Oklahoma

Judicial independence is like freedom in that it is often taken for granted, and always at risk. Simply stated, judicial independence means that one branch of government is not subject to the will of the majority. That independent branch is charged with upholding the Constitution, even in the face of contrary majority will, and with protecting the rights of those not in power. What happens when judicial independence is threatened? We have a current all-too-disturbing example.

Inter-branch tensions in Oklahoma have escalated in recent days over the state supreme court's handling of a death penalty appeal. A member of Oklahoma's house of representatives filed articles of impeachment against five supreme court justices who voted to stay the execution of two death row inmates. Tension was already brewing between the legislature and the high court over a 2013 decision that struck down a comprehensive lawsuit reform measure.

According to a poll funded by the Federalist Society for Law and Public Policy Studies, 74 percent of Oklahoma voters favor choosing appellate judges in contested elections over a merit selection and retention process, and 69 percent support amending the constitution to make this change. Seventy-six percent of respondents want term limits for appellate judges.

Recently, speculation has surfaced about whether judicial selection and tenure will be addressed at a special legislative session in Oklahoma, called by Governor Fallin. Although a Republican legislator wrote a letter warning judges around the state of rumors that there would be efforts to impose term limits and to eliminate the judicial nominating commission, a spokesman for the governor offered assurances that the only topic for the special session is lawsuit reform.

Less than a week after the supreme court struck down a civil justice reform measure known as the Comprehensive Lawsuit Reform Act of 2009, some state legislators called for a study of term limits for appellate judges. According to House Speaker T.W. Shannon, it is lawmakers' duty to monitor the government's balance of power, but other legislators described the study as retaliation for the recent decision and other unpopular rulings.

Oklahoma has joined several other states—including Florida, Illinois, Kansas, Minnesota, North Carolina, Pennsylvania, South Dakota, and Tennessee—whose legislatures are considering changes to the process for selecting judges.

Responding to the Oklahoma Civil Justice Council’s rating of justices standing for retention based on their decisions in civil liability cases, a group known as “Yes for Fair and Impartial Judges” mounted an educational campaign to encourage voters to consider the justices’ integrity, fairness, and impartiality.

The state chamber plans to publicize its recently completed ratings of supreme court justices standing for retention, based on their rulings in business cases.

The state bar association launched a website to give voters more information about appellate judges standing for retention. The site explains the merit selection and retention system, provides bios and photos of judges on the ballot, and includes links to judges’ decisions. It was created in response to the judicial ratings issued by the state chamber-backed Oklahoma Civil Justice Council, based on judges’ rulings in civil liability cases.

Questions were raised as to whether an email from a state employee advocating the retention of the appellate judges on the November ballot violated an anti-electioneering ethics rule. The email was sent by the John Miley, general counsel to the Oklahoma Employment Security Commission, whose wife is standing for retention to the supreme court.