The Oklahoma State Capital

It’s the November election item that no one is talking about, but should be: the judicial ballot.

My recommended vote:

On the state Supreme Court, a no vote on Darby.

On the other state courts, if the last name starts with H, vote to retain; if not,

vote to dismiss.

Oklahoma State Supreme Court

Why a no vote on Darby?

Think back six years, when powerful, moneyed interests from all across the nation sought to strip away the safeguards protecting the integrity of American elections.

In Oklahoma, those forces took aim at the weakest part of the Oklahoma system: the no-excuse absentee ballot.

The concept of endless absentee voting is an affront to the principle of a sound election system: an election where, sans good and real reason, all voters vote on the same day, after all sides, both moneyed and non-moneyed, have had time to make their case, and custody of the ballots never passes through the hands of a third party.

An endless election season, with no-excuse absentee voting, provides a tremendous advantage to the moneyed interests, and that advantage gets even stronger when they can harvest absentee ballots. It’s an affront to the principles of republican governance, turning government into an entity that no longer represents the views of educated voters who care about their votes and are willing to stand in line as long as it takes on Election Day to cast those votes, but rather becoming simply an extension of the corrupt moneyed forces who grift off of government’s power.

In 2020, Richard Darby joined five other Oklahoma Supreme Court justices in sweeping aside the thin legal safeguard intended to check abuse of absentee ballots. It was an act of judicial anarchy: six justices assuming the role of lawmakers and discarding the protection protocol the legislature had put in place.

The result? As the State Election Board secretary described it, Oklahoma was left “without a means to verify that the person who signs an absentee ballot affidavit is the same person to whom the ballot was issued.”

, I described some of the specifics of that case, should the reader want to delve into the science of judicial anarchy and how the lawless six “justices,” including Richard Darby, took the law into their own hands.

It was a defining vote, so egregious as to instantly disqualify one from the bench. But Darby, notwithstanding his appointment by a Republican governor—in this case, Mary Fallin—has too often found himself on the side of the radical Brad Henry judges.

Examples include Darby’s vote to erase the vital prohibition on powerful New York financial interests using the money of Oklahoma’s public employee retirees to do business with concerns conducting “energy sector boycotts”; and, most recently, the majoring-making vote, in a 5-4 decision preventing the people from being able to sign a petition for property tax reform, and perhaps illustrating why your vote on Darby’s retention is so very important.

In that latter case, the court’s chief justice, Dustin Rowe, who could be described as the court’s conservative mind most in the style of Antonin Scalia, described the Darby position:

“Pre-election constitutional review of an initiative petition places us in precisely that position: we are determining the constitutionality of a measure before it becomes law and, in doing so, preventing the people from exercising the legislative power the Constitution has reserved to them.”

If Rowe is analogous to Scalia, Darby is this court’s David Souter: appointed by a Republican, but someone who is known to keep the balance of the court in favor of the all-too-often liberal majority.

Darby has the good fortune of being on the ballot in the year in which the bulk of the new generation of more conservative-minded justices are also up for retention. These justices are close to wresting control of the court from the grasp of the Brad Henry-appointed judicial anarchist majority, which had dominated the court for so many years in complete opposition to the values of the citizens of the state.

Thus, because only one judicial activist resides in this crop of retentions, Darby, Darby’s judicial activism simply hasn’t been exposed for the public to see, unlike in the last election cycle, when there were three judicial anarchists up for retention and there was an effort to inform and truly educate the public on the specifics of the court’s activism.

Of note, Darby’s been perhaps the most vicious of the justices toward the efforts by Tom Gann, Rick West, and Kevin West to protect the interests of the taxpayers from the sick system that’s exacting a heavy toll in the form of high utility rates. It’s a complicated story for another day; but, across multiple rulings on these matters, Darby has been hostile and, in one case, was just one of two to rule that the legislators didn’t have the ability to continue their pursuit of the matter.

The other Supreme Court justices up for retention were all appointed by Governor Kevin Stitt and are forming the core of a new majority that’s much more in line with the thoughts and values of Oklahoma voters, as the Brad Henry leftists continue to exit the court.

There have been warning signs, though. In a recent ruling on “attorney privilege,” the court, with the notable exception of Darby who was recused, for some reason, and Rowe, the standout constitutionalist on the court, extended “into perpetuity” the secrecy surrounding the University of Oklahoma’s findings as they relate to David Boren’s purported misconduct while president of that University.

Setting aside the great lengths the university and now the state Supreme Court have gone to protect Boren’s legacy, the problems with this ruling extend the court’s already dark history on this subject, essentially using the pretense of attorney communications to dramatically roll back the public’s ability to know how their government operates. This continues to create a special class, an elite class, of politicians and bureaucrats who cannot be truly held accountable because the truth can never fully be known to the public.

However, I would suggest that, at least for now, with the very clear exception of Darby, this new generation of justices be given the opportunity to prove they can return the state’s highest court to its proper role and scope, one that’s consistent with what most Oklahomans believe it should be: limited and judicial, rather than legislative.

So, no on Darby; yes on Kane, Kuehn, and Jett, with the caveat that they would be well advised to consider and follow the example of Rowe.

Court of Criminal Appeals

On the Court of Criminal Appeals ballot, there’s only one judge, and he should be retained: Rob Hudson.

Hudson has written multiple majority opinions that have preserved the uniform rule of law as it relates to the U.S. Supreme Court’s McGirt overthink, which has wreaked so much chaos on Oklahoma’s jurisprudence. That chaos would have been all the more damaging had it not been mitigated by wise decisions of the state’s Court of Criminal Appeals, as we get closer to the time when the U.S. Supreme Court finds a way to mitigate—and hopefully reverse in its entirety—its damaging 2020 ruling in McGirt., which, make no mistake, a majority of that court would likely support if given the appropriate opportunity.

In this role, Hudson has been vital in ensuring that government actually fulfills the foremost mission for which government is constituted: criminal justice—the protection of one’s God-given rights and liberties from those who would take them.

Court of Civil Appeals

On the Court of Civil Appeals, there are two old-guard Brad Henry appointees on this year’s retention ballot: Jane Wiseman and Deborah Barnes.

It was Wiseman who wrote the decision dismissing a case brought against Stitt after Stitt, clearly panicked under the left-wing pressure during COVID, issued an unconstitutional order banning certain businesses from serving their customers after a certain time. It was an unfortunate misstep by Stitt, who had until that time held so strong, and it was a misstep that forever clouded his viability for future office—something he would in his second term, finish off, with an extreme prejudice. When those businesses fought back by filing suit, the courts dismissed that suit by declaring “mootness” instead of actually ruling on the merits. This is a typical Pontius Pilate-type ruling, allowing the courts to avoid the tough decisions—in this case, failing to protect the constitutional rights of the business owners. When that business appealed, it was Wiseman who embraced the mootness logic and played the role of Pontius Pilate.

Perhaps Barnes’s most notable decision was the case where she allowed a negligence claim against a landlord to proceed, arising from the actions of that landlord’s tenant. It’s a potentially problematic view for free-market interests, one that often represents the thought pattern of the leftist judicial officials who have, by their various liability-enhancing edicts, driven up the cost of doing business in the state.

Stacie Hixon, who is also on the ballot this year, dissented from Barnes’s ruling and thus illustrated why she should be retained.

Additionally, James Huber has a history of voting for transparency, with majority rulings requiring disclosure of government business conducted via personal texts among government officials and requiring that emails be provided in their original form as part of open records requests. The latter ruling, unfortunately, was once again invalidated by the state Supreme Court in one of its anti-transparency rulings.

The gist of it: No on Wiseman and Barnes; yes on retaining Hixon and Huber.

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