LITTLE ROCK — Recent actions by an Arkansas judge known for being outspoken on political issues have raised complex questions: Where should the line be drawn between a judge’s right of free speech and the need for an impartial judiciary, and who should draw that line?


The controversy


In an April 10 blog post, Pulaski County Circuit Judge Wendell Griffen spoke out against the death penalty, saying, “Premeditated and deliberate killing of defenseless persons — including defenseless persons who have been convicted of murder — is not morally justifiable.”


On April 14, Good Friday, Griffen issued a temporary restraining order that barred the state from using a certain drug in executions. Later the same say, he appeared at an anti-death penalty protest in front of the Governor’s Mansion, where he lay strapped on a cot.


Attorney General Leslie Rutledge complained to the state Supreme Court, which vacated Griffen’s order and barred him from hearing any cases involving the death penalty. The state proceeded to carry out four executions last month.


The court also referred the matter to the Judicial Discipline and Disability Commission, which enforces the states’s rules of judicial conduct.


One of those rules is: “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”


The commission could impose sanctions or recommend that the Supreme Court remove Griffen from the bench. Some state legislators have said they believe Griffen’s actions may have been serious enough to merit impeachment, and last week the House adopted rules for bringing forth articles of impeachment against a sitting elected official.


If the House were to issue articles of impeachment against Griffen, the Senate would hold a trial.


“(Griffen) should never again be allowed to hold office of any sort in Arkansas. We as the General Assembly can remove the stain that Griffen has left on our judicial integrity,” Sen. Trent Garner, R-El Dorado, said in a news release last week.


Griffen has said in a filing with the Judicial Discipline and Disability Commission that his participation in the protest was constitutionally protected and was not directly related to the case in which he issued the temporary restraining order. That case involved a claim by a medical supply company that the state used deception to obtain a drug from the company for use in executions.


Griffen, who also is pastor of New Millennium Church in Little Rock, said the complaint filed against him with the commission is “a naked attempt to intimidate me for exercising my rights to freedom of speech, freedom of religion, freedom of religious expression, and right to peaceful assembly that are protected by the First Amendment to the Constitution of the United States.”


The judge has filed a complaint with the commission against the Supreme Court and a complaint with the Committee on Professional Conduct against Rutledge. He says he was barred from hearing death-penalty cases without being given a chance to respond, in violation of his due-process rights.


Griffen’s outspoken past


Griffen has been investigated by the commission before for his public statements. In 2008, the panel looked into comments Griffen made criticizing then-President George W. Bush and the Iraq War, but ultimately the panel dropped the case after Griffen filed a lawsuit against it.


In 2002, the commission admonished Griffen for commenting on racial issues at the University of Arkansas. An admonishment is the mildest sanction the commission can give.


Some say Griffen’s recent statements against the death penalty, which also have included blog posts, are more objectionable than his past political comments, which did not directly relate to cases before him.


“Now we have a situation where he blogs and makes a very clear statement and basically says you can’t be a Christian and be for the death penalty, and a matter of days later he takes up a death penalty case,” said Rep. Bob Ballinger, R-Hindsville. “There’s a profound appearance of impropriety there.”


Ballinger said Griffen was removed from that high-profile case because his alleged bias was widely publicized, but he asked, “What about the number of other individuals who come before his court and don’t get in the media?”


Griffen said in an April 19 blog post, “People have strong views about capital punishment. I know that. I have strong views about capital punishment also. But none of our views about capital punishment, whatever they may be and however strongly we may hold them, affect the facts in the (temporary restraining order) motion I reviewed and decided on Good Friday.”


Separation of powers


Sen. Joyce Elliott, D-Little Rock, has expressed concern about the Legislature investigating judges when the judicial branch has its own mechanism for doing so.


“We used to teach our kids there are three distinct, separate branches of government,” said Elliott, a former schoolteacher. “I think we really need to get back to thinking about that — letting, in this case, the judiciary deal with the issue if there is something with which to be dealt.”


Ballinger, a lawyer, said he hopes the Judicial Discipline and Disability Commission will take action that makes it unnecessary for the Legislature to act, but he said it is within the powers granted to the Legislature by the Arkansas Constitution to impeach an elected official for gross misconduct in office, regardless of what branch of government the official is in.


The constitution contemplates a separation of powers between the branches of government, but it also contemplates a system of checks and balances between those branches, he said.


Increased publicity


Ballinger, a death penalty supporter, said he is aware that impeachment proceedings would draw more attention to Griffen and his anti-death penalty views. That may be exactly what the judge is hoping for, he said.


“An unfortunate side effect of moving forward with his impeachment is he’s going to get all the headlines he wants,” Ballinger said.