Column by Fred Morgan, President & CEO of the State Chamber, published in The Journal Record on July 29, 2019
This month, the American Tort Reform Association (ATRA) named Oklahoma as a "Judicial Hellhole."
That’s painful to read, but the truth sometimes hurts.
In its report, ATRA cited three reasons for the moniker: “the Oklahoma Supreme Court’s liability-expanding decisions,” the Attorney General’s “expansive view of the state’s public nuisance law,” and the growing relationship between trial lawyers and Republican legislators.
From the perspective of the business community, this label comes as no surprise when we remember our state’s highest court overturned major legislative victories such as caps on non-economic damages and real tort reform. Plus, let’s not forget the attempts to slowly chip away at major workers’ compensation reforms, thereby increasing liability for businesses and workers’ compensation insurers.
But perhaps most concerning to the business community, and likely at the core of that dreaded nomen, is the inherent conflict of interest in Oklahoma’s broken Judicial Nominating Commission (JNC).
Under the JNC, a nonpartisan commission made up of lawyers and non-lawyers reviews applications to fill vacant judgeships and forwards the names of three applicants to the governor. From these, the governor appoints one person to serve for a six-year term. At the end of their term, the judge faces a retention election.
Created as a reaction to a corruption scandal in the 1960s, the JNC was supposed to create an unbiased way to select fair justices. Instead, we got a system that is predominantly influenced by lawyers who benefit from having justices on the state’s highest court consistently willing to expand business liability.
The Oklahoma Supreme Court’s job is to impartially interpret the state Constitution and the laws passed by the Legislature. Unfortunately, the candidates selected by the JNC have become part of an increasingly activist judiciary—usurping the role of the Legislature, striking down laws they don’t like, and overusing the special law and single-subject provisions of the state Constitution to fit their own personal biases.
Indeed, both constitutional and legislative reforms to our legal system are imperative. We saw progress this year with House Bill 2366, which will increase the pool of qualified candidates eligible for a seat on the state Supreme Court, but it’s obvious more changes are needed if we are going to get rid of this miserable label.
If we want to crawl out the “Judicial Hellhole,” lawmakers should prioritize reforming our legal system next session.