Fred Jordan's ineligibility: Rebutting Terry Simonson

Terry Simonson was on 1170 KFAQ with Pat Campbell this morning, arguing the case for State Rep. Fred Jordan's eligibility to be elected District Attorney. Simonson's LinkedIn profile indicates that he is the Director of Governmental Affairs for the Tulsa County Sheriff's Office and the President/Owner of Pathways Consulting & Government Relations, LLC.

(MORE: Assistant DA Steve Kunzweiler, who filed the petition to resolve the eligibility issue, called into KFAQ later Tuesday morning. Listen online at the link.)

Simonson assumed, incorrectly, that I looked only at statutory and constitutional language and not at case law in researching my article on the ineligibility of Fred Jordan to be District Attorney. In fact, every page of statute and constitution and court opinion on OSCN has links at the bottom of the page to cases and Attorney General opinions in which the provision is cited, so it's easy to see how courts have interpreted the law over the years. I've also had conversations with attorneys who have brought relevant cases and AG opinions to my attention.

There's no dispute about when Jordan's term expires. It's clearly set out in 14 O.S. 137 as November 19, 2014. The question is when the new DA would be considered elected.

Addressing Simonson's specific points:

1. Had Simonson read Steve Kunzweiler's petition before calling in, he would have seen that it was being brought to the District Court for Oklahoma County. The first paragraph states that venue is proper in Oklahoma County under 12 O.S. 133 and 12 O. S. 1653, as the case involves an official action of the Oklahoma State Election Board, which is situated in Oklahoma County. The State Supreme Court is not involved at this point.

2. This issue couldn't have been settled four weeks ago, because it only became an issue two weeks ago, on June 3, when Gov. Fallin signed HJR 1096, causing the emoluments of the District Attorney to increase. It was only at that point that Jordan and Crain officially became ineligible under Article V, Section 23. (When the measure passed the Senate on May 23, having already passed the House, Crain saw the handwriting on the wall and stepped aside.)

3. This issue doesn't affect State Rep. Joe Dorman, a candidate for Governor, because the bill in question did not increase the Governor's salary. In fact, HJR 1096 Section 3 amends 74 O. S. 250.4 subparagraph 1 to exclude the Governor's salary from increasing as a result of the increase in judicial salaries (the underlined language was added to the law by HJR 1096):

1. The Governor shall receive a salary equal to the salary received by the Chief Justice of the Oklahoma Supreme Court; provided however, the Governor shall not receive any increase in salary as a result of the provisions of Section 1 of this resolution;

The same section of the measure also explicitly excludes all other statewide elected officials from receiving a pay raise. The same sort of language could have been added to exclude District Attorneys from the pay raise, but it was not.

4. Simonson claims that the DA is not elected until the canvassing of votes by the Legislature after the organization of the House in January, after Jordan's term as a State Representative expires. He cited Gragg v. Dudley (1930 OK 280), which cites Article VI, Section 5. Article VI covers the state's executive officers, which are enumerated in
Section 1(A):

A. The Executive authority of the state shall be vested in a Governor, Lieutenant Governor, Secretary of State, State Auditor and Inspector, Attorney General, State Treasurer, Superintendent of Public Instruction, Commissioner of Labor, Commissioner of Insurance and other officers provided by law and this Constitution, each of whom shall keep his office and public records, books and papers at the seat of government, and shall perform such duties as may be designated in this Constitution or prescribed by law.

Nothing in Article VI deals with District Attorneys. Gragg v. Dudley involved a legislator seeking the office of Lieutenant Governor, which is listed by name in the above section as one of the state's executive officers.

Note that each of these officers, both explicitly listed and named by implication, is required by the State Constitution to "keep his office and public records, books and papers at the seat of government." The seat of government is specified in Article V, Section 26, as the place the Legislature is required to meet in regular session. In fact, the Gragg v. Dudley ruling cites that very provision. 73 O.S. 1 declares that "The seat of government and capitol of the State of Oklahoma shall be and is hereby established at Oklahoma City, in the county of Oklahoma, in the said state...."

Clearly, the District Attorney for District 14 (Tulsa County) does not keep his office, public records, books, or papers in Oklahoma City. At the time Gragg v. Dudley was decided, the office of District Attorney did not exist. There were County Attorneys in Oklahoma until 1967, when the district system came into effect, under which most DAs serve multiple counties. Despite that change, District Attorneys still have a significant connection to county government, as the office is created under Title 19 (Counties and County Officers), and the DA must provide legal advice and defense to county officers and employees in the conduct of their duties, while the counties provide the DA's office space, including utilities and maintenance.

The DA's offices are, therefore, in the county courthouses for the counties in his district. In District 14, there is one county, Tulsa, and one DA's office, in the Tulsa County Courthouse, not in Oklahoma City. District Attorney is, therefore, not an office covered by Article VI, and the requirements of Article VI, Section 5, cited in Gragg v. Dudley would not apply.

Note also that on our ballots, the District Attorney's race appears under "Legislative, District, and County Officers," along with the race for County Assessor and County Commissioner, and not under "State Officers."

Also, 26 O.S. 5-102 lists those offices for which candidates are required to file with the State Election Board, and district attorney is listed separately from state officers:

Candidates for United States Senator, United States Representative, state officer, State Senator, State Representative, district judge, associate district judge and district attorney shall file Declarations of Candidacy with the Secretary of the State Election Board.

While "state officer" is sometimes defined differently for the purposes of a specific section of the law, here, in the context of election, it must mean only the statewide elective offices, as legislators, judges, and district attorneys are listed separately.

5. 19 O.S. 215.20 says that the term of the District Attorney's office begins "on the first Monday of January following his election." Article V, Section 26, of the Constitution says (emphasis added)

The Legislature shall also meet in regular session at the seat of government on the First Tuesday after the First Monday in January of each odd numbered year, beginning at twelve o'clock noon for the purposes only of performing the duties as required by Section 5 of Article VI of the Constitution and organizing pursuant to the provisions of this Article and shall recess not later than five o'clock p.m. of that same day until the following first Monday in February of the same year, beginning at twelve o'clock noon.

If a District Attorney is not elected until January 6, 2015, as Simonson claims, his term of office could not begin until January 4, 2016.

6. So when is a District Attorney elected? For every office other than those listed in Article VI, a candidate is given a certificate of election by the appropriate election board -- state election board for legislative and district officers, county election board for county and municipal officers.

26 O.S. 8-103 says:

The county election board shall certify a list of successful candidates for county offices and shall provide Certificates of Election to the same following the General Election, except that Certificates of Election may be issued to unopposed candidates after 5 p.m. on the second day following the close of the filing period. The State Election Board shall certify a list of successful candidates for offices for which the Board accepts filings of Declarations of Candidacy and shall provide Certificates of Election to the same following the General Election, except that Certificates of Election may be issued to unopposed candidates after 5 p.m. on the second day following the close of the filing period.

According to 26 O.S. 8-108, those certificates would be issued at 5 p.m. Friday after the general election, barring any contest that would affect the DA's race. Since the last possible vote in the DA's race will happen on August 26, any recounts and contests will have been resolved long before November 7 at 5:00 pm, when the State Election Board will issue a certificate of election, 12 days before the end of Jordan's term as a member of the State House.