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Judicial appointments not subject to constitutional review says attorney

Attorneys challenging the eligibility of the newest Oklahoma Supreme Court justice are asking other members of the state’s highest court to step down if they wrote letters of recommendation for Justice Patrick Wyrick.

RELATED: Governor's Supreme Court pick could face legal challenge

The attorneys for the American Civil Liberties Union of Oklahoma are representing two people who live in the state’s second judicial district. They claim their constitutional right to representation on the Supreme Court has been violated with the appointment of Wyrick.

Wyrick claimed he was a resident of Atoka in the second judicial district since birth on his application to become a state Supreme Court justice. He does not live in Atoka and has spent almost the entirety of his adult life living, voting, working and raising a family outside the second judicial district.

His attorney told the Supreme Court referee that there is no conflict in where he lives and where he is a “qualified elector.” Neal Leader, a special assistant attorney general, told the referee any claim that there is a conflict in where Wyrick lives and where he is a resident is a “false statement.”

“The constitution thus forbids anyone, not the legislature not the courts not the electorate to take part in or interfere with the selection process under the constitution,” Leader argued. “Under the constitution no one can step into the shoes of the [Judicial Nominating] Commission and no one is empowered to review or undo the Commissions decisions.”

Article 7 of the state constitution describes the creation of the state Supreme Court and that it does have the power to review any board or commission created by the constitution.

Leader asked the court to recommend taking up the case only to throw it out and declare it frivolous. He argued that because the Oklahoma State Bureau of Investigation conducted the background investigation it was not possible for false statements to slip through the cracks of the nominating process.

“There is nothing frivolous about protecting and enforcing the state constitution,” said ACLU-OK Legal Director Brady Henerson. “There is nothing frivolous about protecting the integrity of the judiciary.”

Henderson argued that without court review the Judicial Nominating Commission would be allowed to violate the state constitution whenever it desired.

The ACLU said it has attempted to get copies of the letters of recommendation for Wyrick’s application, but those requests have been denied. In court filings the ACLU argued that while Wyrick served as solicitor general he might have made an impression on justices that would lead to one of them writing a letter of recommendation. If that happened, the ACLU said the justices should recuse themselves from ruling on anything related to Wyrick’s case.

Leader said that even if the court decided to take up the case Wyrick would still be qualified to be a justice because he spent a majority of his life in Atoka.

However, according to property records and his judicial application Wyrick has spent little, if any, of his adult life in Atoka. In fact he left Atoka at age 18 and spent the next 17 years living away from his boyhood home.

Leader said he would not answer FOX 25’s questions about the case. Those questions would have included why Wyrick chose to change his voter registration away from Cleveland County where he swore under penalty of a felony that he was a resident.

Leader also did not address at what age a child begins to pick up the customs, morals and values of a particular community. His statements to the court indicated Wyrick kept family and business ties to the area and recently purchased his boyhood home.

State law has defined domicile and residence to be where close family connections are, occupational connections as well as where one exercises political rights. Wyrick has never voted in Atoka and only registered to vote there in the Fall of 2016. Wyrick is raising a family at a home in Cleveland County where his wife is a registered voter and last voted as a resident of the district in November of 2016.

“A lot of our perspective though I think about things like political perspective, about what citizens value in communities, a lot of that you have to wait until you are an adult,” Henderson told reporters, “You have to wait until you've had those conversations over coffee in the local diner and you don't have those when you are five or six years old.”

The Supreme Court referee will present both sides of the argument to the justices who will make a decision as to whether or not they will hear the case. It is still not clear if Wyrick, as a Justice, will have any role or vote in the decision to take up his own case.

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