In a development adding another knot in the noodles of Oklahoma’s 2025 legislative session, Gov. Kevin Stitt’s office says a mental health lawsuit settlement about competency restoration services will need to be approved by the full Legislature instead of only a triumvirate of state leaders.
Stitt’s general counsel, Ben Lepak, sent a letter Wednesday to Attorney General Gentner Drummond, House Speaker Kyle Hilbert (R-Bristow) and Senate President Pro Tempore Lonnie Paxton (R-Tuttle) saying the option to approve the settlement’s proposed consent decree through the Contingency Review Board is no longer legal after the 60th Legislature formally convened for session Tuesday.
In his letter (embedded below), Lepak cited the “plain and unambiguous language” of the Oklahoma Constitution and a 2001 attorney general’s opinion to conclude that lawmakers’ required gathering for “organizational day” this week constituted the start of session, which means the Contingency Review Board — comprised of the Capitol triarchy — no longer has authority to finalize the lawsuit settlement all parties announced Nov. 14.
A class-action case filed in March 2023, Briggs et al v. State alleges that extreme patient backlogs mean the state of Oklahoma has been violating the constitutional rights of hundreds of people deemed mentally incompetent while detained on criminal charges. Under Title 22, Section 1175.61 of state statute, the Oklahoma Department of Mental Health and Substance Abuse Services is required to “to provide treatment, therapy or training which is calculated to allow the person to achieve competency” when a defendant is “found to be incompetent prior to conviction because he or she is a person requiring treatment as defined in [Title 43A, Section 1-103].”
But attorneys Leslie Briggs and Paul DeMuro have sued on behalf of hundreds of people who have faced delays receiving that care, sometimes beyond a year. In lieu of a massive financial judgment against the state, the plaintiffs’ attorneys have primarily pushed for a court-enforced improvement plan that would spur increased funding, staffing and capacity for ODMHSAS’ Oklahoma Forensic Center psychiatric hospital in Vinita, as well as a four-county pilot program testing community-based models for restoration services. Those services typically involve the administration and monitoring of anti-psychotic medications.
Example: Ross Norwood remains in county jail
More than a month after a judge deemed Edmond resident Ross Norwood temporarily incompetent to be prosecuted, he remains in the Oklahoma County Jail and has not been transported to the Forensic Center in Vinita for mental health services.
Along the way, the potential settlement and consent decree has faced hurdles. U.S. District Court Judge Gregory Frizzell ruled the proposed community-based competency restoration model is not legal under current state law, meaning the Legislature will have to modify statute to move forward with that component of the consent decree, which calls for a full plan to be developed within 90 days of the decree’s approval. Negotiations among the plaintiff attorneys, Drummond, Stitt, ODMHSAS Commissioner Allie Friesen and legislative leaders have grown tense at times, with the Contingency Review Board rejecting one version of the consent decree before parties struck a revised decree, which includes clarification about the legality of jail-based restoration services and added flexibility for the state to exit the decree after achieving compliance with its care benchmarks.
With Frizzell having maintained a Jan. 15 deadline for state approval of the proposed settlement, the attorneys will likely ask for an extension of that date so that the full Legislature can review the agreement and consider it for approval.
“If the court grants an extension, we will take up this request to consider the mental health consent decree that the governor and attorney general have agreed to,” Hilbert said in a statement. “In the meantime, our members will dig into the related issues and continue to work on improving mental health outcomes for Oklahomans.”
Paxton said Senate leaders “are reviewing the letter from the governor’s office and are coordinating with all parties involved to determine next steps.”
Abegail Cave, Stitt’s communications director, said the governor applauds Friesen’s work “to advocate for all Oklahomans that interact with her agency as this lawsuit went on.”
Phil Bacharach, Drummond’s director of communications, expressed confidence in finding a way to move forward with a solution.
“The bottom line is that a remedy to this issue is close at hand,” Bacharach said.
‘The Legislature is going to put more eyes on it’
For months, Stitt and Friesen have clashed with Drummond, whose office has deemed the Briggs lawsuit “indefensible” and has pushed to settle it with a consent decree. Drummond and Friesen have traded barbs over their attorney-client relationship, with Friesen proclaiming in October that she had been “represented inaccurately and inappropriately” by Drummond. As a result, Stitt hired Friesen separate legal counsel, which Drummond quickly moved to fire.
The saga has spurred another court fight over whether the attorney general can take over representation of the governor’s office or an executive agency head against their will.
During a Nov. 1 hearing over whether Friesen can choose her own attorney as ODMHSAS commissioner, Frizzell said his reading of Drummond’s briefing “basically (…) makes the attorney general the super executive with regard to matters that go into litigation.”
“You’re honestly saying that if you and your client, the agency head, have a distinct disagreement, that you can override the position of your client?” Frizzell asked.
Drummond’s solicitor general, Gary Gaskins, responded that “the client” in the Briggs case “is the state of Oklahoma.”
“The commissioner and executive director (of the Forensic Center hospital) have been sued in their official capacities,” Gaskins said. “The U.S. Supreme Court has said when a state officer is sued in their official capacities, that’s the same as if the state itself has been sued. So the client is the state of Oklahoma. It isn’t the commissioner.”
Cave noted the lingering tension Thursday and defended the administration’s decision to hire attorney Bill O’Connor of the Hall Estill law firm to represent Friesen.
“It was clear that the attorney general could not represent Commissioner Friesen or the agency in a suitable manner,” Cave said. “After a great deal of work by the attorneys appointed by the governor’s office, this settlement agreement found the balance between justice for those impacted and the well-being of Oklahoma taxpayers. The governor looks forward to hearing the Legislature’s decision on this agreement.”
As lawmakers prepare for their annual talk of tax cuts, teacher pay and economic development, the Legislature also must fill a funding gap for a new state mental health hospital near Interstate 40 and Interstate 44 in Oklahoma City. And as session begins, ODMHSAS is facing questions from a recently released report from the U.S. Department of Justice, as well as a bitter legal fight and controversy regarding community behavioral health center contracts and new catchment areas in Tulsa.
With all legislators realizing they may have to vote on a resolution to approve the revised consent decree, the document and its action plan could receive significant scrutiny in the coming months, meaning further revisions could be considered in an effort to specify a more thorough statewide plan to speed up services and improve results in counties big and small. However, any significant change would likely require renewed review from Frizzell, who has already granted preliminary approval to the current version, pending legislative action to legalize the community-based care pilot program.
“Having it go to the Legislature is going to put more eyes on it, and I don’t think that’s a bad thing,” said House Appropriations and Budget Committee Chairman Trey Caldwell (R-Lawton). “I want to make sure that all of Oklahoma is going to receive good, restorative services.”
Read Lepak’s letter to legislative leaders
Read the Nov. 1 court transcript
