Judicial Reform

Judicial nominating process fueling conflicts of interest?

August 5, 2020

Ray Carter

The secretive process used to appoint judges in Oklahoma through the state’s Judicial Nominating Commission (JNC) has drawn increasing criticism in recent years. An ongoing court case may add fuel to that fire, as it involves a judge presiding in a case where one party is represented by a lawyer who served on the JNC and played a role in the judge’s appointment.

Julie Huff and Terry Wade Huff have sued the Bank of Eufaula in a case that has landed in the court of Judge Timothy King. Attorneys representing the Huffs have asked King to disqualify himself from presiding over the case because William Grimm, an attorney representing the bank, also served on the state’s Judicial Nominating Commission when King’s judicial nomination advanced.

The JNC screens judicial applicants in closed meetings and advances the names of up to three nominees to the governor, who is restricted to selecting only one of those three individuals.

The Huffs’ lawsuit initially was assigned to Judge Norman Thygesen, who was asked to disqualify himself because he was a friend of the father in-law of an attorney representing the bank. Thygesen agreed to do so.

In a filing, the Huffs’ attorneys argue, “At the same time Judge Thygesen was disqualifying, Mr. Grimm was interviewing, approving, and nominating the judge who would take over this case. In other words, Mr. Grimm was well aware that whoever was appointed as Judge would preside over this very case.”

The Huffs’ attorneys, J. Derek Ingle and Lloyd K. Bennett, added, “This more than creates the appearance of impropriety” [emphasis in original].

The filing says the Canons and Rules of Judicial Ethics say a judge should step aside in a case if any party appearing before the judge made notable donations to the judge’s campaign. The Huffs’ legal team argued service on the JNC provides even greater benefit than campaign cash.

“Here, recommendation by the Judicial Nominating Commission is more than a mere campaign contribution,” the Huffs’ attorneys state. “It is a necessary prerequisite to an appointment by the Governor.”

The Huffs’ attorneys continued, writing that membership on the Judicial Nominating Commission “is even more significant” than “service as a campaign manager or major contributor. Campaigning for office is really nothing more than political advertising, whereas the Commission is part of the judicial selection process itself.”

King previously notified all parties in the case that Grimm had served on the JNC when King was interviewed and selected as a nominee. King said that process included an exchange of letters between the two men.

The Huffs’ attorneys write, “Unfortunately, it appears that the letters exchanged between Judge King and opposing counsel William Grimm have been destroyed and/or the JNC refused to produce them.”

In his Dec. 16, 2019 email regarding Grimm’s role in the JNC process that resulted in his appointment, King also wrote, “I do not believe that I am biased concerning Mr. Grimm and should disqualify myself …” However, King said he would “consider arguments in support of my disqualification if they are made.”

Oklahoma is one of 12 states with a “Missouri plan” judicial nominating commission, an entity comprised of attorneys and lay people who screen judicial applicants and submit a select group of nominees to the governor.

However, unlike many states with similar systems, Oklahoma’s JNC does not hold public meetings, interview candidates in public, or reveal how members of the JNC voted.

Benjamin Lepak, a legal fellow at the 1889 Institute, has researched Oklahoma’s JNC process and compared it to other states. He found Oklahoma’s JNC is one of the least transparent state judicial nominating groups in the nation, writing that “some things are so fundamental to good governance that they should be present no matter the selection method used. I am talking about things like transparency, written rules, and public accountability.”

While other states with judicial nominating commissions typically have laws, regulations, or rules that require the commission to operate with some degree of openness and transparency, Lepak found Oklahoma’s JNC is lacking in all major transparency categories.

The Huffs’ case is not the first in which the JNC’s processes have prompted questions regarding conflicts of interest. In 2019 a JNC member did not recuse herself from evaluating an Oklahoma Supreme Court applicant even though the JNC member had been a financial contributor to the applicant’s judicial campaign for a lower court. During the 2020 legislative session, members of the Oklahoma Senate voted to make the Judicial Nominating Commission subject to the Open Meetings Act. However, the Oklahoma House of Representatives never granted that legislation a hearing.