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.