Thursday, April 24, 2008

Comments Before the Oklahoma Bar Association Bench and Bar Committee

As many of you know already, I was allowed to speak before the Bench & Bar Committee of the Oklahoma Bar Association to relate my concerns about proposed changes to the Oklahoma Code of Judicial Conduct. I know that several of you were praying for me during that time and I want to thank you for that. I am greatly humbled by your support. What follows is not a direct transcription of my remarks. It is a close paraphrase based upon my memory of what was actually said.


Ladies and Gentlemen, I want to thank you for the opportunity to address you this afternoon.

If Rep. Calvey and I had coordinated a little before the meeting, we could have saved each other some time and research. I concur with everything he just said.

I will not attempt to analyze the proposed code changes in ten minutes. You have been provided a copy of my comments which have already been submitted and I trust that you have or will read them before you make your decision. So, with your permission, I will move straight to my “closing argument.

I am concerned that the cumulative effect of the changes will be used by some attorneys and organizations to craft a defacto religious test for Oklahoma Judges.

Last week, I taught a session of a CLE in Tulsa. The lady who introduced me has known me by reputation for years. She is great lady, one of the hardworking people of her section that make the OBA the great organization it is. But, when it came time for my introduction, all she could say was, “I would like to present Bill Kumpe. He is an attorney in Tulsa and ….. (long pause – embarrassed confusion) …. a very nice person.

I had to laugh. I do try very hard to be a “very nice person. I thanked her and started my presentation. But, I knew I had put her in a terrible spot because I didn’t submit a bio as requested. And, the reason I didn’t submit a bio speaks volumes to the issue at hand.

Before law school, I was a computer salesman and even a reporter for a while. But, I was best known for being an ordained, lay teaching elder in my community of faith and for serving on the Board of Directors of one Tulsa’s first and now largest Christian Schools. I am also a published freelance writer on subjects of interest to what used to be called the “Christian Right.

After law school, I was President of the Christian Legal Society of Tulsa and was one of the founders of the Dream Center Legal Clinic in North Tulsa. I am a graduate of a Christian Civil Rights Litigation Academy and have received awards for my pro-bono work. I have actually performed over three thousand hours of pro-bono and reduced fee work. In the past year, I have represented a diverse range of clients from the Speaker of the Oklahoma House of Representatives to Thirteen Baptist Pastors of the Cherokee Nation. Currently, I am serving on Representative Sally Kern’s legal team.

I am not ashamed of my career. Far from it. If I were I wouldn’t be here today telling you about it. But, I didn’t share the details of it for a number of reasons. First, I knew that it might embarrass the people that invited me and I certainly didn’t want to do that. Second, I knew from experience that some members of the audience would choose not to hear a word that I said after hearing my bio. And third, though I am ashamed to say this, I chose not to because I didn’t want to deal with that issue on that day when it had no relevance to what I was going to say. It can be a burden.

One of my favorite tools for evaluating a situation is to apply what I call the “do unto others” test. I mentally reverse the roles and/or facts to try to see the situation from the other person’s point of view.

Let’s suppose for a moment, that instead of being the President of the Christian Legal Society, I had been Chairman of one of the OBA sections. And, let’s suppose that instead of helping to found a faith based legal clinic in North Tulsa, I had helped found a Legal Aid Clinic. Let’s suppose further that I had worked in excess of three thousand pro-bono and reduced fee hours with the ACLU or Legal Aid instead of Christian organizations. And, while we’re at it, let’s suppose that right now, at this moment, I am representing any other member of the legislature other than Rep. Sally Kern. Would I have felt the need to withhold my bio in front of that audience?

Now, going directly to the point at hand, let’s suppose that I am a candidate for District Judge or under consideration for an appointment to fill a judicial vacancy. Would I need to hide those details of my bio? As a matter of fact, even if I were otherwise qualified which I am not, would my name even come up in that context given the contents of my resume’? That’s a hard question.

Under standards that have already been applied by the Oklahoma Supreme Court in an unpublished opinion styled Oklahoma Baptist Homes for Children, et. al v. Donald Timberlake, if I were a sitting Oklahoma judge, the personal details I just shared with you would already disqualify me from hearing a case involving religious organizations even if I had no previous connection with them. This is especially ironic given the fact that on the United States Supreme Court Ruth Bader Ginsburg regularly hears cases involving religious issues and organizations despite the fact that she is the former Chief Counsel of the ACLU.

If we extrapolate this already applied standard just a little farther, suppose that I am a sitting judge and my community of faith does not allow divorce. Will not allow them take communion. Should I then be disqualified from family law cases? And, suppose that my community of faith does not approve of alternative lifestyles. Should I then be disqualified from hearing any case involving people who identity themselves with those lifestyles. If these strategies are allowed (as I am afraid the new code will) they will be used by some attorneys and some organizations to “shop” judges.

I sincerely believe with all my heart, based upon my own personal experience, that that the new proposed code of judicial conduct will be used by some attorneys and organizations to first “shop” sitting judges and then shape judicial elections and thus establish a defacto , as applied, religious test for Oklahoma judges.

The question is straightforward. Will we use the power of the Oklahoma Bar Association to dictate the religious associations (or lack thereof) of the citizens who serve on our benches? I agree with Justice Joseph Story who said, “The rights of conscience are indeed beyond the reach of any human power. They are given by God and cannot be encroached upon by human authority … Our judges did not surrender their citizenship when they took the bench and are entitled to the same rights of conscience, association and free exercise of religion as any other citizen.

Our founding fathers recognized this problem and drafted strong protections into the language of the constitution. Article VI, Para. 3 of the United States Constitution is straightforward: “ … No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. Article 1 § 2 of the Oklahoma Constitution is equally clear: no religious test shall be required for the exercise of civil or political rights.

Ladies and Gentlemen, I ask you to consider carefully how these proposed rule changes may be misused by some attorneys and organizations as you continue your consideration of them.

Thank you.


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