A Deep Red State With a Deep Blue Judiciary

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Oklahoma is a deep red state. Its two U.S. Senators are Republicans. Its governor is a Republican. And the Republicans control both chambers of Oklahoma’s legislature. But there is one outlier in the state – the Left-leaning Oklahoma Supreme Court. Oklahoma’s progressive bar association has made sure of that by using a Judicial Nominating Commission (JNC) to steer the names of only three candidates for seats on the Oklahoma Supreme Court from whom the governor must pick his or her nominee. The JNC makes recommendations for judges to fill vacant seats on some lower courts as well.

Unlike the federal system in which the president nominates federal judicial candidates and the U.S. Senate confirms, Oklahoma does not permit its elected governor a free hand in selecting his or her own judicial nominees to serve as Oklahoma Supreme Court justices for the elected legislature’s consideration. The JNC must first inject itself in the middle of the appointment process. A panel of so-called “experts” supplanting the will of the people is the progressives’ typical model of governmental “reform.”

The non-elected Oklahoma bar association lawyers choose just as many members of the powerful fifteen-member JNC as the elected governor, and three times as many JNC members as the elected legislators of the Oklahoma House and Senate combined. Six JNC members are lawyers whom the bar association members select. They are the only lawyers permitted to serve on the JNC. The people’s elected representatives in the legislature get to make two non-lawyer appointments to the JNC, one by the President Pro Tempore of the Oklahoma State Senate and one by the Speaker of the Oklahoma House of Representatives. The governor selects six members of the JNC, no more than three of whom can be affiliated with the same political party. The final JNC member is selected by the other fourteen.

Only after the justices the governor selects from the JNC’s three recommendations serve their initial terms do the voters get a say in whether they should remain on the bench in what are called retention elections.

The Judicial Nominating Commission operates like a secret conclave. There is a total lack of transparency. The JNC does not hold public meetings. The public is not told how the members of the JNC voted.

The unelected lawyer members, flaunting their legal “expertise,” are positioned to exert a disproportionate influence on the outcome of the JNC’s secret voting for the three recommended candidates from whom the governor must choose the nominee. And the Oklahoma bar association is far from being a neutral participant in the selection process.

The Oklahoma Council of Public Affairs’ Director of the Center for Independent Journalism, Ray Carter, reported that, as of April 12, 2024, “Public records show that 22 of the 32 JNC members selected by the Oklahoma Bar Association from 2000 to today (nearly 69 percent) have directed most of their campaign donations to Democrats, including to presidential candidates like Barack Obama and Hillary Clinton. Only one bar member serving on the JNC since 2000 overwhelmingly donated to Republican candidates.”

The Oklahoma Bar Association President is Miles Pringle. He has been a campaign donor to Democratic candidates, including President Joe Biden. Mr. Pringle has also donated to Democrat legislative caucus leaders.

It should be no surprise, therefore, that the prevailing ideology on the Oklahoma Supreme Court has pointed in the liberal direction. Carrie Severino, president of the Judicial Crisis Network, has said that judicial-appointment systems like Oklahoma’s JNC are “how you might get a red or a purple state with a blue judiciary.” And blue judiciaries regularly place their policy preferences over those of the legislators whom the voters elect to make such policy choices. That is the way the progressive Left likes it.

For example, in 2019 the Oklahoma Supreme Court struck down as “unconstitutional” a $350,000 cap on the recovery of non-economic damages (i.e., damages for pain and suffering). The Oklahoma legislature had enacted the cap ten years earlier in its 2009 tort reform omnibus bill that was amended in 2011. The cap does not apply in cases involving death or where there is clear and convincing evidence proving that the party at fault causing the injury acted recklessly or willfully.

“The failing of the statute is that it purports to limit recovery for pain and suffering in cases where the plaintiff survives the injury-causing event, while persons who die from the injury-causing event face no such limitation,” the majority opinion stated. The latter reference is to lawsuits that the estates of persons killed in accidents can bring on their behalf. The court also arbitrarily rejected a distinction that removed the cap for injuries caused by the recklessness or the willful misconduct of the party at fault but not for injuries caused by the negligence of the party at fault.

Oklahoma’s elected officials made a policy choice. They decided to single out the death of a loved one and injuries caused by the recklessness or willful misconduct of the party at fault as exceptions to the statutory cap for pain and suffering damage awards. If any justices disagree with that policy choice, then they should run for office in the legislature to change the policy. However, the justices should not presume to usurp the legislators’ policy-making authority from the bench. Yet that is precisely what the Oklahoma Supreme Court majority did in this case.

Trial lawyers in Oklahoma are happy. They were handed a bonanza. But businesses, medical professionals, and ordinary Oklahomans who are paying more for goods and services because of much heftier insurance premiums to cover outsized damages verdicts for pain and suffering are out of luck.

This was not an isolated case of the liberal activist Oklahoma Supreme Court’s overreach. In 2017, the Oklahoma Supreme Court struck down part of Oklahoma’s workers’ compensation law dealing with continued eligibility for benefits. This provision had prohibited an individual who was injured at work from receiving permanent partial disability benefits if the injured worker missed two or more scheduled appointments for treatment without a valid excuse. The court rejected a perfectly logical rationale for the legislature to halt such benefits when the claimant skipped more than one scheduled appointment for treatment for no good reason – to prevent gaming of the compensation system.

An egregious example of the liberal activist Oklahoma Supreme Court’s overreach involved a case brought by a sex offender in 2013 in Oklahoma state court. He had moved to Oklahoma from Texas, where he had received a deferred adjudication in 1998 on a felony charge of sexual assault upon a child.

This transplanted sex offender challenged the requirement that he register for life pursuant to amendments to the Oklahoma Sex Offenders Registration Act instituting a risk classification system for determining the length of required registration. He alleged that the classification system under which he was required to register as a sex offender for life was being improperly applied to him retroactively.

Oklahoma’s Supreme Court agreed with the convicted sex offender. This court’s majority decided that subjecting him retroactively to the amended statute’s risk assessment classification, imposing a lifetime registration requirement in his case, was too punitive and violated the ex post facto clause of Oklahoma’s State Constitution. Article 2, Section 15, of the Oklahoma Constitution, like Article I, Section 9 and Section 10 of the United States Constitution, provides that “[n]o . . . ex post facto law . . . shall ever be passed.”

The majority decision was written by Justice Douglas L. Combs, whom Ballotpedia rated as a “Strong Democrat.”  It reflects the left-wing progressives’ propensity to place the interests of a convicted violent criminal over public safety, which should include the people’s right to know whether a sex offender is living in their midst.

Justice Steven Taylor, a moderate conservative on Oklahoma’s Supreme Court at the time, dissented. He had it right when he wrote that the Oklahoma Sex Offenders Registration Act is “a civil, nonpunitive, noncriminal regulatory program that does not violate any ex post facto concerns when applied retroactively. This registration list is not punishment. It is a convenient uniform reflection of the public record. It is one of the many, many unpleasant lifetime civil consequences of being convicted of a felony. The public’s right to have this information trumps the discomfort and inconvenience caused to the convicted sex offender.”

Contrast the Oklahoma Supreme Court’s decision in favor of the convicted sex offender with the outcome of a federal case involving another convicted sex offender who moved from Texas to Oklahoma. Like the convicted sex offender in the state case, the sexual-assault conviction of the sex offender in the federal case required him to register pursuant to the Oklahoma Sex Offenders Registration Act. The Oklahoma statute imposed various obligations and restrictions on him as long as he lived in Oklahoma. This convicted sex offender had to regularly report to the local police department, and he was prohibited from residing or loitering within specified distances from a school, playground, park, or childcare center. In 1998, when the sex offender was convicted, Oklahoma did not have any residency or loitering restrictions for sex offenders. It did require reporting for sex offenders in 1998, but that requirement would already have expired in this case.

The convicted sex offender in the federal case challenged these restrictions on the grounds that they were being imposed upon him retroactively in violation of the U.S. Constitution’s prohibition of ex post facto laws. But the United States Court of Appeals for The Tenth Circuit rejected this claim, refusing to defer to the Oklahoma Supreme Court’s ruling based on the Oklahoma Constitution’s ex post facto clause in the sex offender case discussed above. The 10^th Circuit Court concluded that the Oklahoma statute was being applied retroactively, but that did not matter in this case. The 10^th Circuit Court ruled that the restrictions on reporting, residency, and loitering did not constitute retroactive punishment in violation of the ex post facto clause of the U.S. Constitution.

Judge Robert Bacharach, whom President Barack Obama nominated to serve on the United States Court of Appeals for the 10th Circuit, wrote the majority opinion. “The reporting and residency restrictions do not resemble traditional forms of punishment,” he wrote. They are legitimate measures that are “consistent with the legislature’s non-punitive objective of protecting public safety.”

The liberal Oklahoma Supreme Court’s decisions in such cases as the ones discussed in this article are out of step with the Oklahoma people’s will, as expressed through their elected representatives. The decisions overstep the justices’ judicial authority to interpret the law fairly and dispassionately, not to legislate from the bench. The culprit in deep red Oklahoma is the Left-leaning Judicial Nominating Commission, which progressives happily use to place liberal justices on the bench who are supportive of the progressives’ ideology.