Can Oklahoma's Council on Judicial Complaints investigate misconduct allegations against members of state boards or commissions (like the Corporation Commission) when they're acting as judges?

Subject

Attorney General Opinion concerning the jurisdiction of the Oklahoma Council on Judicial Complaints.

Plain-English summary

The Oklahoma Council on Judicial Complaints (the body that screens misconduct complaints against judges and decides whether to refer them to the Court on the Judiciary) wanted clarification: when an executive-branch official, like a Corporation Commissioner, exercises judicial or quasi-judicial powers, does the Council have jurisdiction to investigate them under the Code of Judicial Conduct?

The AG said no. The Council's jurisdiction is statutorily coterminous with the Court on the Judiciary's jurisdiction (20 O.S. § 1651). The Court on the Judiciary's constitutional jurisdiction is limited to "the judges of any court" (Okla. Const. art. VII-A, § 1). Members of executive-branch boards and commissions, even when exercising quasi-judicial functions, are not "judges of any court."

The AG anchored the conclusion to State ex rel. Edmondson v. Oklahoma Corp. Comm'n, where the Oklahoma Supreme Court held 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." If even Corporation Commissioners (constitutionally vested with the powers of a court of record) are not "judges," other state board and commission members exercising lesser quasi-judicial powers cannot be either.

The opinion includes an important footnote: this conclusion does not exempt executive-branch officials from the Code of Judicial Conduct itself. The Code applies broadly to anyone who performs judicial functions (administrative law judges, magistrates, court commissioners). What the AG's opinion does is define who has authority to investigate violations of the Code. For executive-branch officials, that's not the Council.

What this means for you

For the Oklahoma Council on Judicial Complaints

You do not have jurisdiction over executive-branch board, agency, or commission members, full stop. If a complaint comes in about a Corporation Commissioner, a Medical Licensure Board member, an Accountancy Board member, or any similar official acting in their official capacity (even when performing judicial-style adjudication), you must decline jurisdiction. This applies whether the complaint frames the conduct as "judicial misconduct" or "violation of the Code of Judicial Conduct."

Your jurisdiction is defined by 20 O.S. § 1651 as coterminous with the Court on the Judiciary's, and the Court on the Judiciary's jurisdiction is limited by Article VII-A § 1 of the Oklahoma Constitution to "judges of any court." That phrase, per State ex rel. Edmondson, does not include executive officers exercising quasi-judicial powers.

For complainants concerned about misconduct by board, commission, or agency members

If you have a legitimate complaint about an executive-branch official acting in a judicial-style role, the Council on Judicial Complaints is not your forum. Your alternatives include:

• For elected officials: impeachment under Article VIII § 1 of the Oklahoma Constitution.
• For other officials: removal proceedings under 22 O.S. §§ 1181-1197 for grounds like willful neglect of duty or corruption in office.
• The official's parent agency or appointing authority (e.g., the Governor for many appointees).
• Potentially a federal civil rights claim, if the misconduct involves a constitutional violation.
• Direct litigation if the official's adjudicatory action affected your rights.

For administrative law judges and quasi-judicial officials in Oklahoma

You remain subject to the Code of Judicial Conduct as a substantive matter (Application (I)(B), 5 O.S. ch. 1, app. 4 makes it clear). The Code applies to "anyone who is authorized to perform judicial functions, including an officer such as a magistrate, court commissioner, special master, referee, or member of the administrative law judiciary." What this opinion changes is enforcement: the Council cannot investigate you for Code violations. Your discipline runs through your appointing authority and (for ALJs) through the rules governing your specific tribunal.

For Oklahoma Corporation Commissioners and members of similar bodies

You have constitutional cover for complaints filed with the Council; it has no jurisdiction over you. But you remain subject to the Code of Judicial Conduct as guidance for your conduct, and to the political accountability mechanisms for your office (election results, impeachment, removal proceedings).

For attorneys defending executive-branch quasi-judicial officials in Council matters

Cite this opinion. The Council should decline jurisdiction at the threshold rather than investigate, find a violation, and then face a jurisdictional challenge later. Coleman v. Court on the Judiciary Trial Div., Edmondson, and Mattingly are the key cases.

Common questions

What's the Court on the Judiciary?

A specialized court created by 1966 constitutional amendment to discipline and remove judges. It was established in response to a 1965 scandal at the Oklahoma Supreme Court where three justices were forced from office over an alleged $150,000 bribe (per Bob Burke, "From the Ashes of Scandal Came Court Reform"). The COJ has authority to remove judges for "[g]ross neglect of duty; corruption in office; habitual drunkenness; commission while in office of any offense involving moral turpitude; gross partiality in office; oppression in office; or other grounds as may be specified hereafter by the legislature." It can also order compulsory retirement for mental or physical disability.

What's the Council on Judicial Complaints?

The Council, established in 1974 under 20 O.S. §§ 1651 et seq., is a screening body that receives misconduct complaints about judges and investigates them, then refers actionable matters to the COJ. The Council briefly had power to issue reprimands and admonitions in 1997-1999, but the legislature stripped that power in 1999.

Why doesn't a Corporation Commissioner count as a judge for these purposes?

The Oklahoma Supreme Court in State ex rel. Edmondson summarily rejected the Corporation Commissioners' argument that they were "judges" for purposes of the Article VII salary exception. The Court held that "while the Corporation Commission may exercise legislative, executive and judicial powers, the Commissioners are not judges, and are properly considered under the executive department under Article 6 § 1 of the Oklahoma Constitution." The same constitutional logic applies under Article VII-A § 1.

What if a complainant labels their complaint as "judicial misconduct" against an ALJ?

The Council still has no jurisdiction. The labeling doesn't change the underlying constitutional analysis. The Code of Judicial Conduct may apply substantively to an ALJ, but the Council has no authority to investigate or discipline. Refer the complainant to the relevant agency or, if elected, to the appropriate accountability process.

Could the legislature give the Council jurisdiction over executive officials?

The opinion suggests not, because the Council's jurisdiction is constitutionally tied to the Court on the Judiciary's, and the COJ's jurisdiction is constitutionally limited to "judges of any court." Expanding the Council's reach would likely require a constitutional amendment.

How are executive-branch officials disciplined for misconduct in their adjudicatory roles?

Several routes:
- Impeachment for elected officials (Article VIII § 1).
- Removal proceedings under 22 O.S. §§ 1181-1197 for willful neglect of duty or corruption.
- Internal agency discipline for appointed staff and ALJs.
- Direct judicial review of the adjudicatory decision itself for parties who were affected.
- Civil rights litigation for due process violations or other constitutional issues.

Background and statutory framework

Three constitutional and statutory pieces fit together here:

Constitution Article VII-A § 1. Defines the Court on the Judiciary's jurisdiction: removal or compulsory retirement of "the judges of any court" for enumerated grounds.

20 O.S. § 1651. Created the Council on Judicial Complaints in 1974 as a screening body for misconduct allegations. Its enabling statute defines its purpose as "investigating complaints by any person concerning the conduct of persons occupying positions subject to the jurisdiction of the Court on the Judiciary." That last phrase ties the Council's reach to the COJ's reach.

State ex rel. Edmondson v. Oklahoma Corp. Comm'n (1998). The Oklahoma Supreme Court resolved who counts as a "judge" for Oklahoma constitutional purposes. Quasi-judicial executive officials are not judges, even when they wield "the powers and authority of a court of record" (which is what Article IX § 19 grants the Corporation Commission). The Commissioners are "properly considered under the executive department."

The AG opinion combines these three: COJ jurisdiction is limited to judges; "judges" excludes executive quasi-judicial officials; Council jurisdiction tracks COJ jurisdiction; therefore the Council cannot investigate executive officials. The reasoning is straightforward, and the AG notes the policy logic: a 1966 amendment created in response to a Supreme Court bribery scandal was clearly not intended to give a small judicial-discipline body broad investigative authority over the entire executive branch.

The footnote about the Code of Judicial Conduct's substantive reach is important. The Code (5 O.S. ch. 1, app. 4) applies to "anyone who is authorized to perform judicial functions, including an officer such as a magistrate, court commissioner, special master, referee, or member of the administrative law judiciary." So administrative law judges and similar officials are bound by the Code's substantive standards, even though enforcement runs through different channels.

Citations

• 20 O.S. § 1404 (definition of judicial officer)
• 20 O.S. § 1651 (Council on Judicial Complaints purpose, ties jurisdiction to COJ)
• 22 O.S. §§ 1181-1197 (removal of officers for cause)
• 59 O.S. §§ 15.23-15.24 (Accountancy Board quasi-judicial powers; example)
• 5 O.S. ch. 1, app. 4 (Code of Judicial Conduct, including ALJs)
• Okla. Const. art. VI § 1 (executive department)
• Okla. Const. art. VII § 11 (judicial salary exception)
• Okla. Const. art. VII-A § 1 (COJ jurisdiction limited to judges of any court)
• Okla. Const. art. VIII § 1 (impeachment)
• Okla. Const. art. IX § 15(A), § 18a(B), § 19, § 28 (Corporation Commission)
• Okla. Const. art. XXIII § 10 (no salary changes during term)
• Mattingly v. Ct. on Judiciary, Trial Div., 2000 OK JUD 1, 8 P.3d 943 (history of COJ and Council)
• Coleman v. Ct. on Judiciary Trial Div., 2020 OK JUD 1, 472 P.3d 714 (COJ jurisdiction over judges only)
• State ex rel. Edmondson v. Okla. Corp. Comm'n, 1998 OK 118, 971 P.2d 868 (Corporation Commissioners are not judges)
• Vogel v. Corp. Comm'n of Oklahoma, 1942 OK 14, 121 P.2d 586 (Corporation Commission not a court)
• State ex rel. Oklahoma State Bd. of Med. Licensure & Supervision v. Rivero, 2021 OK 31, 489 P.3d 36 (Medical Board quasi-judicial powers)
• In re Application of Oklahoma Gas & Elec. Co., 2018 OK 31, 417 P.3d 1196 (Corporation Commission powers)
• In re Rules Governing Complaints on Jud. Misconduct, 2006 OK 82, 186 P.3d 926
• 2023 OK AG 11 (AG opinions as quasi-judicial action)

Source

• Landing page: https://oklahoma.gov/oag/opinions/ag-opinions/2024/ag-opinion-24-17.html
• Original PDF: https://oklahoma.gov/content/dam/ok/en/oag/opinions/ag-opinions/2024/AGO24-38%202024%20OK%20AG%2017.pdf

Original opinion text

GENTNER DRUMMOND
ATTORNEY GENERAL
ATTORNEY GENERAL OPINION
2024-17

Taylor Henderson
Administrative Director
Oklahoma Council on Judicial Complaints
1901 North Lincoln Boulevard
Oklahoma City, OK 73105

November 1, 2024

Dear Ms. Henderson:

This office has received your request for an Attorney General Opinion in which you ask, in effect, the following:

When members of Oklahoma state boards, agencies, and commissions who are part of the executive branch exercise judicial or quasi-judicial powers, are they subject to investigation by the Oklahoma Council on Judicial Complaints for violations of the Code of Judicial Conduct?

I. SUMMARY

State boards, agencies, and commissions that are in Oklahoma's executive branch are not subject to investigation by the Oklahoma Council on Judicial Complaints ("Council") when they exercise judicial or quasi-judicial powers. The Council's jurisdiction is coterminous with the jurisdiction of the Court on the Judiciary ("COJ"). 20 O.S.2021, § 1651. The COJ's jurisdiction is limited to removing "judges of any court." OKLA. CONST. art. VII-A, § 1. State boards, agencies, and commissions located in the executive branch do not qualify as judges of any court under the Oklahoma Constitution, even when they exercise judicial or quasi-judicial powers. Therefore, the Council has no jurisdiction over executive branch state boards, agencies, and commissions, which includes an investigation by the Council for violations of the Code of Judicial Conduct.

[Footnote: Nothing in this Opinion should be read to indicate that executive branch officials are exempt from complying with the Code of Judicial Conduct when acting in a judicial or quasi-judicial manner. The Code of Judicial Conduct applies to "anyone who is authorized to perform judicial functions, including an officer such as a magistrate, court commissioner, special master, referee, or member of the administrative law judiciary." Application (I)(B), Code of Judicial Conduct, 5 O.S.2021, ch. 1, app. 4. This is broad enough that those members of a board, agency, or commission who act as administrative law judges are likely subject to the code sections applicable to periodic part-time judges or pro tempore part-time judges. Id. at Parts IV-V.]

II. BACKGROUND

The Oklahoma executive branch has over three hundred state agencies, boards, and commissions. Many state agencies, boards, and commissions perform judicial or quasi-judicial functions. For example, "[t]he State Board of Medical Licensure and Supervision is statutorily granted quasi-judicial powers while sitting as a Board for the purpose of revoking, suspending or imposing other disciplinary actions upon the license of physicians or surgeons of this state." State ex rel. Oklahoma State Bd. of Med. Licensure & Supervision v. Rivero, 2021 OK 31, ¶ 20, 489 P.3d 36, 44. Similarly, the Oklahoma Accountancy Board is granted quasi-judicial powers to, among other things, "[r]evoke any certificate, license, practice privilege or permit issued pursuant to the provisions of the Oklahoma Accountancy Act." 59 O.S.2021, §§ 15.23-15.24. Moreover, even the Attorney General's issuance of opinions is an action within his or her quasi-judicial capacity. 2023 OK AG 11, ¶ 12.

"The Court on the Judiciary was created by a series of amendments to the constitution, Okla. Const. Art. 7-A §§ 1 et seq., passed by a vote of the people in 1966." Mattingly v. Ct. on Judiciary, Trial Div., 2000 OK JUD 1, ¶ 11, 8 P.3d 943, 948. The COJ was created in response to a scandal that rocked the Oklahoma Supreme Court in 1965 and led to three justices being "forced out of office and disgraced" for their part in allegedly accepting a $150,000 bribe.

The COJ is charged with removing "the judges of any court" for "[g]ross neglect of duty; corruption in office; habitual drunkenness; commission while in office of any offense involving moral turpitude; gross partiality in office; oppression in office; or other grounds as may be specified hereafter by the legislature." OKLA. CONST. art. VII-A, §§ 1(a-b). It also has authority to order "compulsory retirement from office, with or without compensation," if a judge is proven to have "mental or physical disability preventing the proper performance of official duty, or incompetence to perform the duties of the office." Id. § 1(c).

"The Council on Judicial Complaints was created in 1974 by 20 O.S. §§ 1651, et seq. and remained largely unchanged until 1997." Mattingly, ¶ 14, 8 P.3d at 948. Relevant here, the Council was created "[t]o afford a means for efficiently and impartially investigating complaints by any person concerning the conduct of persons occupying positions subject to the jurisdiction of the Court on the Judiciary." 20 O.S.2021, § 1651.

III. DISCUSSION

The Council Does Not Have Jurisdiction to Investigate Complaints Against State Boards, Agencies, or Commissions Located in the Executive Branch.

The Council's express purpose is "investigating complaints by any person concerning the conduct of persons occupying positions subject to the jurisdiction of the Court on the Judiciary." 20 O.S.2021, § 1651. Consequently, the Council's jurisdiction is coterminous with the jurisdiction of the Court on the Judiciary.

The COJ's jurisdiction is limited to considering allegations against "judges of any court" that subject the judge "to removal from office, or to compulsory retirement from office." OKLA. CONST. art. VII-A, § 1; see also Coleman v. Ct. on Judiciary Trial Div., 2020 OK JUD 1, ¶ 5, 472 P.3d 714, 716. Consequently, the issue presented is whether members of state boards, agencies, and commissions are themselves considered "judges of any court" under Oklahoma's Constitution.

Members of an executive branch state board, agency, or commission are not judges of any court as that phrase is used in article VII-A, section 1 of the Oklahoma Constitution. The Council suggests in the letter accompanying its opinion request that Oklahoma Corporation Commissioners are subject to its jurisdiction. Specifically, the Council points out that the Oklahoma Corporation Commission "exercise[s] legislative, judicial, or executive power." In re Application of Oklahoma Gas & Elec. Co., 2018 OK 31, ¶ 11, 417 P.3d 1196, 1201. Further, "[w]hen it exercises judicial power, the Commission is functionally a court of record." Id. As a result, 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.

The Oklahoma Supreme Court addressed whether Corporation Commissioners are judges consistent with article VII of the Oklahoma Constitution in State ex rel. Edmondson v. Oklahoma Corp. Comm'n, 1998 OK 118, ¶ 21, 971 P.2d 868, 873. Edmondson involved an attempt to increase the pay of Corporation Commissioners that became effective during the term of the Commissioners' office. Id. ¶ 1, 971 P.2d at 869. The question presented was whether the proposed pay increase violated article XXIII, section 10 of the Oklahoma Constitution, "which prohibits change in the salary of any public official during the official's term of office unless otherwise provided." Id. ¶ 1, 971 P.2d at 869. The Corporation Commissioners argued that they were not subject to this constitutional limitation because they qualified for an exception to this rule for judges found in article VII, section 11 of the Oklahoma Constitution. Id. ¶ 20, 971 P.2d at 873. The Oklahoma Supreme Court summarily rejected this claim. Specifically, "[w]hile the Corporation Commission may exercise legislative, executive and judicial powers, the Commissioners are not judges, and are properly considered under the executive department under Article 6 § 1 of the Oklahoma Constitution." Id. ¶ 21, 971 P.2d at 873 (emphasis in original). The Court went on to reiterate "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." Id. (citing Vogel v. Corp. Comm'n of Oklahoma, 1942 OK 14, 121 P.2d 586, 587).

Such analysis applies equally to other state boards, agencies or commissions in the executive branch. The Corporation Commission has been vested with "the powers and authority of a court of record" in the Oklahoma Constitution. OKLA. CONST. art. IX, § 19. If commissioners, who together may wield "powers and authority of a court of record," do not qualify as judges under the Oklahoma Constitution, it is unlikely the Oklahoma Supreme Court would designate members of any other state board, agency, or commission located in the executive branch to be "judges" under the Oklahoma Constitution. To hold otherwise would subject many, if not most, executive branch officials, including those who are elected by the voters, to investigation and removal by the Council and COJ. There is no evidence that a Court on the Judiciary created in response to a bribery scandal at the Oklahoma Supreme Court was intended to have such broad power outside of the judicial branch. Therefore, this office concludes that members of state boards, agencies, commissions are not "judges of any court" under article VII-A, section 1 of the Oklahoma Constitution. Accordingly, the COJ and Council do not have jurisdiction over members of state boards, agencies, and commissions.

It is, therefore, the official Opinion of the Attorney General that:

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.

GENTNER DRUMMOND
ATTORNEY GENERAL OF OKLAHOMA

GARRY M. GASKINS, II
SOLICITOR GENERAL