As the plot thickens, nominating commission to meet, S.Q. 752 author intervenes in lawsuit

CapitolBeatOK Staff Report

Published: 27-Dec-2010

The Senate author of Senate Joint Resolution 27, which led to State Question 752 going to the November statewide ballot, is seeking to intervene in a lawsuit questioning the constitutionality of the ballot measure. Meanwhile, the Judicial Nominating Commission as presently constituted is meeting this week and could forward potential Supreme Court nominees to Governor Brad Henry within days.

Last week, Oklahoma County voter Jerry Fent filed a lawsuit seeking to have S.Q. 752 invalidated. The proposition gave non-lawyers more say in the state’s judicial nominating process.

S.Q. 752 added two new, currently vacant non-lawyer positions to the Commission and tightened the requirements on the other non-lawyer members. The Judicial Nominating Commission (JNC), under the direction of Oklahoma Bar Association President Allen Smallwood, is proceeding with finding a replacement for recently deceased Justice Marian Opala.

The Commission’s moves have gained the scrutiny of the State Chamber, in a series of critical statements and releases from President Fred Morgan. Morgan and his allies have concluded that as few as eight of the current commissioners are serving validly. Morgan also argues the commission should wait until two state officials with appointing authority created by S.Q. 752 (incoming House Speaker Kris Steele and Senate President Pro Temp Brian Bingman) are able to make their appointments (authority they will gain when assuming their new posts next week) before any further meetings of the nominating panel.

Senator Clark Jolley, author of SJR 27, is asking the court to issue a stay on JNC action until the Commission can be reconstituted in accordance with the will of the Oklahoma people as expressed with the passage of S.Q. 752.

Voters overwhelmingly approved S.Q. 752, an amendment to the state Constitution. The measure garnered 606,805 votes (62.83% of the total) while only 358,925 (37.17%) were opposed.

Echoing in part the recent declarations from the State Chamber, Jolley asserts in his filing that the Senate President Pro Tempore and Speaker of the House should have a right to make their appointments as outlined in SQ 752 before the Commission proceeds with the nominating process.

In context, the emerging argument is far more than theoretical.

Governor Brad Henry, a Democrat, made his fifth appointment to the state High Court  last month, just days after the election. The governor has indicated he intends, if the existing commission completes its process, to name a replacement for the late Justice Marian Opala, as well.

A wide range of potential nominees are being examined by the nominating panel, as presently constituted. Among the candidates are Robert Dick Bell, nephew of well-known attorney Richard Bell, and Lieutenant Governor Jari Askins, a trial judge before she began her legislative career.

Governor-elect Mary Fallin, a Republican, will name state Supreme Court nominees after January 10, when she takes the oath of office as the state’s first female governor. 
She defeated Askins in the November 2 election.

“We want nothing more than the will of the people to be carried out,” said Jolley, an Edmond Republican. “In order to do that, the Judicial Nominating Commission needs to be reconstituted according to the current constitutional provisions, including the additional two non-lawyer appointments.”

Continued pressure to force the nomination could lead to the possibility of having a nominee face court action for being appointed through a flawed process, Jolley believes.

“It is not in the best interest of Oklahomans to rush this process for political purposes. We must have absolute certainty that appointments to the Supreme Court are conducted lawfully and with no hint of impropriety. This insistence to proceed regardless of the will of the people and pending litigation could have devastating legal consequences in the future,” said Jolley, in a statement sent to CapitolBeatOK.

“The Oklahoma Bar Association should be more interested than anyone to make sure this nominating process is given the proper due diligence.”

What a press release from Jolley characterized as “blatant disregard of the will of the people shows a need for complete review of the judicial nominating process, including Senate confirmation of Supreme Court justices.”

Jolley says he intends to file legislation this session to accomplish that needed reform.

“We had hoped that the changes to the Judicial Nominating Commission accomplished with passage of S.Q. 752 would have been enough to ensure the people have a say in the nomination of Supreme Court justices, but continued disregard of those changes has forced us to look at other options,” said Jolley. “On the federal level, Supreme Court justices are subject to Senate confirmation and public hearings discussing their nomination. We believe the same is needed on a state level.”

The Judicial Nominating Commission (as constituted pre-November 2) is set to interview 14 candidates for the Supreme Court vacancy Tuesday (December 28).

JNC Chairman Smallwood has said he plans to get the commission’s three names to Gov. Brad Henry shortly after the interviews, which will allow for an appointment prior to his leaving office Jan. 10.

In Jolley’s critical analysis, the Commission is proceeding despite:

·         Overwhelming support of the people for more non-lawyer influence in the judicial nominating process

·         Two non-lawyer vacancies that cannot be appointed until the Senate President and House Speaker are elected in January

·         Legal questions circling the ability of at least three Commission members to continue to serve due to a constitutional provision preventing dual-office holding

·         Three resignations of members who did not meet the requirements as outlined in SQ 752

·         Three new governor appointments to the Commission who have not had time to become familiar with the process and candidate list

“Proceeding under such a cloud of uncertainty taints the judicial nominating process and will lead to an even further deterioration of the public trust as their will is circumvented,” said Jolley. “It is unfortunate that we have been forced to turn to the courts to ensure the will of the people is carried out.”

NOTE: Editor Patrick B. McGuigan contributed to this report.