Posts Tagged ‘Oklahoma’

Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 5

July 22nd, 2014

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.

» Read more: Efforts to change state constitutions to remove/alter Judicial Council or Supreme Court rulemaking authority – Part 5

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

June 9th, 2014

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.

North Carolina Senate budget changes way/structure courts can strike laws as unconstitutional; fourth state in 4 years to consider such an effort

June 2nd, 2014

North Carolina’s Senate budget passed early Saturday morning included a myriad of changes to statutes, but one item in particular stands out as a Gavel to Gavel reader pointed out to me via email. The Senate-approved budget changes the way the state’s trial courts can strike down a law as unconstitutional, this apparently in anger at a recent decision by a trial judge striking down a 2013 NC law that would strip teachers of tenure in exchange for raises.

Under Section 18B.16.(a) of SB 744 as approved by the Senate any challenge to a statute on constitutional grounds would have to be tried or determined by panels of 3 Superior Court judges. The bill is based on a 2003 law that allows for challenges of redistricting lines to be heard by a three-judge panel of the Superior Court of Wake County. This new version, however, goes beyond Wake County and requires that the three judge panel be selected by the Chief Justice from certain parts of the state (1 from First or Second Judicial Division, 1 from Seventh or Eighth, 1 from Third, Fourth, Fifth, or Sixth). Media coverage of the proposal can be found here.

As I noted when this came up in the context of Oklahoma, no state provides for three-judge panels to address the issue of striking ANY law as unconstitutional; where they do exist they usually are created to address a particular, limited subject such as redistricting (NC & WI) or school funding (KS). My review of those laws is here.

North Carolina is now the fourth state in 4 years to try to change the ways judges can strike down state laws or rule against the legislature.

  1. Oklahoma (2014)- HB 2686 would require a challenge to the constitutionality of any state statute be heard by a panel of the state’s main trial court (District). The panel would be made of “at least three district judges”: the original district judge assigned and “additional judges assigned randomly” to the case. The House approved the bill 55-33 in March 2014 but the Senate Judiciary Committee rejected it in April.
  2. Michigan (2013)- SB 652 began with anger by the legislature over decisions by the state’s Court of Claims (a specially designated judge of the Ingham County Circuit Court, where the capital is located) over Michigan’s emergency manager and right-to-work laws. Under SB 652 as enacted in the constitutionally minimum amount of time the Court of Claims is no longer an Ingham County Circuit Court Judge but 4 judges of the state’s Court of Appeals chosen by the Chief Justice. Details here and here.
  3. Wisconsin (2013/2014)- As introduced, AB 161 provided that a trial judge/court could declare a law unconstitutional but any order by the trial court prohibiting enforcement was automatically stayed and the law allowed to remain in effect if the state filed a petition for interlocutory review was filed within ten days after the entry of the order. It derived from a case in which a Dane County judge struck down a state law (Act 10) the weakened collective bargaining in the state. What was eventually enacted provided that “If a circuit court or a court of appeals enters an injunction, a restraining order, or any other final or interlocutory order suspending or restraining the enforcement of any statute of this state, the injunction, restraining order, or other final or interlocutory order is immediately appealable as a matter of right.”
  4. Oklahoma (2012)- SJR 84 was a constitutional amendment that would have stripped the state’s Supreme Court of the power to strike down any law passed by the legislature as unconstitutional. Instead, the legislature itself would create an “Ad Hoc Court of Constitutional Review” in such cases. It was filed in the Senate Judiciary Committee but proceeded no further.
  5. Wisconsin (2011)- angry that challenges to state laws were being heard and struck down by judges of Dane County, the Wisconsin legislature enacted SB 117. Under it, actions in which state government is the sole party may be filed in any county in the state. Appeals must be heard in a Court of Appeals district  other than the one in which the case was filed. Moreover, the appellant (the state, in cases where a law is struck down at the trial level) would be allowed to pick the Court of Appeals district they want the appeal heard in.




Oklahoma: House votes to give only trial judges raises; delinks at least for this year judicial salaries to those of other officials

May 23rd, 2014

I mentioned previously Oklahoma’s practice of linking judicial salaries to that of other officials, making a raise in salary for the Chief Justice of the Supreme Court, for example, result in a raise for the Governor. That linkage has lead in the past to legislators refusing to give salary increases to judges.

Earlier this week, however, the Oklahoma House voted to effectively sever the link between judicial and other salaries for this year only and only for local/trial judges. HJR 1096 as introduced would have simply rejected the judicial salary increases. As amended and approved on a 54-34 vote in the House trial judges and local prosecutors would get about a 6% increase:

District Court Judges $ 131,835.00
Associate District Court Judges $ 121,596.00
Special District Court Judges $ 111,356.00

Those increases would not apply to the appellate courts or the Governor, Lt. Governor, Attorney General, and other state officials whose salaries are measured as a percentage of trial judge’s salaries.

The plan now goes to the Senate for its approval.


Oklahoma: all court records presumptively public records, Supreme Court to issue uniform rules for online records and local clerks must obey them

May 1st, 2014

Amid the debate over what court records information should be available online, Oklahoma’s legislature passed and its governor has now signed a law that addresses both paper documents and the future of online records.

HB 2998 of 2014 as enacted specifically provides all court records are public records

All court records, as defined by Section 32.1 of Title 12 of the Oklahoma Statutes, shall be considered public records and shall be subject to the provisions of the Oklahoma Open Records Act, unless otherwise identified by statute to be confidential. If confidentiality is not required by statute, the court may seal a record or portion of a record only if a compelling privacy interest exists which outweighs the public’s interest in the record.

The law then goes on to specify that a judge must make written findings of fact and conclusions of law with respect to the compelling privacy interest and that the sealing of the records must be narrowly tailored.

The law further requires the state’s Supreme Court create rules regarding the display of court records online to ensure that all online data is displayed uniformly in all counties. “Court clerks shall obey and follow the rules.”

HB 2998 has an effective date of November 1, 2014.

House effort to reduce Oklahoma Bar’s power to name members of merit selection commission dies on 46-48 vote; effort to eliminate power rejected 31-65

April 25th, 2014

The effort in Oklahoma to reduce or remove the power of the state’s attorneys to select members of their merit selection commission failed yesterday in the House floor.

Several House amendments were offered to SJR 21 that would reduce or remove the power of the state’s lawyers to name 6 members of the Oklahoma Judicial Nominating Commission (JNC). The first vote was on a plan to reduce the bar’s power by letting them elect only 2 out of  the 6 seats assigned to lawyers. That substitute amendment to Amendment 1 was rejected 46-48 (out of 101 total members).

After that amendment to the amendment failed, other amendments introduced were withdrawn or tabled. With the substitute amendment having failed, debate on the main bill started. The main proponent argued that the perception was that the bar had “drifted to the left”, had a “real” but “subtle” bias, and that the lawyers favored the plaintiff’s bar in terms of recommendations for judicial vacancies. Opponents argued that “nothing was broken”, cited to separation of powers concerns, and noted that SJR 21 would have perhaps unconstitutionally vacated the offices of the 6 currently serving attorneys in those seats.

With the loss of the amendment to reduce the role of the state’s lawyers on the JNC, the ultimate House vote on outright removing the bar’s power and letting the legislative leaders pick all 6 JNC attorney members failed on a much more lopsided vote of 31-65.

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

April 24th, 2014

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

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.



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

April 18th, 2014

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.

Bills to authorize the creation of veterans courts advance in Arizona, Georgia, Washington; South Carolina version lets prosecutor pick the judge and doesn’t let judge get a salary

March 20th, 2014

Many states have statues or rules of court that authorize the creation of “veterans courts”, divisions of trial courts that handle criminal cases involving veterans to provide them the treatment they need to address mental health and other issues that may  have lead to the criminal case in the first place. This year several legislatures took up such authorizing legislation.

Arizona HB 2457 amends an existing law authorizing the creation of homeless courts in the state’s lower tier criminal courts (Justice and Municipal) to include the creation of “veterans court and mental health court” divisions.  HB 2457 has so far advanced unanimously though its House committees, the full House, and its Senate committees.

Georgia SB 320 is similar to the Arizona bill but not identical. Under the Georgia bill veterans court divisions can be created in any court with criminal jurisdiction. Moreover, the Georgia bill is more detailed in terms of the operations of the veterans courts, specifying they are to operate under standards and practices to be established and updated by the Judicial Council of Georgia. Prosecutors “may” dismiss cases of those who successfully complete the veterans court program and courts “may” reduce or modify any sentences related thereto but specifically not below statutory minimums. SB 320 cleared the House on March 11 and is or will be before the governor for approval.

Illinois, which statutorily authorized the creation of veterans courts some years ago, has a bill (HJR 75) to encourage their use and creation.

Louisiana SB 532 is somewhere between the Arizona and Georgia bill in terms of jurisdiction: the state’s main trial court (District) is authorized to create veterans court divisions but the lower criminal courts are not. The bill provides that while the District Judge makes the final determination of eligibility for the veterans court program, the district attorney makes the final determination on  revocation, extension, or dismissal. SB 532 is before the Senate Health and Welfare Committee.

Mississippi had a series of bills to create veterans court divisions (HB 889, SB 2029, SB 2111). Only HB 889 made it out committee before dying in the House appropriations committee.

Nebraska LB 1105 expands an existing statute authorizing drug courts and problem solving courts to include veterans and servicemembers court divisions. LB 1105 had a hearing before the Senate Judiciary Committee on February 20 but proceeded no further.

New Jersey has two veterans court bills. AB 1916 authorizes a pilot program in a single county (Burlington) for nonviolent offenders. This bill has been submitted every year for the last 3 legislative sessions in the Assembly and/or the Senate but never received committee approval. It is currently in the Assembly Military and Veterans’ Affairs Committee. The second such bill, SB 227 is broader, authorizing the pilot program in two “vicinages” (collections of one or more counties) one of which must  be Burlington County. It was first introduced last in the 2012/2013 session and has been reintroduced. It is pending in the Senate Judiciary Committee.

Oklahoma HB 2802 is just the latest attempt going back to at least 2009 to provide statutory authorization for veterans court divisions. This version failed to advance out of committee.

South Carolina stands alone from the other efforts at veterans courts. Under HB 3014 and HB 4859 the prosecutor (circuit solicitor) rather than an individual court judge or chief judge is authorized to establish the program. The state’s chief justice would assign judge(s) to the division but only “upon the recommendation of the circuit solicitor.” Moreover, the judge assigned would be required to attend training established by the prosecutor. Finally, the judge assigned could not be paid a salary and must serve on a voluntary basis. Prior efforts gave similar powers to the Attorney General, but left the selection of the judge to the Supreme Court “upon the recommendation of the Chief Administrative Judge for that judicial circuit.” (HB 3179 of 2011) HB 3014 passed the full House and came out of the Senate Judiciary Committee last year but has not moved since. HB 4859 was introduced earlier in March 2014 and has been assigned to the House Judiciary Committee.

Washington HB 2556 makes two statements with regard to authorizing therapeutic courts in general and veterans courts in particular. In section 2 “The legislature recognizes the inherent authority of the judiciary under Article IV, section 1 of the state Constitution to establish therapeutic courts…” including specifically “Veterans treatment court.” In Section 3, however, the legislature authorizes every trial and juvenile court in the state to establish and operate such courts. HB 2556 passed the full House and the Senate Law & Justice committee in February and remains pending in the Senate Rules Committee. Another bill, SB 5129 introduced in 2013 and carried over into 2014 specifically authorizes veterans’ courts established by the Chief Justice, but has never been heard in committee.