By Patrick B. McGuigan | Oklahoma Watchdog
OKLAHOMA CITY — A state employee has used the government email system to encourage a vote of “yes” in November, favoring retention for 12 members of the state judiciary. The email is the latest maneuver in what could be the makings of an Oklahoma “judges war.”
In an email to 125 individuals both in and outside of government, John Miley of the Oklahoma Employment Securities Commission advocated retention of the four Supreme Court justices, three criminal appeals judges and five civil appeals judges on the November ballot.
Popular retention votes for the court are customarily routine, with “yes” majorities of two-to-one or stronger the norm. All appellate court judges in Oklahoma are subject to yes/no retention votes every six years. Newly appointed justices stand for retention at the earliest possible statewide election after their initial appointments.
Certainly, the State Chamber of Oklahoma’s new judicial evaluation report rating judges on what the group deems pro-businesses positions — unveiled just last week — is provoking both praise and criticism from diverse voices.
The conservative Americans for Prosperity’s Oklahoma chapter plans to make sure that state voters understand that all four of the high court justices facing a November retention vote ranked below 32 percent in the Chamber’s evaluation of cases touching business interests.
This week, Stuart Jolly, state director for AFP, described the four justices up this year — Yvonne Kauger, James Edmondson, Douglas Combs and Noma Gurich — as activists. Jolly told CapitolBeatOK he had not decided whether to launch an advertising campaign against the jurists, but pledged AFP would be publicizing the rankings to its thousands of members.
Miley’s email, dated Oct. 1 but only obtained today, said, “The Oklahoma Judicial system is currently under attack by special interests,” an apparent reference to the Chamber’s evaluation. He wrote it “would be a great loss to the citizens and businesses of this state to lose any of these judges or justices. Most voters turn to attorneys they know for guidance on how to vote in these races.” Miley concluded his note asking recipients to “please spread the word to your family and friends that we need their vote for retention.”
Oklahoma Ethics Rule 74 Ch. 62 10-1-3 forbids the use of “public funds, property or time,” for or against a candidate for state office, or for or against a ballot measure. In the past, the state Ethics Commission has treated judicial retention activities as subject to ethics provisions.
Miley’s actions aside, some voices are rising to express concern about the Oklahoma State Chamber’s evaluation.
Brady Henderson, an attorney with the American Liberties Union of Oklahoma, is a careful critic of the evaluation, which is modeled on conservative-leaning assessments of judges in other states, but new to Oklahoma.
In an interview with CapitolBeatOK, the libertarian lawyer contended, “There is nothing wrong with monitoring and evaluating the performance of public officials, such as the justices or our state Supreme Court. On the contrary, it is an important part of civic engagement.”
Henderson continued, “The Chamber’s system attempts to reduce every decision made to a numerical rating supposedly reflecting how ‘pro-business’ a justice is. When that happens, the resulting numbers can only reflect a very narrow part of how a particular justice does his or her job.”
In a press briefing, Neil Coughlan of the Judicial Evaluation Institute of Washington, D.C. defended the analysis, which was first unveiled last week. Coughlin’s institute performed the research for a “civil justice” arm of the Oklahoma State Chamber. Couglan studied six areas of jurisprudence, including employment, medical malpractice, product liability, insurance, other liability issues and workers’ compensation.
Fred Morgan, CEO of the State Chamber, declined to give the names of Oklahoma attorneys who reviewed Coughlan’s analysis. The Washington lawyer, in response to questions from CapitolBeatOK, said the breadth of his research, and “the law of large numbers” yield valid analysis on the pro-business group’s central concern, which is whether or not a “justice’s decisions have had the effect of restraining the spread of liability.”
Among trial lawyers, many argue against such evaluations or ratings, asserting that judges, particularly appellate judges, deal with countless complex issues over a career on the bench.
Henderson believes “Reducing these to a number glosses over critically important aspects of quality jurisprudence. Our state does not hire a Supreme Court justice to ‘perform’ or ‘produce results,’ as if we were bringing on a new sales manager at a car dealership — we appoint that justice to make difficult decisions based on values such as justice, equality, freedom, and respect for the law — values that cannot be quantified.”
Critics of the State Chamber include some on the Right, such as state Rep. John Bennett of Sallisaw and Charlie Meadows of the Oklahoma Conservative PAC, who said the evalua
tion goes after “judges who render decisions that the Chamber’s corporate members don’t agree with.”
As Republican power in the Sooner State rose over the past decade, many conservatives and business groups have viewed critically a range of state Supreme Court decisions, including a 2009 case, AT&T v. Oklahoma State Board of Equalization. In that one, justices ruled that “intangible” property could be assessed for purposes of ad valorem taxation.
Business groups fear enforcement of the decision could cost state businesses massive new property tax levies. Forty of the 50 states do not tax intangible property. While the Legislature has staved off the decision’s enforcement for three years, State Question 766, on the November ballot, is designed to overturn the AT&T case. Jolly cited the “intangible tax” as a motivation for his opposition to the justices on November’s ballot.
Sholer v. ERC Management Group LLC (2011) is another case that drew the ire of business groups. A Court majority ruled property owners (in this case, an apartment complex) could be held liable for injuries previously deemed “open and obvious” and therefore not subject to tort.
In all, the Oklahoma State Chamber included 145 cases in its analysis of the state High Court.
Still to come, and a probable source of new controversy: Soon, the Oklahoma State Chamber will release a separate evaluation of members of the Court of Civil Appeals.
In interviews over recent days, contrasting views concerning the merits of judicial evaluations were distilled. On the one hand, Morgan of the Oklahoma State Chamber said that because “judges are on retention ballots, voters have a right to more information before casting their ballot.”
The ACLU’s Henderson countered with a cautionary view: “To be truly informed about our court system, citizens must understand the limitations of ratings and look beyond the numbers.”
Contact Patrick B. McGuigan at Patrick@capitolbeatok.com and follow us on Twitter: @capitolbeatok.