2024 Oklahoma judicial retention ballot

All Oklahoma voters will have 12 judicial retention questions on the backside of the November 5, 2024, ballot. Unlike district judges, where competitors run in non-partisan elections, justices of the Oklahoma Supreme Court and judges on the Oklahoma Court of Criminal Appeals and Oklahoma Court of Civil Appeals are appointed, but face a retention ballot every six years. (I think unopposed district judges should also face a retention ballot.)

Oklahoma has two separate appeals systems. Decisions of the Oklahoma Court of Civil Appeals can be appealed to the Oklahoma Supreme Court, while the Court of Criminal Appeals is the apex of Oklahoma's criminal court system. All of the appeals judges are appointed by the governor; the public has the opportunity to oust them at retention elections every 6 years.

In the 56-year history of Oklahoma's judicial retention elections, no judge or justice has ever been turned out of office by the voters. That may change this year.

The OCPA has produced an Oklahoma judicial scorecard, reachable at oklajudges.com. The nine current Oklahoma Supreme Court justices have been graded based on their ruling in selected cases. A description of OCPA's scoring methodology states:

To score well, a justice will join in opinions which respect their role as the interpreter--not maker--of law. As John Marshall said in Marbury v. Madison, "it is emphatically the province and duty of the judicial department to say what the law is." That means it's not the Court's role to say what the law should be. Furthermore, we score justices well who interpret the law based on the text as it was written by the legislature without finding ambiguity where none exists. In sum, we expect judicial officers to decide cases based on the facts and the law--not their own individual preferences.

The three justices on this year's retention ballot, Noma Gurich, Yvonne Kauger, and James Edmondson, have scores of 18%, 18%, and 22% respectively, exceeded only by Douglas Combs's 14%. All three voted in 2020 to override explicit language in the statute and allow absentee ballots to be accepted without notarization. In 2023, Gurich, Kauger, and Edmondson "found" a right to abortion in the emanationes et penumbrae of the Oklahoma Constitution, which nowhere mentions the barbaric practice which state statute prohibits. This year, the three plus Combs were on the anti-speech side of a free-speech case.

Governor Stitt's three appointees, Justices Kane, Kuehn, and Rowe, all score 80 or above. Stitt has done well with his judicial appointments, despite the involvement of a left-leaning private club in the nominating process; defeating Gurich, Kauger, and Edmondson would give Stitt three more appointments, leading, we hope, to a Supreme Court majority that applies the law as written.

The judicial scorecard does not extend to the two appellate courts. I plan to vote for all of Governor Stitt's appointments. While my default in the absence of any information is to vote no (to cancel out someone else who reflexively votes yes), I don't want, ignorantly, to turf out a judge who is doing a good job. I've reached out to attorney friends to get their sense on the appellate judges.

Criminal Appeals Judge David B. Lewis was on the wrong side of a 2023 ruling in a case involving an egregious violation of due-process rights in an Oklahoma County District Court murder case. According to the findings of fact in an evidentiary hearing, District Judge Timothy Henderson and Assistant District Attorney Kelly Collins were involved in a secret sexual relationship at the time the case was assigned to Henderson and at the time the first pre-trial hearing was held. District Court Judge Paul Hesse, who conducted the evidentiary hearing, wrote that it was immaterial that the affair had ended before the trial proper had occurred: "An unconstitutional potential for bias existed because Henderson could not have been neutral if he still had romantic feelings for Collins or if he feared that Collins might disclose their relationship out of frustration if she was dissatisfied with a ruling." Henderson was suspended in March 2021 as allegations involving three female attorneys came to light.

(Henderson was also the judge in the Daniel Holtzclaw case; Holtzclaw was accused of the same sort of abuse of power for sexual favors that drove Henderson from office. In 2019, all five judges in the Court of Criminal Appeals concurred in upholding Holtzclaw's conviction; of those five, Lewis, Musseman, and Lumpkin are still on the court, Kuehn is now on the Supreme Court, and Hudson has retired.)

The Criminal Appeals Court agreed with Hesse and by a narrow 3-2 vote remanded the case for a new trial, but Judges David B. Lewis and Gary Lumpkin dissented. In his dissent, Lewis argued that the because the relationship had ended two years before the actual trial was held, "These facts do not establish an especially high degree of risk that the average trial judge in this situation is objectively likely to be biased in favor of the state and against the defendant."

In the tables below I list each judge on the ballot, their current party registration, age, and the governor who appointed them. I also list my recommendation where I have one. For the rest, I am still gathering information.

Oklahoma Supreme Court

Court of Criminal Appeals

Court of Civil Appeals

*NOTE: Judges Rowland and Bell no longer appear to be in the public voter database, presumably having sought protection under one of the Voter Privacy Programs. In the most records available to me, from 2022, both were registered Republican at that time.

MORE:

Ballotpedia has useful information on the Oklahoma Supreme Court and Court of Criminal Appeals and the Oklahoma Court of Civil Appeals retention ballots.

The group People of Opportunity, whose board includes OCPA President Jonathan Small and OCPA fellow Trent England, is running television ads calling for the defeat of Kauger, Gurich, and Edmondson.

The December 2023 issue of State Politics and Policy, an academic journal, has an article updating the party-adjusted surrogate judge ideology (PAJID) scores for state supreme court justices nationwide through 2019. PAJID scores range from 0 to 100, where 0 is most conservative, 100 is most liberal. OCPA president Jonathan Small notes, "Only Hawaii, West Virginia, and Maryland had supreme courts whose justices' median PAJID score was as liberal as Oklahoma's throughout the entirety of the 1970-to-2019 period reviewed." The PAJID scores of the three Oklahoma justices up for retention: Kauger 79.08630, Gurich 35.72624, Edmondson 77.80814. The dataset is available for download by a link on the Supplementary Materials tab.