Skip to main content

To Save the Oklahoma Judiciary, We Must Reform It

Last month, 1889 Institute published my study on the unfortunate state of the separation of powers in Oklahoma government, describing a state Supreme Court that too often acts as though it is a super legislature, in the business of enacting legislation rather than what it is supposed to do. The court should be a neutral arbiter, applying the laws passed by the actual Legislature to cases that come before it. Instead, the Court appears to first determine the policy result it seeks and then dream up the arbitrary legal reasoning necessary to justify that result.

The Oklahoma Legislature is not required to sit idly while the Oklahoma Supreme Court usurps the Legislature’s constitutional authority. It can—and should—act to rein in the Supreme Court. In fact, legislators have a responsibility to jealously guard their own institutional power. After all, we sent them to the Capitol as our representatives. Legislators can no more shrink from their responsibility to exercise their constitutional authority than a lawyer can refuse to argue his client’s case in court. It is what we hired them to do, and they have a duty to do it.

Today, in Taming Judicial Overreach: 12 Actions the Legislature Can Take Immediately, I follow up with proposals to address the problem that the Legislature can enact on its own. Some are relatively minor reforms, and some are more significant, but all of them are aimed at the same thing: restoring the Oklahoma judiciary to its proper constitutional role. Each reform can be achieved by statute, so the Legislature need not wait for a constitutional ballot initiative. It can act during the coming legislative session.

As we build on recent momentum to further reform of the judiciary, we should not concern ourselves (not primarily, at least) with the outcome of any particular case. Rather, we should seek to remedy the structural flaws in Oklahoma’s judiciary. We should incentivize the appointment of judges and justices committed to the rule of law. We should evaluate institutional incentives and, where misaligned, straighten them out. We should elevate the elected branches to their proper lawmaking roles, and help the judiciary find its way back to its own constitutional role. In short, we should restore our government to balance.

And while doing so, we should make clear that we seek to reform the judiciary not because we oppose it or wish to degrade it, but because we aim to rescue it. Our liberty requires a competent, independent, and fair judicial branch. It’s high time Oklahoma had one.

The following reforms are proposed with that high ideal as their explicit goal. In the past, entrenched members of the legal establishment have denigrated all attempts at reform as attacks on the judiciary or on lawyers. I expect my proposals will be met with the same calumnies. But make no mistake: my urgency in seeking reform is motivated by an acute understanding of the importance of the judiciary, not by any animus toward it. I am a lawyer, after all.

The time for obfuscation from the legal establishment has passed. I welcome debate with any defenders of the status quo who seek to engage in honest discussion about the future of the Oklahoma judiciary. But cries of "the judiciary is under attack!" will be received with the unseriousness with which they are made.

1.    Eliminate the Judicial Nominating Commission’s (JNC) role in filling vacancies for all courts below the Supreme Court.
2.    Remove the Oklahoma Bar Association (OBA) from the process of selecting JNC members.
3.    Re-organize the Court of Civil Appeals to create a true intermediate appellate court.
4.    Make the JNC subject to the Open Meetings Act.
5.    Ban lobbying of the Legislature by members of the Supreme Court and employees of the Administrative Office of the Courts.
6.    Limit Public Interest Standing.
7.    Establish rules for recusal of justices from cases, and prescribe procedures for appointing special (substitute) justices.
8.    Add “improperly exercising the powers of the legislative branch” as a ground for impeachment of a Supreme Court justice.
9.    Implement a term limit for Supreme Court justices.
10. Require additional information to be reported by the judicial branch annually for purposes of oversight.
11. Make the Supreme Court subject to the Open Records Act.
12. Require the Supreme Court to Maintain a More Easily Accessible Docket.

Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at blepak@1889institute.org.


Popular posts from this blog

Introducing a New Plan for Public Education: Put Educational Practitioners (Teachers) in Charge

The author, Kent Grusendorf, served as a member of the Texas House of Representatives for 20 years (1987-2007), all but two as a member of Public Education Committee, which he chaired for four years (2003-2007). His prior elected experience was as a member of the Texas State Board of Education for three years (1982-1984). In addition to this blog, Grusendorf is author of an 1889 Institute report also based on his forthcoming book. Saving Public Education: Setting Teachers Free to Teach is the title of my forthcoming book, which explores a potentially new professional opportunity for teachers. Most teachers are in the profession because they love to teach. However, far too many leave the profession due to lack of respect, excessive external pressures, and general frustration. Many teachers stay in the profession, but yearn for greater freedom to just do what they love: Teach. Much of that frustration comes from mandates, and a lack of professional freedom. Well Intentioned,...
Read more

What if Legislators Were Licensed? Well, Just to Make a Point...

1889 Institute, as a general matter, objects to occupational licensing. We have written about it more than any other subject. The scant benefits simply do not outweigh the enormous costs to consumers and entrepreneurs, and  the  burdens that disproportionately impact the poor.   It must be noted that the remainder of this post is a work of satire. This should be obvious to anyone who has read even one of our papers, but each of the proposals below has an analogous provision in Oklahoma licensing laws. To those supportive of government-created cartels, these proposals might sound almost reasonable.  A material threat to the public safety and welfare has for too long gone entirely unregulated, unrestrained and unchecked. This menace has the power to corrode not only mere industries, but to corrupt the entire state economy. It’s no overstatement to say that the practitioners of this perilous profession hold the power to destroy democracy as we know it. After a...
Read more

Higher Home Prices, Brought to You by Oklahoma's Occupational Licensing Machine

Increasingly, people across the ideological spectrum recognize the costs of occupational licensing. Almost since its inception, the 1889 Institute has highlighted several of the least justifiable licensing regimes in Oklahoma. Each individual license may seem, if not harmless , then at least only slightly harmful on its own. But the effects add up. It is estimated that licensing costs $203 billion each year, and results in up to 2.85 million fewer jobs nationwide. One of the principle ways Americans build lasting wealth is through home ownership. So a license that interferes with this process is particularly galling.  The transaction costs of buying and selling a home in Oklahoma are too high. This is not a matter of opinion, like “the price of gas is too high” or “the luxury goods I would like to own cost too much.” It is an empirical fact. The way Oklahoma regulates the Abstracting and Title Insurance industries tangibly and demonstrably impacts the cost of buying...
Read more

Here’s a Way to Shore Up State Employee Pensions: Sell Unneeded State Assets

The State of Oklahoma owns a lot of property. This includes land and buildings, but it also includes valuable assets like the state-owned electric power company, the Grand River Dam Authority (GRDA). GRDA reports nearly $1.8 billion in assets on its most recent balance sheet , with a “net position” of more than $622 million. Or the Tobacco Settlement Endowment Trust (TSET), which sits on a $1.2 billion endowment that does nothing but sit and produce investment income to fund the yearly operations of TSET. To the tune of roughly $50 million per year . We would all most likely be better off if some (probably most) of these assets were sold or leased to private entities where they could (1) be put to more economically productive use, (2) be put on the tax rolls (they are not taxed now), and (3) relieve the state from the burden of maintenance and operations expenses. What’s more, such an asset sale/lease (a “monetization”) would generate a large financial windfall for the stat...
Read more