Judicial Reform

Arm of Oklahoma Supreme Court engages in campaigning for three justices

October 31, 2024

Ray Carter

Visit www.OklaJudges.com to learn more about your Oklahoma Supreme Court justices.

Under state law, the Oklahoma Bar Association (OBA) is considered “an official arm” of the Oklahoma Supreme Court.

As a result, when Oklahoma Bar Association President Miles Pringle used the association’s resources to email all licensed attorneys in the state, urging them to retain three members of the Oklahoma Supreme Court facing retention-ballot elections this year, it raised numerous ethical concerns.

“The Oklahoma Bar Association is improperly using its resources and reputation to try to restrain free expression on judicial retention elections,” said Scott Day Freeman, senior counsel at the Goldwater Institute. “In Oklahoma, all lawyers are required to fund and associate with the OBA as a condition of practicing their profession. But the bar violates the First Amendment rights of its members when it weighs in on public policy or other matters Oklahomans get to decide at the ballot box. Lawyers should not be compelled to fund and associate with a mandatory state bar association when it acts in ways that have nothing to do with the state’s claimed interest in ‘regulating lawyers.’”

Freeman and the Goldwater Institute are representing Oklahoma attorney Mark Schell, who has challenged Oklahoma’s mandate for attorneys to join and pay dues to the Oklahoma Bar Association, arguing that violates attorneys’ First and Fourteenth Amendment rights since they are effectively required to “subsidize political and ideological speech by the OBA that they do not wish to support.”

In an Oct. 23 OBA email to all licensed attorneys in Oklahoma, Pringle decried the fact that this year’s Oklahoma Supreme Court elections include advertisements that highlight justices’ records and urge Oklahomans to vote against their retention.

Pringle noted that having a robust public debate on justices’ records was “unlike previous years” and said the publicity generated by advertisements “cause me great concern” as president of the OBA.

Pringle insisted suggestions that “members of the judiciary are political partisans” are “simply untrue.”

Public records show Pringle has been a campaign donor to Democratic candidates, including President Joe Biden, former Democratic gubernatorial candidate Drew Edmondson (whose brother is a justice on the Oklahoma Supreme Court), and Democratic caucus leaders in both the state House and Senate.

Pringle’s email, sent under the banner of the Oklahoma Bar Association, is the latest example of the often-incestuous relationship between the bar and state judiciary.

Under current state law, members of the Judicial Nominating Commission (JNC) select all major judicial nominees in Oklahoma. The JNC selects up to three nominees for court positions, including the Oklahoma Supreme Court, in secret. The group does not hold public meetings and does not provide any public records of its votes, even raw-number tallies. The governor is required to select one of the three candidates put forward by the JNC and cannot consider any other qualified individuals.

Of the 15 members of the Oklahoma Judicial Nominating Commission, six are appointed by the Oklahoma Bar Association via internal membership elections. No other attorneys are allowed to serve.

Public records show that 22 of the 32 individuals appointed to the JNC 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 Barack Obama and Hillary Clinton. Only one bar appointee to the JNC since 2000 overwhelmingly donated to Republican candidates.

While the governor is allowed to appoint some non-lawyer members to the JNC, those appointees cannot all be members of the same political party. As a result, a Republican governor cannot appoint enough Republican members to offset the typical partisan tilt of the Oklahoma Bar Association’s JNC members.

While Oklahomans have consistently voted for Republican candidates in statewide elections for decades, a near-majority of Oklahoma Supreme Court justices are Democratic appointees.

After members of the Oklahoma Supreme Court are selected and seated, due in part to the influence of Oklahoma Bar Association members sitting on the JNC, the court then has the authority to determine if the bar association can hike the mandatory dues state law requires all practicing attorneys to pay.

At the end of September, the Oklahoma Supreme Court signed off on a double-digit percentage increase in mandatory bar dues following a request from the Oklahoma Bar Association. Only two of the nine justices dissented, and the three justices up for retention this year all supported the fee hike.

Pringle sent his email to Oklahoma attorneys on Oct. 23 after the justices had signed off on the OBA fee increase.

Critics say Pringle’s email only adds weight to ethical concerns about the organization.

“The bar’s statement is another reason why Mr. Schell has brought his lawsuit challenging Oklahoma’s mandatory bar requirement,” Freeman said.

“Pringle using his platform to instruct voters on how to vote is eyebrow-raising,” said Carrie Severino, president of the Judicial Crisis Network, “but it’s also no surprise given the liberal takeover of the Oklahoma Bar Association and the JNC.”