Amid the legislative hustle and bustle at the State Capitol, multiple Oklahoma legal cases have seen developments with implications for state agencies, tribes and religious organizations.
In this legal roundup, find updates on cases involving municipal jurisdiction over tribal citizens, St. Isidore of Seville Catholic Virtual School, the Corporation Commission, the Judicial Nominating Commission and more.
Court of Criminal Appeals: Tulsa has jurisdiction over Keith Stitt
More than four years after a Tulsa police officer pulled over Keith Stitt, Gov. Kevin Stitt’s brother, in a Green Range Rover for driving 28 miles over the speed limit within the Muscogee Reservation, the Oklahoma Court of Criminal Appeals affirmed Thursday that the city has criminal jurisdiction over the Cherokee attorney. Although Keith Stitt’s appellate case was supported by the Five Tribes and the U.S. Department of Justice, the court rejected his challenge to the city’s criminal jurisdiction, which argued that the McGirt v. Oklahoma decision means the state and its subdivisions lack criminal jurisdiction over tribal citizens in the Five Tribes’ affirmed reservations.
Stitt, a Cherokee Nation citizen and the founder of Colonial Title, was pulled over by a Tulsa police officer in a 50-mph zone while driving down U.S. Highway 75 at approximately 78 mph in February 2021. The case was sent to Tulsa Municipal Court, and between February 2021 and June 2022, Judge Mitchell McCune rejected motions to dismiss for lack of jurisdiction. Stitt appealed those rulings, and his traffic ticket ended up before Oklahoma’s highest criminal court.
In a six page published summary opinion, a 4-1 majority found that the city had jurisdiction over Stitt based on their recent decision in City of Tulsa v. O’Brien, which held that Tulsa’s municipal court has criminal jurisdiction over non-member tribal citizens — meaning Indigenous people who are not members of a tribe whose reservation boundaries they are within.
“O’Brien also addressed and denied virtually the same Castro-Huerta arguments made by appellant in this case. After determining that state jurisdiction was not preempted as a result of Bracker balancing, this court found that Oklahoma has concurrent criminal jurisdiction in Indian Country over non-member Indian defendants accused of committing non-major crimes,” Judge Scott Rowland wrote for the majority. “Pursuant to this court’s reasoning in O’Brien, Tulsa’s exercise of jurisdiction in this case does not unlawfully infringe upon tribal self-government and appellant’s claims are without merit.”
Judge David Lewis dissented to argue the O’Brien decision was wrongly decided.
“I concur in the court’s holding regarding the Curtis Act and Hooper v. City of Tulsa (not granting jurisdiction), but respectfully dissent from the remainder of the opinion for reasons stated in my separate opinion in City of Tulsa v. O’Brien,” Lewis wrote. “Congress has never conferred criminal jurisdiction on the state or its municipal subdivisions to prosecute Indians for crimes committed in Indian County.”
Brett Chapman, who has represented both Keith Stitt and Nicholas O’Brien in their separate cases, said in a Twitter post that he was “evaluating” an appeal to the U. S. Supreme Court:
Today’s ruling by the Oklahoma Court of Criminal Appeals in Stitt v. City of Tulsa lacks any real legal foundation and blatantly disregards well-established principles of federal Indian law and binding Supreme Court precedent. This decision is the crowning achievement of a recent spate of anti-Indigenous rulings handed down by these judges, all of which circumvent the 2020 landmark decision in McGirt v. Oklahoma, eroding tribal sovereignty and violating treaty rights in the process.
Their decision is not only legally flawed, but also a dangerous step toward erasing the recognition of tribal authority that has been settled law for well over a century. By allowing the state of Oklahoma to force jurisdiction in a manner inconsistent with federal law, the handful of judges of this court have disregarded the foundational legal framework that protects tribal self-governance. To that end, we intend to seek rehearing and are evaluating petitioning for review by the (U.S.) Supreme Court.
Hours later, Chapman said in another post that he intends to seek a U.S. Supreme Court appeal.
Fugate lawsuit tossed, Supreme Court appeal lodged
After Oklahoma County District Judge Brent Dishman dismissed Rep. Andy Fugate’s lawsuit challenging Gov. Kevin Stitt’s executive order requiring state employees to return to in-person work just 10 days after it was filed, the representative has appealed the decision to the Oklahoma Supreme Court. The court ordered an accelerated appeal with the next filing due by March 26.
On Dec. 18, Stitt signed an executive order stating “the conditions necessary for non-traditional work environments have been alleviated” following the COVID-19 pandemic and ordered most state employees to return to in-person work. Employees may be exempted from the order if they work outside normal business hours, if in-office employment is not possible, or if agency facilities are at full capacity.
On Feb. 21, Fugate (D-OKC) filed suit seeking a declaratory judgement and injunction preventing the order’s enforcement, but Dishman denied his petition and dismissed the suit just 10 days later.
Richard Labarthe, Fugate’s attorney, argued Stitt’s order violated the separation of powers by usurping the Legislature’s power to create state law.
“The Legislature has enacted laws concerning state agency personnel, workplace rules, and appropriations. Nowhere is the governor granted unilateral authority to override or revise these conditions by executive fiat,” Labarthe wrote. “Because the Legislature exclusively controls appropriations, the inevitable additional expense for office expansions or facility upgrades — arising from a full return-to-office mandate — requires legislative authorization.”
Stitt’s attorneys argued Fugate lacked standing to bring the case.
“Executive Order 2024-29 only applies to the executive branch, not the Legislature, so [Fugate] cannot establish the EO caused him any direct, actual, concrete harm,” attorneys Benjamin Lepak, Audrey Weaver and Remington Dean wrote. “Instead, plaintiff’s claims amount to no more than abstract or generalized grievances that rely on conjecture.”
‘Manufactured political drama’: Drummond responds to Walters’ opinion request
On March 3, Attorney General Gentner Drummond sent a letter to State Superintendent of Public Instruction Ryan Walters effectively denying the superintendent’s request for an AG opinion about how a recent executive order from President Donald Trump affects the Oklahoma State Department of Education.
Trump’s Feb. 19 order prohibits public resources from benefitting undocumented immigrants. Walters submitted a request for an AG opinion Feb. 24 seeking answers on how the executive order “to end taxpayer subsidization of illegal immigration will impact Oklahoma schools.”
In his request, Walters listed numerous programs such as The National School Lunch Program and the English Language Proficiency program, which use federal money to provide adequate meals to students and to assist English learners, as examples of programs that could benefit undocumented students.
“These programs may, by design or effect, provide illegal aliens with taxpayer-funded benefits, as any illegal alien taking advantage of such programs may in turn benefit from taxpayer funding of the same,” Walters wrote in his request. “President Trump has received a clear mandate from the American people as evidenced by the results of the most recent presidential election. I fully support President Trump and the efforts of his administration, both in the issues sought to be remedied by the EO, and generally.”
Walters asked Drummond to answer two questions:
- “Are school programs in Oklahoma public schools that receive federal funding, in whole or in part, affected by President Trump’s EO?”
- “If the answer to Question 1 above is in the affirmative, how is [OSDE] to ensure the requirements of the EO as the same relates to affected school programs?”
In Drummond’s March 3 response, he called Walters’ request “nothing more than manufactured political drama,” and he attempted to give the former U.S. history teacher a civics lesson.
“As a reminder, the framers of the U.S. Constitution enshrined within it the concept of federalism,” Drummond wrote in his letter. “This means that the United States and the several states are distinct and separate sovereigns. As a result, President Trump is the head of the executive branch for the United States government. The president issues executive orders that direct the actions of federal departments, agencies, officers, employees, and contractors; while a governor issues executive orders that direct the actions of state departments, agencies, officers, employees, and contractors.”
Drummond also applauded Trump’s efforts to curb illegal immigration while simultaneously denouncing Gov. Kevin Stitt for his “many failures” to address the “critical issue.”
“For more than six years in office, Gov. Stitt took no substantive action to address illegal immigration here in Oklahoma,” Drummond wrote. “Quite the opposite, Gov. Stitt partnered with the Biden administration to ‘resettle’ over 1,800 poorly-vetted Afghan ‘refugees’ in Oklahoma. (…) Worse still, an audit revealed that Gov. Stitt improperly spent over $6.5 million in taxpayer funds to ‘resettle’ these ‘refugees’ without appropriate authorization. Additionally Gov. Stitt partnered with the Mexican government to establish a Mexican Consulate in Oklahoma City, which serves Mexican nationals who are here illegally (as well as those who are lawful residents).”
To conclude his response, Drummond offered a recommendation for Walters.
“I suggest you devote increased energy and focus on improving the test scores and reading proficiency of Oklahoma students,” Drummond wrote. “The people of this state entrusted you with the critical responsibility of administering and managing public education. Fulfilling that responsibility should be your only focus.”
On Mar. 6, Walters issued a second request reiterating the questions posed in the first letter, and he cited a state statute requiring the AG to offer his opinion on any matter of law when requested to do so by the Legislature or by a state officer.
“We need to make preparations, plans, and adjustments that may be required to best serve Oklahoma’s schools,” Walters wrote in his second request. “These issues are of paramount importance to the Oklahoma students, parents, and schools. We all await your response, which I hope will be useful and constructive, rather than the chastisement, hyperbole, and baseless accusations of manufactured political drama which comprised your initial correspondence.”
Catholic school, board tell SCOTUS charters are not state actors
On March 5, St. Isidore of Seville Catholic Virtual School and the Statewide Charter School Board filed their brief with the U.S. Supreme Court arguing that justices should overturn the Oklahoma Supreme Court’s June ruling that the proposed Catholic charter school violates state law and the free exercise clause of the First Amendment.
The “brief on the merits” marks the first filing from St. Isidore and the SCSB since the U.S. Supreme Court decided in January to take up the case, and it represents the petitioners’ overall argument for why they believe Oklahoma’s Supreme Court justices erred in their decision.
“This court has ‘repeatedly held that a state violates the free exercise clause when it excludes religious observers from otherwise available public benefits’ and programs,” attorneys for the SCSB wrote in their 71-page brief. “Three times in the last eight years, the court has applied that principle to stop state efforts to exclude religious schools, parents, and students from generally available funding programs based solely on their religion. The Oklahoma Supreme Court has not gotten the message. It held below that the state may broadly invite anyone to apply to operate charter schools — yet exclude religious organizations.”
Charter schools are public schools that receive public funding, but they can be run by private management organizations. They are prohibited from charging tuition, and they must be sponsored by a state-approved entity. In Oklahoma, approved sponsors include public school districts, universities, tribal nations and the SCSB.
The Archdiocese of Oklahoma City and the Diocese of Tulsa submitted an application to the Statewide Virtual Charter School Board in early 2023 to jointly operate a virtual charter school that would teach a Catholic education. (Last year, the SVCSB became the SCSB.) Members of the SVCSB approved the application in a split vote in June 2023. In October of that year, Attorney General Gentner Drummond filed a petition with the Oklahoma Supreme Court asking justices to compel the board to cancel its sponsorship contract with the school, saying it violates state law and the U.S. Constitution.
The Oklahoma Supreme Court eventually issued a ruling agreeing with Drummond.
In appealing the case federally, attorneys for St. Isidore and the SCSB argue that charter schools are not state actors, so requirements that charter schools be nonreligious constitute religious discrimination. If the U.S. Supreme Court ultimately sides with St. Isidore, it would likely become the nation’s first religious charter school.
“This case presents another instance of a state discriminating against religious educators in violation of the Constitution,” attorneys for St. Isidore wrote in the introduction to their own 68-page brief. “Oklahoma has adopted a program to foster educational diversity through privately designed and operated charter schools. The state invites private organizations to participate in this program by contracting with the state for funding. But Oklahoma denies that opportunity to religious entities, solely because they are religious. That discrimination is unconstitutional.”
Drummond has until March 31 to answer St. Isidore’s and the SCSB’s briefs. The court scheduled oral arguments for April 30.
Supreme Court affirms Corporation Commission ruling against OG&E
A 5-3 Oklahoma Supreme Court affirmed a ruling of the Oklahoma Corporation Commission preventing Oklahoma Gas & Electric Company from providing electricity outside of its “certified territory.” Under Oklahoma’s Retail Electric Supplier Certified Territory Act, commercial electricity suppliers are granted “the exclusive right to furnish retail electric service to all electric-consuming facilities located within its certified territory,” but OG&E applied for a “large load” exemption to supply the Tall Oak Woodford Cryo Plant in Coal County with power.
While monopolies are usually disfavored under American law, electrical utilities are commonly granted monopolies under state law. Under the RESCTA, People’s Electric Cooperative, Inc. has the exclusive right to provide power to the Tall Oak plant, but OG&E attempted to provide power under an exception that allows the provision of power “to an electric-consuming facility requiring electric service, in an unincorporated area, if the connected load for initial full operation of such electric-consuming facility is to be 1,000 kw or larger.” People’s Electric Cooperative filed with the Corporation Commission to block the deal, and an administrative law judge recommended that OG&E be blocked from providing power to Tall Oak. The OCC adopted the ALJ’s findings and enjoined OG&E from providing power to the facility. OG&E appealed to the Supreme Court.
While deciding the case, the court clarified the standard of review it uses to review decisions by corporation commissioners. When there is a constitutional violation alleged, the court will review the case de novo, or entirely fresh. If there is no constitutional violation alleged, such as in OG&E’s appeal, the case “receive[s] a limited de novo review which extends no further than determining whether the commission acted within its authority and whether its findings and conclusions are sustained by the law and substantial evidence.”
Justices James Winchester, Douglas Combs and Noma Gurich dissented.
“The majority opinion is based entirely on the interpretation of statutory law included in the Retail Electric Supplier Certified Territory Act (RESCTA), which was enacted over 50 years ago, without regard to the technological advancements that have taken place in that time. The majority mistakenly overlooks the fact that since the RESCTA’s enactment in 1971, the Legislature has indicated its intent to keep apprised of the changing technology relating to the electric industry and has endeavored to create competition in that space,” Gurich wrote. “The current majority’s interpretation retains the exclusivity of the certified territories and negates the exception entirely by prohibiting the use of open-access transmission lines because they were not available in 1971. As pointed out in CKenergy I, the use of open-access transmission lines has not, to this date, been prohibited by statute. The use of open-access transmission lines, in fact, accomplishes the goals of the RESCTA by avoiding the unnecessary encumbering of the Oklahoma landscape and preventing the waste of materials and natural resources.”
Justice James Edmondson did not participate in the case.
Judicial Nominating Commission sets Supreme Court interviews …
The search for Oklahoma’s next Supreme Court justice is one step closer as the Judicial Nominating Commission announced that interviews for the open seat will be held March 11. After Canadian County District Judge Paul Arthur Hesse withdrew his name, 13 applicants — including several judges and a former Oklahoma solicitor general — are set to interview with the private panel to succeed Justice Yvonne Kauger, who lost her retention election in November.
“Immediately following the interviews, the JNC will provide the governor a list of three nominees,” a JNC press release announced.
Applicants still seeking a seat on the court are:
- Aric Ammaron Alley, Buffalo, is an associate district judge in Harper County;
- Scott Robert Biggs, Stillwater, is a member of the Oklahoma Workers’ Compensation Commission, former state representative and an officer in the Oklahoma Air National Guard;
- Donna Lynn Dirickson, Weatherford, is a district judge for Beckham, Custer, Ellis, Roger Mills and Washita counties;
- Louis Alvin Duel Jr., Guthrie, is an associate district judge in Logan County;
- Spencer Tracy Habluetzel, Wheatland, is an attorney with the Buxton Law Group;
- Travis Verl Jett, Woodward, is an attorney with the Hodgden Law Firm;
- Michelle Kirby-Roper, Elk City, is an associate district judge in Beckham County;
- Mithun Suresh Mansinghani, Logan County, is a former Oklahoma solicitor general;
- Nisha Moreau, Edmond, is a founder and current attorney of the Edmond-based Moreau Law Firm;
- Jon Keith Parsley, Guymon, is a district court judge for Texas, Cimarron, Beaver and Harper counties;
- Lawrence “Lance” Schneiter IV, Okarche, serves as an associate district judge for Kingfisher County;
- Chelsea Celsor Smith, Leedey, is an attorney who currently operates a legal consulting firm; and
- Stuart Lee Tate, Fairfax, is a district judge in Osage County.
Members of the public are “strongly encourage[d]” to “continue submitting comments” on the applicants via mail, the JNC release stated. The JNC only accepts comments on judicial applicants sent by mail to either an address in Oklahoma City or McAlester. Notably, the lack of an in-person delivery option for comments makes the process more even restrictive than the application process for judges.
When the JNC sends Gov. Kevin Stitt its three candidates, he will have 60 days to appoint one of the three. The timeline released sets the state’s highest court to be back at full strength in March at the earliest and by May at the latest. Particularly close cases before the court may need a tie-breaking vote, and the new justice will have to familiarize themselves with several important pending controversies quickly.
… and Custer County interviews …
The four applicants to succeed Associate Judge Donna Dirickson in Custer County will be interviewed by the JNC on March 28. Afterward three candidates will “immediately” be sent to Stitt, according to a JNC press release.
Dana Jean Hada, Sheri Maria Johnson, Lyn Lawrence Housley and Stephenie Celeste Parker-Jones applied for the open seat. The release also “strongly encourages” members of the public to mail “comments on these applicants” to an address in either Oklahoma City or McAlester.
… while Creek and Oklahoma counties need applicants…
After the JNC announced a deadline of Jan. 31 for applications to succeed District Judge Douglas W. Golden in Creek County, only two attorneys applied. Golden officially retired Feb. 1. The Oklahoma Constitution requires three candidates be presented to potentially fill a vacancy, putting the process in overtime.
The JNC reopened the application period until March 7. Applicants must be a legal resident of Creek County when they assume office and must have been a licensed attorney in the state for four years prior to their appointment. Applicants may submit their applications to the JNC either by mail or in person at the Administrative Office of the Courts in Oklahoma City.
In Oklahoma County, District Judge Aletia Haynes Timmons announced she would retire effective March 3. Timmons was first elected in 2014 and won reelection in 2018 and 2022.
Attorneys who live in the seventh judicial district, better known as Oklahoma County, and have at least four years of experience as a practicing attorney or judge may apply for the office until March 21. Applications must be mailed or hand delivered to Administrative Office of the Courts in Oklahoma City.
.… with Stitt to appoint a new Seminole County associate judge …
In southeast Oklahoma, Stitt appointed Associate Judge Brett Butner on Oct. 4 to succeed Timothy Olsen as district judge for Judicial District 22, which includes Seminole, Pontotoc and Hughes counties. Butner’s appointment left Seminole County’s associate judge office vacant.
On Feb. 4, the Judicial Nominating Commission sent Stitt three candidates to replace Butner: Special Judge Christopher Gene Anderson of Wewoka, Seminole State College Regent Ryan Harley Pitts of Holdenville, and Seminole Nation Judge Peary Livingston Robertson of Seminole. Applicants Blayne Phillips Norman of Wewoke and Joshua Lynn Pyron of Seminole were eliminated by the JNC.
… plus Sean Hill replaces Brian Lovell in Garfield County
Stitt selected Sean Karl Hill, an assistant district attorney, to serve as the new associate district judge for Garfield County. Hill is replacing Judge Brian Lovell who resigned in September citing a frontotemporal dementia diagnosis. Before Lovell’s resignation he was facing discipline for a sex scandal, and he is still facing criminal charges in Garfield County and Travis County, Texas, for two separate drive-by shootings.
Hill is a University of Oklahoma College of Law graduate who previously worked in private practice, as an assistant district attorney in Tulsa County and as an assistant attorney general. He most recently worked as assistant district attorney in Garfield County, according to a press release from Stitt’s office.
Stitt chose Hill over the other candidates, former assistant district attorney and assistant attorney general Hope Leslie Bryant and Garfield County Special Judge Blake Allen Gibson.
