THE OKLAHOMA BAR JOURNAL 34 | APRIL 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. the state in litigation, the purpose of the separation of powers is “not to promote efficiency but to preclude the exercise of arbitrary power.”49 By allowing both the governor and the attorney general to express their competing litigation positions, each side is subjected to rigorous examination. This “inevitable friction ... save[s] the people from autocracy” and preserves constitutional order.50 ABOUT THE AUTHOR John Tyler Hammons is an attorney in Muskogee and a founding partner at Hammons Hamby & Price, who represents municipalities and other governmental clients. Mr. Hammons is a sixth-generation Oklahoman and an enrolled citizen of the Cherokee Nation. He previously served as the 47th mayor of Muskogee, and he currently serves as the city attorney for Checotah, McAlester and Tahlequah and presides as the chief municipal judge in Muskogee. ENDNOTES 1. Okla. Const. Art. VI, §2. 2. Okla. Const. Art. VI, §8, cl. 1. 3. 74 O.S. §18. 4. 74 O.S. §18b(A)(3). 5. Wentz v. Thomas, 1932 OK 636, ¶8, 15 P.2d 65, 109. 6. Okla. Const. Art. IV, §1. 7. Trapp v. Cook Construction Co., 1909 OK 259, ¶11, 105 P. 667, 670. 8. Id. Accord Dank v. Benson, 2000 OK 40, ¶6, 5 P.3d 1088, 1091 (“constitutional order is offended” when power is exercised by the wrong official). 9. U.S. Const., Art. II, §1, cl. 1 (“The executive Power shall be vested in a President of the United States of America.”); Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 213 (2020) (“The entire executive Power belongs to the President alone.”) (internal quotation omitted). 10. Okla. Const., Art. IV, §1, cl. 1 (“The Executive authority of the state shall be vested in a Governor [and] ... Attorney General.”). 11. Insurance Co. of North America v. Welch, 1915 OK 914, ¶12, 154 P. 48, 52. 12. State ex rel. West v. Huston, 1910 OK 259, 113 P. 190, 198. Compare with Seila Law LLC, 591 U.S. at 213 (federal executive officials “must remain accountable to the president, whose authority they weld”) (emphasis added). 13. State ex rel. Taylor v. Cockrell, 1910 OK 374, ¶3, 112 P. 1000, 1000. 14. Okla. Const., Art. IV, §2. 15. Keating v. Edmondson, 2001 OK 110, ¶16, 37 P.3d 882, 889. 16. 1908 OK 157, 97 P. 982. 17. Id. at 990. 18. Id. at 986. 19. Id. at 995. Accord Trapp, 1909 OK 259, ¶16, 105 P. at 672 (duties assigned by the constitution to specific officers, either expressly or impliedly, may not be altered by the Legislature). 20. The statute in question was Section 6567 of the Revised Statutes of Oklahoma Territory. Although adopted by the territorial legislative assembly, Section 2 of the schedule attached to the state constitution provided all territorial laws would continue in force and effect unless repugnant to the new constitution or until repealed by the new state Legislature. 21. Haskell, 1908 OK 157, 97 P. at 986. 22. State ex rel. Cartwright v. Georgia-Pacific. Corp., 1982 OK 148, ¶6, 663 P.2d 718, 720. 23. Okla. Const. Art. VI, §8. 24. Cartwright, 1982 OK 148, ¶10, 663 P.2d at 721. 25. Vandelay Entm’t, LLC v. Fallin, 2014 OK 109, ¶12, 343 P.3d 1273, 1276. 26. Haskell, 1908 OK 157, 97 P. at 985. 27. Johnston v. Conner, 1951 OK 262, ¶8, 236 P.2d 987, 990. Accord State ex rel. Murray, for Use & Benefit of Sapulpa State Bank v. Pure Oil Co., 1934 OK 514, 37 P.2d 608 (governor may act to execute the law when usual official fails or refuses to do so). 28. The governor – through his territorial-era predecessor – has possessed special counsel powers since the organization of Oklahoma Territory in 1890. See Section 6592 of the Revised Statutes of Oklahoma Territory of 1903. This territorial-era provision was subsequently readopted by the state Legislature as 74 OS §6. 29. Section 6567 of the Revised Statutes of Oklahoma Territory of 1903. This section was subsequently reenacted by the state Legislature as 74 OS §11 (now repealed). 30. Dupree v. State, 1918 OK CR 31, 171 P. 489, 491. 31. 1939 OSL 20 (codified as 74 OS §18c). 32. Id. at §1 (codified as 74 OS §18). 33. Id. at §3(c) (codified as 74 OS §18b(A)(3)). 34. State ex rel. Nesbitt v. Dist. Court of Mayes Cnty., 1967 OK 228, ¶17, 440 P.2d 700, 707. Accord State ex rel. Derryberry v. Kerr-McGee Corporation, 1973 OK 132, 516 P.2d 813. 35. 1939 OSL 20, §3(c) (codified as 74 OS §18b(A)(3)). 36. 2025 OK 4, _ P.3d _. 37. The federal Indian Gaming Regulatory Act (25 USC §2701 et seq.) allows federally recognized Indian tribes to engage in casino operations if the state in which the casino is located enters a compact with the tribe at issue permitting the same. State approval of such gaming compacts is governed by the Oklahoma State-Tribal Gaming Act. 3A OS §261 et seq. 38. Cherokee Nation, et al. v. United States Department of the Interior, et al., case pending, Case No. 20-CV-2167-TJK, United States District Court for the District of Columbia (docketed Aug. 6, 2020). 39. The Oklahoma Revised Uniform Certification of Questions of Laws Act (20 OS §1601 et seq.) allows a federal court to certify an unresolved question of Oklahoma law to the Oklahoma Supreme Court for a definitive answer in order to allow the federal court to correctly apply state law in pending federal cases. 40. 2025 OK 4, ¶27, _ P.3d _. (citing with approval Riley v. Cornerstone Community Outreach, Inc., 57 So. 3d 704 (Ala. 2010)). 41. Id. at ¶¶24; 28. 42. Id. at ¶25 (citing with approval State ex rel. Stubbs v. Dawson, 86 Kan. 180, 119 P 360 (Kan. 1911)). 43. Id. at ¶28. 44. Id. at ¶27. 45. Id. at ¶30 (citing Haskell). While reaffirming the governor’s constitutional authority to employ special counsel, the court also noted state statute recognized this power by expressly limiting the attorney general’s powers as they relate to the governor. Cherokee Nation, 2025 OK 4, ¶18, _ P.3d _ (citing 74 OS §§6; 18c(A)(4)(a)). 46. Id. at ¶33. 47. Id. at ¶54 (citing State ex rel. Howard v. Corporation Commission, 1980 OK 96, 614 P.2d 45) (holding the various constitutional officers in Oklahoma’s plural executive are permitted to concurrently present litigation views that differ from those of the attorney general on matters that affect their own authorities). See also Teleco, Inc. v. Corporation Commission, 1982 OK 93, 649 P.2d 772 (holding the attorney general may not use their litigation powers to undermine the positions expressed by a constitutional officer while serving as their counsel). Contrast with Battle v. Anderson, 708 F.2d 1523 (10th Cir. 1983) (holding the litigation position adopted by the attorney general, as the statutory chief law officer of the state, must prevail over the competing views of a statutory officer). 48. Id. at ¶55. 49. Dank, 2000 OK 40, 5 P.3d at 1091. 50. Id.
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