Open Letter on Oklahoma Senate Bill SJR-21

Family and Friends,

I’m writing to ask you to contact your state representatives and urge them to vote no on SJR-21, which is coming up for vote tomorrow, April 24, 2014 (go to http://www.okhouse.gov/index.aspx and, at the home page, look to the right side of the screen for “Find my Representative” based on your home address). If you believe in the checks and balances of three-branch government, you do not want this bill to pass. I have been a life-long Republican, but I am thoroughly disgusted with Republican attack on our civil justice system. This bill is the final nail in the coffin of your access to impartial justice. My eyes have been opened to a sad reality—the Republicans I used to support (and defend) have shown that they truly do not care about the average Oklahoman, but care only about grabbing power for their financial contributors.

SJR-21 is a raw attempt by the Republican controlled legislature to wrest the judicial power from the Oklahoma Supreme Court. Currently, when there is a vacancy on the Oklahoma Supreme Court, our “Judicial Nominating Commission” (JNC) screens and then presents three candidates to the governor who chooses one. Justices are then up for retention elections every six years. This system was created in response to a scandal in the 1960s in which elected Supreme Court justices were selling “justice” to political (and other) contributors. The JNC, which currently vets replacement justices, is made up of 15 people—six attorneys and nine non-attorneys. The six attorneys are appointed to the JNC by vote of the Oklahoma Bar Association, which is, of course, composed of attorneys—but attorneys from all parts of the political spectrum. The nine non-attorneys are appointed by the governor and the legislature. The JNC has worked well over the years. If it were just the effort to reshape the JNC at issue, I would not be writing this letter. There is, though, more “afoot.”

SJR-21 is a direct response to the Oklahoma Supreme Court striking the 2009 “Tort Reform Act.” Here’s a little background:

Oklahoma has a provision in its constitution called the “single-subject rule.” It is a really simple rule and really clear-cut: “Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title . . . .” The rule is designed to prevent “log-rolling” or the kind of pork-barrel politics that we see on the national level. The rule prevents the legislature from writing “all-or-nothing” bills: for instance, the rule prevents a bill that at the same time secures an unpopular pay raise for tax collectors by lumping that bill in with a bill that creates tax breaks for widows and crippled children.

Time and again the legislature ignores this very simple rule, forcing the Oklahoma Supreme Court to call its hand and strike blatantly unconstitutional multi-subject legislation. In 1993 the Oklahoma Supreme Court in a rare moment of exasperation had this to say in striking a statute the violated the simple rule: “This is the is the second time in less than two years that this Court has been called upon to determine whether legislatively enacted laws are unconstitutional for violation of the single-subject mandate. . . We trust a third opinion will not be necessary. Our consideration for the practical operations of government should not be understood to be a shield for the continued enactment of unconstitutional laws. Although we are sympathetic with the time constraints the Legislature faces in session, this Court is bound to uphold the Constitution -- we are prepared to do so.”

Duh! Despite that “admonishment,” the most recent incident and the straw that broke the camel’s back involved the legislature’s 2009 “tort reform” statute, a bill that contained 90 different “sections.”

In 2010, the Oklahoma Supreme Court said this, in striking another multi-subject bill: “We are growing weary of admonishing the Legislature for so flagrantly violating the terms of the Oklahoma Constitution. It is a waste of time for the Legislature and the Court, and a waste of the taxpayer’s money.”

True, that case came after the 2009 “tort reform” bill was passed. The legislature was well aware of the rule, though, long before then, and of exactly how the Court would handle such multi-subject legislation. Also, the legislature could have easily saved the 2009 bill even after the 2010 case by the simple expedient of reenacting the 90 sections of the bill as individual provisions. It did not do that but instead thumbed its nose at the third branch—the branch of government charged with protecting me and you from runaway government power. The legislature knew the 2009 bill was blatantly and unnecessarily unconstitutional as a single bill, yet passed it that way anyway. I truly think the legislature and the governor did this purposefully so that it could now tell you that the Supreme Court is out of control and must be stopped. Don’t believe the lie—the court system is not perfect, but it is a far better system than having your case decided by the highest-bidder-controlled legislature.

In response to the Court case striking the 2009 bill, the legislature reenacted the various sections of the act as individual laws, as it should have in the first place. It also began a systematic attack on the court system. First, Ralph Shortey proposed a bill to take away from the Supreme Court the authority to invalidate unconstitutional laws. His solution was a “Court of Constitutional Review” appointed by the legislature. They call that “the fox guarding the henhouse.” Fortunately that inane idea did not catch on. Next our Speaker of the House, T.W. Shannon, expressed what had to have been mock shock that the Supreme Court once again enforced the single-subject rule. He then proposed term limits for Supreme Court justices (presumably in order to replace current members with Republican appointments). Fortunately Shannon is now running for federal office and his misguided efforts have run out of steam (for now).

Yesterday, Governor Fallin attacked the Supreme Court in response to the Court staying two executions while it considers the condemneds’ appeals. She characterized the stay as “outside the constitutional authority” of the Supreme Court. You should know, the Supreme Court twice tried to get the Court of Criminal Appeals to consider the stay requests, but that court refused because the appeal was a civil rather than criminal appeal. I think the Governor’s attack was a low blow calculated to sway public support for SJR-21. Maybe I am just jaded. But, as they say, just because you’re paranoid doesn’t mean they aren’t out to get you.

I hesitated to write this letter because I am afraid I will be written off as a “lawyer” trying to protect my turf. I hope those of you who really know me trust I would not try to manipulate you that way. I also know human nature is such that most of you will not call the legislature and tell them to stop screwing around with the court system. I just don’t want to have to look you in the eye and have to admit I could have warned you when one day down the road you need the court’s intervention only to learn that you no longer have a right to fair compensation for a civil wrong.

Sorry to be such a “Debbie Downer.” If I have persuaded you, though, please call your state Senator and Representative and tell them to vote no on SJR-21. Here is a link to contact numbers for your legislators: http://www.okhouse.gov/FindMyLegislator.aspx

Feel free to pass this on.

Paul Kouri