Okla. Supreme Court Justice Marian Opala talks about his suit against

Journal Record, The (Oklahoma City), Jan 24, 2005 by Janice Francis-Smith

Justice Marian Opala knew his lawsuit would surprise a lot of people. After all, it's not every day a judge sues his fellow justices on the Oklahoma Supreme Court.

But he did expect those in the legal profession to understand his motivation.

I sued to establish a constitutional principle, said Opala. There's no evil or unethical ingredient in a lawyer wanting to establish a constitutional principle. No one in total control of one's faculties would accuse a lawyer of being unethical for wanting to establish a constitutional principle, do you agree?

For several years, Oklahoma Supreme Court justices with more than six years' experience have each taken their turn as chief justice, serving a two-year term in the top post. Opala last served as chief justice from 1991 to 1992.

In November, the other eight justices on the Supreme Court changed the rules to allow Justice Joseph M. Watt to serve a second consecutive term as chief justice, succeeding himself. Opala, who would have been the next to serve as chief justice under the rotation, called the rule change unprecedented.

He filed a lawsuit in federal district court, charging his fellow justices discriminated against him based on his age. Opala is 83 years old. The youngest justice on the court is 52 years old.

Opala speaks slowly and clearly, as one would expect from an adjunct professor to three of Oklahoma's law schools. His faint foreign accent is difficult to place because it's actually a convergence of my native Polish, my acquired British and acquired Okie, he said.

I think the principle I am pressing before the court for a decision is important to all judges, state and federal, said Opala. I am glad to be the guinea pig who will have an opportunity to establish it one way or another, he said, chuckling at the metaphor.

A small-built man with Old World manners and a smile reminiscent of actor Red Buttons, Opala is quick to find the humor in his situation.

I'm an old man, he said, tossing up his hands. I'm 83 years old. Don't let me forget it, because others don't let me forget it. I have been a lawyer for 52 bloody years, and a judge for 27 and a half-. So you see, I'm not a Johnny-come-lately. I've been at it a day or so.

Yet, he was less than amused with a New York Times story that quoted legal scholars from around the country questioning Opala's ethics and judgment. One law professor called his discrimination claim weak, while another suggested that the lawsuit reflects poorly on Opala's judgment and temperament.

It really annoys me that a state supreme court justice, who presumably should be jealous, in a good way, of his court's institutional autonomy, would run to a federal trial court to get an order compelling his court to do something, said Eugene Volokh, a law professor at the University of California, Los Angeles, as quoted in the Times story.

Opala criticized the legal scholars quoted in the Times story and other news sources from around the country that have reported on his unusual lawsuit.

Lawyers are very much like physicians, he said. If somebody calls me on the phone and says, 'Marian, please give me an opinion on this legal issue,' I say lawyers must be like physicians and not prescribe pills over the phone without having examined the body of the patient. And do you know what the body of the patient is in law? The court record.

-The professors who were so very anxious to express their opinions have never seen the body of my lawsuit, because that lawsuit has not yet come to be developed, it's just in its initial stages, said Opala. They passed judgment on me without ever examining the body of the patient, the record in the case.

The fact that Opala disagrees with his fellow justices should not have come as a surprise to the legal community, he said. Justices often disagree in their rulings, said Opala.

The lawsuit has not adversely affected his dealings with the other justices as they deliberate over the cases that come before them, he said.

I think we are civilized and interact professionally, in a civilized way, said Opala. Nobody has diminished me-. We just have a disagreement about the law.

Though he proudly talked about his son's work as an anthropologist, Opala reacted a bit defensively when asked about his own personal history.

I don't like to talk about myself, he said. Some things remain private by the inherent nature of them.

His history is irrelevant to the case at hand, he said.

People like to put you in a little, bloody pigeonhole, and I am beyond being pigeonholed, he said. I'm a human.

However, the many institutions that have honored Opala with various awards over the years have each provided a bit of his history. Born in 1921 in Lodz, Poland, Opala was a member of the Polish Resistance Movement, fighting the Nazi occupiers of Warsaw in World War II, according to the Oklahoma Heritage Association, which inducted Opala into the Oklahoma Hall of Fame in 2000. According to his write-up for the Hall of Fame, Opala became a German prisoner of war who was freed when the Oklahoma 45th Infantry Division liberated his prison camp.