COMMENTARY: As jousts over judicial role continue, reinstated state lawsuit limits might trigger … lawsuits
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Published: 13-Sep-2013

OKLAHOMA CITY – In a hint of things to come, Speaker of the House T.W. Shannon, R-Lawton, has used strong language to describe his disgruntlement with the Oklahoma judiciary in general, and the state Supreme Court in

particular.

The special session on lawsuit reform concluded this week. It settled some things, but substantive arguments between trial lawyers and their Republican critics – who had more than enough votes to reinstall the 2009 omnibus tort reform law – are certain to continue.

The venues for those arguments will likely be in the court of public opinion, perhaps in courts of law, and almost certainly in the 2014 regular session.

Speaker Shannon decried the need for a special session in the first place, but was responsive to the reality of the 7-2 state Supreme Court holding that the original 2009 law violated Oklahoma’s single-subject rule.

In a statewide column this week, the Speaker reopened a discussion bound to intensify next February in the regular session, writing: “When unelected judges position themselves as a political super authority over the other branches of government, it leads to confusion, economic uncertainty and constitutional questions of how the will of the people should be enforced.”

Shannon celebrated undoing “the damage a handful of activist judges, or some might even call a ‘super legislature of judges,’ attempted to do to this state.”

Among the things Shannon might try to change next year: state Supreme Court justices are selected by governors from a list provided by a judicial selection committee, and subjected to statewide popular retention votes every six years.

Some conservatives want to give chief executives more presidential-like powers to name justices, subject to Senate confirmation. That would require a constitutional amendment, first through legislative action or a citizen initiative, then a statewide popular vote.

Other reformers plan to seek changes that would likewise need popular approval – including direct popular election and/or contested retention elections, in combination with strict term limits on tenure.

That’s not the only thing about which defenders of the judicial status quo are fretting. In 2012, the state Chamber of Commerce issued detailed critiques of the voting records of High Court members, as well as judges on the Civil Court of Appeals. While all jurists up for retention last year were retained, the Chamber has promised to promulgate new judicial critiques next year.

For all the sound and fury from all sides, including repeated references to the recent legislative gathering as a “special interest special session,” members of the Senate overwhelmingly (unanimously in some cases) approved the 23 restorative bills. Serious challenges were limited to the House of Representatives.

In the special session’s final days, the requirement for a “certificate of merit” in civil litigation -- also known as the affidavit of merit -- faced the most critical scrutiny and it is the most likely subject for litigation in the near future. The “merit” provision drew 15 Republicans to join in opposition the 21 Democrats who were present and voting.

Three Republicans cast “constitutional privilege votes, and three others were absent.

In the end, the “merit” affidavit/certificate still garnered 51 votes – the bare minimum needed for approval. That was the only close call of the special session.

Opposition of House Democrats to this particular proposal, including Minority Leader Scott Inman of Del City, was pointed and passionate, including references to the certificate as the equivalent of a “lock on the court house door.”

The Supreme Court, now consisting of six jurists appointed by former Democratic Gov. Brad Henry, has already struck down a previous certificate requirement (and the accompanying fee) as putting “an impermissible financial burden” on some plaintiffs.

Current Republican Gov. Mary Fallin’s lawyer, Steve Mullins, believes that an option for judicial waiver of the fee should allow the measure to pass scrutiny.

A case or controversy focused on the provision in circumstances as yet unknown, will almost certainly lead to a new state Supreme Court decision on at least the certificate issue.

Time will tell. For now, the rest of the historic 2009 law seems secure and free from any hint of violating the “single-subject” stricture.

One way or the other, Oklahoma’s judges war will likely go on.

You may contact McGuigan, Oklahoma City bureau chief for the Watchdog.org network, at Patrick@capitolbeatok.com. Sunday at 12:30 p.m. on The Oklahoma Network's weekly Forum program, McGuigan will discuss the special session and its aftermath with KOSU’s Michael Cross, eCapitol’s Shawn Ashley and host Dick Pryor.  
 

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