MuskogeePhoenix.com, Muskogee, OK

Oklahoma News

September 15, 2013

Tensions increase between lawmakers, judges

OKLAHOMA CITY (AP) — A recent five-day special session for the Oklahoma Legislature to overhaul the state’s civil justice code ruled unconstitutional by the Oklahoma Supreme court highlights what many see as growing tension between the two branches of government.

Several lawmakers in the increasingly conservative Legislature are growing more vocal about their exasperation with the court, which has struck down numerous laws as unconstitutional. The court in June tossed a sweeping 2009 bill that made numerous changes to the state’s tort laws, ruling the bill was unconstitutional because it included multiple subjects in a single measure. That prompted Gov. Mary Fallin to call the Legislature back for a special session to pass separate bills, and angered many legislators in the process.

“We’re incredibly frustrated the taxpayers’ money had to be spent on reintroducing reforms that were agreed to by Republicans and Democrats back in 2009,” said Sen. Clark Jolley, R-Edmond. “The court waited until we had been out of session for two weeks. They had the case for two years.”

In a concurring opinion to the court’s 7-2 decision written by Justice Yvonne Kauger, the judge suggests the court is growing weary of admonishing the Legislature for not following the constitution, especially a provision that prohibits the inclusion of multiple subjects in a single bill.

“Addressing the violation of the single subject rule is a recurring theme in our jurisprudence,” Kauger wrote. “(In 2010) ... we had addressed the single subject rule at least seven times over the previous two decades, and four times in three years.”

Kauger’s likening of the Comprehensive Lawsuit Reform Act of 2009 in her opinion to a cookie with too many ingredients particularly rankled some legislators.

Sen. Anthony Sykes, R-Moore, the chairman of the Senate Judiciary Committee, said during debate that the court had “gone off the deep end.”

Jolley was even more pointed in his criticism of Kauger’s opinion.

“The fact that they’re making an argument based on cookies drives me nuts,” Jolley said.

Jolley also is pushing for a state question to give the governor and Legislature more power in judicial selections and impose term limits for appellate judges.

New Republican House Speaker T.W. Shannon also hasn’t been shy about bashing the state’s highest court. Immediately after the court’s ruling on the tort bill, he announced plans for a study on term limits for judges and possible changes to how members of the judiciary are selected in Oklahoma.

In an editorial last week following the conclusion of the special session, Shannon decried the ruling as politically based and said lawmakers had to return to undo “the damage of a handful of activist judges, or some might even call a ‘super legislature of judges.”’

Fallin hasn’t endorsed any plan for judicial term limits or changes to how judges are selected, but said this week she was open to looking at what the Legislature might suggest.

“I am going to reserve opinion on that until I have an opportunity to visit with the Legislature to see what they’re thinking,” said Fallin, who noted a long history of tension between the judicial and legislative branches of government. “It’s not something new that happened this year. That’s just the process itself.”

Justices typically don’t publicly discuss cases, and Chief Justice Tom Colbert was not available for comment, his office said Friday.

Guy Fortney, a Tulsa attorney and the president of a trial lawyers’ group called the Oklahoma Association for Justice, said he believes Republican leaders are frustrated because the courts remain one the last vestiges of Democratic power in Oklahoma following GOP takeovers of the Legislature and governor’s office.

“Currently you have the governor’s house in the hands of the Republicans and the Legislature in the hands of the Republicans. They’ve got one branch that isn’t in their control, and that bugs them,” Fortney said. “They don’t want anybody looking over their shoulder, and they clearly feel oppressed by it.”

University of Oklahoma law professor Joseph Thai cautioned that giving politicians more influence over the selection of judges will dilute the independence of the court as a check on the power of the political branches.

“Efforts to make judges more politically accountable are desirable only if you want judges to act more like politicians,” Thai said.

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