The Oklahoma Senate yesterday approved its version of HB 3162, a constitutional amendment that would restructure the way appellate judges are chosen in the state (media report here).
HB 3162 as approved by the full Senate would effectively replace the current Judicial Nominating Commission (JNC) system with a new one that would serve in an advisory capacity only. Key provisions would include
- Governors would be free to appoint anyone to an appellate court. Currently the JNC submits a list of names for the governor to select from.
- The JNC’s new role would be to review the governor’s appointee as either “qualified” or “not qualified” within 90 days after appointment.
- The governor’s appointee would be subject to Senate confirmation. There is a default provision: if the Senate fails to confirm the nominee within a set number of days, confirmation would occur by default (“Inaction on an appointee by the Senate within the specified time periods shall constitute confirmation of such appointee.”)
The Senate’s version differs markedly from version the House adopted last month which revised the JNC’s membership and provided for a joint House-Senate committee to confirm individuals.
HB 3162 as amended by the Senate now goes back to the House.
A plan to place the Oklahoma Judicial Nominating Commission (JNC) under the state’s Open Meeting Act was rejected by the House 44-41 this afternoon. The bill (SB 770) previously approved 40-4 in the Senate would have expanded the definition of “public body” subject to the Act to include the JNC. 16 members of the House had excused absences from the vote and a notice to reconsider the vote has already been filed.
A new plan introduced this week in the Oklahoma House would make decisions of the state’s supreme court subject to being overturned by popular vote.
HJR 1069 would amend the constitutional provision that establishes the state supreme court’s appellate and original jurisdiction. Any decision of the state’s supreme court regarding the constitutionality of a law would be subject to an override by popular vote.
provided, in any case in which the Supreme Court issues an opinion on the constitutionality of a law, the opinion may be challenged and overturned by a vote of the people either through the referendum petition process or by a referendum proposed by the Legislature in the manner provided by law
Interestingly the provision does not apply to Oklahoma’s other court of last resort, the Court of Criminal Appeals.
HJR 1069 has been filed but not yet assigned to a committee.
The Oklahoma House yesterday approved a constitutional amendment to overhaul the state’s merit/commission system used to select appellate judges and turn over control to the governor and state legislative leaders.
HB 3162 as approved by the full House would effectively replace the current Judicial Nominating Commission (JNC) system with a new one. Key provisions would include
- A majority (8/15) of members of the JNC would serve at the pleasure of the governor and legislative leaders; currently JNC members serve fixed terms.
- The JNC would no longer submit a list of 3 names to the governor. Instead, the JNC would be required to forward all those who meet the constitutional and statutory qualifications for office. The JNC would be allowed to “score” each of the nominees sent on a confidential 1-10 scale.
- House/Senate committee confirmation: The original plan called for the Senate to confirm nominees. Under a floor amendment the HB 3162 now calls for confirmation by a 10-member joint House/Senate committee. The minority party in each chamber would get at least 1 seat per chamber.
One floor amendment that barely rejected (motion to table was only approved 47-46) would have let the legislature “veto” any sitting judge up for re-election by 2/3rds vote. If “vetoed” the judge would be prohibited from re-election and the office deemed vacant.
HB 3162 now goes to the Senate which in recent years has approved its own plans to alter or end entirely the state’s JNC.
Oklahoma currently has no mandatory judicial retirement age, although the state constitution does allow the legislature to create one.
Notwithstanding the provisions of this Article relating to terms of office, the Legislature may provide by statute for a maximum age qualification for election or appointment to office and for the retirement of Justices and Judges automatically at a prescribed age or after a certain number of years of service, or both. The compensation, age of retirement and procedure for retirement shall be prescribed by statute.
Last session this provision prompted the senate to attempt to force many if not most of the judges of the state’s appellate courts to be removed from the bench via retroactive retirement ages. This session it looks as if the House it taking the lead but dropping the retroactive provision.
HB 2339 as approved by the Appropriations and Budget Committee’s Judiciary Subcommittee earlier this week would apply only to judges elected/appointed after November 1 of this year.
For members whose initial service as a member of the [Uniform Retirement System for Justices and Judges] begins on or after November 1, 2016, if such member is serving as a member of the Oklahoma Supreme Court, the Oklahoma Court of Criminal Appeals or any division of the Oklahoma Court of Civil Appeals and reaches the age of seventy-five (75) years, such member shall be required to cease participation in the System and shall retire. The member shall be allowed to continue service and participation in the System for such period of time after reaching the age of seventy-five (75) as may be required to complete the application for retirement and for the System to process the application subject to a maximum period of ninety (90) days after the member reaches the mandatory retirement age prescribed by this subsection.
The mandatory retirement age would not apply to trial court judges.
HB 2339 now goes to the full House Appropriations and Budget Committee.
Oklahoma House committees have already approved two different plans to change the way appellate judges are picked in the state. First it was the House Elections and Ethics Committee (HJR 1037), then the House Rules Committee (HJR 1042), now the House Government Oversight and Accountability Committee has approved a third proposal (HB 3162).
HB 3162 as approved would amend the state’s constitution in 4 key ways.
Judicial Nominating Commission (JNC)
The state’s constitution creates a 15-member Judicial Nominating Commission (JNC):
- 6 non-attorney members appointed by district by the Governor to a 6 year term
- 6 attorney members elected by the active member of the bar in the district to a 6 year term
- 1 non-attorney members selected from the state at-large by the Speaker of the House to a 6 year term
- 1 non-attorney members selected from the state at-large by the Senate President Pro Tempore to a 6 year term
- 1 non-attorney members selected from the state at-large by the other members of the JNC to a 6 year term
HB 3162 juggles the terms. The 8 members picked by the Governor (6), Speaker (1) and President Pro Tempore (1) would now serve at the pleasure of the appointing authorities.
Send all names
Moreover, and consistent with prior proposals, the JNC would no longer submit a list of 3 names to the governor. Instead, the JNC would be required to forward all those who meet the constitutional and statutory qualifications for office. The JNC would be allowed to “score” each of the nominees sent on a confidential 1-10 scale.
Any nominee chosen by the governor would be subject to Senate confirmation.
Trial court interim vacancies
The bill would put into the constitution the existing statutory scheme for filling interim District Court vacancies: the JNC would vet all those who meet the constitutional and statutory qualifications for office and send a list of 3 to the Governor.
Last week the Oklahoma House Elections and Ethics Committee approved on a 4-3 vote a plan to remove all sitting members of the state’s appellate courts and end merit/commission based selection for the courts. Yesterday the House Rules committee approved 8-2 its own constitutional amendment (HJR 1042 as amended) which keeps the merit/commission system but with several substantial changes.
The most critical change may be the elimination of the restriction that the state’s Judicial Nominating Commission (JNC) send a list of only 3 names to the governor. Instead, the JNC would send a ranked list of all qualified applicants; the list would be public but the rankings private.
In addition HJR 1042 as amended includes several provisions regarding how the JNC’s vets applications
- All JNC rules must be approved by the Supreme Court and both houses of the legislature
- Applicants cannot be asked information regarding party affiliation and JNC members cannot independently seek such information out
- Applicants who are sitting judges cannot be asked about cases currently pending before the judge
- Applicants cannot be asked about cases that may come before the applicant if appointed
- The JNC would have to provide the governor a detailed listing of the criteria used to vet applicants
- The JNC would have to proof to the governor the above restrictions and processes were adhered to
- Any person would be able to challenge (presumably in court) the JNC’s processes under laws to be passed by the legislature
If any member of the JNC violates these rules, the member would be removed and the list(s) they participated in would be voided. In addition the JNC would be obligated to create a website and publicize its rules/processes.
HJR 1042 as amended now goes to the full House.