Scott L. Palk – Nominee to the U.S. District Court for the Western District of Oklahoma

The Federal Courthouse in Lawton, Oklahoma

Like Judge David Nye, Scott L. Palk has been waiting a long time for a federal judicial appointment: over two years to be exact.  Luckily, it looks like 2017 may be the year that Palk finally gets to don the black robes.

Background

An Oklahoma native, Scott Lawrence Palk was born in Tulsa in 1967.  After getting a B.S. from Oklahoma State University and a J.D. from the University of Oklahoma School of Law, Palk joined the District Attorney’s office in Cleveland County.  In 2002, Palk moved to the U.S. Attorney’s Office for the Western District of Oklahoma, serving as an Assistant U.S. Attorney in the Criminal Division.  In 2004, Palk rose to be Deputy Chief of the Criminal Division.

In 2011, Palk left the U.S. Attorney’s Office to rejoin his alma mater, the University of Oklahoma School of Law, as an Assistant Dean of Students and Assistant General Counsel.

On May 18, 2015, Palk was contacted by the office of Sen. James Lankford (R-OK), asking about his interest in an appointment to the Western District of Oklahoma.  After meetings with the Oklahoma Senators, and the Obama Administration, Palk was formally nominated on December 16, 2015.[1]  Palk, and fellow nominee Judge Suzanne Mitchell, received Committee hearings on April 21, 2016,[2] and were approved out of committee unanimously.[3]  However, they ran into a roadblock on judicial confirmations set up by Senate Majority Leader Mitch McConnell (R-KY).  As such, Palk’s nomination was never confirmed and returned to the White House at the end of the 114th Congress.

However, both Lankford and Sen. James Inhofe (R-OK) indicated their continued support for Palk’s nomination.  By their recommendation, Palk was renominated by the Trump Administration on May 8, 2017.[4]

History of the Seat

The seat Palk has been nominated for opened on December 1, 2014, with Judge Stephen P. Friot’s move to senior status.  Despite three of the seven judgeships on the Western District of Oklahoma being vacant, no judges were confirmed to this court during the Obama Administration.  Instead, the Administration’s nominees, Palk and Mitchell, were left unconfirmed despite unanimous committee approval and the support of Oklahoma’s Republican Senators.

Legal Experience

Palk has spent most of his career as a state and federal prosecutor (ten years as the former, nine as the latter).  As an assistant D.A. in Norman, Palk prosecuted violent crimes, drug crimes, sex crimes, and crimes against children.  Among his more notable cases, Palk successfully prosecuted Larry Gene Goble of Noble for the shooting deaths of two people.[5]

In one of his most significant cases, Palk prosecuted Frank Duane Welch for the 1987 murder of Jo Talley Cooper.[6]  In his defense, Welch argued that Cooper died while the two were engaged in auto-erotic asphyxiation.[7]  To combat Welch’s defense, Palk and the prosecution team admitted evidence of another murder Welch had committed, that of Debra Stevens.[8]  After Welch was convicted and sentenced to death, he challenged his trial on several bases, including the admission of the Stevens murder.[9]  The Oklahoma Court of Criminal Appeals affirmed the sentence and the conviction, but criticized Palk and the other prosecutors for failing to delineate the Burks exception that would admit the Stevens conviction when filing their notice with the court.[10]  After the Supreme Court denied review of his case,[11] Welch was executed in 2007.[12]

As an AUSA, Palk successfully prosecuted Sean Michael Gillespie, a white supremacist who was convicted of throwing a Molotov cocktail into a Jewish temple.[13]  Palk was also part of the appellate team that successfully defended Gillespie’s conviction.

As a Dean at the University of Oklahoma Law School, Palk handles civil and administrative matters for the school, including the recruitment of students, supervision of staff, and the mediation of employment issues.

Political Activity

Palk is a registered Republican, but his only political contribution of record is a $250 contribution to Tully McCoy, a Democratic Congressional candidate in 1994.[14]  However, at the time of his candidacy, McCoy was the District Attorney for Cleveland County (and Palk’s boss).  As such, Palk’s contribution can merely be viewed as support for his boss, rather than an endorsement of the Democratic party.

Overall Assessment

As his nominations by President Obama and President Trump would suggest, Palk is not a controversial candidate.  There is little in his record that will incite opposition on either the left or the right.  While Palk’s criminal experience is one-sided (he has spent most of his legal career as a prosecutor), this is hardly disqualifying.  Approximately one year ago, the Judiciary Committee approved Palk’s nomination unanimously.  It will likely do so again.  However, this time, Palk will likely get a floor vote as well.


[1] Press Release, White House, President Obama Nominates Four to Serve on the United States District Courts (Dec. 16, 2015) (on file at https://obamawhitehouse.archives.gov).  

[2] Chris Casteel, Federal Judicial Nominees Sail Through Committee Hearing, The Oklahoman, Apr. 21, 2016, http://newsok.com/article/5493224.

[3] Chris Casteel, Committee Clears Two for Oklahoma City Court, The Oklahoman, May 19, 2016,http://newsok.com/article/5499079.  

[4] Press Release, White House, President Donald J. Trump Announced Judicial Candidate Nominations (May 8, 2017) (on file at www.whitehouse.gov/the-press-office).

[5] Oklahoma v. Goble, No. CF-1995-1495-L (Okla. Cleveland Cnty. Ct. Sept. 18, 1996).  See also Oklahoman, Jury Gives Life Sentence in Double-Murder Case, The Oklahoman, Sept. 18, 1996, http://newsok.com/article/2551273.

[6] Oklahoma v. Welch, No. CF-1997-247-H (Okla. Cleveland Cnty. Ct. March 30, 1998).

[7] Welch v. State, 2 P.3d 356 (Okla. Crim. App. April 10, 2000) at ❡5.

[8] Id. at ❡7.

[9] Id.

[10] Id. at ❡9 (“However, we take this opportunity to remind trial judges and prosecutors of the importance of delineating the exception and purpose for which other crimes evidence is being offered.”).

[11] Welch v. State, 531 U.S. 1056 (2000).

[12] Ben Fenwick, State Executes Man for 1987 Murder, Oklahoma Gazette, Aug. 22, 2007, http://okgazette.com/2007/08/22/state-executes-man-for-1987-murder/.

[13] United States v. Gillespie, No. CR-04-94-C (W.D. Okla. Sept. 9, 2005), aff’d, 452 F.3d 1183 (10th Cir. 2006), cert. denied, 549 U.S. 1063 (2006). 

[14] Open Secrets, https://www.opensecrets.org/donor-lookup/results?name=scott+palk (last visited May 25, 2017).  

Judge David Nye – Nominee to the U.S. District Court for the District of Idaho

The Idaho Federal Courthouse in Pocatello, where Nye will likely sit.

In December 2016, the Republican-controlled U.S. Senate left 59 pending judicial nominations made by President Obama unconfirmed as it adjourned.  Among those nominations was that of Judge David Nye, an Idaho state judge named to a federal district court seat.  Last week, Nye’s nomination was improbably revived by President Trump, giving him another opportunity for a lifetime appointment.

Background

David Charles Nye was born in 1958 in Lynwood, California.  After spending a year at the University of Utah, Nye received his Bachelor’s degree and his J.D. from Brigham Young University in Provo.  After graduation, Nye spent two years at the Utah Attorney General’s office, before moving to Idaho to serve as a law clerk for Judge George Granata on Idaho’s Fifth District Court.

In 1987, Nye joined the Pocatello law firm, Merrill & Merrill, as an associate.  He was promoted to a partner there two years later.  At the firm, Nye maintained a diverse litigation practice, representing both plaintiffs and defendants in civil cases, as well as working on contract disputes, family law, and administrative cases.

In 2007, Nye was appointed by Republican Governor Butch Otter to a judgeship on Idaho’s Sixth District Court.  As a District Judge, Nye handled all felony cases and civil cases involving more than $10,000 in damages.  Nye was re-elected to this position in 2010 and 2014.[1] 

On April 5, 2016, upon the recommendation of Idaho Senators Mike Crapo and Jim Risch, Nye was nominated for a seat on the U.S. District Court for the District of Idaho by President Barack Obama.

History of the Seat

The District of Idaho, which covers the entire state, has only two authorized active judgeships.  For 20 years, the same two judges, Edward Lodge, and B. Lynn Winmill, held those judgeships.  In 2014, however, Judge Lodge announced his move to senior status, opening up a vacancy for President Obama to fill.[2]  In response, Crapo and Risch, both Republicans, both offered to work with the Obama Administration to find a nominee who was acceptable to all parties.[3] 

This began a sixteen-month long negotiation between the Senators and the Obama Administration.  After receiving criticism for a secretive selection process that ignored qualified female candidates,[4] the Senators suggested Erika Malmen, a little-known environmental attorney whose husband, Jeff, was prominent in the Idaho Republican Party.[5]  After Malmen was rejected by the Administration, the Senators turned to Idaho Fifth District Court Judge G. Richard Bevan, a Republican and former prosecutor.[6]

After Bevan was also rejected by the White House, Crapo and Risch reached out to Nye in late January 2016 to gauge his interest for the position.[7]  On Feb. 4, the Senators formally recommended Nye to the White House.  The White House formally nominated Nye on April 5, 2016.

With both Crapo and Risch’s support, Nye’s nomination received a hearing on June 21, 2016,[8] and was voted out of the Judiciary Committee unanimously on July 15.[9]
However, it proceeded to languish on the floor due to Senate Majority Leader Mitch McConnell’s refusal to confirm any of President Obama’s judicial nominees.  Despite the efforts of Crapo and Risch, the nomination expired unconfirmed at the end of the 114th Congress.

Nevertheless, the Idaho Senators immediately indicated that they would re-recommend Nye to the Trump Administration.[10]  On May 8, 2017, Trump announced that he would renominate Nye to the District of Idaho.[11]

Legal Experience

For approximately twenty years before he became a judge, Nye practiced law in Pocatello, working primarily in litigation.  During this time, he tried approximately 90 trial court cases, the vast majority of which were jury trials.

Among Nye’s most notable cases are several where he served as defense counsel in personal injury cases.  Early in his career, Nye obtained summary judgment on behalf of a fertilizer plant against two workers who suffered burn injuries while working there.  Nye successfully argued that the case was barred by Idaho’s statute of repose.[12]  Similarly, Nye successfully defended a dairy farm in an action brought by an injured employee,[13] and a farmer whose cow ran onto a highway and caused a car accident.[14]

Nye also represented plaintiffs and criminal defendants.  Nye unsuccessfully represented a defendant challenging the constitutionality of Utah’s law prohibiting the showing of harmful materials to minors.[15]  He also represented road workers injured from an accident at a construction site in their unsuccessful appeal to the Idaho Supreme Court.[16]

Jurisprudence and Reversals

In his ten years on the state bench, Nye has presided over more than 1200 cases.  Approximately 7% of Nye’s decisions have been reversed by higher courts.  Here is a summary of the more prominent reversals.

Reversals in Civil Cases

Bennett v. Patrick – In this case, the Idaho Supreme Court reversed Nye’s refusal to award attorney’s fees to prevailing plaintiffs in a car accident case.[17]  Nye had refused to award attorney’s fees to the plaintiffs under Idaho Statute IC § 12-120(4), which eliminated attorney’s fees in cases where the initial demand was greater than $25,000.  The Supreme Court found that, while plaintiff’s trial demand was indeed greater than $25,000, their initial offer of settlement was less, and as such, the plaintiffs are not barred from recovering attorney’s fees under IC § 12-120(4).

Cummings v. Stephens – This case involved an appeal from Nye’s judgment for the plaintiffs in a dispute involving the sale of a farm.[18]  Nye had found that a title company was negligent in issuing title on the farm and owed $50,000 in damages to the buyer.[19]  The Idaho Supreme Court reversed the grant of damages, while affirming the finding of negligence.[20]

Sadid v. Idaho State Univ. – This case involved a professor’s suit against his university for breach of employment contract and violation of First Amendment Rights.[21]  The professor argued that his dismissal was based on his public criticism of the university and its administrators.[22]  Nye granted summary judgment against the professor, finding that he spoke as a public employee on matters not of public concern, and as such, his dismissal was not a violation of the First Amendment.[23]  The Idaho Supreme Court reversed this holding, but affirmed the grant of summary judgment on alternative grounds.[24]

Wanner v. State Dep’t of Transp. – In this case, a motorist challenged the suspension of his personal and commercial driver’s license after he failed a breathalyzer test.  Nye struck down the suspension of the commercial driver’s license, holding that the state had failed to provide adequate notice.[25]  On appeal, the Idaho Supreme Court agreed that the notice was inadequate but reversed the ruling, noting that the motorist had failed to exhaust his administrative remedies.[26]

Reversals in Criminal Cases

Cook v. State – In this case, Nye granted a Rule 60(b) motion to reduce the sentence of a defendant whose previous sentence had been struck down by the Idaho Court of Appeals.[27]  The Idaho Court of Appeals reversed this reduction of sentence, arguing that Nye had failed to require the defendant to show incompetent performance by his sentencing counsel.[28]

State v. Erickson – This case involved a defendant’s challenge to his conviction, arguing that the prosecution had engaged in misconduct during his trial, including shifting the burden of proof to the defense.[29]  While Nye denied the challenge, the Idaho Court of Appeals reversed, holding that the prosecutorial misconduct in the case was a fundamental error.[30]

Overall Assessment

The willingness of both President Obama and President Trump to nominate Nye speaks to his uncontroversial background.  A review of his record as an attorney and a judge does not suggest a bias towards prosecutors, plaintiffs, or defendants.  When Nye’s nomination by President Obama failed, Crapo and Risch could have chosen a more conservative candidate.  The fact that they did not speaks to the support and respect that Nye commands.

For over 20 years, Judge Lodge and Judge Winmill have managed Idaho’s busy trial docket among themselves.  The likely confirmation of Judge Nye will give them both a well-deserved break.


[1] Idaho District Court judges serve four year terms, and can be re-elected in nonpartisan elections.

[2] Betsy Z. Russell, Judge Lodge to Take Senior Status, Idaho to Get New Federal Judge, The Spokesman-Review, Sept. 24, 2014, http://www.spokesman.com/stories/2014/sep/24/judge-lodge-take-senior-status-idaho-get-new-feder/.

[3] David Cole, In Search of the Best Person for the State, Couer D’Alene/Post Falls Press, Sept. 26, 2014, http://www.cdapress.com/archive/article-e388fae9-46fc-5371-bc45-4058f2be739b.html (quoting Sen. Risch) (“There will be people who won’t be acceptable to Sen. Crapo or I, and there will be people who won’t be acceptable to the President, but at the end of the day, we’ll come up with somebody and fill the spot.”).

[4] Betsy Z. Russell, Women Shut Out of Idaho Judge Selection, The Spokesman-Review, Apr. 25, 2015, http://www.spokesman.com/stories/2015/apr/28/women-shut-out-of-idaho-judge-selection/.  

[5] Betsy Z. Russell, The Boise Attorney Who Could Be Idaho’s Next Federal Judge: Erika Malmen, The Spokesman-Review, Oct. 21, 2015, http://www.spokesman.com/blogs/boise/2015/oct/21/boise-attorney-who-could-be-idahos-next-federal-judge-erika-malmen/.

[6] Betsy Z. Russell, Twin Falls Judge Now Being Considered for Federal Judgeship, Idaho Statesman, Dec. 9, 2015, http://www.idahostatesman.com/news/politics-government/state-politics/article48808210.html.  

[7] Unlike Malmen and Bevan, Nye is not registered with the Idaho Republican Party.

[8] Nathan Brown, Nye on Track for Confirmation as Idaho Federal Judge, MagicValley.com, Jun. 22, 2016, http://magicvalley.com/news/local/govt-and-politics/nye-on-track-for-confirmation-as-idaho-federal-judge/article_cbc12dbf-4f81-59d5-a2b7-e0a5d40bc878.html.

[10] Betsy Z. Russell, White House Agrees to Renominate Judge Nye for Long-Vacant Federal Judgeship, The Spokesman-Review, Apr. 27, 2017, http://www.spokesman.com/blogs/boise/2017/apr/27/white-house-agrees-re-nominate-judge-nye-long-vacant-idaho-federal-judgeship/.

[11] Press Release, White House, President Donald J. Trump Announced Judicial Candidate Nominations (May 8, 2017) (on file at www.whitehouse.gov/the-press-office).

[12] West v. El Paso Products Co., 832 P.2d 306 (Idaho 1992).

[13] Loza v. Arroyo Dairy, 53 P.3d 347 (Idaho Ct. App. 2002).

[14] Karlson v. Harris et al., 97 P.3d 428 (Idaho 2004).  

[15]  State v. Brown, 856 P.2d 358 (Utah App. 1993).

[16]  Fuhriman v. State Dep’t of Transp., 153 P.3d 480 (Idaho 2007).

[17] Bennett v. Patrick, 276 P.3d 1231 (Idaho 2011).

[18] Cummings v. Stephens, Bear Cnty. Case No. CV-2009-183.

[19] See id.

[20] Cummings v. Stephens, 336 P.3d 281 (Idaho 2014).

[21] Sadid v. Id. State Univ., Bannock Cnty. Case No. CV-2008-3942.

[22] Id.

[23] Id.

[24]Sadid v. Id. State Univ.,265 P.3d 1144 (Idaho 2011).

[25] Wanner v. State Dep’t of Transp., Franklin Cnty. Case No. CV-2008-364.

[26] Wanner v. State Dep’t of Transp., 244 P.3d 1250 (Idaho 2011).

[27] Cook v. State, Lake Cnty. Case No. CV-2004-267.

[28] State v. Cook, 2010 WL 9589151 (Idaho Ct. App., Aug. 27, 2010).

[29] State v. Erickson, 227 P.3d 933 (Idaho Ct. App. 2010).

[30] United States v. Badger, 581 F. App’x 541 (6th Cir. 2014).