SUPREME COURT OF ARKANSAS
No.
06-1392
JUDGE WENDELL GRIFFEN,
PETITIONER,
Opinion Delivered 1-25-07
PETITION FOR WRIT OF MANDAMUS
VS.
ARKANSAS JUDICIAL DISCIPLINE AND
DISABILITY COMMISSION,
RESPONDENT,
PETITION GRANTED.
ROBERT L. BROWN, Associate Justice
Judge Wendell Griffen has filed a petition for writ of mandamus to compel
Respondent Arkansas Judicial and Disability Commission (Judicial Commission) to admit
the public and news media to his formal probable-cause meeting, formerly scheduled for
January 19, 2007.1 James Badami, Executive Director of the Judicial Commission, refused
Judge Griffen’s request that the meeting be open to the public. We stayed the formal meeting
by per curiam order issued on January 12, 2007, and stated that an opinion would follow.
On February 15, 2006, Mr. Badami prepared a Statement of Allegations against Judge
Griffen in Cases No. 05-328 and No. 05-356, alleging violations of Canons 1, 2, 4, and 5 of
1
Judge Griffen refers to a probable-cause “hearing” in his petition and brief, but the
Rules of Procedure refer to it as a “formal meeting.” Ark. Jud. Disc. & Disabl. Comm’n R.
9C (2006). For convenience, we will refer to the proceeding as a “formal meeting” though
Amendment 66 indicates that Judge Griffen is correct, as discussed later in this opinion.
the Arkansas Code of Judicial Conduct based on Judge Griffen’s public remarks criticizing
the federal government’s response to Hurricane Katrina as well as President George W.
Bush’s nomination of John Roberts for chief justice of the U. S. Supreme Court. Violations
were also alleged based on Judge Griffen’s public support of a proposed ballot measure to
increase Arkansas’ minimum wage. Judge Griffen answered the Statement of Allegations
and denied that he had engaged in any conduct prohibited by the judicial canons. He further
asserted that his comments were protected by the freedom-of-speech and free-exercise-ofreligious-expression clauses of the First Amendment to the United States Constitution and
by Article 2, Section 6 of the Arkansas Constitution. In his answer, Judge Griffen waived
any confidentiality pertaining to pleadings, hearings, reports, and other materials related to
the matter and requested that they all be open for public inspection.
The Judicial Commission scheduled a meeting for September 15, 2006, to decide
whether to dismiss the Statement of Allegations or to proceed with a formal probable-cause
meeting. Judge Griffen once again waived any confidentiality in the matter and requested
that the meeting be open to the public and the news media. Mr. Badami refused, and Judge
Griffen filed a petition for writ of mandamus with this court to compel the Judicial
Commission to open the meeting. This court ultimately denied the petition by per curiam
order on September 14, 2006. At the ensuing meeting on September 15, 2006, the Judicial
Commission voted to proceed with a formal probable-cause meeting.
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Mr. Badami next amended the Statement of Allegations against Judge Griffen to
include incidents where Judge Griffen had publicly criticized the war in Iraq as well as those
who had expressed anti-immigration and anti-homosexual sentiments. A probable-cause
meeting on the Second Amended Statement of Allegations was first scheduled for
November 17, 2006, and then rescheduled for January 19, 2007. At this formal meeting, the
Judicial Commission was to decide whether there is probable cause to proceed to a formal
disciplinary hearing and, if not, whether to admonish Judge Griffen or require an
“adjustment” in his conduct. Once again, Badami refused to open the formal probable-cause
meeting to the public and the news media, which led to Judge Griffen’s pending petition for
mandamus relief. The January 19, 2007 formal meeting was stayed by this court, pending
our decision.
Judge Griffen raises several legal justifications in support of his petition to compel the
opening of the probable-cause meeting: (1) violation of the Arkansas Freedom of Information
Act, (2) violation of procedural due process, (3) violation of the First Amendment, and (4)
waiver of all confidentiality. We conclude that Judge Griffen is correct that under the facts
of this case, where he has waived confidentiality, and where judicial discipline may be
imposed, the formal probable-cause meeting should be open to the public and the news media.
We note, as an initial matter, that Amendment 66 to the Arkansas Constitution
provides: “[i]f, after notice and hearing, the Commission by majority vote of the membership
determines that grounds exist for the discipline of a judge or justice, it may reprimand or
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censure the judge or justice, who may appeal to the supreme court.” Ark. Const. amend.
66(c).2 We further note that a state statute expressly provides that all Judicial Commission
“proceedings held prior to a determination of probable cause and the filing of formal charges
shall be confidential.” Ark. Code Ann. § 16-10-404(b)(2) (Repl. 1999).
We observe, in addition to our constitution and state statute, that the Rules of
Procedure of the Judicial Discipline Commission, which were adopted by this court,
specifically read that “[i]f the Commission finds it necessary to file formal charges against a
judge and to proceed to a hearing, the charges and the hearing shall be open to the public as
shall the records of formal proceedings.” Ark. Jud. Disc. & Disab. Comm’n R. 7B (2006).
Otherwise, the Rules of Procedure are silent on whether the formal meeting of the Judicial
Commission to determine whether probable cause exists to file formal charges shall be open
to the public and news media. See Ark. Jud. Disc. & Disab. Comm’n R. 9C (2006). Rule 9C
does, however, provide that a “verbatim record” of the probable-cause meeting shall be made.
Id. The supreme court may bring up for review by certiorari any action taken upon any
complaint filed with the Judicial Commission. Ark. Jud. Disc. & Disab. Comm’n R. 12F
(2006).
2
Though Amendment 66 speaks in terms of “reprimand or censure,” our Rules of
Procedure use those terms only once. See Ark. Jud. Dis. & Disab. Comm’n R. 11G(5)
(2006). Otherwise, the discipline referred to in the Rules is “admonition or required
adjustment” in the judge’s conduct. See Ark. Jud. Disc. & Disab. Comm’n R. 7A and R.
9E(2) (2006).
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Other states, operating under similar judicial disciplinary rules as our own, have
stressed the importance of confidentiality in judicial disciplinary proceedings, especially
before formal charges are filed against the judge. See, e.g., First Amendment Coalition v.
Judicial Inquiry & Review Bd., 784 F.2d 467 (3rd Cir. 1986) (state constitutional provision
permitting public access to records of the judicial inquiry and review board only if board
recommends that state supreme court discipline a judge is not unconstitutional); Bradbury v.
Idaho Judicial Council, 28 P.3d 1006 (Idaho 2001) (confidentiality in judicial disciplinary
proceedings does not infringe upon a fundamental right and is rationally related to the state’s
legitimate interests); In re Inquiry Concerning Stigler, 607 N.W.2d 699 (Iowa 2000) (judge
failed to establish how statute providing that all hearings of the judicial disciplinary
commission be confidential denied him due process of law); In re Deming, 736 P.2d 639
(Wash. 1987) (confidentiality is mandated during investigatory stage of proceeding; once
probable cause is determined and formal complaint is filed, judicial discipline commission has
discretion in disclosing information and holding public hearings); State ex rel. Lynch v.
Dancey, 238 N.W.2d 81 (Wis. 1976) (statute requiring governmental bodies to hold open
meetings did not apply to judicial commission; judicial commission rules of procedure that
required public hearings after formal charges had been filed pre-empted the application of the
open meetings statute); McCartney v. Comm’n on Judicial Qualifications, 526 P.2d 268 (Cal.
1974), overruled on other grounds by Spruance v. Comm’n on Judicial Qualifications, 532
P.2d 1209 (Cal. 1975) (because judicial commission’s proceedings were neither criminal nor
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before a “court of justice,” there was no impropriety in commission’s refusal to hold public
hearings).
In 1990, this court underscored the policy reasons for requiring confidentiality of
Judicial Commission meetings held prior to the filing of formal charges. See In re Rules 7
and 9 of the Rules of Procedure of the Arkansas Judicial Discipline & Disability Comm’n,
302 Ark. Appx. 633, 790 S.W.2d 143 (1990) (per curiam). In that order, we said:
When adopting and implementing laws and rules that provide for a judicial
discipline system, we are confronted with the issue as to when in the process or
proceedings does the right to constitutional access attach. Every state in the
Union recognizes that some confidentiality is necessary, and from our research,
we have found that all states, except the State of Washington, provide for
disclosure in all judicial discipline cases only after probable cause has been
determined and some type of formal hearing or charge has been completed or
filed. See J. Shaman and Y. Beque, Silence Isn’t Always Golden, 58 Temp.
L.Q. 755, 756 (1985).[FN1]
The Supreme Court in Landmark
Communications, Inc. v. Virginia, 435 U.S. 829, 998 S.Ct. 1535, 56 L.Ed.2d 1
(1978), set out the three reasons or functions for confidentiality in these matters.
They are listed as follows:
[FN1:] This article includes a list of states and notes when their
respective law provides for confidentiality to cease. We should
mention that these points of access have changed in some of the
listed states since the article was written, and we particularly note
Washington State is one of the changes.
1. To protect complainants and witnesses from possible recrimination until the
validity of the complaint has been ascertained;
2. To protect a judge’s reputation from the adverse publicity which might flow
from frivolous complaints;
3. To maintain confidence in the judicial system by preventing the premature
disclosure of a complaint before the commission has determined that the charge
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is well-founded. See also First Amendment Coalition v. Judicial Inquiry &
Review, 784 F.2d 467 (3rd Cir. 1986); W. Braithwaite, Who Judges the
Judges?, 161-162 (1971); Buckley, The Commission on Judicial Qualification:
An Attempt to Deal with Judicial Misconduct, 3 U. San Fran.L.Rev. 244 (1969).
302 Ark. Appx. at 634, 790 S.W.2d at 144.
Our Rules of Procedure, however, contain an obvious anomaly. The determination
of whether to file charges against the judge is not the only result of a formal probable-cause
meeting. The Judicial Commission may decide not to proceed to formal charges, but, instead,
to admonish the judge publicly or require some other “adjustment” in the judge’s conduct as
a discipline:
A. Any action taken by the Commission after investigation of a judge
shall be communicated to the judge by letter which shall become public
information. If the allegations leading to the investigation have proven to be
groundless, the letter to the judge shall so state. [See Rule 8.B and Rule
9.E.(1).] If the Commission decides not to proceed to formal charges but to
admonish the judge, to recommend a change in conduct, or to impose
conditions upon future conduct, such as obtaining treatment or counseling, the
letter shall set forth the facts leading to the admonition or required adjustment.
Ark. Jud. Disc. & Disab. Comm’n R. 7A (2006) (emphasis added). See also Ark. Jud. Disc. &
Disabl. Comm’n R. 9E(2) (2006). Thus, a public sanction of the judge may be the end result
of the probable-cause meeting.
We turn then to the pivotal point in this case, and that is Judge Griffen’s waiver in
writing of all confidentiality related to the formal probable-cause meeting. Stated differently,
Judge Griffen has requested that his probable-cause meeting be open to the public and news
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media. The Rules of Procedure do provide that a judge may waive confidentiality in writing
at any stage of the proceedings for “[i]nvestigatory records, files, and reports of the
Commission.” See Ark. Jud. Disc & Disab. Comm’n R. 7C (2006). The Rules of Procedure,
however, do not expressly address a judge’s waiver of confidentiality with regard to the
probable-cause meeting. Further, to reiterate in part, our 1990 per curiam order quoted above
gives the reasons behind confidentiality, which are not only to protect the judge’s reputation,
but are also to protect complainants and witnesses before the Judicial Commission and to
protect premature disclosure of a judicial-discipline complaint. In short, it is obvious from
our per curiam that confidentiality does not flow only to protect a judge’s reputation. There
are other interests to be protected, which can best be described as the interests of the Judicial
Commission.
Having said that, there are several points in this case that disturb us about protecting
the Judicial Commission’s interest in confidentiality as opposed to the judge’s. The first point
is that at oral argument, counsel for the Judicial Commission could not give this court, though
asked several times, a specific reason for closing the formal probable-cause meeting. We
recognize that revealing the names of complainants or witnesses or identifying evidence at
oral argument may defeat the purpose of confidentiality, but counsel did not even indicate that
in this particular case there were, in general, unnamed complainants, witnesses, or other
evidence that needed to be shielded from public view. He merely argued that the law
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provided for confidentiality and that a private meeting was the Judicial Commission’s
“obligation” under the law.
There is a second reason for our concern and that is the fact that a non-public,
probable-cause meeting can result in a public admonishment or other required adjustment for
the judge’s conduct. This is troubling to this court in that (1) admonishing a judge publicly
for conduct is a serious matter, as Judge Griffen correctly points out, and (2) a distinct
majority of the states providing for a confidential probable-cause meeting do not provide a
public discipline like admonishment or other required adjustment of conduct following that
meeting, particularly if the judge requests a public hearing.3 On the contrary, the probablecause meeting in those states is purely for the purpose of deciding whether to file formal
charges and not for announcing a public discipline of the judge. Making an admonishment
or other required adjustment of the judge’s conduct a potential result of a private probablecause meeting adds a new dimension to the proceeding and appears to this court to militate
3
Our research, though not exhaustive, shows that the following states allow for
informal, private discipline or correction without a formal hearing but that public discipline
only comes after a public, formal disciplinary hearing: Alaska, Indiana, Kansas, Louisiana,
Maryland, Mississippi, Nevada, Rhode Island, South Carolina, and Wisconsin. Other states
provide for discipline only after a public, formal disciplinary hearing: Alabama, Illinois,
Kentucky, Michigan, New Hampshire, Oregon, Pennsylvania, Tennessee, and Texas. Still,
other states appear to allow for discipline, either public or private, before a public hearing
is held, if agreed to or not objected to by the judge. However, the judge may object to the
discipline and demand a public, formal disciplinary hearing. These states include Arizona,
California, Maine, North Carolina, Washington, and West Virginia. A few states do provide
that all disciplinary hearings are closed to the public: Delaware, Idaho, Missouri, New
Mexico, New York, South Dakota, Utah, Virginia, and Wyoming.
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in favor of openness, should the judge desire it. Indeed, it is this court’s interpretation of
Amendment 66 that before a judge can be reprimanded or censured, he or she must be
provided with notice and a hearing. Ark. Const. amend. 66. An admonition is synonymous
with a reprimand or censure, according to Black’s Law Dictionary. See Black’s Law
Dictionary 52, 1329 (8th ed. 2004). And requiring a “hearing” indicates an open proceeding.
Our third concern is that Judge Griffen had a formal probable-cause meeting that the
Judicial Commission opened to the public in 2002, according to Judge Griffen’s brief in the
instant petition. This fact is not refuted by the Judicial Commission. If that was in fact the
case, why close the probable-cause meeting in the case before us?
The Judicial
Commission’s interpretation of its own Rules of Procedure appears inconsistent. Again, no
good reason has been presented to this court by the Judicial Commission for this inconsistency
or for closing the formal probable-cause meeting at this juncture when it did not do so
previously.
The Judicial Commission’s Rules of Procedure also provide that the records of formal
proceedings shall be made public if formal charges are filed. See Ark. Jud. Disc. & Disab.
Comm’n R. 7B. This begs the question of why close the formal probable-cause meeting, if
a record of that meeting can be made public?
We conclude that Judge Griffen’s petition for writ of mandamus must be granted,
particularly in light of the fact that Amendment 66 contemplates a hearing before disciplining
a judge by reprimand or censure. We further conclude that where a public admonishment or
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other required adjustment of the judge’s conduct may be the result and where a judge has
waived confidentiality without any countervailing reason to close the formal meeting
presented by the Judicial Commission, the formal probable-cause meeting must be open. We
emphasize that while we are granting Judge Griffen’s mandamus petition to open the
probable-cause hearing, we do so only for the reasons stated herein and not to in any way
disparage our 1990 per curiam. Had the Judicial Commission specified a legitimate reason
for closing the meeting, rather than simply announcing that state law and our regulations
obligate it to do so, no doubt this court would have entertained that reason. But none was
provided.
As a final point, we give the Judicial Commission’s arguments of res judicata and the
availability of an adequate remedy through a declaratory judgment and appeal little credence.
The Judicial Commission advances the defense that because this court denied Judge Griffen’s
petition for mandamus to open the meeting to determine whether to proceed to a formal
probable-cause meeting, that decides the question of whether to open the formal probablecause meeting itself. Not so. The initial investigatory meeting and the formal probable-cause
meeting are two separate stages of the process with distinct ramifications. As already
discussed, an outgrowth of the formal probable-cause meeting can be public admonishment
or some other required adjustment in the judge’s conduct.
Nor do we view a declaratory judgment and appeal as an alternative, adequate remedy
for Judge Griffen’s plight. Judicial discipline and the procedures defining that process are
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clearly sui generis and unlike your typical administrative action that first must be reviewed
in circuit court. See Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999). The
structure contemplated in Amendment 66 to the Arkansas Constitution and our Rules of
Procedure is review of Judicial Commission actions by this court by appeal or certiorari.
However, mandamus is a clear remedy to compel an action by a public body to enforce an
established right, where a violation of state law is clear and not discretionary. Arkansas
Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000). Our reading of
Amendment 66 is that notice and a hearing are required for any public reprimand or censure
of a judge, which would include a public admonishment. A hearing is more than a private
meeting, and, in this context, must be an open proceeding. We conclude that matters
concerning disciplinary procedure that require immediate attention, such as closing a meeting
that may result in a public sanction, are appropriately brought to this court by a petition for
writ of mandamus.
Because we decide this case on the basis of Amendment 66, waiver, and the judge’s
right to an open hearing when public discipline might be the result, we need not address the
Arkansas Freedom of Information Act, procedural due process, the First Amendment, or the
right of the public and news media to open the hearing. There appears, though, to be a dire
need to clarify our Rules of Procedure in connection with the matters raised in this case. We
call on the Judicial Commission to present this court with proposed amendments to
accomplish this task.
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Petition granted.
S PECIAL J USTICES M ITCHELL and P ERKINS join.
C ORBIN and D ANIELSON, JJ., not participating.
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