Oklahoma bill would deny judges salaries, use judicial disciplinary system to remove judges who recognize same sex marriage licenses

At least one member of the Oklahoma House is now prepared to join fellow legislators in South Carolina and Texas willing to prohibit salaries to judges and other state or local employees who recognize same sex marriage licenses. However, the Oklahoma plan goes further and contemplates outright removing judges from office.

Using language that is an almost word for word copy of the Texas bill (HB 623), Oklahoma HB 1599 provides (Update 1/23/15 10:51 with finalized language)

No employee of this state and no employee of any local governmental entity shall officially recognize, grant or enforce a same-sex marriage license and continue to receive a salary, pension
or other employee benefit at the expense of taxpayers of this state.

The Oklahoma bill, however, goes further than either the South Carolina (which only threatened the judge with forced recusal cases involving same sex marriage licensees) or Texas (which was silent) and specifically makes such recognitions an offense subjecting the judge to removal from office

If a judge violates this act, the judge shall be removed from office pursuant to Section 1 of Article VIIA of the Oklahoma Constitution.

That particular section does not refer to the state’s impeachment of judges (Article VIII); perhaps because it is not 100% clear the state legislature could impeach a local trial judge. Instead, the bill uses the state’s judicial disciplinary body (Court on the Judiciary) as the method of removal for “judges of any court.”

§ 1. Removal of judges from office – Compulsory retirement – Causes.

(a) In addition to other methods and causes prescribed by the Constitution and laws, the judges of any court, exercising judicial power under the provisions of Article VII, or under any other provision, of the Constitution of Oklahoma, shall be subject to removal from office, or to compulsory retirement from office, for causes herein specified, by proceedings in the Court on the Judiciary.

(b) Cause for removal from office shall be: Gross neglect of duty; corruption in office; habitual drunkenness; commission while in office of any offense involving moral turpitude; gross partiality in office; oppression in office; or other grounds as may be specified hereafter by the legislature.

Like the Texas and South Carolina bills, Oklahoma HB 1599 also purports to make the law itself immune from constitutional challenge by prohibiting state judges from overturning it

The courts of this state shall dismiss any challenge to any portion of the Preservation of Sovereignty and Marriage Act, with an award of costs and attorney fees to defendants.

HB 1599 has been prefiled for the 2015 session set to start on February 2.

 

OK: Bill allows state’s top judges to criminally charge delegates to any future Art. V constitutional conventions

I mentioned last year here and here a series of bills that first started in Indiana that would put state judges in the position of sitting as an advisory body and/or grand jury over delegates in the event of some future constitutional convention under Article V of the U.S. Constitution. Oklahoma’s legislature now appears prepared to consider a similar measure.

Like the Indiana (law), Florida, Georgia (law), and Mississippi efforts before it Oklahoma SB 53 would take three of the state’s top judges (chief justice of Supreme Court, chief judge of Court of Civil Appeals, presiding judge of District Court in Oklahoma County) and make them an “advisory group” to enforce the state legislature’s instructions to any future Article V delegates. The judges would have to give their opinion if a delegate’s vote violated the legislature’s will; a delegate would also be allowed to get the group’s advice ahead of any action at the convention. If the judges determined the delegate exceeded the legislature’s directions, they would refer to delegate to the state’s Attorney General for prosecution for the new crime of failure to adhere to the legislature’s instructions.

While Indiana and Georgia enacted versions with judges serving in this advisory and quasi-grand-jury capacity, other states have been less inclined. The Florida House version of this bill, for example, removed the judge(s) from the advisory group when it was noted such a provision would violate the separation of powers provisions in the Florida constitution.

SB 53 has been prefiled for the 2015 session.

Oklahoma Legislative Year in Review: trial judges now make more $$$ than appellate judges, judges carrying guns in courthouses

Law

HB 2998 Specifically provides all court records considered public records and subject to Oklahoma Open Records Act, unless otherwise identified by statute to be confidential. Allows courts to seal record or portion only if a compelling privacy interest exists which outweighs the public’s interest in the record. Requires Supreme Court of Oklahoma immediately make rules regulating the display of court records online to ensure that all online data is displayed uniformly in all counties. Requires court clerks obey and follow the rules.

HJR 1096 Allows salary increases for trial judges, but not for appellate judges, as recommended by Board on Judicial Compensation. Specifies increase does not apply to state officials whose salaries are tied to trial judges.

SB 1442 Provides any judge of the district court to carry firearm into courthouse so long as they complete special training for court officials developed by Council on Law Enforcement Education and Training (CLEET). Provides CLEET to issue cards demonstrating judge meets education standards and is eligible to carry into courthouse.

Wisconsin becomes third state to consider tinkering with mandatory judicial retirement age to push judges off appellate courts

In the process of examining the issue changes to mandatory judicial retirement ages, I’ve noted that in many cases these are enshrined in state constitutions, making them effectively impossible to increase as voters have rejected such efforts. Now, however, there is a new pattern emerging to impose new, or decrease existing, retirement ages to remove currently serving appellate justices and judges, most recently in Wisconsin.

The first recent effort was in Kansas in May 2013. Members of the Kansas legislature, angry at the Kansas Supreme Court’s decisions proposed reducing the mandatory retirement age by statute from 75 (or more specifically the end of the term in which they hit 75) to the day that the appellate judge turned 65. I discussed that effort, formally introduced as HB 2415 in this post here.

The second effort was in Oklahoma in January 2014. While the state’s constitution allowed the legislature to set whatever age it wished for mandatory judicial retirement, the legislature never had. However members of the Oklahoma Senate, angry at the Oklahoma Supreme Court’s decisions striking down several laws proposed instituting for the first time such a retirement age. The bill (SB 1897) would have had the effect of removing almost all of the judges from the state’s Supreme Court and its other top court the Court of Criminal Appeals as discussed here. A similar bench-clearing bill (HB 3378) was introduced in the House. SB 1897 was approved by the Senate Pensions Committee but died before coming to a floor vote.

The third effort, alluded to just this week, is in Wisconsin. Like Oklahoma, the state’s constitution doesn’t specify a mandatory retirement age but leaves it to the legislature to decide (so long as it is not below age 70). A member of the Wisconsin legislature has begun circulating a draft bill to impose a mandatory retirement age on judges of 75 or 80. The purported target of the bill is 80 year-old Chief Justice Shirley Abrahamson. The Chief Justice is already the indirect target of another bill, proposed and passed last session, that could end her chief justiceship. The state’s constitution provides the longest serving justice is automatically chief justice, in this case Abrahamson. However, a constitutional amendment passed in 2014 and up for re-passage in the 2015/2016 session would allow the court’s members to pick the chief justice.

Some additional background.

Looking just at appellate judges 33 states have a mandatory judicial retirement age for appellate judges. Of these, 18 states have age specified in the state’s constitution: Alabama, Alaska, Arizona, Colorado, Connecticut, Florida, Hawaii, Louisiana, Maryland, Massachusetts, Michigan, Missouri, New Hampshire, New Jersey, New York, Ohio, Pennsylvania, and Wyoming.

The remaining states implicitly or explicitly grant the legislature some room for activity in this area.

  • Use of retirement systems/pensions to force out of office: Several states such as Arkansas, Kansas, South Carolina, and South Dakota have no specific constitutional provision for the mandatory retirement of the state’s judges. Instead, there are statutes that specify if a judge does NOT retire at a particular age they forfeit some/all/most of their retirement and pension. This system was relatively common in the early 1900s; California had a similar system of diminishing judicial benefits to entice retirement that was upheld as constitutional (Rittenband v. Cory, 159 Cal. App. 3d 410) but later abandoned (AB 1297 of 1991).
  • Explicit but limited delegation to the legislature: A few states grant the legislature a “range” within which to work. Oregon’s constitution sets the age at 75 but allows the legislature to lower it but never beyond age 70. Vermont’s constitution lets its legislature pick any age from 75 to 90 or if the legislature opted not to pick an age, 75 (the legislature set it at 90). The state of Washington’s constitution sets the mandatory retirement age at 75 but then lets the legislature lower it 70. Wisconsin allows the legislature to set any age for mandatory retirement that is above 70. So far, they have declined to do so.
  • Explicit unlimited delegation to the legislature: The legislatures of Illinois (Art. 6, Sec. 15), Indiana (Art. VII, Sec. 11), Iowa (Art. V, Sec. 18), Minnesota (Art. 6, Sec. 9), North Carolina (Art. IV, Sec. 6), Oklahoma (Art. VII, Sec. 11), and Utah (Art. VIII, Sec. 15), have effectively unfettered discretion to set a mandatory judicial retirement age as they see fit, however there are constitutional limits. The Illinois Supreme Court struck down its mandatory retirement statute on equal protection grounds – the way the law was drafted judges who hit the age of 75 were “automatically” retired, but a 75 year old who never served in judicial office could run for a judgeship and win (Maddux v. Blagojevich, 233 Ill. 2d 508 (2009)).

 

 

Changing civil jurisdiction thresholds – Part 4

This fourth in a series of posts looks at legislative efforts to change the civil jurisdiction thresholds in state limited and general jurisdiction courts in the last decade. For a listing of all current civil jurisdiction thresholds, click here.

New Mexico to South Carolina below the fold.
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Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 5

This fifth installment looks at efforts to change state constitutional grants of rulemaking authority to courts of last resort, typically called the “supreme court”, or judicial councils.

My colleagues here at the National Center have a listing of all such provisions here.

New Mexico to South Carolina below the fold.

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New law makes Oklahoma only state where trial judges make more money than appellate judges

I’ve mentioned here and here the difficulty Oklahoma has had in terms of increasing judicial salaries through their linking process; the salaries of the state’s executive branch officials are equal to those of judicial officials. For example state law provides the Governor of Oklahoma’s salary is to be equal to that of the Chief Justice of the Oklahoma Supreme Court. As a result, there hasn’t been an increase in judicial salaries since 2008 as lawmakers have rejected recommendations by the state’s Board on Judicial Compensation (such as HJR 1093 of 2012 rejecting a proposed 6% cost of living increase) out of concern they were also increasing executive branch salaries.

This year, however, the Oklahoma legislature approved, and the Governor has now signed, an increase in judicial salaries for trial judges only (i.e. District Court Judges, Associate District Court Judges, and Special District Court Judges) as HJR 1096 of 2014. This resulted in an increase for salaries for District Attorneys as their salaries are linked as 98% of District Judges.

The resulting salaries

District Court Judges $131,835
Associate District Court Judges $121,596
Special District Court Judges $111,356

However, there is no additional appropriations and the salary increases will have to come out of current budgets.

As my colleagues here at the National Center for State Court’s Judicial Salary Tracker have confirmed, this makes Oklahoma the only state where trial judges make more than appellate judges; judges of the Oklahoma Court of Civil Appeals will still make $130,410, or $1,425 less than that of a District Court Judge.