Stealth legislation to redistrict courts raises stink

Click for timeline graphic: duncan timeline

A bill that would eliminate some of District Attorney Rex Duncan’s judicial adversaries flew under radar last week, passed the Senate, and then ran headlong into intense opposition from judges, lawyers and myriad others who work in the courts.

House Bill 2416, filed at the behest of Duncan, began life as a humdrum piece of legislation that would have extended the life of the State Board of Examiners of Certified Shorthand Reporters until 2020.

But it was wiped clean Monday evening by Sen. Nathan Dahm, R-Broken Arrow, and reborn as a bill that would detach the Pawnee County judicial district from Tulsa County’s, and attach Pawnee to Osage County.

On Wednesday at 5:53 p.m., the Senate voted to pass the bill by a vote of 36-10, with Sens. Eddie Fields, R-Wynona and Ann “AJ” Griffin. R-Guthrie – a district that includes Pawnee – jumping on as co-authors with Dahm.

None of the three senators replied to repeated questions from The Bigheart Times.

News of the bill and its passage in the Senate hit Osage and Pawnee counties on Thursday morning like a 2×4 upside the head, setting in motion a barrage of opposition and sending Osage District Judge John Kane and Pawnee District Judge Jefferson Sellers to Oklahoma City to figure out how the bill had so rapidly come to pass without their input.

Both chief judges are opposed to the hasty reconfiguration of the judicial districts, and view it as detrimental to an already overburdened justice system in both counties.

“I feel like I’ve got a firehose stuck in my mouth and I’m drinking as fast as I can,” Kane said.

“I am opposed to the bill as it currently stands.”

‘Patent untruths’

Pawnee Associate District Judge Patrick Pickerill called the Duncan maneuver as it saw it in a letter to legislators.

“Mr. Duncan’s request is entirely self-serving, misleading, and against the will of the people, the local bar associations and the judiciary,” Pickerill wrote, adding that Duncan had stated flat-out falsehoods in a memo to the Senate supporting the bill.

“Furthermore, there is no empirical evidence that his request is necessary or beneficial to the people.”

Pickerill – who has been under attack from Duncan for more than a year over the judge’s attempt to create a Pawnee drug court – took on Duncan with great force, telling legislators that the former state representative-turned-DA was motivated by personal vendetta.

Duncan’s Senate memo, Pickerill said, “is filled with misleading statements and patent untruths.  The letter states that District Judge John Kane does not object to this bill. That is untrue. Judge Kane has informed me that he strongly objects to this measure and informed Mr. Duncan of that fact when they discussed the issue.  Judge Kane was never informed that Mr. Duncan intended to assert this matter to the Legislature.  The letter also states that Jari Askins of the AOC does not object.  Ms. Askins cannot take a position without empirical data like caseloads and populations being weighed and studied.  The letter also states that the bill would have no fiscal impact.  This is certainly untrue. With all of our budgets strained to the breaking point we cannot afford to indulge Mr. Duncan’s personal agenda.

“I believe that Mr. Duncan has requested this modification to this bill as part of a personal issue that he has with a local judge.  Judge Jefferson D. Sellers is a highly respected district judge for Pawnee and Tulsa counties.  This bill would require that he move his family from Pawnee County to Tulsa County to keep his judicial office.  Rumor has been spread that Judge Sellers intends to retire soon and therefore this bill would not adversely affect his employment.  That is untrue.  Judge Sellers has no intention of retiring.”

No public transparency

Kane said he met with Duncan a few weeks ago about the idea of merging Pawnee and Osage, but that he had no clue about the bill until after it passed the Senate. Kane also noted that Pawnee and Tulsa judges had been afforded no input at all, nor had bar associations or court clerks in any of the three affected counties.

“The court clerks weren’t asked to weigh in, the bar associations weren’t asked to weigh in, and the bill has already passed the Senate and headed over to the House,” Kane said at an emergency meeting Monday of the Osage County Bar Association.

“I just have the feeling the judicial district train has left the station without a judge on board. And that’s troubling to me.”

In a memo to senators, Duncan wrote that Kane had no objection to the bill, a statement Duncan now acknowledges isn’t true.

“It’s fair to say that judges in this county and Pawnee County are opposed to it. I get that now,” Duncan told lawyers at Monday’s bar meeting.

Duncan also said in the Senate memo that the bill would achieve “transparency” because it would put all Tulsa lawyers on notice that there would be a new district judgeship in Tulsa that would not require Pawnee County residency – the seat that District Judge Jefferson Sellers now holds.

Kane said he’d like to be transparent with a much larger group of people than Tulsa lawyers.

“I’m very happy for transparency for lawyers but there’s a bigger group that I want to be transparent with – and that’s the citizens,” Kane said. “I don’t think that the elected officials, the hardworking public employees, or the people that are serviced by our system are getting transparency when we have something that is being rushed down the pipeline.”

The bill, if it passes muster as it heads back to the House, would essentially reduce the number of judges between the two counties by at least one. To retain his seat, Judge Sellers would either have to move from Pawnee County or run against Kane.

Duncan’s Senate memo said that the bill would have no financial impact, a statement that was widely viewed as false. On Monday, Duncan told the bar association – which his office joined in February – that the statement meant only that it would have no impact on the current legislative budget, because it would not take effect until 2019. He promised that he would work to persuade the next Legislature to create a new judge’s position.

Judges Kane and Gambill were dubious and critical of that plan, with Gambill declaring it a “pig in a poke.” This year, Oklahoma has lost 12 judges statewide, and court budgets are so tight that Gambill went without a bailiff for 18 months. In June, Osage County courts were in a panic during jury term because they didn’t have money to pay jurors the mandated daily stipend.

Kane said that he budgeted, made plans and made promises for a Skiatook judicial annex based on the assumption that his judicial district would retain its boundaries.

With the state budget toppling toward a whopping $1.5 billion in the red, Kane added, “If the bill is not revenue neutral and we add new judges, were being bad stewards of public funds.

“That seems like an irresponsible plan to me.”

A judge short

The bill would also prevent Pawnee County from regularly using Tulsa County judges when one of its two judges is out sick, has a conflict on a case and myriad other times. Judges in Pawnee and Tulsa county both have ruled against Duncan repeatedly in court cases, often with palpable animus and outright scolding.

Both publicly and privately, lawyers and others saw the move as an attempt by Duncan to get out from under Tulsa and Pawnee county judges with whom he has repeatedly wrangled, including during his exhaustive quest to derail an order creating a Pawnee Drug Court by Associate Judge Patrick Pickerill, who is now facing felony charges related to that drug-court effort. (See timeline, opposite page.) Duncan has repeatedly been ruled against in the Pickerill case and has had some heated run-ins with Judge Sellers, including one in which Sellers threatened to jail Duncan for causing a courtroom spectacle stemming from his Pickerill “agenda.”

Gerrymandered?

Duncan, however, said that his motivation was to align the judicial district with his own DA’s district, which encompasses Pawnee and Osage.

Almost half of Oklahoma’s 27 District Attorney’s districts are not aligned with the judicial districts in which they serve, meaning that Duncan’s District 10 is far from unique in the state.

Duncan also argued that he wanted to give voters in Pawnee more punch at the judicial ballot box, since now at least five Tulsa County judges are elected from “gerrymandered” districts in which no one from Pawnee County votes. Some of those judges occasionally sit on cases in Pawnee County. He specifically mentioned that Presiding Judge Rebecca Nightingale is over Pawnee and Tulsa counties, but no one in Pawnee voted for her.

“There are 17,000 Oklahomans [in Pawnee County] who don’t get to vote for five judges,” Duncan said at the Monday bar meeting. (One quarter of Pawnee County residents are under 18, thus ineligible to vote.)

Kane replied that Terry McBride of Mayes County is the presiding judge over Osage County, and that no one in Osage County voted for him, either.

Judges all over the United States hear cases in districts where no one has ever cast a vote for them. They preside over both criminal and civil cases from which a local judge has recused, or when a case is moved to a new venue because of its high profile or for another reason. Sometimes, they set up shop in another district to cover judges who are on vacation, even.

Several members of the legal community suggested that a less disruptive and more helpful solution to the purported problem of having unaligned judicial and DA’s districts would be to consolidate Tulsa, Osage and Pawnee counties into one judicial and DA’s district, which would give the smaller counties access to more judges when needed and achieve an economy of scale with a larger DA’s office.

Associate Judge B. David Gambill said that Osage County became a one-county judicial district, detaching from Washington County in 1969 under the All Courts Act, primarily because of the large number of unique probate cases Osage County handles due to Osage headrights. All headrights go through probate in Osage County regardless of where the deceased person lives, and litigating them required a high degree of familiarity with federal law. Historically, Gambill added, Osage and Pawnee have been separate because of long-standing bad blood between the Osage and Pawnee Indian Nations – and almost one-third of the population of each county is Native American.

Not all about DA

Lawrence Martin, an attorney who practices in Pawnee and Osage counties regularly, noted that the entire gist of House Bill 2416 and the ensuing discussions completely missed one fact: The court system is not all about criminal matters.

“Everyone and Rex are concentrating on him and his business,” Martin said. “Well, that’s not the people’s business. You have probate, you have small claims, you have guardianships, you have divorces.The people need to have access to the court system.”

Martin also said that Pawnee’s cooperative relationship with Tulsa County simply makes the court system work better: In Osage County, the time-strapped magistrate Stuart Tate juggles a schedule that results in 90-120 days to hold a preliminary hearing in a felony case – and often, a defendant is whiling that time away behind bars.

“That’s just fact,” Martin said. “I can get preliminary hearing set in Pawnee County in 30 days because they have this pool of judges they can draw from and get the water out of the basement, get the work done.”

Martin also disagreed with Duncan’s voter disenfranchisement argument, noting that Tulsa judges elected to one district often try cases from other districts where no one voted for them. For instance, one judge tries all probate cases in Tulsa County.

“It’s the people’s business that we need to be thinking about,” Martin said. ‘We need to look at the overall picture and how to best serve the citizens. And that’s not strapping the court system and grinding it to a stop.

“Like my old daddy used to say. ‘If it ain’t broke don’t fix it. Get out there and plow a little more.’”

At Monday’s meeting, Duncan also said he objected to Rebecca Nightingale being a presiding judge. She was elected from one of the judicial districts that Duncan considers “gerrymandered” because it was redistricted after a federal court order aimed at getting minorities a judicial seat.

In an interview with the Tulsa World, Duncan added that he disagreed with Nightingale’s policy of refusing to jail people who don’t pay court fines and fees. That, Duncan said, was inappropriate for Pawnee County. The DA’s office regularly dispatches people to jail in Osage County for failing to pay fines and fees.

On Monday, the Osage Bar Association voted 14-3 to oppose House Bill 2416 because of the “rushed” manner in which it was introduced and pursued. Duncan and two of his assistants voted, but one assistant, Doug Merritt, asked that the Bigheart Times be barred from recording the vote and asked why its publisher was present.

“I invited her,” said lawyer Jesse Worten, who made the motion to oppose the bill.

“She’s a guest,” said Associate District Judge B. David Gambill.

“Just like Rex is a guest,” said Kane. “It’s not a secret meeting, is it?

“Transparency!” interjected defense attorney Rod Ramsey.

Replied Merritt: “If we’re going to have a vote, I don’t think that’s public business.”

The publisher voluntarily left, and the vote went down as expected.

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