DO NOT RETAIN Oklahoma Supreme Court Justices

Three Justices are up for Retention this November: Gurich, Kauger, Edmondson

Oct 07, 2024

It goes without saying that one of the first things you can do to make a difference in your community is to VOTE in state and municipality elections. Our local and state elections affect us much more directly than national elections, and because state and local races typically attract significantly lower voter turnout than national elections, your vote can have much more of an impact.

This November, you have several CRUCIAL state and local races to vote on.

In my opinion, the most important state decision for the voters is the three Oklahoma State Supreme Court retentions.

This vote should hit home for every resident of Cleveland, Oklahoma, and McClain Counties. If you want to know why, then keep reading.

There are nine Oklahoma Supreme Court Justices on the bench at any one time. They each stand for retention on a six-year rotating schedule. The retention ballot appears on general election ballots and is non-partisan.

Judges for all appellate courts in the state are selected through assisted appointment, where the governor selects a nominee from a list provided by a nominating commission. The Oklahoma Judical Nominating Commission, composed of both lawyers and non-lawyers chosen by the state bar, legislative and executive branch, screens candidates for judicial positions and then sends a shortlist of qualified candidates to the governor for consideration.

There have been recent efforts to change the way in which appellate court justices are selected. This past Spring 2024 legislative session, Senate Joint Resolution 34 proposed removing the Judicial Nominating Commission, allowing the governor to nominate judicial officers directly and send names to the Legislature for final confirmation. The House rejected it 36-60.

The Judicial Nominating Commission was created in 1967 with State Question 447 that amended the State Constitution as Article 7B-Selection of Justices and Judges. Their meetings are NOT subject to the state’s Open Meeting Act, though the body does consider public comment on candidates. Any proposed changes to the current nomination process must be put to a state question since it would be a Constitutional Amendment.

Supreme Court Justices up for Retention

The following THREE Oklahoma Supreme Court Justices are up for retention on our statewide November 5, 2024 ballot.

Justice Noma Gurich, District 3; Age = 71; Appointed 2011 by Gov. Brad Henry (D); Registered Republican; Served 13 years;
Justice Yvonne Kauger, District 4; Age = 87; Appointed 1984 by Gov. George Nigh (D); Registered Independent; Served 40 years;
Justice James Edmondson, District 7; Age = 79; Appointed 2003 by Gov. Brad Henry (D); Registered Democrat; Served 21 years;

All three of these justices have lost (or maybe never even had) their ability to critically evaluate legal challenges related to the interpretation of statutes. They have forgotten their oath to serve as an unbiased appellate court, interpreting laws as they were intended, and to function as an effective, independent third branch of government, protecting citizens from rogue governmental agencies.

The most important reason we have an executive, legislative, and judicial branch of government is to ensure separation of powers and provide a system of checks and balances. This structure is supposed to prevent any one branch from becoming too powerful, safeguard individual rights, and promote fair and balanced governance. Each branch has distinct responsibilities: the legislative makes laws, the executive enforces them, and the judiciary interprets them, working together to uphold the rule of law and democracy.

These three justices (along with quite a few of their Supreme Court friends), have effectively forgotten how to interpret laws with intellectual honesty. Even worse, they incorrectly divested the District (trial) Court of open meetings act claims by citing “exclusive jurisdiction,” when CLEARLY the Supreme Court only has “exclusive jurisdiction” to determine the validity of OTA bond applications and claims challenging the OTA’s authority to construct proposed turnpikes - NOT challenges to whether the OTA conducted its meetings in accordance with state law.

They have shown their lack of commitment to objective reasoning in countless cases, including multiple cases over the last several decades involving the Oklahoma Turnpike Authority.

These three Supreme Court Justices played a HUGE part in untethering the Oklahoma Turnpike Authority from the legislative intent and representative democracy, giving them unfettered power to build where ever and whenever they want.

That should be all you need to know to vote DO NOT RETAIN!

How have these Justices Ruled in OTA Related Cases?

2023 OTA Bond Validation Case #120,619

All three of these Justices voted AGAINST the Citizens in the matter of the application of the Oklahoma Turnpike Authority for Approval of Not to Exceed $500,000,000 Oklahoma Turnpike System Second Senior Lien Revenue Bonds, Series 2022 Case No. 120,619. The decision was 6-3.

Remember, this case had two pretty clear claims:

That the Outer Loop project had to be completed with a single bond issue; one that was taken in 1989 to complete portions of four turnpikes authorized in Statute 69, Section 1705 (e) 10, 20, 21 and 22. The OTA cannot seek multiple bond issues over the course of more than 30 years to complete their projects, which was stated clearly in Statute 69, Section 1705(f).
The legislature did not authorize the OTA to build the South Extension Turnpike anywhere in their 35 authorized locations specified in the Oklahoma Turnpike Enabling Act in Statute 69, Section 1705(e).

The six Oklahoma Supreme Court judges who endorsed the OTA-drafted legal opinion, laden with circular logic, bad law and the now defunct Chevron doctrine were unequivocally wrong - influenced by Justice Winchester, who allegedly is on the OTA preferred list. You know, the playbook they stole from Pennsylvania.

Their ruling, sucked up under “original jurisdiction for bond validation,” significantly undermined legislative intent and left Oklahoma citizens without recourse to address further statute violations.

2023 OTA Open Meetings Act Violation Case #SD-120,981

When the OTA appealed our winning SUMMARY JUDGMENT in the Open Meetings Act Violation District Court Case #CV-2022-1905 to the Supreme Court (SD-120981), Justices Kauger and Edmondson voted to OVERTURN our District Court win, while Justice Gurich dissented and preferred the district court case to stand. The decision was 5-3.

Justice Rowe stated in his dissent that “The Open Meetings Act (OMA) is one of the most consequential statuatory enactments our state has adopted in an effort to promote the public’s right to know what its government is doing and for what purpose public funds are expended. Our state constitution declares that all political power in this state is vested in the people (Oklahoma Constitution Article 2-1). The objective of the Open Meetings Act protects this guaranteed, constitutional right.

This court’s exclusive jurisdiction [to determine the validity of bond applications] does not divest the trial [District] court from determining whether an OMA violation occurred. The Plaintiffs’ OMA claims do not challenge the OTA’s authority to construct the proposed turnpikes in ACCESS Oklahoma. Rather, Plaintiffs’ OMA claims challenge whether the OTA conducted its meetings in accordance with state law. As such, Plaintiffs’ claims do not fall within our exclusive jurisdiction, nor does our precedent suggest otherwise. Title 69 O.S. Section 1718 cannot be construed to create a vacuum which subsumes any collateral issue concerning how the OTA conducts business into our exclusive jurisdiction. To interpret Section 1718 as such will deprive plaintiffs the right to parse out separate legal questions that necessitate the trial court.

The question of whether the OTA complied with the OMA requirements is a separate legal question where the trial [District] Court must ascertain findings of fact. The Supreme Court does not conduct trials - nor are we situated to make findings of fact. Without the ability to fully litigate the alleged violations in a trial or hearing, the Open Meeting Act is gutted. Accordingly, I cannot join in today’s pronouncement [majority opinion] which I view as an infringement on the people’s right to legitimately challenge an Open Meeting Act violation. ”

Summary

1. The Oklahoma Supreme Court doesn’t [SHOULDN’T] have “exclusive jurisdiction” to adjudicate all legal questions surrounding the OTA that necessitate a trial [District] court.

2. The Oklahoma Supreme Court majority ruled to INFRINGE ON OUR RIGHTS TO CHALLENGE Open Meeting Act violations even though they aren’t supposed to rule on such violations. Where is our DUE PROCESS and access to relief in the Justice system?

2016 OTA Bond Validation Case #115,345

In 2016, the OTA railroaded the folks along the Kickapoo (Eastern Oklahoma County Loop) and we didn’t even know about it because it happened so quickly. Case #115,345 was interesting. The OTA filed their application for Validation of Not to Exceed $480,000,000 Oklahoma Turnpike System Second Senior Lien Revenue Bonds Series 2016 on September 13, 2016. On October 7, 2016, a lawyer named Jerry Fent submitted a motion to dismiss based on two points of law.

The first point was that authorized locations 10, 20, 21, and 22 were unconstitutional pursuant to Oklahoma Constitution, Article 5, Section 57 (Logrolling) and could not be used for other turnpikes because the Turnpike Enabling Act (Title 69, Section 1705(f)) says that the construction of the four turnpikes “shall embrace by ONE issue for all FOUR” and “shall be financed, constructed and operated with ONE bond indenture.”

This was similar to what we argued in our 2022 Lawsuit that Justices Rowe, Kuehn and Hixon agreed with us on. We didn’t use the logrolling statute, but we said that Title 69, Section 1705(f) was clear that it allowed construction of those four turnpikes only under ONE bond issue.

The second point cited that the OTA’s practice of financing new debt to “refund” old debt in perpetuity is a violation of Oklahoma Constitution Article 2, Section 32 (Perpetuities). The lawsuit argued that any “refunding” in excess of 46 years for any turnpike location would be a violation of the “perpetuities” act.

Perpetuities and monopolies are contrary to the genius of a
free government, and shall never be allowed, nor shall the law of
primogeniture or entailments ever be in force in this State.

And then went on to say that the “refunding” statute 69 Section 1719 is unconstitutional as per the Oklahoma Constitution “perpetuities” act because the legislature cannot grant absolute future debt with no conditions or limits. There must be a debt ceiling limit AND a time limit with which to pay it off.

Then on December 13, 2016, a mere 3 months after the original OTA application, the court rendered its opinion that read……

“This Court has previously approved bonds requested by the Authority on ten separate occasions, having NEVER DISALLOWED a bond issuance in each of those cases.”

Wow… some majority opinion. So just because something has never been done, means that it ALWAYS has to be that way? How many brain cells did it take to think up that response?

ALL JUSTICES CONCURRED.

I might add that neither Rowe (appointed 2019), nor Kuehn (appointed 2021), nor Hixon (Special Appointee from Oklahoma Court of Civil Appeals) were on the court in 2016 - they were the Justices that wrote the scathing dissents in our Supreme Court cases in 2023 and are on the side of the people.

But you know who was on the Court in 2016????

Our democracy deserves a judiciary that upholds the law with integrity and fairness. It's time to demand better.

Let’s get rid of these three intellectually dishonest Supreme Court Justices, shall we?

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