A proposed new rule for Oklahoma judges is bringing out great dissent among the state's judiciary.
At issue is proposed Rule 3.6 of the Judicial Code of Conduct which, if adopted, would place new restrictions on organizational activities by judges. The proposal states: "A judge shall not hold membership in any organization that practices invidious discrimination."
Other subsections of the proposal ban a judge's use of benefits and facilities of such organization, but a judge may attend such organization functions if they are isolated events and do not endorse the organization's practices.
The proposal was presented for the first time to the Oklahoma Bar Association Board of Governors last week at their annual convention in downtown Oklahoma City. The board is expected to consider the revision for a few months before a final recommendation is made.
The current language of the proposal has been enough to spark heated debate in the state's legal profession. But the provision in its original form had some attorneys and judges throwing gavels around. The language, which has been adopted by the American Bar Association, extends the discrimination sentence out to include specific groups including sexual orientation.
"I don't think anybody objected to anything until you got to there (sexual orientation)," said David Swank, a University of Oklahoma law professor. Swank led a task force to revise the code of conduct. "But when sexual orientation was put in there, that caused a great deal of problems. We had a lot of debate."
Swank said the ABA first started to examine their code of conduct back in 2003 and notified states a new set of guidelines would be forthcoming. States are not bound to adopt the ABA rules, but many states use the ABA language as a framework for their own conduct rules.
OBA's task force completed their proposed rules in 2007. It was first presented to the Bench and Bar committee, where much of the debate first took place.
Tulsa attorney Jack Brown, chair of the committee, said when the proposed rules were considered by the committee, it failed by one vote. Once language of the specific discriminated classes was eliminated, another vote was taken which Brown said passed overwhelmingly.
But the new language hasn't been enough to quell the concerns of some.
"I respectfully ask the BOG to strike from the proposed changes (Rule 3.6) because it infringes on constitutional freedoms, allows invasion of the legislative process by unelected private entities, ultimately encourages violation of the constitutional separation of powers and encourages abuse of the Supreme Court's superintending power over inferior courts," wrote Oklahoma County District Judge Bill Graves in a letter to OBA dated Nov. 17.
Former state House Rep. Kevin Calvey voiced displeasure with the proposal.
"It's a very clear violation of the First Amendment," said Calvey, a practicing attorney. "If someone wants to belong to a particular group, that should not preclude them from running for office."
Oklahoma judges are voted on by the people during election cycles. District judges may have opponents, but voters simply vote yes or no to retain state judges.
"I personally trust the voters of Oklahoma," Calvey said. "If someone belongs to some wicked organization like the Ku Klux Klan or the Communist Party, I trust the voters of Oklahoma to vote no on that person."
One of Calvey's problems is the word "invidious discrimination," which is part of the new language.
"What does 'invidious discrimination' mean? We don't know."
Calvey is concerned the definition is so broad that any group or organization could be seen as a violation of the proposed rule.
"The Republican Party platform is in favor of traditional marriage. That discriminates in favor of traditional marriage and discriminates against every sort of arrangement that's not one man, one woman, which includes polygamy and homosexual unions," Calvey said. "Does it discriminate? Probably so. Under this (proposed) rule, I don't think you can be a Republican and become a judge (under the proposed rule)."
One influential group in the process is the Oklahoma Judicial Conference, which represents state judges. Cimarron County District Judge Ron Kincannon, who reviewed the proposed rules for OJC, said most of the judges' discussion centered on cleaning up some of the language they considered too broad, as opposed to disagreements with the substance of the language. The judge has his own personal concerns as well.
"Rural judges, if they are not a part of the community, would not be sitting up on the bench," Kincannon said.
The controversy surrounding Rule 3.6 took some time develop.
"We finished in November (2007) and we put it out for public comment and nobody commented," Swank said. "We advertised it and did everything we could to get some comments, but nobody said anything. In January, I said, 'We better get some public comment on it.' I met with a couple of judges and said, 'For God's sake, give us some comments.'"
The board of governors will meet Dec. 19 to discuss the rule changes and hear public comments. The board can approve the changes and send it to the state Supreme Court for final approval or the board can send it to the OBA's House of Delegates for a vote to send it to the Supreme Court. All three bodies could also vote the proposed rules down. "Scott Cooper