The Oklahoma Supreme Court has ruled 8-0 that Gov. Kevin Stitt has the authority to hire his own outside counsel to represent him in specific cases and that Attorney General Gentner Drummond could make appearances in those cases ex officio, or by virtue of his office, but that the attorney general cannot fire and replace counsel appointed by the governor.
The ruling stems from a dispute over gaming compacts where Drummond sought to replace Stitt’s counsel with his office’s attorneys. Heightening confusion around the decision’s implications, first Drummond’s office and then Stitt’s office sent out dueling press releases declaring victory Wednesday.
Citing a 1980 opinion which found the Oklahoma Corporation Commission could retain its own attorneys when then-Attorney General Jan Eric Cartwright sought to intervene in a case, the court held that Stitt’s “constitutionally granted supreme executive power” shields him from Drummond replacing his outside counsel. The Oklahoma high court also noted rulings by state supreme courts in Kansas and Alabama on similar questions.
“As in Howard, we conclude that the governor, in defending the claims asserted against the state, is entitled to be represented by an attorney whose views are consonant with his own, or who at least will represent those views on his behalf in the federal case,” Justice Richard Darby wrote in his opinion. “We hold that the attorney general’s statutory authority to take and assume control of the state’s defense is subordinate to the governor’s constitutionally granted supreme executive power, and statutorily granted authority which gives him the right to represent the state and choose his counsel in defense of the action.”
The underlying federal case, Cherokee Nation et al v. U.S. Department of Interior et al, involves gaming compacts Stitt signed with the Comanche Nation, the Otoe-Missouria Tribe, the United Keetoowah Band of Cherokee Indians and the Kialegee Tribal Town. (The compacts signed by Stitt with the four smaller tribes specified new casino opportunities near the plaintiff tribes’ existing casino interests.) In two separate cases, colloquially called Treat I (2020) and Treat II (2021), the state’s highest court found that the new compacts with the Comanche and Otoe-Missouria tribes were invalid for including types of betting illegal under state law, such as sports betting. In the second case, the court found the new UKB and Kialegee compacts were invalid for not being approved by the legislative Joint Committee on State-Tribal Relations.
While the compacts were ruled invalid under state law, it remains unclear whether that invalidates them under federal law. Because the state court decisions were issued after the compacts had been approved by default when then-Secretary of Interior David Bernhardt took no action on their federal review after 45 days, the Cherokee Nation, Chickasaw Nation, Choctaw Nation and Citizen Potawatomi Nation sued in the U.S. District Court for the District of Columbia to prevent the compacts from taking effect under federal law. The defendant tribes moved to dismiss the case in an effort to protect the approved status of their new compacts, should the Oklahoma Legislature legalize sports betting and other forms of gaming. (In October 2023, Stitt’s office asked that the new UKB and Kialegee compacts to be considered by the Joint Committee on State-Tribal Relations, but the legislative body unanimously rejected the agreements.)
While Stitt has stood by the compacts and has argued the Oklahoma Supreme Court decisions do not override their federal approval status, Drummond sought to intervene in the case and replace Stitt’s outside legal counsel, arguing the compacts are federally invalid for violating state law. With the federal district court unsure how to proceed, Judge Timothy J. Kelly requested the Oklahoma Supreme Court to clarify whether Drummond could enter the case under state law.
In Wednesday’s 8-0 holding, Justice Douglas Combs wrote a brief concurring opinion that supported the finding of gubernatorial supreme executive power, but he said the underlying federal case about casino compacts should be considered “moot.”
“The attorney general has argued the compacts at issue in this matter have already been found to be invalid by this court and we have held the governor could not unilaterally execute them,” Combs wrote. “My belief is the case and the controversy is over and our previous Treat v. Stitt decisions, which determined the compacts to be invalid, answers the issue before the federal court.”
Wednesday’s decision blocks Drummond from replacing Stitt’s counsel with his own but allows him to appear in the case as the attorney general and potentially present his position to the court. While the court clarified the governor is authorized to retain his own counsel, it is unclear how the precedent will impact other executive officials, such as Mental Health Commissioner Allie Friesen who with Stitt has squabbled with Drummond over who can represent her in a mental health lawsuit about competency restoration services. A proposed settlement has been reached in that case, which the Legislature will consider in its 2025 regular session.
Drummond, Stitt claim victory in dueling press releases on outside counsel
Darby, in his opinion, wrote that while the Oklahoma Constitution does not explicitly describe the governor’s authority over the other executive branch offices, the justices believe that a hierarchy is clearly contemplated in Article VI, Section 2.
“This court has held that the use of the word ‘supreme’ to modify the term ‘executive power’ indicates that the people intended to vest the governor with the full range of executive powers which were recognized when the Oklahoma Constitution was adopted,” Darby said.
Drummond’s office was first to respond to the decision, with communications director Phil Bacharach releasing a press release about 2:30 p.m. In contrast with prior press releases, it did not include a link to the decision or direct quotes from Drummond, but it did include a short statement from Bacharach.
“Attorney General Drummond had argued he has statutory authority to advocate for the interests of the state, and we are pleased that the state Supreme Court today affirmed that stance. This lawsuit, which has squandered state resources over four-plus years, is the result of unlawful gaming compacts orchestrated by the governor,” Bacharach said.
While the high court did find the attorney general has the power to “advocate for the interests of the state” by appearing ex officio, it did not affirm Drummond’s stance on his authority to replace the governor’s chosen counsel.
Stitt’s office followed with its own press release about an hour later, declaring victory on the question while calling Drummond’s stance a “power grab.”
“I’m pleased with the court’s common sense ruling which gives the governor clear authority to defend Oklahoma’s interests in court. I’m also optimistic that this ruling signals the court’s return to constitutional principles,” Stitt said. “Unfortunately, [Attorney General] Drummond wasted a lot of time and taxpayer money trying to take control of litigation that was meant to protect Oklahomans. His power grab was rejected.”
Just 30 minutes before his office released its press release, Drummond appeared on stage at one of his gubernatorial campaign events alongside the Oklahoma Association of General Contractors executive director Bobby Stem to receive the organization’s endorsement for the 2026 election. Drummond has already been endorsed in the nascent gubernatorial race by the state Fraternal Order of Police.
