UTW Column Archive: November 2006 Archives

An edited version of this column was published in the November 2-8, 2006, issue of Urban Tulsa Weekly. The published version is available on the Internet Archive's Wayback Machine. Here's my blog entry linking to the article. Posted October 25, 2022.

Judicious voting
By Michael D. Bates

Ye shall not respect persons in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man; for the judgment is God's. - Deuteronomy 1:17

Justice is often depicted in art as a blindfolded figure, symbolizing the commitment carved above the entrance to the U. S. Supreme Court: "Equal Justice under Law." From ancient Israel to the present day, civilization has honored the ideal that the Law should not be a respecter of persons - perhaps more often in the breach than the observance.

The impartial administration of justice is what separates civilized societies, where disputes are settled in courtrooms and at the ballot box, from those lands where might makes right. The security of life, liberty, and property under law is an essential element of American prosperity. Human and economic capital flees lands where one's home, business, and very existence can be taken at the whim of a tyrant. (Zimbabwe under Robert Mugabe is only the latest example.)

Whether partiality is motivated by bribery or fear of retribution, when a judge bends the law to please the wealthy or powerful, that judge needs to go. Thankfully, Oklahomans have an opportunity every four years to review a judge's performance and to remove or replace him. District judges face competitive elections; voters choose whether to retain or dismiss appellate judges and justices of the Oklahoma Supreme Court.

Next Tuesday, Oklahoma voters should dismiss Court of Civil Appeals Judge Jane Wiseman and Supreme Court Justices Steven W. Taylor, Tom Colbert, James E. Edmondson, and Yvonne Kauger on the grounds of partiality in judgment.

In 2005, Tulsa County District Judge Jane Wiseman was appointed by Governor Brad Henry to the Court of Civil Appeals. During her tenure at the local court, she issued two contradictory rulings on high-profile cases involving sales tax elections and the Oklahoma Constitution's "single subject" rule.

Article 5, Section 57 of the state constitution bans logrolling, the practice of lumping together a number of unrelated items in the same piece of legislation or the same ballot initiative. Logrolling forces voters to accept the unacceptable in order to obtain the desirable. The aim of the logrolling prohibition is to give voters a clear choice. Earlier this year, the State Supreme Court used this provision to disqualify an initiative petition restricting the use of eminent domain, because it also provided for compensation to landowners adversely affected by zoning changes.

In the summer of 1995, Tulsa County's Commissioners sent to the voters a proposal for a ½-cent temporary sales tax to pay for construction of a new jail and to pay for early intervention and delinquency programs. A citizen sued to stop the election, and Judge Wiseman ruled that the combination of the two items, although somewhat related under the broad topic of crime prevention, was nevertheless unconstitutional logrolling.

The County Commissioners regrouped and within a few days approved a restructured tax proposal, this time with the early intervention programs as a separate ballot item. The jail construction tax passed in September 1995, but the 1/12th of a cent for early intervention failed. (By the way, that missing 1/12th is why we have such a strange sales tax rate.) The voters were allowed to express clear preferences for one item and not the other.

Fast-forward to 2003. Tulsa County's Commissioners sent a four-part sales tax ballot to the voters. Proposition 3 included funding for university facilities, a medical clinic, Expo Square improvements, public school teaching materials, convention center upgrades, and a downtown sports arena, lumped together under the vague heading of "economic development."

As recently as 2000, voters had approved a sales tax measure with Expo Square funding and at the same election turned down a sales tax to fund a new arena, so there was reason to believe that, given a free choice, voters would approve some of those items but not others.

The 1995 precedent raised the possibility that the County Commissioners might once again be forced to go back to the drawing board and give voters a clear choice. But an attorney friend warned me that it would all depend on who brought the lawsuit. If the plaintiff were a senator or congressman, someone who could further or frustrate a judge's career ambitions, the suit would have a chance, but otherwise the logrolled ballot would go forward. There was too much social and financial pressure on the other side. A $200 million construction project was much higher stakes than $5 million a year for social programs.

The plaintiff was Todd Huston, a controversial one-term City Councilor who had been targeted for defeat by the Tulsa World. Mr. Huston had exactly zero clout over federal and state judicial appointments.

When I learned that Jane Wiseman had been assigned the case, I was hopeful. If Wiseman applied the same principles that she used in the logrolled jail vote, the voters would have to be given a standalone vote on the arena. Surely Wiseman wouldn't contradict her earlier ruling.

But she did. The day of the hearing, the courtroom was packed with the Great and the Good, many of whom had a financial interest in the arena project going forward. Wiseman ruled that the collection of disparate projects did not violate the single-subject rule, because they could all be justified as related to "economic development." Wiseman's ruling nullified the constitutional protection against logrolling.

Why did Jane Wiseman contradict herself? Perhaps she feared ostracism - her name turns up from time to time in the society column. Perhaps she feared a well-funded challenger at her next re-election, or that she'd be passed over for a higher judicial appointment. Whatever the motive, she demonstrated unacceptable partiality. Two years later she was elevated by the Governor to the Court of Civil Appeals. Next Tuesday is our first opportunity as voters to retire Jane Wiseman and her partiality for the powerful and wealthy.

Four of the five Supreme Court justices on Tuesday's ballot - everyone but Marian Opala - need to be sent off as well, for nullifying the right of Oklahomans to initiative and referendum. In July, the Supreme Court voted to strike down the Taxpayers Bill of Rights (TABOR) petition for an inadequate number of signatures.

Although TABOR's backers gathered 80,000 more signatures than were required, the Court's referee claimed that 81,000 signatures were gathered by circulators who were not "qualified electors," a term that refers to any adult residing in the state of Oklahoma, whether registered to vote or not. The Supreme Court affirmed the referee's assertions without hearing oral arguments from the petition's supporters.

Whether a professional circulator living in a motel room should count as a qualified elector is a matter for the Legislature to address. The law doesn't specify a requirement for length of residency or quality of housing. Whether TABOR is a good idea or not, the Supreme Court should have taken up the issue and heard arguments for both sides, rather than letting a referee make the decision. Only Marian Opala, out of the nine justices, insisted that the proponents of the petition be given their day in court.

The decision is suspicious in light of the fact that the same company, National Voter Outreach, had circulated nearly every successful initiative petition in Oklahoma in recent years, including anti-cockfighting and gasoline tax initiatives. NVO's procedures had never before been invalidated. The Court effectively changed the rules in the middle of the game.

The difference, in this case, is that the same powerful business groups who supported the gas tax hike oppose TABOR. The right to initiative petition was enshrined in our state constitution to allow the voters to bypass a legislature in thrall to entrenched special interests. This ruling sends the message to the 300,000 Oklahoma voters who signed the TABOR petition is that you have that right only as long as the entrenched special interests don't object.

As our only resort against this trampling of the state constitution, Oklahomans should vote to keep Justice Marian Opala and to get rid of the rest.

District Judges:

Tulsa County voters will decide five contested District Court seats and choose an Associate District Judge. Space doesn't permit a detailed treatment of each race; three deserve special mention.

Deirdre Dexter (dexterforjudge.com) is widely praised for her term as Associate District Judge and has been endorsed by ten former county bar association presidents, state legislators and city councilors of both parties, former district attorneys of both parties, and the immediate past chairmen of the local Republican and Democratic parties. As I wrote before the primary, "I have yet to encounter someone who speaks ill of [Dexter's] character, work ethic, or tenure as judge." Dexter skillfully handled some very challenging felony cases, and she ought to be returned to service.

In contrast, the performance of Caroline Wall (judgecarolinewall.com), the judge who replaced her, elicits widespread dismay. Attorneys say Wall doesn't keep up with her docket. Wall's leniency is another cause for concern - there's a long list of cases in which Wall reduced or completely suspended jail terms for convicted murderers and sexual predators. Her opponent, Dana Kuehn (danaforjudge.com), resigned a position as assistant DA to run for the seat, and has support across the political spectrum.

Voters in north Tulsa County and east Tulsa will choose between Collinsville municipal judge James Caputo (judgecaputo.com) and special district judge Daman Cantrell (cantrellforjudge.org) to fill David Peterson's vacant bench. Caputo was a Tulsa County sheriff's deputy prior to getting his law degree, has been Collinsville's municipal judge since 2001, and attorneys I know praise him as intelligent, efficient, and someone who will rule according to the law, not try to legislate from the bench.

Elsewhere in this issue, you'll find my tête-à-tête with former Democratic chairman Elaine Dodd on statewide, legislative, and county races. For more analysis and late-breaking news between now and Election Day, visit batesline.com.