Oklahoma’s legislature recently advanced a bill known as Senate Joint Resolution 43 (SJR 43) that could significantly change our state’s legal system. Although SJR 43 is not yet final, the proposed bill would completely abolish Oklahoma’s judicial system as it currently exists, including dissolving all district (county) and appellate courts (including the Oklahoma Supreme Court) while also revamping the election and appointment procedures governing how our state judges are elected.
Currently, Oklahoma voters choose their local state judges on a nonpartisan basis; in other words, no judges run as Republicans or Democrats. If this bill passes as written, each sitting judge would be summarily ushered out of office at the end of their existing term. New judges would be elected just like all our other county officials are elected (on a partisan basis). This might appear fine initially, but the partisan system is what lead to a court scandal in the 1960s which resulted in Oklahoma Supreme Court Justices either resigning or being removed from office. The current judicial selection system, known as Oklahoma’s Judicial Nominating Commission (JNC) established in 1967, was the result.
The JNC consists of 15 members who play an integral role in reviewing the background and qualifications of applicants for the state’s judicial selection process. Based on merit, the JNC recommends three qualified nominees to the Governor who then selects one nominee for appointment. Oklahoma is one of 12 states utilizing a JNC system.
The bill is designed to erode the separation of powers doctrine set forth in the Oklahoma Constitution. It is also intended to make the Third Branch (the judicial system) both inferior and answerable to the legislative and executive branches. Essentially, it would create a system that only allows the Governor and the Senate the ability to determine who will serve as appellate judges/justices at any level, which raises the question, “Who watches the watchers?” In other words, who checks the governor and legislature if they exceed their reach? Specifically, who watches their hand-picked justices?
If passed, the proposed bill presents more questions than answers. First, what happens to civil and criminal cases that are currently pending? Do they stay with the assigned judge in the now abolished court or is some other provision going to dictate what happens? So hypothetically, a two-year divorce case that is about to be finalized could be set aside until a new judge is elected and a new court is established to hear the case.
Second, the bill also changes how attorneys are regulated and how one becomes licensed to practice law in the first place. To currently practice law in Oklahoma, all attorneys are required to pass the bar exam. This is true even though some attorneys have a type of practice where they never appear in court. This ensures that all attorneys have a working baseline knowledge of the law – no matter what type of law is practiced. However, SJR43 removes the regulation of the practice of law from the Supreme Court for attorneys who don’t practice before the newly created courts. Under the new regulatory scheme, the legislature would license and govern those attorneys who do not go court. Who licenses lawyers at the outset of their careers, when they literally may not know what type of practice they will ultimately have? There is no provision for admission to the bar, attorney discipline, continuing education or the body of ethical rules attorneys currently follow. Arguably, there would be no reason for the existence of law schools or the bar exam. Imagine if your child’s pediatrician had not gone to medical school or passed their boards. This is a change with similar implications.
Given the direct impact that SJR 43 could have on the regulation of the practice of law and the quality of legal services, it is important to protect Oklahoma’s judicial court structure. We encourage everyone to contact your House and Senate representatives to voice opposition to SJR43. The dissolution of the district courts could result in chaos in both civil and criminal matters, costing clients delays and unanticipated expenditures due to the absence of applicable court rules and procedural statutes.
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