The Oklahoma Supreme Court late Tuesday put on hold a law that would create the state’s first business court system.
The action came after the full court earlier in the day heard a challenge to the constitutionality of Senate Bill 632.
During oral arguments, justices appeared skeptical about the legality of the measure, which was to become effective Sept. 1 and was strongly supported by Gov. Kevin Stitt.
Senate Bill 632 creates business courts in Tulsa and Oklahoma City, but critics said it violates a constitutional provision allowing Oklahomans to vote on retaining judges and because the $1,500 filing fee bars access to the courts.
Justice Noma Gurich questioned whether it would take a vote of the people to amend the Oklahoma Constitution to create business courts rather than legislative action.
She also asked if portions of the bill could be removed to make it constitutional.
Justice Douglas L. Combs asked if the measure was disenfranchising voters.
Attorneys Joe E. White Jr. and Jason Waddell, who sued Stitt, asked the court to put the law on hold and to toss it out as an unconstitutional bill.
The men had argued in their court filing that the emergency injunction was necessary because the House Speaker was expected to submit nominees for the first two judges and it would be unfair to ask anyone to give up their positions in the event the law is ultimately overturned. State leaders were also expected to begin leasing space and hiring staff for the courts.
“The Court assumes original jurisdiction for the purpose of issuing a temporary stay pending the litigation herein,” the order said, adding that the measure can’t be enforced until a future order. The vote was 6-3.
Bob Burke, representing the two attorneys, said that because the measure lets the governor appoint the two judges, it violates a constitutional provision allowing voters to vote on district and associate judges. The measure says the business court judges shall serve an 8-year term and could be reappointed.
“My biggest gripe about this bill is that it deprives us of the ability to vote,” Burke said.
The business court judges would be subject to the whims of the governor and Legislature, Burke said.
He said it is an impermissible special law because it treats certain people differently, and it would result in different treatment for two people in the same county depending on the amount of money in dispute.
Business courts would handle matters that involve at least $500,000.
The measure requires the House Speaker to submit three names to the governor for appointment. The Senate would vote to confirm the selection.
Currently, the Judicial Nominating Commission submits names for judicial vacancies to the governor. Senate confirmation is not required. The judges run on a nonpartisan ballot.
The jurisdiction of the business courts is so broad that it is unworkable, Waddell said during oral arguments.
The bill creates unlimited power for the governor to appoint judges without a way for voters to remove them through an election, he said.
“What they want is a judge who is hand picked to rule the way they want,” Waddell said.
Supporters of the measure touted it as a way to lure business to the state.
Audrey Weaver, Gov. Kevin Stitt’s deputy general counsel, told the court not to take the case, saying no one has sustained injury.
White and Waddell were not the proper parties to file suit.
Weaver said the Oklahoma Supreme Court does not issue advisory opinions or rule on speculation or hypotheticals.
She said the court needed to exercise “judicial restraint.”
Benjamin Lepak, Stitt’s general counsel, said the case was before the court because critics of the bill lost a policy battle at the Legislature.
Lepak said the measure expands access to the courts.
The $1,500 filing fee is reasonable and in line with that of other states, Lepak said.
“This lawsuit is a textbook example of attorneys trying to use the courts to block progress,” Stitt said in a press release. “They have no actual injury, no client affected by the law, and no standing to be here.”
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