USA – OKLAHOMA Trends and Developments Contributed by: David Elder, Erin O’Roke Oakley, Michael Whaley and Austin Dodd, Hartzog Conger Cason
tion mandates that district judges be elected in non- partisan elections. The court reasoned that − if busi- ness court were a division of the district court − then business court judges were, in fact, district judges who must be elected by the voters. By mandating an appointment process, SB 632 thus circumvented the Oklahoma Constitution. The court also observed that if business court judges were district judges, then the differences in treatment between judges (including qualifications, term length, support, and salaries) were unlikely to pass constitutional muster. Alternative paths forward Though SB 632 was ultimately struck down by the Oklahoma Supreme Court as unconstitutional, its introduction signals a clear recognition of the strain on the current system and a willingness by legislators to pursue reform. Supporters of SB 632 have indi- cated that they are not deterred and will work towards new legislation that avoids the issues identified by the Oklahoma Supreme Court. Several likely avenues are available for reform, as follows. Increasing resources in the existing district court s Instead of creating an entirely new court division, Oklahoma could focus on enhancing the functionality and capacity of its existing district courts by allocating greater resources to district judges. These resources could include the following. • Funding for law clerks − rather than creating new judgeships, funds could be allocated towards law clerks for existing judges. Depending on funding, clerks could be hired to work in a particular court or judicial district, with assignments based on case load or other factors relevant to that district. Although this solution would not directly address complex commercial litigation issues, the avail- ability of clerks would give judges greater abil- ity to perform independent research and review authorities cited by litigants, which should improve consistency of result. • Increased judicial compensation − to help attract and retain well-qualified district judges, greater funds could be allocated to judicial salaries. Oklahoma lags well behind other states in judicial compensation and past efforts to increase judicial compensation have been only partly successful.
The Board on Judicial Compensation has recently recommended a 17.58% pay increase for Oklaho- ma judges. An approval of this increase would go a long way towards making judgeships competitive. • Additional judgeships − the Oklahoma Legislature could also look at adding district judge positions based on civil case filings. In districts with signifi- cant civil case filings, an additional district judge- ship should improve the time to resolution of cases and allow for greater judicial attention per case. Amending the Oklahoma Constitution To validly create a standalone business court, the Oklahoma Legislature would need to propose a con- stitutional amendment to the public during the next general election. This process requires only a majority vote in both houses. The legislature could also put the question to voters in a special election with a two- thirds vote of each house. To pass, a state question needs only a simple majority of voters. Some support- ers of SB 632 have already indicated that they may pursue this path. Creating business court division that conforms to constitutional requirements Instead of an entirely new court, the Oklahoma Leg- islature could create a valid business court division within the district courts by making business court judges subject to the same election process as dis- trict judges. This option would ensure a designated judge for complex commercial cases, but it would not provide any assurance that the elected judge would have particular subject-matter expertise in business law. Still, it may be a worthwhile pursuit. Takeaways for businesses The Oklahoma Supreme Court’s ruling on SB 632 has closed the door on the business courts for now. How- ever, the Oklahoma Legislature appears committed to trying again, and the legal community will be watching closely to see whether future efforts can overcome the constitutional and structural flaws that doomed the first attempt. Until structural reforms are enacted, businesses oper- ating in Oklahoma must continue to resolve disputes through the existing district court system. In-house and outside legal counsel should carefully consider
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