OKMULGEE, Okla. – Oral arguments were held via a Zoom meeting at the Muscogee Creek Nation Supreme Court on Feb. 21 in SC-2024-05 In the Matter of the Constitutionality of NCA 24-077. The oral arguments in this case had previously been scheduled for Jan. 10, but had to be rescheduled due to weather.
The MCN SC order setting oral arguments contained the stipulation,“All audio or video recording, photographs, and/or reproductions of the Virtual Meeting and Oral Argument are strictly prohibited.”
Mvskoke Media contacted MCN SC Clerk Connie Dearman for permission to restream or utilize any of the audio or video of the oral arguments, which was denied.
The Mvskoke Media Editorial Board was consulted on how to proceed with coverage. The board decided that the best course was to follow the MCN SC order and not publish any audio or video from the livestream.
These oral arguments were livestreamed to the MCN SC’s facebook page on Feb. 21 and remained on that page until the end of the day at which time they were removed.
At least one local radio news outlet in Tulsa broadcast coverage of the oral arguments that featured recordings of audio from the MCN SC livestream. Mvskoke Media contacted the MCN SC to determine if any legal action will be taken as it appears that the court order was violated.
MCN SC Clerk Dearman responded via email that the court had not granted permission to anyone to reproduce any part of the oral argument. Mvskoke Media did not receive any confirmation from Dearman that the participants in the oral argument could be quoted in text.
According to Dearman, the court had determined that Demario Solomon-Simmons, an attorney representing Grayson and Kennedy, had posted a video of the oral arguments to the Justice for Greenwood Foundation’s Youtube page. Solomon-Simmons is listed as the Executive Director and Chairman of the Board for the foundation.
The MCN SC issued an order to Solomon-Simmons for him to remove the video before Noon Feb. 25. Mvskoke Media could not locate any video of the oral arguments on the foundation’s youtube channel as of Feb. 25.
Dearman was asked if the order directed at Solomon-Simmons would be made available on the MCN SC’s website.
According to Dearman,
“The Court typically only posts the major party briefs, any Order setting a hearing/oral argument, and the final Order and Opinion disposing of the case to our website. All other court filings may be obtained (in any case that’s not sealed) by purchasing copies at our filing window. This is a filing that would typically not be posted to the website under those parameters. The website posting policy was approved by the Court.”
Since the order setting oral arguments states any “reproductions” of the oral arguments are prohibited, Justices and counsel will not be quoted here in text. Mvskoke Media has asked the court for clarification on whether transcriptions of the oral arguments are subject to the order’s prohibitions, but has not received a response.
SC-2024-05 seeks to determine the constitutionality of NCA 24-077. NCA 24-077 is a law that gives the MCN National Council and Principal Chief the ability to appoint temporary MCN Supreme Court justices when seated justices recuse themselves from cases.
According to the National Council and Principal Chief David Hill, NCA 24-077 was enacted to ensure that there would always be seven justices hearing any case, and thus ensuring a four justice majority on all future opinions.
MCN Code Title 27 § 3-101 (codified from NCA 82-30) states that a “judgment or decision of the Supreme Court requires the approval of a minimum of four justices.” However, later MCN SC decisions had issued determinations that only a majority of seated, un-recused justices were constitutionally necessary to issue a decision. If justices recuse themselves, the case would continue to be heard with the remaining judges.
NCA 24-077 was passed and signed into law after two justices recused themselves in a related MCN SC case, SC-2023-10, Citizenship Board of Muscogee Creek Nation v. Grayson.
SC-2023-20 is currently stayed until a decision is issued in SC-2024-05.
After the passage of NCA 24-077, one of the temporary justices appointed to the Grayson and Kennedy case was former National Council Rep. James Jennings. Mvskoke Media’s Lawyer’d Up Youtube program covered NCA 24-077 and showed an excerpt Jennings prior Meet the Candidate video where he was asked about his opinion on the Grayson case, also known as the freedman case.
During his interview Jennings was asked about his position on the freedman case.
“My opinion on the Creek freedman case is that, if elected, I will support and defend the Muscogee Creek Nation constitution which states it’s by blood,” Jennings said.
July 8, 2024, Kennedy and Grayson filed a motion challenging the constitutionality of NCA 24-077 and petitioning the MCN Supreme Court to assume original jurisdiction.
The court assumed jurisdiction on Sept. 5.
During the oral arguments, attorney Jana Knott appeared on behalf of the petitioners Jeffery Kennedy and Rhonda Grayson. Knott challenged the constitutionality of NCA 24-077 on three main points.
According to Knott, NCA 24-077 defies the plain language of Article VII, Section 2 of the MCN constitution. Article VII, Section 2 dictates that the MCN SC shall be composed of 7 justices whose terms are 6 years, and require a vacancy for the nomination process to be triggered. Knott pointed out that, according to prior MCN SC rulings, a recusal is not a vacancy, as the justice who recused themselves is still a seated justice. In addition, since this process is dictated by the MCN constitution, according to Knott the process cannot be changed by legislation, only by a constitutional amendment. Chief Justice Andrew Adams III asked Knott what she believed would happen in a scenario where 5 justices had to recuse. Knott responded that, while inconvenient, the constitution does not have any language that allows for the appointment of special justices.
Knott also asserted that NCA 24-077 violates the separation of powers doctrine. Knott pointed to prior MCN SC rulings, such as the Judge Patrick Moore case, which ruled that the court will not tolerate the National Council or Executive Branch attempting to influence the functions of the judiciary through legislation. Knott asserted that NCA 24-077 will produce distrust in MCN SC rulings.
Finally, Knott outlined how NCA 24-077 infringes on the due process rights of litigants appearing before the MCN SC. Prior MCN SC rulings dictate that litigants in the court have the due process right to have their issues heard by a fair and impartial tribunal. Knott also pointed out that the United States Supreme Court has ruled that an improperly constituted tribunal lacks judicial authority to render a lawful judgement. Knotts reasoning is that special justices appointed by the process in NCA 24-077 would result in an improperly constituted tribunal, and any ruling issued by said court would be “void ab initio”, a legal term meaning invalid from the beginning.
According to Knott, because there is no vacancy on the court, the special justice is not a constitutionally appointed justice, due to article VII’s seven justice requirement. Chief Justice Adams pointed out that the Nation could simply amend the constitution to address this problem to which Knott agreed. Knott pointed out that several other states and tribes have constitutional provisions which give the Chief Justice of the court the ability to appoint a special justice.
Kyle Haskins represented the MCN National Council. A good portion of Haskins’ opening arguments derided statements made by Solomon-Simmons in the media. While Haskins was reiterating that the MCN NC had followed the correct procedures to pass NCA 24-077, he was interrupted by Chief Justice Adams who directed Haskins to spend more time addressing the legal issues at hand, in particular the arguments that had been put forth by Knott.
Haskins stated that the prior MCN SC decisions that the court could rule on cases when justices recuse were made out of necessity. He reiterated that NCA 24-077 was the proper way to address the situation. According to Haskins, NCA 24-077 was not presented with the intention of influencing the MCN SC. Haskins implied to the court that prior or future decisions made by the MCN SC with less than seven justices might not survive federal scrutiny and could be the subject of future Indian Civil Rights lawsuits.
Haskins stated that NCA 24-077 preserves due process for litigants. Chief Justice Adams raised concerns about changes to habeas corpus procedures in NCA 24-077 that require seven justices to hear habeas corpus arguments. A writ of habeas corpus is a legal filing which requires a prisoner or other detainee to appear before the court to make a determination if their detention is lawful. Chief Justice Adams asked Haskins if he could address the possibility that a litigant with a legitimate habeas corpus concern could sit for an undue amount of time while the MCN NC and Executive Branch try to confirm a special justice in the event of a recusal.
Haskin replied that he did not see anything in NCA 24-077 that would introduce delay or compromise the due process rights of a criminal defendant. Chief Justice Adams pressed Haskins as to whether it was legally possible that such a scenario could happen and Haskins agreed that it was.
Justice Richard Lerblance wanted clarification from Haskins on how section C of NCA 24-077 changes the process from the current procedure, given the section states that if no special justice is appointed in 90 days then the case will be heard by the remaining justices. Haskins agreed that in that scenario the process would remain the same as before the passage fo NCA 24-077. Justice Lerblance questioned Haskins on why that provision was included in the law. Haskins deferred the response to Chief Hill’s attorney, because the Executive branch was the author of the law. Haskins reiterated that NCA 24-077 was passed out of fear of federal scrutiny of decisions issued by the court.
Justice Kathleen Supernaw asked Haskins if he could cite any cases where tribal court decisions were overturned at the federal level due to the tribal court not being constitutionally fully seated. Haskins stated that he had not found such a case. Chief Justice Adams stated that it was his understanding that there are other tribal courts that have guidelines that in the event that the tribal supreme court issues an evenly split decision that the lower court’s ruling is automatically upheld. Haskins concurred that that was the case in other tribal court systems. Chief Justice Adams asked if federal courts operate under that same premise. Haskins agreed they did. Chief Justice Adams asked Haskins to explain his arguments related to sovereign immunity claims. Haskins replied that since the freedmen appellants were not citizens of the Muscogee Creek Nation, they had no standing to bring the action before the court. Haskins stated that he disagrees with the MCN District Court decision in the freedman case.
Chief Justice Adams pointed out that article VII of the MCN constitution does not include specific language giving the National Council the ability to legislate the structure of the court. Chief Justice Adams asked Haskins to elaborate on how NCA 24-077 works with the current construction of the constitution. Haskins stated that the Executive branch has the right to propose legislation to protect the rights of litigants and the duty of the National Council to enact legislation that benefits citizens of the Nation, and in his opinion this is the proper separation of powers.
Chief Justice Adams asked what would happen in a scenario where the Judicial branch promulgates rules that are later changed by legislative action by the Executive and Legislative branches. Haskins stated that as long as the courts rules were constitutionally created they would control, but asserted that no such rules currently exist. Chief Justice Adams asked about the current court rules that allow decisions of less than seven justices, which later MCN SC decisions rely on. Haskins replied that in his opinion, these rules were not born out of the rule of law but necessity. His opinion was that the Ellis decision that established the rules was incorrect.
Rod Wiemer represented the Principal Chief David Hill in the oral arguments. In his opening statements, Wiemer disagreed with the framing of the case as a separation of powers issue. He asserted that the MCN NC and Executive branch were exercising their constitutional powers when they passed NCA 24-077 and seated the special justices. He argued that these actions did not interfere with the constitutional authority of the Judicial branch.
Weimer asked the court to find the action non-justiciable under the political question doctrine. His reasoning is that the court action infringes on essential executive and legislative functions of the Nation. He outlines these impacted functions as the power to pass legislation, nominate and confirm judges, and intrusion into the National Councils internal proceedings. Weimer stated that for these reasons the court should find the case non-justiciable.
If the court failed to determine that the case is non-justiciable, Wiemer asserted that NCA 24-077 is constitutional. He pointed to a prior MCN SC ruling in Cox v Childers that stated that the MCN SC must interpret the wording of the constitution strictly and not change the meanings of the words used. Chief Justice Adams asked how Wiemer responded to Knotts argument that a recusal does not equate with a vacancy. Wiemer stated that there are several jurisdictions that allow special judges to fill in for appellate judges. He stated that the appointment of a special justice under NCA 24-077 would not be adding a judge to the number of MCN SC justices. Wiemer used the Oklahoma Supreme Court as an example where the number of justices is determined by the Oklahoma constitution, but later statutes established a system for the appointment of special justices.
Wiemer addressed earlier concerns raised by Justice Lerblance about section C of NCA 24-077. He stated that he had prior experience with cases appearing before the MCN SC involving the Executive branch and the Legislative branch on opposing sides. In this situation it was possible that both branches would not be able to agree on a judicial appointment in the case of a recusal. Justice Lerblance asked if the preexisting rules for recusal were valid and the best way to operate the court. Wiemer hesitantly agreed, with the stipulation that that would be the case if no special justices could be appointed.
Justice Lerblance questioned why, if a special justice could not be appointed, would the recusal rules revert to the process used before NCA 24-077. Wiemer stated that this would be out of necessity, in case it was impossible to have seven justices hear the case and still have the court be able to issue a decision.
Chief Justice Adams asked if Wiemer could cite any case since the amendment of the MCN Constitution to establish seven justices on the MCN SC where the court could not comply with the four justice minimum rule for decisions. Weimer cited the MCN SC case concerning the extended term of office of Judge Patrick Moore.
Chief Justice Adams pointed out to Wiemer that case occurred prior to the amendment of the constitution to establish seven justices on the MCN SC.
Wiemer replied that there has not been a case that has been decided by less than four justices since the constitutional amendment.
Chief Justice Adams asked if the seven justice amendment had addressed the concerns about the four justice rule for MCN SC decisions. Wiemer asserted that the purpose of the amendment was to ensure that there would not be tie votes. Chief Justice Adams asked if Wiemer had any legislative history or evidence that could illustrate that conclusion. Wiemer stated that he had personally participated in the constitutional process during Principal Chief A.D. Ellis’ administration, and that he also handled the Trepp case on behalf of the Nation. Chief Justice Adams reiterated that he was asking for citations, not personal recollections as Wiemer was not a fact witness in the case. Wiemer replied that there is no legislative history with regard to the seven justice constitutional amendment.
Wiemer’s arguments returned to MCN SC decisions made before the seven justice amendment to the constitution, which led Chief Justice Adams to ask if this line of argument had already been discussed earlier and resolved that there had not been a decision issued by less than four justices since the amendment.
Chief Justice Adams asked if a reasonable person could conclude that NCA 24-077 was an attempt to fix something that wasn’t broken. Wiemer responded that NCA 24-077 was passed because the recusal of two MCN SC justices raised the possibility of a three to two decision by the MCN SC. Chief Justice Adams asked if a potential outcome was a credible analysis under rightness for Wiemers assertion that the issue was non-justiciable. Wiemer reiterated that the possible three to two decision in the freedmen case, as well as the possibility of the same result in other cases, was the motivation for the passing of the law. Chief Justice Adams asked what other case Wiemer was referring to. Wiemer stated that it could be any case where a different number of judges would decide the case. He stated that this was unfair and that NCA 24-077 leveled the playing field for all litigants.
Chief Justice Adams asked Wiemer why the Judicial branch was written out of the process in NCA 24-077. Wiemer pointed to prior MCN SC decisions where Chief Justice Adams had stated that the court could not participate due to ethical concerns. Wiemer also asserted that since the process in NCA 24-077 mirrors the constitutional process for the appointment of MCN SC judges, it is also constitutional.
Chief Justice Adams then asked Wiemer to address the habeas corpus concerns previously discussed with Haskins. Wiemer stated that there is legislation to address those concerns that is waiting to be passed after the MCN SC decides the case. Chief Justice Adams asked if Wiemer was aware of any other jurisdictions that required judges to sit beyond ninety days due to the inability to seat special justices. Wiemer stated that the legislation to deal with that issue would require a lesser number of justices to hear habeas corpus matters.
Chief Justice Adams again asked if Wiemer was aware of any jurisdictions that had rules condoning the ninety day period and Wiemer stated he was unaware of any but that it was not an issue in this case, because the petitioners are not challenging the habeas corpus provisions of the law. Chief Justice Adams stated that Wiemer seemed to be implying that the court could not evaluate the constitutionality of the habeas corpus provisions in NCA 24-077. Wiemer responded that there were not habeas corpus provisions in NCA 24-077. Chief Justice Adams asked if subsection A of NCA 24-077 references habeas corpus. Wiemer apologized and admitted that it does include writs of habeas corpus.
In closing Wiemer pointed out that the National Council has previously passed legislation in relation to the MCN SC, in one instance to add additional requirements to supreme court justices in addition to the constitutional requirements. Wiemer pointed out that a MCN SC decision had upheld these additional requirements as constitutional.
Knott presented three points on rebuttal. She asserted that the issue before the court was not a non-justiciable political question, because the duty of the court is to review the actions of the legislature and if necessary declare them unconstitutional.
Knott stated that the MCN constitution does not give the National Council the authority to legislate the Judicial branch. Knott argued that even though there has been legislation enacted that dealt with the Judicial branch, that did not mean that those laws were constitutional.
Knott also addressed Wiemer’s prior use of the Oklahoma Supreme Court and constitution as an example. Knott pointed out that the Chief Justice of the Oklahoma Supreme Court is given the authority to appoint special justices by the Oklahoma Constitution, not Oklahoma statute.
Knott closed by pointing out that a basic principle of constitutional law states that a party to a case cannot pick the judge who will decide their case, because that is inherently unfair. Knott posits that since the MCN Citizenship Board, which is part of the Executive branch, is a party to the freedman case, the Executive branch should not be allowed to determine the judges who will hear the case.
Haskins’ rebuttal focused on James Jennings comments concerning the freedman case. Haskins stated that the comments were taken out of context, and since they consisted of upholding the constitution and mirrored his oath of office, they were not evidence of his inability to be impartial.
Justice Lerblance asked if Haskins was implying that Jennings has stretched the truth because Jennings was running for political office. Haskins disagreed with that characterization of the remarks, and stated he believed Jennings’ statements were accurate. Justice Lerblance pointed out that the oath of office would require Jennings to swear to be fair and impartial, which would be difficult considering his public statements. Justice Lerblance pointed out that people who have made similar public statements are excused from the jury in court proceedings. Haskins conceded that point, but stated that he believed that each individual judge would have to make a personal decision if he or she could be impartial. Haskins admitted that it was possible that Jennings or any other special justice might be appointed and afterwards decide that they must recuse from the case they were appointed to hear.
Chief Justice Adams pointed out that the appointment process for federal judges consists of review of the appointees prior statements, articles and social media posts, to determine if the appointee is able to be impartial. Haskins agreed and stated that the special justices appointed to via NCA 24-077 were subject to the same type of review but recusal decisions are up to the individual justice.
Justice Supernaw asked if Haskins found it problematic that a party to the litigation is now selecting a judge that is going to have a say in the decision of the case. Haskins stated that there were two options, do nothing, or try to secure the rights of litigants so that the decision in the case would pass federal review. Judge Supernaw asked if the passing of NCA 24-077 would be grounds under federal review to reverse a decision. Haskins stated that if that were to happen, it would be addressed at that time.
Wiemer utilized his rebuttal time pointing out that the MCN SC had previously ruled that the MCN NC could legislate other branches of government, specifically the Executive branch and requirements for MCN SC justices. Wiemer referenced the Ellis decision by the court, which stated that a legislative fix was needed to fix the contradictions in the 1982 judicial code. Wiemer quoted the dissent in that case by Justice Leah Harjo-Ware that in her opinion decisions should have always been made by six justices with four justices in agreement. Wiemer asserted that NCA 24-077 fixes this problem.
Justice Harjo-Ware confirmed that she had indeed made those statements in her dissent. Justice Harjo-Ware asked why, in light of the fact that the court has continued to operate without issue since the Ellis decision, there was the need to fix something that wasn’t broken. Wiemer stated that it is because the legislature disagreed with the MCN SC decision in Ellis.
Justice Supernaw asked if Wiemer believed it was fair for a party to the litigation to be able to appoint a justice in the case. Wiemer stated that it was as fair as the process used to appoint all the currently seated justices hearing the case. Justice Supernaw pointed out that the justices were all appointed and confirmed before the litigation began. Wiemer stated that he agreed, but asserted that you can’t have a recusal unless litigation is ongoing, and so you can’t appoint a special justice unless litigation is ongoing.
Chief Justice Adams closed oral arguments by stating that the court will be issuing an order of notice that the decision will be taking more than ten days to be rendered. He assured the parties that the court will work expediently to issue its ruling.
Mvskoke Media will have ongoing coverage of this developing story.
