The Chair of the Oklahoma Senate Judiciary Committee has introduced a pair of bills last week that would effectively put control over the Code of Judicial Conduct into the hands of the legislature, remove references to judicial independence found in the current Code, and require any future changes made by the Supreme Court get the approval of the legislature first.
First, some background.
Most state constitutions have explicit language giving the state court of last resort the power to establish rules that are binding on the lower courts and their judges. In Oklahoma that reads:
Except with reference to the Senate sitting as a Court of Impeachment and the Court on the Judiciary, general administrative authority over all courts in this State, including the temporary assignment of any judge to a court other than that for which he was selected, is hereby vested in the Supreme Court and shall be exercised by the Chief Justice in accordance with its rules. The Supreme Court shall appoint an administrative director and staff, who shall serve at its pleasure to assist the Chief Justice in his administrative duties and to assist the Court on the Judiciary.
Based on that authority the Oklahoma Supreme Court created the Code of Judicial Conduct. For the second session in a row, however, members of the legislature want to restrict the court’s ability to make changes to the Code. In 2011/2012 this came as an effort to apparently cut and paste the existing Oklahoma Code of Judicial Conduct into law (HB 1611 of the 2011/2012).
SB 1894 of the 2013/2014 introduced by the Senate Judiciary Chair takes it a step further by rewriting the entire Code of Judicial Conduct and removing most references to an independent judiciary. Sections of the Preamble and Canon 1 would be eliminated from the new statutory Code.
- Preamble– An independent, fair and impartial judiciary is indispensable to our system of justice…[Judges] should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence
- Canon 1– A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
- Canon 1.2– A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and avoid impropriety and the appearance of impropriety.
The Senate bill is also coupled with another (SB 1747) that gives the legislature a veto over any changes made by the Supreme Court to the Code (emphasis added)
Any order of the Oklahoma Supreme Court modifying or repealing any provision of the Code of Judicial Conduct as it exists on the effective date of this act, or enacting a revision to the Code of Judicial Conduct as it exists on the effective date of this act, shall be submitted to the Legislature for its review as and in the manner that agency rules are submitted pursuant to the provisions of the Administrative Procedures Act. Any such order which is not specifically approved by the Legislature in a joint resolution, within thirty (30) legislative days of submission, shall not become effective. Any such joint resolution shall be subject to approval or veto by the Governor as and in the manner as are other bills or joint resolutions.
SB 1747 and SB 1894 have been prefiled for the 2014 session in the Senate Judiciary Committee.