JUDGE PHILLIPS: Why I declined to swear-in circuit clerk on Jan. 1, 2011

A recent posting (see blog at www.mysaline.com “Received a letter in the mail about Dennis Milligan”) has rekindled discussion about my declining Mr. Milligan’s request to swear him in on January 1, 2011. I have been called a “misfit,” among other things, and an embarrassment to the judiciary. The Code of Judicial Conduct allows me to respond to such criticism.

I arrived at the courthouse January 1, 2011, to perform a ceremonial duty. I was volunteering my time (it was a Saturday) on the relatively short notice of two days, and had no statutory obligation or duty to be there. I had agreed to conduct the ceremony on the condition that I not have to swear in Mr. Milligan. I was told by the judge that asked me to do the swearing-in that Mr. Milligan was going to Bryant (where he lives) to be sworn in. Upon my arrival at the courthouse, I saw a vehicle that I thought belonged to Mr. Milligan. I went straight to the County Judge’s office where Lynn Hart, a county employee, was putting the Oaths of Office in order. I asked him if Mr. Milligan was present upstairs and he said yes.

I then told Mr. Hart that I did not want to swear Mr. Milligan into office. He asked if I wanted him to bring Mr. Milligan into the office and I said yes. I told Mr. Hart he could stay if he would keep the contents of the meeting confidential, and he assured me he would. Mr. Hart can confirm that I was calm throughout the brief meeting. He can also confirm that Mr. Milligan’s last words were, “Fine, I’ll take it to the media.” It was Mr. Milligan’s decision to make this matter public.

The Oath of Office of the Circuit Clerk reads as follows: “I, [name], do solemnly swear or affirm that I will support the Constitution of the United States, the Constitution of the State of Arkansas, and I will faithfully discharge the duties of the office of the Circuit Clerk upon which I am now about to enter.”

I could not in good faith administer the oath to a person whom I believed had already violated it. In firing five women who had a combined experience of over 50 years, I believed that Mr. Milligan had, in violation of the First Amendment to the U.S. Constitution, denied some of these women their rights to free speech and their rights to associate with whom they pleased. I also believed he had jeopardized the operations of the Circuit Clerk’s office, upon which the Circuit Judges depend, and thus could not in good faith swear to “faithfully discharge the duties.”

As a result of my declining to swear Mr. Milligan in, one of his friends filed an ethics complaint against me. Five current and retired Saline County Circuit Judges sent letters to the Judicial Disability and Disciplinary Committee to support my defense. Excerpts from those letters follow (I would attribute each of these quotes to the judge or former judge that said it, but one of the judges did not give me permission to use his name; therefore, I am omitting all their names):

“Judge Phillips took the least disruptive course and met with Mr. Milligan in private and informed him of his unwillingness to carry out the ceremony and suggested other alternatives for Mr. Milligan to be sworn. Essentially, Judge Phillips recused from the matter. While the situation was obviously uncomfortable for Mr. Milligan, the only public embarrassment that Mr. Milligan endured was due to his own behavior after Judge Phillips private recusal. Mr. Milligan made public announcements to those gathered in the courtroom and then contacted several media outlets. If he had simply had County Judge Fite swear him in (as he eventually did), then no one would have known of the events other than Judge Phillips and himself. Judge Phillips cannot be blamed for Mr. Milligan making the recusal public and embarrassing himself. I hope you will dismiss the claim forthwith.”

“It was very disturbing to hear of the manner of the dismissal of several of the longtime employees of the Clerk’s Office also. I had daily contact with this staff during my years on the bench and always considered them to be very professional, helpful and friendly. When the judges contacted the new clerk about the transition they were treated very rudely. I found this conduct to be extremely offensive. It appears there is a double standard of conduct. The new clerk demands respect yet has no respect or consideration for others. I know of no requirement for a circuit judge to swear in elected officials. Judge Phillips has always displayed the highest character and honor. The judiciary is fortunate that he is on the bench. Hopefully, if I was still on the bench, I would have had the courage and character to have acted as Judge Phillips acted.”

“What I can tell you is that it is my strongly held belief that Grisham Phillips is not only an excellent jurist, but that he is one of the finest people that I know. He stands by his beliefs and comports himself with a great deal of integrity. If in his refusal to perform the swearing in ceremony for Mr. Milligan, Judge Phillips committed any type of sanctionable act; then apparently, I am somewhat guilty also. Not only did I tell Judge Phillips that I didn’t believe he was doing something wrong, I also commented to him that I would prefer not doing it either. . . .”

“As a former Circuit/Chancery Judge, I am appalled to learn of the complaint filed against Judge Grisham Phillips for declining to swear in our newly-elected Circuit Clerk. I know of no requirement that a Circuit Judge must swear in an elected official – therefore, the Judge should perform such duties only if he wants to. I strongly support Judge Phillips’ decision and action. I can only hope and believe I would have the courage and conviction to make the same call if I’m ever in a similar situation."

The Disability and Disciplinary Committee determined that judges have no duty or obligation to perform ceremonial functions such as administering oaths or performing marriage ceremonies. The complaint was dismissed. I did not publicize the dismissal because I thought that would be the end of the issue. My Oath of Office is very similar to the Clerk’s. I take it seriously. I believe it is a promise to the citizens to actually perform the obligations set forth therein. I think of my oath every time I make a decision, and I mentally renew it on a regular basis, as I hope every elected official from the President on down would do.

Thank you for your time.

Grisham A. Phillips

Saline County Circuit Judge Division 3