¶1 Deborah Ann Leftwich was tried by bench trial and convicted of Count II,
Soliciting and/or Accepting a Bribe from Another for Withdrawal of Candidacy in
violation of 26 O.S.2001, §
16-108, in the District Court of Oklahoma County, Case No. CF-2010-8067.1 The Honorable
Cindy H. Truong sentenced Leftwich to one (1) year imprisonment, suspended, with
the provision that she is prohibited from running for office in the State of
Oklahoma or seeking employment with the State. Leftwich waived for appeal all
issues except the legal issues surrounding the terms "candidate" and "withdraw".
Leftwich appeals from this conviction and sentence, and raises three
propositions of error in support of her appeal.
¶2 Leftwich, a Democrat, represented Senate District 44 in the Oklahoma State
Senate, serving a term which ended in November 2010. After her election in 2006,
Leftwich filed a statement of candidacy for the 2010 election cycle with the
Ethics Commission and created a candidate committee for her reelection to her
Senate seat. From 2007 through 2010, Leftwich solicited contributions for and
made expenditures from her campaign fund for her reelection campaign; over the
course of that time she raised about $110,000.00. As late as April 2010, she
authorized and attended a fundraiser for her campaign. However, on May 28, 2010,
the last day of the legislative session, Leftwich issued a press release
announcing that she would not run for reelection in 2010. This prosecution is
the consequence of the actions which preceded that announcement. Both defendants
below argued that their actions were part of the normal, messy legislative
process. After a thorough review of the record, we agree with the preliminary
hearing magistrate that "when the evidence is looked at as a whole in this
matter in its entirety, it is clear this exceeds business as usual."
¶3 Before her election to the Senate, Leftwich worked for several years in an
administrative capacity for the state Medical Examiner's office. Under the
retirement plan for state workers, one's average annual salary, on which
retirement benefits are based, is calculated by using the highest three years'
salary of the last ten years the employee worked for the State. Retirement
benefits are for a lifetime. Leftwich made approximately $38,000.00 per year as
a state Senator. Anyone interested in calculating potential retirement benefits
may contact an employee of the Oklahoma Public Employees Retirement System
(OPERS), or may use an online calculator available on the OPERS website. For
this trial, Rebecca Catlett of OPERS was asked to calculate Leftwich's potential
retirement benefits in three different circumstances. Leftwich's actual
retirement benefits, based on her decision not to run for reelection in 2010,
were $1,920.00 per month. Had she run for reelection in 2010, won, and served
another four years in the Senate, her retirement benefits would have been
$2,240.00 per month. Had she retired from the Senate in 2010 and taken a
position with the State for three years at a salary of $80,000.00 per year, her
retirement benefits would have been $3600.00 a month. The last option represents
an 87.5% increase over her regular retirement sum, and a 60.7% increase over the
benefits from serving another term in Senate.
¶4 By 2010, the Medical Examiner's office was in serious disarray. It had
lost accreditation, had outgrown its outmoded facility, and had lost several
agency heads and employees in a short amount of time. Governor Henry had
commissioned a report on the office, known as the Cline Report; the legislature
had also studied the agency. Senate Bill 738, which proposed reforms for the
office, was introduced in 2009. Fixing the Medical Examiner's office was a
priority, and SB 738 was a leadership bill, meaning that it was sponsored by the
President Pro Tem of the Senate and the Speaker of the House. The bill did not
pass in 2009 and was reintroduced in 2010. Senator Anthony Sykes handled the
bill for the Pro Tem in the Senate, and Representative Randall Terrill handled
it for the Speaker of the House. As initially introduced in 2010, SB 738 changed
the characteristics of the Board governing the Medical Examiner's office, made
other administrative changes, and provided that the office should move to a
newly constructed building in Edmond, near the University of Central Oklahoma
campus and its forensic facilities. The bill did not include a Transition
Coordinator position at that time, and that position was not a priority for
either Senate President Pro Tem Glenn Coffee or House Speaker Chris Benge.
¶5 In late March or mid-April 2010, Leftwich told her friend Tom Jordan,
Chief Administrative Officer for the Medical Examiner, that she would not run
for reelection and wanted to come back to the Medical Examiner's office. She
said that this was not public knowledge, and told Jordan that State
Representative Mike Christian might run for her Senate seat. In March of 2010,
Leftwich went to see Senate Pro Tem Coffee and told him she was considering not
running for reelection; she did not mention returning to the Medical Examiner's
office. On April 19, Leftwich told Senator Patrick Anderson, a Republican, that
she was working on a deal with his leadership to go back to work for the Medical
Examiner, but that she could not talk about it. Around May 1st Leftwich told
Senator Charlie Laster, minority leader of the Senate Democrats, that she was
not going to run; he was shocked because she was at that time raising money and,
in his opinion, running for reelection. Laster asked Leftwich not to make a
public announcement until he had time to recruit a candidate to run in her
place. Leftwich did not tell him she had already talked to the Republican
leadership. Polling showed that, while Leftwich was popular in her district, if
she did not run the seat would probably go to a Republican candidate. At the
time, the political balance of the Senate was very close and the Republican
majority hoped to add Leftwich's Senate district.
¶6 Representative Terrill was subcommittee chair of the Appropriations and
Budget Committee for Public Safety and the Judiciary. In this position he had
authority over the budget of several state agencies, including the Oklahoma
Bureau of Narcotics (OBN) and the Medical Examiner. Terrill was involved from
the outset in the plan for Leftwich to leave the Senate and return to the
Medical Examiner's office. Terrill originated the Transition Coordinator
position; Tom Jordan did not ask for the position, but did not oppose it in
principle. In late March or early April 2010, Terrill told Chad Alexander, a
political consultant and lobbyist, that Leftwich might be returning to the
Medical Examiner's office. On May 17, 2010, Terrill met with Jordan and Cherokee
Ballard, an executive administrator and legislative liaison with the Medical
Examiner's office. Before their conversation began, Terrill closed the door to
his office suite and said, "This is dead man's talk." Terrill told Jordan and
Ballard (a) that Jordan, as Chief Administrative Officer, would need to offer
the Transition Coordinator position by July of that year, (b) the position
needed to be filled the following January, and (c) that it would be a three-year
position. Terrill told the two that Leftwich was ideally suited for the job.
Leftwich was the only person Terrill mentioned in connection with the position.
Terrill asked what Ballard's salary was, asked what Jordan's salary was, said
they would "put Debbe in between", and settled on a salary of $80,000.00 per
year. After that meeting, Ballard and Jordan agreed that the conversation didn't
pass the smell test; they felt Jordan was being told to hire Leftwich for the
Transition Coordinator position at $80,000.00 a year for three years, beginning
the following January, without considering any other person for the job. While
Jordan did not intend to offer the position to Leftwich, he allowed Terrill and
Leftwich to think otherwise. After May 17, in discussions with Jordan, Leftwich
routinely talked as if she would be returning to the Medical Examiner's
office.
¶7 On May 19, Terrill met with Senator Anthony Sykes and Jennifer Lepard, a
Senate staffer responsible for drafting the language of the conference committee
version of SB 738. Terrill, reading from his own notes, gave Lepard the specific
language for the amendment to SB 738 creating the Transition Coordinator
position. This was the first time Lepard had heard of the position. The
provisions Terrill dictated included a three-year fixed term with an $80,000.00
yearly salary, terminated only for cause, hired by the Chief Administrator but
reporting to the Medical Examiner Board as well as the legislative and executive
branches, an offer to be made by July 1, 2010, with the position to begin
January 1, 2011. Several witnesses, including Lepard, testified it was highly
unusual for a statute to include such specific employment details describing a
lower-level agency position. Lepard and other witnesses also testified it was
unusual for a Representative to dictate language to a Senate staffer to be
inserted in a Senate bill. After this conversation, Leftwich joined the meeting
and they discussed the general provisions of SB 738, but not the Transition
Coordinator position.
¶8 State law prohibits legislators from taking a state position funded by
appropriation for two years following their retirement from the legislature. In
an earlier legislative session, Terrill had been instrumental in creating a
revolving fund for the OBN, for money collected from a wire transfer fee. The
fund grew to several million dollars, more than originally anticipated, and
Director Weaver of the OBN understood that legislators might redirect that money
and appropriate it for other agencies that were suffering under budget
constraints. During the May 17 meeting, Jordan asked whether Leftwich, as a
former legislator, would be prohibited from taking the job. Terrill explained
the position would be paid from an Oklahoma Bureau of Narcotics revolving fund
rather than appropriated funding; Terrill described this as his fund. When
explaining the Transition Coordinator position in SB 738, Terrill told Rep.
Marian Cooksey that the funding for the salary was coming from his own private
"slush fund". During the last days of Session, Terrill asked Ken Miller, then a
Representative and Chair of the House Appropriations Committee, for a spending
bill which would appropriate extra money for the Medical Examiner's office,
specifically for the Transition Coordinator position. Miller agreed, and the
funding for the Transition Coordinator was included in a separate bill, HB 2486,
which appropriated $90,000.00 from the OBN revolving fund and moved it to the
Medical Examiner's office. Terrill told Senator Sykes that this money would pay
for pathologists, and did not mention the Transition Coordinator position. After
HB 2486 passed, Jordan was advised that, because the money from the OBN fund had
been appropriated for the Medical Examiner's office, Leftwich could not legally
retire from the Senate and take that position the following year.
¶9 Representative Mike Christian had decided to run for Leftwich's Senate
seat. Christian recalled that Senate Pro Tem Coffee told him in early February
2010 that Leftwich might not run for reelection. Sometime in March, Leftwich
approached Christian at the Capitol, said she had heard from a constituent about
a telephone call polling her district voters which named the two of them as
opposing candidates and, in tears, asked whether he was running against her.
Another Senator told Christian that Leftwich was a nice lady and he shouldn't
run against her. From these conversations, Christian believed Leftwich was
running for reelection. Christian first heard about the Transition Coordinator
position on April 26, 2010. At a party a week before Session ended, Christian
told someone that Leftwich might go to the Medical Examiner's office and he
would probably run for her seat. Shortly after that party, Terrill approached
Christian and relayed the message that Leftwich wanted Christian to keep his
mouth shut about her not running for reelection and instead going to the Medical
Examiner's office. In the same time frame, Leftwich herself approached Christian
and told him he needed to be quiet, because he was going to get her in trouble.
Christian ultimately did not run for Leftwich's Senate seat, deciding that his
candidacy would be harmed by the negative publicity from news reports of the
investigation of this case. Christian was not charged in this case, and
testified for the State.
¶10 In the last few days of Session, discussion and rumor surrounded SB 738
and its companion bill, HB 2486, which funded the Transition Coordinator
position. During this time a lobbyist told Christian that Leftwich would be the
Transition Coordinator. Senator Al McCaffrey, then a Representative, had refused
to sign the conference committee version of the bill because he could not get
information about the Transition Coordinator position. He was told after the
bill passed that Leftwich would be the Transition Coordinator. On May 28, 2010,
the last day of Session, Governor Henry visited the House and Senate to thank
legislators for their work. McCaffrey told Henry that the Transition Coordinator
position had been created for Leftwich, said he felt Leftwich was not qualified
for the position, and asked Henry to veto the bill. Another legislator told
Henry the same thing, adding that the position was created so Christian could
run for Leftwich's seat.
¶11 During May, Jordan resigned as Chief Administrator for the Medical
Examiner. On May 24, Jordan told his staff that he was resigning and that it
looked like Leftwich would return to the Medical Examiner's office. Shortly
after that day, Jordan told Terrill and Leftwich that he was leaving the Medical
Examiner's office. He told Ballard, "Debbe was severely disappointed - effects
[sic] her plan!" On May 27, after SB 738 passed, Terrill told Ballard that he
needed to meet with Jordan. Although Jordan was still employed by the agency, he
was using unexpired leave time and Ballard explained he was no longer in the
office. Terrill insisted that Jordan had to do one more thing while he was still
on the state's payroll. On June 2, 2010, Terrill and Leftwich met Jordan at the
diner in the Warren Theater in Moore. Terrill told Jordan that he had an
obligation to hire Leftwich for the Transition Coordinator position before July
1, although the Governor had not yet signed SB 738. Terrill said Jordan could
act because passage of the bill constituted a legislative mandate. Terrill made
a brief phone call to someone he described as a House staff lawyer, after which
he told Jordan that he had the authority to fill the position by July 1, even
though the Governor had not signed the bill. Jordan replied that he would ask
for an opinion from the Assistant Attorney General assigned to the Medical
Examiner's office, and follow her advice. Jordan called Sandra Balzer and told
her a legislator was pressuring him to fill the Transition Coordinator position.
Balzer advised him that he could not act on any provision of SB 738 until and
unless the Governor signed it into law. Jordan took no further action.
¶12 Henry remembered the legislators' comments to him on the last day of
Session when he considered the bills. He found no justification for the
Transition Coordinator position, and vetoed both SB 738 and its funding bill, HB
2486, on June 6, 2010. Henry was also aware that a criminal investigation
concerning the charges in this case had begun when he vetoed the bills.
¶13 Leftwich submitted a sworn affidavit as evidence in her bench trial. She
admitted that she personally solicited, accepted, and expended funds in order to
secure election in 2010 to Senate District 44, and allowed others to do so
through her campaign committee. She admitted that she wanted the Transition
Coordinator job, that she knew Terrill was promoting her for that job, and that
taking the job was inconsistent with her running for reelection and remaining in
the Senate. She conceded that she was a candidate as defined in 21 O.S.Supp.2004, § 187(4), and
admitted that the record, including her affidavit and the evidence presented in
the Terrill trial, was sufficient to support a finding of guilt.
¶14 In Proposition I Leftwich claims she was not a candidate for office.
Leftwich was convicted of violating 26 O.S.2001, § 16-108, which
provides, "Any person who shall solicit or accept from another anything of value
for withdrawing from any political contest as a candidate or nominee for any
office at any election shall be deemed guilty of a felony." Throughout these
proceedings Leftwich vigorously claimed that she was never a candidate for
election in 2010, never withdrew from a political contest, and thus could not be
prosecuted under this statute. Leftwich filed a Motion to Quash on March 25,
2013, claiming she could not be prosecuted under § 16-108. The trial court
denied the motion after a hearing on June 27, 2013. In so doing, the trial court
found that Leftwich was a candidate for office. In Proposition I, Leftwich
argues that this decision was error. This issue arises from the trial court's
denial of Leftwich's motion to quash. However, the issue, which is one of first
impression, turns on a question of statutory interpretation, and our review is
de novo. State v. Tran, 2007 OK CR 39, ¶ 7, 172 P.3d 199, 200; Smith v.
State, 2007 OK CR 16, ¶ 40,
157 P.3d 1155, 1169.
¶15 "The fundamental rule of statutory construction is to ascertain and give
effect to the intention of the Legislature as expressed in the statute." Soto
v. State, 2014 OK CR 2, ¶ 7,
326 P.3d 526, 527. When
construing criminal statutes, we follow the rule of strict construction.
Tran, 2007 OK CR 39, ¶ 8,
172 P.3d at 200. We will not, in order to justify prosecution of a person for an
offense, enlarge a statute beyond the fair meaning of its language or what its
terms justify. Id. We construe any criminal statute strictly against the
State and liberally in favor of the accused. Id.; Fenimore v.
State, 2003 OK CR 20, ¶ 5,
78 P.3d 549, 551. We give
statutory language its plain and ordinary meaning. King v. State, 2008 OK CR 13, ¶ 7, 182 P.3d 842, 844; Tran, 2007 OK CR 39, ¶ 10, 172 P.3d at
200-01; 25 O.S.2011, § 1. To
determine the legislature's intent, we begin with the statute itself, but may
consider similar statutes, case law and dictionary definitions, the evil to be
remedied, and the consequences of any particular interpretation. King, 2008 OK CR 13, ¶ 7, 182 P.3d at
844; see also State v. Anderson, 1998 OK CR 67, ¶ 3, 972 P.2d 32, 33; Lozoya v.
State, 1996 OK CR 55, ¶ 20,
932 P.2d 22, 29. We construe
statutes together, avoiding any interpretation which would render any part of
them useless, superfluous or inconsistent, and will try to reconcile potentially
conflicting provisions. State ex rel Mashburn v. Stice, 2012 OK CR 14, ¶ 11, 288 P.3d 247, 250; King, 2008 OK CR 13, ¶ 7, 182 P.3d at
844; Lozoya, 1996 OK CR
55, ¶ 17, 932 P.2d at 29. We presume that a statute enacted by the
legislature is constitutional. Arganbright v. State, 2014 OK CR 5, ¶ 15, 328 P.3d 1212, 1216.
¶16 Leftwich claims the trial court incorrectly defined "candidate". Title 26
contains the Election Code. Leftwich argues that Title 26 exclusively defines
"candidate" in the statute titled "Declarations of Candidacy Required": "A
person may become a candidate for office and have his name appear on a ballot
only after he files a Declaration of Candidacy as hereinafter provided." 26 O.S.2001, § 5-101. Leftwich uses
§ 5-101 to claim that "candidate", in Title 26, means only and exclusively a
person who has filed a Declaration of Candidacy. We reject this interpretation
of § 5-101. This section is found in Article V of Title 26, titled "Filing". It,
and the other sections in Article V to which Leftwich refers, are descriptions
of things candidates must do to file for election to office.2 Specifically, § 5-101
describes the way in which a candidate is eligible to have her name appear on a
ballot. Nothing in the plain language of that statute, or any other provision in
Title 26, suggests that it is intended to provide a comprehensive definition of
"candidate" for purposes of the Election Code or any prosecutions under that
Code.
¶17 Leftwich relies on State v. Tran, supra. In Tran,
this Court considered the definition of "vehicle" in Title 47, and its
application to a specific statute, 47 O.S. § 10-102.1, which requires the driver
of any vehicle involved in an accident to immediately stop and remain or return
to the scene of the accident. The State sought to prosecute Tran under this
statute for a fatality accident caused when a loveseat fell from his vehicle.
Tran was aware of this but neither stopped nor retrieved the item, and another
vehicle overturned while attempting to avoid the furniture on the roadway. This
Court noted that Title 47 specifically defined "vehicle", and differentiated
"vehicle" from a load carried by a vehicle. Tran, 2007 OK CR 39, ¶ 9, 172 P.3d at
200. Given that specificity the Court concluded that using strict construction,
"vehicle" in § 10-102.1 could not be broadened to include a vehicle's cargo;
this conclusion was supported by the plain and ordinary use of "vehicle", which
did not include its load. Id. at ¶ 10, 172 P.3d at 200-01. Tran is
easily distinguishable from the question of statutory interpretation at issue
here. Tran is important not for where, or how, the word "load" was found
within specific statutes found in Title 47. The point of Tran, here, is
that Title 47 specifically defined "vehicle" in a general definitions provision
intended to apply to all statutes within Title 47. The Court merely applied that
statutory definition to a particular statute within Title 47. By contrast, Title
26 does not define the term "candidate". Therefore, we cannot, as we did in
Tran, turn to a general definition found in Title 26 to conclude that
Leftwich's conduct either includes or excludes her as a candidate under Title
26.
¶18 As Title 26 contains no comprehensive definition of "candidate", we turn
to other sources. First, we look to the common and ordinary meaning of the word
"candidate". Anderson, 1998 OK
CR 67, ¶ 5, 972 P.2d at 34. Merriam-Webster defines "candidate" as "a person
who is trying to be elected". Merriam-Webster Dictionary,
www.merriam-webster.com (2015). Webster's New World Dictionary defines
"candidate" as "a person who seeks, or who has been proposed for, an office, an
award, etc." Webster's New World Dictionary 206 (2nd college ed. 1986).
The term has no different meaning as a legal term of art; Black's Law Dictionary
defines "candidate" as "One who seeks or offers himself, or is put forward by
others, for an office, privilege, or honor." Black's Law Dictionary 187
(6th ed.). The conduct Leftwich admitted in her affidavit would make her a
candidate under these definitions.
¶19 In consulting other sources, we also consider the purpose of the
provision at issue, and look to other Oklahoma statutes with similar purposes
and provisions. Owens v. State, 2010 OK CR 1, ¶ 8, 229 P.3d 1261, 1264; Coddington
v. State, 2006 OK CR 34, ¶
56, 142 P.3d 437, 452-53. The
provision at issue is the one under which Leftwich was prosecuted, 26 O.S.2001 § 16-108, and its
corresponding statute, § 16-107. Both statutes authorize prosecution for bribery
which induces a candidate to withdraw from an election. In enacting the bribery
statutes in the Election Code, the legislature sought to prevent anyone from
subverting Oklahoma's political system, controlling a candidate's decision to
run or withdraw from a race by corrupting that decision with an offer of
personal gain. Title 21, chapter 5 of the Penal Code authorizes prosecution for
crimes relating to elections and concerning candidates.3 These crimes include betting on
elections (21 O.S.2011, § 181),
the making and communicating of unlawful offers by candidates (21 O.S.2011, §§ 182, 183), and
limits on contributions to candidates (21 O.S.Supp.2008, § 187.1, 21 O.S.2001, § 187.2).
¶20 Title 21, Chapter 5, also includes a general definitions section. 21 O.S. 2001, § 187(4)4 . The trial
court properly looked to this provision in considering whether Leftwich was a
candidate. Section 187 states:
4. "Candidate" means a person who seeks nomination or election to state
or local office. An individual is a candidate when the individual:
a. has filed a declaration of candidacy for any state office with the
Secretary of the State Election Board,
b. has filed a declaration of candidacy for any local office with the
secretary of any county election board,
c. has filed a declaration of candidacy with the Secretary of State and
has drawn active opposition,
d. is nominated as a "substitute candidate" pursuant to Section 1-105 of
Title 26 of the Oklahoma Statutes, or
e. solicits or accepts contributions, makes expenditures or gives consent
to an individual, organization, party committee, or other committee to
solicit or accept contributions or make expenditures to secure election to
any state or local office at any time, whether or not the office for which
the individual will seek nomination or election is known when the:
(1) solicitation is made,
(2) contribution is accepted, or
(3) expenditure is made.
The term "candidate" shall include a person whose candidacy is
unopposed.
This definition is consistent with the definition of "candidate" used by the
Ethics Commission at the time of this crime. Rule 257: 1-1-2, Rules of the
Ethics Commission, Title 74, Ch. 62, App. (Supp.2007). Leftwich admitted at
trial that she was a candidate under this definition.
¶21 This definition is prefaced with the phrase, "As used in Sections 1
through 3 of this act". 21 O.S.2001,
§ 187. A footnote indicates that the phrase refers to Title 21, §§
187-187.2. Leftwich argues, as she did below, that this phrase limits use of the
definition in § 187 exclusively to cases brought under §§ 187, 187.1 or 187.2.
This phrase cannot prevent this Court from considering this definition, as well
as the definition in the Ethics Rules, when attempting to determine legislative
intent. Our task is to decide what persons the legislature intended to be
eligible for prosecution under 26
O.S. §§ 16-107 and 108. In the absence of a clear and unambiguous definition
of "candidate" in Title 26, we not only may but must consider how the
legislature has defined this term in statutes with similar purpose and
circumstances. Owens, 2010 OK
CR 1, ¶ 8, 229 P.3d at 1264-65 (considering definitions in Title 10A and
Title 27A when interpreting a term in Title 21). This practice is not unusual.
This Court routinely finds itself referring to Titles 10, 47 and 63, in addition
to Title 21, in order to determine issues of criminal law.
¶22 Leftwich argues that the Ethics Code and campaign finance reporting laws
serve a different purpose from the Election Code, and that applying the
definition of "candidate" in Title 21, § 187 would render the Election Code
provisions nonsense. On the contrary, it is Leftwich's contorted interpretation
of the Election Code which results in confusion. Leftwich isolates specific
sections of the Election Code, rather than reading them as a whole. For example,
Article VI of Title 21, titled "Ballots", contains several provisions explaining
the inclusion and order of names on ballots, the uses of separate ballots in
various circumstances, and their printing and appearance. Section 6-201 of Title
26 states that unopposed candidates are deemed to have been elected, and their
names will not appear on a ballot. 26
O.S.2011, § 6-102. Leftwich argues that this provision makes no sense under
the Title 21, § 187 definition of "candidate". Leftwich misunderstands the plain
language of the Election Code. First, the Code states that, to have her name
appear on a ballot, a candidate must file a Declaration of Candidacy. 26 O.S.2011, § 5-101. No matter what
a person has done to further her candidacy - filing with the Ethics Commission,
raising or spending money, holding herself out as a candidate - she cannot get
her name on a ballot unless she obeys that provision. If, after filing her
Declaration of Candidacy, she is unopposed, she will be deemed to be elected and
her name will not appear on the ballot. 26 O.S.2011, § 6-102. This statutory
scheme is clear, unambiguous, and consistent.
¶23 Leftwich also claims use of this definition would render inconsistent
provisions in Article VIII of the Election Code. Article VIII governs election
certification and contests, including procedures for tie votes, and who may file
and participate in election result contests or recounts. Again, a reading of the
plain statutory language shows a consistent, clear, unambiguous progression.
Before a candidate can be affected by a tie vote, her name must first be on a
ballot. In order to be certified as a nominee, or if a candidate wants to
contest an election result or demand a recount, her name must first be on a
ballot. To be on a ballot, she must have filed a Declaration of Candidacy, no
matter what other steps she has taken to further her candidacy.
¶24 Leftwich argues that, if the Title 21, § 187 definition of "candidate"
applies to statutes in Title 26, it would render unnecessary the provision
allowing for substitute candidates. Once again Leftwich's insistence on reading
the statutes in isolation defeats her argument. Article I of the Election Code
governs political parties and their nominees. If a political party nominee for
office dies before the date of the general election, the party may place a
substitute candidate on the ballot by following specific provisions. 26 O.S.2011, § 1-105. Leftwich
argues that this provision makes no sense if there are "multiple ways a person
could become a candidate." Leftwich improperly frames the question. As discussed
above, no matter how many ways there are to be considered a candidate, the only
way to get on a ballot is to file a Declaration of Candidacy. The plain language
of § 1-105 requires that (a) a party candidate must already have filed a
Declaration of Candidacy and (b) must already be on the ballot. Section 1-105
sets out the way a political party's substitute candidate may get on a ballot,
if the party candidate already on the ballot dies before the election. Section
1-105 remains necessary, and is consistent with the other provisions of Title
26, using the definition of "candidate" used by the trial court.
¶25 We interpret the statutes in Title 26 together, using their plain
language. King, 2008 OK CR
13, ¶ 7, 182 P.3d at 844. The absurdities and inconsistencies Leftwich
alleges would occur, if "candidate" is defined consistent with Title 21, § 187
and the Ethics Code, simply do not exist.
¶26 Leftwich also argues that legal conduct could be criminalized if Title
26, § 16-108 does not exclusively apply to someone who has filed a Declaration
of Candidacy. She argues that, if the trial court's decision is correct, a
sitting Representative who received a contribution to run for a higher office,
rather than reelection, could be prosecuted under Title 26, § 16-108. She argues
that if the Representative were offered a job in the private sector, which
"induces" her not to run for reelection, she would commit a crime by taking the
job. These examples, like others Leftwich offered before the trial court, fail
to take into account the key language in § 16-108 and its counterpart, § 16-107.
Under the statute, the thing of value must be offered, solicited or accepted
for withdrawing from any political contest as a candidate or nominee or any
office at any election. 26
O.S.2001, § 16-108 (emphasis added). If the hypothetical Representative -
after she has met the definition of "candidate" in Title 21, § 187 - is offered
a contribution to run for a different office, withdrawal from reelection for her
current office may be a necessary consequence of her decision to accept the
contribution and run for a different office. If she is offered a job in the
private sector, she might choose to take it rather than run for reelection.
However, in either case, no crime would be committed under §§ 16-107 and 16-108
unless the original offer was made, solicited, or accepted, to cause the
Representative to withdraw from the contest for which she was then a candidate.
Furthermore, if the Representative was not yet a candidate for reelection at the
time of either offer, there would be no crime at all.
¶27 A Declaration of Candidacy can be filed with the Secretary of State only
during the three-day filing period. In 2010, the filing period ran from the
third Monday in June to the following Wednesday. 26 O.S.Supp.2004, § 5-110. Under
Leftwich's interpretation of Title 26, a person could create a candidate
committee with the Ethics Commission, and could actively raise and expend funds
towards an election campaign, and yet, if the filing period had not yet begun,
not be a "candidate" for election. This is inconsistent with the legislature's
treatment of candidates in other statutes and with the Ethics Commission's
treatment of candidates for office.
¶28 Like the trial court, we find that a candidate for purposes of Title 26,
§§ 16-107 and 108 is properly described by the definition in Title 21, § 187,
and the Ethics Code. Leftwich herself admits that she was a candidate under that
definition. This proposition is denied.
¶29 In Proposition II Leftwich claims the State failed to show she withdrew
from a political contest, and thus she committed no crime under § 16-108. Title
26 contains no specific definition of "withdraw" or withdrawal. However, Title
26, § 5-115 provides that, to withdraw from a primary election, a candidate who
has filed a Declaration of Candidacy with the Secretary of State must file a
written notice of withdrawal with the Secretary of State; the notice must be
filed on or before 5:00 p.m. on the second business day following the close of
the filing period. 26 O.S.Supp.2004 5-115. Leftwich argues, as she did at trial,
that this provision exclusively defines withdrawal from candidacy and her
actions did not fall within that definition. The trial court rejected this
argument, noting that this provision did not constitute the only way a candidate
could withdraw from a race.
¶30 We review this question of statutory interpretation de novo.
Tran, 2007 OK CR 39, ¶ 7,
172 P.3d at 200. We must reconcile statutory provisions, giving each part
effect. Mashburn, 2012 OK CR
14, ¶ 11, 288 P.3d at 250. Looking at Article V of Title 26, which governs
filing for and withdrawal from candidacy, we find not one, but three statutory
provisions concerning withdrawal. In addition to § 5-115, which Leftwich argues
contains the exclusive definition of withdrawal, we find §§ 5-116 and 5-116.1.
Section 5-116 provides that candidates who wish to withdraw from a runoff
primary election must file written notice on or before 5:00 p.m. on the Friday
following the primary election. 26
O.S.Supp.2003, § 5-116. Section 5-116.1 provides that, to withdraw from a
general election, a candidate must file written notice on or before 5:00 p.m. on
the Friday following the runoff primary election. 26 O.S.Supp.2001, § 5-116.1.
The Election Code provides not one, but three ways in which a candidate who
has filed a Declaration of Candidacy during the filing period - that is, a
candidate who is eligible to be on a ballot - may withdraw from the race,
ensuring that her name will not be on the ballot. The existence of three
separate statutes concerning withdrawal compels us to conclude (as did the trial
court) that § 5-115 does not contain the exclusive means for withdrawing from a
political contest.
¶31 Leftwich's larger point appears to be that, for purposes of every statute
within the Election Code, the only way to withdraw from a political contest is
to file a notice of withdrawal with the secretary of the election board which
accepted the candidate's declaration of candidacy - the common element among §§
5-115, 5-116, and 5-116.1. Taken together, these provisions certainly state
that, if a person has filed a Declaration of Candidacy and is eligible to be on
the ballot, filing such a notice is the only way to withdraw. However, we found
in Proposition I that the term "candidate", for purposes of Title 26, §§ 16-107
and 108, is more expansive than merely a person who has filed a Declaration of
Candidacy. Long before the filing period begins, a candidate may, for example,
raise and spend money, hold herself out publicly as a candidate, or file with
the Ethics Commission. Such a person, wishing to withdraw as a candidate, could
not file a notice of withdrawal under the Election Code provisions. However, she
could announce that she would not run for election; she could, as Leftwich
admits, choose not to file a Declaration of Candidacy, thus announcing by her
actions that she would not be on the ballot, and thus not be running for
election.
¶32 We also look to the purpose of the statutes, the evil to be remedied, and
the consequences of a particular interpretation. King, 2008 OK CR 13, ¶ 7, 182 P.3d at
844; Anderson, 1998 OK CR
67, ¶ 3, 972 P.2d at 33; Lozoya, 1996 OK CR 55, ¶ 20, 932 P.2d at 29.
We found in Proposition I that the bribery statutes were intended to prevent
subversion of Oklahoma's political system by corrupting a candidate's decision
to run or withdraw from a political race with an offer of personal gain. Ample
evidence at trial showed that candidates begin the process of fundraising,
spending, and seeking publicity months, or even years, before the filing period
for an election.
¶33 Leftwich's restrictive interpretation of Title 26 does not serve this
comprehensive purpose. A Declaration of Candidacy can only be filed with the
Secretary of State during the three-day filing period. In 2010, the filing
period ran from the third Monday in June to the following Wednesday. 26 O.S.Supp.2004, § 5-110.
Leftwich, relying on § 5-115, argues that a candidate who has filed a
Declaration of Candidacy may only withdraw from a race by filing a written
notice of withdrawal on or before 5:00 p.m. on the second business day following
the close of the filing period. 26 O.S.Supp.2004 5-115. Leftwich's
argument leads to an absurd result. Under Leftwich's interpretation of Title 26,
a person may only be prosecuted under §§ 16-107 and 16-108 if the candidate in
question (a) filed a Declaration of Candidacy within the three-day filing period
and (b) filed a written notice withdrawing as a candidate within two business
days after the close of the filing period. In 2010, this would have resulted in
a five-day period, from the Monday filing began through close of business
Friday, two days after the filing period ended. In other words, Leftwich asks
this Court to conclude that §§ 16-107 and § 16-108 applied, in 2010, for only
five days, to her or any other candidate. Looking at the Election Code as a
whole, and at the specific provisions of §§ 16-107 and 16-108, we reject the
suggestion that this result is what the legislature intended.
¶34 In arguing that she is not eligible for prosecution under § 16-108,
Leftwich asks this Court to disregard every action she took from 2007 through
May 28, 2010, furthering her candidacy for Senate District 44. She asks this
Court to disregard the testimony that any candidate (and especially a candidate
for state Senate) begins her campaign long before the filing period, by actions
including raising money, polling, and seeking name recognition. She asks this
Court to disregard the fact that, as soon as a person has raised $500.00 (for
the 2010 campaign cycle) towards a campaign, the Ethics Commission requires her
to file, create a candidate committee, and follow strict reporting requirements
regarding that money - in fact, considers her to be a candidate even if she
never files a Declaration of Candidacy with the Secretary of State.
¶35 We conclude that the term "withdraw" in §§ 16-107 and 16-108 is not
exclusively confined to filing a notice of withdrawal of candidacy. A candidate
who has not yet filed a Declaration of Candidacy may, by her actions, withdraw
from a race. We need not, here, decide precisely which actions must constitute
withdrawal in every case. Leftwich admitted at trial that she was a candidate
within the definition of Title 21, § 187, and we found in Proposition I that
that definition applies to Title 26, § 16-108. Leftwich publicly announced on
May 28, 2010, that she would not run for reelection in 2010. This announcement
certainly satisfies the element that Leftwich withdraw from her Senate race.
This proposition is denied.
¶36 In Proposition III Leftwich argues that the notice requirement of due
process requires reversal. She claims that she could not have understood she
would be considered a candidate for office in 2010 for purposes of Title 26,
based on the language of § 16-108 and her actions. She argues that, if
"candidate" in § 16-108 is defined as it is in Title 21, § 187, then § 16-108 is
void for vagueness. She also argues that her prosecution was arbitrary and the
result of unfettered discretion. Leftwich raised this claim before preliminary
hearing, and again in her Motion to Quash, which the trial court denied on June
27, 2013.
¶37 We review a claim concerning the constitutionality of a statute de
novo. Murphy v. State, 2012 OK CR 8, ¶ 30, 281 P.2d 1283,
1292. Any crime must be set out so that a person of ordinary intelligence can
understand what conduct is prohibited, and in a way that does not encourage
arbitrary enforcement. State v. Saunders, 1994 OK CR 76, ¶ 5, 886 P.2d 496, 497; Bouie v. City
of Columbia, 378 U.S. 347, 350-51, 84 S.Ct 1697, 1701, 12 L.Ed.2d 894
(1964). A statute which fails this test does not give fair notice of prohibited
conduct. Brumfield v. State, 2007 OK CR 10, ¶ 19, 155 P.3d 826, 834-35. A person must
not be forced to guess or speculate as to whether her conduct is eligible for
prosecution. Hayes v. Municipal Court of Oklahoma City, 1971 OK CR 274, ¶ 6, 487 P.2d 974, 976. A statute is not
vague if reasonable people would know their conduct is at risk. Allen v. City
of Oklahoma City, 1998 OK CR
42, ¶ 6, 965 P.2d 387,
390.
¶38 Leftwich argues that the trial court's adoption of the definition of
"candidate" found in Title 21, § 187, unforeseeably and retroactively expanded §
16-108 beyond the narrow and precise language of the statute. She relies on
Bouie, in which protesters at a lunch counter, who had never been warned
not to enter the premises, were asked to leave, refused, and were prosecuted for
trespassing. The United States Supreme Court overturned the convictions, finding
that the judicial construction of the trespassing statute expanded it beyond its
narrow, plain meaning, and subjected the defendants to prosecution for acts that
were not crimes when they were committed. Bouie, 378 U.S. at 355-56, 84
S.Ct at 1703. She also relies on Douglas v. Buder, in which that Court
reversed a probation revocation where the petitioner, required to report any
arrest, failed to immediately report receiving a traffic citation. Douglas v.
Buder, 412 U.S. 430, 431-32, 93 S.Ct. 2199, 2200-01, 37 L.Ed.2d 52 (1973).
The Court applied Bouie and found that the trial court unforeseeably
expanded "arrest" to include traffic citations, depriving Douglas of due
process. Id. She also refers to Powers v. Owen, 1966 OK CR 141, 419 P.2d 277. There, this Court
reversed a conviction for shooting a protected game bird, as defined by
Congress, in which the bird in question was only defined as a game bird by
treaty. We found that the statute meant what it said and the legislature did not
intend to incorporate treaties between the United States and foreign powers, and
noted that citizens are not required to research Oklahoma statutes, federal law,
and treaties in order to determine whether their actions constitute a crime.
Owen, 1966 OK CR 141, ¶¶
4, 9, 491 P.2d at 279.
¶39 None of these cases apply here. Leftwich's claim relies completely on her
assertion that "candidate" is exclusively defined for Title 26 in 26 O.S.2001, § 5-101. We rejected
this claim in Proposition I, showing that it cannot be sustained using basic
principles of statutory interpretation. She also argues that the trial court
expanded the meaning of "withdraw". We rejected this claim in Proposition II,
again showing that the statutes simply do not support that interpretation.
Nothing in the language of the Election Code itself, or in case law, suggests
that Leftwich's extremely restrictive interpretation of § 16-108 was (a)
intended by the legislature or (b) was the common understanding of persons
seeking election at the time this crime was committed, or since. Leftwich fails
to show, as a matter of law, that application of the definition found in Title
21, § 187 was unforeseeable or expanded the plain language of § 16-108.
¶40 Leftwich's claim, that she had no notice she was a candidate accepting a
bribe to withdraw from her race, is also wholly unsupported by her own actions
and the testimony. In 2007, Leftwich filed a statement of candidacy for the 2010
election cycle with the Ethics Commission and created a candidate committee for
her reelection to her Senate seat. During the next three years she raised and
spent money as part of her campaign for reelection. Under Ethics Commission
rules she was considered a candidate as soon as she formed her candidate
committee. Otherwise, as the former executive director of the Ethics Commission
testified, "if you waited until [the filing period opened], a candidate could
spend a great sum of money and collect a great sum of money without the public
being aware of where that money came from or where it was going." Leftwich was
an experienced legislator in 2010. Nothing in the testimony suggests Leftwich
was unaware of or misunderstood the Ethics Commission rules, and her
actions show she was careful to follow those rules. Senator Charlie Laster, then
head of the Senate PAC, which raised money for state Senate candidates,
testified that commonly, Senate candidates were recruited at least a year in
advance of the filing period. Other witnesses testified that Leftwich gave every
indication of running for office throughout the 2010 legislative session - she
solicited money, attended fundraisers, spoke as if she were running, and did not
correct people who talked as if she were running for reelection. Leftwich
herself admitted those actions. In addition, the record does not support
Leftwich's claim that the State's theory of the case changed. Throughout the
course of this prosecution the State consistently argued that Lefwich had
accepted a bribe from Terrill by expressing her intention to return to the
Medical Examiner's office and announcing her decision not to run for
reelection.
¶41 Leftwich also argues that the trial court's interpretation of the statute
encouraged unfettered discretion and arbitrary prosecution. Nothing in the
record supports this claim. Testimony showed that legislators commonly have an
open campaign account with the Ethics Commission throughout their terms of
office, and are considered "candidates" by the Ethics Commission until that
account is closed. Given this, Leftwich argues, no legislator could accept an
offer of a full-time job during their term of office. This is nonsense. As we
discuss in Proposition I, §§ 16-107 and 16-108 prohibit offering, soliciting or
accepting a job to induce or cause a candidate to withdraw from a race.
The evidence here supported that charge. A mere job offer is unlikely to support
such a prosecution.
¶42 Application of the definition of "candidate in Title 21, § 187, to Title
26, § 16-108, does not render the statute unconstitutional. A reasonable person
would understand what conduct was prohibited, and need not guess whether the
statute applied to her conduct. Allen, 1998 OK CR 42, ¶ 6, 965 P.2d at 390.
Leftwich was not denied due process, and this proposition is denied.
¶43 Leftwich has filed a request for oral argument. Because both parties
thoroughly briefed the questions of law at issue here, this request is
denied.
DECISION
¶44 The Judgment and Sentence of the District Court of Oklahoma County is
AFFIRMED. The request for oral argument is DENIED. Pursuant to
Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22,
Ch.18, App. (2015), the MANDATE is ORDERED issued upon the
delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY
THE
HONORABLE CINDY TRUONG, DISTRICT JUDGE
|
ATTORNEYS AT TRIAL
ROBERT G. McCAMPBELL
TRAVIS V. JETT
FELLERS SNIDER
A
PROFESSIONAL CORPORATION
100 NORTH BROADWAY, STE. 1700
OKLAHOMA
CITY, OK 73102
COUNSEL FOR DEFENDANT
GAYLAND GIEGER
JIMMY HARMON
ASSISTANT DISTRICT
ATTORNEYS
OKLAHOMA COUNTY DISTRICT
ATTORNEY'S OFFICE
310 ROBERT
S. KERR AVE., STE. 505
OKLAHOMA CITY, OK 73102
COUNSEL FOR
STATE |
ATTORNEYS ON APPEAL
ROBERT G. McCAMPBELL
TRAVIS V. JETT
FELLERS SNIDER
A
PROFESSIONAL CORPORATION
100 NORTH BROADWAY, STE. 1700
OKLAHOMA
CITY, OK 73102
COUNSEL FOR APPELLANT
E. SCOTT PRUITT
ATTORNEY GENERAL OF OKLAHOMA
JENNIFER B.
WELCH
ASSISTANT ATTORNEY GENERAL
313 NE 21 ST STREET
OKLAHOMA
CITY, OK 73105
COUNSEL FOR APPELLEE |
OPINION BY: Smith, P.J.
Lumpkin, V.P.J.: CONCUR
A. Johnson, J.:
CONCUR
Lewis, J.: CONCUR