Oklahoma House resolution seeks to impeach state supreme court over its stay in death penalty case

April 24th, 2014 by Bill Raftery

I mentioned yesterday that the recent order by the Oklahoma Supreme Court staying an execution had riled members of the legislature and the state’s governor who refused to acknowledge the order. According to media reports that stay has now been lifted however there is an effort underway to impeach the 5 justice majority that ordered the stay (h/t Gavel Grab for the pointer). HR 1059 has now been introduced and is replicated below:

A Resolution calling for impeachment of certain Justices of the Oklahoma Supreme Court pursuant to Section 1 of Article VIII of the Oklahoma Constitution.
WHEREAS, the Oklahoma Supreme Court has rendered an opinion (“Opinion”) which stays the execution of two persons who were scheduled to be executed based on their respective convictions of crimes for which capital punishment was and is authorized; and
WHEREAS, the stays of execution were issued because of the judicial Opinion in Case No. 112,741 (consolidated with Case No. 112,764) in which five Justices of the Oklahoma Supreme Court concurred per curiam; and
WHEREAS, neither the ability for convicted persons to use the court system to delay their execution based upon unsupportable arguments regarding constitutional rights to know about the specific chemicals to be used in carrying out the sentence of death nor the use of the court system to delay execution based upon unsupportable arguments related to the availability of such chemicals should be the basis of a stay of execution; and
WHEREAS, the Opinion sets a troublesome precedent regarding the exercise of what clearly is the exclusive jurisdiction by the Oklahoma Court of Criminal Appeals in cases of this nature; and
WHEREAS, the Justices who have agreed to the majority Opinion have exercised jurisdiction in a matter properly decided only by the Oklahoma Court of Criminal Appeals; and
WHEREAS, Justice Steven Taylor, Justice James Winchester, Justice James Edmondson, and Justice Noma Gurich joined in a dissenting opinion which correctly analyzed the Constitutional issues applicable to the questions before the Oklahoma Supreme Court and in which those Justices correctly concluded that: “The Appellants have maneuvered this Court right where they set out to put us and that is, for the first time in this Court’s relevant history, in the middle of a death penalty appeal. We have never been here before and we have no jurisdiction to be here now.”; and
WHEREAS, the Justices of the Oklahoma Supreme Court have taken an oath to uphold the Constitution of the State of Oklahoma; and
WHEREAS, the Justices of the Oklahoma Supreme Court who authored or supported the majority Opinion in the case have violated their oaths of office based upon issuing a stay of execution in a criminal case for which the jurisdiction ought to have been vested exclusively with the Oklahoma Court of Criminal Appeals; and
WHEREAS, the rendition of the Opinion should be considered a violation of the oath of office because it constitutes a willful neglect of duty and incompetence within the meaning of Section 1 of Article VIII of the Oklahoma Constitution; and
WHEREAS, the power of impeachment is reserved to the Oklahoma House of Representatives pursuant to Section 1 of Article VIII of the Oklahoma Constitution.
NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE 2ND SESSION OF THE 54TH OKLAHOMA LEGISLATURE: THAT Chief Justice Tom Colbert, Vice – Chief Justice John Reif, Justice Yvonne Kauger, Justice Joseph Watt and Justice Doug Combs be impeached pursuant to Section 1 of Article VIII of the Oklahoma Constitution as a result of having violated their oaths of office to uphold the Constitution of the United States and the Constitution of the State of Oklahoma.

Oklahoma: Stage is set for showdown on merit selection of appellate judges April 24; death penalty case may be key

April 23rd, 2014 by Bill Raftery

The debate over merit selection in Oklahoma is now set for a House floor vote on April 24. SJR 21 as amended vacates all current judicial nomination¬†commission (JNC) members selected by the Oklahoma State Bar and removes the Oklahoma Bar’s power to name future attorney members to the JNC. Instead, the 6 seats designated for attorneys would be selected by the House and Senate leaders.

Floor amendments set for the April 24 floor debate would change some of these provisions (3 of the 4 are offered by Democrats, the House is controlled by Republicans)

  • Amendment 1 would let the bar, through its Board of Governors, select 2 of the 6 attorney seats.
  • Amendment 2 would require that the 6 attorney members chosen by the House and Senate leaders be equally divided on a partisan basis (“not more than three shall belong to any one political party.”)
  • Amendment 3 would delay implementation until November 1, 2015.
  • Amendment 4 would let the bar select 2 of the 6 attorney seats in a manner different that in Amendment 1. This is the only amendment being offered by a Republican so far.

Much of the impetus for the move stems from the Oklahoma Supreme Court’s striking down various laws (here and here) for failing to abide by the single subject rule in the state’s constitution that a bill/law can only address one subject.

Meanwhile anger at the Oklahoma Supreme Court continues to mount among executive and legislative leaders over a death penalty case. Oklahoma is one of only two states (Texas is the other) that have 2 courts of last resort: a Supreme Court to hear civil matters and a Court of Criminal Appeals to hear criminal ones. In the last several weeks an Oklahoma trial judge struck down the state’s death penalty statutory provision that made secret data related to the drugs used in lethal injections. The stay then ping-ponged between the courts:¬†Appeals were filed and the Oklahoma Supreme Court transferred the case to the Court of Criminal Appeals to issue a stay pending the outcome of the civil challenge to the law. The Court of Criminal Appeals denied the stay on April 11. The Supreme Court transferred the stay provisions of the case back on April 17. The Court of Criminal Appeals denied the stay again on April 18. Invoking the rule of necessity that some court needed to issue a stay pending the outcome of the appeal, the Supreme Court issued a stay of the execution on April 21. Oklahoma’s Governor yesterday (April 22) issued an order refusing to acknowledge the Supreme Court’s order for a stay (“I cannot give effect to the Order by the Honorable Court…“), instead issuing her own order delaying the execution for just 7 days and ordering the execution to occur on April 29.



Colorado: House approves Underfunded Courthouse Facility Cash Fund; provides $1.5 million for courthouses

April 22nd, 2014 by Bill Raftery

Last week the Colorado House gave its approval to HB 1096, a plan to create an Underfunded Courthouse Facility Cash Fund and put $1.5 million towards building and remodeling courthouses in the state.

Under HB 1096 a seven member commission would be created to administer the fund. The commission would be authorized to issue grants for specific projects

  • commissioning master planning services
  • matching funds or leveraging grant funding opportunities for construction or remodeling projects
  • addressing emergency needs due to the imminent closure of a court facility (“imminent closure” defined as a court facility with health, life, or safety issues that impact court employees or other court users and that is designated for imminent closure by the state court administrator in consultation with the state’s risk management system or other appropriate professionals.)

Specifically excluded from funding are purchases of furniture, fixtures, or equipment or as the sole source for new construction; it may be the sole source for remodeling if the funding is associated with the imminent closure of a court facility.

HB 1096 has been assigned to the Senate Judiciary Committee.

Oklahoma: Effort to remove power of lawyers in merit selection system faces April 24 deadline

April 18th, 2014 by Bill Raftery

The effort to end Oklahoma’s practice of allowing lawyers to elect 6 of the 15 seats on the state’s merit selection commission is facing a key deadline next week. SJR 21, as approved by the House Rules Committee last week, would keep the 6 dedicated seats for lawyers on the Judicial Nominating Commission but provides that the House and Senate leaders would select them.

Despite passage by the House Rules Committee on April 9, SJR 21 has still as of this writing not been brought to the House floor. Moreover, the bill would have to be voted on by Thursday, April 24 in order to avoid a legislative deadline for action.

Louisiana: Unanimous House committee approves repeal of mandatory judicial retirement age, but what will the full House do?

April 18th, 2014 by Bill Raftery

The effort to repeal Louisiana’s mandatory judicial retirement age was approved by the House Judiciary Committee earlier this week on a 12-0 vote. HB 96 would put a constitutional amendment on the November 2014 ballot that would delete the existing mandatory judicial retirement provisions. HB 96 is effectively identical to SB 11 which was approved unanimously by the Louisiana Senate on April 1; the only difference in the two being the ballot language:

SB 11 ballot language: Do you support an amendment to remove provisions establishing seventy years of age as the age beyond which judges shall not remain in office?

HB 96 ballot language: Do you support an amendment to remove the constitutional requirement that a judge retire upon attaining the age of seventy, or if his seventieth birthday occurs during his term, that he retire upon completion of that term?

HB 96′s next stop is the House Civil Law and Procedure Committee. A version of the bill was approved unanimously by that committee last year. Assuming a similar approval the bill goes to the full House, which last year was unable to come up with the 2/3rds needed for passage.

Missouri Senate committee approves bill that nullifies federal gun laws and prohibits state courts from enforcing them; allows for suits against state judges who enforce such laws

April 16th, 2014 by Bill Raftery

Yesterday the Missouri Senate General Laws Committee gave its approval to HB 1439, a bill that unilaterally declares void “federal statutes, executive orders, administrative orders, court orders, rules, regulations, or other actions which restrict or prohibit the manufacture, ownership, and use of firearms.”

While such attempted nullification bills have become more commonplace in state legislatures in recent years, Missouri’s HB 1439 includes provisions that prohibit state court judges from recognizing such laws or federal court orders: “It shall be the duty of the courts…of this state to protect the rights of law-abiding citizens to keep and bear arms within the borders of this state and to protect these rights from the infringements defined in section 1.322.”

No “public officer or employee” would be permitted to enforce or attempt to enforce those federal gun laws/court orders. Additionally, were a judge to do so he or she “shall be liable to the injured party in an action at law, suit in equity, or other proper proceeding for redress…Neither sovereign nor official or qualified immunity shall be an affirmative defense in such cases.”

The bill now likely goes to the Senate Rules Committee before advancing to the floor.


Bans on court use of sharia/international law: are there the votes in the FL Senate this year? And what about a MO veto?

April 15th, 2014 by Bill Raftery

The 2014 efforts to ban state court use of international or foreign laws in general, and sharia law in particular, are effectively over save for two states. Since I last updated this in early March the only movement has been in Florida and Missouri, setting the stage for a possible repeat of 2013.

Florida: The Florida House and Senate bills are presently on the floors of their respective chambers and could be voted on any day. However, when this occurred last year the House was able to pass its version on April 18, 2013. The Senate on the other hand did not have the votes to pass either its version or the House bill and wound up tabling (i.e. killing) a combined House/Senate bill in May 2013.

Missouri: Just like in 2013, the 2014 effort came out of the Senate General Laws committee. However, last year’s version was vetoed by the state’s governor citing among other things the possibility that the language was so broad it would void or at least jeopardize foreign adoptions. The 2013 veto was overridden by the Senate but failed to be overridden by the House by a single vote (108 out of 109 needed).

List of bills below the fold
» Read more: Bans on court use of sharia/international law: are there the votes in the FL Senate this year? And what about a MO veto?

Alaska: effort to alter merit selection withdrawn in Senate, effectively dead in the House

April 14th, 2014 by Bill Raftery

The effort to change the makeup of the Alaska Judicial Council, which serves as both the judicial nominating commission and the judicial evaluation commission in the state, appears dead. The author of the lead bill (SJR 21) withdrew the bill Saturday April 12 after announcing he was unable to get the 2/3rds vote (14 out 20 senators) needed for approval. The plan would have allowed the governor to pick 6 out 10 members of a revised Judicial Council (details here). Meanwhile, the House version (HJR 33) had been dormant pending the outcome of the Senate’s actions on its version. It now appears unlikely that bill will come back up this session.

Louisiana House approves plan to create human trafficking courts

April 11th, 2014 by Bill Raftery

On April 8 the Louisiana House unanimously approved¬† HB 569, a bill to authorize the creation of “human trafficking courts”in the state. Current state law permits District Courts to create specialized divisions for “criminal, civil, drug court, driving while intoxicated court, mental health court, misdemeanor, traffic, juvenile, violent crimes or homicides, or other specialized subject matter jurisdiction.” HB 569 would add human trafficking court to that list.

Should such a special division/section of the District Court be created, the judge assigned to the court would be required to have training in issues related to human trafficking and support services available.

HB 569 is now in the Louisiana Senate where it has been assigned to the Judiciary B committee.

Oklahoma House committee approves on 6-1 party vote plan to strip state bar of power to name merit selection commissioners, but is it constitutional?

April 10th, 2014 by Bill Raftery

Yesterday the Oklahoma House Judiciary Rules Committee gave its approval to a heavily modified version of SJR 21 based on the House’s reading of the state’s constitution. News coverage can be found here.

Under SJR 21 as passed by the Senate in March 2013 ended merit selection in the state and replaced with a quasi-federal system (governor to appoint any qualified person, judicial nominating commission allowed to make only advisory recommendation, Senate confirmation.)

The House amended version of SJR 21 converts the bill from a constitutional amendment to a bill/proposed statute. SJR 21 as amended keeps the merit selection element (i.e. the governor is allowed to pick only from a list selected by the judicial nominating commission) and changes the commission membership. The 6 attorney members, rather than being selected by the state bar as is presently the case would be chosen instead 3 by the Senate President (from Congressional Districts 1, 2, and 5) and 3 by the House Speaker (Districts 3, 4, and 6). It also vacates the current 6 attorney members from the commission.

The bill claims the power to change the makeup of the judicial nominating commission without resorting to a constitutional amendment based on language from Art. VII-B Sec. 3(a)(2) that identifies the 6 commission seats for attorneys (emphasis added)

six (6) members, one (1) from each congressional district established by the Statutes of Oklahoma and existing at the date of the adoption of this Article who are, however, members of the Oklahoma Bar Association and who have been elected by the other active members of their district under procedures adopted by the Board of Governors of the Oklahoma Bar Association, until changed by statute

It is not clear of “until changed by statute” refers to the legislature’s ability to change in its entirety of 3(a)(2), only “procedures adopted by the Board of Governors of the Oklahoma Bar Association”, or some combination of some elements in 3(a)(2) or others.