FREE SPEECH role for judges a struggle, former state chief justice says.
Brill touches on LR judge’s roles in case, protest
FAYETTEVILLE — As national attention turns to Arkansas and the role of judges in scuttling planned executions, Howard Brill recalled his time working to draft a judicial code of conduct.
“We struggled with the question of judges and free speech,” said Brill, a University of Arkansas, Fayetteville law professor.
Brill, who served as chief justice of the state Supreme Court from September 2015 through last year, spoke at the UA School of Law on Thursday about ethics and his time on the state’s highest court.
His presentation included a slide featuring an image from Friday of Pulaski County Circuit Judge Wendell Griffen, who appeared strapped to a cot at a demonstration opposing the death penalty.
Earlier in the day, Griffen had issued a ruling that temporarily prohibited the state from using a drug as part of planned executions. The state’s highest court later pulled Griffen from presiding over the case.
“I don’t have any real criticism of any judge taking any stand publicly outside the courtroom and making statements,” Brill said. “I think the question is, after you say that, can you continue to preside over the case? That’s the issue.”
Brill described how, as a member of the state Supreme Court, “on three or four cases I had strong personal feelings, values if you like,” including about a death- penalty case.
He said he still voted because he felt he could separate his feelings from the law.
“And the other difference was I wasn’t making public speeches about my feeling on the death penalty. I mean, my wife knew, I knew. No one else knew, and so I just felt I could separate that,” Brill said when asked about Griffen.
Brill also referred to a judicialconduct code for the state that he helped write, serving as the chairman of a task force that studied the matter about 10 years ago: “Before speaking or writing about social or political issues, judges should consider the impact of their statements,” the code states.
He served on the state Supreme Court as an appointee of Gov. Asa Hutchinson, stepping in after the retirement of Jim Hannah. The state has elections for Supreme Court justices, and Brill’s time on the court coincided with issues raised about when a judge should recuse.
Attorneys had asked for the recusal of Justice Rhonda Wood in a wrongful- death lawsuit that involved a nursing home owned by a Wood campaign donor.
Brill said that while there may be some informal discussion among justices about recusal, “each individual justice
makes his or her own decision whether or not to sit out a case.” Asked why, Brill said the justices on the Arkansas court could turn to the U. S. Supreme Court as an example, where individual justices also decide whether to recuse themselves.
He said that with the Legislature not acting this year on campaign finance reform, he expected so- called dark money, sourced anonymously, to continue to flow to candidates.
The Arkansas Bar Association created a task force that last year came up with recommendations on changes to ensure a “fair and impartial” judiciary, including the appointment of Supreme Court justices.
Brill described the report as having a minimal impact, however.
“We did not adopt the controversial changes,” Brill said, adding that “the changes we did approve, you might say were so minor as to be insignificant.”
Asked if he had an opinion about whether justices should be elected or appointed, Brill said he has not taken a stand and is “probably not going to.”
Brill said he sees the advantages of both methods for selecting the judiciary.
“Over the years we’ve had outstanding judges who’ve been elected. And so to suggest we’re going to get better judges if we go to some other system i think is questionable,” Brill said.
He added that campaigns have become “so ugly” that “some good people don’t want to run,” adding that appointments could increase diversity.