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.
James Edmondson is the brother and former law partner of Drew Edmondson, former attorney general and 2018 Democrat nominee for governor. Yvonne Kauger and James Edmondson are the only two remaining justices who participated in the unjust 2006 decision to invalidate the Taxpayer Bill of Rights initiative petition without a hearing.
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
| Office | Justice | Vote |
| District 3 | Noma Gurich (R, 72, Henry) | NO |
| District 4 | Yvonne Kauger (I, 87, Nigh) | NO |
| District 7 | James Edmondson (D, 79, Henry) | NO |
Court of Criminal Appeals
| Office | Judge | Vote |
| District 1 | William J. Musseman (R, 52, Stitt) | YES |
| District 4 | Scott Rowland (R*, 60, Fallin) | YES |
| District 5 | David B. Lewis (R, 66, Henry) | NO |
Court of Civil Appeals
| Office | Judge | Vote | Dist 2, Off 2 | James R. Huber (R, 56, Stitt) | YES |
| Dist 4, Off 2 | Timothy J. Downing (R, 45, Stitt) | YES |
| Dist 5, Off 1 | Thomas E. Prince (R, 67, Stitt) | YES |
| Dist 5, Off 2 | Robert D. Bell (R*, 57, Henry) | YES |
| Dist 6, Off 1 | E. Bay Mitchell III (R, 70, Keating) | YES |
| Dist 6, Off 2 | Brian Jack Goree (R, 60, Fallin) | YES |
*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. (UPDATE 2024/10/23: I have been able to confirm that all of the judges in the Courts of Civil Appeals and Criminal Appeals are registered to vote as Republicans.)
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.
UPDATE 2024/10/15: Steve Fair of Fair & Biased and Jamison Faught of Muskogee Politico have posted their judicial retention recommendations. Both agree:
- Supreme Court: NO on all three justices
- Court of Criminal Appeals: NO on Lewis; YES on Musseman and Rowland
- Court of Civil Appeals: NO on Bell; YES on the rest
I have added a NO on Bell. I have yet to see anything positive in his defense. (UPDATE 2024/10/19: I have now received some persuasive info in support of Judge Bell. Returning this one to undecided for now.)
Defeating Bell, Lewis, and the three Supreme Court justices would remove the last appellate judges who were appointed by Democrats. Why is this a valid criterion?
Since the Warren Court there have been two philosophies at work: Progressive jurists twist the clear meaning of the text and find "emanations and penumbras" to impose their preferences on the law books, to "amend" the constitution and the law without going through the required political process. Originalist jurists apply the text of the law as its meaning was understood by those who approved it. At the federal level, Republican presidents since Reagan have sought to appoint originalist judges, but have sometimes appointed progressive judges, but Democrat presidents always appoint progressive judges.
Reagan's first nominee, Sandra Day O'Connor, was thought to be an originalist, but balked in the Casey ruling at overturning Roe. (Her nomination as the first female justice was pushed by Reagan's advisors as a way of making history.) Anthony Kennedy was the result of Republicans losing the Senate in 1986 and Democrats politicizing the nomination of Robert Bork. In reaction, Bush 41 appointed David Souter, the local judge without a paper trail, hoping his conservative temperament would reflect an originalist philosophy. (It didn't.) But Reagan, the Bushes, and Trump also gave us Rehnquist, Scalia, Thomas, Alito, Kavanaugh, and Barrett. (Gorsuch and Roberts have generally been good, but too often seem to be steered away from the text by a sensitivity to public reaction.) All of the Democrat-appointed justices since LBJ have been progressives.
UPDATE 2024/10/19: I have received some positive information in support of Judge Bell and am returning to a neutral position as I research further.
UPDATE 2024/10/23: Jason Murphey offers another compelling reason to vote no on the three Supreme Court justices up for retention. Edmondson, Gurich, and Kauger all claimed a state law waiving a notarized statement in a civil proceeding meant that there also wasn't a requirement to notarize your absentee ballot.
In the wacky world of the Oklahoma Supreme Court, on May 23rd, 2002, the Legislature was prescribing free notarizations of absentee mail-in ballots, and on May 24th, 2002, it was allegedly attempting to remove any notarization requirement for many documents, including mail-in ballots. How insane is that?
Justices Combs, Darby, and Colbert also voted for the majority's absurd conclusion. Combs was retained in 2022, Colbert retired and was replaced by Justice Dana Kuehn, and Darby will be up for retention in 2026.
Murphey also highlights subsequent changes in laws about notarizing ballots, which would have been absurd if the Supreme Court's interpretation of the 2002 law was correct. A 2012 bill capped the number of ballots a single notary could witness to 20 per election cycle, to prevent a corrupt notary, perhaps someone who became a notary specifically for this purpose, working in cahoots with someone fraudulently requesting absentee ballots. In 2015, the law was loosened to allow more ballots to be notarized if by a notary during standard office hours. (The last time I got my ballot notarized at the UPS Store near us, I had wondered that they hadn't used up their 20 already, but with the 2015 law that limit would not apply to them.)
I have seen more yes and no opinions on the appeals court judges, but none that explain why beyond some link to voter registration party or party of appointing governor.
Those missing voter registrations: I have learned that, in addition to the two programs mentioned on the State Election Board website, the Address Confidentiality Program of the Protection from Domestic Abuse Act (22 O.S. 60.14) and Voter Registration Address Confidentiality (26 O.S. 4-115.2), there is a third law, the Oklahoma Judicial Security and Privacy Act of 2023, (20 O.S. 3011-3019), in which a judge can apply to the Administrative Director of the Courts to notify state and local agencies to remove home address and other personal information from being posted publicly. When the latter program is used, it results in the entire record being removed from the voter database, not just address information.
UPDATE 2024/11/02:
Jason Murphey has published an excellent essay on appellate judges, specifically on the appointments made by the most recent Democrat governor, Brad Henry, who appointed six justices to the Oklahoma Supreme Court, of whom three remain, two of which are on the ballot Tuesday.
Henry managed to appoint Noma Gurich, a radical leftist. In 2020, she would become the justice to order the state election administrator to accept the ballots of absentee voters, even though the identity of those voters hadn't been verified by a notary. Henry put Gurich on the Supreme Court with just three days remaining in his governorship. It was Henry's precedent-setting sixth appointment to the court--a move that ensured the court would be liberal for many years after Henry was in retirement.
Murphey provides some background on Civil Appeals Judge Robert "Bobby" Bell:
In 2005, Brad Henry appointed Robert "Bobby" Bell to the Court of Civil Appeals. This was, on the surface, for those who didn't know what was going on, a rather curious appointment. That's because Bell was a low-level municipal judge. How could Henry possibly justify boosting a judge, from municipal court, all the way up to the second-highest civil court in the state?Of course, those who were in the know knew that Bell was a member of the powerful and politically connected Bell Law Firm. One of that law firm's principals had close ties to Henry and had been in a board position at a deep-pocketed private foundation where he could help hire Henry's wife--a position she still holds to this day.
Murphey says the Bell appointment epitomizes the current broken system involving an unaccountable commission:
...the members of the Judicial Nominating Commission are not nominated by the people; they are appointed and thus are unaccountable to the people. So when they play politics, there's really no way for the people to hold them directly accountable.... And it's probably one of the leading culprits for why a red state, Oklahoma, has a very, very blue Supreme Court--an imbalance that isn't healthy or sustainable.
Murphey believes that special-interest money flowing to legislator campaign accounts is responsible for blocking reforms like SJR 34, which would adopt the federal approach to judicial appointments -- executive nomination with legislative confirmation.
Murphey also writes about Criminal Appeals Judge David Lewis, another Henry appointee, but notes that he was first appointed by Republican Gov. Frank Keating to a district judgeship in Comanche County before Henry elevated him to the appeals court. Murphey notes the importance of the Court of Criminal Appeals in light of McGirt.
The U.S. Supreme Court, under its current makeup, wouldn't have likely approved McGirt, but even though the makeup of that court is now different, for reasons of public perception, it's not going to be able to simply and immediately reverse McGirt.It will instead likely give the state various avenues to try to mitigate the great harm that has been done.
As I have pointed out, SCOTUS can only roll back and constrain the implications of McGirt if cases reach them. That means our city and state governments need to defend their authority to enforce their laws on everyone within their borders, and Murphey adds that we need a Court of Criminal Appeals which will uphold that authority. If Oklahoma and city officials are preemptively deferential to claims resting on McGirt -- as Monroe Nichols intends to be -- we won't have the chance to roll back the chaos Neil Gorsuch birthed.
Murphey says that Judge Lewis has a mixed record on this point:
While Lewis isn't a radical and in the past authored the vital decision that kept McGirt from being applied retroactively, earlier this year, Lewis dissented in one of the most recent of these cases, known as Deo. It was decided on a 3-2 vote with Scott Rowland and William Musseman, Republican appointees, who are also on the retention ballot this year, ruling to allow Oklahoma courts to retain subject matter jurisdiction over Indian cases.
Murphey discusses the other judges briefly, singling Civil Appeals judge Tim Downing out for his courage in resisting tax hikes in the 2017-2018 legislative sessions.
The Oklahoma Freedom Caucus tweeted out its judicial retention recommendations on October 21. They recommend a NO vote on all three Supreme Court justices, a NO vote on Criminal Appeals judges Rowland and Lewis, and a NO vote on Civil Appeals judges Bell and Goree. I understand that in addition to looking at party of appointing governor and personal voter registration, they looked into campaign contributions prior to becoming an appeals judge, and voter registration and campaign contributions of family members, which might indicate political leanings that the judge himself would wish to obscure.
A conservative friend expressed suspicion on social media about this sudden and well-financed push to get rid of three Supreme Court justices so that Gov. Stitt, with whom she has been deeply disappointed, can appoint replacements. What I'd say in response is that conservatives were calling for the defeat of Gurich, Edmondson, and Kauger the last time they were on the ballot in 2018, when Stitt was not yet governor, and I pointed out problems with all three in this article on the 2014 retention ballot. In 2012, I wrote, "State Supreme Court: NO on all. They think it is their place to stop Oklahoma voters from passing legislation that might be appealed to the Supreme Court. They're wrong." Edmondson, Kauger, Gurich, and Combs were all on the ballot that November.
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