Law & Principles

Ray Carter | March 1, 2022

Judicial-nomination transparency measure clears committee

Ray Carter

Legislation that would allow the governor to select from a wide range of judicial applicants, with nominees required to then receive Senate confirmation, has won easy approval from a state Senate committee.

Supporters say the legislation will increase the number of potential judicial nominees while also eliminating the secrecy and perceived insider dealing associated with Oklahoma’s current judicial-nominating system.

Senate President Pro Tempore Greg Treat, R-Oklahoma City, said the legislation “reforms the court system in Oklahoma to more closely reflect the federal system, giving the governor more discretion on who they choose.”

Senate Joint Resolution 43, by Treat, would give Oklahoma voters the opportunity to amend the state constitution so that judicial nominees would be selected by the governor with Senate confirmation required for appointment.

The governor would nominate the chief justice and associate justices of the Oklahoma Supreme Court, the chief judge and associate judges of the Court of Criminal Appeals, and the judges of all intermediate appellate courts.

Following approval, judges would be subject to retention-ballot elections.

The system created by SJR 43 would replace Oklahoma’s Judicial Nominating Commission (JNC). The JNC is a 15-member group that screens applicants for some of Oklahoma’s highest courts. In the case of Oklahoma Supreme Court vacancies, the JNC recommends only three nominees. The governor is not allowed to consider appointing anyone else, regardless of other potential jurists’ records.

The JNC system has long been criticized for its secrecy and the perception that the JNC is effectively controlled by the Oklahoma Bar Association, which appoints many of its members.

Oklahoma is one of only 12 states with a JNC system, and Oklahoma’s JNC does not hold public meetings, interview candidates in public, or reveal how members of the JNC voted. Research conducted by the 1889 Institute in 2019 found that Oklahoma’s JNC is among the most secretive in the nation. In other states, open meetings and public votes are common.

Oklahoma’s JNC system has also generated controversy and concern over perceived insider dealing.

In 2019, a member of the Judicial Nominating Commission was a financial contributor to the political campaign of a judge considered by the JNC for an Oklahoma Supreme Court vacancy. Melissa DeLacerda of Stillwater, a past president of the Oklahoma Bar Association, served on the JNC at the time and had contributed to the campaign of Linda Thomas of Bartlesville, who then served as the district judge for Nowata and Washington counties. DeLacerda had contributed to Thomas’ campaign in 2018. Thomas, who was also a past president of the Oklahoma Bar Association like DeLacerda, sought an appointment to the Oklahoma Supreme Court when DeLacerda served on the JNC.

The system has also led to questions of undue influence in Oklahoma’s court system. In 2020, when Julie Huff and Terry Wade Huff filed a lawsuit against the Bank of Eufaula, the case landed in the court of Judge Timothy King. Attorneys representing the Huffs asked King to disqualify himself because William Grimm, an attorney representing the bank, also served on the state’s Judicial Nominating Commission when King’s judicial nomination advanced.

While the JNC was created by a vote of the people in 1967, Treat noted Oklahoma voters expressed stronger approval for direct election of judges on that same ballot.

On July 11, 1967, Oklahoma voters considered both State Question 447 and State Question 448.

SQ 447 established the Judicial Nominating Commission to select judicial nominees.

SQ 448 would have allowed for voter election of judges.

SQ 447 narrowly passed with 52 percent of the vote, while the direct-election process provided for in SQ 448 received 55 percent of the vote. But SQ 447 included a provision saying that if both measures passed, SQ 447 would be the one implemented.

“The voters actually passed, in a more overwhelming fashion, an election of justices, but because of the way the question was worded in the 1960s, this system prevailed,” Treat said.

Democrats on the committee defended the JNC system.

“The system has worked for 50 years,” said Sen. Kay Floyd, D-Oklahoma City. “It’s worked correctly. It’s worked the way it was intended to work.”

Treat said SJR 43 would increase transparency, reduce concerns about special-interest influence, and allow the governor to cast a wide net when filling judicial vacancies.

“I don’t believe that it (the JNC) reflects the will of the people in limiting the governor’s choices to three,” Treat said.

SJR 43 passed the Senate Judiciary Committee on a 8-3 vote that broke along party lines with Democrats in opposition.

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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