Judge's lawsuit stumps panel

OKLAHOMA CITY (AP) _ Whether to dismiss an Oklahoma Supreme Court justice's lawsuit against his court colleagues is a ``puzzling and difficult'' decision, a federal judge said after listening

Saturday, March 12th 2005, 11:46 am

By: News On 6

OKLAHOMA CITY (AP) _ Whether to dismiss an Oklahoma Supreme Court justice's lawsuit against his court colleagues is a ``puzzling and difficult'' decision, a federal judge said after listening to attorneys argue in Oklahoma City.

Justice Marian P. Opala sued his state Supreme Court colleagues in federal court in December over a rule change he said kept him from serving as chief justice.

Opala, 84, said his age played a role in the other justices squeezing him out of the court's top job.

The other justices _ Joseph M. Watt, James R. Winchester, Robert E. Lavender, Rudolph Hargrave, Yvonne Kauger, James E. Edmondson, Steven W. Taylor and Tom Colbert _ have asked the lawsuit be dismissed because the rule didn't keep Opala from being chief justice, he just wasn't elected.

After listening for nearly two hours on Friday, U.S. District Judge Clarence Brimmer of Wyoming said both sides made ``fine arguments,'' but that he would need some time to reach a decision.

``I guess what I'm going to have to do is hit the books and read until I get the feel of which way I'm going to go,'' said Brimmer, who was appointed to hear the case after the federal judges in Oklahoma City recused.

Arguing to dismiss the lawsuit, Senior Assistant Attorney General Neal Leader said the rule before and after it was changed in November called for an election to chief justice.

The only difference, Leader said, is that the old rule left four justices, including Opala, eligible to become chief justice. The new rule, which allows for consecutive terms, meant five justices are eligible to serve a two-year term, Leader said.

After the new rule was adopted, Chief Justice Watt was re-elected. He was previously ineligible to serve consecutive terms.

``Justice Opala's eligibility was unchanged by that amendment,'' Leader said. ``In short, there is no discrimination based on age or otherwise.''

But the history of the Supreme Court supports that Opala, who at the time served as vice-chief justice, had a reasonable expectation of being first in line for the post, said attorney Stanley M. Ward.

Before Watt was re-elected, only one other time since 1960 had a vice-chief justice not been the next to be appointed to the top post.

Lavender waived his turn so that Alma Wilson could serve in 1995 and 1996 as the court's first female chief justice, Ward said.

``It had happened for 45 years running and that was the particular practice of that court until the change in Rule 4,'' Ward said. ``We are entitled to go forward with the presentation of evidence to see if Justice Opala can succeed.''