Oklahoma 2016 judicial retention

Two State Supreme Court justices, two judges on the Court of Criminal Appeals, and three judges on the Court of Civil Appeals are before the voters for retention. If any of the judges get more no votes than yes votes, he or she will be out of office, and a replacement will be appointed by the usual process.

Ordinarily, a third Supreme Court seat would be on the ballot, but Justice Steven Taylor announced his retirement at the end of the year. There's no need to vote on retaining someone who is stepping down.

In going back through some controversial decisions over the last few years, I find a mixed record. Justice Douglas Combs was alone in rightly parsing law and precedent regarding the Ten Commandments monument, understanding that something can be religious without being sectarian, and noting that his colleagues rejected precedent in Meyer v. Oklahoma City (a 50-foot cross on the State Fairgrounds, lit by city-funded lights) without explicitly overturning it.

Justices James Winchester and Taylor were the only ones to see the problem with the State Supreme Court crossing a constitutional boundary to get involved in a criminal matter in the Clayton Lockett botched-execution case. (In Oklahoma's split appellate system, criminal appeals go to the Court of Criminal Appeals, but no further; civil appeals go to a panel of the Court of Civil Appeals, from which a decision may be appealed to the State Supreme Court.) Winchester also joined Taylor in correctly labelling SQ 779 as logrolling in violation of Article XXIV, Section 1, of the Constitution of Oklahoma and in approving the clear ballot titles written by the Attorney General for SQ 780 and 781. Justice Combs was on the wrong side of these decisions. In my browsing through recent decisions, I found that often Winchester stood with Taylor on the right, but minority, side of an issue.

But Justice Winchester was the lone dissenter (without explanation) from a decision that affirmed that a county assessor could hire legal representation of his choosing in the pursuit of his duties.

Tony Lauinger of Oklahomans for Life notes the Supreme Court justices' hostility to pro-life laws, interpreting the "right" to an abortion much more expansively than the federal courts:

Regarding the Retention Ballot for Oklahoma Supreme Court justices, please note that the members of the Oklahoma Supreme Court - including those on the Retention Ballot - have repeatedly, arbitrarily, relentlessly handed down pro-abortion rulings. They even killed a pro-life law which would have promoted ultrasounds, even though a federal appeals court upheld a very similar law from Texas. A mother who sees an ultrasound of her baby is much less likely to have an abortion. Babies are dying every day in Oklahoma because the state Supreme Court struck down this law.

Our state Supreme Court is so notoriously pro-abortion that when the abortion industry challenges a pro-life law, they file suit in state court rather than federal court, because our Oklahoma Supreme Court is more pro-abortion than the federal courts.

The unanimous 9-0 decision by the court to block SQ 782, a proposed amendment to the Oklahoma Constitution banning abortion, created a chicken-and-egg problem. The state supremes cited Planned Parenthood v. Casey, saying that the U. S. Supreme Court's ruling is definitive until they overturn it. But SCOTUS won't overturn a ruling until a case reaches it, and that can't happen until a state passes a law in contradiction to it, the state enforces it, someone sues, and the case percolates up the Federal court hierarchy. Burns v. Cline, 2016 OK 99, is another example of the problem. Treating SCOTUS, and not the Constitution itself, sovereign is reason enough to boot out every single state justice.

Among the appellate judges up for retention, Judge Tom Thornbrugh was "called up" on the SQ 779 logrolling case to fill the shoes of a Supreme Court justice who had to recuse. Thornbrugh took the wrong position, voting with the majority that turned a blind eye to the proposition's obvious violation of the single-subject rule.

Of the judges on the retention ballot, Winchester was appointed by Rep. Gov. Frank Keating; Combs, Smith, and Fischer were appointed by Dem. Gov. Brad Henry; Joplin was appointed by Dem. Gov. David Walters; and Thornbrugh and Hudson were appointed by Rep. Gov. Mary Fallin. (See the Oklahoma Supreme Court handbook for 2015 for further biographical information.