The Oklahoma Supreme Court has declined to accept jurisdiction in a suit filed by an Ardmore attorney against District Judge Dennis Morris.
Jason May filed the suit in February. The legal measure, naming three petitioners, alleged Morris was charging some defendants who claimed they were indigent more than the $40 application fee authorized by law before assigning them court-appointed attorneys.
May says the court refused jurisdiction because Morris ceased the district court practice, which has been in place since 1997.
“I agree with the Supreme Court’s decision completely. My goal was to put a stop to this blatantly unconstitutional practice, and that goal was accomplished,” May said.
But Senior Assistant Attorney General Charles S. Rogers, who represented Morris in the case, said May is mistaken in his assessment of why the Supreme Court declined to take action.
“They (judges) didn’t give a reason, but I believe the reason it was refused is the petition was filed in the wrong court,” Rogers said, adding the case should have been filed in district court.
May contends, however, “Prior to my suit, Morris had been informed by multiple attorneys that his practice of charging arbitrary fees to indigent defendants was illegal, but he chose to ignore those warnings until his hand was forced.”
Rogers says Morris wasn’t doing anything illegal, and was actually doing his job when he assessed fees to some defendants.
“You’re either too poor to pay for an attorney or you’re not,” Rogers said, pointing out that two of the three people May represented in the suit had, in fact, attempted to hire him, as well as other local lawyers, to represent them in their previous cases, and were turned down. The fact they were unable to hire an attorney on their own was the reason they sought indigent defense.
“The determination of what constitutes indigence is for the court (Morris) to decide. The judge was very careful to see that the petitioners did receive very competent and professional counsel,” Rogers said.
Fees Morris assessed, that exceeded the $40 application fee, where being forwarded to the Oklahoma Indigent Defense System just as they had for more than 15 years when local judges began assessing fees to those who could afford to assist in paying for their attorneys. OIDS executive director Joe Robertson confirmed receipt of the fees.
“We have never had a problem with how the judges in the district assessed fees,” he said.
Former District Judge John Scaggs, who was one of the district court judges who began assessing the fees, concurred.
“I thought the Supreme Court’s action was the correct one. There was no purpose to the suit. And Judge Morris has now taken another tact (in assessing fees),” Scaggs said.
What change has been made? While Morris has refused to comment on May’s actions, he did issue the following statement concerning the assessment of fees.
“A procedure that has been in use by the judges of the District Court of the Twentieth Judicial District since at least 1997 has been called into question. The procedure provided a method by which criminal defendants who were out on bond, but could not or would not hire a private attorney to represent them, could be represented by counsel appointed by the court. It resulted in defendants having counsel they otherwise would not have afforded.
“The defendants that were required to contribute to the costs of court-appointed counsel were determined, upon review of their application, to not be indigent. The defendants were required to contribute to the costs of court-appointed counsel according to their ability to pay, thereby not requiring the taxpayer to pay the entire bill.
“All of the funds paid by these defendants were sent by the court clerk directly to the state office of the Oklahoma Indigent Defense System. Only the statutory $40 application fee was retained by the district court.
“The district court’s change in procedure will, by law, still require the payment of a portion of the costs of court-appointed counsel by the defendant. This change will result in the decrease of funds paid to the Oklahoma Indigent Defense System and increase the cost to the taxpayers of Carter County and the State of Oklahoma.”
The change in procedure only pertains to when the assessment will be made. Fees are now being determined at the end of a case instead of the beginning.
Still, May says he will take a “next step ... to file in district court requesting that all defendants who were required to pay this fee receive a refund,” adding, “My initial research suggests that the amount could exceed $100,000.”
Rogers says May is “making a charge he’s not legally entitled to make. People are going to have to agree to let him represent them. I don’t know if he can find petitioners to criticize the judge for seeing that they got legal representation.”
Previously, May hinted he would attempt to get signatures on a petition seeking a grand jury and Morris’ removal from office. Now he says he’s undecided.
“His actions clearly justify removal under 22 O.S. § 1181, but Oklahoma law prohibits the convening of a grand jury during election cycles, so December would be the earliest I could pursue that course of action,” he said.
May has denied that his action in filing the suit in February and releasing statements to the media concerning the suit have been motivated by the upcoming election for the district judge’s post.