Tuesday, May 31, 2005

No Temporary Injunction for Oklahoma's New Abortion Law

Last Friday, Senior U.S. District Judge H. Dale Cook denied a Tulsa clinic's request for a restraining order to suspend a new state law requiring parental notification before girls age 18 and younger can receive an abortion.

Judge Cook ruled that plaintiff Nova Health Systems, the parent of the Tulsa clinic, did not show that the law signed by Gov. Brad Henry on May 20 was unconstitutional and adverse to the public interest.

The ruling allows the law, which had an emergency clause and took effect immediately after Henry signed it, to continue without change, said spokesman Charlie Price of the Oklahoma Attorney General's office.

Attorneys for the Reproductive Services clinic had argued that the law puts at risk girls who do not have parents or come from a dysfunctional family and must ask a court to waive the parental notification provision.

In a 12-page ruling, Cook said the law ``does not infringe on a minor's constitutional right to an abortion nor does the Act deny expedited access to the courts to authorize a minor's abortion without one of her parents' notification.''

The law ``clearly sets forth expedition and confidentiality at every level of the judicial bypass process for the protection of the health, safety and welfare of every minor who seeks to utilize it,'' Cook wrote.

Attorneys for Nova Health Systems _ which has Reproductive Services as a subsidiary _ had asked Cook to act quickly because it had abortions scheduled on Tuesday and argued that a delay of even a few days can make abortions more risky.

``Certainly we're disappointed, and we're most concerned for those young women who need to avail themselves of the judicial bypass procedure,'' said Martha Hardwick, a Tulsa attorney for Nova. ``We just hope the courts will be as expeditious in their handling of it as Judge Cook believes they will be.''

Cook's ruling applies only to the request for a time-sensitive temporary restraining order and not to the ultimate constitutionality of the entire law. Attorneys expect to continue with briefings and arguments.

Bureau of Justice Statistics Report on the Recidivism Rate for Sex Offenders

On May 11, 2005, I reported on a bill that had recently passed the Oklahoma Senate that would require GPS tracking for sex offenders. Because there has been some debate about the necessity of tracking sex offenders and the recidivism rate among sex offenders, I would like to publish the following report from the Bureau of Justice Statistics. This report can be found at http://www.ojp.usdoj.gov/bjs/pub/press/rsorp94pr.htm


WASHINGTON, D.C. -- Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department's Bureau of Justice Statistics (BJS) announced today. If all crimes are included, 43 percent of sex offenders were rearrested for various offenses.
Sex offenders were less likely than non-sex offenders to be rearrested for any offense –– 43 percent of sex offenders versus 68 percent of non-sex offenders. But sex offenders were about four times more likely than non-sex offenders to be arrested for another sex crime after their discharge from prison –– 5.3 percent of sex offenders versus 1.3 percent of non-sex offenders.
Sex offenders with the highest rate of rearrest for another sex offense were those who had a history of prior arrests for various crimes. While 3.3 percent of sex offenders with one prior arrest were arrested for another sex crime after their release, that percentage more than doubled (7.4 percent) for those with 16 or more prior arrests for different types of crimes. Of the released sex offenders who allegedly committed another sex crime, 40 percent perpetrated the new offense within a year or less from their prison discharge.
Of the almost 9,700 sex offenders released in 1994, nearly 4,300 were identified as child molesters. An estimated 3.3 percent of the 4,300 released child molesters were rearrested for another sex crime against a child within 3 years. Most of the children they were alleged to have molested after leaving prison were age 13 or younger.
Other BJS surveys have shown that 70 percent of all men in prison for a sex crime were men whose victim was a child. In almost half of the child-victim cases, the child was the prisoner's own son or daughter or other relative.
The average sentence imposed on the 9,700 sex offenders was 8 years and, on average, 3 1/2 years of those 8 years were actually served prior to release. The average sentence imposed on the 4,300 child molesters was approximately 7 years and, on average, child molesters were released after serving 3 of the 7 years.
Of the released sex offenders, 3.5 percent were reconvicted for a sex crime within the 3-year follow-up period, 24 percent were reconvicted for any new offense and 38.6 percent were returned to prison, either because they received another prison sentence or because of a parole violation.
Of the 9,700 sex offenders, 67 percent were white males and 32 percent were black males. The percentage rearrested for another sex crime after their release was 5.3 percent of white males and 5.6 percent of black males.
Half of the 9,700 sex offenders were over the age of 35 when released. Recidivism studies typically find that the older the prisoner when released, the lower the rate of recidivism. However, although this study did find the lowest rearrest for a sex crime (3.3 percent) did belong to the oldest sex offenders –– 45 years old and older –– other age group comparisons were inconsistent. The percentage rearrested for another sex crime after their release was 6.1 percent of those ages 18-24, 5.5 percent of those ages 25-29, 5.8 percent of those ages 30-34, 6.1 percent of those ages 35-39, 5.6 percent of those ages 40-44 and 3.3 percent of those ages 45 or older.
For 85 percent of those sex offenders who were arrested for another sex crime, the arrest occurred in the same state that released them. For the remaining 15 percent, the arrest was in a different state.
The data are from a study that documented levels of recidivism among all 272,111 men and women released from state prisons in 15 states in 1994. The 272,111 included 9,691 male sex offenders. The 9,691 are two-thirds of all the male sex offenders released from state prisons in the United States in 1994. The study represents the largest followup ever conducted of convicted sex offenders following discharge from prison and provides the most comprehensive assessment of their behavior after release. The report, "Recidivism of Sex Offenders Released from Prison in 1994" (NCJ-198281), was written by BJS statisticians Patrick A. Langan, Erica L. Schmitt and Matthew R. Durose. Single copies may be obtained by calling the BJS Clearinghouse at 1-800-851-3420. Following publication this document can be accessed at:
For additional information about Bureau of Justice Statistics reports and programs, please visit the BJS Web site at:
The Office of Justice Programs (OJP) provides federal leadership in developing the nation's capacity to prevent and control crime, administer justice, and assist crime victims. OJP is headed by an Assistant Attorney General and comprises 5 component bureaus and 2 offices: the Bureau of Justice Assistance, the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime, as well as the Executive Office for Weed and Seed and the Office of the Police Corps and Law Enforcement Education. Information about OJP programs, publications, and conferences is available on the OJP Web site, www.ojp.usdoj.gov.
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Friday, May 27, 2005

Justice Department Unhappy with Senate Bill 673

The Oklahoma House snubbed the U.S. Justice Department on Wednesday by passing a bill that federal officials say limits competition for real estate services. The bill, and presumably the federal opposition, is headed to Gov. Brad Henry. The House passed a version of Senate Bill 673 meant to placate federal officials' concerns. It did not. The Justice Department issued a statement reiterating its opposition to the bill, authored by Sen. Jay Paul Gumm, D-Durant, about an hour before Rep. Doug Miller, R-Norman, brought it up in the House.

"While the revised bill is an improvement, it does not make sufficiently clear that consumers will retain the freedom to purchase only the real estate services they want," the department said in an e-mail sent to reporters but not to lawmakers or the Oklahoma Association of Realtors, which pushed for the bill.

The legislation, the department said, "does not make clear whether a consumer can tell his or her broker in advance that the consumer would like to negotiate the sale of the home without any assistance from the broker, and, as a consequence, pay less for the services that the broker does provide." Miller, in explaining the bill before the vote, said it "very simply clarifies and reaffirms duties and responsibilities outlined in our real estate code" -- the state Realtor association's position all along. Miller did not mention the renewed federal opposition.

The House passed the bill, with no debate, 89-7. Opponents say the bill does more than reaffirm the law, which the Realtors say was clouded last year by an attorney general's opinion. Opponents say it is an attack on limited real estate services. Gumm said his bill is no such thing -- and was steamed, again, that the Justice Department was "lipping off" in the media and not dealing with lawmakers directly. Gumm said Justice lawyers' biggest problem was with a requirement that brokers "be available to receive all written offers and counteroffers," put them in writing, and present them -- at minimum.

"We just disagree on that. That goes to the heart of it, what it means to be (a broker)," he said. Gumm expressed dismay that the federal agency would weigh in on a state matter. He said it showed lack of respect for "separation of powers" and state sovereignty.

Paul Sund, the governor's communications director, said Henry would consider the agency's concerns as part of the normal review of legislation.

Oklahoma is not alone. The Justice Department has taken on real estate regulation and legislation it doesn't like in Kentucky, Texas, Missouri and Alabama in recent weeks.

"They simply don't have a dog in this fight," Gumm said, insisting that Oklahoma has a right to regulate real estate license holders as it sees fit. "If we're going to hold people out to a level of professionalism, and a level of training, and then they hold themselves out as (real estate license holders), there is a certain level of service that Oklahomans should expect," Gumm said.

Source: By Richard Mize of The Daily Oklahoman

Attorney General Opinion Addresses Playing Poker for Money

Fans of Texas Holdem poker can't play the game legally in Oklahoma, according to an attorney general's opinion handed down Thursday.
The opinion, which carries the force of law, will likely slow the growth of popular Texas Holdem poker tournaments common in other states and that have been advertised and conducted by taverns, pubs and other commercial establishments across Oklahoma. But the opinion also applies to private poker games played for cash or other things of value.
Attorney General Drew Edmondson said it is up to individual district attorneys throughout the state to decide whether to prosecute violations.
The nine-page opinion by Senior Assistant Attorney General Neal Leader reiterates conclusions found in previous opinions about Oklahoma's gambling laws: "Poker played for money or other representative of value" is illegal. It says Texas Holdem poker tournaments played for money violate both the state's anti-commercial gambling laws and the state's general antigambling laws. Those who sponsor the games are guilty of a felony and players are guilty of misdemeanors.
The only exception is nonhouse-banked card games played in gaming casinos operated by federally recognized Indian tribes that enter into compacts called for in the State-Tribal Gaming Act, the opinion states.
The opinion was requested in October by District Attorney James Boring of Guymon, whose district includes four counties in the Oklahoma Panhandle and northwest Oklahoma. Boring asked whether it was illegal under state law to conduct Texas Holdem tournaments where entrants must pay to play and are eligible to win cash prizes.
A second opinion requested in February by Rep. Chris Benge, R-Tulsa, asked whether free poker games in which players did not pay entry fees but were eligible to win prizes also violate the state's antigambling laws.
The opinion says Oklahoma's antigambling laws prohibit conducting gambling games, including poker, and playing the games for money, property and anything else of value."...The poker tournaments you describe violate the general antigambling provisions...because the participants in the tournament are playing for money," the opinion says, referring to Boring's inquiry. State law specifically prohibits anyone from betting or playing in a prohibited game for money, it says. It also says poker tournaments in which all or part of participants' entry fees are paid back to tournament winners do not fall within an exception in state law that allows for the payment of "purses, prizes or premiums.""A poker tournament in which the players' entry fees are pooled and paid back to the tournament winners involves betting," the opinion states. "...The general antigambling laws make playing poker for money, checks, credits or other representatives of value a crime, and conducting such poker games a crime."
Addressing Benge's question, the opinion states that a free poker game where no fee is paid for entry or acquiring poker chips is paid but is played for a prize "is still poker played for money" and violates state law.
Source: Associated Press

Wednesday, May 25, 2005

The Libertarian Party Loses its First Amendment Challenge to Oklahoma's Voting Laws

In Clingman v. Beaver, the Supreme Court ruled Monday that states may bar a political party from opening its primary election to members of another party, upholding restrictions in nearly half the states.

In a 6-3 decision, justices ruled against the Libertarian Party in its First Amendment challenge to Oklahoma's system. The party wanted to open its primaries, over the state's objections, to voters registered as Democrats or Republicans in hopes of attracting more members.

Oklahoma is one of 24 states that have closed or semi-closed primaries. Closed primaries require people to register and vote with one political party. In semi-closed systems, like the Oklahoma one, political parties generally may only allow their own members and independents to cast ballots.

Justice Clarence Thomas, writing for the majority, said Oklahoma and other states have broad powers to structure primaries as they see fit. The Libertarian Party's rights of free association thus were not violated, he said.

"Oklahoma remains free to allow the Libertarian Party to invite registered voters of other parties to vote in its primary. But the Constitution leaves that choice to the democratic process, not the courts," Thomas wrote.

In a dissent, Justice John Paul Stevens expressed concern that Oklahoma does not give voters a chance to participate in third-party elections. Limiting primary participation could serve to preserve the power of the major parties from competition, he wrote in an opinion joined by Justices Ruth Bader Ginsburg and David H. Souter.

"The court's decision today diminishes the value of two important rights protected by the First Amendment: the individual citizen's right to vote for the candidate of her choice and a political party's right to define its own mission," Stevens wrote.

The states with closed or semi-closed primaries are Arizona, California, Colorado, Connecticut, Delaware, Florida, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Dakota, West Virginia and Wyoming, according to court filings.

A Tulsa Abortion Clinic Attempts to Prevent the Enforcement of a New Oklahoma Abortion Law

A new law recently signed by Governor Brad Henry requires that minors either notify their parents or get judicial approval before receiving an abortion.
Bebe Anderson is an attorney for the Center for Reproductive Rights based in New York. She filed a lawsuit on behalf of a Tulsa abortion clinic to prevent the enforcement of the new Oklahoma law. Yesterday, she argued in the U.S. District Court for the Northern District of Oklahoma that the law should be halted because it puts young girls' health at risk. She stated that a quick response was crucial because Reproductive Services was scheduled to perform abortions that day at noon. Anderson argued that because even a few days' delay can push a woman from the first trimester to the second, the law, which doesn't set up a time frame in which the court must act if the minor seeks judicial approval, puts girls' health at a greater risk.
Assistant Attorney General Elizabeth Sharrock argued that the clinic had failed to show immediate and irreparable harm if the temporary injunction were not granted.
She noted that in the past 13 months, the clinic had performed only 17 abortions without the girls' parents present.
About 90 percent of the girls who receive abortions at the Tulsa clinic do so with parental notification, Anderson said. However, she was not aware of any minors scheduled to receive abortions in the next two days without such notification.

Wednesday, May 11, 2005

Oklahoma Supreme Court Considers Constitutionality of Labor Law

The state Supreme Court Tuesday heard arguments then took under advisement appeals over the constitutionality of a state law allowing employees of some Oklahoma cities to unionize.

The law passed last year says municipal employees in cities of more than 35,000 population can join a union.

A district court judge ruled the law is unconstitutional in a lawsuit by the cities of Enid and Lawton. And in another lawsuit a district court prohibited a union from being certified as the official bargaining unit for workers in Broken Arrow.

An attorney for the City of Enid told the Supreme Court today the law is unconstitutional because it's a special law affecting only certain cities -- those with more than 35-thousand people.

But attorneys for the unions and the city workers say the Legislature has passed many laws with similar population limits and they have been upheld as constitutional.

GPS Tracking for Sex Offenders Passes Senate

Legislation to help keep better tabs on registered sex offenders has won final Senate approval and is now headed to Gov. Brad Henry. Sen. Charles Wyrick, D-Fairland, is the author of Senate Bill 631, named “Jessica Lunsford’s Law,” after a Florida girl who was molested and murdered. The suspect in that case is a convicted sex offender. Wyrick said the bill, which was approved unanimously, would require registered sex offenders to wear Global Positioning System (GPS) monitors so that law enforcement can better track their locations.

“Studies have shown that GPS monitoring makes a tremendous difference in recidivism rates. In Florida, offenders released from prison without GPS monitoring re-offend about 33 percent of the time but those who are tracked by GPS had a recidivism rate of only 1.5 percent—and none of the offenses committed by sex offenders on GPS were sex crimes,” Wyrick said. “Clearly, if they know someone is watching them, the public is safer.”

Currently there are 3,000 sex offenders in DOC custody, with many more that have completed their prison sentence and live in communities throughout Oklahoma.

“Our current sex offender registration laws require sex offenders to notify local law enforcement anytime they change addresses but we know that doesn’t always happen. This system will ensure we know where these predators are,” Wyrick said.

SB 631, co-authored by Rep. Terry Ingmire, R- Stillwater, requires that any convicted sex offender placed on probation or parole be required to wear an active GPS monitoring device for the duration of their required registration period. The required registration period is life for habitual sexual offenders and 10 years for other sex offenders. The measure also requires sex offenders to pay for the costs of their own monitoring.

“It is important to point out that this system will save us money in the long-run because reduced recidivism will result in cost savings in prosecution and punishment,” Wyrick said. “But the most important aspect of this bill is that it will enable us to do a better job of protecting our children and others from sexual predators.”

If signed, SB 631 would go into effect immediately and would apply to all sex offenders convicted from that date forward.

Wednesday, May 04, 2005

Governor Hernry Appoints Scott Meacham as State Treasurer

State Finance Director Scott Meacham, Gov. Brad Henry's point man on top legislative issues, was picked by the Democratic governor on Tuesday to succeed Robert Butkin as state treasurer.

Butkin is leaving state government on May 31 to become dean of the law school at the University of Tulsa.

Henry also named Claudia San Pedro to succeed Meacham as finance director. San Pedro, the wife of gubernatorial spokesman Paul Sund, now heads up the budget division of the finance office.

Butkin, a Democrat, resigned in February after serving more than 10 years as treasurer. He was unopposed in his last two elections.

Meacham is an attorney and former Elk City banker whom Henry has known since they were in law school together at the University of Oklahoma.

The 42-year-old Meacham will continue in Henry's cabinet. In the last two years, Meacham has been Henry's lead negotiator on key legislative issues.

He was the architect of a plan to erase a huge deficit in Henry's first term and played a significant role in events that led to voter approval of a state lottery. He also led the negotiations on tobacco and gaming compacts with Indian tribes.

Meacham practiced law in Clinton for 11 years before joining the bank in Elk City that his ancestors started in 1901.

Tuesday, May 03, 2005

Russell and Foster Honored at Law Day Luncheon

Yesterday, Oklahoma's legal community recognized two outstanding individuals for their exemplary record.
Judge David L. Russell was honored with The Journal Record Award. Judge Russell has served as Assistant Attorney General of Oklahoma, legal advisor to Governor Dewey F. Bartlett, and U.S. attorney for the Western District of Oklahoma under Presidents Ford and Regan. He was appointed to the bench of the Western District by President Regan in 1982, and served as cheif justice of that court from 1994 to 2001.
Also honored was Buddy Faye Foster for her work with the Oklahoma Lawyers for Children. Foster was given the Liberty Bell Award, which is given to a non-lawyer who has a positive impact on the legal community and the rule of law. Foster has been the executive director of the Oklahoma Lawyers for Children and a driving force behind its success.

Monday, May 02, 2005

Nominations Made for the Oklahoma Court of Civil Appeals

Norman attorney Robert D. Bell, Oklahoma City lawyer Alison Cave and former Oklahoma Court of Civil Appeals judge Patricia Dougherty MacGuigan were nominated by the Oklahoma Judicial Nominating Commission to fill a vacancy on the Oklahoma Court of Civil Appeals. The vacancy was created in November by the death of Judge Carl B. Jones.

Bell has been a municipal judge in Moore since 1994 and works at the Bell Law Firm in Norman.

Cave was Judge Jones' law clerk from 1999 to 2001 and is now in private practice.

MacGuigan was a judge and presiding judge on the civil appeals court from 1982 to 1991. She resigned to move to Canada, where her husband was a justice on the Canadian Federal Court of Appeals.

Now a widow, MacGuigan is an administrative law judge at the Oklahoma Corporation Commission.

AG Urges Dear Abby Letter Writer to Seek Help

Attorney General Drew Edmondson today said a letter from an Oklahoma woman posted in “Dear Abby” illustrates the problem of domestic violence, and he encouraged the letter’s writer to seek help.

The letter, which was signed “Hurting in Oklahoma,” was from a 24-year-old woman who claims to be a long-time victim of domestic violence. In the letter, “Hurting” describes an incident where her husband kicked her repeatedly and then doused her with lighter fluid. When the man left the room, the woman left the house, only to return months later after her husband promised to end the abuse.

The letter’s writer then describes a period of happier times known to experts as the “honeymoon” phase, followed by an escalated level of violence that included gunfire.

“Often, abuse victims get caught up in this cycle where the abuser agrees to change and then eventually returns to old habits,” Edmondson said. “The violence will continue to escalate until the victim either dies or gets help. It’s a matter of life or death for this woman and all domestic violence victims to get help.”

Edmondson urged the woman to contact the safeline for domestic violence victims. That number is 1-800-522-7233. Edmondson also said Dear Abby’s advice of contacting the National Domestic Violence Hotline was sound advice.

“Even though the number given in the column is a national hotline, victims can be referred to local shelters,” Edmondson said. “The national hotline also gives victims advice on how to escape their attacker.”

The number for the National Domestic Violence Hotline is 1-800-799-7233.

The attorney general said he was also concerned about “Hurting’s” assertion that she had contacted local law enforcement about the abuse, but they “refuse to do anything.”

“It is the job of the law enforcement community to protect our citizens,” Edmondson said. “We can not allow law enforcement to turn their backs on domestic violence victims. If the woman who wrote that letter will contact our office, we will protect her privacy and make sure she gets help. The number she should call is (405) 522-0146. We hope she will not wait.”

Source: Attorney General Press Release