Attorneys for Gov. Kevin Stitt and legislative leaders on Thursday argued before the state’s high court about who has the power to compact with tribal nations.
Stitt’s general counsel urged the Oklahoma Supreme Court to rule that the Oklahoma Legislature overstepped its power when approving in a special legislative session two laws extending state-tribal compacts. He also argued the court should overturn the laws that continued tribal tobacco and motor vehicle registration compacts through 2024 because they violated the separation of powers between the executive and legislative branches of government.
Attorney General Gentner Drummond and outside legal counsel hired by House Speaker Charles McCall, R-Atoka, and Senate President Pro Tem Greg Treat, R-Oklahoma City, urged the justices to side with lawmakers and toss Stitt’s lawsuit.
Many of the Supreme Court justices, including the three appointed by Stitt, peppered the attorneys with questions during the hearing at the state Capitol.
Lawmakers encroached on the governor’s ability to negotiate state-tribal compacts, said Trevor Pemberton, Stitt’s general counsel. He argued lawmakers don’t have the authority to pass state laws and then execute them. Pemberton also argued that the governor is the only state official with the authority to negotiate compacts with the tribes.
“The Legislature can no more execute the law than a football coach can draft plays and then run onto the field, throw pads on and then execute the plays with the team, regardless of how satisfied the coach may be with the players’ ability to execute,” Pemberton said.
Stitt’s top attorney also alleged the two laws extending the compacts are invalid because they were adopted this year in a special session that ran concurrently with the Legislature’s regular, four-month session. The special session was intended to circumvent the governor’s veto power and is unconstitutional, he said.
Glenn Coffee, former state Senate leader and the attorney representing McCall and Treat, resoundingly rejected Pemberton’s claims.
He argued Oklahoma’s Constitution does not prevent lawmakers from calling a special session during their regular session. The special session in question was focused on budget issues, and tobacco and motor vehicle compacts impact state revenue to the tune of at least $57 million, Coffee said.
Justice Douglas Combs, who was appointed by former Democratic Gov. Brad Henry, questioned how Pemberton could argue the compact extension bills were unconstitutional, but the Governor’s Office isn’t disputing the legality of over 50 other special session bills, including those to implement the state budget. Pemberton responded that the Legislature overturned Stitt’s vetoes of the compact bills in the unconstitutional special session, thus making the bills unconstitutional. Stitt didn’t veto the budget bills, Pemberton said.
Justice James Edmondson, another Henry appointee, said he could see how the Legislature intervening in compact fights could disrupt the governor’s ability to negotiate, but he questioned whether lawmakers should feel compelled to step in at some point.
“If the Legislature perceives the failure of the executive to faithfully execute the responsibilities that have been given, does not the Legislature have the duty to act?” he asked Pemberton.
Drummond, who sided with the legislative leaders in the hearing, argued the Supreme Court had already ruled on the governor’s compacting authority.
This is not the first time Stitt and legislative leaders have clashed in the courtroom. Treat and McCall previously sued Stitt twice over gaming compacts he inked with some of the state’s smaller tribes. The Oklahoma Supreme Court ruled in favor of the legislative leaders in both cases, and said Stitt overstepped his authority by signing compacts that violated state law.
Drummond also argued Thursday the Governor’s Office failed to prove the state’s constitution prohibits the Legislature from compacting with the tribes. Stitt doesn’t have the exclusive authority to compact, he said.
He noted Oklahoma’s founders intentionally created a weak executive branch and vested more authority with the Legislature because they didn’t trust one elected official with a significant amount of power.
“The governor confuses his executive role with that of the United States president, but our constitutional government created a decentralized Oklahoma executive branch,” Drummond said.
Justices asked Drummond and Coffee questions about whether the Legislature compacting with tribes could interfere with the governor’s ability to negotiate with sovereign nations.
Justice Dana Kuehn, a Stitt appointee, compared the situation to a child who wants something appealing to their more lenient parent.
Drummond and Coffee both emphasized that the Legislature has not stripped Stitt of his ability to negotiate compacts with the tribes. Facing the prospect of a decrease in state revenue due to expired compacts, lawmakers simply extended the compacts for a year, giving the governor more time to make a deal.
“The governor is uniquely and perfectly equipped to negotiate on behalf of the state, but he did not, and the time ran out,” Drummond said.
Stitt has had a rocky relationship with the tribes since he unsuccessfully tried to renegotiate state-tribal gaming compacts.
There is no timeline on when the Supreme Court could rule in the case.
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