Judicial Reform

Ray Carter | March 6, 2024

In minimum-wage case, Oklahoma Supreme Court defies judicial norms

Ray Carter

The Oklahoma Supreme Court has ruled that an initiative-petition effort may proceed that would link Oklahoma’s minimum wage to the cost of living in places like San Francisco.

That contradicts one of the court’s prior rulings. That alone is not shocking since courts often overturn earlier rulings.

But in this case, the Oklahoma Supreme Court majority refused to explain with a written opinion why justices reversed course, defying judicial norms in ways experts warn creates vast legal uncertainty in Oklahoma.

In Oklahoma, an initiative-petition effort would place State Question 832 on the ballot before voters. The proposal would raise the state’s minimum wage to $9 an hour in 2025, then to $10.50 in 2026, $12 in 2027, $13.50 in 2028, and $15 in 2029. After that point, the minimum wage would automatically escalate based on changes in the U.S. Department of Labor’s Consumer Price Index for Urban Wage Earners and Clerical Workers.

Because SQ 832 ties future, mandatory increases in Oklahoma’s minimum wage to the U.S. Department of Labor’s Consumer Price Index for Urban Wage Earners and Clerical Workers, Oklahoma’s minimum-wage rate could skyrocket in future years, based on data released by The State Chamber and the Oklahoma Farm Bureau.

The two groups recently noted that within 15 years SQ 832 could increase Oklahoma’s minimum wage to $22.16 per hour if the Consumer Price Index for Urban Wage Earners and Clerical Workers grows at the 10-year average. But if the index grows at the more recent five-year average, the wage mandate could hit $27.56 per hour in 15 years, and if the index grows at the same rate as the last three years, the mandatory minimum wage in Oklahoma could reach $35.61 per hour within 15 years.

Chad Warmington, president and CEO of The State Chamber, previously noted the proposal creates an “automatic, open-ended increase” that is “linked to a federal government-produced index that is based upon cost-of-living rates in cities like New York or San Francisco. Those areas are not reflective of the actual cost of living in Oklahoma.”

The State Chamber challenged the petition in court, citing the Oklahoma Supreme Court’s prior ruling in a similar case.

Justices ‘Failed to Perform One of the Most Basic Duties of Their Job’

In a 1995 case, City of Oklahoma City v. State ex rel. Department of Labor, the Oklahoma Supreme Court struck down a statute that required the Oklahoma Labor Commissioner to adopt the prevailing wage as determined by the U.S. Department of Labor.

In that case, the Oklahoma Supreme Court held that the statute violated the non-delegation doctrine of the Oklahoma Constitution because the law delegated state power to an administrative arm of the federal government and failed to establish definite standards or articulated safeguards.

The State Chamber argued the same problems exist with the proposed SQ 832, saying it “squarely runs afoul of the Oklahoma Constitution as explained by this Court in City of Oklahoma City v. State ex rel. Department of Labor.”

Oklahoma Attorney General Gentner Drummond also opposed SQ 832, filing a brief in the Oklahoma Supreme Court that declared the proposal “manifests plain constitutional infirmities” that include “an unconstitutional delegation of legislative authority.”

But when the Oklahoma Supreme Court issued its ruling in State Chamber of Oklahoma v. Cobbs, the six-justice majority held that proponents could proceed with the petition effort, writing, “Initiative Petition No. 446 does not clearly or manifestly violate either the Oklahoma or United States Constitution.”

However, the six justices who constituted the majority did not address any issues raised by opponents or explain how their latest ruling aligned with the court’s earlier ruling that held the opposite. The entire opinion was only one paragraph in length and consisted mostly of legal citations.

Dissenting justices noted the majority’s failure to address why (or even if) it had overturned the court’s prior ruling.

“The People are entitled to Court decisions which comport with existing law or else give clear explanation when departure from extant law is necessary.” —Chief Justice John Kane, in his dissent

In his dissent, Chief Justice John Kane wrote, “Today, we ignore clear precedent specifying Constitutional and statutory infirmities in a proposed initiative petition without discussion. The People are entitled to Court decisions which comport with existing law or else give clear explanation when departure from extant law is necessary. In my view, the proposed initiative petition is a violation of the non-delegation doctrine, is not capable of correction by severance, and has a faulty gist.”

Kane wrote that Initiative Petition 446 “contains the exact same constitutional infirmities found in City of Oklahoma City” and questioned why the majority did not address the 1995 case.

Does the majority overrule City of Oklahoma City v. State ex rel. Department of Labor by implication, or factually distinguish said case?” Kane asked. “There is no way to tell. In my opinion, there is no way to summarily allow the Petition to proceed without either expressly contracting our teachings of the non-delegation doctrine in City of Oklahoma City, or else expressly overruling said precedent.”

Vice Chief Justice Dustin Rowe expressed similar concerns in his dissent.

“Today, the Court has reached a fork in the judicial road,” Rowe wrote. “We must either follow our precedent and take the difficult step of striking an initiative petition for constitutional infirmities before it is even submitted to the voters. Or we must overrule our precedent in order to permit the initiative petition to move forward—but in doing so, bind ourselves to a new precedent of deferring judgment on these matters until after submission to the voters. The Court’s desire to have its cake—by allowing the petition to proceed—and eat it too—by blatantly defying our precedent, confounds good judicial reasoning.”

The State Chamber of Oklahoma noted the court’s failure to adhere to judicial norms in a statement issued following the ruling.

“We are disappointed by the court’s decision to let SQ 832 proceed without providing any justification for the reasoning behind the decision,” the State Chamber statement declared. “The six justices making this ruling failed to perform one of the most basic duties of their job by refusing to even author a majority opinion that addresses the serious constitutional arguments we raised in our legal challenge. The Court’s ruling ran counter to its own precedent that was directly on point in this case, and by failing to provide reasoning that either explains why that precedent is no longer valid or explains why that precedent does not apply to this state question, the Court has sewn confusion and uncertainty in this area of Oklahoma law.”

The Oklahoma Supreme Court’s action is in stark contrast to its counterparts in federal courts and state courts across the country where, in virtually all major cases, other courts issue a substantive written opinion addressing legal arguments.

The (non)ruling has drawn focus on the professionalism of the Oklahoma Supreme Court at a time when lawmakers are considering a measure to reform how judges are appointed to Oklahoma’s major courts.

Under the current judicial-selection process mandated in Oklahoma, a governor cannot select his own judicial nominees based on merit. Instead, a 15-member Judicial Nominating Commission (JNC) controls judicial appointments.

The JNC selects up to three nominees for court positions, including the Oklahoma Supreme Court, in secret. The governor is required to select one of those three candidates and cannot consider any other qualified individuals.

Of the 15 members of the Oklahoma Judicial Nominating Commission, six are appointed by the Oklahoma Bar Association. The governor is allowed to name six “lay members” to the JNC but cannot appoint any attorneys. And the governor can name only three individuals who are members of his or her political party, meaning a Republican governor can appoint only three Republicans to the 15-member commission.

At the same time, most JNC members appointed by the Oklahoma Bar Association are partisan Democrats.

There have been 32 individuals appointed to the JNC by the Oklahoma Bar Association who have served from 2000 to today. Of that number, 22 bar association appointees (nearly 69 percent) have directed most of their campaign donations to Democrats, including to presidential candidates like Barack Obama and Hillary Clinton.

Since the Oklahoma Judicial Nominating Commission was established in 1967, the typical judge appointed to the Oklahoma Supreme Court has been consistently liberal and the Oklahoma Supreme Court has been more liberal than nearly all state supreme courts nationwide during that time, according to data published in the December 2023 edition of the journal “State Politics & Policy Quarterly,” a publication of the American Political Science Association.

Senate Joint Resolution 34, by state Sen. Julie Daniels, R-Bartlesville, would allow Oklahoma voters to repeal the section of the Oklahoma Constitution that established the secretive Judicial Nominating Commission and replace it with the model for appointing judges established in the U.S. Constitution. Under that model, the governor would nominate judges but legislative approval would be required for confirmation.

SJR 34 passed the Senate Rules Committee on a 14-4 vote and now awaits a vote from the full membership of the Oklahoma Senate.

Ray Carter Director, Center for Independent Journalism

Ray Carter

Director, Center for Independent Journalism

Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.

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