With Gov. Kevin Stitt poised to appoint at least two new members to the Oklahoma Supreme Court, lawmakers have sent a bill to his desk that could expand the future pool of potential appointees by redrawing judicial district lines.
House Bill 2366 would retain the nine-justice Oklahoma Supreme Court structure but require that five of the justices be appointed from districts aligning with Oklahoma’s current congressional districts. The other four justices could come from anywhere in the state.
The five Court of Criminal Appeals judges would also be selected from districts that align with congressional lines.
Under the current system, the nine Supreme Court justices are appointed from districts drawn in the 1960s. Because of population shifts, less than one-third of justices today come from areas home to more than two-thirds of the state’s population. In some lower-population judicial districts, supporters of HB 2366 say it has become very challenging to identify qualified nominees who are willing to serve.
There are roughly 13,400 licensed attorneys who can be considered for judicial appointments. Six of the nine current Oklahoma Supreme Court districts are each home to about 4 percent of those lawyers or fewer. Just 2.5 percent of attorneys live within the current lines for the second district.
The challenge of finding judicial nominees from low-population districts came to the fore when former Oklahoma Supreme Court Justice Patrick Wyrick was nominated in 2017. A lawsuit was filed, unsuccessfully, that challenged Wyrick’s appointment, arguing he did not meet the residency requirements for the second district position. While Wyrick grew up in Atoka and his family maintained property there, critics argued his primary residence had been in the Oklahoma City metro in recent years.
Oklahoma Supreme Court Justice John Reif retires at the end of April while Wyrick vacated his seat after recently being confirmed as a district judge of the United States District Court for the Western District of Oklahoma. HB 2366 takes effect Jan. 1, 2020, so it is unlikely to impact the process for replacing Reif and Wyrick. Also, under the bill, the new Supreme Court districts will take effect as current justices reach the end of their terms.
Opponents argued the bill diluted rural representation on the court. However, Benjamin M. Lepak, a legal fellow with the 1889 Institute, has said the bill could actually increase the opportunity for rural lawyers to receive court appointments.
In a column published in the Enid News, Lepak noted that current Supreme Court Justice Yvonne Kauger has represented that Enid-based district since 1984.
“This means that well-qualified attorneys and judges from Garfield County have been waiting 35 years for the opportunity to even apply to be on the court,” Lepak wrote.
Because HB 2366 allows for four at-large appointments, he said rural lawyers would actually have “more opportunities” to apply for judicial seats because they would be eligible for at least five of the nine slots under the new system—one based on geography and four at-large positions.
HB 2366 passed the Senate on a 34-13 vote. It previously passed the House of Representatives on a 70-26 vote. It now proceeds to Gov. Kevin Stitt.