dissenting. I must respectfully dissent. While I have great admiration for Judge Griffen and his contributions to both the community and the judiciary, I must conclude that the majority has erred in reversing the Arkansas Judicial Discipline and Disability Commission. It is an unpleasant task to explain how Judge Griffen has violated the judicial canons. The courts dare not be a respecter of persons. On the topic of providing equal justice for all, Griffin v. Illinois, 351 U.S. 12 (1956), noted that the desire for equal application stretches back to the Magna Charta, and the Court then cited Leviticus, wherein the command is given that the person may not be respected, not the poor nor the mighty, and that justice must be equal to all. See Griffin, 351 U.S. at 17. Regardless of the subject matter discussed by Judge Griffen before the legislative officials, the judicial canons must be applied to him as they would be applied to any other judge.
I note first that I join injustice Corbin’s dissent and will not again lay out the analysis that Justice Corbin has ably offered. I also note that I share the often voiced concern that the opening of proceedings against a judge based on an anonymous complaint is highly questionable at best. This State’s courts and the lives of its judges should not be disrupted by what' often turn out to be unfounded and frivolous complaints. However, in this case my concerns are allayed because the events complained of were public, and a transcript of Judge Griffen’s speech is available.
This case is simple. We are presented with an open attempt by a sitting appellate judge to influence the voting and appropriations decisions of the Legislature. Thus, this court should candidly face and remedy this injury to the fundamental interest in an independent judiciary, an institution that has sustained Anglo-American forms of representative government for several hundred years. The majority concludes that an independent judiciary is a compelling state interest, but then abandons the issue. The conclusion is therefore mere obiter dictum.
This court should also candidly face the injury done to the separation of powers doctrine laid out in our own constitution. Instead of facing the issues presented, the majority defaults to vagueness in a case where there is none. The majority opinion is long on facts and short on analysis, which is unusual in a case involving statutory interpretation. The facts in a given case quite naturally have no impact on statutory interpretation, but their recitation here makes the side-slide into vagueness more persuasive.
Nothing new or novel is presented to the court in this case. The term at issue has been defined by case law. The term is alleged to have a different meaning in the context of judicial speech. I do not agree, however, where before the canons were adopted, this court considered the amendments to the judicial cannons, provided them for comment by the public and the bar, and then adopted them. See In Re Ark. Code Jud. Cond., 313 Ark. 735 (1993). In other words, if the judicial canons are likened to statutes, then it is this court that enacted them. In that limited sense, this court acted like a legislative body in adoption of the judicial canons; therefore it is to this court one must turn to determine intent in the language.
In 1841, this court stated, “[t]hat in construing statutes, the intention of the Legislature is a fit and proper enquiry, is too well settled to admit of a doubt.” Woodruff v. State, 3 Ark. 285, 296 (1841). More recently this court stated, “The basic rule of statutory construction is to give effect to the intent of the Legislature, making use of common sense.” Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 100, 989 S.W.2d 151 (1999). Applying common sense leads to the conclusion that a “judge’s interest” is what we have always defined it to be. I am left with the haunting and disturbing impression that the majority wishes to wait for the American Bar Association to make changes to the model judicial canons to clarify a “judge’s interest.” Are we waiting for the American Bar Association to tell us what our own canons mean?
Canon 4(C)(1) is not vague, and Judge Griffen was on notice, and had to know that he was stepping beyond conduct permitted by the canons when he undertook to influence the voting of legislative officials. Had he chosen to do so, he could have sought an advisory opinion from the Arkansas Judicial Ethics Advisory Committee. We need not defer to future amendments. We should declare what the term means in context of the judicial canons if necessary, although I do not believe it is necessary to define a term already defined. See Strugis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998). See also Worth v. Benton County Circuit Court, 351 Ark. 149, 157, 89 S.W.3d 891 (2002).
The term “judge’s interest” has been discussed on a number of occasions by this court.1 See Worth, supra; Sturgis, supra. If Judge Griffen’s definition were adopted, Canon 4(C)(1) would cease to have meaning and such an interpretation would lead to an absurd result contrary to the long stated holdings of this court. Laird v. Shelnut, 348 Ark. 632, 74 S.W.3d 206 (2002). The Canon may not be read to be meaningless as the majority notes. The term is clear. Our duty is to follow the law. Nothing in Judge Griffen’s address involved an issue in which Judge Griffen was “interested” as that word is used in a legal context. The phrase the majority struggles over is “except when acting pro se in a matter involving the judge or the judge’s interest.” The majority states, “Surely this second exception means other interests than matters dealing with the administration of justice, which is the first exception. But what does it mean?” No great mystery is before us. The majority should first look at “pro se,” a term so familiar to lawyers that it scarcely needs to be defined. It means to represent oneself. Black’s Law Dictionary 1237 (7th ed. 1999). In other words, from the contested phrase we learn that a judge may represent himself or herself, or his or her interests, before a legislative body or officials. “Interest” in a legal sense means:
1. [ajdvantage or profit, esp. of a financial nature <conflict of interest>. 2. A legal share in something; all or part of a legal or equitable claim to or right in property <right, tide and interests -
Black’s Law Dictionary 816 (7th ed. 1999). The majority ought to note that the legal definition does not include “the state of being concerned,” which is apparently the definition that the majority uses. The term interest as it relates to judges is not new, although the majority consciously chooses to treat it as a new term that cannot be deciphered. A “judge’s interest” in a legal context has always been interpreted to mean, just as cited from Black’s, an interest affecting the individual rights of the judge. This is hardly surprising. The concern was and remains that the impartiality and independence of the judiciary may be compromised by the judge’s action. See Worth, supra; Sturgis, supra; Foreman v. Town of Marianna, 43 Ark. 325 (1884).
The majority notes that the parties cited to the dissent in Worth, supra, and that in Worth, a proprietary or pecuniary interest was involved. The majority then states, “[i]n the instant case, however, the issue is different. The question now before us is what issues of interest to a judge can be discussed with a legislator.” At this point, the majority’s analysis becomes confused because the issue is not different. Interest in this case is precisely the same as in Worth. The term “issues of interest to a judge” used by the majority introduces a new term into the discussion that appears nowhere in the canons and creates unresolvable confusion. Contrary to the majority’s discussion, we are not charting new territory. A judge’s interest is a judge’s interest whatever the setting. It always has been. What the majority fails to discover is that “judicial interest” in the judicial canons is the same as elsewhere in the law, differing only in application. The interests that preclude a judge from sitting on a case are the same interests that allow a judge to communicate with the legislature or legislative officials because they are interests affecting the judge’s rights or property. While a judge should not sit on a case where the judge has an interest in the outcome, that same interest allows the judge to speak to the legislature on his or her own behalf because the judge has an individual right or property at stake, and the judge may represent himself or herself just as any person could. Canon 4(C)(1) merely codifies the rules of conduct judges have abided by for years. The majority in its struggle with a difficult set of facts is inclined to yield to the facts rather than adhere to the principles and doctrines that have sustained an independent judiciary and liberty for so many generations. It is patently plain that a member of the judiciary may not seek to influence how the legislature exercises its power._
As Justice Corbin notes, if a judge is about to lose his property to the construction of a new interstate, he or she has an interest that allows him or her to communicate under Canon 4(C)(1). If a judge has a pecuniary interest that is about to be extinguished by the legislature, he of she may address the issue. These same interests which allow communication under Canon 4(C) (1) would also be interests that would preclude the judge from sitting on a case involving the issues. Ark. Const, art. 7 § 20. Thus, what comprises an interest of the judge is the same whether under Canon 4(C)(1) or art. 7 § 20 of the constitution. Judge Griffen attempted to influence the legislature in decisions on voting and appropriation in violation of the judicial canons.2 He addressed the legislative officials on matters that did not involve his own rights or property, and thereby he violated the canons. Since judges first came to be, it is doubtless that there has been concern for whether a judge’s behavior outside the court may compromise his or her ability to act in the high office of judge and whether actions outside the courtroom compromise the integrity and independence of the judiciary. That is the issue here.
An Independent Judiciary
Judge Griffen stated in his response to the commission that:
Had the complainant bothered to study the newspaper article that reported that appearance, he or she would have learned that I appeared in my own capacity. . . .
At oral argument Judge Griffen again asserted that he could appear before the Legislative Black Caucus in a personal capacity separate and apart from his capacity as a judge. Herein lies the core error. One may not dispense with the judicial robe at will. I must note that in his introduction before he spoke to the Legislative Black Caucus, Judge Griffen stated, among other things about himself, that, “[s]ince January 1, 1996, I served on our State Court of Appeals.” The Sixth Circuit Court of Appeals has stated, “A judge does not cease to be a judge when he undertakes to chair a PTA meeting. . . .” Lynch v. Johnson, 420 F.2d 818, 820 (6th Cir. 1970). This has long been the case. “A judge is a public officer, who by virtue of his office, is clothed with judicial authorities.” United States v. Clark, 25 Fed. Cas. 441 (Cir. D. Mass. 1813). A judge may not simply cast aside his or her judicial mantel when he or she chooses and walk in life as other men or women. Although Judge Griffen would like to carve out his personal life and separate it from his life as a judge, that simply is not possible. The position of judge is a high calling, and it carries with it obligations not borne by the average person. As the majority states, “A judge may never divest himself or herself from being a judge.”
The independence of the judiciary is a matter that transcends the personal concerns and passions of judges, regardless of how laudable or just they may be. Independence of the judiciary must transcend those matters. Liberty is at issue. Our form of government is at issue. In the Federalist No. 78, Alexander Hamilton stated that “[t]he complete independence of the judiciary is peculiarly essential in a limited Constitution.” The Federalist No. 78 at 100 (M. Walter Dourne 1901). Earlier in that same essay, Hamilton quoted Charles Montesquieu who said that “there is no liberty if the power of judging be not separated from the legislative and executive powers.” Id. Hamilton also stated in that same essay that although “individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never, be endangered from that quarter; I mean so long as the judiciary remains truly distinct from the legislative and the Executive.” Id. The Florida Supreme Court set out these same concerns in Cones v. Cones, 68 So. 2d 886 (1953):
When a lawyer dons the ermine and mounts the woolsack he assumes a very serious obligation to the people he serves. Nothing more seriously affects their lives, their property and their safety than his decisions, the weight of which is determined by his wisdom and integrity. The ermine is the symbol of purity, honor and wisdom, that brand of wisdom which is the flower of years and experience. From the time he is clothed with judicial authority he is a marked man. His words and his conduct should inspire confidence; he might well strive to honor the bench instead of having it honor him. The judiciary is the capstone of our democracy but it will beso no longer than its deportment warrants.
Cones, 68 So. 2d at 887-8. The judiciary acts as a moderating factor and a control on the excesses that may sometimes arise in representational governments. The Ninth Circuit Court of Appeals recently stated:
It is the highest calling of federal judges to invoke the Constitution to repudiate unlawful majoritarian actions and, when necessary, to strike down statutes that would infringe on fundamental rights, whether such statutes are adopted by legislatures or by popular vote. The constitutional system that vests such power in an independent judiciary does not “test the integrity of... democracy.” It makes democracy vital, and is one of our proudest heritages.
Newdow v. U.S. Congress, 328 F.3d 466, 471 (9th Cir. 2002). This court stated long ago that “government can scarcely be considered free, where the rights of individuals are left solely dependent upon a legislative body without any restrictions.” Woodruff, 3 Ark. at 304. It matters not how just Judge Griffen’s concerns may be, we may not, and we dare not, sacrifice judicial independence and the separation of powers doctrine to allow this conduct..
Judge Donovan W Frank
I feel compelled to address a number of comments directed at this court by federal district court Judge Donovan W. Frank in his Memorandum Opinion and Order in the case brought by Judge Griffen in federal court. See Griffen v. Arkansas Judicial Discipline and Disability Commission, 266 F. Supp. 2d 898 (E.D. Ark. 2003). Judge Frank stated that he entered his opinion with some dismay, and that he sympathized with Judge Giffen over the “deafening silence” coming from the Commission and the Arkansas Supreme Court.
Judge Frank as much as states that this court has been remiss in failing to address this case. Judge Frank’s allegation, that this court has turned a deaf ear to Judge Griffen’s plight is a gravely serious allegation. It is especially serious as here where it is untrue. Judge Frank cites Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423 (1982), where the New Jersey Supreme Court allows review of constitutional issues in attorney discipline cases where the attorney files a motion asking the court for review. In Middlesex, the United States Supreme Court noted that the New Jersey Supreme Court sua sponte entertained constitutional issues raised by an attorney in disciplinary proceedings. Judge Frank is critical of this court for not taking up this matter on what he characterizes as sua sponte review. This court does not engage in “sua sponte review.” This court, as all courts, must have jurisdiction to act. Jurisdiction is the power or authority to hear a case. Parker v. Sebourn, 351 Ark. 453, 95 S.W.3d 762 (2003). Before jurisdiction is acquired or may even be tested, an appeal or petition must be filed in this court. Ark. Sup. Ct. R. 1-2 (2003). This court does not even raise issues sua sponte once an appeal has been filed unless it is an issue of jurisdiction. Ho v. State, 350 Ark. 138, 85 S.W.3d 542 (2002). Without an appeal or petition to this court, there is no case to be heard. Ark. Sup. Ct. R. 1-2.
. Contrary to Judge Frank’s assertion, the silence of this court was not deafening. This court had nothing to say because nothing had been asked of this court. This court now has jurisdiction of Judge Griffen’s petition for a writ of certiorari and. will decide the case.
Glaze and Corbin, JJ., join this dissent..The majority argues that “judge’s interest” is neither defined nor narrowly tailored, and that the dissent fails to provide guidance on just what constitutes a violation of Canon 4(C). The majority apparently misreads the dissent. The majority chooses to ignore longstanding precedent of this court defining a “judge’s interest,” which is cited in the dissent.The term “judge’s interest” is already well defined by this court, and narrowly tailored. In arguing that the term is neither defined nor narrowly tailored, the majority simply chooses not to believe the sky is blue while looking at it. The majority also chooses to analyze the Canon in isolation in order to reach the conclusion ofvagueness.The language of someone acting pro se that the majority struggles with is language used in the law long before and since the Canons were drafted or adopted. It is language that is very familiar. In taking such a myopic examination of the phrase, “when acting pro se in a matter involving the judge or judge’s interest,” the majority is straining at a gnat and about to swallow the proverbial camel.
The Majority asserts that the dissent errs in failing to address the First Amendment issue. There is no First Amendment issue. Republican Party of Minn. v. White , 536 U.S. 765 (2002) is not applicable to the facts of this case. White involves an announce clause injudicial elections. “The protections the First Amendment affords speech and expressive conduct are not absolute. This Court has long recognized that the government may regulate certain categories of expression consistent with the Constitution.” Virginia v. Black, 538 U.S. 343 (2003) . A judge may not lobby another branch of government. Canon 4(C) prohibits appearance before and consultation with legislative officials, except on “matters concerning the law, the legal system of the administration of justice, or except when acting pro se in a matter involving the judge or the judge’s interest.” Ark. Code of Judicial Conduct Canon 4(C). Obviously, this narrowly tailored limitation on speech protects the compelling state interest in an independent judiciary acknowledged by the majority.