Why the Oklahoma Supreme Court Rejected an Effort to Create a System of Business-Only Courts

 Why the Oklahoma Supreme Court Rejected an Effort to Create a System of Business-Only Courts

The Oklahoma Supreme Court has rejected an effort to create a new business-focused state court, but supporters of the proposed reform hope they can introduce new legislation that corrects the unconstitutional parts of the bill.

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A majority of the five Oklahoma Supreme Court justices rejected Senate Bill 632 on Tuesday, October 7.

The bill would have created two business courts headquartered in Tulsa and Oklahoma City, staffed by judges appointed by the governor. It was adopted by the Legislature and signed by the governor in May.

A group of lawyers immediately challenged the bill's method of selecting judges, arguing that the bill imposed an unconstitutional barrier to the court in the form of a $1,500 filing fee. Following the decision, the petitioner's attorney told The Oklahoman that he was pleased to see the court reject a direct attempt to circumvent the normal way Oklahomans elect their judges.

The Supreme Court's biggest flaw in this bill is that the governor would appoint Commercial Court judges from a list of three names provided by the Oklahoma House Speaker. The State Senate would then have the opportunity to approve or reject the appointment.

Supreme Court Justice Noma Gurich, joined by four other justices, wrote in her opinion that the bill technically creates new district judges—and the Oklahoma Constitution requires district judges to be elected.

Gurich wrote, "Although the intended purpose of SB 632 may have been to create a new court, the only accurate meaning of (this bill) is that it creates Commercial Court divisions within the Oklahoma County and Tulsa County District Courts." "Thus, 'Commercial Court' judges are district judges and therefore must be elected."

Governor Kevin Stitt says the decision is contrary to Oklahoma's reputation

Republican Governor Kevin Stitt was the main proponent of the bill. A day after the judges released their opinion, he said the decision was contrary to Oklahoma's reputation as "the most business-friendly state."

Stitt said, "The dissenting judges were right, and while the outcome is disappointing, it will not deter us from our mission to make Oklahoma a top 10 state in everything we do."

Chief Justice Dustin P. Rowe did not concur with the majority's full opinion, but he agreed that the judge positions created by the bill would have to be filled by election.

In his separate and non-binding opinion, Rowe wrote, "This method of judicial selection directly circumvents the constitutional requirement that judicial officers be elected by the people."

Judges Dana Kuehn and Travis Jett both dissented from the court's decision to hear the case and wrote separately that the District Court should have first reviewed the facts of the case.

Rowe, Kuehn, and Jett are three of the four judges appointed to the bench by Stitt. The fourth judge, Justice John Kane, appointed by the governor, did not vote in the decision.

The court did not explain why Kane did not participate, but under a 2024 law, Kane, who was completing his term as Chief Justice, was required to appoint a representative to the state task force on the commercial courts proposal. The task force ultimately drafted Senate Bill 632 the following year.

Could commercial courts still be implemented in Oklahoma?

If legislators and the governor want to try again, they could introduce legislation in 2026 that addresses the court's concerns. Former legislator and task force chairman John Echols said he hopes task force members will discuss the decision when they meet again in November. Echols is running for the Republican Party's nomination for Attorney General in 2026.

"I think the task force and I are very interested in creating constitutionally sound business courts," Echols told The Oklahoman. "This is not a new concept. Nearly half the states have business courts in some form. Oklahoma needs to modernize its system and become the best state in the country for business, and business courts are part of that transformation."

Senate Bill 632 faced a legal challenge in June when a group of lawyers filed a petition with the Oklahoma Supreme Court arguing that the new law is unconstitutional.

Oklahoma City attorney Bob Burke, who brought the case on behalf of plaintiffs Joe E. White Jr. and Jason Waddell, said he realized from the outset that several parts of the bill were unconstitutional.

Burke said, "I think the (Oklahoma Supreme Court) emphasized that, first of all, the method of selecting judges is 100% contrary to the Constitution, and the rest of the bill couldn't work without it. So they found the entire act unconstitutional."

Other issues raised by opponents of the bill included a $1,500 filing fee and hardship for litigants living outside of Oklahoma and Tulsa County, where the courts would be located.