A look at the four Oklahoma Supreme Court justices on the retention ballot in November

The Oklahoma Supreme Court has ruled in recent years on major questions of state policy, including Medicaid, pandemic measures, a statewide vote on recreational marijuana and opioid litigation. In coming months, the court could rule on whether abortion is protected by the Oklahoma Constitution.

Oklahoma voters will be asked on Nov. 8 whether to retain four of the nine justices on the state Supreme Court for new terms.

The four justices do not have opponents; rather, voters will be asked only whether each should be retained for another six-year term. Oklahomans have never voted not to retain a Supreme Court justice. Five justices from the Oklahoma Court of Civil Appeals are also on the retention ballot on Nov. 8.

The Supreme Court is the highest appellate court in the state for civil disputes. Justices are appointed by the governor from three nominees submitted by the Judicial Nominating Commission. No legislative confirmation is required.

Gov. Kevin Stitt has appointed three justices to the court in his first term. His most recent appointment of Dana Lynn Kuehn, in 2021, gave the Oklahoma Supreme Court a majority of Republican appointees for the first time in state history.

Kuehn, 51, succeeded former Justice Tom Colbert, who retired, and is completing the remainder of his term. Before her appointment by Stitt, Kuehn was the presiding judge of the Oklahoma Court of Criminal Appeals, the highest appellate court in the state for criminal matters. Kuehn is the only woman to serve on both of the top courts.

Kuehn received her law degree from the University of Tulsa College of law in 1996 and received a bachelor’s degree in political science from Oklahoma State University.

Justice Dustin Rowe, another Stitt appointee, is also on the retention ballot. Rowe, 47, was appointed in 2019. At the time, he was in private practice and a Chickasaw Nation judge. Rowe, a former mayor of Tishomingo, received his law degree from OU in 2001.

Also up for retention this year is James R. Winchester, 70, who was appointed in 2000 by former Gov. Frank Keating, a Republican.

Winchester, who received his law degree from the University of Oklahoma in 1977, served as a state judge for Caddo and Grady counties and as a U.S. administrative law judge before his appointment to the Supreme Court.

Justice Douglas Combs, appointed by former Gov. Brad Henry, a Democrat, in 2010, is the fourth justice up for retention. Combs, 70, received his law degree from Oklahoma City University. He spent more than 20 years in private practice and served as an assistant state attorney general and as a state judge for Lincoln and Pottawatomie counties.

Here are some of the major decisions of the past two years and how the four justices voted:

Medicaid managed care

Combs wrote the 2021 decision that struck down a managed care program imposed on Medicaid by the state Health Care Authority. The program was a priority of Stitt. In a victory for medical groups in Oklahoma, the court ruled 6-3 that the program was not authorized by the state Legislature.

Winchester and Rowe dissented in the case. Kuehn was not on the court.

The Legislature this year effectively made the decision moot by authorizing a managed care system for Medicaid.

Gaming and Gov. Kevin Stitt's executive power

Winchester wrote the 2020 opinion in Treat v. Stitt, a lawsuit brought by state legislative leaders against the governor over gaming compacts Stitt had negotiated with two tribes. The court ruled 7-1 for the legislative leaders, saying Stitt did not have the authority to negotiate compacts that included games not authorized by the Legislature.

Combs and Rowe agreed with the main holding of the ruling. Kuehn was not on the court.

Opioid verdict paying Oklahoma $465 million struck down

Winchester wrote the 2021 decision striking down a Cleveland County district judge’s verdict directing drug maker Johnson & Johnson and related companies to pay $465 million to fund efforts to combat the opioid crisis.

"We hold that the district court's expansion of public nuisance law went too far," Winchester wrote. "Oklahoma public nuisance law does not extend to the manufacturing, marketing, and selling of prescription opioids.”

Kuehn concurred in striking down the verdict.

Combs was disqualified from ruling, and Rowe recused himself.

Statewide question on legalized marijuana

Combs wrote the decision in September that effectively prevented voters from considering a question on the Nov. 8 general election ballot to legalize marijuana for recreational use. The court ruled that the question had not met all of the statutory requirements and wouldn’t meet them by the time ballots needed to be printed.

Winchester and Kuehn concurred in the holding. Rowe concurred that the court couldn’t force the question on the ballot, but dissented with some of the reasoning by the majority.

School district mask mandate

The court ruled 7-2 that school districts don’t need an emergency declaration from the governor to mandate masks be worn in schools. The decision came in a challenge to Senate Bill 658 and struck down a provision in the bill.

“At the heart of the legislation in this matter is local control usurped or impeded by requiring the Governor to declare or not declare a state of emergency,” the majority said. “The statutes remove the school board's authority to act independently and exercise the authority granted to the school board and it grants that authority to the Governor — who has neither constitutional nor statutory authority over the operation of schools.”

Winchester, Rowe and Kuehn joined the majority. Combs agreed that the Senate bill “contains an impermissible delegation of Legislative power to the Governor.” He dissented with the majority opinion in other respects.

Bonds to finance winter storm costs

The court ruled 8-0 in May to uphold the plan by the Oklahoma Development Finance Authority to issue bonds totaling nearly $800 million to pay for the energy costs incurred during the February 2021 winter storm, when utilities had to buy natural gas at high prices on the spot market.

The court ruled 8-0 in May to uphold the plan by the Oklahoma Development Finance Authority to issue bonds totaling nearly $800 million to pay for the energy costs incurred during the February, 2021 winter storm, when utilities had to buy natural gas at high prices on the spot market.

The bonds will be paid off by Oklahoma Gas and Electric Co. customers.

The finance authority filed an application with the court to assume jurisdiction to approve the bonds, and that application was opposed by 15 individuals on various grounds, including the constitutionality of bonds.

Winchester, Combs and Rowe were part of the majority. Kuehn recused herself.

Combs wrote a concurring opinion criticizing Oklahoma Attorney General John O’Connor’s “lack of meaningful participation at all stages of this rate-related proceeding.”

Combs wrote, “The utility consumers that the Attorney General should be representing have effectively been left without representation.”

Rowe also wrote separately to express concerns about the court’s review being confined by law.

Abortion

In the last several years, the Oklahoma Supreme Court has blocked many laws passed by the Legislature to restrict abortion in the state because they violated U.S. Supreme Court precedents Roe v. Wade and Planned Parenthood v. Casey.

In October 2021, the court blocked three laws, including two to impose new restrictions on medication abortions and another that would have disqualified many physicians from performing abortions.

Combs and Winchester agreed last October to the temporary injunction blocking the laws pending appeal. Rowe and Kuehn dissented.

Rowe wrote that abortion rights groups challenged the laws under the Oklahoma Constitution, rather than bringing federal claims.

“We have never recognized a right to abortion under the provisions of the Oklahoma Constitution,” Rowe said.

In June, in the case of Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court struck down its abortion precedents and left it up to states to make abortion law.

In the wake of the decision, the Oklahoma Supreme Court allowed strict anti-abortion laws approved by the Oklahoma Legislature to go into effect. Winchester, Combs, Rowe and Kuehn were among the eight justices who signed the order rejecting a temporary injunction or restraining order to maintain the status quo.

The court is now being asked by abortion rights groups to declare that the state constitution protects the right to abortion.

Stitt vowed in his 2018 campaign to appoint anti-abortion justices to the court. Rowe, Stitt’s second appointment to the court, expressed his views against abortion personally and “as a matter of public policy” in his 2012 campaign for Congress. Kuehn has not made her views public.

This article originally appeared on Oklahoman: Stitt appointees among Supreme Court justices on retention ballot