The Enid News and Eagle, Enid, OK

National and world

September 28, 2013

State Legislature responds to high court's rulings with appointments resolution

OKLAHOMA CITY — Despite some barbs from legislators in recent weeks over the judiciary’s power in Oklahoma, the chief justice of the state’s highest court downplayed the suggestion of tension between the two branches of government.

“First of all, I don’t see a conflict between the Legislature and the Supreme Court,” Chief Justice Tom Colbert told The Associated Press. “All of us, I think we have a good working relationship with the Legislature as well as the executive branch.”

But several members in the increasingly conservative Legislature are growing more vocal about their exasperation with the Oklahoma Supreme Court, which continues to strike down bills as unconstitutional. After the Supreme Court in June struck down a 2009 bill that made sweeping changes to the state’s tort laws, prompting the Legislature to return for a special session, Republican House Speaker T.W. Shannon, R-Lawton, quickly called for a legislative study on the idea of term limits for judges and the effectiveness of the judicial selection process.

Sen. Clark Jolley, the chairman of the powerful Senate Appropriations Committee, was even more direct in his criticism of the court and the process for selecting judges.

“The judiciary appoint themselves, and that’s a major problem,” said Jolley, R-Edmond. “It just underscores what I’ve been saying for several years now, and that is that the Oklahoma judiciary is not independent. It is not equal to the other two branches.”

The nine-member Oklahoma Supreme Court currently includes eight appointees by former Democratic governors, including six by former Democratic Gov. Brad Henry, and just one justice, James Winchester, appointed by a Republican. The chief justice position rotates among the nine justices.

Colbert declined to discuss any specifics of court rulings, but he said the high court’s general role is to ensure that laws presented to the court are constitutionally sound.

“Our responsibility is to interpret the laws and we, in interpreting law, must make sure that it’s consistent with the state and federal constitutions,” Colbert said. “And the other most important thing besides doing that is also to ensure that every decision is a fair and impartial decision.”

University of Tulsa law professor Chuck Adams agreed with Colbert’s assessment of the high court’s role and suggested the Legislature is more to blame for bills being struck down as unconstitutional.

“The Supreme Court has the responsibility to make sure the rules are followed. So does the Legislature. There doesn’t have to be tension if they’re working together,” Adams said. “It appears to me that the Legislature hadn’t followed the appropriate rules, and that’s the problem.”

Colbert also defended the current process for selecting judges in Oklahoma in which the Judicial Nominating Commission provides three names to the governor for selection.

Established by amendment in 1967 to the Oklahoma Constitution, the commission was created after a bribery scandal involving Oklahoma Supreme Court justices in the early 1960s. The 15-member panel includes six attorneys elected by the bar, one from each of the six congressional districts as they were drawn in 1967. The other nine members are non-lawyers, six of whom are appointed by the governor, and the other three are appointed by the House speaker, Senate president pro tem, and one by the other members of the commission.

“There is actually representation by everyone that comes together,” Colbert said. “I think the system works extremely well, and if it’s not broke, why fix it?

“And that’s just my own opinion. That’s not the opinion of this court.”

Once a judge is appointed by a governor to an appellate court, they must appear on a retention ballot every six years, but the removal of a judge is extremely rare.

But Jolley says he believes the bar association has too much influence in the selection process and wants to give the governor more power to select judges, and involve the Legislature in confirmation.

“I don’t think the governor should be told by a special interest group who she gets to pick from, and the Oklahoma Bar Association gets to have a greater control over who gets selected than they should,” Jolley said.

Jolley’s measure calling for a statewide vote to give the governor more power to pick judges, with Senate confirmation, already has passed the Senate and is pending in the House. Shannon’s interim study on judicial term limits and the selection process is scheduled for next month.

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