Attack on the independent judiciary

[Gaspar]

Don't forget, liberals know what is best for everyone. Arguing only proves to them that they are above you, primarily because you refuse to to accept their superiority.

[RecycleMichael]

Don't forget, liberals know what is best for everyone. Arguing only proves to them that they are above you, primarily because you refuse to to accept their superiority.

You have learned well.

[heironymouspasparagus]

Yeah, I f'd up. I hope I got it straightened out. To your post, I am not from this state. My wife was living here and was in the military when I met her. We moved here in 1996, when I attended TU and later she went to med school. The most important thing I learned whenever I moved to a new state (and I have done it a few times) was to accept the fact that I chose to live in that state because of what it had to offer me--not what I could do to make it more like me. If that's the case, I would never have moved from my childhood home. 

Oklahoma has lots of faults, but the one constant I appreciate is that the hearts of the people that I know are in the right place. God-fearing, giving, welcoming, and tending to look out for one another. These people make up the 76% of the people that, for good or bad reasons, oppose gay marriage.
 

You are the exception to that 'moving to a state and trying to change it thing'.... there are a LOT of immigrants in this state, and so many of them go to the place that I have talked about on the smaller scale - moving from Tulsa/OKC to the nearby small towns for the "ambiance" - and then bringing with them that which they moved to 'get away from'....  Owasso, Broken Arrow, Jenks, Bixby, Sapulpa, Sand Springs, et. al.

Oklahoma has lots of faults, but the one constant I appreciate is that the hearts of the people that I know are in the right place. God-fearing, giving, welcoming, and tending to look out for one another.  (Copied verbatim, since we agree pretty much right down the line on this...)

These people make up the 76% of the people that, for good or bad reasons, oppose gay marriage - not as much anymore.  Too often, the 76% (or whichever percentage it is today) is just the result of, at BEST, the desire to stick noses into other people's business.  At worst, it is the fundamentalist extremist position of the reactionary religious extremists who embrace the Old Testament like it were actually what Jesus said.  Except for that whole missing 'red letter' thing, where not only was it NOT said, but His real intent was expressed very differently in many direct red letter accounts.  Arnold Murray would be a good example of that, even if he is in Arkansas....he wants to just kill ALL "law breakers" - the old law - since we are prohibited from 'judging', get them in front of God as quickly as possible, so He can judge them....




 

[Conan71]

You are the exception to that 'moving to a state and trying to change it thing'.... there are a LOT of immigrants in this state, and so many of them go to the place that I have talked about on the smaller scale - moving from Tulsa/OKC to the nearby small towns for the "ambiance" - and then bringing with them that which they moved to 'get away from'....  Owasso, Broken Arrow, Jenks, Bixby, Sapulpa, Sand Springs, et. al.

Oklahoma has lots of faults, but the one constant I appreciate is that the hearts of the people that I know are in the right place. God-fearing, giving, welcoming, and tending to look out for one another.  (Copied verbatim, since we agree pretty much right down the line on this...)

These people make up the 76% of the people that, for good or bad reasons, oppose gay marriage - not as much anymore.  Too often, the 76% (or whichever percentage it is today) is just the result of, at BEST, the desire to stick noses into other people's business.  At worst, it is the fundamentalist extremist position of the reactionary religious extremists who embrace the Old Testament like it were actually what Jesus said.  Except for that whole missing 'red letter' thing, where not only was it NOT said, but His real intent was expressed very differently in many direct red letter accounts.  Arnold Murray would be a good example of that, even if he is in Arkansas....he wants to just kill ALL "law breakers" - the old law - since we are prohibited from 'judging', get them in front of God as quickly as possible, so He can judge them....

Or quite simply, those 76% in 2004 were misinformed by the campaign for such a law. Many people take what is thrown at them in the first few words of press releases and commercials as the entire story.  I’m truly amazed at how quickly attitudes about gay marriage have overwhelmingly changed in just 10 years and it's seeing more acceptance of it within the Christian community (i.e. "not my place to judge”). 

[cannon_fodder]

Since we keep wondering into the gay marriage debate.

How many people supported it is utterly irrelevant.  There were elections in favor of segregation in the south in which 100% of voters approved it.  Even when black people were actually allowed to vote, the Jim Crowe measures still passed with 85+% support.  So what?  We are NOT a democracy.  We are a Constitutional Republic.  The Constitution being the ultimate authority.

Second Amendment - YAY CONSTITUTION!  But when it doesn't help your argument, screw it (see, e.g., Bachmann wanting to ignore the pesky citizen by birth clause; rulings on abortion, or the present discussion).  Then it's activist judges. Unfortunately, there is a body of law on point.

Well, let's look at the law on this matter:

0. DOES A "GAY MARRIAGE BAN" TREATS DIFFERENT CLASSES OF US CITIZENS DIFFERENTLY?  (we could do an equal protection or a full faith and credit analysis also)
Yes! Therefore, it triggers a Due Process analysis.  First step, does it effect a suspect class (not under current holdings) or does it effect a fundamental right (yes)?
- Brown V. Board of Education (1954) 347 U.S. 483 


1. MARRIAGE IS A FUNDAMENTAL RIGHT
- Maynard v. Hill, 125 U.S. 190, 205, 211 (1888): Marriage is “the most important relation in life” and “the foundation of the family and society, without which there would be neither civilization nor progress.”
- Loving v. Virginia, 388 U.S. 1, 12 (1967): “The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.”
- M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996): “Choices about marriage, family life, and the upbringing of children are among associational rights this Court has ranked as ‘of basic importance in our society,’ rights sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”
- Windsor v. the United States 570 U.S. 12 (2013), 133 S.Ct. 2675; 2013 U.S. LEXIS 4935

2. THE COURTS APPLY STRICT SCRUTINY TO FUNDAMENTAL RIGHTS
U.S. v. Carolene Products Co., 304 U.S. 144, 153 (1938).
Skinner v. State of Oklahoma, ex. rel. Williamson, 316 U.S. 535 (1942)   [Oklahoma law requiring forced castration in certain circumstances

3. TO SURVIVE STRICT SCRUTINY YOU MUST PROVE
a) Compelling governmental interest
b) Narrowly Tailored remedy
Loving v. Virginia, 388 U.S. 1, 11 (1967)
United States v. Virginia et al. (94-1941), 518 U.S. 515 (1996)

Realistically, the debate ends there.  Almost nothing survives strict scrutiny, but for fun...

4. GAY MARRIAGE BANS CONSISTENTLY FAIL EVEN RATIONAL BASIS TESTS  (the lowest level of test for Due Process)
To survive there has to be "some rational relationship between disparity of treatment and some legitimate governmental purpose.”

- Central State University v. American Assoc. of University Professors, 526 U.S. 124, 128 (1999)
- Varnum v. Brien 763 N.W.2d 862, (Iowa 2009)
- Windsor v. the United States 570 U.S. 12 (2013),  133 S.Ct. 2675; 2013 U.S. LEXIS 4935   [Striking down DOMA]
- Bishop v. Oklahoma (citation pending)   [The Oklahoma gay marriage ban]
- Sevcik v. Sandoval   2012 WL 5989662, PACER Docket 2:12-cv-00578-RCJ [Nevada ruling]
- Kitchen v. Herbert 2013 WL 6697874  [Utah]
- Bourke v. Beshear (citation pending) [Kentucky]
Coming soon... TEXAS.

There is NO rational basis for the government to ban gay people from getting married.  The argument simply loses.  Just as the segregation laws eventually came to lose under the same lens.

We get it.  You have religious objections to it.  You don't like gay people.  You think it is immoral or that gay people can't raise children or that they [insert whatever here]. 

You are free to think that.  But those are not reasons to allow the government to treat a group of people differently. 

Can we move on now?

[guido911]

This should get interesting. Oklahoma's independent judiciary, in this case the Supreme Court, is wading into the traditional jurisdiction of Oklahoma's Court of Criminal Appeals.

http://www.tulsaworld.com/news/courts/oklahoma-supreme-court-stays-executions-of-two-inmates/article_6d2262aa-c973-11e3-b33a-0017a43b2370.html

I am trying to locate the action opinion because I am very curious.

That said, most in here know I do not support the death penalty so I am really not interested in the arguments regarding the drug cocktail. I am concerned about possible overreach by the Supreme Court. I keep thinking about ol Marian Opala saying, "not no, but Hell No" about civil courts intruding into the area of the court of criminal appeals.

[cannon_fodder]

Agreed Guido, very interesting case.

The short version (my understanding, subject to correction): 

2 men are sentenced to die.  At this point, no one is challenging their conviction per se, for the sake of simplicity lets pretend everyone is agreeing that they should be executed.

The State of Oklahoma passed a law that allowed the state to keep secret the exact drugs, and their sources/suppliers, that would be used in the execution.  The basic makeup of the drug would be released.  But the purpose was to make it harder for activists or foreign countries to pressure the drug maker/distributor/retailer into NOT providing drugs for executions (has consistently happened).

That law was successfully challenged.  Prisoners have a right to know how they are going to die, such that they can challenge the punishment as cruel and unusual.   The State appealed the decision to throw out the law and the prisoners in question have NOT been told additional information about the drugs.

The men are scheduled to die before a ruling on the appeal.  Thus, they are scheduled to be executed before the information would be provided for them.  Denying them their right to challenge the execution (so the previous case decided, over turning the law).

SO… the men asked the Criminal Appeals Court to stay their execution until the other legal mess is sorted out.  The Court of Criminal Appeals ruled that the men do not have a pending appeal before the Court and therefore they lack jurisdiction (you are out of appeals, too bad).  So, in essence, in spite of a ruling saying you get to know what we are going to use to kill you – we can’t touch it because of jurisdictional issues.

HERE we need a tangent.  In Oklahoma, all criminal appeals go directly to the Court of Criminal Appeals and no further.  The Supreme Court of Oklahoma does not hear Criminal Cases, directly.  They can hear constitutional challenges to the law, procedural issues, and jurisdictional issues.  But they generally do not hear criminal cases and do not stay executions.

The men appealed to the Supreme Court anyway.  The Supreme Court sent it back to the Court of Criminal Appeals, who basically said “hot potato, we can’t touch it because there is no proper appeal before us!”  Back to the Supreme Court – who said “damn it! What do we do now?”

What they did was err on the side of the men convicted to die.  They stayed the execution and will sort everything else out later.  The justification was they were staying the execution because of a “jurisdictional” dispute, not a criminal appeal.

The ruling is on shaky legal ground.  But probably reaches the proper conclusion.  Stay the execution.  Sort out the mess.  Then kill them.

[cannon_fodder]

On a different, but related topic -

Stark Naked Power Grab:  Legislature Targets the Third Branch:
http://www.tulsaworld.com/opinion/juliedelcour/julie-delcour-stark-naked-power-grab-legislature-targets-third-branch/article_93429e33-c83f-532c-8df6-89f83c765785.html

Raise your right hand.
That's one, solitary hand in the air, the same number of subjects the Legislature can address in a piece of legislation. Throw in more topics, and under the single-subject rule of the state Constitution, the law, if challenged, might get thrown out. That's exactly what the Oklahoma Supreme Court did last year with a case involving incremental state income tax cuts and creation of a fund to do Capitol repairs.

It's not the Supreme Court's fault that lawmakers can't count or that they repeatedly pass laws that lawmakers should know are constitutionally flawed. But the entire state judiciary is getting punished just the same.
Here's how it works: Activist state lawmakers, who close their eyes and pass bad law instead of opening their eyes and following established law, don't appreciate being corrected by the high court. . .

[Conan71]

Agreed Guido, very interesting case.

The short version (my understanding, subject to correction): 

2 men are sentenced to die.  At this point, no one is challenging their conviction per se, for the sake of simplicity lets pretend everyone is agreeing that they should be executed.

The State of Oklahoma passed a law that allowed the state to keep secret the exact drugs, and their sources/suppliers, that would be used in the execution.  The basic makeup of the drug would be released.  But the purpose was to make it harder for activists or foreign countries to pressure the drug maker/distributor/retailer into NOT providing drugs for executions (has consistently happened).

That law was successfully challenged.  Prisoners have a right to know how they are going to die, such that they can challenge the punishment as cruel and unusual.   The State appealed the decision to throw out the law and the prisoners in question have NOT been told additional information about the drugs.

The men are scheduled to die before a ruling on the appeal.  Thus, they are scheduled to be executed before the information would be provided for them.  Denying them their right to challenge the execution (so the previous case decided, over turning the law).

SO… the men asked the Criminal Appeals Court to stay their execution until the other legal mess is sorted out.  The Court of Criminal Appeals ruled that the men do not have a pending appeal before the Court and therefore they lack jurisdiction (you are out of appeals, too bad).  So, in essence, in spite of a ruling saying you get to know what we are going to use to kill you – we can’t touch it because of jurisdictional issues.

HERE we need a tangent.  In Oklahoma, all criminal appeals go directly to the Court of Criminal Appeals and no further.  The Supreme Court of Oklahoma does not hear Criminal Cases, directly.  They can hear constitutional challenges to the law, procedural issues, and jurisdictional issues.  But they generally do not hear criminal cases and do not stay executions.

The men appealed to the Supreme Court anyway.  The Supreme Court sent it back to the Court of Criminal Appeals, who basically said “hot potato, we can’t touch it because there is no proper appeal before us!”  Back to the Supreme Court – who said “damn it! What do we do now?”

What they did was err on the side of the men convicted to die.  They stayed the execution and will sort everything else out later.  The justification was they were staying the execution because of a “jurisdictional” dispute, not a criminal appeal.

The ruling is on shaky legal ground.  But probably reaches the proper conclusion.  Stay the execution.  Sort out the mess.  Then kill them.

And herein lies one of the issues I have with the death penalty in the first place: unlimited appeals and access to free legal help which costs the taxpayers more money than if these two had been put in general population with no chance for parole.  The one who raped and killed the 11 month old would have already been taking the eternal dirt nap for the last 15 years or so.

The fellow who killed the 18 year old claims he’s not afraid to die, he’s just afraid if it’s going to be painful or not.  What difference does it make?  It will all be over in a matter of minutes anyhow, assclown.

[guido911]

Believe me, there is much more to the Supreme Court injection of itself in that criminal case.

[guido911]

On a different, but related topic -

Stark Naked Power Grab:  Legislature Targets the Third Branch:
http://www.tulsaworld.com/opinion/juliedelcour/julie-delcour-stark-naked-power-grab-legislature-targets-third-branch/article_93429e33-c83f-532c-8df6-89f83c765785.html

"Stark Naked Power Grab".  Could be the title of an article as to what the S.C. just did to the court of criminal appeals. Or, the title of an article addressing the S.C. role in undermining legislative enactments.

[heironymouspasparagus]

It will be ruled unconstitutional. . Not seeing the problem about having no legal training to monitor judges. After all, judges are elected in this state by a legally-uneducated lot. Seriously, what training does T have in evaluating judges? And what training does CF have in being an Oklahoman to lecture you rubes about what's good for ya for that matter? This all sounds more like ol' CF is trying to keep his plaintiff-friendly appellate bench in place. 

Are they actually elected??  I guess I thought they were appointed, then the elections asked if they should be retained...

[heironymouspasparagus]

Or quite simply, those 76% in 2004 were misinformed by the campaign for such a law. Many people take what is thrown at them in the first few words of press releases and commercials as the entire story.  I’m truly amazed at how quickly attitudes about gay marriage have overwhelmingly changed in just 10 years and it's seeing more acceptance of it within the Christian community (i.e. "not my place to judge”). 

Because that particular progressive idea made sense to people and their sense of fairness and equality.....

[Townsend]

Fallin: Supreme Court Went Too Far

http://kwgs.com/post/fallin-supreme-court-went-too-far

OKLAHOMA CITY (AP) — Gov. Mary Fallin has granted an Oklahoma death-row inmate a one-week stay of execution, saying the Oklahoma Supreme Court overstepped its authority when it issued a separate stay of execution on Monday.

Fallin issued an executive order on Tuesday delaying the execution of Clayton Lockett until April 29. In her order, Fallin claims the stay ordered by the state's high court is "outside the constitutional authority of that body."

The stay granted by the Oklahoma Supreme Court on Monday also canceled the execution of inmate Charles Warner. The two inmates are challenging the secrecy protocol surrounding the source of Oklahoma's lethal injection drugs.

Republican Attorney General Scott Pruitt is fighting the inmates' attempt to delay their execution. He maintains the state can keep secret the source of the drugs.

[cannon_fodder]

Guido?

You apperently have strong feelings, but are refusing to discuss.  You need to say WHY.

I think it is apperent that even the OK Supreme Court knows they are over stepping.  BUT, there was a weird jurisdictional loop where two citizens would be executed on unconstitutional terms and could not get redress.  Was the proper course of action to execute them and then determine if the execution was illegal?  It all depends on the appeal of the secrecy law... which won't be done soon.

A stay was the only solution.   The Supreme Court did not overturn the Crim Ap court (blatantly unconstitutional), rather it ruled on a matter that it may not have jurisdiction to rule on (shaky constitutional ground).  For it to be an actual power grab, you would have to argue that this sets some precedent that the Supreme Court wields power over the Crim Ap, IMHO - this is a unique situation that led to an impossible outcome.  I do not think a challenges of a civil law will often lead to the stay of an execution.

Fallen is right to step in and declare a stay.  Had she done so earlier this would have been averted.  But I agree that there must be a stay or it would be an illegal execution (though I have a tendency to agree with Conan here, there is a well established right to die a "clean death" lest it be cruel and unusua. Along with that comes the right to challenge your method of execution.).

The only alternative for the Supreme Court would be to allow a knowingly illegal execution pending an appeal of a civil law.  Weird situation.  Solution:  allow sealed review of the execution drugs.