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The Oklahoma Legal Group Blog

The Death Penalty and the Impeachment of Justice(s)

Adam Banner - Thursday, May 15, 2014

Just when it looked like the lethal injection lawsuit in Oklahoma couldn’t be any more of a hot mess, the case got hotter and the issues got messier. A decision by the Oklahoma Supreme Court to stay the executions of the involved death row inmates prompted a state representative to draft a resolution seeking the impeachment of the five justices who voted in favor of the stay.

Rep. Mike Christian says that the justices demonstrated a “willful neglect of duty” in issuing the stay of execution, saying that the state Supreme Court did not have the authority to make such a decision.

In order to understand the call for impeachment, one must understand the way the Oklahoma judicial system is set up, and what authority is granted to the Oklahoma Supreme Court.

In most states, there is only one “court of last resort.” Typically, this court is the state Supreme Court, but it may be known by other names in some jurisdictions—the Court of Appeals, the Supreme Court of Appeals, or the Supreme Judicial Court, for example.

Only two states—Oklahoma and Texas—have two courts of last resort, separating jurisdiction over civil matters and criminal matters. In Oklahoma, the Supreme Court presides over civil appeals, whereas the Oklahoma Court of Criminal Appeal has jurisdiction over criminal matters.

The Oklahoma death penalty lawsuit focuses on the constitutionality of the Oklahoma Department of Corrections’ policy of secrecy surrounding the identity of compounding pharmacies used to supply lethal injection drugs. Similar lawsuits have failed in both Missouri and Texas, but the Oklahoma lawsuit took a new approach by challenging the secrecy as a civil matter, rather than a criminal matter.

An attorney for the inmates, Clayton Lockett and Charles Warner, said of the lawsuit, "People may try to couch it as a criminal case, but in no way is it criminal. We never challenged the underlying sentences. We never challenged whether it was legal to execute through lethal injection. All we challenged was the law that kept the secrecy."  Because attorneys challenged the law on civil grounds, the case was heard in the Oklahoma Supreme Court.  

This created a problem, because when attorneys sought a stay of execution for their clients, the Oklahoma Court of Criminal Appeals said that it could not delay the executions because it was not presiding over the case.

The Oklahoma Supreme Court then ordered stays of execution, despite having no jurisdiction over criminal matters. The majority opinion asserted that a “rule of necessity” prompted them to issue the stays, stating, “As uncomfortable as this matter makes us, we refuse to violate our oaths and to leave appellants with no access to the courts, their constitutionally guaranteed measure.”

Dissenting justices, however, said that the appeal had no business being presented in the state Supreme Court in the first place. Justice Steven Taylor said that the appellants “maneuvered” them into presiding over a death penalty appeal, writing, “We have never been here before and we have no jurisdiction to be here now.”

To further complicate matters, Oklahoma Governor Mary Fallin said that the Supreme Court acted outside of its constitutional authority in indefinitely delaying the executions, and lifted the stay—scheduling the executions of both men for April 29. But legal experts say that the governor has no power to override the high court’s ruling, pointing to United States Supreme Court precedents showing that the high courts, not executive officers, have ultimate ruling over constitutionality.

Shortly after news broke that a member of the Oklahoma House of Representatives called for the impeachment of the five Supreme Court justices, the Court suddenly reached a ruling in the lethal injection lawsuit. The Court rejected the inmates’ claim that compounding pharmacy anonymity violated their constitutional rights and lifted the stays of execution that they had ordered pending the resolution of the case.

By now, the whole world knows how the Oklahoma Supreme Court's decision and the Governor's mandate regarding the execution of Clayton Lockett turned out. After Lockett's botched execution, the Governor appointed the Department of Public safety to conduct an independent investigation into the death of Clayton Lockett; meanwhile Oklahoma Court of Criminal Appeals, the same court that initially ruled in a published opinion that it did not have the authority or jurisdiction to stay the executions, issued a new decision, this time unpublished (of course), stating that the execution were to be stayed. That's two Oklahoma appellate courts completely reversing their decisions within a month. That's not good for morale. And by the way, where are all the calls for impeachment of the Court of Criminal Appeals justices? They themselves said they did not have the jurisdiction to stay the executions. Fat chance any legislature will step up to the plate on that issue...
But is it too little too late for the justices and the Oklahoma Supreme Court? The showdown between the state’s two high courts set off what Oklahoma Attorney General Scott Pruitt called a “constitutional crisis.”

In Oklahoma, judges may be removed from office in one of two ways:

  • Subsequent to a Council on Judicial Complaints investigation of judicial misconduct and recommendation of removal to the Court on the Judiciary

  • Through impeachment by the House of Representatives and a conviction by two-thirds vote of the Senate.

In 1966, three judges in Oklahoma became embroiled in arguments to such an extent that their bickering became scandalous. United States District Judge Stephen Chandler of the Western District of Oklahoma; United States District Judge Luther Bohannon of the Eastern, Northern, and Western Districts of Oklahoma; and Circuit Judge Alfred P. Murrah of the United States 10th Circuit Court of Appeals became the subject of a two-year investigation after their feuding prompted Oklahomans to call for their impeachment. The investigation found that the “Chandler Mess,” though appalling, was not criminal.

Just a year prior, in 1965, Oklahoma Supreme Court Justice Napoleon Bonaparte Johnson was ousted by a two-thirds vote of the Senate after the House called for his impeachment following a bribery scandal. Another Justice, Earl Welch, faced a similar fate but resigned in the wake of bribery allegations. The Johnson impeachment prompted Governor Henry Bellmon to call for reform in the state’s method of appointing state officials.

The current judicial standoff could bring forth similar reforms. It could signal the demise of the dual high court system if clear authority cannot be determined in separating civil and criminal matters. Honestly, we all might be better served if the Oklahoma Legislature would just go ahead and abolish the Oklahoma Court of Criminal Appeals. There really is no need for two high courts in one state, especially if they both can't play nice together.






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