Just because something “walks like a duck, quacks like a duck and acts like a duck,” it’s not a duck.
At least, that’s the legal opinion of Oklahoma Attorney General Gentner Drummond regarding the court-like proceedings of the Oklahoma Corporation Commission where sometimes the commissioners are referred to as “your Honor.” In another opionion favorable to Commissioner Todd Hiett, Drummond determined the Commissioners are not “real” judges and therefore cannot be the subject or target of investigations by the state Council on Judicial Complaints.
He issued a ruling this week stemming in part from the complaints of the three Republican legislators who sued Corporation Commissioner Todd Hiett in a move before the Oklahoma Supreme Court to stop him from voting on rate cases involving OG&E, ONG and PSO. As part of their case, they also filed complaints with the Oklahoma Council on Judicial Complaints regarding the allegations of drunkenness and groping of a man by Hiett at a bar during a national convention.
In their September complaint and request for a writ of prohibition filed with the Supreme Court, Reps. Kevin West (R-Moore), Tom Gann (R-Inola) and Rick West (R-Heavener) accused Hiett of alleged criminal conduct. They claimed Commissioner Hiett “continued to participate and vote in judicial cases involving regulated public utility companies whose employees/agents/representatives have direct knowledge of his alleged criminal conduct.”
Rep. Gann declined immediate comment to the ruling, saying he preferred to wait until after the Nov. 12 arguments to be made before the Supreme Court.
However, the Attorney General determined in his ruling that they weren’t real and actual “judicial cases” after all. The ruling was requested by Taylor Henderson, Administrative Director of the Council on Judicial Complaints.
“–the letter suggests that Corporation Commissioners are subject to the Council’s jurisdiction This office reaches the opposite conclusion. This office finds that Corporation Commissioners are not subject to the jurisdiction of the Council,” wrote Drummond in his latest opinion regarding Commissioner Hiett.
Drummond explained the State Supreme Court addressed whether Commissioners are judges consistent with article VII of the Oklahoma Constitution in a 1998 case filed by then-Attorney General Drew Edmondson against the Corporation Commsision. Drummond stated that the Court reiterated “that despite the fact that the Corporation Commission exercises quasi-judicial functions it is not a court (and) is not part of the judicial department and the commissioners are not judges.”
His legal opinion applies not to just the Corporation Commission but also to the more than 300 state agencies, boards and commissions, many of those perform judicial or quasi-judicial functions. Drummond found that the Council on Judicial Complaints is limited to considering allegations against “judges of any court” that subject the judge “to removal from office, or to compulsory retirement from office.”
“The Oklahoma Council on Judicial Complaints does not have jurisdiction to investigate complaints, including those arising under the Code of Judicial Conduct, against state boards, agencies, or commissions located in the executive branch, even when such boards, agencies, or commissions are exercising judicial or quasi-judicial powers,” he stated in concluding his opinion.