By Patrick B. McGuigan

Published: 07-Jan-2011

The Oklahoma state Supreme Court, in a 6-1 decision, on Thursday (January 6), turned down state Sen. Clark Jolley’s request to stop the momentum toward an imminent appointment of a Justice to replace deceased Justice Marian Opala.

As a result of the state High Court’s ruling, there is no apparent legal impediment to the stated intention of Governor Brad Henry to name his sixth justice to the Court, the most of any governor in modern history.

Jolley, an Edmond Republican, had sought the Court’s assistance in slowing down or halting the nominating process. The practical effect of delay would be to reserve the nomination for incoming Governor Mary Fallin. On track to take take the oath of office on Monday (January 10) at noon, Fallin has not commented on the controversy.

According to a press release sent to CapitolBeatOK yesterday afternoon by Senate Republican staff, the process for naming Opala’s successor “has been rushed for political purposes instead of being properly done under the newly reconstituted Judicial Nominating Commission as approved overwhelmingly by voters in November.”

At issue for Jolley and other critics of Thursday’s decision is the process under which the current commission has operated, in light of State Question 752, which expanded the number of members on the commission and created new bans on family members of lawyers serving on the commission. The measure gained  overwhelming approval on November 2.

The ballot proposition’s ratification awarded two seats on the commission through new appointive powers to the Senate President Pro Temp and the Speaker of the House. However, both Senator Brian Bingman and Speaker Kris Steele only legal gained authority to make the appointments after this week’s formal legislative leadership election process was completed.

In a statement after learning of the Court decision, Sen. Jolley said, “I’m disappointed the court denied my request for a stay, but it is not a surprise. I am hopeful that the court will see the merits of our arguments in the case and remedy this flawed process in their final decision. The will of the people is too important to dismiss so easily.”

In a separate statement sent to CapitolBeatOK, State Chamber President Fred Morgan also commented on the court’s denial of Jolley’s stay request:

“We are disappointed by the Court’s ruling. Sen. Jolley has merely asked that the will of the people, as expressed by the passage of State Question 752, be honored. A more deliberative process is needed prior to the appointment of a new justice with more input from the public. We fear that this process is being rushed to a conclusion.”

Potentially still clouding the widely anticipated naming of another justice by Governor Henry is the underlying lawsuit of Oklahoma City attorney Jerry Fent. Fent says the commission as currently constituted is invalid because its enabling provisions in law operate from the historic, rather than current, number of congressional districts. Fent’s litigation also asserts other deficiencies in the current process.