What follows is online correspondence with the OBA Bench & Bar Committee concerning proposed changes to the Oklahoma Code of Judicial Conduct by the Oklahoma Bar Association:
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Professor :
Yes, I do have other concerns:
(1) Comment 2 to Rule 2.2 says in pertinent part, “a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.” I submit that this interpretive comment negates the concept of malum in se and reduces the law to a purely positivist statement of malum prohibitum rulings. There are acts that are always wrong no matter what a superior judge or court has to say about them. And a good judge, in his heart and conscience knows that. This comment would strip Oklahoma judges of their ability to follow their conscience and ask them to sometimes ignore their most deeply held beliefs and values in favor of the black letter of the law. Many legal scholars still believe that valid secular law is a restatement of the natural law which, depending upon your faith, is either gift from God or statement of man’s highest moral aspirations. This natural law is the manifestation of the best of the human conscience at work. This comment would strip Oklahoma judges of their ability to call upon Moses, Aquinas, Justinian, Blackstone and even their own conscience informed by them as they struggle with the most difficult of our legal questions. Dr. Martin Luther King summarized the problem very well in his Letter From A Birmingham Jail:
One may well ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all." Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. …. We should never forget that everything Adolf Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal."
(2) Section C of Rule 2.3 requires judge to prevent discrimination or harassment toward several otherwise enumerated classes of people. This of course raises the inevitable question, “Why do we need a rule favoring enumerated classes when a courtroom is already supposed to be a place where justice prevails and no one, protected class or not, is allowed to be discriminated against?” Rules such as this put a huge thumb on the scale of justice in favor of the enumerated class. Rules such as this also dull the edge of some arguments and put all parties on notice that all persons and arguments are not equal in this forum. The real problem with a rule such as this lies in the hypersensitive nature of many the enumerated classes. Suppose for example that the court is hearing an argument concerning the sale or extension of life and health insurance benefits to persons of the green class. Opposing Counsel seeks to introduce valid scientific data that persons of the green class have a life expectancy of twenty years less than other classes, comprise sixty percent or more of all serious sexually transmitted disease cases and are hundreds of times more likely to acquire several specifically identified, incredibly costly diseases. Simple statistical and actuarial data such as this is frequently labeled “hate speech” even though it is scientifically valid and very relevant to the argument …. depending upon who introduces the information.
This point can be best illustrated by a few lines from a very heated online discussion concerning the ABA model code which led up to the proposed revisions to the Oklahoma Code. I posted a redacted version of the AP article and link to its text in a well known secular legal publication. A firestorm erupted almost immediately. A member of the ACLU attempted to come to my defense stating: “The First Amendment issue of a proposed ethical change in American Bar Association guidelines as reported by the Associated Press is properly placed in the constitutional law section. No one, including our friend X, noticed that Kumpe did not offer an opinion a remark or even creative editing and it is linked to a neutral website.” Another poster quickly responded, “A seemingly neutral commentary from a clearly non-neutral poster is not so neutral as you suggest.” The poster’s point was that because I am a known Christian activist and am frequently involved in Christian issues at various levels, even my citation of a neutral set of facts was out of line. My point is that this is an attitude already widely found in members of the bar and a rule such as this would only codify it on the bench.
I would further submit that Comment 2 to this rule sets up an unenforceable standard that amounts to a heckler’s veto. Does the Oklahoma Bar Association really intend to have its judges enforce a “Don’t look crossways at me rule.” Imagine this statement in motion for a new trial and a related bar complaint, “When I mentioned that my lover and I (fill in the blank), their lawyer’s jaw fell open for a few seconds and then he got a very odd look on his face. It scared me and hurt my feelings. I was discriminated against and I want a new trial.” It will happen if this rule is adopted as proposed.
(3) Comment 1 to Rule 2.4 codifies the current notion that the courts are in effect a super legislature unaccountable to the electorate. The stereotypical response to this is that judges should not be afraid of lynch mobs and no reasonable person could disagree. But, I would submit that if judges are not supposed to be swayed by the values, morality and opinions of the people they serve, why do we have judicial elections at all? Does anyone really expect the people to vote for someone who will ignore their values, morality and opinions? If a judge is not expected to reflect the values, morality and opinions of his community at large, then whose values, morality and opinions should he reflect and what does this say about the concept of government by and for the people? Are we codifying the notion that we will be ruled by a judicial elite whose superior values, morality and opinion will have the final say on every issue? This very argument is playing out now in the wake of Lawrence v. Texas and I would submit that revisions to the Oklahoma Code of Judicial Conduct is not a proper forum to decide a political issue of this magnitude by default
(4) Rule 2.11 sets up another frightening scenario. We recently had an Oklahoma judge’s ruling overturned simply because of his religious beliefs and associations. The following is taken from Prof. Mike Scaperlanda’s article in the Daily Oklahoman, June 8, 2006:
By a 6-3 vote, the Oklahoma Supreme Court has established the dangerous precedent of disqualifying judges because of their religious affiliations. Last month, the Court told probate judge, Larry Jones, that he cannot hear the case of Oklahoma Baptist Homes for Children, et. al v. Donald Timberlake because the “circumstances and conditions surround[ing] the litigation” are such “that they might reasonably cast doubt and question” as to Jones’ ability to be impartial or at least they raise “the appearance of possible impropriety.”
What caused Oklahoma’s high court to question Judge Jones’ impartiality? After Timberlake lost his case and while it was on appeal, he discovered that Judge Jones had “received a Doctor of Divinity in 1993 and is a licensed Baptist minister.” Armed with this information, Timberlake asked Judge Jones to remove himself from the case. Jones declined in a five page written opinion pointing out that a) his doctorate was earned at “a non-Baptist affiliated, independent Bible college,” b) that he is licensed by “the Seventh Day Baptist Church of Texarkana, Ark.,” which “is independent and autonomous” and
affiliated only with the Seventh Day Baptist General Conference, headquartered in Wisconsin,” c) that his church “has neither association with nor fellowship with the Southern Baptist Convention or those churches or members known as “Southern Baptists,” and d) he has never been “affiliated in any manner with Oklahoma Baptist Homes for Children Inc. or Trinity Baptist Church of Oklahoma, Inc.”
Despite the fact that Judge Jones has absolutely NO connection, however remote, to the parties in the case, the Oklahoma Supreme Court ordered him to step aside.
Do we really want to codify the notion that no judge who is deeply involved in his faith should be allowed to hear a case involving faith based issues? Again, this is a case where a heavy thumb could be placed on the scales of justice in favor of the opponents of religious litigants.
(5) Rule 3.6 would make it prudent for judge and attorneys who aspire to the bench to decline involvement in their church and values based community organizations such as the Boy Scouts of America, Royal Rangers, Awana, etc. This violates the constitutional rights of the judges and judicial candidates by establishing a defacto religious test for public office. This issue was apparent as soon as the ABA’s proposed changes were released and there is no doubt how it would be interpreted:
Judges May Have to Quit Groups That Discriminate Against Gays
Gina Holland
The Associated Press
08-09-2004
Judges are on the front line of battles over legal rights for same-sex couples and should never belong to an organization that discriminates against gays, supporters of a proposed change to American Bar Association ethics rules argued Friday. Judges are already prohibited from joining clubs that discriminate based on race or sex. An ABA panel is debating whether to make groups that discriminate against gays off limits as well. The ABA, the nation's largest lawyers' group with more than 400,000 members, writes conduct rules for judges and lawyers. States and federal courts generally adopt them, with some changes. It is not known how many judges participate in groups such as the Boy Scouts that have policies against hiring gays or having homosexual leaders, or some veterans groups that restrict membership to heterosexuals.
The proposed change to membership in groups that discriminate against gays is energized in part by the Supreme Court's ruling a year ago that states cannot "demean" same-sex couples by punishing their sexual conduct. That decision has spawned multiple gay rights cases around the country, including Massachusetts' ruling to legalize gay marriage. Most recently, a judge ruled last week that a same-sex marriage ban violates Washington state's constitution.
New York University ethics expert Stephen Gillers said gay people involved in court cases "should not be asked to trust the fairness of a judge" who belongs to a discriminatory club.
"Judges are human beings too. They should be allowed to exercise their First Amendment rights of free association," said Frederic Smalkin, a senior federal judge who teaches law at the University of Maryland. Smalkin said it could be difficult to define what organizations are acceptable. "Does that mean a judge could not belong to the reserves or National Guard?" he asked.
Brian Fahling, an attorney with the Mississippi-based American Family Association, said judges with religious objections to homosexuality should not be forced to follow such a rule.
As proposed, this is patently unconstitutional and would again establish a defacto religious test for public office.
Thank you for consideration in this matter. I look forward to meeting you.
Sincerely,
Bill Kumpe
From:
Sent: Tuesday, March 11, 2008 3:17 PM
To: Bill Kumpe
Subject: RE: Code of Judicial Conduct
Mr. Kumpe,
I know that one of the provisions in the Code about which you are concerned is Rule 3.6. Are there any other specific rules or comments about which you have a concern.
From: Bill Kumpe [mailto:bkumpe@cox.net]
Sent: Monday, March 10, 2008 3:49 PM
To:
Subject: RE: Code of Judicial Conduct
Prof:
Thank you for your prompt reply. You can view the items directly on the OBA net by logging on there, clicking on the “Message Board” section in the left margin, then clicking on the “Search” option on the right side of the next screen. The first thread can be found by doing a keyword search on the term “Gina Holland.” The second thread can be found by doing a keyword search on the term “Kill a judge for Christ.”
Thank you again for your prompt response.
Bill Kumpe
From:
Sent: Monday, March 10, 2008 3:37 PM
To: Bill Kumpe
Subject: RE: Code of Judicial Conduct
Mr. Kumpe,
Thank you for writing to express your views on the proposed amendments to the Code of Judicial conduct. I do not believe that the proposed code would in any way affect a judge’s involvement with any church or church group. However, the Bench and Bar Committee will give full consideration to your concerns about this issue. I have had some difficulty in opening two of your attachments since my computer has screening devices that stops any attachment that involves “cookies”. I will ask our computer support personnel if they can help me with this problem. I will be forwarding your e-mail message to others and they may have the same problems.
From: Bill Kumpe [mailto:bkumpe@cox.net]
Sent: Monday, March 10, 2008 3:23 PM
To:
Cc: bkumpe@cox.net
Subject: Code of Judicial Conduct
Prof:
While I do not oppose all of the changes, I am frightened that some of the changes, particularly those having to with a judge’s extra-judicial activity and judicial disqualification will be used to craft a de-facto religious test for judges. While I do not question the sincerity or the motives of either the ABA or the OBA, I do fear that the changes are such that they can be misused. This is a very sensitive topic. Find below: (A) a link to a podcast of a radio interview I gave on this subject this weekend; (B) a link to a podcast of a radio interview that fellow Christian attorney Leah Farrish gave over the weekend; (C) a link to a thread on the OBA-NET where I made an attempt to discuss the constitutional ramifications of this matter with other lawyers within the OBA in 2004; and (D) a link to another thread on the OBA-NET regarding judicial matters. Given the tone of those discussions, I think that I have reasonable grounds for my fear that judges and judicial candidates of devout faith could be un-constitutionally burdened by misapplication of some of the new provisions.
Bill Kumpe
Attorney at Law
LINK A: http://podcast.1170kfaq.com/Portals/48/Recent%20Show/sataftshow3-8hr2.mp3 LINK B: http://podcast.1170kfaq.com/Portals/48/Recent%20Show/sataftshow3-8hr1.mp3
LINK C: http://forumx.oba-net.org/detod?viewPrintableVersion@21.wvM3axZiDen.14@.1ed0368a
LINK D: http://forumx.oba-net.org/detod?viewPrintableVersion@21.wvM3axZiDen.6@.1ed06b68
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