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Tulsa Criminal Defense Attorney BlogHarmless Humor or Judicial Misconduct?

By , October 23rd, 2012
Okmulgee judicial misconduct investigation

Judge Michael Claver
Okmulgee County District Court

Justice never sleeps, wrote Japanese psychologist and author Tadahiko Nagao. How about a night off though? Maybe set aside the robes long enough to perform a standup routine at a local comedy club?

The question of how much a judge’s conduct outside the courtroom affects his role on the bench surfaced in Okmulgee this month when district judge Mike Claver came under fire for comedic routines he posted on YouTube. Claver also performed at the Looney Bin comedy club in Tulsa. The routines Channel 6 reported included punchlines that pillory gays and Baptists. Claver, by the way, says he is a Baptist and that he has family members who are gay.

Claver acknowledged to Tulsa KOTV Channel 6 reporters that the state Council on Judicial Ethics has launched an investigation into his extrajudicial avocation. He told Channel 6 his jokes weren’t intended to offend anyone. He has since removed the videos from YouTube, but he defended the slant of his humor. “I really think that if we can’t be making jokes about our own religions and our own selves then we shouldn’t be making jokes at all,” Claver told KOTV.

Toby Jenkins, director of the gay-rights group Oklahomans for Equality said Claver’s gay barbs weren’t the worst he’s heard, but he said he’d be uncomfortable with Claver hearing a case that involved him. When told by a judge who holds power in a public capacity, Jenkins said, the jokes are inappropriate and tantamount to bullying.

Likewise, a Baptist man could arguably be offended by Claver’s comedic assertion that Baptist men — like Adam in the Biblical creation story — would walk past a naked woman to get to food. KOTV’s NewsOn6 reported that it had received numerous anonymous complaints about Claver’s routines. Coming from a judge, Claver’s gags raise questions that might otherwise never arise if a full-time comic told the same jokes, but does the out-of-court clowning comprise judicial misconduct?

Oklahoma’s Code of Judicial Conduct permits judges to participate in extrajudicial activities – within prescribed boundaries. Judges may not participate in conduct:

  • that interferes with their judicial duties,
  • that leads to frequent disqualifications,
  • that would appear to a reasonable person to undermine the judges independence, integrity or impartiality,
  • that would appear to be coercive.

Rule 3.1 further prohibits judges from making “use of the court premises, staff, stationary equipment or other resources, except for incidental use for activities that concern the law, the legal system, or the administration of justice. There are exceptions to that rule, including one that allows judges to take pictures of themselves for political purposes in the courtroom when court is not in session. Some of Claver’s now-removed YouTube videos showed him performing the comedic schtick inside his judicial chambers.

Whether Claver’s conduct violates Oklahoma rules for judges is a matter for the state judicial ethics panel to decide. It’s certainly conceivable, though, that attorneys whose clients are members of groups Claver joked about may ask him to recuse himself from those cases.

While the state ethics panel is tasked with sorting out the propriety of Claver’s extrajudicial humor, the questions about judicial joking and judges’ extrajudicial social conduct are nothing new. In 2010, the New Jersey Advisory Committee on Extrajudicial Activities advised a magistrate judge in that state that his state’s rules for judges did not allow him to perform as a comedian while serving as a part-time municipal court judge. The judge had previously worked as a television actor and comedian. His comedy routines, according to law.com, included racial stereotypes and denigrated people who have physical disabilities.

In 2007, the members of New Yorks judicial oversight commission unanimously voted no confidence in the committee’s chairman for his publication as co-author of a book they said was racially and ethnically inflamatory.

Ethics rules don’t strictly prohibit all extrajudicial activity – even funny activity. A State of Washington ethics panel in 1993 advised a judge that it was okay under that state’s rules to participate in a comedy contest for law professionals so long as the activity does not detract from the dignity of the office, or interfere with judicial duties. The San Antonio Bar Association in recent years has hosted comedy presentation by the Association of Corporate Counsel South/Central Texas Chapter to instruct members about ethics.

Chief U.S. District Judge for Montana Richard Cebull in March apologized for sending an e-mail to seven recipients in which he ridiculed Pres. Barack Obama in racially-suggestive terms. The Billings Gazette reported earlier this month Cebull remains under investigation by the  9th U.S. Circuit Court of Appeals.

A judge in the high-profile Illinois murder of former police officer Drew Peterson in August joked from the bench about suicide – a meme he apparently picked up from another judge after whom his courtroom was named, according to a Chicago TV station.

Oklahoma’s Judicial Ethics Advisory Panel has issued opinions that inform judges’ choice of social activities. In 2011, the panel said judges could hold accounts in Internet social networks such as Facebook, Twitter or LinkedIn – with restrictions – but advised against judges adding lawyers as friends on social networks.

In 2002, the Oklahoma panel concluded that an administrative law judge may permissibly use his real name (without his judicial title), his biography and – with restrictions – his photograph in publishing and promoting a novel. In that matter, the panel said the judge’s activities did not involve “a locale in which the individual is known as a judge by the general public.”

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