Squirrels hide acorns for the winter by burying them in the dirt. It is somewhat amusing to watch squirrels in Florida engage in this little ritual, since they live in a place where there is no winter coming. It’s just what squirrels do. They are programmed to hide their nuts.
The Oklahoma Supreme Court seems to have a similar modus operandi: the Court’s default is to hide its actions from public view, even when there is no reason to. Allow me to explain.
The Court recently heard a legal challenge to an initiative petition that seeks to change how Oklahoma draws its legislative and congressional districts (spoiler alert for a future post: the redistricting initiative is a terrible idea). The Court scheduled the case for oral argument on January 21 of this year in the ceremonial courtroom in the State Capitol building.
This may sound routine, but for the Oklahoma Supreme Court, it is notable. Unlike most appellate courts in the country, the Oklahoma Supreme Court very rarely grants oral argument, instead choosing (for no apparent reason) to deprive itself of the benefit of rigorous adversarial debate on the issues it decides, and the litigants of the opportunity to persuade.
Appellate oral argument, like most court proceedings in the United States, is almost always open to the public. I attended this particular oral argument, and the courtroom was full of reporters, supporters and opponents of the redistricting initiative, lawyers, and other curious members of the public. In the courtroom was a large TV screen facing the audience that provided real-time closed-captioning of the proceedings. A court reporter was transcribing the argument session to produce the closed-captioning.
Notably, the Supreme Court elected to live-stream the oral argument on its website, the Oklahoma Supreme Court Network (OSCN). Though this online broadcast was not well-advertised, I took it as a positive development, nonetheless. The Court has livestreamed previous sessions, but does not do so regularly. It is unclear what criteria the Court uses to determine whether it will broadcast its sessions, but given what we know about Oklahoma’s Court, it would be shocking if they had any criteria at all.
So we should celebrate, right? Not so fast.
The next day, I sat down to pen a quick post explaining the issues argued the day before. I wanted to highlight a particular exchange between the justices and one of the attorneys, but I needed to make sure I had the arguments exactly right and wasn’t misquoting anyone or remembering incorrectly. I checked OSCN, but the video was nowhere to be found.
Since the video had already been made public, I assumed this was a technical issue or the video was pulled down so as not to clutter up the OSCN website. So I called the IT Department at the Administrative Office of the Courts (AOC) to request a copy. I was told someone would get back to me.
The next day, I received an email from an AOC employee notifying me that “the Court has issued an order stating that the court reporter was present for the sole purpose of providing real-time closed captioning, and no official transcript or recording of the oral arguments will be available.”
I was surprised to learn the Court had issued an order of this nature, not only because I had checked the case page on OSCN right before calling to request the video and saw no such order, but also because this would be a highly unusual thing for the Court to do unprompted. I’ve never seen such an order issued out of the blue from a Court. I pulled up the case, and sure enough, there was the order.
Now, I cannot say for certain that my request to the IT Department made its way up through the ranks of AOC and prompted the Chief Justice of the Oklahoma Supreme Court to issue an order denying access. But the timing does seem awfully, shall we say, serendipitous.
If there is a reason for the Court to refuse to provide a recording (1) it clearly already has on file, (2) of a public session, (3) that the requestor personally attended and therefore has already seen the content, and (4) was broadcast online for all the world to see, I would love to hear it.
I find this incredible. It displays an attitude towards the public worse than dismissive—it’s insulting.
More importantly, it is revealing. If it looks like a squirrel, and buries nuts like a squirrel, it’s probably a squirrel. In this case, apparently a squirrel of the Florida variety.
We have a Court that:
- refuses to keep a public docket
- refuses to hold regular oral argument
- refuses to allow briefs in a large number of cases (see Rule 1.36)
- whose members are exempted from the Open Records Act
- is made up of members appointed by a secret committee
- whose members stand for reelection with no opponent
- delegates much of its decision-making to “referees” who hold hearings behind closed doors
- contorts the Oklahoma Constitution to find ways to legislate from the bench, and
- seizes power over the regulation of an entire occupation (lawyers).
In so doing, the Court countenances the violation of attorneys’ First Amendment rights, who are forced to fund the Bar Association’s political activities even when they disagree with the Bar’s party line. It just so happens that the primary political activity pursued by the Bar is to entrench its own (and the Supreme Court’s) power by protecting the faulty selection process that put the justices on the Court in the first place. When they are sued for this unconstitutional activity, they claim they are completely immune from lawsuits by virtue of their position of prestige.
These are not the hallmarks of the American court system. They are the characteristics of a Star Chamber.
Powerful, secretive, unaccountable entities do not reform themselves.
Legislature, your move.
Benjamin Lepak is Legal Fellow at the 1889 Institute. He can be reached at blepak@1889institute.org.