CASE NO. 112,741 (Consolidated with 112,764)

IN THE SUPREME COURT OF THE STATE OF OKLAHOMA

CLAYTON LOCKETT and CHARLES WARNER,

Plaintiffs/Appellants,

v.

EDWARD EVANS, in his Official Capacity as the Interim Director of THE OKLAHOMA DEPARTMENT OF CORRECTIONS and the OKLAHOMA

DEPARTMENT OF CORRECTIONS,

Defendants/Appellees.

Appeal of District Court of Oklahoma County Case No. CV-14-440 The Honorable Patricia Parrish

DEFENDANTS/APPELLEES EDWARD EVANS AND THE OKLAHOMA DEPARTMENT OF CORRECTIONS'

PETITION FOR REHEARING

JEB JOSEPH, OBA#19137 AARON J. STEWART, OBA#31721

Assistant Attorney Generals Oklahoma Attorney General's Office

Litigation Division 313 NE 21st Street

Oklahoma City, Oklahoma 73105 Telephone: (405) 521-3921 Facsimile: (405) 521-4518

jeb.joseph@oag.ok.gov aaron.stewart@oag.ok.gov

Attorneys for Defendants/Appellees Edward Evans, in his Official Capacity as Interim Director of The Oklahoma Department of Correction and The Oklahoma

Department of Corrections

April 22, 2014

TABLE OF CONTENTS

TABLE OF CONTENTS i

TABLE OF AUTHORITIES i i i

DEFENDANTS/APPELLEESS' PETITION FOR HEARING 1

ARGUMENTS AND AUTHORITIES 3

PROPOSITION I:

APPELLANTS ARE NOT ENTITLED TO A STAY OF EXECUTIONS 3

1. Appellants are not likely to succeed on the merits of their challenge to 22 O.S. 2011, § 2015(B) 3

2. Appellees will face great harm from the stay of executions 7

PROPOSITION II:

THIS COURT'S ORDER IS INCONSISTENT WITH WELL-ESTABLISHED PRECEDENT 9

PROPOSITION III: /

DECLINING TO EXERCISE JURISIDCTION DOES NOT VIOLATE APPELLANTS' ACCESS TO COURTS 11

PROPOSITION IV:

THE OKLAHOMA COURT OF CRIMINAL APPEALS HAS EXCLUSIVE JURISIDCTION OVER STAYS OF EXECUTIONS 13

CONCLUSION 15

CERTIFICATE OF SERVICE 16

i

TABLE OF AUTHORITIES

CASES

Allen v. State, 2011 OK CR31 9

Braun v. State, 1997 OK CR 26 4

Christopher v. Harbury, 536 U.S. 403 (2002) 4

Coughlin v. Westinghouse Broad. & Cable, Inc., 603 F.Supp. 377 (E.D. 1985), aff'dlM F.2d 340 (3d cir. 1985), cert, denied 467 U.S. 1187 (1986) 5,6

Doe v. Am. Nat'I Red Cross, 790 F.Supp. 590 (D.S.C. 1992) 5, 6

Eubanks v. Ferrier, 267 S.E.2d230 (Ga. 1980) 6

Gomez v. U.S. Dist. Ct.forN. Dist. of Cat., 503 U.S. 653 (1992) 7

Graham v. Teledyne-Continental Motors, 805 F.2d 1386 (9 t h cir. 1986) 5

Hill v. McDonough, 126 S.Ct6. 2096 (2004) 8

In re Lombardi, 741 F.3d 888 (8 t h Cir. 2014) 4

In the Matter of M.B. 2006 OK 63 9

Leftwichv. Court of Criminal Appeals, 2011 OK 80 9

i

Lewis v. Casey, 518 U.S. 343 (1996) 4, 5

Lockett v. Evans, 2014 OK CR 3 11

Malicoat v. State, 2006 O K C R 2 5 4, 14

Maynard v. Layden, 1992 O K C R 3 1 9, 12, 13

Rollins v. Thermodyne Indus., Inc., 1996 OK 6 11

Rosen v. N.L.R.B., 735 F.2d564(D.C. Cir. 1984) 5

Sells v. Livingston, 2014 WL 1316339 4

State ex rel, Henry v. Mahler, 1990 OK 3 9

Torres v. State, 2002 OK CR35 14

United States v. Will, 449 U.S. 200 (1980) 13

Valdez v. State, 2002 O K C R 2 0 14 Whitaker v. Livingston, 732F.3d465 (5 t h Cir. 2013) 4

Williams v. Hobbes, 658F.3d 842 (8 t h Cir. 2011) 5

ii

STATUTES

22 O.S.2011, § 1015(B) 3,8

OTHER

O K L A . CONST, art. II, § 6 6, 11

O K L A . CONST, art. VII, § 4 13

iii

IN THE SUPREME COURT OF THE STATE OF OKLAHOMA

CLAYTON LOCKETT and CHARLES WARNER,

Case No: #112741

(consolidated with 112,764)

Appellants/Plaintiffs, v.

EDWARD EVANS, in his Official Capacity as the Interim Director of THE OKLAHOMA DEPARTMENT OF CORRECTIONS and the OKLAHOMA DEPARTMENT OF CORRECTIONS,

Appellees/Defendants.

APPELLEES' PETITION FOR REHEARING

Appellees, by and through their attorneys, petition this Court to rehear the issue of the

stay of executions issued by this Court. Also, Appellees request that this Court direct

Appellants to seek post-conviction relief in the Court of Criminal Appeals within 24 hours,

with the understanding that failure to do so will result in the dissolution of this stay. The

lengthy procedural history of this case has been set out repeatedly, most recently in this

Court's order.

A Kenyan proverb teaches us that, "When elephants fight, it is the grass that

suffers," When the two co-equal high courts of the State are in direct conflict, the agencies

and officials who must try to follow their directives find themselves at a loss. The attorneys

who appear before both tribunals are left to wonder where they might stand without getting

trampled, and yet still advocate for their clients.

The Oklahoma Constitution grants this Court with jurisdiction over civil cases, and

the Court of Criminal Appeals with jurisdiction over criminal cases. In 107 years, there has

never been any real dispute over what this means. Indeed, this Court has spent the last

century emphasizing to criminal defendants that it has absolutely no power to stay

enforcement of criminal judgments.

But yesterday, this Court reversed course and stayed two criminal judgments,

candidly acknowledging that what it did was unprecedented, contrary to existing precedent,

and contrary to the Oklahoma Constitution, yet claiming that an obscure common law

doctrine nonetheless gave it the power to do this extraordinary thing.

This is the sort of thing that undermines confidence in this Court, which causes some to

question the Court's respect for the rule of law, and which inevitably will raise a hue and cry

from the Legislative Branch. Al l of which might well seem justified if this case involved

convicted murderers who claimed they were wrongfully convicted. But these cases do not.

Neither Appellant challenges their conviction. Or it might perhaps even seem justified if the

case involved claims that the sentences of death had been improperly imposed. But these

cases do not. Neither Appellant challenges their sentence. The only issue in these Appellants'

cases is whether the State has to tell these Appellants where it obtained the drugs that it will

use to execute them, because the Appellants claim that knowing that information might cause

them to pursue a claim that the State's lethal injection protocol constitutes "cruel and

unusual" punishment (even though such claims have been rejected by every court that has

encountered them).

Appellants have repeatedly refused to pursue the avenue of review open to them since

they were sentenced in their criminal proceedings. Appellants have manipulated the courts

of Oklahoma into conflict with one another, thereby creating a crisis of jurisdiction.

Appellants sit poised to take advantage of that engineered conflict.

Because this Court has taken the sharply divergent step of acting outside of its

statutory and constitutionally defined jurisdiction, Appellants have the stay of executions to

2

which they would not lawfully be entitled. In spite of this Court's well-established

precedent, and even this Court's own recent orders, the Court has now upended this State's

bifurcated judicial system, and has positioned itself as the ultimate arbiter of all disputes,

criminal and civil alike. This is a precarious step for this Court, and Appellees request that

this Court reconsider this sharply-divergent action, and instead require the Appellants

actually follow the statutorily prescribed methods of obtaining stays of executions which they

have all but completely ignored, apparently by design.

In other words, this is the last case that one would expect the Court to take such an

extraordinary action that puts its reputation and legitimacy squarely at stake, and the Court

should reconsider its decisions for the following reasons: (1) Appellants are not entitled to a

stay, (2) this Court's order is inconsistent with well-established precedent (3) declining

jurisdiction does not violate Appellants' right to access courts, (4) the Oklahoma Court of

Criminal Appeals has the exclusive jurisdiction over stays of executions.

ARGUMENTS AND AUTHORITIES

PROPOSITION I: APPELLANTS ARE NOT ENTITLED TO A STAY OF EXECUTIONS.

Appellants have not established a substantial likelihood of success on the merits, and

the stays will cause great harm to Appellees' interests.

1. Appellants are not likely to succeed on the merits of their challenge to 22 O.S.2011, § 1015(B).

In this Court's order, it focused on the Appellants' challenge to 22 O.S.2011, § 1015(B).

The Court found that Appellees' appeal of the District Court's ruling on that statute placed

the issue within this Court's jurisdiction. This Court referenced the "grave" constitutional

questions raised, but did not explore whether Appellants had a substantial likelihood of

success. Rather than judge this issue by the seriousness of the charge, this Court should

3

examine the thin rationale and lack of merit in Appellants' case, as is required before

granting a stay of execution.

The key problem with Appellants' claims is that even if Appellants receive the relief they

seek in the underlying cases, they still will not have an Eighth Amendment claim. The U.S.

Supreme Court has held that a plaintiff must show actual injury in order to succeed on an

access to courts claim. Lewis v. Casey, 518 U.S. 343, 351-52 (1996). The OCCA has noted

that Lewis limits access to court claims due to the requirement of actual injury. Braun v.

State, 1997 OK CR 26, \ 13 n.6, 937 P.2d 505, 509 n.6. The U.S. Supreme Court has also

recognized that however "unsettled the basis of the constitutional right of access to courts,

our cases rest on the recognition that the right is ancillary to the underlying claim."

Christopher v. Harbury, 536 U.S. 403, 415 (2002).

Appellants cannot show actual injury stemming from the non-disclosure of the

information they seek, especially since only manufactured drugs are being used in their

executions. Existing authority shows that Appellants' potential Eighth Amendment claims

have no likelihood of success, despite their allegations regarding compounding, possible

contamination, and botched executions.1 Even if Appellees disclosed the sources of the

drugs, Appellants would have no viable Eighth Amendment claims as they could only allege

the possibility of contamination. This is clearly insufficient to support an Eighth Amendment

challenge even if compounding drugs were being used. Assuming, arguendo, there was any

value to the information Appellants claim they are wrongfully denied by the statute, that

argument is no longer valid since no compounded drugs will be used in their executions. The

1 Whitaker v. Livingston, 732 F.3d 465, 468-69 (5th Cir. 2013) (speculation about drug contamination does not warrant stay); In re Lombardi, 741 F.3d 888, 889-96 (8th Cir. 2014) (denying discoveiy of drug sources to death row inmates); Sells v. Livingston, No. 14-70014, 2014 W L 1316339 at *2, 5 (possibility of improper compounding did not satisfy inmate's burden); Malicoat v. State, 2006 O K CR 25,11, 137 P.3d 1234, 1237-38 (OCCA declined to speculate about potential problems).

4

source of manufactured drugs has never been the basis of a stay or a source of contention in

any of the nine (9) separate cases filed in the U.S. District Court for the Western District of

Oklahoma since July 2005.

Also, the U.S. Supreme Court has definitively stated that the right of access to courts

does not give individuals a right to "discover grievances." Lewis v. Casey, 518 U.S. 343, 354

(1996) (emphasis in original). There is no authority in Oklahoma indicating that preventing

disclosure of information denies a party's access to courts. However, the Eighth Circuit has

held that preventing disclosure does not deny access to courts. In Williams v. Hobbes, death

row inmates challenged an Arkansas statute that exempted certain parts of Arkansas' death

penalty protocol from the state Freedom of Information Act. 658 F.3d 842, 846 (8th Cir.

2011). The inmates claimed that the secrecy around the protocols denied them an

"opportunity to litigate," and therefore violated their right of access to courts. Id. at 851-52.

The Eighth Circuit rejected this claim, stating that courts have held that an "inability to

discover potential claims" is not a due process violation. Id. at 852 (emphasis in orginal).

Here, the District Court found that Appellants could not challenge their executions, because

they would not have information to do so. However, under Lewis and Hobbes, this does not

violate access to courts, as Appellants have no right to discover grievances.

Additionally, the District Court's interpretation of the right of access to courts is an

overbroad interpretation of that right, and would lead to absurd results. Courts around the

country have rejected claims that the right of access to courts entitles individuals to

confidential information.2 In addition, Appellants' argument will lead to absurd results. In

2 See Graham v. Teledyne-Continental Motors, 805 F.2d 1386, 1390 (9th Cir. 1986) (deprivation of evidence does not violate due process); Rosen v. N.L.R.B, 735 F.2d 564, 577 (D.C. Cir. 1984) (no due process right in information barred by attorney-client privilege); Doe v. Am. Nat'I Red Cross, 790 F. Supp. 590, 594 (D.S.C. 1992) (statute preventing disclosure of identities of blood donors does not violate right to access courts); Coughlin v. Westinghouse Broad. & Cable, Inc., 603 F. Supp. 377, 380-83 (E.D. Pa. 1985),

5

Doe v. Am. Nat'I Red Cross, a federal district court noted that there would be broad

consequences to accepting the notion that right of access to courts also includes the right to

information to support claims. 790 F. Supp. 590, 594 n.7 (D.S.C. 1992). That court noted

that the "plaintiffs argument, if carried to its fullest extent, would mean that all statutes of

limitations, statutes of repose, evidentiary privileges, and discovery rules could be construed

to deprive an individual of a 'remedy'" under the state's right of access to courts clause. Id.

Here, the District Court's interpretation of the right of .access to courts as including a

broad right to discover and gather any and all information that a plaintiff deems critical (or

speculatively critical) to support a claim would throw the legal system into chaos. Attorney-

client privilege and rules protecting juvenile records, for example, would be invalid because

of possible claims that could be supported by that information. Doctor-patient and priest-

penitent confidentialities would be destroyed. Jury deliberations would no longer be

sacrosanct, the prosecutorial privileges of District Attorneys and the legislative privileges

held by members of the Legislature would all be cast aside. This absurd and unacceptable

result naturally flows from the District Court's interpretation of art. II, § 6.

Appellants have not shown a substantial likelihood of success on the merits. The

District Court's ruling contradicted existing authority, the District Court did not consider that

Appellants showed no actual injury, and the District Court's interpretation of the right of

access to courts is overbroad and leads to absurd results.

aff'd 780 F.2d 340 (3d Cir. 1985), cert, denied, 476 U.S. 1187 (1986) (state shield law did not violate plaintiffs access to courts) Eubanks v. Ferrier, 267 S.E.2d 230, 231-32 (Ga. 1980) (statute protecting information from disclosure in discovery does not violate right of access to courts).

6

2. Appellees will face great harm from the stay of executions.

Appellees have previously advised this Court of the potential for harm should a stay

be granted, but it appears that in granting the stay of executions this Court failed to weigh

and evaluate any of them in favor of a general proposition that since Appellants are to be

executed that this somehow trumps all other concerns. The United States Supreme Court,

however, has recognized that any state has a "strong interest in proceeding with its

judgment...." Gomez v. U.S. Dist. Ct.forN. Dist. Of Cat., 503 U.S. 653, 654 (1992). The

State of Oklahoma also has a strong interest in carrying out an order properly issued by the

Oklahoma Court of Criminal Appeals, which reset the execution dates of Appellants to April

22, 2014 and April 29, 2014. That order, issued by the court with exclusive jurisdiction over

criminal matters in the State of Oklahoma, is in direct contradiction to the Order, issued by

this Court which has no jurisdiction over criminal matters in the State of Oklahoma.

Appellees now face the dilemma of obeying contradictory orders.

This Court's order also harms the criminal justice process of the State of Oklahoma.

The citizens of the State of Oklahoma convicted the Appellants of heinous crimes and

sentenced them to death under constitutionally sound criminal process. Appellants had full

benefit of the clemency process. Appellants not only failed to utilize the well-established

system for raising concerns, but waited until a mere 24 days before their execution dates to

raise some purported concerns in a civil declaratory judgment action.

This Court's Order also interferes with the State's preparations for conducting the

executions of Appellants. This strains payrolls and security precautions, creates unnecessary

work stress, and disrupts operations within ODOC. In order to prepare for an execution on

the dates directed by the OCCA, Appellees must take a number of specific steps. In fact, a

ttemendous amount of planning and preparation is necessary to ensure all the legal and

7

procedural requirements are fulfilled. Appellees have already begun Appellants' isolation

process, moving a multitude of unrelated inmates to make additional space. Appellants have

incurred additional costs in additional overtime for additional correctional officers, and

expended a substantial investment of time and energy towards rehearsals and drills, which

now may need to continue indefinitely while this Court ponders Appellants' civil challenge.

In addition, Appellees spent a great deal of time and energy locating manufactured

sources of drags to be used in the execution of Appellants in an effort to address concerns

regarding compounded drugs which Appellants offered as justification for challenging 22

O.S.2011, § 1015(B). The stay ordered by this Court will not only harm Appellees by

precluding them from carrying out a lawful criminal sentence, but may also result in the

expiration of the manufactured drugs which have been acquired at some expense to the

public coffers. The State's resources suffer unnecessarily while Appellants challenge every

possible angle of Appellees' process in the wrong courts.

Finally, the citizens of the State of Oklahoma, including the families of the victims,

should not see their criminal justice system derailed and subverted with the meager legal

justification offered in this Court's order. In fact, the vested interest of Oklahoma citizens in

ensuring timely enforcement of their laws has been recognized by the U.S. Supreme Court to

be of utmost importance. See, Hill v. McDonough, 126 S.Ct. 2096, 2104 (2004) (holding

that, "[b]oth the State and the victims of crime [in this case the family of Plaintiffs murder

victims] have an important interest in the timely enforcement of a sentence.").

Appellants have exhausted the entire range of appeals and processes required by the

U.S. and Oklahoma Constitutions, yet they have actively avoided the remaining available

remedy before the OCCA. This Court has now rewarded Appellants manipulation by

granting them an extra-judicial stay of their lawful criminal sentences. It has done so without

any mention of the murderers' victims and the harm to be visited upon those families by

again seeing justice denied for the citizens of the State of Oklahoma. By virtue of this

Court's ordered stay the citizens of Oklahoma are witnessing the sunset of the bifurcated

appellate system, and its replacement by a new era of endless "civil challenges" to death

sentences all filed at the last minute as civil matters, alleging some hypothetical harm and

seeking a stay of execution with nothing more to support it than purely speculative harm. The

artificial challenges raised by Appellants herein are of the types routinely rejected by courts

having criminal appellate jurisdiction. Therefore, the balancing of the harms to Appellants

and public policy weigh in favor of denying Appellants' request and this Court should

dissolve its order and reverse the stays of execution issued on April 21, 2014.

PROPOSITION II: THIS COURT'S ORDER IS INCONSISTENT WITH WELL-ESTABLISHED PRECEDENT.

This Court has stated in three separate orders that it does not have jurisdiction over a

stay of executions. However, on April 21, 2014, this Court broke with established and recent

precedent by issuing an Order in which it stayed execution Appellants' criminal sentences

thereby acting inconsistently not only with prior case law, but even acting inconsistently with

its own Orders in this same matter.

This Court's rulings alone show that this Court has no jurisdiction over these matters.

In addition to this Court's recent orders, the prevailing case law shows that this Court has

• • • • • 3

repeatedly recognized its own lack of jurisdiction in this arena. Appellees find no authority

3 See Leftwich v. Court of Criminal Appeals, 2011 OK 80, If 3, 262 P.3d 750, 750; In the Matter of MB., 2006 OK 63, If 14, 145 P.3d 1040, 1047 (OCCA has exclusive jurisdiction over an appeal that arises out of criminal case) ; State ex rel. Henry v. Mahler, 1990 OK 3, If 19, 786 P.2d 82, 87 ("Parties may not circumvent the exclusive jurisdiction of the Court of Criminal Appeals by filing an original action in this Court when they disagree with that Court's rulings"); Allen v. State, 2011 OK CR 31, f 5, 265 P.3d 754, 757 (Oklahoma Supreme Court has recognized that it does not have jurisdiction over this [death penalty] case); Maynard v. Layden, 1992 OK CR 31, U 3, 830 P.2d 581, 581 (the carrying out, prohibiting, or staying such a judgment is within the exclusive appellate jurisdiction of the OCCA).

9

in this State, until today, contradicting that well-established rule. In fact, this Court even

acknowledged that the drafters of Oklahoma's ultimate source of law never contemplated

that this Court would exercise jurisdiction over a death penalty case. Yet this Court has done

so in the most aggressive manner possible by issuing a countervailing Order to the OCCA's

death warrants. This Court's ruling clearly contradicted the spirit, letter, and purpose of

Oklahoma law, and leaves the ODOC and its officers in an untenable position between two

co-equal courts. Either the executions are halted (in violation of the OCCA's death

warrants), or the executions proceed (in violation of this Court's stay Order). In either event,

it is the State, its agency, and its officers who suffer for Appellants' persistent errors and

negligence in forum selection. It is the citizens of Oklahoma for whom justice delayed is

justice denied.

To make matters worse, this step was completely unnecessary, as Appellants do have

access to the proper forum. Whatever disagreements may potentially exist between this

Court and the OCCA, the principal that has not previously been in question is that this Court

has no jurisdiction to enter a stay of a criminal execution. The Court's sudden reversal on

that issue and unwarranted foray into the exclusive jurisdiction of the Oklahoma Court of

Criminal Appeals renders this State's judicial system null, and is a frightening upending of

the rule of law in Oklahoma.

Aside from Oklahoma, only the State of Texas employs a bifurcated system of civil

and criminal appellate duties. As members of this Court and the OCCA have recently noted,

Oklahoma's system has worked well for a long time. A review of cases from Texas reveals

no apparent conflict similar to the one manufactured by Appellants here. Although we may

speculate as to what the Texas courts might do in the same situation, it appears they have

successfully threaded this needle without falling into such a jurisdictional crisis. If this

10

system is to survive here in Oklahoma then each court must acknowledge and abide by the

divided jurisdictional plan we have. In order to do so, Appellees urge this Court to reverse its

earlier ruling, strike its stay of executions, and return the balance of power to its proper

position.

PROPOSITION III: DECLINING TO EXERCISE JURISDICTION DOES NOT VIOLATE APPELLANTS' ACCESS TO COURTS.

Article II, section 6 of the Oklahoma Constitution provides that the "courts of justice

of the State shall be open to every person, and speedy and certain remedy afforded for every

wrong and for every injury to person, property, or reputation; and right and justice shall be

administered without sale, denial, delay, or prejudice." This Court has held that art. II, § 6

does not exist to guarantee any particular set of events, or to ensure that Appellants succeed

on all (or even any) of their claims. Rollins v. Thermodyne Indus., Inc., 1996 OK 6, \ 9, 910

P.2d 1030, 1032. Instead, art. II, § 6 ensures that the judiciary as a whole is open and

available at some juncture for Appellants to bring their claims.

This Court's order states that if this Court does not assume jurisdiction and enter a

stay, then Appellants will have no access to courts. But that conclusion is based on a false

premise put forward by Appellants. This Court has assumed that if it denies Appellants'

stay, Appellants will have no other recourse by which to achieve a stay of execution, based

on the OCCA's conclusion that it lacked statutory authority to enter a stay. Far from

disavowing that the issue before was a criminal matter over which it had exclusive

constitutional jurisdiction, the OCCA's order very clearly states that it would have statutory

authority once an action is filed in the OCCA. Lockett v. Evans, 2014 OK CR 3, | 3. As

Judge Lumpkin pointed out in his concurrence, "Appellants have a forum to challenge the

validity of their convictions, sentences and the execution protocol. In no way, have

Appellants been denied access to the courts." Id. \ 8 (Lumpkin, J., specially concurring). 11

Appellants have not been denied access to courts, they have refused to take advantage

of the access that they have. They have manipulated the fora and pitted the two terminal

courts of the State against one another. They have put this Court in an untenable position, a

position that will result in a deluge of "civil" challenges to criminal convictions if the holding

of cases such as Maynard v. Lay den, 1992 OK CR 31, 830 P.2d 581 are ground to dust under

the proverbial wheels of the bus. Appellants have a forum for their challenges at this

very moment, which has never been denied to them. Appellants can file an action in the

OCCA, at which point the OCCA will have the authority to issue a stay and fully consider

the merits, or lack thereof, of the claims. But Appellants refuse to do so, and this Court has

seemed content with allowing them to get away with it. At the same time this Court has

bluntly taken the OCCA to task for not entering a stay while the Court considers a civil

matter of no real consequence to a valid Eighth Amendment challenge which might be made

by Appellants. In the meantime, Appellants have contented themselves with undermining

and exploiting this State's bifurcated system of justice to create a constitutional crisis for

their own ends with virtual impunity.

This Court must act to put an end to the jurisdictional hopscotch before the criminal

and civil lines are irrevocably blurred. Appellants have an adequate and immediately

available recourse and should be required by this Court to pursue it. If Appellants actually

want a stay of execution granted in accordance with the law, they have somewhere that well-

established precedent tells them they can seek it. What this Court should not do is exceed a

clear jurisdictional line under the law in order to enter a stay, thereby rewarding Appellants'

repeated disregard for precedent and division of powers and by giving them something to

which they are not entitled in the first place.

12

PROPOSITION IV: THE OKLAHOMA COURT OF CRIMINAL APPEALS HAS EXCLUSIVE JURISDICTION OVER STAYS OF EXECUTIONS.

This Court's order stated that it was staying the executions under Article VII, section

4 of the Oklahoma Constitution. Section 4 states that the Supreme Court shall "determine

which court has jurisdiction and such determination shall be final." Up until April 21, 2014,

this Court has consistently determined that the OCCA has exclusive jurisdiction over stays of

executions. The Court's unheralded reversal of that final determination in its most recent

order with very limited explanation and even less legal authority is shocking. In fact, in

analyzing Article VII, section 4 this Court overlooked the begimiing portion of section 4,

which states that "the Court of Criminal Appeals shall have exclusive appellate jurisdiction

in criminal cases until otherwise provided by statute...." This Court has already decided that

the execution of sentences falls within that exclusive appellate jurisdiction. Maynard v.

Layden, 1992 OK CR 31 \ 3, 830 P.2d 581, 581. Therefore, the very section that this Court

relies upon strips the Court of jurisdiction to hear this issue and makes this Court's order of

April 21, 2014 in this matter hollow.

The Court also based its ruling on the "rule of necessity." The rule of necessity is a

common law rule that states that "actual disqualification of a court of last resort will not

excuse such a member from performing his official duty if failure to do so would result in a

denial of a litigant's constitutional right to have a question, properly presented to such court,

adjudicated. United States v. Will, 449 U.S. 200, 215 (1980) (citation omitted). The United

States Supreme Court's evaluation of the rule of necessity is at odds with this Court's

reliance on that rule in three key ways. First, the rule commands courts with acknowledged

jurisdiction to adjudicate issues, regardless of their actual disqualification, or as this Court

terms, their preference. If this Court were to faithfully apply this rule, the only outcome

13

would be for the OCCA to hear the case regardless, since this Court and Oklahoma precedent

have long acknowledged the OCCA's exclusive jurisdiction. That is the final outcome

applying the rule of necessity. The rule does not state that another court, with no power and

no jurisdiction may entertain and exert unauthorized authority. The rule of necessity is a rule

that compels courts to exercise their proper authority, not to exert unlawful authority if the

proper court will not do so to the satisfaction of another court without authority.

Second, this is neither an issue of disqualification nor one of preference. The OCCA

did not decline to hear the requests based on its preference, but rather based on the legislative

mandate regarding stays of executions, coupled with its own Rules of the Court of Criminal

Appeals. It was no more an exercise of "preference" than is the obedience to a speed limit.

The OCCA is also certainly not disqualified from hearing this case. Instead, the Appellants

themselves have actively precluded the OCCA from hearing the case, as they have

purposefully refused to file any application for post-conviction relief with the OCCA. That

would actually be the proper method of requesting a stay of execution from the OCCA. See,

Malicoat v. State, 2006 OK CR 25, 137 P.3d 1234; Torres v. State, 2002 OK CR 35, 58 P.3d

214; Valdez v. State, 2002 OK CR 20, 46 P.3d 703..

Third and finally, the rule of necessity exists in order to allow courts to decide issues

properly brought before a given court, despite possible grounds for recusal or

disqualification. This case raises no such issues and is not properly invoked or applied. This

Court has already decided that jurisdiction over a stay of execution is not properly before it,

but rather is within the jurisdiction of the OCCA. Therefore the rule of necessity is

completely inapplicable to this situation, and the manner in which it is offered does not

justify the stays of executions which this Court has issued.

14

The Court's members state they are concerned with violating their oaths of office, and

this is an honorable and worthy sentiment. However, even if this Court is convinced

(contrary to the statutory remedies clearly available to Appellants) that Appellants would

have no remedy, it cannot and should not trample over one section of Oklahoma's

Constitution in preference to another. In taking the extrajudicial step of ignoring the

Constitution for the sake of the Constitution, this Court has in effect dissolved the OCCA's

jurisdiction over the death penalty, and created a near crisis in terms of precisely where the

line should be drawn between civil and criminal matters. This Court's ruling strips the

OCCA of its exclusive jurisdiction over the death penalty which is without doubt a criminal

matter, and instead creates a jurisprudential free-for-all apparently because it wants a stay to

be granted, and is dissatisfied that the OCCA did not grant one. Appellees urge this Court to

reconsider that decision and restore the dividing line which has been so clearly maintained

for so long between the two highest courts of Oklahoma.

CONCLUSION

The State recognizes the gravity and difficulty of death penalty matters, and the

unique problems created by this case. Appellees submit that there is a constitutional solution

to this crisis, which respects the jurisdiction of both Courts. Appellees respectfully request

that this Court reconsider its earlier order, hold Appellants and their counsel responsible for

their choices, and reaffirm the long-held balance of power and jurisdiction. Appellees

request that this Court direct Appellants to seek post-conviction relief in the Court of

Criminal Appeals within 24 hours, with the understanding that failure to do so will result in

the dissolution of this stay. This solution will re-establish the constitutional order of the

judicial system, and provide Appellants a forum to pursue a stay.

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Respectfully submitted,

JEByE. JOSEPH, OBA#19137 AARON J. STEWART, OBA#31721 Assistant Attorney Generals Oklahoma Attorney General's Office Litigation Division 313 NE 21 s t Street Oklahoma City, OK 73105 Telephone: (405) 521-3921 Facsimile: (405) 521-4518 Email: jeb.joseph.@oag.ok.gov Email: aaron.stewart@oag.ok.gov Attorney for Appellees Ed Evans, in his Official Capacity as Interim Director of The Oklahoma Department of Corrections and the Oklahoma Department of Corrections

CERTIFICATE OF SERVICE

I hereby certify that on this 22nd day of April 2014, a true and correct copy of the attached document was sent via U.S. mail, postage prepaid to:

Susanna M. Gattoni Seth A. Day H A L L , ESTILL, HARD WICK, GABLE, GOLDEN & NELSON, P.C.

100 N. Broadway Ave., Ste. 2900 Oklahoma City, OK 73102-8820

Jeb E^Joseph Aaron J. Stewart

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