A resolution filed in the Oklahoma House earlier this week directs the state’s judiciary in general and the state’s Supreme Court in particular to not “interfere” with the state’s abortion laws.
HR 1004 as introduced starts by rejecting the U.S. Supreme Court cases dealing with abortion, citing specifically Roe v. Wade and Planned Parenthood v. Casey. It then calls on state public officials, including judges and justices specifically, to “exercise their authority as appropriate in their respective jurisdictions to stop the murder of innocent unborn children by abortion.”
The next paragraph, however, is specifically directed at state judges.
THAT Oklahoma judges and specifically justices of the Oklahoma Supreme Court are directed not to interfere with this Legislature’ s right to clarify Oklahoma criminal law regarding abortion per Section 36 of Article V of the Oklahoma Constitution.
That particular section of the state’s constitution deals with the legislature’s power.
The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever.
The resolution appears to target two decisions by the Oklahoma Supreme Court from late 2016:
- In October 2016, the Oklahoma Supreme Court struck down a 2015 law (SB 642 of 2015) that dealt with restrictions on abortions (parental consent for minors, tissue preservation, inspection of clinics, and legal liability of abortion providers). That decision was 9-0.
- In December 2016 the court again ruled 9-0 that a law requiring doctors at abortion clinics to have hospital admitting privileges (SB 1848 of 2014) was also unconstitutional.
Earlier today the Oklahoma Senate Judiciary Committee approved a series of bills targeting the state’s appellate courts, this after the state’s Supreme Court (the court of last resort for civil matters) has ruled against the legislature in a variety of cases in recent years.
- SJR 14 as introduced requires appellate judges up for retention elections receive at least a 60% “yes” vote to remain in office.
- SJR 42 as introduced requires partisan elections for all appellate courts.
- SJR 43 as introduced ends merit/commission selection for the state’s appellate courts. Instead, the governor would nominate an individual and submit his/her name to the Judicial Nominating Commission for a review as “qualified” or “not qualified”. The nominee would then be subject to Senate confirmation.
- SJR 44 as introduced would keep the state’s merit/commission selection system but require the Judicial Nominating Commission send the Governor 5 names (currently 3) for consideration and allow the Governor to ask for another list, for a total of 10 names. Requires nominee be subject to Senate confirmation. Provides that if Senate fails to act within certain time frame(s) nominee is confirmed by default.
- SB 213 as introduced provides of 9 members of Supreme Court, 5 to be selected from Congressional Districts and 4 statewide.
- SB 699 as introduced requires all appellate judges retire when years of judicial service + age = 80. It appears this is retroactive, as prior efforts have been, meaning that many if not most members of the state’s appellate courts could be forced off the bench.
- SB 700 as introduced removes all attorney-chosen members of the Judicial Nominating Commission. Provides attorney-members to be selected by legislative leaders.
- SB 702 as introduced adjusts counties in each Supreme Court Judicial District.
All the bills have now been referred to the Senate Rules committee.
Many, but not all, states require their judges be “attorneys” or in some cases “practicing attorneys”. Now one member of the Oklahoma Senate wants to specifically require trial experience for the state’s main trial court (District), something no other state requires.
The state’s constitution already requires “a minimum of four years’ experience as a licensed practicing attorney” or service as a judge of some other court of record before taking to the District Court bench. The same constitutional provision also allows the legislature to add to these criteria (“and shall have such additional qualifications as may be prescribed by statute.”)
Under SB 708 of 2017 those “additional qualifications” would now include “experience as lead counsel in a minimum of three (3) jury trials brought to verdict prior to filing for such office or appointment.”
SB 708 has been prefiled for the 2017 session.
Efforts to tinker with the membership of state courts of last resort have surged in recent years, as I noted in this article. In many instances these efforts have been to expand courts which has led to accusations of “court packing”, however several efforts have focused on reducing numbers to remove justices that have garnered the ire of legislators.
Enter Oklahoma HB 1699 of 2017.
Under the bill the state’s Supreme Court (which is the court of last resort for civil matters; there is also another court of last resort called the Court of Criminal Appeals) would be reduced from 9 members down to 5.
The bill comes after years of acrimony by the legislature at the court’s decisions, including impeachment efforts and attempts to change the way the court is selected/appointed. For example HB 1699 was filed by a House member who had alluded to setting himself on fire over abortion rulings by the court.
Moreover, the state’s constitution allows for this sort of change by statute without voter approval, providing in operative part that the Supreme Court is to consist of “nine Justices until the number shall be changed by statute.”
HB 1699 has been prefiled for the 2017 session set to start in February.
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.