The Senate author of Senate Joint Resolution 27, which led to State Question 752 being placed on the ballot, is seeking to intervene in a lawsuit questioning the constitutionality of the ballot measure.
Last week, Oklahoma County voter Jerry Fent filed a lawsuit seeking to have the overwhelming passage of SQ 752 invalidated. The question, which was ultimately passed by a 63 percent vote of the people, gave Oklahomans more of a say in the state’s judicial nominating process. In recent years, the process has been controlled by lawyers.
Despite passage of the question—which added two new, currently vacant non-lawyer positions to the Commission and tightened the requirements on the other non-lawyer members—the Judicial Nominating Commission, under the direction of Oklahoma Bar Association President Allen Smallwood, is proceeding with finding a replacement for recently deceased Justice Marian Opala.
|Sen. Clark Jolley|
Sen. Clark Jolley, author of SJR 27, is asking the court to issue a stay on JNC action until the Commission can be reconstituted in accordance with the will of the Oklahoma people as expressed with the passage of SQ 752.
Jolley claims in his filing that the Senate President Pro Tempore and Speaker of the House should have a right to make their appointments as outlined in SQ 752 before the Commission should be allowed to proceed with the Supreme Court nominating process.
“We want nothing more than the will of the people to be carried out,” said Jolley, R-Edmond. “In order to do that, the Judicial Nominating Commission needs to be reconstituted according to the current constitutional provisions, including the additional two non-lawyer appointments.”
Continued pressure to force the nomination could lead to the possibility of having a nominee face court action for being appointed through a flawed process, Jolley said.
“It is not in the best interest of Oklahomans to rush this process for political purposes. We must have absolute certainty that appointments to the Supreme Court are conducted lawfully and with no hint of impropriety. This insistence to proceed regardless of the will of the people and pending litigation could have devastating legal consequences in the future,” said Jolley. “The Oklahoma Bar Association should be more interested than anyone to make sure this nominating process is given the proper due diligence.”
The blatant disregard of the will of the people shows a need for complete review of the judicial nominating process, including Senate confirmation of Supreme Court justices, Jolley said. He intends to file legislation this session to accomplish that needed reform.
“We had hoped that the changes to the Judicial Nominating Commission accomplished with passage of SQ 752 would have been enough to ensure the people have a say in the nomination of Supreme Court justices, but continued disreguard of those changes has forced us to look at other options,” said Jolley. “On the federal level, Supreme Court justices are subject to Senate confirmation and public hearings discussing their nomination. We believe the same is needed on a state level.”
The Judicial Nominating Commission is set to interview 14 candidates for the Supreme Court vacancy Tuesday, despite calls from Fent and now Jolley for court intervention. JNC Chairman Smallwood has said he plans to get the commission’s three names to Gov. Brad Henry shortly after the interviews, which will allow for an appointment prior to his leaving office Jan. 10.
The Commission is proceeding despite:
• Overwhelming support of the people for more non-lawyer influence in the judicial nominating process
• Two non-lawyer vacancies that cannot be appointed until the Senate President and House Speaker are elected in January
• Legal questions circling the ability of at least three Commission members to continue to serve due to a constitutional provision preventing dual-office holding
• Three resignations of members who did not meet the requirements as outlined in SQ 752
• Three new governor appointments to the Commission who have not had time to become familiar with the process and candidate list
“Proceeding under such a cloud of uncertainty taints the judicial nominating process and will lead to an even further deterioration of the public trust as their will is circumvented,” said Jolley. “It is unfortunate that we have been forced to turn to the courts to ensure the will of the people is carried out.”