JUDGES,JUSTICES, & STATE QUESTIONS 2020

by Georgia Williams & Steve Fair

 

Since 1994, Georgia Williams of Lawton and Steve Fair of Duncan have provided voters with their views on the State Questions that appear on the ballot.  They are former hosts of The Grapevine, a popular weekly political talk show heard from 2005-2010 throughout SW Oklahoma. Williams and Fairs’ views do not necessarily reflect the views of the Republican Party.  They can be reached by email at [email protected].

STATE QUESTION NO. 805, Initiative Petition # 421

This measure seeks to add a new Article II-A to the Oklahoma Constitution. This new Article excepts and does not apply to persons who have ever been convicted of a violent felony. It would prohibit the use of a former felony conviction to increase the statutorily allowable base range of punishment for a person subsequently convicted of a felony. Individuals who are currently incarcerated for felony sentences that were enhanced based on one or more former felony convictions, and whose sentences are greater than the maximum sentence that may currently be imposed for such felonies, may seek sentence modification in court. The new Article sets forth a detailed process for such sentence modification, including but not limited to requirements for a hearing, appointment of counsel for indigent petitioners, and notification of victims, and requires that the court impose a modified sentence no greater than the current maximum sentence which may be imposed on a person convicted of the same felony with no former felony convictions, and which results in no greater time served in prison than under the original sentence. It establishes an appeal procedure, provides an effective date, and contains a severability clause.

SHALL THE PROPOSAL BE APPROVED?

 

GEORGIA’S VIEW: NO- My concern about SQ 805 is that it is a Constitutional Amendment.  Reforms passed by voters in 2016 were changes to statutes and can be revised by the Legislature.  Amendments can only be changed by a vote of the people.  That is done either by Legislature putting a question  on  ballot  - rarely - or the initiative petition process – timely and expensive.  This question focuses on non-violent crimes and sentencing for such crimes. If passed, this would prohibit the use of prior felony convictions in non-violent cases and let those currently serving time for non-violent crimes who were sentenced with enhancement (looking at priors) to be able to petition the court to have their sentence reduced.  Looks like a home-run for the repeat non-violent criminal. This is being proposed as a way to reduce prison population and save money.  At what cost to public safety? DA’s and Judges currently have a lot of lee-way in sentencing.  It’s been stated that a better solution would be ‘a thoughtful and well-researched sentencing code’ from our Legislature. But, lawmakers have not shown much willingness to take on such reforms. This state question in the form of an amendment needs to go back to the drawing board and our Legislature needs to do their job! Meanwhile, there’s an old saying….if you can’t do the time, don’t do the crime.

STEVE’S VIEW: NO- Oklahoma’s crime rate has increased since voters approved two state questions in 2018 that reduced drug possession and some former property crimes to misdemeanors.  Much of the this so-called criminal justice reform is being driven by the desire to reduce the number of people in jail in the state.  Removing the ability of a prosecutor from using a criminal’s past felonies against them will put more criminals back on the street.     

 

STATE QUESTION NO. 814, Legislative Referendum # 375

This measure seeks to amend Article 10, Section 40 of the Oklahoma Constitution (Section 40), which directs proceeds from the State's settlements with or judgments against tobacco companies. Currently, Section 40 directs 75% of proceeds to the Tobacco Settlement Endowment Trust Fund (TSET Fund), where earnings may only be used for tobacco prevention programs, cancer research, and other such programs to maintain or improve the health of Oklahomans. Meanwhile, the remaining 25% of proceeds are directed to a separate fund for the Legislature (Legislative Fund). The Legislature can also direct some of that 25% to the Attorney General.

This measure amends Section 40 to reduce the percentage of proceeds that go into the TSET Fund from 75% to 25%. As a result, the remaining 75% will go to the Legislative Fund and the Legislature may continue to direct a portion to the Attorney General. The measure would also restrict the use of the Legislative Fund. Section 40 currently states only that the Legislative Fund is subject to legislative appropriation. If this measure passes, money from the Legislative Fund must be used to get federal matching funds for Oklahoma's Medicaid Program.

SHALL THE PROPOSAL BE APPROVED?

 GEORGIA’S VIEW: YES- Oklahoma receives large amounts of money each year from a lawsuit against the tobacco companies.  Called the Tobacco Settlement Endowment Trust Fund(TSET Fund). 75% may only be used for tobacco illness, cancer research, other programs to improve the health of Oklahomans. Another 25% goes to the Legislative Fund. If this question is passed, the percentage that goes to the Legislative Fund will increase and mustbe used to get federal matching funds for Oklahoma’s Medicaid Program. Most states who have approved expansion of Medicaid as Oklahoma has done, have run into money problems. It seems the use of these                  funds is still helping Oklahomans with their health issues and is a good way to possibly prevent cuts in                  programs or a tax increase to pay the cost of Medicaid Expansion.  I will vote YES.

                 STEVE’S VIEW: YES- In 1998, Oklahomans approved a SQ that directed that 75% of the money tobacco                             companies pay the state under the 1998 Master Settlement Agreement (MSA) go toward stopping smoking and                     25% of the money go into a fund the legislature could appropriate.  If approved, this would be switched and the                     legislature would get the 75% and TSET 25%.  I have mixed feelings about this.  Giving the legislature more                         money to spend never seems like a good idea, but I am tired of seeing TSET run non-stop commercials that have                 more to do with general overall health and not about stopping tobacco usage . The legislature would have to use                     the money to pay for Medicaid, which is health related.  I will vote YES on SQ #814.

OKLAHOMA’S BROKEN JUDICIAL SYSTEM

Judges and Justices in Oklahoma are appointed by the Governor and then confirmed by the State Senate.  The Governor is given three possible nominees by the Judicial Nominating Commission, a group of fifteen (15).  Six are appointed by the Governor and six by the Oklahoma Bar Association.  The other three members are chosen At Large by the Commission itself.  Each Justice periodically appears on the ballot to be RETAINED or REMOVED.  Since Oklahoma went to a RETENTION ballot for the judiciary, NO JUDGE HAS BEEN REMOVED!   There are eight judges/justices on the November ballot.  It is difficult to find information on them, but we have done our best to find what we could.  We have based our recommendations on two primary considerations; (1) Who appointed them.  If they were appointed by a liberal, then it very likely they are liberal and (2) Their length of service.  There are two on the 2020 ballot who have served more than 30 years on the court.  It is past time for Oklahoma to have judicial reform.  There should be term limits for all the judges/justices on the three courts of last resort.  We encourage you to contact your legislators and ask them to initiate judicial reform in Oklahoma which includes not only term limits, but the dismantling of a self-serving appointee system that is controlled by the Bar Association. Steve Fair & Georgia Williams

SUPREME COURT JUSTICES

Justice M. John Kane IV- YES

Date appointed to Court: January 2019

Appointed by: Governor Kevin Stitt

Age: 58

Third generation lawyer from Pawhuska

Served as District Judge for 14 years

Justice Tom Colbert- NO

Date appointed to Court:  2004

Appointed by: Governor Brad Henry

Age: 71

Former public school teacher in Chicago

First African-American to serve on Supreme Court

Has served on Courts of Criminal Appeals & Civil Appeals

Justice Richard Darby- YES

District: 9^th (SW Oklahoma)

Date appointed to Court:  2018

Appointed by: Governor Mary Fallin

Age: 62

District Judge for 24 years in Altus

Wife is Superintendent of Christian School

 COURT OF CRIMINAL APPEALS

 Justice Rob Hudson- YES

Date appointed to Court:  2015

Appointed by: Governor Mary Fallin

Age: 62

Former DA in Payne County

Former Special District Judge

Established Oklahoma’s 1^st drug court

Baptist Deacon

Justice Gary Lumpkin- NO

Date appointed to Court:  1989

Appointed by: Governor Henry Bellmon

Age: 74

Former District Judge

Presiding Judge for CCA( 4^th time)

Been on CCA for 31 years

From Madill, OK

Former Marine Reserves

 

COURT OF CIVIL APPEALS

Judge Jane Wiseman- NO

Date appointed to Court:  2005

Appointed by: Governor Brad Henry

Age: 74

Former District Judge

Was nearly removed in 2014

Officiated at first same sex marriage in Oklahoma

Judge Deborah Barnes- NO

Date appointed to Court:  2008

Appointed by: Governor Brad Henry

Age: 62

Breast cancer survivor

Has been retained twice

Graduated 1^st in her law school class

Judge Keith Rapp- NO

Date appointed to Court:  1984

Appointed by: Governor George Nigh

Age: 86

Navy veteran

Former District Judge

Former NASA Engineer

 Weekly Opinion Editorial

BIDEN SHOULD REVEAL HIS PICK FOR SCOTUS!

by Steve Fair

     On Saturday, President Trump nominated federal appellate Judge Amy Coney Barrett to fill the Supreme Court vacancy created when Justice Ruth Bader Ginsburg died.  Barrett, 48, clerked for Antonin Scalia in the late 90s, teaches law at Notre Dame, is mother to seven children, and a devout Catholic. She subscribes to the ‘original intent’ view of interpreting the U.S. Constitution like her mentor Scalia.  If confirmed, she would be the first justice to have school age children.  She would also be the youngest member of the court.

     On Sunday, Sen. Lindsay Graham, (R-S.C.) said hearings in the Senate Judiciary committee will begin on October 12^th.  He said the hearings will take two weeks, which would make a floor vote to confirm possible before the November 3^rd election.  Scheduling of that vote would be up to Sen. Mitch McConnell, (R-KY).  Four observations:     

     First, attacking Barrett will prove problematic for Democrats.  That doesn’t mean they won’t pounce in the hearings, but attacking a woman, a mother, and a clearly qualified nominee might backfire.  Even some liberals don’t question Barrett’s credentials.  Their concern is she will be a conservative on the court that could potentially rule ‘constitutionally’ on Obamacare and abortion.  Sen. Kamala Harris, (D-CA), the Democrat’s nominee for VP, is on the judiciary committee.  She was the attack dog at Brett Kavanaugh’s confirmation hearings.   Expect Barrett’s hearings to be partisan and mean-spirited.  Even though it is against federal law to discriminate based on religion, expect Democrats to attack Barrett’s Christian worldview.

     Second, Democrats can’t stop Barrett being confirmed.  There are 53 Republicans in the Senate.  Only 2 have said they would vote against confirmation.  Surprisingly, Sen. Mitt Romney, (R-UT) has said he would vote to confirm.  All 45 Democrats and the 2 Independents have said they would oppose confirmation (talk about group-think).  Confirmation requires a simple majority, so Democrats can do little more than scream ‘unfair’ when they lose.

     Third, President Trump’s legacy is secured with this third confirmation.  Win or lose in November, Trump will leave his mark on America through the Supreme Court.  His three nominee’s average 51 years old and will likely serve on the court for decades.   If re-elected, Trump could fill a couple of more seats on the SCOTUS, which would be the most since FDR.

     Fourth, Democrats have already floated the idea to expand the court. In a conference call with the Senate Democrat caucus, minority leader Sen. Chuck Schumer, (R-NY), said, “nothing is off the table if Republicans try to fill the seat.”  That includes adding justices to the court to offset the conservative/originalist members.  The last time the court was expanded was in 1837 when Andrew Jackson was president, when they added two members to bring the court to its current number of nine.  Packing the court would face stiff opposition, but Democrats have little choice if they expect to dilute the conservative bent.

     On Tuesday, the first of three presidential debates will be held.  Expect the opening on the SCOTUS to be discussed.  Vice President Biden will attack President Trump for nominating Barrett.  A fair question would be who Biden would have nominated if he were POTUS.    

 Weekly Opinion Editorial

REPUBLICANS SHOULD FILL POST!

by Steve Fair

     On Friday, Supreme Court Justice Ruth Bader Ginsburg died.  She was 87.  Appointed to the high court in 1993, she was a passionate advocate for gender equality.  Reportedly her final words to her granddaughter was that seat not be filled until after the 2020 presidential election was decided.  In a year when the POTUS was impeached, a worldwide pandemic has dominated lives, civil unrest, and multiple hurricanes, 2020 just got more dramatic.  Three observations:

      First, Ginsburg was a proud, passionate, consistent liberal on the court.  Much has been made of her unlikely close friendship with the late Justice Antonin Scalia.  While they were close friends, they seldom voted together.  Most judicial scholars agree there are two basic approaches to interpreting the Constitution: textualism/ originalism, and the living constitution model.  Originalism treats the constitution like a statue and gives it the meaning that its words were understood to bear when it was written.  Those who believe the document adapts to the times and takes on different meanings, depending on when it is interpreted subscribe to a living document approach. Scalia was an originalist; Ginsburg believed the document was living.   The living model doesn’t interpret the law, it legislates from the bench.

    Second, the sudden opening on the court creates a major political squabble.  Democrats are saying the opening shouldn’t be filled until after the November general election, Republicans say it should be filled.  Back in 2016, after Scalia’s death, Republicans argued that slot shouldn’t be filled until after the election, but circumstances were different.  Republicans controlled the Senate and President Obama’s nominee to the court, Garland Merrick, was never voted on.   Make no mistake, if Democrats had controlled the Senate in 2016, they would have filled the position while President Obama was still in office.  Elections have consequences and the Party in the majority wields the power.  Using that power is part of the political process.

     Third, there is no guarantee President Trump’s nominee can get confirmed and it has nothing to do with the short timeline.  51 votes are required to confirm.  There are 53 Republican senators.  Three( Collins of Maine, Murkowski of Alaska and Grassley of Iowa) have already said they would vote to not hold hearings and take a vote on a Trump nominee until after the November election.   Romney of Utah will likely not support.  But there are Democratic senators on the November ballot in Republican leaning states.  They will face serious pressure from voters to support filling the slot.  It’s possible to get to 51, but it will be a challenge. 

     In the last 45 years, the average amount of time from appointment to vote for a justice on the high court is 67 days.  It is 45 days until the general election.  In 1993, Ruth Bader Ginsburg was confirmed 42 days after her appointment, so it can be done.   

     In the coming weeks, the American public will be swamped with talk about the ‘right thing to do’ in regard to the opening.  Ginsburg’s dying words will be cited as a reason to wait.  Democrats will claim Ginsburg’s seat on the high court is ‘their seat.’  That is not true- it belongs to all the people.  Republicans control the U.S. Senate and they should use the power given them to quickly hold hearings and schedule a floor vote.  If the roles were reversed and Democrats had control of the Senate, they would have already started the process. 

 Weekly Opinion Editorial

THE RIGHT TO BE WRONG!

by Steve Fair

     On Thursday of last week, Los Angeles Superior Court Judge Mitchell L. Beckloff directed Grace Community Church to require congregation members wear masks and practice physical distancing if the house of worship decides to hold ‘outdoor’ services.  His 22 page decision directed the church to refrain from holding ‘indoor’ services due to the COVID-19 pandemic.  On Sunday, Grace Community Church in Sun Valley was packed and Pastor John MacArthur opened the service by listing the many health measures the restriction involved.  He stated if the church complied with all the requirements, it would ‘shut the church down.’  MacArthur and the church have been under attack by Los Angeles county because they are holding indoor services defying the county’s ban on large gatherings.  Three observations:

     First, Los Angeles County’s ban on large gatherings is unconstitutional.  America is a free open society and the Constitution grants individual citizens rights.  It is not government’s job to protect citizens from themselves.  While not attending large gatherings might not be a prudent decision if you are in an at-risk category, the decision is entirely up to the individual.  Until the constitution is amended to grant government that authority, any mandate against large gatherings is a power grab.  Interestingly, LA County allows large gatherings of protesters to assemble.  Grace Community has vowed to appeal the judge’s ruling and will likely win if the judiciary follows the Constitution.

     Second, God’s mandate overrides any government mandates.  God commanded the church to assembly for worship in His word.  Will assembling facilitate the spread of COVID-19 in LA?  Only God knows that but obeying God’s mandate to assemble is fundamental to believers.  Believers do many things that seem foolhardy and reckless to dissenters (tithing,praying,assembling), but they do it because they are focused on the eternal, not the temporal. They don’t fear death.  God’s word says the Gospel is foolishness to those who don’t believe, so it’s no surprise authorities think churches are being obstinate by not complying with their edict.

     Third, the message of redemption preached from pulpits is desperately needed in these challenging times. Silencing the preaching of the gospel- even temporally- will have more long term negative impact on America than COVID-19.  The Gospel is more important than any protest.  It is more important than any directive from government.

     It is inconsistent for Los Angeles County to continue to allow large gathering of protesters to assembly, but not allow a church to assemble.  It reveals a bias toward the motive and message of those assembling.  Both have the fundamental Constitutional right to peaceably assemble.  If this order is allowed to stand, it threatens not just the freedom to worship in America.  This situation is much bigger than COVID-19.  It is an attack on America’s rule of law.  It is an attack on our founding document.  Whether you agree with Grace Community’s decision to hold in door worship services or not, every American, no matter their political position, should fight for their right to do it.  The right to be wrong is a fundamental tenet of America. This isn’t about just the freedom to worship- it is an attack on our way of life.

 Weekly Opinion Editorial

DEMS FOCUS ON REDISTRICTING!

by Steve Fair

        Redistricting is done every ten years.  It involves redrawing Congressional district lines to insure all 435 representatives have approximately the same amount of constituents.  Federal redistricting is done by the state legislature, who also draw their own legislative district lines.  There are 101 state house districts and 48 state senate districts in Oklahoma. Redistricting is always a controversial process.

     Earlier this year, a group called People Not Politicians filed an initiative petition to get redistricting on the November ballot.  They proposed having a group of appointees oversee the redistricting process to cut out gerrymandering.  Seven ‘blue’ states have it in their constitution.  Before the group started gaining signatures, the language of the petition was challenged.  The state Supreme Court struck down the petition.  The group changed the language but ultimately pulled the petition in July.  “Between the unnecessary lawsuits by politicians and delays due to the COVID-19 pandemic, we are unable to make the ballot this year, and have thus withdrawn SQ810," People Not Politicians Executive Director Andy Moore said.  Three observations about redistricting;

     First, elections have consequences.  The Party in power gets to wield that power and that includes drawing lines in redistricting.  That is the way it has always been and the way it should be.  Elected officials are accountable to voters- appointees to their appointer.  The Democrats controlled Oklahoma government for almost a century.  There was no complaint about redistricting being unfair during that 100 years.  What changed?  Clearly it was when Republicans gained control of state government.  The redistricting process is not broken in Oklahoma.  It doesn’t need to be changed.   

     Second, redistricting is a national Democrat priority.  Former AG Eric Holder is Chairman of the National Democratic Redistricting Committee (NDRC).  Their stated purpose is to ‘execute a comprehensive redistricting strategy that shifts the redistricting power in a way that it creates fair districts where Democrats can compete.’  Fair meaning drawn where Democrats win, not just compete.  NDRC has targeted 13 states with the objective of flipping the state legislature to Democrat so they control redistricting.  Two of those states- Texas and Kansas- border Oklahoma.  This organization cares little about fairness- they want to win elections.  It is partisanship packaged as impartiality. 

     Third, Republicans had their own redistricting initiative.  Ten years ago, the GOP flipped 20 state legislative chambers nationally, seizing control of district mapmaking in many states after the decennial census. Oklahoma had flipped in 2008.  The emphasis on redistricting cemented Republican dominance at the state and congressional levels for most of the last decade.  To not take the Democrat strategy seriously is a mistake, because it worked for the GOP. 

     Redistricting can be a difficult task, even for the Party in power.  Districts have to be contiguous- which means ‘touching.’  They have to have a certain number of people.  Incumbents are involved and seldom are two incumbents drawn into a district.  Both the state senate and house appoint committees to put together a proposal for redistricting to present to the whole chamber.  Communities lobby to keep a lawmaker who has been an effective voice for their cause.  The word ‘gerrymandering’ is continually heard from the Party not in power.  Not everyone will be pleased with redistricting, but under Oklahoma’s current system, voters can hold those who draw the lines accountable.