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Sunday, December 16th, 2018Last Update: Tuesday, October 30th, 2018 07:58:08 PM

Oklahoma Judicial Reform Legislation Proposed

By: Constitution Staff

The next Oklahoma Legislature will consider a number of bills concerning Oklahoma's judiciary and the courts. It is not certain which measures, if any, will survive the legislative process. But while various judicial reform proposals have been filed in previous sessions and failed, legislation this year has been spurred by opposition to recent court rulings, in particular the Oklahoma Supreme Court's decision to order removal of a Ten Commandments monument from the state Capitol grounds.

Some of the proposals involve tweaks to the current system such as placing term limits on judges, instituting a mandatory retirement age, or changing the membership of the nominating commission which recommends judges for appointment. Other measures would totally change the process for filling positions on the higher state courts.

The Oklahoma Supreme Court is made up of nine justices (eight of the current nine were appointed by a Democrat governor). The Court of Criminal Appeals has five justices (three of the five appointed by a Democrat governor). The Oklahoma Court of Civil Appeals has 12 judges (eight of the 12 appointed by a Democrat).

Unlike district judges and other judges in the state who are elected, these 26 higher court judges are appointed by the governor from a list chosen by the state Judicial Nominating Commission. This 15 member board includes six members appointed by the governor, six selected by the Oklahoma Bar Association, one named by the Speaker of the House, and one by the Senate Pro Tempore. The final slot is selected at large by the commission members themselves. Commission members serve six-year terms, staggered at two-year intervals. Members-at-large serve for terms of two years. No member is eligible to serve immediately after completing a term on the commission.

After screening and interviewing applicants, the commission recommends three candidates for the governor to choose from to fill vacant positions on the higher courts and also some vacancies when they occur on the lower courts. If the governor does not like any of the nominees, the governor can only ask the commission to submit a new list of nominees. While the judges are appointed for life, they must face voters on a retention ballot every six years. In the nearly 50 years that this system has been in effect, no judge has ever lost a retention ballot election.

When the Oklahoma Constitution was adopted in 1907, judges were chosen through partisan elections. Then, in 1965, a bribery scandal involving three Oklahoma Supreme Court justices was revealed. In 1967, these justices were impeached, or resigned from office, after investigations determined the justices had accepted bribes in exchange for making favorable decisions in cases.

In 1940, Missouri became the first state to adopt the assisted appointment method and it has since been known as the "Missouri Plan." Oklahoma became the seventh state to adopt the Missouri Plan which was being pushed by progressives in both major political parties, the League of Women Voters, and the American Bar Association. On July 11, 1967, Oklahoma voters approved State Question 447 in the primary election by narrow margin. This ballot measure amended the Oklahoma Constitution by adding Article 7B which established the current system. There have been a few refinements to the system in the years since. In 1987, the process was expanded in to include the Oklahoma Court of Civil Appeals. And, in 2010 changes were made concerning the membership of the commission.

Twenty nine states now use some form of the appointment method, with 17 of those including retention elections. Some states use a variation of the appointment system, typically nomination by the governor with approval of the legislature instead of a nominating commission. But, there are still 21 states that select their higher court judges by election, including seven that use partisan elections. Up until 1967, Oklahoma voters elected these 26 judges just like they do the district judges, and associate district judges.

State Representative Kevin Calvey (R-Edmond) has introduced legislation that would let Oklahomans vote on whether the higher court judges should be elected by the people in nonpartisan elections. House Joint Resolution 1037, if approved by the Oklahoma Legislature, would place a state question on the ballot to let voters decide whether or not to change the appointment process to a nonpartisan election process. "Our current system of selecting state Supreme Court jurists is not transparent, not accountable to the people and is dominated by the lawyers' special interest group," says Calvey. "No wonder we get outrageous state Supreme Court decisions like banning the Ten Commandments, causing extra costs on doctors and small business owners and allowing predatory abortionists like felon Dr. Patel to remain unregulated."

Rep. Calvey asserts that electing judges is better than the current system. "States which elect their Supreme Courts actually rank better than Oklahoma in terms of impartiality and the competence of judges. Contrary to the special-interest hysteria of entrenched opponents of reform, the facts show that electing state Supreme Court jurists will improve Oklahoma's judiciary, not cause problems. It is also contrary to false claims from the lawyers' special interest group, the Oklahoma Bar Association, that Oklahoma's current system was not necessary to prevent judicial corruption in a 1960s court bribery scandal. The truth is, the lawyers used the judicial bribery scandal as a pretext to enact Oklahoma's lawyer-dominated judicial selection system, a system that had been proposed over 25 years earlier."

Calvey said a November poll conducted by North Star Opinion Research of 500 registered voters had 79 percent in favor of a judicial election system versus 16 percent in favor of the current system. The poll had an even number of Republicans and Democrats. "It's time to let the people have a say on how they want their state Supreme Court chosen," says Calvey.

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