Commentary: Gavel to Gavel: Stacked deck

Journal Record, The (Oklahoma City), Jun 19, 2008 by Mark Hamby

It's been argued that judges are people too, although some are not sure. Judges decide whether you win or lose, go to jail or not, serve six months or six years, pay a little or pay a lot, keep your children or lose custody. Judges are people, but they've got significant power over everyone who appears before them. What happens, then, if you end up in court with a judge who is predisposed against you?

The legal community recognizes that judges should be above the fray and has adopted a code of judicial conduct. The code starts by recognizing that "An independent, fair and impartial judiciary is indispensable to our system of justice." Canon 2 states that "A judge shall perform the duties of judicial office impartially, competently, and diligently." This sounds laudable and innocuous enough.

Included under Canon 2 is a rule that states "a judge shall perform the duties of judicial office ... without bias or prejudice." The rule specifically prohibits conduct that manifests bias or prejudice towards people because of race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation. Again, this sounds laudable and innocuous, but one Oklahoma judge has taken exception.

In an April 8 letter to the Oklahoma Bar Association concerning the adoption of the revised code, Oklahoma County District Court Judge Bill Graves vehemently objected to a provision calling for non- discrimination based on sexual orientation, gender, or ethnicity. Graves rails against the proposal as coming from the "liberal, pro- homosexual American Bar Association." Graves states that the current canons of ethics cover sexual orientation. He states "homosexuals, lesbians and bisexuals ... should be treated with courtesy, fairness and justice like anyone else," which sounds good. But then the judge truly expresses himself by continuing that the OBA is "promoting the homosexual agenda which is to have homosexuality treated as normal and natural as heterosexuality." Graves opines that "the People of Oklahoma do not subscribe to the homosexual agenda."

Whether you agree with Graves or not, his public stance forces the question of whether somebody appearing in front of him might get a stiffer sentence or less judicial compassion because the judge thought the person was a promoter of the so-called liberal, homosexual agenda - or even the litigant's attorney, or the attorney's law firm. A parade of horribles is not hard to imagine. Should an officer of the ABA have his client appear with another attorney, or will Graves forgive the association with the liberal, pro-homosexual body? What if the attorney is gay, or the defendant is gay? Graves is, after all, telling the OBA that he does not feel he should be required to not discriminate, so is it not logical to assume that he might discriminate if given the opportunity?

Graves asserts that the code denies judges their First Amendment rights and is contrary to freedom of religion and the Bible, because there are "numerous Biblical references condemning homosexuality." Graves notes that even many non-Christians and atheists object to the "homosexual agenda." But homosexuality is not a crime and is not condemnable in Oklahoma. Graves ignores the fact that he affirmatively sought the office of district court judge. Perhaps if it is too much for him not to discriminate, he should resign.

The purpose of the code is to provide all members of the public, good guys and bad, a fair shake in court and not to determine which prejudices are justifiable. This is supposed to be a country governed by the American rule of law, not by the personal prejudices or lifestyle choices of the judge. One must also ask whether the judge has other, unexpressed prejudices that he would act upon but which would not be known to the litigants.

Graves may or may not be able to temper his prejudices when he is on the bench ostensibly dispensing justice, but I am one attorney who would not take a chance and would seriously think about asking for a different judge before allowing a client to appear in front of Graves.

Mark Hamby is an attorney with Bonham & Howard law firm in Tulsa.