OKLAHOMA CITY – On the November ballot, retention votes for four state Supreme Court justices are getting unusual attention this year, with voices both for and against a “yes” vote jockeying for position in these final days.
Advocacy for the jurists has emerged, featuring newspaper and other advertising, distribution of talking points to attorneys and other citizens, and other low-key approaches.
The activity is modest in comparison to candidate races, but the focus on judicial retention – both for and against – is unprecedented in the Sooner State.
To be clear, it would not be accurate, eight days before the election, to dub this a “judges war” – words like “joust” or a “dust-up,” perhaps even “battle” seem apt.
Support for “YES” votes took shape in response to a critical business-oriented analysis of judicial voting patterns on issues touching tort litigation and business issues.
The State Chamber of Commerce sponsorship of the critical study of the Supreme Court for the Oklahoma Civil Justice Council, released in early October, led trial lawyers to respond.
“Sholer v. ERC Management Group LLC” (2011) is one case that drew the ire of business groups, and it was included in the evaluation. In that instance, 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.
Gently countering the Chamber study, an advertisement placed by an Oklahoma City group called “Yes for Fair and Impartial Judges” underscores the importance of judicial integrity, fairness and impartiality. The group, including attorney Terry W. West of Oklahoma City, took what he called “educational steps” to inform voters that the four Supreme Court justices are not running against each other, but that voters “have the opportunity to support them, to uphold the law as written.”
Members of the Oklahoma County Bar Association have grown more visible in supporting the justices over recent weeks. State bar association officials are chiding the peers at their State Chamber for the industry and trade association’s evaluation of the four justices, which centered around 145 cases involving civil liability since 2006.
Fred Morgan of the State Chamber insists his organization’s evaluations are designed to fill a gap in which voters “have little or no information” about jurists. He said the Chamber wants voters to “make an informed decision on Nov. 6.”
On the side of the justices, lawyers have not opened financing floodgates, but in addition to scattered advertising are circulating messages via social media platforms asking colleagues to “educate and inform” Oklahomans, to “uphold the integrity and quality of justice in Oklahoma.”
On ballots, all state voters will see the names of the four justices – Yvonne Kauger, Noma Gurich, Doug Combs and James Edmondson. Voters are asked the question (Yes or No): “Shall —— of the Oklahoma Supreme Court be retained in office?”
Typically, justices and judges are retained by 2-1 or stronger margins. The Chamber study and a recent controversy could erode that support.
As reported on Watchdog.org, earlier this month Justice Gurich’s husband – John Miley, an attorney at the Oklahoma Employment Security Commission – used his state email address to advocate support for all the justices and judges facing retention this year.
Miley has said the advocacy did not violate states ethics strictures against use of government resources for political purposes. He asserts judicial retention elections are not political.
However, even supporters of the justices seem to agree with Miley’s critics, that such use of the state email system was unwise.
Members of the Oklahoma County Bar, encouraged by leaders to post messages on Facebook pages, were cautioned: “Please be sure that you do not forward this email to any address that is a government or judicial office.”
Through the Oklahoma Civil Justice Council, the State Chamber has its own advertising effort in selected newspapers. Those ads distill the evaluation of the High Court and a newer appellate court assessment without, however, explicitly calling for votes for or against any jurist. Each of the four “Supremes” facing retention were found to vote “right” less than one-third of the time, in the Chamber’s perspective.
The Chamber explains its evaluation system by pointing to a statement from the Institute for the Advancement of the American Legal System: “Where judges stand for ‘YES/NO’ retention votes…there should be robust judicial performance evaluation systems and wide public dissemination of evaluation information so that voters are informed about judges on their ballots.”
The Chamber also points out, “Similar evaluations have been completed in many states, including Alabama, Arizona, Arkansas, California, Colorado, Florida, Illinois, Iowa, Kentucky, Minnesota, Mississippi, Missouri, Montana, Nevada, Pennsylvania, Texas, and West Virginia.”
Morgan and others who distributed the Chamber analysis say the focus on civil liability is intended to underscore the role legal climate plays in state economic growth. The evaluation aimed to decide, for each of the cases examined, whether or not a justice’s vote had the effect of expanding civil liability.
Last week, the State Chamber unveiled a second analysis, focused of the records of the judges on the Court of Civil Appeals. Only three of the six judges evaluated were given formal scores, and the averages were higher than for the Supreme Court justices previously evaluated.