Interim study speakers suggest changes to selection of appellate judges
By Shawn Ashley, eCapitol
Speakers at a Monday interim study hearing on judicial reform urged legislators to consider either modifying or completely doing away with the Judicial Nominating Commission, the panel that recommends nominees for judicial vacancies in the state.
Rep. Kevin Calvey, R-Oklahoma City, requested and received approval for Interim Study H15-121, a study of judicial reform, from House Speaker Jeff Hickman R-Fairview. The study was assigned to the full House and was one of three heard in the chamber Monday.
Oklahoma Council of Public Affairs Vice President for Strategic Initiatives Trent England challenged the idea that Oklahoma’s current method of selecting judges, particularly appellate judges, was the result of the 1960s Supreme Court scandal in which some justices, who were elected, were accused of taking bribes. “Most of the money had nothing to do with judicial campaigns or elections. These were straight brides,” said England.
England said efforts to implement what became known as the Missouri Plan had been tried unsuccessfully in several other states. The system relies on a nominating panel – the Judicial Nominating Commission – that recommends a series of nominees-three in Oklahoma’s case – for the governor to appoint. “The fact is you can’t blame people for taking advantage of public discontent,” England said. “There were people who wanted Oklahoma to adopt the Missouri plan before the scandal even took place.”
England said a key concern about Oklahoma’s judicial nominating process is that it is “opaque and not transparent. It operates in the background under the guise of expertise.”
He also suggested the process in “highly political.” To make the point, England pointed to the Judicial Nominating Commission’s action earlier this year when it sent two Democratic nominees to Gov. Mary Fallin to fill a judicial vacancy in Pottawatomie County. The Oklahoma Constitution requires the commission to submit three names to the governor.
Fallin directed the commission to submit three names. Eventually, it did. England said the current arrangement creates an environment in which “the people of Oklahoma cannot change the direction of the judiciary.”
Michael O’Shea, an Oklahoma City University School of Law professor who appeared only as a citizen Monday, said Oklahoma’s version of the Missouri Plan “is a poor fit for the realities of modern judging.” Part of the reason for that, he explained, is that judges, particularly appellate judges at the state level, “exercise a law-making ability and we should recognize that.”
The current method of selecting appellate judges does not do this. “The problem with the JNC, Missouri plan, is that it is extremely poorly designed to screen for philosophy because of the influence of attorneys,” said O’Shea, who called the issue “the fatal law of Missouri plan.” O’Shea suggested Oklahoma adopt a federal model in which the JNC, like in California, only evaluates candidates and ranks them as qualified or unqualified. He also suggested a change in the districts for Supreme Court justices so that they more closely represent an equal number of residents.
Dr. Carl Hook, chief executive officer of PLICO, a provider of medical malpractice and related insurance in Oklahoma, and Tony Lauinger, state chairman of Oklahomans for Life, addressed problems they have seen in the state’s appellate courts.
“In Oklahoma, we have found our Supreme Court to heavily favor the plaintiffs’ side,” Cook said. That has led the organization not to appeal some cases because of fear of their outcome, particularly if they reach the Supreme Court, Cook said. He explained the firm viewed the likely loss of those cases as a waste of resources and the source of future bad laws.
Cook said young medical professional also consider the judicial climate of a state when considering relocating and may choose to go elsewhere if the state is not favorable to them. “This can have an effect on the recruiting and bringing people in,” particularly in rural areas, said Cook. Lauinger said the Supreme Court has repeatedly struck down pro-life legislation.
“There is a sharp distinction between the pro-life values of the people and this Legislature and the pro-abortion Supreme Court,” Lauinger said, adding that the state’s high court “has been consistently hostile to the right to life.” “Of the cases our Supreme Court has struck down, none is probably more egregious than the ultrasound law you people passed,” said Lauinger, noting the U.S. Supreme Court ruled states have the authority to regulate abortion.
Lauinger noted the court has often cited the Oklahoma Constitution’s single-subject provision in striking down many pro-life measures. “These are very subjective decisions and a subjective judgment,” he said. “These rulings where pro-life laws are concerned were very arbitrary and capricious.” Lauinger accused the Supreme Court of having a “singular focus to strike down pro-life laws.”
Lauinger also criticized the judicial nominating process, noting the attorneys on the JNC had to be members of the Oklahoma Bar Association, which is a member of the American Bar Association, which has a pro-choice agenda.
“The American Bar Association supports abortion on demand at taxpayers’ expense and the OBA is member of the ABA and exercises heavy influence on who sits on Oklahoma’s highest courts. Should it come as a surprise that Oklahoma’s courts have struck down even the most modest attempts to limit abortion?” he asked.
Lauinger urged the members to modify the judicial selection process to decrease the influence of the Oklahoma Bar Association, “so that the court more closely reflects the values of the people of Oklahoma.”
Oklahoma State Chamber Senior Vice President for Government Affairs Jonathan Buxton told the House members his organization’s members and businesses from out-of-state want a court system that is not hostile to business.
“Today, I do not believe we have that,” he said. Buxton said a recent poll of corporate attorneys showed the state ranks low in judicial impartiality and in the competency of its judges. Buxton said, “These attorneys believe when they come to Oklahoma they are going to get ‘home-towned.'” He added, “This is the last bastion of reform the state needs to address.”
Like several of the other presenters, Buxton pointed to a series of cases that he said illustrated problems in the state judicial system, particularly those dealing with so-called special laws. Cases considered by the Oklahoma Supreme Court on the issue have resulted in favorable rulings for other government entities and negative rulings for businesses and medical profession, he said.
Buxton said the Legislature should consider making judicial posts elected positions, a view that is supported by nearly three-quarters of Oklahomans, according to at least one poll. As an alternative, he suggested adopting a federal model for appointing judges in which at least one chamber of the Legislature would have approval authority. Buxton also said the current process needs to be more open.
“It should not be a closed door process where the JNC can create their own methods for weeding out candidates,” Buxton said.
Another potential improvement, he said, would be mandatory retirement for judges, based either on age or years on the bench, which is allowed under the Oklahoma Constitution. “That ensures a certain level of turnover,” Buxton said.
Carrie Severino, chief counsel and policy director for the Judicial Crisis Network, said the Missouri Plan is the least accountable system for selecting judicial nominees and “the most prone to capture by liberal trial attorneys,” largely because of the role lawyers play in selecting the nominees. Severino also said retention elections provide only an illusion of accountability since the instances of a judge failing to be retained are few.
The election of judges, she said, would provide the most accountable judiciary since judges who fail to properly apply the law would be removed by voters at election time.
Oklahoma City attorney A.J. Ferate also suggested Oklahoma should elect its judges, noting, “Oklahoma elects its Labor Commissioners and its Insurance Commission, but its judges are chosen behind closed doors and out of the light of day.”
Ferate said he had 15 cases in which the Oklahoma Supreme Court had overturned laws enacted by the Legislature in such a way that it bordered on “a violation of the separation of powers.”
Pointed to the Supreme Court’s decision earlier this year that found unconstitutional the placement of a 10 Commandments monument on Capitol grounds, Ferate said he would not be surprised for an attorney to argue before the Oklahoma Court of Criminal Appeals that the state’s laws against murder were illegal because they are based on those commandments. Ferate said judges should follow the law and the Constitution, rather than carryout the special interests of the people who selected them.
Calvey said he had invited Oklahoma Bar Association Executive Director John Williams to speak at Monday’s hearing but he was unable to do so because of this week’s OBA Annual Meeting.