Oklahoma Election 2020: October 2020 Archives

On Thursday, October 29, 2020, a large group of state officials, law enforcement leaders, domestic violence survivors, and community leaders gathered for a press conference to urge Oklahomans to vote NO on SQ805. Speakers included Lt. Governor Matt Pinnell, Attorney General Mike Hunter, former First Lady Cathy Keating, Oklahoma FOP president Mark Nelson, Kim Garrett, CEO & Founder, Palomar Domestic Violence Resource Center, criminal justice reformer Tricia Everest, Oklahoma Farm Bureau president Rodd Moesel, Tulsa County Sheriff Vic Regalado, and attorney Marc Nuttle.

Lt. Gov. Pinnell noted the progress that has already been made under existing, legislative reform efforts. "There is an Oklahoma brand of criminal justice reform that takes a common sense approach. We've already reduced the prison population 20% with common sense reforms. 805 is the wrong solution."

Oklahoma FOP president Mark Nelson spoke to the commonplace situation of repeat domestic violence, "You hear the address come across the radio, and you know the offenses that have already been committed in that house.... State Question 805 is about keeping violent career criminals out of jail."

Deb Stanaland, a survivor of domestic violence who now serves as a domestic violence responder, pointed out that the early release of repeat domestic violence offenders would send victims the signal that the wrongs they suffered are unimportant. "Trust is important to Domestic Violence victims. That trust will be broken if you break those promises to victims."

Kim Garrett, the founder and CEO of Palomar Domestic Violence Resource Center in Oklahoma City, spoke of the unanimous opposition to SQ805 among domestic violence victims, and the peace and gratitude that victims feel knowing that their imprisoned abusers cannot get to them. "A victim I've spoken with is grateful for her husband's prison sentence, so that her daughter could turn 18 and be out of the house and not risk being killed by him.... I have no doubt that women and children will be the victims of this sloppy and careless reform.... Victims strongly oppose it, and their very lives may depend you voting against it."

Greg Mashburn, the district attorney for Cleveland, Garvin, and McClain counties in southern central Oklahoma, points out that by reducing sentences, SQ 805 will reduce the incentives repeat offenders have to agree to drug courts and diversion programs that would give them a chance to reform.

The full press conference is available for viewing on Facebook.

The only contested Tulsa County office on the ballot is a rematch for Tulsa County Commissioner, District 2. Republican Josh Turley seeks to defeat 12-year incumbent Democrat Commissioner Karen Keith.

Dr. Turley, whose doctorate is in organizational leadership, had a distinguished 24-year career at the Tulsa County Sheriff's Office, serving as the TCSO's first civilian crime scene investigator and developing the department's first Risk Management program, which succeeded in reducing car accidents involving deputies and tort claim payouts. Turley independently developed policies and procedures to be used by smaller sheriff's offices and county jails to improve performance and minimize risk. Turley has since built a private company, Everything Behind the Badge, which develops custom policy and procedure manuals to help local law enforcement agencies improve their professionalism at an affordable price. Turley has been endorsed by the Tulsa County Deputy Sheriff's local, the Tulsa Police local of the Fraternal Order of Police, the Oklahoma Second Amendment Association (OK2A), and State Sen. Nathan Dahm, among many other endorsements displayed on the Dr. Josh Turley for Commissioner Facebook page.

Turley is an advocate for genuine transparency in Tulsa County government. Turley wants Tulsa County to follow an open data policy -- by default, data used and generated by county officials (except for personal data restricted by law) would automatically be made available to the public, without the need for an open records request.

A county commissioner is responsible for maintenance of all public roads in the district that are not state highways or within city limits. District 2, which covers the western arm of Tulsa County, includes a great deal of unincorporated territory where the only roads are county-maintained roads. Turley has called attention to the terrible state of roads like West 41st Street, the main east-west artery in western Tulsa County south of the Arkansas River, and Old Highway 51, which is popular for cycling and access to fishing on the river below Keystone Dam. He says that incumbent Karen Keith hasn't fulfilled her road responsibilities during her 12 years in office. Rural roads are perhaps out-of-sight and out-of-mind for a midtowner like Keith.

Democrat incumbent Karen Keith, a former television reporter and anchor, was first elected in 2008. She has been very visible this year representing Tulsa County at daily COVID-19 press conferences. She was also very visible in her opposition to President Trump's visit to Tulsa in June, calling for city officials to say no to Trump in order to "preserve our image and save our downtown and arena." Turley ran a strong race against Keith in 2016, but fell short against Keith's name recognition and fundraising advantage.

Keith is unquestionably likeable, and her likeability seems to have tempted many Republicans to consider voting for her as their one gesture toward bipartisanship. That would be a mistake. We need new county commissioners, regardless of party, because the current commissioners aren't being good stewards of taxpayer resources. Electing Josh Turley to District 2, the only seat on the ballot this year, would be a great first step.

Tulsa County Commissioners, acting as the board of the Tulsa County Industrial Authority (TCIA), have authorized hundreds of millions of dollars in bonds. Some of these are revenue bonds, borrowing money now to fund projects, and pledging future sales tax revenues to pay the debt. As of June 30, 2019, according to the TCIA's 2019 annual audit, TCIA had $111,729,421 in outstanding revenue bonds. Counties, like cities and school districts can also issue general obligation bonds which are repaid by higher property tax rates. According to Tulsa County's 2019 CAFR, the county has no general obligation debt.

TCIA also issues bonds known as conduit debt to finance construction projects for businesses (e.g. nursing homes, apartment complexes) and non-profits (e.g. schools, hospitals) that "promote the development of industry and culture and industrial, manufacturing, cultural and educational activities... [to] benefit and strengthen culture and the economy." Tulsa County taxpayers are not on the hook for these bonds; they are repaid by the end user. The end user benefits in that the bonds are typically tax-exempt, making them more attractive for investors. As of June 30, 2019, TCIA had $604,545,944 in outstanding conduit debt, an increase of $73.6 million from the previous year, "the result of a $53.7 million lease revenue note and a $66.9 million revenue bond being issued during the fiscal year, offset by debt repayments."

MunicipalBonds.com has a couple of examples of how conduit bonds can be controversial when they are issued to finance private companies that were rejected by banks. Back in 2003, BatesLine called attention to conduit debt TCIA issued to finance the purchase of apartment complexes for low-income housing by company run by a "dear friend" and bond adviser of one of the county commissioners; TCIA then issued bonds for double the original amount to a non-profit that purchased the complexes from the first company.

2003 was before Karen Keith was a commissioner, but just yesterday I was made aware of a case of securities fraud that involved numerous conduit bond issues from various local authorities, including $5,700,000 in bonds issued by Keith and her fellow TCIA board members on March 21, 2014, to an entity controlled by Atlanta nursing home developer Christopher Brogdon. I am just learning about this, so I don't know all the details, but at the very least it looks like Keith and the TCIA should have done more due diligence before issuing the bonds, given that this deal was the last in a long string of questionable deals cited by the Securities and Exchange Commission. In any event, it's clear that we need analytical, skeptical county commissioners on the TCIA who will carefully scrutinize every entity that seeks to borrow against our county's reputation.

What revenue bonds, general obligation bonds, and conduit bonds have in common is that the three county commissioners (acting as TCIA board members) decide whether to waive competitive bidding in deciding which law firm will serve as bond adviser and which financial institution will issue the bonds. I have yet to find an instance when the TCIA opted for competitive bidding for a bond issue, or even an instance when any one of the three commissioners voted for competitive bidding.

During the 2016 campaign, I called attention to a contemporaneous news item relevant to this topic: Then-state bond adviser Jim Joseph and then-State Auditor and Inspector Gary Jones spoke out against the widespread practice of school districts waiving competitive bids for bond issues.

Oklahoma school districts are spending millions of taxpayers' dollars every year by paying high fees for financial advisers, bond counsel and underwriters, says Jim Joseph, the state's bond adviser.

Many school districts continue to do the same thing year after year, while stubbornly refusing to use cost-saving competitive selection measures, he said.

"It's like picking a roofer right after a storm because he's the first guy who came to your door," Joseph said. "You're not going to get a deal, that's for sure."

State Auditor Gary Jones agreed school boards could save Oklahoma taxpayers money by obtaining competitive quotes.

"There could be tens of millions of dollars saved over a short period of time," Jones said.

Joseph went on to compare the massive fees paid by school districts to bond counsel and financial advisers, often a percentage of the bond issue, with the smaller amounts state agencies paid for much larger bond issue. Several were listed; here's one example:

For example, Midwest City-Del City Public Schools did a $72.62 million bond issue in 2012 without competitive bids. It paid the Floyd Law Firm of Norman $363,100 for serving as bond counsel and allowed Stephen H. McDonald & Associates and BOSC Inc., a subsidiary of BOK Financial Corporation, to equally split $508,340 for serving as co-financial advisers, records show.

Compare that with a $310.48 million bond issue by the Grand River Dam Authority that was done in 2014 through a competitive process. The state paid a $114,000 bond counsel fee and a $133,448 financial adviser fee.

Although the Grand River Dam Authority bond issue was more than four times as large as the Midwest City-Del City school bond issue, the school district paid more than triple the amount in bond counsel and financial adviser fees, records show.

Joseph pointed out that bond counsel, underwriter, and financial advisers often each take 1% of the bond issue as their fee, which Joseph says "makes no sense at all. It doesn't take any more work to do a $20 million issue than a $10 million issue for the bond counsel and financial adviser, but the fee is twice as high, if payment is on a percentage basis."

What does this have to do with Tulsa County? Joseph noted that the firm of Hilborne & Weidman was frequently listed as bond counsel for these competition-waived bond issues. Hilborne & Weidman was also one of two bond counsel firms selected in 2003 by the Tulsa County commissioners (acting as the Tulsa County Industrial Authority) for the Vision 2025 revenue bonds, a massive bond issue against up to all 13 years of the new sales tax. I urged at the time that Tulsa County put all Vision 2025 bond-related contracts up for competitive bid, as commissioners haggled publicly over which firms would get a piece of the action, but they waived competitive bidding and split the baby, giving each favored firm half of the business.

Over the last 17 years, there's been a complete turnover on the County Commission, but the tradition of waiving competitive bidding has persisted. Here's one example from May 26, 2009, in Karen Keith's first year as a commissioner ($110 million in bonds), another from February 1, 2010, and yet another unanimous vote to waive competitive bidding from this year, from the September 21, 2020, meeting of the Tulsa County Industrial Authority.

On May 23, 2016, the commissioners, including Karen Keith, voted unanimously to waive competitive bidding on indebtedness, but neither the minutes nor the agenda explain the amount or nature of the indebtedness. Given the proximity to the April 2016 Vision Tulsa vote, my guess is that the vote was on the revenue bonds pledged against that new 15-year sales tax stream.

How many more projects might have been built if Vision 2025 bonds had been competitively bid? Could we have had a new juvenile justice facility without being asked for more tax dollars in two separate elections (2005 and 2012)?

Given the size of these bond issues, even a 1% fee would be a huge amount for a small firm. The temptation to corruption would be immense. Think of the money the former Skiatook superintendent got in kickbacks from the janitorial supply company. That would be chump change compared to even a small cut of 1% of a $500 million bond issue.

Oklahoma taxpayers need legislation to require competitive bidding on bonds and to require counties, school districts, and cities -- and their associated Title 60 trusts -- to use the state bond adviser rather than hiring their own favored exclusive firms.

Until we get that legislation, we need county officials who will support transparency and fiscal prudence. We need more than mere niceness; we need intelligence, initiative, and analytical skill. Dr. Josh Turley, a good man with many years' experience as a county employee, can provide that kind of leadership, and I hope Tulsa County District 2 voters elect him as their new county commissioner.

Oklahoma state statute and Oklahoma Ethics Commission rules require campaign committees for city elections to file a campaign contributions and expenditures report with the City Clerk's office 10 days prior to an election (effectively 8 days, since the clerk's office is closed on the weekend, so the report is due that Monday at 4:30 pm), as well as last-minute contribution reports within 24 hours of receiving donations larger than $1,000 within the last two weeks. Reports are also due one month after the end of each quarter.

For the six candidates for Tulsa City Council on the November 3, 2020, ballot, that means their pre-election report was due to the Tulsa City Clerk at 4:30 pm on Monday, October 26. So far District 5 incumbent Cass Fahler (R) and challenger Mikey Arthrell (D), District 6 incumbent Connie Dodson (D), District 7 incumbent Lori Decter-Wright (D) and challenger Justin Van Kirk (R) have filed their reports. District 6 challenger Christian Bengel's (R) pre-election report is the only one of the six that does not appear on the City Clerk website, but he has provided me his report directly, and it is available below.

There are several important omissions from the reports that were available online. This may be an error in the City Clerk's uploading of the reports, rather than an omission by the candidate. Connie Dodson's pre-runoff Schedule A, a list of itemized contributions, is missing; the cover page of the report indicates that it includes $4,250 in PAC contributions which would be quite interesting. Likewise, there is no itemization of Mykey Arthrell's $3,545.83 pre-general election expenditures.

Several PACs are shown on individual candidate reports to have made contributions, but none of them filed reports: Tulsa Biz PAC (affiliated with the Tulsa Regional Chamber), Fraternal Order of Police, International Association of Fire Fighters, International Brotherhood of Electrical Workers.

For the candidates who were on the August 25, 2020, city general election ballot, but not on next Tuesday's runoff ballot either because they won without a runoff or lost, their post-election quarterly report will be officially due Saturday, October 31, will be effectively due Monday, November 2, 2020, at 4:30 pm, but those reports could have been filed at any time since the beginning of this month, since they only cover contributions through September 30. Many of the candidates failed to file reports prior to the August election; we're looking forward to learning how much they raised and spent.

Here are the aggregate totals for the candidates in Tuesday's Tulsa runoff election, with a list of notable contributions. The name of the seat has a link leading to the Tulsa City Clerk's ethics report webpage for the district; the candidate name has a link to a PDF compiling all of the candidate's reports for this election cycle, which I have compiled, bookmarked, and OCRed.

Putting this together is a very tedious process -- clicking dozens of links, merging PDFs in the right order, then combing through the reports for contributors, double-checking sloppy reporting, and summarizing all of it below -- but BatesLine is the only place you can find organized campaign finance information for the 2020 City of Tulsa runoff. If you appreciate the hours that I've put into this, hit the tip jar and help cover the costs of keeping BatesLine going, which include web hosting, database access, domain registration, and computer equipment. If you'd like to support the site with advertising, contact me at blog@batesline.com.

In the past, when all the records were on paper only, the daily paper would have a City Hall reporter compile the list of contributions (back then $200 and under did not have to be reported). They don't bother nowadays. I find one recent story about campaign finance, focused on an out-of-state organization called the Accountability Project Institute, which is making independent expenditures against Mykey Arthrell and Lori Decter Wright; these candidates support an Office of Independent Monitor for the Tulsa Police Department, which the FOP opposes. No stories at all about the candidate's campaign finance reports. Perhaps they feel that now that the information is online, there's no need to bother. But busy voters need someone to curate the massive amounts of public information now available.

In most cases (every candidate except Cass Fahler), the totals on the most recent report don't match the sum of the amounts reported on each report to date. Candidates (or their treasurers) seem confused on the meaning of the Aggregate Total column. I've put my figures in square brackets. I have not double-checked that the reporting period totals are correct; in some cases this is impossible because key pages are missing from the online records. Most of the mistakes in calculating aggregates for the campaign and for individual contributors would be avoided if candidates were required to use the Oklahoma Ethics Commission system, as they were for a few years in the late 2000s and early 2010s, where individual transactions are uploaded, and the system calculates the totals.

District 5:

Cass Fahler (R): Carryover, $0.96, individual contributions, $15,785.00; PAC contributions, $9,500; total $25,285.96. Expenditures, $20,491.71. Notable contributions: Tulsa FOP, $5,000; Greater Tulsa Association of Realtors, $2,500; Tulsa Biz PAC; International Association of Fire Fighters, $1,000; Robert Zoellner, $2,700; Kurt Dodd, $2,000; Justin Van Kirk, $1,000; Bobby Van Holt, $1,000; John Stava, $1,000; Martha Blackburn, $750; CeCe Siegfried, $750; Meyer Siegfried, $750; Cord Charvat, $500; Jay Helm, $500; Steve Edwards, $500; Warren Ross, $250; Lou Reynolds, $200; Dewey Bartlett, Jr., $200;

Mykey Arthrell (D): Individual contributions, $13,255.00 [$13,355]; in-kind contributions, $1,000; total $14,255.00 [$14,355.00]. Expenditures, $11,094.38 [$12,094.38]. Notable contributions: Robin Flint Ballenger, $2,800; RE UP Dispensary, $1,000; Justin Schuffert, $1,000; George Krumme, $1,000; Kathy Taylor, $500.

District 6:

Christian Bengel (R): Individual contributions, $2,086.64 [$2,196.94]; PAC contributions, $1,000; loans (all from self), [$7,573.37]; total $3,086.64 [$10,670.31]. Expenditures, $3,086.64. Notable contributions: IBEW PAC, $1,000.

Connie Dodson (D): Carryover, $1,546.69; Individual contributions, [$10,435.00]; PAC contributions, $9,750 [$13,750]; total $18,561 [$25,731.69]. Expenditures, [$14,525.77]. Officeholder expenses, [$1,158.70]. Notable contributions: FOP 93 PAC, $3,500; IBEW Local 584, $3,000; Realtors PAC, $2,000; Tulsa Firefighters Local 176, $1,000; Lloyd Robson, $2,800; Cindy Robson, $2,800; Joe Robson, $1,000; Joe Chadwick, $1,000; Amulfo Murillo, $1,000; Sharon King Davis, $150; Lou Reynolds, $200.

District 7:

Justin Van Kirk (R): Individual contributions, $32,885.00 [$25,085.00]; PAC contributions, $7,500; loans (all from self), $10,300.00 [$10,500.00]; total $50,685.00 [$43,085.00]. Expenditures, [$40,135.21]. Notable contributors: FOP PAC, $7,500; Cord Charvat, $3,300; Robert Zoellner, $2,800; Justin Van Kirk, $2,800; Mike Case, $2,700; Albert Reynolds, $2,000; Jim Taylor, $1,105.

Lori Decter Wright (D): Carryover, $148.12; individual contributions, $17,689.50; PAC contributions, $3,500; political party contributions, $550; in-kind contributions, $3,328,49; total, $21,739.50 [$25,216.11]. Expenditures, $20,556.69 [$20,786.08]. Notable contributors: Tulsa Biz PAC [Tulsa Regional Chamber], $1,000; Tulsa Firefighters IAFF PAC, $2,500; Heart of the Party Tulsa County Federation of Democratic Women, $550; Cheryl Roberts, $1,400; Friends of Crista Patrick [District 3 Councilor], $500; Kathy Taylor, $800; Bill Lobeck, $500; Vanessa Hall-Harper [District 1 Councilor], $50; Ken Levit, GKFF executive director, $150; Teresa Burkett, $250; Sharon King Davis, $150.

The 2020 Oklahoma general election ballot has retention votes for three State Supreme Court justices, two judges on the Court of Criminal Appeals, and three judges on the Court of Civil Appeals. These are yes-no votes, unlike the district judge elections that occur in gubernatorial election years. If "no" prevails -- and it never has -- a vacancy would be created that would be filled by the governor's selection via the judicial nomination process.

Oklahoma has a dual-path court system: The Court of Criminal Appeals is the supreme arbiter in criminal cases. Civil cases are appealed to the Court of Civil Appeals, and can then be appealed to the Oklahoma Supreme Court. The Oklahoma Supreme Court does not handle criminal cases.

My recommendation is to retain Justices Kane and Darby and vote no on the rest. I've put an asterisk next to two of my no votes, to note that other conservative political analysts disagree with me.

Here are the judges on the ballot. Appointing governors and party affiliation are noted in parentheses:

Supreme Court Justice Matthew John Kane IV (Stitt, R, 2019): Yes (enthusiastically)
Supreme Court Justice Tom Colbert (Henry, D, 2004): No
Supreme Court Justice Richard B. Darby (Fallin, R, 2018): Yes (cautiously)

Court of Criminal Appeals Judge Robert L. Hudson (Fallin, R, 2015): No*
Court of Criminal Appeals Judge Gary L. Lumpkin (Bellmon, R, 1989): No*

Court of Civil Appeals Judge Jane P. Wiseman (Henry, D, 2005): No (emphatically)
Court of Civil Appeals Judge Deborah B. Barnes (Henry, D, 2008): No
Court of Civil Appeals Judge Keith Rapp (elected, 1984): No

(Judge Rapp first won election in 1984 when civil appeals judges were elected in competitive non-partisan elections. Beginning with the 1988 election, these judges were moved to the retention ballot (SB 22, effective April 20, 1987), which already applied to the State Supreme Court and the Court of Criminal Appeals. As far as I can determine, Rapp and the other judges who had won elections under the old system continued in their elected six-year term and then faced a retention ballot when their term expired, without needing a gubernatorial appointment.)

Other conservative voices, including Georgia Williams and Steve Fair, Jamison Faught at Muskogee Politico, and Charlie Meadows, longtime head of the Oklahoma Conservative Political Action Committee, have published their opinions on the judicial retention questions, and Faught has provided biographical detail on each judge. They would retain a couple of judges that I would reject, for reasons noted briefly below.

Oklahoma Supreme Court:

You can read through this year's Supreme Court decisions here; many of them had to do with pending initiative petitions, and many divided the court.

One key 2020 ruling addressed the requirement to notarize an absentee ballot; the court majority made a novel interpretation of the law, claiming that permission to substitute a signed, but unsworn statement for a notarized, sworn affidavit as evidence in a civil proceeding (Title 12) also eliminated the requirement for notarizing an absentee ballot (Title 26). The Legislature had to act quickly, passing SB210 to close the loophole that the Supreme Court majority created. Gov. Stitt's two appointees were among the three justices (Winchester was the third) to object to the bad judgment of the majority. Stitt has made two excellent, insightful, and independent picks in John Kane (on this ballot) and Dustin Rowe (not on this ballot), and voting "no" on Colbert will give Stitt opportunities to continue his winning streak, while eliminating a justice that has shown poor judgment in this critical case and others.

Kane and Rowe were dissenters on a ruling that forced the Secretary of State's office to count SQ 805 petition signatures, despite the pandemic; Darby voted with the majority. Kane wrote the near-unanimous opinion (Darby concurred, Rowe dissented on one minor point) striking down SQ 809 because the gist, presented to potential petition signers, did not honestly reflect the substance of the proposal.

Our family has known the Kane family for over a decade through our homeschooling community, which turned out in large numbers to attend his 2019 swearing-in. We have first-hand experience of John's integrity, character, and values. While still an Osage County District Judge, John opened his courtroom every spring to preside over a mock trial competition, which gave eighth graders an opportunity to see the inner workings of criminal court. COVID-19 prevented that tradition from continuing this year, but Justice Kane generously hosted a Zoom session with the students to answer their questions about the Oklahoma judicial system and legal careers. (He gracefully praised and sidestepped a question from my son about the implications of the McGirt ruling.)

Georgia Williams and Steve Fair disagree with me on Justice Darby, on the grounds that he is a recent appointment by a Republican governor (Fallin). Faught points to two unspecified cases on abortion as a reason to retain Justice Darby, and notes that his wife is recently retired as the head of Altus Christian School. Meadows says, "Some of [Darby's] opinions/dissents have shown flashes of an originalist and he appears to be pro-life."

I've changed my mind and decided to support Darby, partly on the strength of his dissent in a 2019 case, Oklahoma Coalition for Reproductive Justice v. Cline, a case involving legislation that regulated the off-label use of medications to induce abortion. Darby was the lone justice (Kane and Rowe were not yet on the court) to argue against the majority's ruling that summary judgment was appropriate. His reasoning was straightforward and sensible: There were contested facts in the case, therefore summary judgment is not permitted. The majority in the case cites Roe v. Wade, but they seem anxious to prevent any case from advancing that might open the door to a reversal of Roe v. Wade. This case illustrates why Oklahomans for Life has been focused in recent years on reform of the judicial nominating process.

The ruling on SQ 807, a petition to add a constitutional amendment legalizing marijuana for any purpose, is interesting in that Darby concurred in dissents by Stitt's two appointees, Rowe and Kane, which argued that the Federal Controlled Substances Act and the doctrine of supremacy means that the proposition is preempted by federal law and cannot move forward. The majority disagreed; the deadline for 807 signatures was Monday.

Oklahoma Court of Criminal Appeals:

If you believe the treatment of Oklahoma City Police officer Daniel Holtzclaw is unjust, you will want to vote against both Court of Criminal Appeals judges up for retention, Hudson and Lumpkin; both voted to reject Holtzclaw's appeal. HoltzclawTrial.com and freedanielholtzclaw.com present the case from Holtzclaw's perspective; here is the Court of Criminal Appeals ruling. Holtzclaw appealed the case to the U. S. Supreme Court, but the petition for certiorari was denied.

On the other hand, Faught quotes an acquaintance who worked for Lumpkin as saying that he is "to the right of Scalia," and he notes that Hudson is a Baptist deacon, Sunday School teacher, and a wheat farmer and cattle rancher. Meadows says that Hudson was "appointed by Governor Keating to replace a corrupt Democrat District Attorney out of Stillwater" and served as Chief of Staff to Attorney General Scott Pruitt. Williams and Fair support Hudson as a recent Republican appointee, but recommend a no vote on Lumpkin on the basis of his 31 years of service.

Oklahoma Court of Civil Appeals:

We still haven't forgotten or forgiven Judge Wiseman's 2003 reversal of her 1995 application of the state constitution's logrolling provision, seemingly in order to appease Tulsa elites who could help her career. (She was appointed to the appeals court soon thereafter.)

All of the conservative commentators recommend voting NO on all three Court of Civil Appeals judges, two of whom were appointed by Democrat Governor Brad Henry; the third, Keith Rapp, was elected in a competitive election in 1984, defeating an incumbent.

Oklahoma State Question 805 would insert a new article into the Oklahoma Constitution to ban longer sentences for repeat felony offenders. The question arises from an initiative petition.

(UPDATE: On October 30, 2020, I spoke with Jeremie Poplin, filling in for Pat Campbell on Talk Radio 1170 KFAQ, about both State Questions. Click the link to listen.)

SQ 805 is opposed by the Oklahoma Sheriffs' Association (and by both candidates for Oklahoma County Sheriff), the Oklahoma Farm Bureau, the Oklahoma Association of Chiefs of Police, the Oklahoma District Attorneys Association, and former Governor Frank Keating, who served as a U. S. Attorney and oversaw law enforcement agencies of the Departments of Treasury and Justice.

The principal opposition group, Oklahomans United Against 805 (no805.org), states that "State Question 805 (SQ805) will create a culture where crime is okay in Oklahoma by reducing penalties for career criminals. With SQ805, habitual offenders of serious crimes will spend less time in prison. These crimes range from domestic violence in the presence of a child, home burglary, to child trafficking, soliciting sex from a minor using technology, animal cruelty and more."

Here is the full text that would be inserted into the constitution if 805 were to receive a majority of the vote:

CONSTITUTION OF OKLAHOMA, ARTICLE II-A CRIMINAL HISTORY IN SENTENCING

SECTION 1. Definitions

As used in this Article:

A. "Community supervision" shall be defined as a specified period of supervision with conditions, including but not limited to parole, probation, and post-imprisonment supervision.

B. "Statutorily allowable base range of punishment" shall be defined as the range of punishment prescribed for the offense or offenses for which an individual is convicted, without the application of a statutory sentencing enhancement based on one or more former convictions.

C. "Violent felony" shall be defined as any felony offense specified in Section 571 of Title 57 of the Oklahoma Statutes as of January 1, 2020.

SECTION 2. Exclusions

This Article does not apply to, and nothing in this Article shall be construed as applying to, changing, or affecting sentences for a person who has ever been convicted of a violent felony, no matter when convicted.

SECTION 3. Range of punishment after former felony convictions

Except as provided in section 2 of this Article, a former conviction for one or more felonies shall not be used to enhance the statutorily allowable base range of punishment, including but not limited to minimum and maximum terms, for a person convicted, whether by trial or plea of guilty or nolo contendere, of a felony.

SECTION 4. Sentence modification - eligibility

Except as provided in section 2 of this Article, a person serving a sentence of incarceration or a person incarcerated pending an acceleration or revocation for a felony offense shall be eligible for sentence modification under this Article if the sentence, including any period of community supervision, for which the person is currently incarcerated satisfies the following criteria:

A. Was imposed based on a statutorily allowable base range of punishment that was enhanced based on one or more former felony convictions; and

B. Is greater than the current maximum sentence which may be imposed on a person convicted of the same felony or felonies who has not been formerly convicted of a felony.

SECTION 5. Sentence modification - initiation of proceeding

A. To initiate a proceeding for sentence modification under this Article, a person who believes that they satisfy the criteria in section 4 of this Article, henceforth known as the "petitioner," shall file a verified "application for modification" with the clerk of the court that imposed the sentence of incarceration. The Court of Criminal Appeals may prescribe the format of the application. If the court that imposed the sentence is not available, the presiding judge shall designate another judge or magistrate to rule on the application. Within thirty (30) days of the filing of the application, a period which may be extended if the court has good cause, the court shall dismiss the application pursuant to subsection B of this section or proceed pursuant to subsection C of this section.

B. If the court determines, on the basis of the application, that the petitioner does not satisfy the criteria in section 4 of this Article or has not adhered to the format of the prescribed application, it may deny the application, citing reasons for the denial, or allow the petitioner to file an amended application. Denial of the application due to technical errors shall not abridge the right of the petitioner to file a subsequent application.

C. If the court determines, on the basis of the application, that the petitioner satisfies the criteria in section 4 of this Article, then the court shall conduct a sentence modification hearing and modify the sentence in accordance with section 6 of this Article. In advance of such hearing, the court shall appoint counsel for petitioners who are indigent and notify the state. If the petitioner has a victim registered with the Department of Corrections for the sentence for which the petitioner is applying for modification, the state shall notify the victim of the sentence modification hearing.

D. The Department of Corrections shall provide support as necessary to ensure this section is implemented, including but not limited to posting information in facility common areas regarding the rights set forth under section 4 of this Article and providing timely and adequate assistance for the preparation of applications pursuant to subsection A of this section.

SECTION 6. Sentence modification - hearing

A. The sentencing modification hearing shall be held in open court. The court must accord the state, any registered victim, and the counsel for the petitioner an opportunity to make a statement with respect to any matter relevant to the question of sentence. The petitioner has the right to make a statement on his or her own behalf before the court pronounces a modified sentence.

B. During the sentencing modification hearing, the court shall reconsider the sentence for which the petitioner is currently incarcerated, without any consideration or reference to an enhancement based on one or more former felony convictions, consistent with section 3 of this Article. In reaching this determination, the court shall consider the estimated cost of the petitioner's continued incarceration to the taxpayers of the State of Oklahoma.

C. At the conclusion of the sentencing modification hearing, the court shall be empowered to modify any aspect of the original sentence. At minimum, the court shall modify the sentence to be no greater than the current maximum sentence which may be imposed on a person convicted of the same felony or felonies with no former felony convictions. The court shall not modify the sentence so that the portion of the sentence to be served in prison is greater than the remainder of the original sentence to be served in prison.

SECTION 7. Appeal to the Court of Criminal Appeals

A denial pursuant to subsection B of section 5 or a final order entered under subsection C of section 6 of this Article may be appealed by the petitioner to the Court of Criminal Appeals within sixty (60) days from the entry of the denial or final order. The appeal shall be taken in accordance with procedures implemented by the Oklahoma Court of Criminal Appeals.

SECTION 8. Implementation

This Article shall become effective on the January 1 immediately following its passage.

SECTION 9. Severability

The provisions of this Article are severable, and if any part or provision shall be void, invalid, or unconstitutional, the decision of the court shall not affect or impair any of the remaining parts or provisions of this Article, and the remaining provisions shall continue in full force and effect.

Let's walk through this. The first problem is that this is statutory language that would be enshrined in the constitution. Section 1 has a list of definitions, very common in statutes, but a signal that the text is far too specific for a constitution, which ought to address the basic structure of government, its powers and constraints, and the reserved rights of the people. The only reason this is being added to the state constitution is to prevent the legislature from easily fixing its problems and unintended consequences.

One definition in particular is problematic: "Violent felony" is not spelled out with a specific list of crimes, or left to the legislature to define and adjust as appropriate, but with a reference to a statute at a particular moment in time. The aim is to prevent the legislature from recategorizing heinous "non-violent" felonies as "violent felonies" so as to exempt them from the ban on sentence enhancements.

Here is a link to the version 57 O.S. 571 as of January 1, 2020. This list is Title 57, Prisons and Reformatories, in Chapter 8A, Although this list of crimes has already been superseded with the passage of HB3251 this year, the obsolescent list will be forever enshrined in the constitution if 805 passes.

HB3251 added the following item to the list of violent felonies in 57 O.S. 571:

aaa. domestic abuse by strangulation, domestic assault with a dangerous weapon, domestic assault and battery with a dangerous weapon, or domestic assault and battery with a deadly weapon, as provided for in Section 644 of Title 21 of the Oklahoma Statutes.

The Legislature can add dozens of violent felonies to that section of law over the years, but none of them would ever be considered violent felonies for the purpose of sentence enhancements if SQ 805 passes. Every time a wife-beater commits, for example, domestic abuse by strangulation, his previous convictions for that crime cannot be considered in sentencing him for his latest conviction. The only way to incorporate newly added crimes would be to amend the constitution in a future state question either to update "as of January 1, 2020" to a more recent date or to strike that date phrase from the constitution entirely, which would undermine the intent of SQ 805.

As you'll notice, 57 O. S. 571 is a long list of crimes with cross-references to the title and section where each crime is defined. What happens if the sections of statute mentioned in 57 O.S. 571 as of January 1, 2020 are amended by a future legislature? Are those definitions in these other statutes also frozen in time? What if a future legislature changed the definition of, say, "burglary in the first degree, as provided for in Section 1431 of Title 21 of the Oklahoma Statutes," by removing the phrase "in which there is at the time some human being," so that any act of burglary is considered violent, even if no one is at home? Would that change the definition of violent felony in new Article II-A or not?

That question would end up in the courts, which illustrates the trouble with amending the constitution with statutory language via initiative petition. However imperfect, the legislative process gives an opportunity for structural defects in legislation to be aired and remedied in committee, on the floor, and in conference between the two chambers. An initiative petition is written by the proponents, with no vetting process beyond nods from "yes men," and then it's an up-or-down vote, with no opportunity to fix problems, short of another proposed constitutional amendment.

Another problem with this hard-coded reference to statute: If you scroll down to the bottom of the most recent version of 57 O.S. 571, you'll see a list of citations, which includes court decisions which refer to the section, and it also includes other laws in other titles that refer to this list of violent felonies. I count seven references, dealing with electronic monitoring, appeals of out-of-school suspensions, criminal record expungement, and sentence enhancements. As this section of law is expanded to include additional crimes, a gap will grow between the definition of violent felony used by these other statutes and the definition, frozen in amber, used by SQ 805's new section of the state constitution.

To continue:

Section 2 uses the definition of violent felony in section 1 to exclude someone who has ever been convicted of one of those crimes from all the protections that follow.

Section 3 is the heart of the proposed constitutional change: Previous convictions "shall not be used to enhance the statutorily allowable base range of punishment." That phrase, "statutorily allowable base range of punishment," has a circular definition in Section 1: "the range of punishment prescribed for the offense or offenses for which an individual is convicted, without the application of a statutory sentencing enhancement based on one or more former convictions." This is a mess.

Sections 4 through 7 establish a procedure by which people currently in prison can have any sentence cut to what would be allowed for new convictions of first-time offenders under 805. This is the "get out of jail early" provision which would allow a career criminal to get back to work victimizing the public sooner than he would have under his original sentence.

If the sentence a career criminal is serving is longer than a sentence for a conviction today for a first time offender, the career criminal can apply for a hearing to get that sentence reduced. The judge can modify the sentence, but only downward, so the process bears no risk to the career criminal. The sentence has to be cut at least to the length of sentence for a first-time offender, but could be cut further. The career criminal is entitled to a state-paid attorney. The same court that imposed the original sentence is responsible to hear the sentence-modification request. The prosecutor, the career criminal's attorney, the career criminal himself, and the registered victim, if any, are all entitled to speak.

Once again, this is statutory language being locked into the constitution where it can't be adjusted if the procedure proves impractical. Ordinarily, a constitutional provision would establish a right or an obligation and then would direct the legislature to make laws enforcing the provision. The only nod to practicality is authorizing the Court of Criminal Appeals to design the application form.

In Section 6.B. there is this little bombshell, which hasn't received any attention:

In reaching this determination, the court shall consider the estimated cost of the petitioner's continued incarceration to the taxpayers of the State of Oklahoma.

I assume that courts may consider other factors as well, but the only factor they are mandated to consider is the cost to the taxpayer, and of course a shorter sentence will always cost the taxpayer less than a longer sentence, but there is no mandate to weigh that cost against the cost borne by the future victims of the career criminal as he returns to his life's work.

There are two reasons we lock people up: To punish the criminal and to protect the public. Shoplifting, burglary, car theft -- all these property crimes impose a tax on the public. (There are many more crimes that are affected by 805; see below for a longer list.) This tax manifests itself as higher prices, higher insurance rates, alarm monitoring fees, the cost of stronger locks and higher fences.

A more targeted tax is paid by families and small businesses that are existing on the margins: Families on the edge of poverty can't afford the protections available to wealthier Oklahomans, which makes them targets of opportunity for career criminals to take what little they have. Likewise, small retailers pay a greater price for theft, and are less able than the big chains to afford surveillance or pass on losses to consumers.

There's a social tax, too: The knowledge that career criminals are living among us and that the legal system no longer cares about protecting us from them, will only make Oklahomans more suspicious and less trusting of one another.

The proponents of 805 care nothing about these impacts. They care only that predators are allowed to roam free. In one social media exchange, a vocal proponent of 805 stated that, rather than protect women by imposing long sentences for domestic abusers, women should be taught how to hide money and escape from their abusers. With wild animals, we know we should avoid certain wild areas, should carry repellent sprays if we have to venture into those areas. The mindset behind 805 says that some people are just predatory, and because we live in their habitat, we must expect them to victimize us. It's nature's way, as Steve Irwin used to say about snakes and crocodiles.

Some may object to the term "career criminal," but many of the serious crimes that will be affected by SQ 805 are the sorts of crimes that people pursue as a way to make a dishonest living. 805 would reduce the consequences for their choice of a career.

Section 8 allows a career criminal who didn't to get the sentence reduction he wanted to appeal the decision to the Court of Criminal Appeals, the highest court in Oklahoma that deals with criminal cases. This remedy isn't available to prosecutors acting on behalf of the public or to victims, just to the career criminal.

Section 9 has a severability clause, which anticipates the possibility that the court might strike down part or all of this new constitutional language as unconstitutional, which is through-the-looking-glass weird. Severability is normal in a statute, completely inappropriate in constitutional language. It's particularly inappropriate in this case: If Section 1 or 2 were declared unconstitutional, the remainder of this new constitutional amendment would be meaningless.

I am voting no. There may well be a strong case regarding specific crimes for reducing sentences, or expanding diversion programs, or substituting restitution for incarceration, but the right way to address those questions is through the legislative process, where many voices can weigh in, as proposals are filtered through committees and the floor of each house, with public hearings and amendments, not through a poorly crafted, unvetted bit of legislation embedded permanently in our constitution.

Government's first responsibility is to protect citizens, particularly those who lack the resources to protect themselves, from evildoers who choose to victimize others as a way to make a living.

UPDATE 2020/10/30: I'm told that 805 proponents claim that the legislature could, if they choose, expand the sentence range for crimes not on the list in 57 O. S. 571 and thus impose the same sentences that are currently possible. If that's so, what's the point of 805? This is another example of the sloppy thoughtlessness behind 805, and why criminal justice reform needs to be a legislative process involving consultation with law enforcement, prosecutors, corrections officials, and criminologists. The RESTORE Task Force established by Gov. Stitt needs time to finish its work, but 805 threatens to undo this careful approach.

MORE ON SQ 805:

On Facebook, No805 has been posting the rap sheets of criminals who would get out of jail much sooner if 805 passes.

The Repeal SQ780 Facebook page provides frequent examples of the failures of Oklahoma's previous attempts at "criminal justice reform."

Other advocates provide more detail on the long list of serious crimes that are left off of the "violent felony" list that SQ 805 establishes and the likely effects:

Association of Oklahoma Narcotics Enforcers:

Incredibly, the advocates of State Question 805 would have our citizens believe that those currently sentenced to these crimes actually serve out their sentences despite the fact that every one of these criminals are eligible for parole after serving 25% of their sentence. In fact, habitual criminals know very well that they will only serve a small fraction of their sentence, with even a smaller portion spent behind bars. A significant segment of our "inmates" in Oklahoma are actually living at home attached to a GPS monitor or residing at a halfway house. It is important to note that in the last two years Oklahoma's prison population has actually decreased 17.7 percent and the prison overcrowding narrative is a manufactured crisis not based in reality. Promises of purported savings to fund benevolent programs are of the oldest, and most oft used, propaganda techniques that appear when promoting a questionable legislative effort.

What crime we do experience is committed by a small number of individuals. For instance, when a community experiences 100 burglaries, that does not in any way represent 100 separate burglars, but a very small number of thieves stealing over and over again. It is this repetitive and habitual offender that police and prosecutors should focus their efforts and resources, but State Question 805 does nothing more than provide a legal sanctuary for these habitual defendants who cause so much havoc in our communities.

These theories urging the reduction of law enforcement did not originate around here, but are part of spurious intellectual ideas offered by special interest groups with no experience dealing with criminals who victimize citizens. To illustrate the horrendous impact State Question 805 would have, simply pick a city where the law is not being enforced and evaluate just how that city is doing. If police and prosecutors are stripped of their ability to target habitual offenders, Oklahoma would experience the public safety chaos currently seen in America's coasts. Our citizens, our children, and our victims deserve better.

Oklahoma Sheriffs' Association:

With SQ805, habitual offenders of serious crimes will spend less time in prison, and put them back on the streets where they can continue committing crimes like home burglaries, child trafficking, soliciting sex from minors using technology, animal cruelty and domestic violence; just to name a few.

While proponents of 805 claim it only applies to non-violent offences, many horrible crimes against people and animals are classified as non-violent, creating a pass for the perpetrators of these heinous crimes, because each crime has the same sentence range as a first time offense....

As Oklahoma's constitutionally duly elected Sheriffs, we urge all Oklahomans to Vote "NO" on SQ 805 and protect Oklahoma children from super predators. We ask citizens to vote "NO" on SQ 805 and keep our homes and private property safe from repeat career criminals who would break into our homes, and steal our property; who would steal our identities and cause us financial hardship, and who would commit acts of Indecent Exposure, hate crimes based on Race, Religion, Sexual Orientation; and those who would commit acts of Negligent Homicide.

SQ 805 would also be retroactive, and would mandate the reduction of sentences of convicted criminals currently serving time in prison, disregarding the decisions of the juries and judges who handed out those sentences.

Oklahoma Farm Bureau:

With longstanding policy that calls for strong penalties on agricultural crimes, OKFB opposes the measure due to concerns over its potential impact in rural communities, specifically with the theft of livestock and farm or ranch equipment.

"For decades, Farm Bureau members have stood for protecting property rights and promoting public safety," said OKFB President Rodd Moesel. "Unfortunately, those of us in agriculture are all too familiar with cattle theft and other property crimes that can cost our farm families thousands of dollars. A no vote on State Question 805 will protect the safety of our treasured rural communities by ensuring habitual offenders continue to be punished appropriately."

OKFB is joined in the coalition by other statewide agricultural organizations including Oklahoma Cattlemen's Association.

Oklahoma Association of Chiefs of Police:

The OACP believes that SQ805 actually does not do anything to protect our citizens from being victimized of crimes, but gives credit to people who commit those crimes to say that there are no consequences to recommitting multiple crimes. When the proponents of SQ805 talk about non-violent offenses, take time to understand what is meant. Please hear the warning from our membership that treating career criminals as first-time offenders will do nothing but embolden those who seek to take property and safety away from our hardworking and honest citizens. Our members do not profit by having people in jail, but we do see the effects of allowing people to reoffend without fear of serious penalties.

We are also very leery of yet another change to the State Constitution. By making changes such as this, we take away the ability of our duly elected representatives to make corrections and to minimize unintended consequences. If the proposition of SQ805 is good and the will of the people, so be it; but leave the option of mitigating damage to our criminal justice system if it is found to be a faulty concept after we have all had time to see the short and long-term effects.

Oklahoma District Attorneys Association:

"Painting longtime criminal offenders as if they are first-time offenders is not only dishonest, it is a disservice to Oklahomans who are trying to decipher just how bad the policy behind SQ 805 is going to be," said Marsee. "Today, we challenge the proponents to release the FULL records of the criminals featured in their ad, so Oklahomans can decide for themselves how many crimes are too many before a judge or jury determines they are a menace to society."

Former Governor Frank Keating, who served as a U. S. Attorney and oversaw law enforcement agencies of the Departments of Treasury and Justice:

Let's look at examples. Repeat drunk drivers who have caused injury. Incest. Trafficking in children. Hate crimes. Stalking and violation of protective orders. Drug distribution.

How many times can a criminal do these? As many as they wish. Each time, they will be treated as a first offender.

I have been an FBI agent, a state prosecutor and U.S. attorney in Tulsa. I supervised the federal criminal prosecutions in the U.S. as well as all of the U.S. attorneys and most of the federal law enforcement agencies, including the U.S. prison system. Proposed State Question 805 is a stay-out-of-jail free card.

There is always room for reform but not SQ 805. It will result in more criminal activity and more victims. We must not add to the girth of our constitution with this one-size-fits-all experiment. If 805 passes, it cannot be amended by any Legislature at any time.

State Question 805 is terrible public policy.

Only two state questions are on the ballot in November, which seems like a record low. Of the 12 attempts this year at putting a question on a ballot via initiative petitions, two made it two the ballot (802 and 805), two (involving marijuana) are in process, and the remainder failed for lack of signatures or were stricken by the State Supreme Court. (One more petition, SQ 803, seeking a referendum on HB 2597, also failed for insufficient signatures.)

State Question 814 is a legislative referendum. It began as Senate Joint Resolution 27 and was passed by large majorities (81-17 in the House, 34-11 in the Senate). Because it modifies the State Constitution, final approval requires a vote of the people. Sen. Nathan Dahm appears to have been the only Republican vote against it, but I haven't been able to find his rationale.

(UPDATE: On October 30, 2020, I spoke with Jeremie Poplin, filling in for Pat Campbell on Talk Radio 1170 KFAQ, about both State Questions. Click the link to listen.)

Here is the video of debate on SJR 27 in the State Senate on March 12, 2020, and here is the State House debate on SJR 27 from May 14, 2020.

The proposal would modify Article X, Section 40, repurposing money that currently goes into the Tobacco Settlement Endowment Trust Fund to pay the state's share of the Medicaid expansion that voters foolishly approved with SQ 802 in June.

Article X, Section 40 is a provision that was added to the Oklahoma Constitution by SQ 692 at the November 2000 election, initiated by the legislature, creating a Tobacco Settlement Endowment Trust (TSET) Fund to contain a portion of the settlement payments from the tobacco companies. The percentage of payments dedicated to the fund began at 50% and increased by 5% a year to 75%, where it has remained since 2007. A special trust with separate board of directors and board of investors handles the funds; the remainder is available for appropriation by the legislature as part of the normal budget process. SQ 814 would reduce that percentage to 25%

TSET's spending has been controversial. TSET is supposed to be using the fund (worth $1.4 billion at the end of FY2019, the most recent year that has been audited) to help people quit smoking and to deal with the medical consequences. The Oklahoma Council of Public Affairs (OCPA) documented many examples of poor judgment and management, such as the "Free the Night" program that seems to promote drinking in bars.

Oklahoma has a problem with funding silos. Too many of the dollars received by state and local government are earmarked for one purpose or another, and many of those earmarks are constitutional. No matter how desperate the need may be in one department (say, schools), and no matter how overfunded the agencies receiving earmarked funds may be, there's no legal way to move money to where it's needed most. Legislators would rather raise taxes on all of us regular Oklahomans than risk unleashing the wrath of the lobbyists protecting their earmarks.

SQ 814 would not reallocate any of the money currently in the Tobacco Settlement Endowment Trust Fund; it would only change how new money is allocated as it is received from the tobacco companies. (UPDATE: The TSET 2019 annual report states that the total receipts from the tobacco companies for the four fiscal years from 2016 through 2019 were, respectively, $76,009,297, $77,953,045, $71,663,337, and $69,766,823. Passage of SQ814 would mean that about $35 million that currently gets added each year to the $1.4 billion TSET endowment would instead be set aside for state Medicaid matching funds. TSET would still receive roughly $17.5 to $19.5 million each year, based on the last four years' income.)

SQ 814 doesn't come anywhere near fixing the problem of funding earmarks, but at least it redirects earmarked money where to fill part of what could be a massive fiscal hole. I'm voting yes.