IN RE: RULES OF MANDATORY JUDICIAL CONTINUING LEGAL EDUCATION

IN RE: RULES OF MANDATORY JUDICIAL CONTINUING LEGAL EDUCATION
1997 OK 82
Case Number: SCAD-97-15
Decided: 06/24/1997
Supreme Court of Oklahoma

 
O R D E R

The Oklahoma Supreme Court hereby adopts Rules for Mandatory Judicial Continuing Legal Education. The Rules for Mandatory Judicial Continuing Legal Education shall be codified at Appendix 4-A to Title 5 Oklahoma Statutes, Ch. 1. The Rules adopted by the Court are as follows:

Rule 1. Judges Who Must Obtain Annual Judicial Continuing Legal Education.

All Judges of the Oklahoma District Courts, the Court of Civil Appeals, Court of Criminal Appeals, and Justices of the Oklahoma Supreme Court, shall complete at least twelve (12) hours annually of Mandatory Judicial Continuing Legal Education (MJCLE).

Rule 2. Approved Courses for Mandatory Judicial Continuing Legal Education.

The hours of Mandatory Judicial Continuing Legal Education must be obtained by attendance at MJCLE courses or programs provided by the Administrative Office of the Courts, or a National Judicial College course, or an American Academy of Judicial Education course, or any other program specially approved by the Chief Justice of the Oklahoma Supreme Court for MJCLE. General continuing legal education programs or courses may not be used to satisfy the MJCLE requirement.

Rule 3. Judicial Continuing Education Programs at Meetings of the Oklahoma Judicial Conference.

The Administrative Office of the Courts shall provide MJCLE courses or programs at both the summer and winter meetings of the Oklahoma Judicial Conference, and at other times as scheduled by the Administrative Office of the Courts. The Administrative Office of the Courts shall maintain records of those Judges and Justices attending MJCLE programs and courses provided by the Administrative Office of the Courts.

Rule 4. Filing Reports of Mandatory Judicial Continuing Legal Education.

All Judges and Justices required to obtain twelve (12) hours annually of MJCLE shall file a verified report of the approved courses or programs they have taken during the previous calendar year. The report shall be filed with the Administrative Office of the Courts on or before January 15th of each year, commencing January 15, 1999. The report shall be made on a form provided by the Administrative Office of the Courts.

Rule 5. Carryover of Credit-Hours to Subsequent Years.

Hours of judicial continuing legal education in excess of the annual required minimum may be carried forward for credit in the following two calendar years. However, such hours must be reported in the annual report of compliance for the year in which they were completed and in each year the hours are carried forward. Hours carried forward must be designated as such on the annual report.

Rule 6. Report of Non-Compliance.

The Administrative Office of the Courts shall file an annual report with the Chief Justice of the Oklahoma Supreme Court listing any Judge or Justice who has not filed a report of Mandatory Judicial Continuing Legal Education, and any Judge or Justice who has not completed the twelve (12) hours of Mandatory Judicial Continuing Legal Education during the previous calendar year.

The Rules for Mandatory Judicial Continuing Legal Education shall be effective January 1, 1998.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 23RD DAY OF JUNE, 1997.

/S/ Chief Justice Kauger

CHIEF JUSTICE

KAUGER, C.J., SUMMERS, V.C.J., HODGES, LAVENDER, SIMMS, and WATT, JJ., concur.

HARGRAVE and WILSON, JJ., concur in part, dissent in part.

OPALA, J., dissents.

Opala, J., dissenting.

The court orders today that judicial functionaries be subjected to compulsory in-service training to be called "mandatory judicial continuing legal education" (MJCLE). The measure was prompted by a resolution of an unofficial body known as the Oklahoma Judicial Conference, whose membership is composed of all state trial and appellate judges. While at first glance the move appears to be pure "motherhood and apple pie," a closer analysis reveals that the program to be instituted is fraught with a host of potential problems. Below is a modest tip-of-the-iceberg litany:

I. THERE IS NO EVIDENCE TO SUPPORT MJCLE

(1) Neither appellate records nor grievances filed before the Council on Judicial Complaints reveal a system-wide failure of judicial functionaries to stay abreast of current developments in the law, which critically affects the process judges are called upon to apply daily.

(2) No statistical evidence has been assembled to show that there is a crisis prompted by widespread judicial ignorance of recent changes in the legal system. Nor have hearings been held to inform us of arguments that would either support or oppose the drastic move introduced by today's institutional design.

(3) Although judges currently need no CLE credits, there has been a noticeable voluntary presence of judicial officers at educational programs sponsored by the Oklahoma Bar Association.

II. MJCLE COULD INVITE A MYRIAD OF FEDERAL AND STATE

(1) By monopolizing judicial education through forcing judges to take certain "approved" courses available only from an accredited provider today's order appears to offend the First Amendment. The Supreme Court of the United States has held that the States cannot, as a condition of employment, require any individual to support some ideological cause that one may wish to oppose. Keller v. State Bar of Cal., 496 U.S. 1, 6, 110 S. Ct. 2228, 2232, 110 L. Ed. 2d 1 (1990); First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 814, 98 S. Ct. 1407, 1435, 55 L. Ed. 2d 707 (1978); Abood v. Detroit Board of Educ., 431 U.S. 209, 234, 97 S. Ct. 1782, 1799-1800, 52 L. Ed. 2d 261 (1977). The court's order creates an impenetrable intellectual cocoon that would seriously impair judges' exposure in in-service training to diverse academic analyses. Restricting judges' educational menu to a sole-source provider and to the only course-accrediting agency -- the Supreme Court of Oklahoma -- would indeed tend to impede the ideological neutrality and intellectual independence of the judiciary.

(2) Today's order is nothing less than a legislative predetermination of an adjudicatory fact. The court seems implicitly to declare -- as a fact -- that judicial incompetence does exist. The court concludes that the condition so found has created a statewide crisis that must be dealt with by institutionalizing MJCLE. If this court is indeed inclined to inquire into judicial competence, it should do so in an adversarial context -- by an institutional design that would give each judicial functionary who stands suspected of having deficient skills the opportunity to refute any imputed lack of state-of-the-art qualifications.

(3) MCLE's national image as pure "motherhood and apple pie" is currently under constitutional strain and attack. See Lew Warden v. State Bar of California , ___ Cal. Rptr. 2d ___, 1997 WL 114436, 65 USLW 2602, 97 Cal. Daily Op. Serv. 1915, 97 Daily Journal D.A.R. 3503 (Cal. App. 1 Dist., Mar 13, 1997) (No. A072485). Its crumbling structure should not escape our notice before a similar nightmare is to be foisted upon the state judiciary of Oklahoma.

(4) While the Supreme Court of Oklahoma does function as the State's top management agency for the entire judiciary, Art. 7, § 6, Okl. Const., it lacks authority to discipline judges who breach the bounds of allowable professional conduct. That power stands reposed in the trial and appellate divisions of the constitutional tribunal known as the Court on the Judiciary. Art. 7-A, § 2, Okl. Const.

(5) Today's order, issued without any antecedent empirical study or hearings, is not the finest example of this court's use of either its §6 or of its inherent powers to manage the state judiciary.

III. MJCLE IS INEFFICIENT, UNNECESSARY AND OVER-INCLUSIVE

(1) The regime introduced by today's order will swell the ranks of an expensive bureaucracy. Time-consuming tasks of (a) fashioning programs to be attended and choosing speakers to be approved, (b) keeping track of hours claimed for credit, and (c) checking attendance records to determine whether credit should indeed be extended, will require great efforts and generate a multitude of contested issues. Judicial resources should be devoted to a more productive task than that of policing judges' behavior through generating a bulky in-service training dossier for each functionary.

Moreover, the hours ordered to be spent away from the judge's job site will doubtless prove less than economically advantageous to the State, whose taxpayers will have to support both the time loss and the bloated bureaucracy.

(2) Compulsory post-graduate education for judges is a concept that strikes a fatal blow at the still-current and viable notion that professional persons will keep themselves abreast of changes by "home-schooling" and through voluntary attendance of carefully chosen programs tailored to one's academic or skills needs.

(3) Compulsory education whose requirements may be met by nothing more cerebral than proof of time spent in the classroom is an innate bookkeeping-entry approach that stands totally devoid of intrinsic educational value -- a mere charade.

(4) If there be in the system a number of judges who must be periodically "captured" for a mandatory educational update, these functionaries should be individually identified and dealt with by carefully targeting each needy officer's ascertained deficiencies.

I recede from today's order mainly because I would choose a surgeon's scalpel rather than a butcher's meat cleaver as an institutional design for excising from Oklahoma's benches the phenomenon of perceived judicial incompetence.