OPINION

JOHN BRUMMETT: Griffen tests limits again

There lay Wendell Griffen where he famously had lain the year before, a gloriously free man in a surely pointless spectacle.

Supine in a beige gown, loosely tied to a cot resembling a gurney, with arms folded, in business shoes this year instead of the sandals of last year, he protested at the closed gate of the Governor's Mansion.

He did so in concert with members of his church. Their complaint was that the state kills people and killing is wrong.


Freedom of religion and freedom of expression are constitutional rights written by forefathers whom all of us extol. But some people extol those forefathers as they defy them. They become riled because a Pulaski County circuit judge is making a spectacle of himself and, for bad measure, as far as they're concerned, doing so in opposition to the death penalty.

The death penalty is very popular in our professed-Christian state, which has been known to scour the earth to make drug deals so that it can poison two or three men at a time. That was what was going on this time last year when Griffen took to his cot and gown only a few hours after he'd ruled in his courtroom that the state couldn't go forward with planned executions using the drug it was intending to inject.

So, as it happens, last year's spectacle was indeed a legitimate and challenging issue, pitting personal rights against self-regulatory norms of appropriate judicial conduct.

Griffen is a pastor as well as a judge. People will accept that he is entitled to preach his gospel to congregants and remain a judge. But this audacity to be a judge and practice midweek what he preaches on Sunday ... well, Republican state legislators burst into tirades about impeachment.

They were calmed only after the Arkansas Supreme Court declared that Griffen couldn't hear any more death penalty-related cases.

That matter pends in federal court. Griffen sues to contend he has the ability, and the freedom as an American, to live his religion and, at the same time, apply the law properly as he is fully trained.

He has some support in legal academia. Judges complain all the time about laws that they apply. The question is whether this circumstance suggests the judge didn't apply the law because he opposed it.

The real issue, thus, is mere appearance. It's whether litigants finding themselves in Griffen's court can trust his allegiance to the principle of impartiality. It's this question: Who or what must yield when the vital appearance of a court's detached impartiality intersects with the judge's stubborn exercise of his personal liberty?

Griffen says state Supreme Court justices presume unconstitutionally to restrict his rights as well as the full authorized range of his elected duty. He argues that the court, in not providing him a hearing, violates the due process clause of the 14th Amendment.

Meantime, and for now, Griffen may not hear any death penalty-related matters. So, his last-week reprise of the cot-and-gown spectacle did not change the status quo. There was no reason, then, for legislators to become newly aghast and shout new demands for his impeachment.

Yet they shouted.

Sen. Trent Garner of El Dorado was the leading expresser of rekindled outrage. He got a ditto from state Rep. Bob Ballinger of Hindsville, locked in a Northwest Arkansas Republican primary battle for the soul of right-wing extremism.

But there's nothing for anyone to fix now--if ever.

Garner and other legislators also express disdain that Griffen recently overturned an act of the Legislature saying victims of alleged child abuse could bring dogs to court for comfort when they testified. Legislators are portraying the judge as anti-puppy, anti-child and pro-child rapist.

But his reasoning was simply the law. One equal branch of government may not impose on another equal branch any dictate affecting the other's internal business.

If a court presumed to tell legislators to allow pets in the chambers, puppy-loving legislators would surely explain that they will run their own committee rooms themselves as the separation-of-powers doctrine provides, thank you very much.

Meantime, there are five practical, acceptable resolutions to the prevailing predicament.

One is for Griffen to win in federal court and adjudicate and demonstrate as he pleases. The second is for him to lose, get no death-penalty cases and keep demonstrating. The third is for the judge to yield to worthy judicial practice and stay off the cot. The fourth is for him to demonstrate to his heart's content but give up judging.

That's my personal favorite, since his demonstrations are matters of conviction and someone else could apply the law with less devotion to self and more devotion to judicial norm.

The fifth is that voters will decide should Griffen insist on living to the limit of his liberty, then seeking re-election in 2022, after four more cot-and-gown spectacles.

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John Brummett, whose column appears regularly in the Arkansas Democrat-Gazette, is a member of the Arkansas Writers' Hall of Fame. Email him at [email protected]. Read his @johnbrummett Twitter feed.

Editorial on 04/22/2018

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