Commentary: Where’s the transparency? 


The United States political waters are getting pretty muddy right now. It’s getting a bit “swampy” in an area of the ocean that, to be fair, is never crystal clear, and sadly Oklahoma isn’t helping. The new head of the federal Environmental Protection Agency, who left his position as Oklahoma’s Attorney General in order to take the job, is being accused of lying to Congress based on recently released emails. 

With her recent Oklahoma Supreme Court Justice pick, state Gov. Mary Fallin is causing concern as to whether or not the Justice is even qualified to represent his district. Add in the Oklahoma Supreme Court’s most recent decision regarding further disclosure of Pruitt’s emails, and it feels as though life in President Donald Trump's administration is a different kind of “draining” than what he promised on the campaign trail.

Trump has a Secretary of Education with no experience in public education. He has a senior advisor who has no political experience (and who, as Trump’s son-in-law, may be appointed in violation of federal anti-nepotism laws). His newly confirmed Secretary of Energy is a man who would have eliminated the Department of Energy, if he could only have remembered what it was called.

Regardless, I hope it all works out well. Honestly, I want things to go great. I want the government to succeed and prosper. I want to get rid of all the appearances of impropriety and allegations that my country is underhanded in regards to notions of less than ethical political practices.

As such, I want there to be some transparency. I want the country’s elected, and appointed, leaders to be “see-through” as much as reasonably possible.

Consequently, when I read the Oklahoma Supreme Court’s recent decision to deny further release of former Attorney General Scott Pruitt’s emails, it hit me crossways. On one hand, I see the AG’s office wanting to protect the scope of the correspondence of its office and the person who ran it. That makes complete sense, especially in light of potentially confidential and privileged work-product these emails may contain.

Still, it bothers me that we won’t know the extent of Pruitt’s involvement with private oil and gas companies until weeks, and possibly months, after he has already been confirmed as head of the EPA. We won’t know the extent of any involvement for the foreseeable future, because the Oklahoma Supreme Court ordered an indefinite stay on the release of the emails as opposed to an order for the emails to be released within some definite time period.

Why does that bother me? The Oklahoma Supreme Court’s decision raises national eyebrows at a time when Fallin recently appointed 35-year-old attorney Patrick Wyrick to represent Oklahoma’s Second District on Oklahoma’s highest Court.

To be fair, there was an opening, and Wyrick got the job. He has served as solicitor general in the Oklahoma Attorney General’s office since 2011, working under Pruitt. Pruitt describes Wyrick as “a constitutional scholar well-versed in both state and federal law.

Fallin also pointed out that Wyrick “has litigated several significant constitutional law cases involving almost every frequently litigated provision in our state constitution.”

I don’t know the guy. I’ve listened to some of his United States Supreme Court arguments, and it seems like he has done his job trying to represent the state of Oklahoma in defense of some ridiculous laws. I understand that. I’m a criminal defense lawyer, so I play defense all day; the state of Oklahoma sues my clients for criminal liability, and I wholeheartedly go to bat for them. When someone, some group, or some agency sued the state of Oklahoma, Wyrick’s job was to defend Oklahoma’s decisions and legislation.

So, where is the issue with transparency?

Well, there is some concern that the Oklahoma Supreme Court Justice does not meet constitutional residency requirements for the district he is appointed to represent.

According to the Oklahoma Constitution:

Each Justice, at the time of his election or appointment, shall have attained the age of thirty years, shall have been a qualified elector in the district for at least one year immediately prior to the date of filing or appointment, and shall have been a licensed practicing attorney or judge of a court of record, or both, in Oklahoma for five years preceding his election or appointment and shall continue to be a duly licensed attorney while in office to be eligible to hold the office.

State Election Board data shows that Wyrick registered to vote in Atoka County, which is within the second district, on October 12, roughly two weeks before submitting his Application for Judicial Vacancy. Prior to that, he has voted in Cleveland County (Norman) since 2000.

This voter registration seems to contradict his application’s statement that he has lived in Atoka “since birth.” In fact, he contradicts that statement elsewhere in the application, listing prior residences in Norman, Broken Arrow, Moore and even Oklahoma City “from 2016-now.”

Some have argued other concerns with Wyrick’s qualifications, including the fact that he was admonished by United States Supreme Court Justice Sonia Sotomayor for contradictions in his arguments while representing Oklahoma over the use of midazolam as a death penalty drug.

Other critics point to a lack of courtroom experience, noting that Wyrick admits in his application that he has only taken one civil case to verdict on a bench trial and has never taken either a civil or criminal case to verdict before a jury. Also, he has never been a judge.

Regardless, Wyrick has been before the U.S. Supreme Court on multiple arguments. A supreme court justice doesn’t necessarily need a boatload of trial experience in order to get the job done, since the vast majority of the job consists of interpreting legal arguments and legal documents. Ironically, that could become the main issue for Wyrick though, as the real challenge to his validity will be overcoming the residency question, which may come down to a question of legal interpretation in and of itself. The ACLU has already filed suit challenging Wyrick’s appointment.

ACLU of Oklahoma says of the lawsuit, “Our suit is filed today on behalf of two residents of Oklahoma’s Second Court District, a Republican and a Democrat, who without a clear finding that Patrick Wyrick is indeed a resident of Atoka, believe they are left without their Constitutional right to representation on the Court.”

On March 7, the Oklahoma Supreme Court issued an opinion dismissing the ACLU’s lawsuit with prejudice.

And here we are, with Wyrick rightfully still appointed — and a Justice of the Oklahoma Supreme Court until and unless something changes — sitting on a court which just issued an indefinite stay on the release of his former boss’s emails. It just looks bad.

Should the Oklahoma Supreme Court have delayed further disclosure of Pruitt’s emails? Absolutely. There is nothing wrong with a delay to allow the AG’s office adequate time to review the records. In fact, it would be reckless to release them without some oversight. These emails contain mostly legal matters, and they should be held as confidential and protected until found otherwise. Oklahoma’s high court could have set a date for disclosure, and then allowed the parties to proceed accordingly. But that’s the problem. The Oklahoma Supreme Court issued an indefinite stay on the release of the emails until the court decides otherwise.

As such, everyone is left waiting in the dark. Why not just set a new date of compliance? Based on the recent developments, to do otherwise gives off a bad impression: a very negative impression that the Oklahoma Supreme Court surely did not intend, but an impression that the state of Oklahoma does not deserve. It looks muddy. It looks murky.

It’s not transparent.

Adam R. Banner is a criminal defense attorney in Oklahoma City who focuses on all stages of criminal defense, including plea negotiations, jury trials, and criminal appeals.

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Adam R. Banner

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