Tulsa Attorney BlogMcGirt Class Action: State’s Response

The Court Did Not Find It Appropriate to Apply for the Equitable Arguments

Video Transcribed: What is the state’s response to the class-action lawsuit, seeking fines and costs back to defendants who were prosecuted improperly in state court in the Muscogee (Creek) Nation? I’m Tulsa criminal attorney James Wirth, and that’s what we’re talking about here.

I’ve got a copy of the response from the State of Oklahoma in those, and it’s signed off on behalf of not only the Governor in the State of Oklahoma but also the DAs in their official capacity, for all of those counties within the Muscogee (Creek) Nation tribal boundaries under McGirt.

Essentially, they’ve got a few different arguments that they’re making that they shouldn’t have to give this money back. Okay, so the first one is, they’re saying that these individual convictions, the people that were charged improperly in State Court, that they should have to file in their own case under the Post-Conviction Relief Act.

Because under the Oklahoma statute, it says that, that’s the sole means to challenge convictions. They’re suggesting that they can’t do this as a class action. They can’t do it in a civil case. They need to file a post-conviction relief in their criminal case.

I tend to disagree with that. I don’t think this is going to be a winner for them. Ultimately, when it’s a subject-matter jurisdiction issue that the court never had jurisdiction and it’s fundamental, then those things can be attacked, not only in the underlying case but collaterally, meaning they can be attacked in other cases.

That’s actually noted in the opinion by Justice Gorsuch in the McGirt v Oklahoma case. So, I don’t think that’s going to be a winner for them. I think that these things can be attacked collaterally, and it would be impractical for these hundreds, if not thousands of defendants to all have to do it in separate cases. That’s the reason we have class-action lawsuits, so we can join people in the same class together so that it’s not too cumbersome to do.

Their second argument is that the plaintiffs in this case failed to properly plead. There may be some validity to this. I mean, ultimately the four plaintiffs that filed in this case, did not specifically plead where they were prosecuted, for what, what they paid in fines and costs, to what government entity.

That information was not put in there. Now, it’s not practical for them to put that in there for every person that may be subject to the class. I don’t think that’s a problem.

But it is unusual that they didn’t plead, at least for those four specific plaintiffs that are filing this case, that they didn’t specifically plead their individual circumstances. That may be a problem. That may be a winning issue for the State, but that doesn’t hold it back for long. That is something where the court can say, “You need to amend your petition.” They can fix that and come back.

The third issue is, they want to make an equitable bar. This is something that we know the State is going to throw up. They already throwing them up in criminal cases and appeals, to try to prevent these from being dismissed.

What they’re saying is, is that too much time has gone by. That these parties could have raised this issue years ago and they didn’t, and they’re only raising it now. They’re using the doctrine of waiver or estoppel or latches, simply that’s been too long.

The other one that they’re trying to allege, is an equitable bar of unclean hands. They’re saying that because these people committed crimes that they were convicted of, they have unclean hands, and therefore they shouldn’t be able to come to the court for relief.

That’s an equitable doctrine, that everybody that, practicing attorney that we know about, that we learned about in law school. It’s a real thing. I don’t think it’s applicable here though, because the unclean hands, in this case, the alleged criminal activity, occurred before the bad deeds by the State in wrongfully prosecuting them. So, the unclean hands are unrelated to what the State did, in that, that occurred later and that they should be entitled to their money back, regardless.

I don’t think unclean hands are necessarily going to be a winner here. Same with the other equitable arguments. I don’t think it should be a winner here. Those arguments could be made in the McGirt case itself. I mean, this is something that they’re saying that the Muscogee (Creek) Nation Reservation boundaries were not disestablished at statehood.

This has been an issue since statehood, that’s only being decided now. The State of Oklahoma, and the tribes, non-Indians, and Indians, all of us alike in Northeast Oklahoma, we’re all operating as if the reservation had been disestablished for decades, if not a hundred years.

But the court did not find it appropriate to apply for the equitable arguments, laches, waiver, and it’s simply been too long there. So, I think it’s unlikely it’s going to apply here, so I don’t think that’s a winner for them.

But, long story short, the State is fighting this. The counties are fighting this, and those are the arguments that they’re making and it’s going to be set for future hearings. If you’ve got any questions about this, you can talk to an attorney about it, or you can just follow up as we do additional videos, as we learn additional info. But, if you do want to talk to somebody in my office, you can go to makelaweasy.com.

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