Oklahoma Election 2020: Judges

The 2020 Oklahoma general election ballot has retention votes for three State Supreme Court justices, two judges on the Court of Criminal Appeals, and three judges on the Court of Civil Appeals. These are yes-no votes, unlike the district judge elections that occur in gubernatorial election years. If "no" prevails -- and it never has -- a vacancy would be created that would be filled by the governor's selection via the judicial nomination process.

Oklahoma has a dual-path court system: The Court of Criminal Appeals is the supreme arbiter in criminal cases. Civil cases are appealed to the Court of Civil Appeals, and can then be appealed to the Oklahoma Supreme Court. The Oklahoma Supreme Court does not handle criminal cases.

My recommendation is to retain Justices Kane and Darby and vote no on the rest. I've put an asterisk next to two of my no votes, to note that other conservative political analysts disagree with me.

Here are the judges on the ballot. Appointing governors and party affiliation are noted in parentheses:

Supreme Court Justice Matthew John Kane IV (Stitt, R, 2019): Yes (enthusiastically)
Supreme Court Justice Tom Colbert (Henry, D, 2004): No
Supreme Court Justice Richard B. Darby (Fallin, R, 2018): Yes (cautiously)

Court of Criminal Appeals Judge Robert L. Hudson (Fallin, R, 2015): No*
Court of Criminal Appeals Judge Gary L. Lumpkin (Bellmon, R, 1989): No*

Court of Civil Appeals Judge Jane P. Wiseman (Henry, D, 2005): No (emphatically)
Court of Civil Appeals Judge Deborah B. Barnes (Henry, D, 2008): No
Court of Civil Appeals Judge Keith Rapp (elected, 1984): No

(Judge Rapp first won election in 1984 when civil appeals judges were elected in competitive non-partisan elections. Beginning with the 1988 election, these judges were moved to the retention ballot (SB 22, effective April 20, 1987), which already applied to the State Supreme Court and the Court of Criminal Appeals. As far as I can determine, Rapp and the other judges who had won elections under the old system continued in their elected six-year term and then faced a retention ballot when their term expired, without needing a gubernatorial appointment.)

Other conservative voices, including Georgia Williams and Steve Fair, Jamison Faught at Muskogee Politico, and Charlie Meadows, longtime head of the Oklahoma Conservative Political Action Committee, have published their opinions on the judicial retention questions, and Faught has provided biographical detail on each judge. They would retain a couple of judges that I would reject, for reasons noted briefly below.

Oklahoma Supreme Court:

You can read through this year's Supreme Court decisions here; many of them had to do with pending initiative petitions, and many divided the court.

One key 2020 ruling addressed the requirement to notarize an absentee ballot; the court majority made a novel interpretation of the law, claiming that permission to substitute a signed, but unsworn statement for a notarized, sworn affidavit as evidence in a civil proceeding (Title 12) also eliminated the requirement for notarizing an absentee ballot (Title 26). The Legislature had to act quickly, passing SB210 to close the loophole that the Supreme Court majority created. Gov. Stitt's two appointees were among the three justices (Winchester was the third) to object to the bad judgment of the majority. Stitt has made two excellent, insightful, and independent picks in John Kane (on this ballot) and Dustin Rowe (not on this ballot), and voting "no" on Colbert will give Stitt opportunities to continue his winning streak, while eliminating a justice that has shown poor judgment in this critical case and others.

Kane and Rowe were dissenters on a ruling that forced the Secretary of State's office to count SQ 805 petition signatures, despite the pandemic; Darby voted with the majority. Kane wrote the near-unanimous opinion (Darby concurred, Rowe dissented on one minor point) striking down SQ 809 because the gist, presented to potential petition signers, did not honestly reflect the substance of the proposal.

Our family has known the Kane family for over a decade through our homeschooling community, which turned out in large numbers to attend his 2019 swearing-in. We have first-hand experience of John's integrity, character, and values. While still an Osage County District Judge, John opened his courtroom every spring to preside over a mock trial competition, which gave eighth graders an opportunity to see the inner workings of criminal court. COVID-19 prevented that tradition from continuing this year, but Justice Kane generously hosted a Zoom session with the students to answer their questions about the Oklahoma judicial system and legal careers. (He gracefully praised and sidestepped a question from my son about the implications of the McGirt ruling.)

Georgia Williams and Steve Fair disagree with me on Justice Darby, on the grounds that he is a recent appointment by a Republican governor (Fallin). Faught points to two unspecified cases on abortion as a reason to retain Justice Darby, and notes that his wife is recently retired as the head of Altus Christian School. Meadows says, "Some of [Darby's] opinions/dissents have shown flashes of an originalist and he appears to be pro-life."

I've changed my mind and decided to support Darby, partly on the strength of his dissent in a 2019 case, Oklahoma Coalition for Reproductive Justice v. Cline, a case involving legislation that regulated the off-label use of medications to induce abortion. Darby was the lone justice (Kane and Rowe were not yet on the court) to argue against the majority's ruling that summary judgment was appropriate. His reasoning was straightforward and sensible: There were contested facts in the case, therefore summary judgment is not permitted. The majority in the case cites Roe v. Wade, but they seem anxious to prevent any case from advancing that might open the door to a reversal of Roe v. Wade. This case illustrates why Oklahomans for Life has been focused in recent years on reform of the judicial nominating process.

The ruling on SQ 807, a petition to add a constitutional amendment legalizing marijuana for any purpose, is interesting in that Darby concurred in dissents by Stitt's two appointees, Rowe and Kane, which argued that the Federal Controlled Substances Act and the doctrine of supremacy means that the proposition is preempted by federal law and cannot move forward. The majority disagreed; the deadline for 807 signatures was Monday.

Oklahoma Court of Criminal Appeals:

If you believe the treatment of Oklahoma City Police officer Daniel Holtzclaw is unjust, you will want to vote against both Court of Criminal Appeals judges up for retention, Hudson and Lumpkin; both voted to reject Holtzclaw's appeal. HoltzclawTrial.com and freedanielholtzclaw.com present the case from Holtzclaw's perspective; here is the Court of Criminal Appeals ruling. Holtzclaw appealed the case to the U. S. Supreme Court, but the petition for certiorari was denied.

On the other hand, Faught quotes an acquaintance who worked for Lumpkin as saying that he is "to the right of Scalia," and he notes that Hudson is a Baptist deacon, Sunday School teacher, and a wheat farmer and cattle rancher. Meadows says that Hudson was "appointed by Governor Keating to replace a corrupt Democrat District Attorney out of Stillwater" and served as Chief of Staff to Attorney General Scott Pruitt. Williams and Fair support Hudson as a recent Republican appointee, but recommend a no vote on Lumpkin on the basis of his 31 years of service.

Oklahoma Court of Civil Appeals:

We still haven't forgotten or forgiven Judge Wiseman's 2003 reversal of her 1995 application of the state constitution's logrolling provision, seemingly in order to appease Tulsa elites who could help her career. (She was appointed to the appeals court soon thereafter.)

All of the conservative commentators recommend voting NO on all three Court of Civil Appeals judges, two of whom were appointed by Democrat Governor Brad Henry; the third, Keith Rapp, was elected in a competitive election in 1984, defeating an incumbent.