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

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.