As always, numerous consequential court cases bear watching in Oklahoma, and this week saw an appellate court ruling on mothers’ medical marijuana rights, a tribal supreme court stay of proceedings in a Freedman citizenship case and a controversial community development in Edmond losing its final appeal.
Meanwhile, the Oklahoma State Department of Health’s commissioner is ordering Oklahoma County Jail leaders to comply with unannounced inspections, and OSDH officials have also released details of a pending settlement that would recoup about one-third of the lost $1.83 million paid to a pandemic-era company formed by a now-candidate for Tulsa mayor.
Find updates and details about those matters and more below.
Muscogee Freedmen oral arguments stayed pending ‘special judge’ suit
Muscogee Nation Supreme Court Chief Justice Andrew Adams III issued an order staying oral arguments — originally scheduled for Friday, July 26 — in Citizenship Board of the Muscogee (Creek) Nation v. Grayson, an appeal pending on a district court decision ordering the citizenship board to enroll descendants of Freedmen as citizens of the tribe.
The July 12 order came at the same time the court issued an initial briefing schedule in another case, Grayson v. Muscogee (Creek) Nation Council, which was filed last week to challenge the constitutionality of a special judge law passed in June.
Through their attorney Damario Solomon-Simmons, Rhonda K. Grayson and Jeffrey D. Kennedy — also the plaintiffs in the citizenship suit — challenged the new law, which allows the appointment of special justices to the Muscogee Nation Supreme Court to hear one case when a regular justice recuses.
In the scheduling order signed by all seven justices of the court, the Muscogee Nation’s attorneys were given 30 days to file objections to the court assuming jurisdiction and hearing the new case. If the Muscogee Nation files an objection, then Solomon-Simmons has 15 days to file a response brief. All pending cases affected by the special justice law were also put on hold.
The order also stayed the enforcement of the special justice law, meaning if any justice recuses in the new suit, special judges will not be appointed to review the special justice law.
Court: Marijuana use during pregnancy with license not child neglect
A 3-2 decision announced Thursday by the Oklahoma Court of Criminal Appeals upheld a Kay County judge’s dismissal of child neglect charges filed against Amanda Aguilar. In 2020, Aguilar was charged with child neglect after her son was born healthy in Ponca City with traces of THC in his system owing to her licensed use of medical marijuana during pregnancy.
Kay County District Attorney Brian Hermanson’s office filed one charge of child neglect against Aguilar in December 2020 arguing she had failed to “protect” her child “from exposure to the use, possession, sale, or manufacture of illegal drugs.” Aguilar’s attorney argued that her use of marijuana was licensed and that the plant was not an “illegal drug” for her.
District Court Judge Lee Turner agreed with Aguilar and dismissed the charge in June 2023, finding that marijuana use with a license did not qualify as use of an “illegal drug.” Hermanson appealed the decision and decisions in similar cases to the court of criminal appeals.
Presiding Judge Scott Rowland wrote the majority opinion upholding Turner’s decision and clarifying that marijuana use with a medical marijuana license while pregnant does not currently meet the state’s definition of child neglect.
“We find the most logical reading of 10A O.S. Supp 2019 §1-1-105(48)(b)(1) is that ‘illegal drugs’ means those drugs whose possession or use violated the law at the time of that possession or use,” Rowland wrote. “Hence, an expectant mother who exposes her unborn child to illegal methamphetamine could be convicted of child neglect. Conversely, under that definition, an expectant mother’s licensed possession and use of medical marijuana would not trigger an automatic finding of neglect for failure to protect her unborn child from exposure to illegal drugs because as to her, marijuana is not an illegal drug.”
Hermanson argued that while Aguilar possessed a license for marijuana use “her unborn child did not” and the presence of drugs in the child’s system met the “illegal drugs” requirement in state law. He also pointed to back of Oklahoma’s medical marijuana licenses, which read “do not use medical marijuana if you are pregnant or breastfeeding.”
Ultimately, a majority of the court found Hermanson’s argument would “require us to rewrite the statutes in a way we simply do not think appropriate for courts to do,” while also urging the Oklahoma Legislature to “consider an addition to the law making clear when, if ever, the licensed use of marijuana may constitute child neglect.”
But the appellate judges were far from unanimous in their decision. Judges David Lewis and Gary Lumpkin both dissented and would have allowed the criminal case to continue.
Lumpkin argued that the presence of marijuana in a newborn child’s system is illegal.
“This finding strains a gnat’s hair to disregard the status of the unborn baby,” Lumpkin wrote. “It is not the mother’s use or possession of marijuana that is criminalized by the child neglect statute, but her exposure of her unborn child to the use or possession of marijuana, an illegal drug for the child.”
Lewis compared the decision to “permitting the unlicensed ingestion of marijuana by children” and argued voters did not intend to legalize marijuana use during pregnancy.
“The majority seems to concede that this result would surprise both the voters who adopted the medical marijuana law and the legislators who have kept the law largely in effect. It certainly surprises me,” Lewis wrote. “Because neither the people nor the Oklahoma Legislature intended to legalize child neglect in the form of marijuana exposure by their enactment of medical marijuana laws, I respectfully dissent.”
Judge Robert Hudson, who sided with the majority, wrote a one-page concurrence to note the Oklahoma Medical Marijuana and Protection Act protects marijuana use “in accordance” with the act. He wrote “specially to stress the need for legislative clarification.”
OSDH awaits payment in settlement of 2020 PPE debacle
One defendant has until Oct. 1 to pay the remaining $207,000 on a pending settlement with the Oklahoma State Department of Health to conclude litigation regarding $1.83 million the state paid a company called PPE Supplies to procure personal protective equipment days into the pandemic in 2020.
In 2020, the state paid PPE Supplies more than $2 million to obtain 2 million N95 masks from Asian suppliers, but fewer than 10,000 were ever received. The company’s founders said they were misled by business partners overseas, but the state alleged in 2021 that PPE Supplies made “false” representations about having equipment “on-hand” in China to fill OSDH’s purchase orders.
Under terms of the settlement initially struck in April 2023, defendants PPE Supplies, Brett Baker, BGB Venture, Casey Bradford and Michael Velasquez agreed to pay $600,000 of the $1.83 million sought by OSDH in the 2021 lawsuit. The company — formed in March 2020 days before it received massive contracts to pursue scarce personal protective equipment — had already returned $300,000 of state money before the lawsuit was filed.
Soon after the April 2023 settlement was signed, the defendants repaid another $300,000, leaving only $300,000 of the settlement figure unpaid. When the defendants had not made the final $300,000 payment by April of this year, the parties agreed to an addendum requiring PPE Supplies and its members to pay $93,000 on April 1 and for Bradford to pay the final $207,000 by Oct. 1, along with a 6 percent interest rate on the unpaid portion.
“As of July 19, the settlement is pending final payment to the agency,” OSDH public information Erica Rankin said Friday. “Pursuant to the settlement, the parties have until October 2024 to satisfy the terms of the agreement.”
Three weeks after Bradford extended his payment timeline by signing the settlement addendum in April, he announced a campaign for mayor of Tulsa.
“I don’t think that voting for the business-as-usual is going to help us take the necessary steps to answer the problems we currently face as well as the problems that will inevitably arise in the near future,” Bradford said in an April 25 press release. “We (the city of Tulsa) need a mayor that will inspire hope, progress and growth.”
In June, Bradford — co-owner of the Shady Keys piano bar — formally filed for the non-partisan race that faces an Aug. 27 Election Day in Tulsa.
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Open in new tab OSDH commissioner: Oklahoma County Jail must comply with inspectors
Oklahoma State Department of Health Commissioner Keith Reed has issued a compliance order demanding that the Oklahoma County Criminal Justice Authority — the “jail trust” that oversees the day-to-day operations of the Oklahoma County Jail — allow OSDH inspectors inside the facility
The Oklahoma County Detention Center and the Oklahoma State Department of Health have been at odds over inspections of the long-troubled facility. On June 25 and July 9, inspectors were denied entry into the jail for what are typically unannounced visits. In the first instance, jail staff told inspectors there were not enough people on duty to safely accommodate the inspection.
In the second instance, inspectors were denied entry and referred to Oklahoma County Assistant District Attorney Aaron Etherington, who informed the department via letter that they lacked the authority to conduct unannounced inspections.
In his July 15 compliance order, Reed said the continued denials were a violation of state law, and he criticized Etherington’s ongoing correspondence.
“In accordance with [Title 74, Section 193(B)], a copy of the statement of deficiencies outlining the above-referenced continuing violation was provided to OCDC’s administrator, Brandi Garner, via email on July 9,” Reed wrote. “That afternoon, Etherington again provided written correspondence, without any legal basis or justification supporting the refusal (…).”
As Oklahoma County and Oklahoma City head to court over the proposal to build a new jail, the current one has now failed nine consecutive inspections, including the last two because access to the facility was restricted.
Upon receipt of his compliance letter, Reed ordered jail staff to “correct violations listed in his letter, and to immediately permit OSDH inspectors to enter all jail premises and administrative offices for the purpose of performing their assigned duties at the next unannounced inspection and all subsequent unannounced inspections.”
If Reed’s order is not followed and unannounced inspections are not permitted, he said jail staff face “administrative penalties.”
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Appellate court sides with Edmond in 2018 development dispute
On Wednesday, the Oklahoma Court of Civil Appeals ended a development dispute dating back to 2018 between the Edmond Planning Commission and a builder seeking permission to construct a 451-unit neighborhood.
In 2018, SACC Investments-Moyer LLC submitted a preliminary plat looking to build the planned “Arcadia Peak” subdivision on a 110-acre parcel situated south of Coffee Creek Road and west of Midwest Boulevard — about a mile and a half east of Interstate 35. The 451 homes would average 6,000 square feet, per the project documents.
The land, centered on an undisturbed section of Oklahoma’s Cross Timbers woodland, is also considered ecologically valuable. The development plan presented to the planning commission could have preserved many of the significant trees “with proper planning,” according to a previous city report, but tree canopy impact would have been “difficult to anticipate.”
City staff at the time confirmed the site plans met code requirements and recommended tentative approval, according to court documents. But staff members acknowledged their approval was only “advisory” and held no guarantee the commission would green light the project.
In November 2018, the Edmond Planning Commission ultimately denied the plat in a unanimous 4-0 vote, despite urging from SACC Investments’ then-attorney, former Mayor Randel Shadid. SACC later replaced Shadid with attorney David Box.
After losing on a summary judgment that it successfully appealed, the district court again found in favor of the city. SACC Investments appealed that decision, claiming the commission had acted “in an arbitrary, capricious and unreasonable manner.”
Long-time Court of Civil Appeals Judge John F. Fischer wrote the panel opinion, siding with the City of Edmond and ruling that the planning commission was within reason to deny the development and uphold District Court Judge Richard Ogden’s findings.
“We hold that the district court’s determination that the commission did not act in an arbitrary or capricious manner or rely on arbitrary standards is not clearly contrary to the weight of evidence in the appellate record,” Fischer wrote. “We affirm the judgment of the district court and its denial of the company’s request to enjoin the city’s enforcement of the commission’s denial.”
