ObamaCare, initiative care, and half a million: A tale of two Drews

By Patrick B. McGuigan

Published: 21-Jul-2010

On June 10, 2009, the state of Oklahoma quietly paid attorneys for initiative petition activists $140,000 for legal fees incurred in a successful challenge to requirements that only state residents can circulate initiative petitions.

That expense was in addition to what a knowledgeable observer has estimated was a total of $500,000 in costs related to prosecution of three prominent initiative campaign activists, in actions dating back to 2005.

The $140,000 fee and the estimated other costs all flowed from decisions made by Attorney General Drew Edmondson.

In response to CapitolBeatOK’s questions this spring about the $140,000 payout, Edmondson spokesman Charles Price said, “The case … was a challenge to Oklahoma’s initiative petition law. The plaintiff challenged the constitutionality of the statute. The ‘six-figure settlement’ actually involved the attorney fees and costs the state was ordered to pay after losing the case.”

Price further explained, “Plaintiff’s counsel submitted fees and costs of more than $257,000. Our office was able to negotiate that down to $140,000.”

Oklahoma’s state attorney general went to the wall in defense of a legal provision that multiple analysts predicted would fail to withstand legal scrutiny.

In contrast, throughout the past year, Edmondson has repeatedly expressed reluctance to pursue litigation to oppose the new federal health care law. In doing so, he pointed to cost factors as among his considerations.

When he chose not to join other states in opposing what conservative critics have called “ObamaCare,” Edmondson said, “It is our determination that the state’s limited resources should not be expended in attacking” the law. Another source quoted him saying, “It is our determination that the resources of the attorney general’s office should not be expended.”

Edmondson told the Tulsa World a lawsuit against the federal health care law would be fruitless and costly. As Barbara Hoberock reported, the attorney general believed lawmakers needed to “fish or cut bait” when it came to a resolution that was pending at the time, which was intended to direct him to file a lawsuit challenging federal health-care reform.  (The measure was later revised to allow legislative leaders to pursue their own litigation, but that approach was vetoed by the governor.)

Ultimately, some Democrats at the Capitol echoed Edmondson. State Rep. Wallace Collins of Norman said it did not make sense to apply limited funds to pay for a “frivolous lawsuit that we know we’re going to lose.”

Edmondson had a different view of the ultimately costly effort to enforce, and then to defend, a state provision limiting the initiative process. He took a variety of steps to restrain libertarian-leaning initiative ballot campaigns over a half-decade. Costs were incurred in efforts to stop a controversial spending limitation and the initiative petition campaign that went with it, and a subsequent petition drive seeking term limitations for various public officials.

In October 2007, Edmondson filed criminal charges against Paul Jacob, formerly of U.S. Term Limits and now head of Citizens in Charge, Rick Carpenter of Oklahomans in Action and Susan Johnson of National Voter Outreach, an initiative petition-gathering firm.

Carpenter ran the 2005 campaign for the Taxpayer Bill of Rights (TABOR). Jacob and Johnson supported that effort, in keeping with their advocacy for limited government and spending restraints. Johnson’s firm used professional petitioners who established state residency in a manner consistent with past initiative drives (including the anti-cock fighting measure). Jacob, Johnson, Carpenter and their allies even consulted with state officials to keep operations within existing guidelines.

After petitioning was completed, Edmondson’s office asserted it was all a sham and brought criminal prosecutions against the three. When they were arraigned, Jacob and his allies were handcuffed. If he had been convicted, Jacob could have faced 10 years in prison and up to a $25,000 fine.

The prosecution and handcuffing drew national condemnation, including editorials in The Wall Street Journal. In the case as it unfolded, a full-fledged preliminary hearing was never completed to determine if enough evidence existed to go to trial. Edmondson’s office delayed court dates in July and November 2008, but not because the criminal case was getting stronger. Besides the Journal, other critics of Edmondson’s prosecution included Pulitzer Prize-winning writer Paul Greenberg and Ralph Nader.

In Oklahoma City, at a gathering of grass roots initiative and referendum activists in late 2008, Edmondson’s criminal prosecution of supporters of the TABOR spending limitation initiative drew highly critical attention. This writer was among those who called for Edmondson to drop his criminal prosecution of the trio, who had become known as “the Oklahoma Three.”

Most courts up to that point had found residency requirements legally deficient. For Oklahoma, part of the Tenth U.S. Circuit Court of Appeals, the issue headed toward resolution in the case of “Yes on Term Limits vs. Savage.” (Susan Savage, secretary of state, was the constitutional officer sued in her official capacity, not Edmondson.)

Regardless of the core issue of the constitutional dubiousness of residency requirements, most analysts, including this reporter, had concluded defense of residency requirements – when it came to petition activists — were more appropriately a civil, rather than criminal, issue.

On that basis, Edmondson was frequently encouraged to drop charges against the “Oklahoma 3.”

Still, in early proceedings here in Oklahoma City, Edmondson prevailed. He claimed those he tagged non-resident circulators had made “a mockery of the initiative petition process.” In September 2007, an Oklahoma federal judge found in Edmondson’s favor, but as the case moved up the legal food chain, its prospects worsened.

Edmondson in December 2008 told The Journal Record, an Oklahoma City business newspaper, “If the courts determine that the state’s process violates the First Amendment, so be it. Until that time, our law will be enforced.”

It wasn’t long before the appeals court in Denver did rule, and Edmondson lost the argument over residency requirements.

Citizens in Charge Foundation, Jacob’s national initiative rights advocacy group, applauded the 10th Circuit Court of Appeals 3-0 ruling that Oklahoma’s law requiring that petition circulators be residents of the state violated the First Amendment rights of citizens.

“We have long argued that residency restrictions are unconstitutional violations of the First Amendment rights of citizens to petition their government,” said Jacob, president of the Foundation. “The impact of these laws is to reduce the number of people available to help Oklahomans speak out politically.”

The decision, Yes on Term Limits v. Savage, joined the 9th Circuit’s decision in Nader v. Brewer and the 6th Circuit’s ruling in Nader v. Blackwell. All three circuit court decisions were unanimous in overturning residency laws for petitioners. The result in all three proceedings was widely predicted in advance.

“Circulating petitions is the only job in politics facing these legislative restrictions,” Jacob pointed out. “Campaign managers, lobbyists, advertising executives, and others can be from outside the state, but not petition circulators. Why not? The reason is clear: legislators don’t like petitions because they allow citizens to get around those same legislators.”

Yes on Term Limits Inc. sought relief from Oklahoma’s law to allow them to begin a ballot drive using circulators from both within and outside the state of Oklahoma.

“Only an Oklahoman can propose a petition, only Oklahomans can sign that petition, and only Oklahomans can vote on any measure proposed by petition,” Jacob argued. “But Oklahomans should be allowed to hire anyone they choose to carry their petition.”

Addressing his own situation, Jacob continued, “This decision also impacts the criminal prosecution of the Oklahoma 3. We did not violate this law, but now we know that the law in question is unconstitutional. Mr. Edmondson should end his politically-motivated prosecution, which has had a terribly chilling effect on Oklahoma citizens wanting to petition.”

Jacob’s group, Citizens in Charge, is a national group that works to educate citizens and opinion leaders on the importance of the voter initiative and referendum process, and litigates to protect initiative rights. Neither Citizens in Charge Foundation nor Paul Jacob were direct party to this litigation. However, Jacob was an interested party, due to the still-pending criminal charges he faced.

Edmondson asked the full Tenth Circuit court to rehear the case. Not a single member of the court agreed to Edmondson’s filing. On January 21, 2009, the end of the Sooner State’s residency requirements for petition circulators – which Jacob and the others insist they never violated, in any case – was secured.

Lawyers for the winners in the Oklahoma appeals litigation sought attorney’s fees from the loser – the state of Oklahoma. That laid the basis for the payout last year, described above.

Concerning the line of cases, a source familiar with the situation said, in a memorandum obtained by CapitolBeatOK, it would be surprising if internal costs and attorney time on the civil side for the attorney general’s office fell below $200,000. Adding in the criminal time, the source said, this was likely a half-million dollar cost to Edmondson’s office.

Note: CapitolBeatOK Editor Patrick B. McGuigan is the author of “The Politics of Direct Democracy: Case Studies in Popular Decision Making” (1985). For a decade, he was editor of The Initiative and Referendum Report, then the nation’s leading source of information on the politics of initiatives, referenda and recall. This month, McGuigan will be a panelist at the 2010 Global Forum on Modern Direct Democracy at the University of California, Hastings School of Law, in San Francisco.