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.
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.