Will Move to Abolish the Oklahoma Criminal Appeals Succeed? (Part 2)

Or, Petition Could Put Amendment on Ballot

A lawmaker from Stillwater has introduced a bill to the 2018 legislature that says what some Oklahoma defense attorneys have often said in recent years. It is time to abolish the Oklahoma Court of Criminal Appeals.

In Part 1 of this series, we highlighted flaws in Oklahoma’s unique two-sided court system. Now we will take a look at the chances Rep. Williams bill will make it through the legislature onto the 2018 ballot. We do not give it good odds. (HJR 1051)

As a term-limited third-term incumbent, Williams has proven to be a viable sponsor of legislation despite standing his ground on controversial measures as a minority member. The Oklahoma Supreme Court, however, might find fewer friends in the legislature.

Although it might face an uphill battle in the legislature, Rep. Cory Williams bill might open dialogue about structural flaws in a unusual appellate system. We would hope for more, but that might be as far as it goes.

We suspect a ballot initiative could a more likely way to get a proposed constitutional amendment on the ballot. It would be a costlier approach. And, because of Oklahoma’s restrictive ballot petition rules, a petition would face a similar uphill battle..

An Oklahoma Bar Journal article in 2015 suggested a constitutional amendment petition would cost nearly $500,000, with another $500,000 to $750,000 for legal fees. After that, a successful campaign to educate voters could cost $1 million to $2 million.

Even though it is the costlier approach, we think it is the petition path is just as likely if not more likely to succeed. Here’s why.

Do Legislators have a Beef with Rep. Williams?

While Williams’ amendment might score high with defense lawyers, he might not find as much love in the legislature. If a tough-on-crime Republican-dominated legislature finds anything to like about the term-limited Democrat, it might be for standing his ground when overwhelmingly outnumbered. Otherwise, the Stillwater Democrat has a history.

Williams was among only 12 legislators who opposed a constitutional amendment that would have barred Oklahoma courts from considering Sharia law. When the anti-Sharia amendment appeared on the 2010 ballot, 70 percent of Oklahoma voters agreed with a measure legal scholar called meaningless.

U.S. law fundamentally supersedes any foreign civil or criminal code, legal experts opined. Some attention to his concerns could have saved Oklahoma some costly symbolic political posturing. A U.S. court eventually vindicated Williams stance, barring Oklahoma officials from certifying results of the referendum.

Williams stance as a maverick Democrat in a conservative legislature goes beyond is vote against the Sharia-law amendment. A heated exchange between Williams and House speaker Charles McCall over the 2017 revenue bill found its way into the state news cycle.

Most of the 11 bills Williams introduced in 2017 died in committee. He enjoyed some success though. Williams authored HB 2186 that approved sale of 3.2 percent alcohol beer in movie theaters.

Williams also won approval for a joint resolution establishing an Emergency Management Recognition Week. He found some support for a Bill of Rights monument and for memorial signs on Oklahoma highways recognized Highway Patrol and armed forces members killed in action, although neither of those measures made it to the House floor for a vote.

As unlikely as Williams reputation might be to persuade bicameral majorities, the Oklahoma Supreme Court might have an even worse reputation among legislators. In a showdown between Oklahoma’s Supreme Court and Court of Criminal Appeals, the odds in the state House of Representatives almost certainly favor the criminal side. The legislature and the state Supreme Court have a history of conflict.

Legislators’ Beef with the Oklahoma Supreme Court

In 2017, the House passed a non-binding resolution stating “specifically justices of the Oklahoma Supreme Court are directed not to interfere with this Legislature’ s right to clarify Oklahoma criminal law regarding abortion.”

When the two courts clashed in a squabble over execution plans for two death row inmates in 2014, Rep. Mike Christian drafted a resolution calling for impeachment of state Supreme Court justices who stayed the execution.

Christian’s impeachment resolution failed to gain traction, but it could be a fair bellwether of which court legislators might favor. It’s not the only clue. The Oklahoma Supreme Court has twice in recent years stricken major initiatives that defined the legislature’s sensibilities.

In 2013, the Supreme Court overturned a sweeping modification of civil procedures aimed at limiting malpractice and personal injury litigation. Among other flaws, the court found the far-flung bill violated the state’s constitutional prohibition against legislation addressing multiple subjects. The court subsequently struck down piecemeal efforts to revive some parts of the anti-tort legislation.

In 2017 the court had similar log-rolling objections about the legislatures rewrite of DUI laws related to drivers license revocations. That decision undermined lawmaker’s latest effort to fix revocation procedures the civil court had already deemed to be flawed.

OCCA’s Beef with the Oklahoma Supreme Court

The Oklahoma Supreme Court’s decision to strike the latest DUI revocation law also highlighted its conflicts with the Court of Criminal Appeals. The civil court ruled the State failed to lawfully promulgate rules for operation of a next-generation breathalyzer. Yet, the criminal court did not care so much that administrative rules had not been lawfully promulgated. The Court of Criminal Appeals said evidence from the breathalyzers could nonetheless be introduced into criminal cases.

One the most furious scraps between opposite sides of Oklahoma’s bifurcated court system flared up around how the different courts count weekends and holidays against deadlines. The Supreme Court accepted a motion from a criminal defendant who alleged a court had rejected his criminal appeal as untimely.

The Court of Criminal Appeals would have none of that. It refused to honor the Supreme Court’s declaratory judgement, saying it alone decides whether weekend days count toward deadline days in criminal cases.

Unlike the Supreme Court’s terse declaratory judgment in that case, the criminal appeals justices wrote opinions that fumed at the civil court’s sortie into territory criminal justices considered their turf.

Sure, the Oklahoma Constitution says our state’s Supreme Court rules supreme in a jurisdictional dispute between the two courts. But there was no contested jurisdiction in that case, the criminal court judges wrote. In a consenting opinion, one criminal appeals judge charged that the state Supreme Court had either tried to judicially revise the constitution or had blatantly disregarded the criminal court’s constitutional authority.

As improbable as Rep. Williams amendment might be for now, his initiative could all the same make it harder for Oklahoman’s to disregard consequences of the unique structure of our courts. Debate and hearings – if the bill goes that far – will bring into public focus problems that arise from a bifurcated court system. We count ourselves among those eager to see that discussion come into focus.

Strategy Session: Oklahoma Attorney

When you have a matter pending in Oklahoma courts, consult an attorney who knows how to navigate the complicated landscape of a two-sided court system. To schedule your initial strategy session about any criminal or civil matter in Oklahoma courts, contact a Tulsa attorney at Wirth Law Office. Call (918) 879-1681