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Legislative leaders take legal action to protect states' rights

OKLAHOMA CITY – Legislative leaders on Thursday filed an action with the Oklahoma Supreme Court in response to a recent federal court motion by Gov. Kevin Stitt that poses significant risk to states’ rights and the Oklahoma Constitution’s separation of powers.

In a May 28 filing in a federal court case concerning tribal gaming compacts, Stitt asked a federal judge to rule on the Oklahoma attorney general’s recent determination that Oklahoma law does not authorize the governor to enter into tribal gaming compacts offering gaming activities that are prohibited by Oklahoma law, such as sports betting.

“Federal judges decide matters of federal law, not matters of state law, and at issue is a matter of state law. Asking federal judges to decide a matter of state law is a dangerous intrusion into states’ rights,” said Senate President Pro Tempore Greg Treat, R-Oklahoma City.

To prevent the problematic legal precedent the executive branch’s request to the federal judge would create, legislative leaders asked the Oklahoma Supreme Court to step in and rule on the matter. 

“This filing is about much more than gaming compacts. It is a federalism filing to protect states’ rights and the rule of law,” said House Speaker Charles McCall, R-Atoka. “While we have all due respect for the federal courts, this is not a question for the federal courts to decide.”

The legislative leaders’ request for the Oklahoma Supreme Court to assume original jurisdiction on the matter would allow the question the executive branch asked of the federal judge concerning the governor’s authority under state law to be answered by the Oklahoma Supreme Court instead.

“The Oklahoma judiciary – not a federal judge – is the proper party to interpret Oklahoma laws. This is a basic, fundamental state right that must be upheld,” Treat said.

Treat and McCall made the filing jointly in their capacities as the elected leaders of each legislative chamber. 

“If Oklahoma cedes authority to a federal judge on this matter, it risks ceding to a federal judge on any other state matter. I am confident that this was not the governor’s intent, but we cannot allow that to happen. The federal government has already usurped too many issues that belong at the state level. This is a chance to protect power ‘reserved to the States’ and stand up for the sovereignty and authority of all areas of Oklahoma state government,” Treat said.

The legislative leaders’ filing states that “the Governor’s authority to negotiate and bind the state to his Agreements is a state law question” and asks the Supreme Court to take up the matter.

“We did not want to take this action, but it was a necessary response to prevent a problematic precedent from being set,” McCall said. “The filing is not about any individual or any issue other than protecting states’ rights, upholding our Constitution and setting proper precedents for those who serve the public today and in the future.”

Treat concurred.

“The executive, judiciary and legislative branches are three co-equal branches of government. When one of the branches acts outside its scope and authority, it is incumbent on the other branches of government to reign in and restore the balance of power in our system,” Treat said.

Treat and McCall requested an official attorney general’s opinion in April after the governor announced proposed gaming compacts with two tribal nations that contain sports betting and other provisions expressly prohibited by state law.

In Attorney General Opinion 2020-8 issued May 5, Attorney General Mike Hunter determined the governor “has the authority to negotiate compacts with Indian tribes but he cannot bind the state to any such compact if doing so authorizes activity prohibited by state law or would otherwise be contrary to state law.”

Gaming agreements the governor announced with two tribal nations in April include gaming activities that are expressly prohibited by state law, which prompted the attorney general to note in his official opinion that “the Governor can no more permit gambling prohibited by state criminal law via unilateral compact than he could agree to allow a Tribe to sell illicit controlled substances to members of the public in Indian country.”

On May 28, the governor asked for ongoing mediation between his office and several tribal nations in a federal lawsuit over gaming compact matters to be paused so the federal judge overseeing the case can rule on whether the Oklahoma attorney general’s opinion on the governor’s authority was correct.

The legislative leaders’ filing Thursday asks for that question of Oklahoma law to be posed to the Oklahoma Supreme Court rather than the federal judge. The filing can be viewed by clicking the links below:

Application to Assume OJ - Treat McCall v. Stitt.pdf

Brief in Support - Treat McCall v. Stitt.pdf