PANAMA ORIGINAL IN THE SUPREME COURT OF THE STATE OF OKLAHOM, FILED REME COURT, ‘THE STATE OF OKLAHOMA, STATE OF OKLAH By and through JOHN M. O°CONNOR, NOV 10 2021 ATTORNEY GENERAL Sonn aneen Petitioner, CLERK Case No. 119,929 v. ADAM LUCK, INDIVIDUALLY AS ‘A MEMBER OF THE OKLAHOMA PARDON AND PAROLE BOARD, & KELLY DOYLE, INDIVIDUALLY AS A MEMBER OF THE OKLAHOMA. PARDON AND PAROLE BOARD, Respondents. RESPONDENT KELLY DOYLE’S REQUEST THAT THE COURT SANCTION PETITIONER PURSUANT TO OKLAHOMA SUPREME COURT RULE 1.191(j) Kevin P. Doyle Pray Walker, P.C. ene RECEIVED Tulsa, Oklahoma 74103 (918) 581-5516 uv tn 2021 (918) 581-5599 (facsimile) . kdoyle@praywalker.com CLERK'S OFFICE Attomey for Respondent Kelly Doyle, A member of the State of Oklahoma Pardon and Parole Board November 10, 2021 {00365745 0004/2)DEX QUESTION Whether the Court should sanction Petitioner, the Oklahoma Attorney General, pursuant to Okla. Sup.Ct.R 1.191) Cases David Prater, District Attorney for the Seventh Judicial District, Petitioner v. Adam Luck, individually as a member of the Pardon and Parole Board: and Kelly Doyle, individually as a member of the Pardon and Parole Board, Oklahoma Supreme Court Case No. 119,839 (“Prater v. Doyle”). Frazier v. Bruce, 2021 OK 14, 484 P.3d 285, Statutes 120.8. § 995 57 OS. §332.15 Rules Okla.Sup.CtR 1.191().. Okla. Sup.CtR 1.191G Constitutional Provisions Okla, Const, Art VI, See 10 ‘TABLE OF CONTENTS INTRODUCTION... Il. PETITIONER KNEW HIS APPLICATION WAS UNTIMELY WHEN IT WAS FILED AND HE FAILED TO ARGUE ANY BASIS AUTHORIZED UNDER OKLAHOMA SUPREME COURT RULE 1.191(1) TO EXCUSE THE. UNTIMELY FILING... mn Il, PETITIONER FAILED TO INDEPENDENTLY INVESTIGATE THE ALLEGATIONS SUPPORTING HIS APPLICATION - IT ASSERTED CLAIMS AGAINST THE SAME PARTIES, WAS BASED UPON THE, SAME ARGUMENTS AS THOSE USED IN PRATER ¥. DOYLE, DECIDED BY THIS COURT'S ORDER ON OCTOBER 18, 2021... IV. THE PURPOSE FOR THE PETITIONER'S APPLICATION WAS TO DELAY AND DISRUPT THE PARDON AND PAROLE BOARD PROCEEDINGS. THE PARDON AND PAROLE BOARD AND ITS PROCESSES ARE AUTHORIZED BY THE OKLAHOMA CONSTITUTION. (0360745 DCX /2} 2V.- AUTHORITY w.sssnnsttnnnnnnnninnnnnisinnnnnnnne VI. CONCLUSION AND REQUEST FOR RELIEF (00369745 BOCK 2)IN THE SUPREME COURT OF THE STATE OF OKLAHOMA THE STATE OF OKLAHOMA, By and through JOHN M. O°CONNOR, ATTORNEY GENERAL Petitioner, Case No. 119,929 ADAM LUCK, INDIVIDUALLY AS. A MEMBER OF THE OKLAHOMA PARDON AND PAROLE BOARD, & KELLY DOYLE, INDIVIDUALLY AS A MEMBER OF THE OKLAHOMA PARDON AND PAROLE BOARD, Respondents, RESPONDENT KELLY DOYLE’S REQUEST THAT THE COURT SANCTION PETITIONER PURSUANT TO OKLAHOMA SUPREME COURT RULE 1.191() Respondent Kelly Doyle requests that this Court utilize its discretion pursuant to Oklahoma Supreme Court Rule 1.191(j) and sanction Petitioner, Atomey General John 0°Connor. 1. INTRODUCTION This Court may sanction a party for filing a frivolous application seeking to invoke the Court’s original jurisdiction. Okla.Sup.Ct.R 1.191@). Petitioner had no good faith basis for filing his untimely Application secking to disqualify Respondent Doyle from participating in the Pardon and Parole Board proceedings involving Julius Jones. Despite the untimeliness of his Application, Petitioner moved forward with borrowed arguments and supporting documents from David Prater, District Attorney for the Seventh Judicial District, Petitioner v. {o0s6o745 DOC 2} 4Adam Luck, individually as a member of the Pardon and Parole Board; and Kelly Doyle, individually as a member of the Pardon and Parole Board, Oklahoma Supreme Court Case No. 119,839 (“Prater v. Doyle") a case seeking identical relief against the same Respondents. Prater v. Doyle was decided by this Court the same day Petitioner filed his Application. The Petitioner admits his Application was untimely yet Respondent Doyle was forced to respond to another attempt to destroy her reputation. In his Application Petitioner attacked Respondent Doyle in an attempt to remake the Pardon and Parole Board and interfere with the outcome of the Pardon and Parole Board proceedings. Frivolous steps beyond the bounds of legitimate advocacy by any Petitioner, more so when initiated by an official vested with the authority and responsibility of the Oklahoma Attorney General IL PETITIONER KNEW HIS APPLICATION WAS UNTIMELY WHEN IT WAS FILED AND HE FAILED TO ARGUE ANY BASIS AUTHORIZED UNDER OKLAHOMA SUPREME COURT RULE 1.191(i) TO EXCUSE THE UNTIMELY FILING. A. Petitioner’s application was untimely. Applications requesting that this Court assume original jurisdiction must be filed with the clerk of this Court at least ten (10) days prior to the date the cause is set for heating. Ofla.Sup.CL.R 1.191(). In this instance, as of the date Petitioner filed his Application the Pardon and Parole Board hearing involving Julius Jones was set for hearing on October 26, 2021. The Application was filed on October 18, 2021. Petitioner admits his Application was untimely when filed. See, Petitioner's Application to Assume Original Jurisdiction (Case No. 119,929), page 6. (00369745 DOC 2} 5B. Petitioner offers no argument that the grounds for relief were not known or could not be discovered prior to the ten (10) day filing deadline established by Okla.Sup.Ct.R. 1.191(). Pursuant to this Court’s Rule 1.191(i) an untimely filing can be excused if a petitioner “alleges and shows that asserted grounds for relief were not known, ot could not reasonably have been discovered, prior to the ten-day period.” OklaSup.CtR 1.191(i). Given his participation in the Julius Jones proceedings leading up to the Application and having borrowed from the Oklahoma County District Attomey’s pleadings, the Petitioner could not allege he didn’t know or could not have discovered the grounds for his Application to permit a timely filing. Any circumstances that would have given rise to the only exception to the ten (10) day filing requirement were not offered. C.Petitioner’s untimely Application is not made timely through the actions of Julius Jones. A flawed and untimely filing is not remedied by circumstances unrelated to the Petitioner’s initial failure to comply with this Court's rules. While acknowledging the ‘Application is untimely, Petitioner argues that his untimeliness may ultimately be remedied if the Julius Jones hearing before the Pardon Parole Board is delayed. See, Petitioner's Application to Assume Original Jurisdiction (Case No. 119,929), page 6-10. In an ironic twist, the Petitioner argues that his untimely Application could be transformed into a timely Application if Julius Jones’ continued his efforts to avoid execution - which may then delay the Pardon and Parole Board hearing, make Petitioner’s Application timely, give Petitioner the ‘opportunity to remake the Pardon and Parole Board, and move forward with Julius Jones’ execution. The argument was frivolous and the Application untimely. (00369745 DOC 2} 6mw. PETITIONER FAILED TO INDEPENDENTLY INVESTIGATE THE ALLEGATIONS SUPPORTING HIS APPLICATION - IT ASSERTED CLAIMS AGAINST THE SAME PARTIES, WAS BASED UPON THE SAME ARGUMENTS AS THOSE USED IN PRATER V. DOYLE, DECIDED BY THIS COURT’S ORDER ON OCTOBER 18, 2021. Without independent investigation the Petitioner filed his Application using the same allegations, investigation, and arguments offered by District Attomey Prater in Prater v. Doyle, Petitioner admits this fact In candor, the documents in the appendices were provided to the undersigned by District Attorney David Prater. ‘Thus, Petitioner did not have to conduct the investigation that led to the evidence. The undersigned also borrowed from Mr. Prater’s motions, which saved some time. However, it was still necessary to review the appendices, make independent judgments about what to include and how to argue it, and to prepare the requests with the new evidence obtained since Mr. Prater filed his application in this Court. See, Petitioner's Application to Assume Original Jurisdiction, pp. 8-9, Footnote 3. Petitioner conducted an “independent investigation” of the box of documents the Oklahoma County District Attomey provide him. Distriet Attorney Prater defined the limits of the investigation (the box of documents provided to Petitioner) and Petitioner stayed within that box. Petitioner ‘was not being independent, he was being dependent - which is a better explanation for why he filed the Application. W. THE PURPOSE FOR THE PETITIONER'S APPLICATION WAS TO DELAY AND DISRUPT THE PARDON AND PAROLE BOARD PROCEEDINGS. THE PARDON AND PAROLE BOARD AND ITS PROCESSES ARE AUTHORIZED BY THE OKLAHOMA CONSTITUTION. Petitioner attempted to interfere with the Pardon and Parole Boatd proceedings by putting forth frivolous arguments designed to create a method and basis for disqualification which is not permitted by the Oklahoma Constitution or Oklahoma Statutes. The Oklahoma Constitution and {00369745 DOC 2} 7Oklahoma Statutes address the qualifications and grounds for removal and disqualification of Board members and neither authorize the use of this Court’s original jurisdiction to remove or disqualify a Pardon and Parole Board member under the circumstances alleged by the Petitioner. The Oklahoma Constitution, Article VI, Section 10 specifically provides when a Pardon and Parole Board member must refrain from acting. Attorney Board members are prohibited from representing persons charged with felony offenses. Okla, Const. Art VI, Sec 10. The Oklahoma Constitution, Article VI, Section 10, further provides that “appointed members shall hold their offices coterminous with that of the Governor and shall be removable for cause only in the manner provided by law for elective officers not liable to impeachment.” Okla. Const. Art VI, See 10. The Constitution does not include prohibitions limiting Respondent Doyle's employment activities and does not require that she refrain from acting as a member of the Board. ‘The Oklahoma legislature specifically identifies the only grounds for disqualifying Board members. From and after the effective date of this act, no member of the Pardon and Parole Board and/or their Jaw firm or law partners or associate may represent in a legal capacity any inmate incarcerated in any state penal institution. If a member of the Pardon and Parole Board, or his law partners or associate or any member of his law firm undertakes the representation of an inmate in violation of this prohibition the ‘member of the Board shall forfeit his office. In any case in which an inmate requesting ‘a pardon or parole was represented in a legal capacity by any member of the Pardon and Parole Board and/or their law firm or law partners or associate prior to imposition of aprison term, the Board member who represented such inmate shall be disqualified from voting on such inmate's request for a pardon or parole. 57 OS. $332.15. The legislature has established the grounds for disqualification. Those grounds are inapplicable to Respondent Doyle. V. AUTHORITY This Court’s Rule 1.191(j) provides as follows: Sanctions. {00369785 DOCK /2} 8Sanetions for the filing of a frivolous application to invoke this Court's extraordinary powers to issue original jurisdiction writs may be invoked against the party filing such proceeding in favor of the party required to defend against it (including a real party in interest). Sanctions may include an award of costs and attorney's fees. A frivolous proceeding may include one brought for the sole purpose of delay or to disrupt the proceeding in the court below or a proceeding so obviously without, any merit as to impute bad faith on the party bringing the action. Where the filing of such proceeding is in good faith, sanctions will not be imposed. See 12 OS. § 995. Okla. Sup.CtR 1.1914). The Oklahoma Supreme Court has applied Rule 1.191 (j), and determined that an award of attorney fees was warranted when a plaintiff invoked this Court’s original jurisdiction seeking the disqualification of a judge. Frazier sought disqualification of the judge under Rule 15, arguing the continuance was unauthorized by law and established the appearance of impropriety. Frazier v, Bruce, 2021 OK 14, 484 P.3d 285. Denying the petition for disqualification, this Court noted that the “Ms. Frazier’s basis for the disqualification was completely insufficient.” Id. This Court also held that “[A] filing seeking to invoke this Counts original jurisdiction to disqualify a judge where the sole basis for disqualification has been routinely rejected by this Court amounts to a frivolous filing.” Id. (citing to Okla.Sup.Ct.R, 1.191(). VI. CONCLUSION AND REQUEST FOR RELIEF Respondent Doyle requests that this Court exercise its discretion and sanction Petitioner for filing a frivolous Application. Okla Sup.C1.R. 1.191(). Petitioner not only knew this matter was untimely when it was filed, Petitioner fails to allege any basis authorized under Rule 1.191(j) as an exception to an untimely filing, Petitioner borrowed the arguments and the supporting Appendices from the petitioner in Prater v. Doyle, failed to independently 00369745 DOCK /2} 9investigate the allegations against Respondent Doyle, and recklessly presented to them to this, Court, Finally, Petitioner's Application was an attempt to remove a Pardon and Parole Board member with total disregard for the Constitutional and statutory grounds for addressing a Board member's qualifications and removal. Respondent Doyle requests that this Court sanction Petitioner and that the sanctions include awarding Respondent Doyle the costs and attorney’s fees associated with responding to Petitioner's Application and submitting this request for sanctions. Should the Court grant Respondent Doyle’s request for sanctions and award attorney's fees, Respondent Doyle will, at the direction of the Court, submit her fees and expenses for consideration. Respectfully submitted, i Kevin P. Doyle, OBY7#13269 PRAY WALKERA.C. 100 West Fifth Street, Suite 900 ‘Tulsa, Oklahoma 74103-4292 Tel: (918) 581-5516 Fax: (918) 581-5591 Email: kdoyle@praywalker.com Attorney for Respondent Kelly Doyle (0369745 DOCK /2} 10CERTIFICATE OF MAILING | certify that a true and correct copy of this Response was mailed this 10th day of ting it in the U.S. Mail, postage prepaid, (ii) facsimile, or (iii) David A. Cincotta Mark Barrett Attomey & Counselor at Law Local Counsel for Julius Jones Cincotta Law Office, PLLC LILN. Peters 3422 NW 135th Street Norman, Oklahoma 73070 Oklahoma City, OK 73120 barrettlawoftice@gmail.com david@cincottalawoffice.com Jennifer L. Crabb Evan B. Gatewood Assistant Attorney General Hayes, Magrini, & Gatewood 313 NE 2Ist Street 1220 N. Walker Ave. Oklahoma City, Oklahoma 73105 Oklahoma City, Oklahoma 73103 Jennifer. Crabb @oag.ok gov egatewood@hmglawyers.com Michael W. Lieberman Assistant Federal Public Defender Capital Habeas Unit Federal Public Defender, District of Arizona 850 West Adams Street, Room 201 Phoenix, AZ 85007 Michael _Lieberman@fd.org (00365748 DOCK /2} u