue. Whether this action is categorized as being a civil action or one sui generis, the supreme court is charged with the authority to review and remand any case where the Commission erroneously dismissed a complaint. That is the situation here.
In response to my dissent, the majority opinion suggests that the Commission chose not to proceed with a probable cause hearing on the alleged violation of Canon 2(B); the majority opines that there was insufficient evidence to do so. The majority is seriously wrong, and it fails to point to evidence anywhere in the abstract of the record to support its assertion. To the contrary, the Commission, at the end of the probable cause hearing, specifically moved to dismiss all allegations except the allegation concerning Canon 4(C)(1).
Despite this action taken by the Commission members, the majority opinion curiously reads: “[E]ven though the Judicial Commission ‘dismissed’ all allegations at the end of the probable cause determination, the only violation under investigation at the time, other than a violation of Canon 4(C)(1), was a violation of Canon 4(A).”
If the Commission was only considering Canon 4 during the probable cause hearing, why was it necessary for the Commission to dismiss all allegations except Canon 4(C)(1) at the end of the hearing?2 Nothing in the abstract of the record reflects that the Commission failed to consider Judge Griffen’s conduct as it related to Canon 2(B).
Without question, the Commission heard testimony that related to both Canon 2(B) and Canon 4. When the Commission’s hearing began, Judge Griffen’s counsel asked what conduct of the Judge was in issue. From the colloquy between counsel and the Commission and its Executive Director, the Judge was informed that his comments concerning Coach Richardson’s contract dispute and the Judge’s appearance before the Black Caucus would be considered. At this early stage of the hearing, it was clear that the Judge’s support for another person (Coach Richardson) was relevant as to whether his comments also violated Canon 2(B).
If there is still any further question on whether Canon 2(B) was in issue at the hearing and whether Judge Griffen’s comments violated both Canon 2(B) and Canon 4, one needs only read the testimony the Judge presented at the hearing. For example, the Judge called Professor Morton Gitelman as an expert on the First Amendment and judicial discipline issues. During Professor Gitelman’s testimony, he touched on Canons 1, 2, 3, and 4; he further opined that Canons 1, 2, and 3 were fraught with subjectivity and elasticity or vagueness. The Professor also filed with the Commission a written statement which bore on all of these judicial canons and whether Judge Griffen’s comments violated those canons. Also, after the close of the Judge’s proof, his counsel, in summarizing the Judge’s case, made specific reference to Coach Richardson’s contract dispute and the Judge’s remarks made in support of the Coach. After the hearing, the Commission submitted its report and findings, noting in part that the probable cause hearing involved Complaint No. 02-197; while that complaint alleged violations of Canons 2(B), 4(A), and 4(C)(1), the Commission ruled (in my opinion erroneously) that the Judge’s actions constituted only a violation of Canon 4(C)(1). There is no doubt in my mind that the Commission was clearly wrong in determining the Judge’s conduct did not violate Canon 2(B).
While I have great empathy for individuals like Judge Griffen who wish to make a contribution towards improving human rights and strive to make government better, there are, nonetheless, boundaries and limitations when that individual is a judge — elected or appointed. If the judicial branch is to maintain its integrity, it must do so by remaining separate from the legislative and executive branches. A judge must be called on to apply and enforce the law evenhandedly and consistently. A judge who works full time to discharge his or her responsibilities in trying to improve the administration of justice — which is permissible by the judicial canons — has little time to champion other social ills. There are other officials who are given authority to address those other inequities in our democratic government by enacting new laws and setting new policies. Meanwhile, it is of great importance that judges not take sides in legal disputes because of friendships or because of shared personal or private interests. Individuals who want to change the law may do so by serving as a legislator or executive officer — or maybe as a private citizen who can direct, or work for, a group that is trying to make a difference in our society.
In conclusion, I would be remiss in failing to mention the real fear our judicial branch has and likely will face soon. In the not-too-distant future, it appears almost certain that the United States Supreme Court will render a decision which will effectively eviscerate any state government system that now provides for the election of judges. See Republican Party of Minnesota v. White, 536 U.S. 765 (2002). In White, the Supreme Court, by a 5-4 decision, struck down a Minnesota judicial conduct provision that prohibited a judicial candidate during a judicial campaign from announcing his or her views on disputed or political issues because it violates the First Amendment. It appears to me that, if a judicial candidate, during an election, can voice his or her views on disputed or political issues, the person who has been elected and who then serves as a sitting judge after the election will also have the same First Amendment right to speak out on such issues. It is a chilling and sickening thought that the majority of the Supreme Court will, all in the name of free speech, countenance and empower elected judges to take their strong personal biases and use the authority of the judgeship to render decisions based on personal beliefs, irrespective of how the law should or does read.
While Judge Griffen’s case now before this court is important, there is a far greater concern that the Supreme Court’s next decision will effectively eliminate elected judges. Perhaps the majority of members on the Supreme Court have an underlying belief that there is little or no politics involved in appointing judges. Certainly, one can gather that thought by reading Justice O’Connor’s concurring opinion in White, wherein she gave the following various gratuitous and disturbing thoughts:
Even ifjudges were able to suppress their awareness of the potential electoral consequences of their decisions and refrain from acting on it, the public’s confidence in the judiciary could be undermined simply by the possibility that judges would be unable to do so.
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Even ifjudges were able to refrain from favoring donors, the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributors is likely to undermine the public’s confidence in the judiciary.
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Minnesota has chosen to select its judges through contested popular elections instead of through an appointment system or a combined appointment and retention election system along the lines of the Missouri Plan. In doing so the State has voluntarily taken on the risks to judicial bias described above. As a result, the State’s claim that it needs to significandy restrict judges’ speech in order to protect judicial impartiality is particularly troubling. If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.
As long as the Supreme Court majority holds on to such fallacious thoughts and ideas as those expressed by Justice O’Connor above, it is likely that Court’s majority will soon author an opinion which will make judges political in all respects. Contrary to the beliefs Justice O’Connor expressed in her opinion in White, judges can be elected in nonpartisan elections and serve with integrity and honesty. We presently have thirty-nine states that- elect judges, and they have largely avoided the hypothetical deficits Justice O’Conner says occur when the people elect their judicial officers. I obviously have considerably more confidence in this country’s electorate than does the majority of the Supreme Court.
Corbin and Hannah, JJ., join this dissent.Attachment
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This principle of review and affirm has been long settled in de novo cases. See Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002); Mashburn v. Meeker Sharkey Fin. Group, Inc., 339 Ark. 411, 5 S.W.3d 469 (1999); Alexander v. Twin City Bank, 322 Ark. 478, 910 S.W.2d 196 (1995).
See the attached page of the hearing which bears out that the Commission dismissed all allegations except those relating to Canon 4(C)(1).