THE APPEARANCE OF FAIRNESS
©Wendell Griffen, 2017
Justice Is A Verb!
April 23, 2017
One reason I became a lawyer and, later, a judge, is because I care about fairness. I have seen how powerful people manipulate situations to produce unfair results. I studied fairness as a political science major at the University of Arkansas. For almost half of my time in the military I advised and assisted commanders to assure fair treatment to the men and women in their units. I studied and wrote about fairness as a law student. Fairness, and the appearance of fairness, has always been important to me.
I take accusations about unfairness seriously.
There are some basic principles – lawyers and judges speak of them as “cardinal rules – about fairness.
First, every person accused of wrongdoing deserves to know about the accusation before authorities take action against them. That is called the right to notice.
Second, every person accused of wrongdoing deserves a chance to be heard before the authorities take action on an accusation. That is called the right to a hearing.
Third, every person accused of wrongdoing is entitled to confront the source of an accusation before action is taken on it. That is called the right to confrontation.
Fourth, every person accused of wrongdoing is entitled to an opportunity to present his or her response to the accusation at the hearing on the accusation before authorities take action on the accusation. As another judge once remarked, no matter how thinly you pour it, every pancake has at least two sides. Fairness requires that authorities consider all sides of disputes before acting.
Fifth, every person accused of wrongdoing deserves a hearing before a fair and impartial decision-maker before action is taken on the accusation. Fairness and impartiality involve being unaffiliated with the parties to a dispute.
These five cardinal rules are commonly associated with two words: due process.
Due process is fundamental, meaning basic, to the idea of fairness. Judges must allow persons accused of wrongdoing to know they are accused before taking action. Accusations must not only be supported by facts presented by an accuser, but persons accused of wrongdoing must be allowed to present their side of the issue.
One would expect lawyers and judges to know these cardinal rules. After all, they are taught in every law school in the United States. One would expect judges to know and apply them to accusations of unfairness against anyone. One would especially expect judges to apply them to accusations of unfairness made against other judges. And one would expect the state attorney general – the head of the government agency responsible for representing judges whenever parties accuse judges of wrongdoing in litigation – to observe these cardinal rules.
None of that happened before the Arkansas Supreme Court recently removed me from a case in which I issued a temporary restraining order (TRO) until a full hearing could occur on the claim by a medical and pharmaceutical products distributor that the Arkansas Department of Correction had wrongfully obtained and refused to return vercuronium bromide. After I issued the TRO on the afternoon of April 14, 2017, I and other members of my church attended a Good Friday prayer vigil in front of the Arkansas Governor’s Mansion. In solidarity with Jesus who was condemned to death by crucifixion by Pontus Pilate, the Roman governor in Palestine, I acted as a dead person during the prayer vigil.
The TRO was issued against Governor Asa Hutchinson, Director Wendy Kelley of the Arkansas Department of Correction, and the Arkansas Department of Correction. Those parties were represented by the Attorney General of Arkansas.
After I issued the TRO, the Attorney General petitioned the Arkansas Supreme Court to remove me from the case and vacate the TRO. In that filing, the Attorney General of Arkansas argued that I was unfit to serve as judge on the case because of my participation at the prayer vigil.
The Attorney General never filed a motion accusing me of unfairness and suggesting that I recuse before accusing me of unfairness in the Arkansas Supreme Court.
The Attorney General did not notify me about the accusation when she petitioned the Arkansas Supreme Court to remove me from the case in which I had issued the TRO.
The Arkansas Supreme Court did not notify me that the Attorney General had accused me of unfairness before it acted on the accusation.
The Arkansas Supreme Court did not afford me an opportunity to respond to the accusation before it acted on it.
The Arkansas Supreme Court removed me from the case, in effect treating the accusation of unfairness as true, despite knowing I had not been notified about it and had been afforded no opportunity to respond to it.
Everything we know about due process indicates that was unfair.