Unlike many states, Oklahoma’s Supreme Court and the Court of Criminal Appeals have equal stature
By M. Scott Carter
The Daily Record Newswire
OKLAHOMA CITY, OK — Though it probably won’t change the judicial process in Oklahoma, the three-way fight between the Oklahoma Supreme Court, the Court of Criminal Appeals and Republican Gov. Mary Fallin is creating new legal ground, an Oklahoma City attorney said Wednesday.
The issue began several weeks ago when a district court struck down a state law that made information about the type of drugs used in executions secret. Clayton Lockett and Charles Warner, two inmates who were awaiting execution, challenged the secrecy law in a civil filing. The district court’s stay of execution bounced back and forth between courts until the Oklahoma Supreme Court transferred the case to the Court of Criminal Appeals.
On April 11, the Court of Criminal Appeals denied the stay. Seven days later, the Oklahoma Supreme Court transferred the stay of execution provision back to the Court of Criminal Appeals, which, again, denied the stay on April 18. On April 21, the Oklahoma Supreme Court invoked a rarely used rule of necessity, saying that some court needed to issue a stay pending the outcome of the appeal.
Just hours after the Supreme Court issued its ruling, Fallin issued an executive order staying Lockett’s execution. Fallin said the state high court’s action was outside its constitutional authority.
“I cannot give effect to that honorable court and remain consistent to my oath of office to uphold the Constitution,” Fallin wrote.
Fallin’s order asked Attorney General Scott Pruitt to file the appropriate papers with the Court of Criminal Appeals as to how the court would direct her to implement the execution.
The debate between courts, Oklahoma City attorney Robert Sheets said, is unusual.
“We’re plowing a brand-new field here,” Sheets said. “There has always been this question of who’s in charge. I think this was one of those issues that the framers of the Constitution didn’t expect.”
Unlike many states, Oklahoma’s Supreme Court and the Court of Criminal Appeals have equal stature and function as courts of last resort. However, the Supreme Court, Sheets said, is authorized by the Oklahoma Constitution to determine which court has jurisdiction in a case.
“And that determination is final,” he said.
Fallin’s stay, Sheets said, attempted to clarify just who could issue a stay. “Under the Constitution, there’s no question the governor has the authority to issue a stay,” he said.
Court filings show the tension between the two bodies. In its April 21 ruling, the Supreme Court said the sole issue before the court was whether Lockett and Warner’s plea for a stay should be heard and that their constitutional rights to access to the courts be ensured.
“As uncomfortable as this matter makes us, we refuse to violate our oaths of office and to leave the appellants with no access to the courts, their constitutionally guaranteed measure,” the court wrote in a 5-4 opinion.
But former Chief Justice Steven Taylor dissented. Taylor said all of Lockett and Warner’s arguments were criminal in nature.
“I warned in a previous dissent that this court was crossing the Rubicon in its refusal to transfer the case to the proper court and now it is clear that the appellants are taking advantage of our being on the wrong side of that proverbial river,” he wrote.
Like both courts, members of the Legislature have been vocal in their support and dissent. On Wednesday, state Sen. Ralph Shortey, R-Oklahoma City, issued a media statement calling for the impeachment of Chief Justice Tom Colbert and Justices Yvonne Kauger, Douglas Combs, John Reif and Joseph Watt. Shortey said the justices abdicated their role as impartial interpreters of the law and allowed the court to be successfully manipulated by death penalty activists.
“This decision defies the law, established precedent, and the will of a broad majority of Oklahomans to see justice handed down to those who prey upon the weak and innocent,” he said in a media statement. “Activists have manipulated the court into implementing their vision of social justice at the expense of common-sense justice and long-standing law. In doing so, they have denied closure to the families who lost a teenage girl and an 11-month-old baby in brutal murders.”
State Rep. Richard Morrissette disagreed. Though Morrissette, D-Oklahoma City, said he did expect some type of constitutional showdown, that fight isn’t necessarily bad.
“Events occur and that’s how our living Constitution expands and contracts in time,” he said. “I do think we’re going to have a showdown. This is an issue that relates directly to the death penalty and the processes related to the death penalty. There’s an obvious power struggle, but it’s a healthy power struggle. You’re going to get this back-and-forth. It’s a healthy thing.”
Late Wednesday evening, however, the state’s high court reversed itself and dissolved the stay, rejecting Lockett and Warner’s argument that they were entitled to know the source of the drugs that will be used to kill them. Fallin’s stay for Lockett, though, remains in place until Tuesday, the same day Warner is scheduled to die.
Sheets said the matter involved two areas of law. He said the Supreme Court wasn’t issuing a stay in a criminal sense, but stopping a state action until the civil issue had been decided.
“I think the Supreme Court was trying to say, ‘We do have the authority to answer this question,’” he said. “I think they’re saying they need to maintain the status quo until it’s decided.”
