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Past Judicial Reform Efforts Have Mostly Failed

By: Constitution Staff

Efforts to enact judicial reform are not new to the Oklahoma Legislature. In fact, a number of judicial reforms have been approved by the state Senate in each of the past three years. None, however, have been approved in the House of Representatives. Perhaps if even one had been successful, we might still have the Ten Commandments monument. Liberal decisions, a retention ballot system that has never resulted in a non-retention since its inception in 1967, and an out of control spending program disguised as an IT department are all evidence that the courts are that last branch of Oklahoma government still controlled by the Democrats.

The 2013 session marked the start of judicial reform efforts. That session, the Senate sent to the House three bold measures aimed at changing the status quo.

SJR 21 would have submitted a state question to voters to change the way judicial vacancies are filled. If the questions had been submitted and approved, the governor would have submitted a nominee to fill the vacancy, who would then be subject to Senate confirmation. The Judicial Nominating Committee would then have provided an advisor rating regarding the nominee. This proposal passed the Senate by a vote of 33 to 13 on March 13, 2013. On March 19, 2013, it was assigned to the House Judiciary Committee and not acted upon in 2013. SJR 21 was acted upon with different language in 2014.

SJR 22 would have submitted a state question to voters that would have changed the way the Chief Justice of the Supreme Court is selected. If the questions had been submitted and approved, the governor would have submitted a nominee, who would then be subject to Senate confirmation. Currently, the chief justice is a rotating position among the current justices. This measure passed the Senate by a vote of 28 to 17 on March 13, 2013. On March 19, 2013, it was assigned to the House Judiciary Committee and never acted upon.

SJR 24 would have submitted a state question to voters that if approved would have eliminated the retention ballot and set term limits for appellate judges and justices at 20 years. This proposal passed the Senate 38 to 6 on March 13, 2013. It was assigned to the House Judiciary Committee the following week and never acted upon.

In 2014, in light of prior failures, efforts were scaled back in hopes of getting something passed on judicial reform. Rather than focusing on statewide referendums, the Oklahoma Constitution authorizes the Legislature to do two things by statute regarding judicial reform. Under Article 7B, Section 3, the way the attorney members are selected for the Judicial Nominating Commission (JNC) can be changed by statute. And, under Article 7, Section 11, the Legislature can set mandatory retirement ages for judges and justices. Both authorizations had sat dormant since they were approved in a statewide vote in 1967.

In the 2014 session, SB 1988 was introduced. The bill would have changed membership on the JNC from election by members of the Oklahoma Bar Association to being appointed by the Senate, House and Governor. The bill passed the Senate 38 to 6 on March 12, 2014.

On March 19, 2014, it was assigned to the House Judiciary Committee. After numerous negotiations and effort, a judicial reform proposal was considered in the House. On March 24, 2014, SJR 21 from the 2013 session was reassigned to the House Rules committee. On April 9, 2014, SJR 21 from the 2013 session was amended to contain language similar to SB 1988 and passed the House Rules committee 6 to 1. The amended SJR 21 failed on the House Floor 31 to 65. All 31 votes in favor were cast by Republicans. 65 votes against the measure were cast by 35 Republicans and 30 Democrats. The Oklahoma Bar Association awarded "Friend of Justice" awards to all House members who voted against SJR 21 at the 2014 Bar Convention.

Given the failure of both the great and small efforts the two previous sessions, in 2015 a targeted effort at judicial reform was proposed, to return the power of the purse to the Legislature. Back in the 2004 session, the last session where the Democrats controlled both chambers and the governorship, judicial compensation was transferred from the Legislature to an unelected Board of Judicial Compensation (BJC). Every two years, the judicial branch would automatically get raises based on the BJC's recommendation unless the Legislature rejected or amended that recommendation.

SB 548 contained a section that changed this process, and would have given the Legislature the authority to approve or disapprove any raise recommended by the BJC. Any junior high-level student of government knows that the power of the purse belongs at the legislative branch. This section was deleted on the House floor by an amendment, and a motion to table the amendment failed by a vote of 27 to 57. All 27 votes in favor of tabling were cast by Republicans, and the 57 votes to keep the amendment were cast by 33 Republicans and 24 Democrats.

Efforts started large and grand in 2013 and have been tapered over the past two sessions to try to get even the most minuscule reform passed. None have succeeded. What does the 2016 session hold in the area of judicial reform? One measure, HJR 1037 has already been introduced. If approved, it would place in the Constitution the number of appellant judges that can currently be adjusted by statute, which would result in a statewide vote being necessary to alter the number of appellant judges. Further, HJR 1037 would add four additional appellant judge positions that currently do not exist. So, it would appear that this proposal could use more tweaking.

Will the 2016 session be the session where the judiciary's role as an equal branch of government makes them a branch that is equally accountable to the people of Oklahoma?

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