dissenting. I must respectfully dissent from the majority opinion because I cannot fathom how this court can proclaim that our very own Canon is vague and, therefore, failed to put Judge Griffen on notice that his conduct was impermissible. I base my dissent on two distinct reasons: (1) Canon 4(C)(1) is not vague; and (2) assuming arguendo that the exception in Canon 4(C)(1) is open to interpretation, Judge Griffen’s conduct in lobbying members of the legislature was so egregious that there can be no doubt that it violated the Canon.
Turning first to the language of Canon 4(C), the majority correctly recognizes that the underlying purpose of this Canon is to preserve judicial independence from the other branches of government. The majority then abandons this notion by erroneously concluding that the phrase “judge’s interests” is not clear. In fact, the majority makes much ado about the competing explanations offered by the Judicial Commission and Judge Griffen as to the phrase’s meaning. The fact that the parties to this action cannot agree on the meaning of the exception, however, should have no bearing on this court’s interpretation of the Canon. We are the ones who approved the Judicial Code in the first place.
This court set forth the method for interpreting our own rules in Huffman v. Arkansas Disc. & Disab. Comm’n, 344 Ark. 274, 278, 42 S.W.3d 386, 389-90 (2001), wherein we stated:
Courts construe their own rules using the same means as are used to construe statutes. Gannett River Pub. v. Arkansas Dis. & Disab., 304 Ark. 244, 801 S.W2d 292 (1990). The fundamental principle used in considering the meaning of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning. Boston v. State, 331 Ark. 99, 952 S.W.2d 671 (1997); Rush v. State,324 Ark. 147, 919 S.W.2d 933 (1996); Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998).
Another fundamental principle of statutory interpretation is that the court places a statute beside other statutes relevant to the subject matter in question and ascribes meaning and effect to be derived from the whole. Short v. State, 349 Ark. 492, 79 S.W.3d 313 (2002). Remaining mindful of these rules of construction, I now turn to Canon 4(C)(1).
Canon 4(C)(1) provides that:
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 or except when acting pro se in a matter involving the judge or the judge’s interests. [Emphasis added].
It is the latter exception of this Canon that the majority takes issue with, as being vague and not sufficiently notifying Judge Griffen of what behavior is proscribed. The majority reaches this conclusion, however, by ignoring our well-settled principles of statutory construction. As the majority points out in its opinion, the only guidance found regarding the addition of this exception to the Canon comes from a Reporter’s Explanation that states, “An additional exception was added for other activities under this rule that are permitted elsewhere by this Code.” See American Bar Ass’n Standing Comm. On Ethics & Prof 1 Responsibility, Report to the House of Delegates 35 (Nov. 1989). The majority fails, however, to utilize this guidance and look at the other provisions in the Judicial Code in order to ascertain the intent of the exception.
Indeed, Canon 4(G) touches on this very issue. Canon 4(G) prohibits a judge from practicing law, with the exception that “a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family.” The Commentary to this Canon is further illustrative, stating in part:
This prohibition refers to the practice of law in a representative capacity under the Arkansas Constiution, Article 7, § 24 and not in a pro se capacity. A judge may act for himself or herself in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with legislative and other governmental bodies.
This court has recognized that the commentary to a canon, much like the commentary to a statute, is not controlling over the canon’s clear language, but is a highly persuasive aid to construing that canon. Huffman, 344 Ark. 274, 42 S.W.3d 386; McGrew v. State, 338 Ark. 30, 991 S.W.2d 588 (1999).
Clearly, the interests excepted in Canon 4(C)(1), when considered in light of Canon 4(G), are limited to matters of a legal nature. The term “pro se” is a legal term of art. A person does not appear “pro se” before a doctor. It is entirely possible, though, that a judge may have to appear pro se before a legislative or executive body. One example comes readily to mind. A judge owns several acres of rural land adjacent to a State highway. The Arkansas State Highway Commission commences work on expanding the highway, and in so doing, the Commission utilizes a portion of the judge’s land without giving him prior notice of the taking. The judge’s only remedy after the taking without his knowledge is to seek damages before the Arkansas Claims Commission. The Claims Commission is an “arm of the General Assembly,” and as such, constitutes a legislative body, as envisioned by Canon 4(C)(1). See Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 166, 970 S.W.2d 198, 200 (1998) (quoting Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 458, 784 S.W.2d 771, 775, cert. denied, 498 U.S. 824 (1990)). Under Canon 4(C)(1), the judge would be allowed to appear pro se before that legislative body and seek damages as a result of the State’s taking of his land. This example conforms with a plain reading of Canon 4(C)(1). It is ludicrous for the majority to opine that the exception is not clear.
I wholeheartedly agree with the majority that the “judge’s interests” exception cannot be construed in the manner advanced by Judge Griffen. To accept his interpretation would mean that any judge of this State could lobby executive or legislative bodies or officials on any topic that they feel strongly about. As I pointed out in the oral argument of this case, if we accept Judge Griffen’s interpretation of this exception, it would then be acceptable for me to go before legislators and urge them to pass legislation restricting a woman’s right to an abortion. All I have to show is that I am a member of a Catholic family and have strong pro-life beliefs. Or, as a person of Cherokee Indian descent, it would be acceptable for me to lobby the governor to appoint more Cherokee Indians to positions in State government. After all, I have an interest in seeing that people of my same descent advance. Such acts would not be an issue if I were simply Citizen Donald Corbin, but I am Judge Donald Corbin, and I must always remain mindful of that title.
The fact that Judge Griffen’s interpretation defies all notions of a separate and independent judiciary makes it that much more apparent to me that Canon 4(C)(1) is anything but vague. I am troubled by the fact that the majority opinion gives credence to Judge Griffen’s interpretation, even after recognizing that the State has a compelling interest in upholding the doctrine of separation of powers. In fact, this court recently discussed the importance of this constitutional requirement in Magnus v. Carr, 350 Ark. 388, 392, 86 S.W.3d 867, 869 (2002) (citing Smith v. Page, 192 Ark. 342, 91 S.W.2d 281 (1936)), and stated:
The kind of government the people adopted contains three coordinate branches. In assigning the government to three different departments, the people intended to secure to each its independency of action . . .
Issues regarding appropriations are strictly within the purview of the General Assembly. When ajudge requests legislators to vote to decrease a university’s appropriations, he has impermissibly encroached upon a legislative function. If Judge Griffen had been speaking to a group of high school students about his thoughts on the lack of racial diversity at the University, there would be no issue before us. This case is here because he not only spoke to a group of legislative officials, but he also sought to influence how they would vote on a specific appropriations bill. The fact that he claims that he was not acting in his judicial role is of no merit. As the majority correctly points out, ajudge cannot divest himself of that role, particularly when that judge introduces himself as a member of the judiciary. Moreover, ajudge should not be allowed to shed his robe when he breaches the doctrine of separation of powers.
This court should not ignore the fact that we are the ones who carefully studied and adopted the Judicial Code. We were certainly cognizant of the doctrine of separation of powers when we implemented each of the Canons. As such, I am hard pressed to believe that we intended the “judge’s interest” exception to be construed in any manner other than in the most narrow of interpretations. As it stands now, this court has effectively negated Canon 4(C)(1), and there is nothing to prevent a judge from impermissibly lobbying or consulting with members of the other two branches of government and, thereby, causing irreparable damage to the doctrine of separation of powers.
As I stated in the beginning of my dissent, even if I were to agree with the majority that there is insufficient guidance in Canon 4(C)(1) regarding what qualifies as a judge’s interest, I do not believe that the Canon is so vague as to fail to put Judge Griffen on notice that his action of lobbying legislators regarding their votes was a direct violation of the Code of Judicial Conduct.
The majority recognized the long-standing principle that for a statute to avoid being vague it must give a person of ordinary intelligence fair notice of what is prohibited. See Night Clubs, Inc. v. Fort Smith Planning Comm’n, 336 Ark. 130, 984 S.W.2d 418 (1999). I submit that Judge Griffen, whom I know to be of not ordinary, but high intelligence, had more than fair notice that his speech to a group of legislative officials regarding their votes for appropriations to this State’s largest university was conduct prohibited by Canon 4(C)(1). As the United States Supreme Court has recognized, the constitutionality of a statutory provision being attacked as void for vagueness is to be determined by the statute’s applicability to the facts at issue. United States v. Powell, 423 U.S. 87 (1975). That rule should be applied in the present case; thus, any issues of vagueness regarding Canon 4(C) (1) should be determined in light of the fact that Judge Griffen specifically and blatantly lobbied members of the legislative branch of government. In light of that fact, I cannot agree that Canon 4(C)(1) failed to put Judge Griffen on notice that his conduct was prohibited.
Finally, I understand that Judge Griffen feels very strongly about the subject of racial diversity. It is an important issue, but there are many important issues that judges feel strongly about. When a judge takes the oath of office, however, he does so knowing that his role as a member of the judiciary takes paramount importance over any other role that he may play, including that of a minister or a social advocate. This court has recognized that an independent judiciary is essential for our society, because it cannot function without the trust and confidence of the public in the integrity and independence of its judges. Huffman, 344 Ark. 274, 42 S.W.3d 386. By condoning the actions of a judge in attempting to influence legislators regarding their votes, this court has failed not only the entire judiciary, but also the citizens of this State who have placed their trust in us to act judiciously.
For these reasons, I respectfully dissent.
Glaze and Hannah, JJ., join in this dissent.