Leftwich v. Court of Criminal Appeals

REIF, J.,

dissenting.

T1 This case presents a direct and substantial conflict between the exercise of Constitutional Power by the Executive Branch and the exercise of Constitutional Power by the Legislative Branch. Resolution of such a conflict presents a matter of significant public interest. This Court should assume original jurisdiction in such cases. Coffee v. Henry, 2010 OK 4, 16, 240 P.3d 1056, 1058.

T2 The Executive Branch acting through the District Attorney for Oklahoma County has asserted that former State Senator Deborah Leftwich announced that she would not seek reelection in 2010, based on promises by State Representative Randall Terrill that he would (1) secure passage of legislation to create and fund a position in State government and (2) use his influence to secure her appointment to the position. The District Attorney alleges that Senator Leftwich accepted a thing of value for withdrawing as a candidate from the 2010 election for her Senate seat. The District Attorney contends such conduct violates 26 0.98.2001, § 16-108.

T8 In support of this charge, the District Attorney filed an affidavit with the District Court of Oklahoma County, setting forth statements attributed to Representative Ter-rill, Senator Leftwich, and other members of the Legislature, as the basis for probable cause to charge Senator Leftwich. The affidavit also informed the court that Senator Leftwich was a "candidate" for purposes of § 16-108 based on the definition of candidate set forth in 21 0.8.2001, § 187 and 74 O.S. Supp.2010, ch. 62, app., Ethics Commission Rule 257; 1-1-2.

14 Senator Leftwich asserts that the statements attributed to her, Representative Terrill, and other members of the Legislature, are privileged under Art. 5, § 22 of the Oklahoma Constitution. She also asserts that the acts and statements attributed to her and Representative Terrill and the totality of the matters set forth in the probable cause affidavit, do not constitute a violation of § 16-108 as a matter of law. Senator Leftwich contends the District Attorney is attempting to act in derogation of the constitutional privilege and in excess of lawful prosecutorial power. The record before the Court demonstrates that these assertions have merit and warrant relief from this Court.

T5 The fact that the parties have asked this Court to issue mandamus directed to the Court of Criminal Appeals does not control the relief available from this Court in deciding this public law issue. This Court is free to recast the proceeding to issue relief in the form of a writ of prohibition directed to the District Attorney. See Stewart v. Judge of the 15th Judicial District, 1975 OK 156, 17, 542 P.2d 945, 947. Additionally, neither the fact that the public law issues in this case arise in a criminal case, nor the fact that the Court of Criminal Appeals has declined to grant extraordinary relief, present any barrier to this Court's exercise of its constitutional power to consider a complaint that an executive officer is acting in excess of the constitutional authority of his or her office. Wiseman v. Boren, 1976 OK 2, 545 P.2d 758.

1.

T6 To be sure, the District Attorney's probable cause affidavit reveals determined intent and effort on the part of Representative Terrill to create and to fund by legislation the position in State government he promised to help Senator Leftwich obtain. The probable cause affidavit likewise reveals an expectation on the part of Senator Left-wich that Representative Terrill would not only work to pass this legislation, but would also help her obtain appointment to the position. Such self-interest on the part of a single representative and a single senator does not mean, however, that the position created and funded by the legislation was not in the public interest. The probable cause affidavit acknowledges that the legislation creating and funding the position was passed by the House of Representatives and the Senate. Notably absent from the District Attorney's probable cause affidavit are any allegations that Representative Terrill or Senator Leftwich offered a bribe to, or *755coerced any other member of the legislature to vote for the legislation in question.

T7 In order to prove that Representative Terrill and Senator Leftwich were motivated by self-interest and not acting in the public interest, the District Attorney seeks to examine, at a preliminary hearing, other members of the Legislature about their discussions with Representative Terrill and Senator Leftwich concerning the legislation. In addition, the District Attorney seeks to establish that "the last two weeks of the legislative session are chaotic" and that "legislators who want to include language in a bill that would otherwise be vetted out, include the language in the last two weeks of session because 'nobody can read the hundreds of bills they are voting on.'" Such impeachment of duly passed legislation is not only unheard of, it is directly contrary to the privilege set forth in Art. 5, § 22 of the Oklahoma Constitution.

T8 Article 5, section 22 contains two dis-tinet clauses. The first clause provides legislators a privilege from arrest, with some exceptions, during the session, and in going to and returning from the session. This clause is not relevant to the case at hand. The second clause states "for any speech or debate in either House [Senators and Representatives] shall not be questioned in any other place."

T9 This second clause is commonly called the speech and debate clause and protects not only the legislative function but the "informing function" of the legislative process as well. See State v. Nix, 1956 OK 95, 118, 295 P.2d 286, 289-90. The "informing function" is the "duty of a representative body to look diligently into every affair of government and to talk much about what it sees." Id. (quoting Woodrow Wilson, Congressional Government, p. 303). - In fulfilling this duty, the legislature and its members are to "seru-tinize [the affairs of government] and sift them by every form of discussion." Id. (emphasis added).

€ 10 The speech or debate clause provides a privilege that "enabl[es] representatives in the legislative branch of government to execute all of the functions of their offices without fear of any character of prosecution for what they say or do in the execution of the duties of their offices." Id. at T 16, 295 P.2d at 290 (citation omitted). The privilege makes legislators "immune from deterrents to the uninhibited discharge of their legislative duties, not for their private indulgence, but for the public good." Id. at 117, 295 P.2d at 289 (citing Tenney v. Brandhove, 841 U.S. 867, 377, 71 S.Ct. 788, 95 L.Ed., 1019 (1951)). This immunity shields all enactment-related conduct. Brock v. Thompson, 1997 OK 127, ¶ 14, 948 P.2d 279, 287.

T11 This Court has adopted the view of the United States Supreme Court that "(tlhe claim of an unworthy purpose does not destroy the privilege." Nix, 1956 OK 95, 117, 295 P.2d at 290 (quoting Tenney, 341 U.S. at 377, 71 S.Ct. 788). As the Nix Court interpreted the United States Supreme Court's decision: "The privilege would be of little value if [legislators] could be subjected to the cost and inconvenience and distractions of a trial ... or to the hazard of a judgment ... based on a [Judge's] speculation as to the motives." Id. This Court has similarly held that "Legislators may not be haled into court, either to account for acts that occurred in the course of the legislative process or for judicial inquiry into their motivation for those acts." Brock, 1997 OK 127, 114, 948 P.2d at 287 (footnote omitted).

112 This Court has adopted the view of the United States Supreme Court that, "Courts are not the place for ... controversies [over the motives of legislators]." Nix, 1956 OK 95, 117, 295 P.2d at 291 (quoting Tenney, 341 U.S. at 378, 71 S.Ct. 788). In cases of "dishonest or vindictive motives," the United States Supreme Court has said: "Self discipline [by the legislative bodies] and the voters must be the ultimate reliance for discouraging or correcting such abuses." Id.

€ 13 Statements by Senator Leftwich, Representative Terrill, and other members of the Legislature, made during the legislative session, that reveal nothing more than self-interest on the part of Representative Terrill and Senator Leftwich concerning the legislation in question are protected by the privilege provided by Article 5, § 22. Senator Leftwich, Representative Terrill, and the other members of the Legislature who are *756listed as witnesses on the State's "Information" cannot be questioned in any place outside the Senate or House regarding their statements and discussions bearing on the motives of any member of the legislature, including proceedings related to the criminal charge. Even statements by Representative Terrill and Senator Leftwich that reflect they were motivated by self-interest are subject to the privilege. To the extent their respective legislative bodies may determine such self-interest constitutes misconduct, or "dishonest motive," the only legislative remedy provided by the Constitution is for them "to answer" in their respective legislative bodies for such punishment or discipline as the legislative body may prescribe.

1 14 Senator Leftwich is entitled to relief from this Court to prohibit the District Attorney from using any statements protected by the speech or debate privilege in the prosecution of this matter and from questioning any members of the Legislature regarding the passage of the legislation in question.

IL.

15 In addition to seeking relief from unauthorized interference with the speech or debate privilege, Senator Leftwich has maintained the District Attorney is acting in excess of his authority by prosecuting her for a crime that it was legally impossible for her to commit. The District Attorney has charged Senator Leftwich with violating 26 0.9.2001, § 16-108. This statute makes it a felony for "[alny person [to] solicit or accept from another anything of value for withdrawing from any political contest as a candidate or nominee for any office at any election." Id. Senator Leftwich has asserted that she was not a "candidate," and her decision not to seek reelection was not "withdrawing from any political contest" as those terms are used in § 16-108.

116 The District Attorney's probable cause affidavit informs the court that 21 0.8. 2001, § 187 and 74 O.S. Supp.2010, ch. 62, app., Ethics Commission Rule 257: 1-1-2, provide a definition of "candidate" that Senator Leftwich meets by reason of her campaign fund activity. The probable cause affidavit states that Senator Leftwich's decision not to seek reelection would constitute withdrawing from a political contest in light of her campaign fund activity. Upon review of the text of section 187 and Rule 257: 1-1-2, and the origin of section 16-108, it is clear that the District Attorney's reliance on seetion 187 and Rule 257: 1-1-2 is misplaced.

17 Examination of the text of section 187 and Rule 257: 1-1-2 reveals no intent on the part of the Legislature to make the definition of candidate set forth therein a general purpose definition of the term "candidate." In fact, the opposite intent is revealed. Section 187 expressly states the definitions therein are "(als used in Sections 1 through 3 of this act" (ie, 21 00.98.2001 §§ 187-187.2). Rule 257; 1-1-2 similarly provides that "the following words or terms, when used in this title, shall have the following meaning."

18 Section 16-108 was enacted in 1974 as a provision in the Election Code, 26 0.8.2001, §§ 1-101 through 22-116. One of the express purposes of the Election Code, including section 16-108, is to regulate candidacy for public office in Oklahoma. The proper interpretation of section 16-108 presents a question of public interest beyond the Penal Code's general policy of deterring and punishing harmful conduct.

119 At the same time section 16-108 was enacted, and in the same Code, the Legislature specifically provided that a person becomes "a candidate for office ... only after he [or shel files a declaration of candidacy as hereinafter provided." 26 0.98.2001, § 5-101. The Legislature also originally provided that declarations of candidacy can be filed "no earlier than 8:00 am. on the first Monday after Independence Day." 26 0.98.2001, § 5-110. The Legislature amended § 5-110 in 2004 to read, "the first Monday in June." The Legislature further provided: "Any candidate may withdraw his [or her] candidacy only upon filing a written notice of withdrawal." 26 00.98.2001, § 5-115. The Legislature also amended § 5-115 in 2004, but did not change this requirement.

[ 20 At the time section 16-108 was enacted, the terms "candidate" and "withdraw" or "withdrawing" as used in section 16-108 referred to a candidate who had filed a declara*757tion of candidacy and who had likewise filed a written notice of withdrawal. The Legislature has expressed no intent that such terms should have any different meaning since the enactment of the Election Code other than to allow the filing period to begin on the first Monday in June. Given the general rule that criminal statutes must be strictly construed, it is impermissible for the District Attorney to go outside of the Election Code to find meaning of the terms therein, when the Legislature has not shown intent to do so.

121 Executive power to enforce the criminal law is limited to enforcement of the statutes as written. Executive officers cannot extend or supplement a criminal statute to cover a party or cireumstances that the Legislature did include within the language of the statute. The fact that a person can be a candidate for purposes of campaign finance regulation and oversight by the Ethics Commission, and not be a candidate for purposes of prosecution under section 16-108, is simply a lacuna in the statutory law to be addressed or corrected by the Legislature as it deems necessary.

122 The District Attorney's own sworn statement of the facts states that Senator Leftwich announced her intent not to seek another term for Senate District 44 on May 28, 2010. Because it was legally impossible for her to file a declaration of candidacy prior to 8:00 a.m. on the first Monday of June 2010, Senator Leftwich could not have been a "candidate" on May 28, 2010, for purposes of section 16-108 as a matter of law. Similarly, announcement of her decision not to seek another term could not have constituted "withdrawing" from a political contest for purposes of section 16-108 as a matter of law.

€23 Senator Leftwich is entitled to relief from this Court to prohibit the District Attorney from proceeding further against her on the charge of violating 26 0.8.2001, § 16-108, because she has no other adequate remedy to prevent her unlawful prosecution. ("The adequacy or inadequacy of a remedy [must] be determined upon the facts of each particular case ... but (the writ) will be granted where the remedy available is insufficient to prevent immediate injury or hardship to the party complaining, particularly in criminal cases." State ex rel. Wise v. Clanton, 1977 OK CR 45, ( 14, 560 P.2d 588, 591.)

124 The District Attorney's probable cause affidavit has demonstrated that Representative Terrill and Senator Leftwich acted in their self-interest with respect to the legislation in question. Such self-interest on their part or any other legislator may be unethical, morally wrong and even deserving of public condemnation, but it did not constitute the crimes for which they are charged. While the public interest is undoubtedly served by the exposure of such self-interest, exposure through an unfounded criminal prosecution and derogation of the constitutional speech and debate privilege is not the way to achieve such an end, and harms equally important public interests.