Thursday, August 24, 2006

Opala Case Going to SCOTUS

Judge pursues discrimination suit

By John Greiner
The Oklahoman

Oklahoma Supreme Court Justice Marian Opala is taking his age discrimination legal battle against his fellow justices to the U.S. Supreme Court, his attorneys said in a prepared statement Wednesday.

Last month the 10th U.S. Court of Appeals dismissed Opala's lawsuit against the other justices. The lawsuit grew out of a rule change that Opala said kept him from becoming chief justice in 2005.

The rule change occurred Nov. 4, 2004, and Opala filed a lawsuit in federal court against the other eight justices in January 2005.

The rule change allowed Chief Justice Joseph Watt to serve a second, two-year term. Opala, who has served as chief justice before, was scheduled to be chief justice again under a longstanding rule that was replaced by a new rule.

In past years, some justices have served more than one term but not a consecutive term.

The law firm of Ward & Glass issued a news release stating, "our sole concern is for Justice Opala's loss of opportunity as well as for Oklahoma's institutional interest in having an order of the court leadership succession that is unclouded by failure to conform to the requirements of the federal constitution."

Opala referred questions to his attorney, Stan Ward, who was unavailable for comment.

The statement from the law firm said, "In this quest for correction no money damages are sought."

The U.S. Supreme Court will be asked to review the 10th Circuit ruling, the law firm said.


I have heard but cannot prove that His Honor was active in the Polish Resistance movement during WWII, escaped to England and then volunteered to be parachuted back in. I have also heard that he was befriended by an Oklahoma soldier who helped him come to Oklahoma after the war. But, regardless of the rumors, Justice Marion Opala is one of those rare men of the law who understands the dangers of an overreaching burueacracy, especially when it come to the law and lawyers and is not afraid to say so from the bench. For example:

Opala, J., dissenting.

¶1 Today’s ruling – that certain respondent’s communications with his client violated Rule 8.4(e)1 – offends the free speech guarantee of Art.2 § 22, Okl. Const.2 Respondent may not be disciplined for utterances that so clearly fall within the rubric of protected political speech.3 For an analysis of the balance between attorneys’ speech and First Amendment rights see The First Amendment and Attorney Discipline for Criticism of the Judiciary: Let the Lawyer Beware, 15 N.Ky.L.Rev. 129 (1988). Section 22, whose [29 P.3d 557] language has an even broader sweep than that of the First Amendment,4 absolutely shields the expressions which form the basis of this proceeding.

¶2 I do not suggest that a lawyer may not be disciplined for soliciting, accepting or requesting a bribe. I would gladly join the court if these were indeed the facts in this case. It is one thing for a lawyer to state (or imply) to a client that he has the ability to influence a district attorney and then offer to do so; it is quite another for a lawyer not to rule out that a district attorney (or any other government official) might be subject to improper influences. There is no affirmative proof here that respondent ever intended to participate in any illegal conduct – a view which both the PRT panel and this court share. Respondent’s failure firmly to reject the possibility of government corruption is undoubtedly protected by national and state free-speech guarantees. As a comment on the operation of governmental affairs, the matter plainly lies at the heart of political speech.5

¶3 By accepting a license to practice law, Bar members are required no more than to conduct themselves in a manner that is consistent with lawful behavior and be compatible with orderly administration of judicial process;6 they are neither expected nor required to relinquish fundamental constitutional freedoms. The court’s pronouncement imposes upon a licensed Oklahoma legal practitioner the affirmative duty to stand "four square" for the purity of criminal law enforcement process and to whitewash it even when a doubt may exist. The lawyer is forced affirmatively to assert that all is well with the prosecutorial service; he is free neither to suspect nor to be apprehensive that, in fact, things are not so well. Implicit in the expected affirmations is the disturbing notion that lawyers must serve as enthusiastic cheerleaders for the government. I view § 22 as commanding the government to maintain the very same neutrality that the U.S. Supreme Court has found to be embodied in the First Amendment’s protection of free expression.7 Had respondent been vocally denying the possibility of any corruption in the prosecutor’s office, no disciplinary action would likely have followed and this case would not have been called to our attention.

¶4 By counseling the court that respondent’s comments are indeed shielded, I do not mean to condone his failure affirmatively to state that he would not participate in any improper action. What I emphatically and firmly advance is that professional discipline should not be invoked to chill free speech. Today’s opinion places a higher burden on a practitioner than any licensed legal professional may be required to bear in the constitutional order of our free society.

¶5 Lawyers are not government mouthpieces to be programmed for incantation of an absolution mantra that will sanctify officialdom in power.8 The court’s pronouncement reduces them to the very same status they were forced to endure in the most repressive totalitarian regimes of yesteryear’s Europe. I cannot countenance a decisional [29 P.3d 558] course that turns the Bar into mindless champions for government-dictated orthodoxy.

Opala Dissenting, STATE ex. rel. OKLAHOMA BAR ASS'N v. ERICKSON, 2001 OK 66


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