A series of court rulings has generated calls to change the Oklahoma Constitution and the membership of the judiciary. In this debate, the challenge for lawmakers is to advance valid proposals that credibly benefit citizens, not those that facilitate political power grabs.
The Oklahoma Constitution limits most legislative bills to only one topic. It prohibits special laws that treat similar groups differently. Those two provisions have been cited by the state Supreme Court when striking down several laws in recent years.
The justification for both provisions is sound, but their consistent application has proven difficult. The court’s rulings haven’t provided clear, easily understood guidelines, thus increasing the likelihood that future legislation will be challenged in court, impeding progress in Oklahoma.
As a result, some now want to amend those constitutional provisions, either through outright repeal or revision. In its 2014 legislative agenda, The State Chamber endorses amending the single-subject and special-law constitutional provisions “to provide clearer direction to the Legislature.”
This is a legitimate debate. Yet some critics argue the problem isn’t the state constitution, but the judges who interpret it. Thus, an overhaul of judicial selection and retention has also been proposed.
Three judicial reform bills passed the Oklahoma Senate last year and could be taken up in the House this session. One would allow the governor to select judicial nominees, who would then be screened by the Judicial Nominating Commission and subject to Senate confirmation. Another bill would set a 20-year term limit for judges. A third would allow the governor to select the chief justice.
Former House Speaker T.W. Shannon, R-Lawton, has filed three more judicial reform bills. One would require state Supreme Court justices to retire at age 75. Another would limit members of the appellate judiciary to 12-year terms.
Shannon’s third bill goes much further. House Bill 3380 would create a nine-member Board on Judicial Performance Evaluation. That group, composed entirely of political appointees selected by the governor and legislative leaders, would evaluate judges on the Oklahoma Supreme Court, the Court of Criminal Appeals, the Court of Civil Appeals and district court judges.
Those political appointees, who would not be required to have any legal background, could personally interview judges and would evaluate a judge’s integrity, legal knowledge, communication skills, judicial temperament and administrative performance. Judges who disagree with the board’s evaluation “shall have the opportunity to meet with the Board or otherwise respond...” It appears these meetings would not have to be open to the public.
The board could issue one of three recommendations for each judge evaluated: “re-elect,” “do not re-elect” or “no opinion” (with the latter option discouraged).
The legislation declares board members “shall be immune from suit in any action, civil or criminal, based upon official acts performed in good faith as members of the Board.”
In short, a judge’s retention would be tied in part to pleasing a small group of political appointees who can operate in secret and issue reports based on somewhat nebulous standards — while being protected from lawsuits for their actions. It’s not a stretch to believe that this would invite abuse.
There are valid reasons to consider constitutional and judicial selection changes. But lawmakers should treat these issues with the seriousness they deserve.
Oklahoma would not benefit if an allegedly unaccountable judiciary is replaced with a thoroughly politicized one.