Despite what he has told legislative leaders, Attorney General Gentner Drummond lacks the authority to take over the state’s representation in a three-year-old legal dispute between Gov. Kevin Stitt and tribal nations regarding casino gaming compacts, the governor’s general counsel says.
“Respectfully, the attorney general’s office does not have the authority to unilaterally assume representation of the governor — a defendant the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation, and the Citizen Potawatomi Nation (collectively, the ‘plaintiffs’) decided to sue — and the Oklahoma Rules of Professional Conduct governing attorneys explicitly prohibits the attorney general’s office from doing so,” wrote Trevor S. Pemberton, the governor’s general counsel, in a July 11 letter to House Speaker Charles McCall and Senate President Pro Tempore Greg Treat.
One of the ORPC rules states reasonable communication between a lawyer and their client is required, Pemberton wrote. The AG’s office did not provide a copy of Drummond’s letter to Stitt, the attorney general’s “desired client,” Pemberton wrote, nor has it informed the governor that the attorney general wants to represent him.
“Given that the attorney general’s office still has not informed its prospective client, the governor, of the June 16 letter or the substance therein, there is no expectation that attorney-client communications required by the Rules of Professional Conduct would occur if there were, in fact, an attorney-client relationship in this context,” Pemberton said.
Drummond wrote a letter last month to Treat (R-OKC) and McCall (R-Atoka) seeking formal permission for his office to assume the defense of Oklahoma’s interests in a lawsuit filed against Stitt and the U.S. Department of the Interior by four tribes: the Cherokee, the Chickasaw, the Choctaw and the Citizen Potawatomi nations.
The four tribes argue that Stitt violated the law by not receiving approval from the Oklahoma Legislature before signing new casino gaming compacts in 2020 with four other tribes: the Comanche Nation, the Otoe-Missouria, the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town.
“Despite the expressed desire to represent the governor, General Drummond articulated that he adamantly opposes his prospective client’s position and objectives in a federal lawsuit,” Pemberton wrote.
Phil Bacharach, Drummond’s communications director, said the AG is not interested in representing the governor but is seeking authority to represent the state in this matter.
“The attorney general represents the interests of the state of Oklahoma and has no desire to represent the governor in yet another costly attempt to invalidate settled law,” Bacharach said in a statement. “The Oklahoma Supreme Court has issued two opinions that make it clear the governor had no authority to enter into the compacts he is seeking to enforce.”
Drummond wrote seeking permission to take over the federal lawsuit “and bring it to an expeditious end.” He said state law gives him the discretion “to take and assume control of the prosecution or defense of the state’s interest” in any litigation involving the state. But he asked the legislative leaders to make a formal request that his office assume the defense of the federal lawsuit, in accordance with Title 74, Section 18b(A)(3).
But Pemberton said a different section of that statute, Title 74, Section 18c (A)(4), gives the governor the authority to employ special counsel to protect the rights or interests of the state.
Pemberton said Title 74, Section 6 also grants the governor the power to employ counsel. He wrote that the Oklahoma Supreme Court made it clear that when the governor and the attorney general are at odds over a litigation objective, the governor’s decision prevails under the state’s constitutional framework.
“In short, while the attorney general is statutorily vested with authority to assume control of litigation in many, if not most, contexts where the state’s interests are implicated, such authority does not apply here,” Pemberton wrote. “Finally, it should be no surprise that the governor has mounted a legal defense after having been sued.”
Pemberton wrote that the governor’s office agrees with Drummond that the three-year-old lawsuit has been protracted and finality is preferred. But neither the governor nor the other defendants initiated the lawsuit, he said.
“They were forced into litigation by plaintiffs,” Pemberton wrote. “If the attorney general or others would like to see an end to the litigation, the ask is misguided. Plaintiffs, with the filing of a single motion, could have the court dismiss the lawsuit. The governor would welcome that.”
In his letter, Drummond said Stitt’s actions in negotiating the tribal compacts that are the subject of the federal lawsuit have been determined by the Oklahoma Supreme Court to violate state law. Drummond is asking the Legislature to request his office to defend the lawsuit instead of outside legal counsel hired by the governor.
The House Republican Caucus recently discussed Drummond’s request and determined that if the attorney general believes he has the power to take over the federal case he can move forward with it, a spokesman said.
McCall wrote a letter on June 26 to Drummond agreeing that he has “the unilateral authority to take over the litigation.”
But McCall’s letter did not include the “formal” request specified in Title 74, Section 18b(A)(3), which Drummond referenced in his letter.
Members of the Senate Republican Caucus are reviewing Drummond’s letter, a spokesman for Treat said.
Neither chamber’s spokesperson was aware of Pemberton’s letter, they said.
Background on compact court cases
The Cherokee, Chickasaw, Choctaw and Citizen Potawatomi nations filed a lawsuit Aug. 30, 2020, in U.S. District Court for the District of Columbia seeking a court-ordered declaration that Stitt did not validly enter into the Comanche Nation and the Otoe-Missouria Tribe gaming compacts under the Indian Gaming Regulatory Act, and that the secretary of the U.S. Department of the Interior violated IGRA and the Administrative Procedure Act when he took no action and effectively approved the deals.
The plaintiffs amended their complaint a month later to include the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town. In the most recent development in the case, a D.C. federal judge in November 2022 removed the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town from the lawsuit, saying the Cherokee, Chickasaw, Choctaw and Citizen Potawatomi nations can’t claim that an illegal-competition injury is imminent because those two tribes still have hurdles to clear before offering conventional casino games such as blackjack and slot machines. The Cherokee Nation has long sought to prevent the UKB from operating casinos.
The Cherokee, Chickasaw, Choctaw and Citizen Potawatomi nations are seeking to replicate two rulings issued in 2020 and 2021 by the Oklahoma Supreme Court, which dismissed the four gaming compacts after finding they were illegally negotiated without approval from the state Legislature.
The Oklahoma Supreme Court ruled on Jan. 26, 2021, that the governor went outside the bounds of his authority and invalidated compacts made with the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town. The state’s high court ruled July 21, 2020, that Stitt didn’t have the power to renegotiate the Comanche and Otoe-Missouria gambling compacts to allow sports betting and certain games.
Also, in July 2020 an Oklahoma federal judge ruled that Oklahoma’s state-tribal gaming compacts have renewed automatically for the next 15 years and are not subject to renegotiation on the governor’s part. Oklahoma’s gaming tribes sued the state in December 2019 in opposition to the governor’s contention that the compacts with more than 30 tribes expired at the end of 2019, as he sought to redraft the deals to gain the state a higher percentage of revenue-sharing from tribe-operated casinos.
Read Pemberton’s letter to McCall, Treat
https://nondoc.com/wp-content/uploads/2023/07/7-13-23-Pemberton-letter-to-legislative-leaders.pdf” viewer=”google”]
