A group backed by The State Chamber released its initial evaluation Wednesday of how the nine justices on the Oklahoma Supreme Court rule on liability cases, which include workers' compensation and medical malpractice matters.
Fred Morgan, president and chief executive officer of The State Chamber, said the information is being made available to help voters who will be asked whether to retain four of the justices in the Nov. 6 general election.
Although the justices receive a score that can be considered pro- or anti-business, the evaluation by the Oklahoma Civil Justice Council is not intended to intimidate the justices or to be considered an endorsement of any candidate for judicial office, said Morgan, who serves as the council's president. The State Chamber has backed legislation seeking to overhaul the workers' compensation system and how lawsuits are treated in court cases.
The report “is intended to educate Oklahoma citizens and voters,” he said. “In Oklahoma, (appellate) judges are on retention ballots, and voters have a right to more information before casting their ballot.”
The report consists of a zero-to-100 rating system; the lower the score, the more often the justice ruled in favor of expanding liabilities, which he said adversely affects economic development.
“As the third branch of our state government, the decisions of the judiciary have a tremendous impact on everyone in our state,” Morgan said. “The spread of civil liability adversely affects our schools, nonprofit organizations and businesses.”
The council plans to release a similar report in about two weeks on judges serving on the Oklahoma Court of Civil Appeals.
Daniel Boudreau, who served 25 years as a trial judge, a Court of Civil Appeals judge and an Oklahoma Supreme Court justice, said judges should be evaluated, but the council's effort is the wrong approach.
“If you want to evaluate a judge, this is the criteria you need to use: Is he an impartial, independent judge who applies the facts to the laws and renders his decision? This type of evaluation … is a threat both to the impartiality and the independence,” he said. “What is the judge doing here? Is the judge trying to pursue a fair and just result or is it the responsibility of the judge to promote the special interest agenda of, in this case, businesses?
“This is an attempt to intimidate judges,” said Boudreau, who works in legal remediation and arbitration in Tulsa. “Any evaluation that looks at whether a decision is pro- or anti-business only is inappropriate.”
The council's report on the Supreme Court showed Chief Justice Steven Taylor and Justice James Winchester receiving the highest score, or ruling against expanding liabilities, at 69 percent. Also, Justice James Edmondson, 32 percent; Justice Yvonne Kauger, 31 percent; Justice John Reif, 30 percent; Justice Joseph Watt, 26 percent; and Vice Chief Justice Tom Colbert, 21 percent.
Justices Douglas Combs and Noma Gurich received provisional scores because they were appointed within the past two years and have participated in fewer cases. The report looked at 145 cases going back several years; Combs and Gurich participated in about 25.
Combs and Gurich, who along with Edmondson and Kauger are up for retention this year, were given provisional scores of 22 percent and 32 percent, respectively.
The findings, prepared by the Judicial Evaluation Institute for Economic Issues, focused on split decisions. Each justice was evaluated on decisions based in six broad areas of law: employment, insurance, medical malpractice, other liability lawsuits, product liability and workers' compensation, said Neil Coughlan, president of the Washington, D.C.-based organization.
“Our issue is civil liability, so we pay no attention — have no interest — in social issues, in criminal law and a host of other areas of law,” he said.
Coughlan, whose firm has performed similar evaluations over 16 years, said the cases chosen for evaluation will show whether a justice's ruling either slows or accelerates the spread of liability in the law. Reviewing at least 100 cases over several years will reveal a pattern, he said.
“We then make our own opinion as to which side of the decision is the more likely to inhibit the expansion of civil liability and we mark that with a plus,” he said.
Edmondson said he welcomed the scrutiny.
“I thought it was fairly presented,” he said. “It's a good idea to get information out there for the citizenry, especially for the people who plan on voting. It's a well-presented and well-balanced exposition of the matters that seem to be of concern to them and probably many others.”
Edmondson, on the high court since 2004, said he doesn't think the report's aim is to intimidate the judiciary.
“I suppose people are at liberty to use it for whatever purpose they deem fit,” Edmondson said. “It's not something that particularly worries me or any other justice that I know about. It kind of goes with the turf.”