Oklahoma debates legislative takeover of Code of Judicial Conduct; Senate version drops references to independent judiciary

For the fourth biennial session in a row Oklahoma’s legislature is debating taking control of the state’s Code of Judicial Conduct away from the state supreme court and placing it in the legislature, despite a constitutional provision prohibiting such a move. This latest iteration, however, includes a constitutional amendment to overcome that challenge.

First, some background.

The Oklahoma constitution currently includes a provision giving the state’s supreme court “general administrative authority” over all courts; included within that power is the power to write court rules such as the Code of Judicial Conduct.

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.

2015/2016

This year’s proposals take the form two statutes and a constitutional amendment. In the House, HJR 1064 of 2016 amends the state constitution to allow for a legislative takeover of the Code and the Rules of Professional Conduct for attorneys.

Rules of professional conduct for judges and attorneys shall be established by the people through the initiative process or by the Legislature by statute. Until such time as said rules are established pursuant to this section, the Code of Judicial Conduct for judges and judicial candidates and the Rules of Professional Conduct for attorneys in effect on the effective date of this amendment shall remain in effect.

HB 2857 takes select elements of the existing Code and rewrites others. It does include references to the need for an “independent” judiciary. Both the constitutional amendment and statute have been referred to the House Judiciary Committee.

On the Senate side, that chamber’s Judiciary Committee chair last year introduced a statutory version of the Code (SB 766 of 2015) with the elimination of any references to an independent judiciary (discussed here). The bill has been carried over into the 2016 session.

2013/2014

SB 1747 of 2014 made the Code of Judicial Conduct subject to the same rules and procedures as that of an administrative agency. Any changes to the Code would require the affirmative vote of the legislature to enact.

SB 1894 of 2014 created a statutory Code of Judicial Conduct and eliminated most references to an independent judiciary.

2011/2012

HB 1611 of 2011 appeared to copy select portions of the Code of Judicial Conduct into statute, including references to the need for an “independent” judiciary.

2009/2010

SB 1124 of 2009 provided that “The Legislature may by concurrent resolution disapprove any existing rule of the Code of Judicial Conduct.” Moreover, while it did not take away the Supreme Court’s power to make future changes to the Code, it did provide any such changes were subject to legislative approval/rejection. It was approved by the Senate Judiciary Committee but died on the Senate floor.

HJR 1028 of 2009 provided that an changes to the Code of Judicial Conduct or any other court rule would be subject to review by the legislature for approval, rejection, and/or amendment. If the legislature took no action within 30 days, the changes would be rejected. It was approved by the House Judiciary Committee but died on the House floor.