History of the Federal Courts of Oklahoma: 1975-2017

History of the Federal Courts of Oklahoma: 1975-2017 William C. Kellough* “The judiciary has no influence over either the sword or the purse…neither Force nor Will, but merely judgment” A. Hamilton, Federalist No. 497 Introduction. The federal courts in Oklahoma were created and grew in influence over a long span of time as white settlers displaced or assimilated the Indians who had been granted the land by treaty in the first third of the nineteenth century. As the courts of the Indian Nations declined, federal courts replaced them. Before the white invasion, the Native American autonomous jurisdictions were inhabited either by wholly indigenous native people or the so-called “civilized tribes,” inhabitants of the southeastern states who were forced to emigrate. As the Indian Nations were absorbed and all but abolished in the late nineteenth century, the territorial judicial system, devised by the U.S. Congress, survived. For better or worse, these early federal courts and judges became the institutions left to deal with the explosive wave of white settlers and the uncontrolled economic expansion of pioneer Oklahoma. After statehood in 1907, federal court activity settled into the more predictable pattern of judicial appointments, docket management and jurisdictional and administrative growth as experienced by all new states. The first part of this history told this story starting with the earliest days of settlement of the land that would become Oklahoma up to latter years of the twentieth century.1 From Native American national sovereignty through Indian Territory and Oklahoma Territorial jurisdiction and finally statehood, Part I showed the evolution of the courts from the dispensers of raw, improvised frontier justice to a modern and professionally robust judicial institution. Part I concluded in the mid 1970’s, with Oklahoma’s three judicial districts, the Eastern, Western and Northern and a roving judicial seat well established and fully engaged. In just a few generations Boomers and Sooners supplanted Native Americans as the dominant population, the State of Oklahoma was created, boomed, busted, nearly blew away in the Dust Bowl and, along with the rest of the nation, suffered a serious Depression, two world wars and a series of bloody regional wars followed by decades of general economic prosperity. The story of the Oklahoma federal courts from roughly the last third of the twentieth century to the present day shows how a more mature state developed its own unique legal, economic and political realities distinct from the broader sweep of national trends so dominant in the earlier formative years. Acts of Congress and the influx of oil pioneers, homesteaders and judges from far flung parts of the country characterized those early years. Since the mid- * William C. Kellough is of counsel to the Tulsa, Oklahoma law firm of Doerner Saunders Daniel & Anderson. He is a former Oklahoma state trial court judge and a graduate of the University of Texas and the U.T. School of Law. 1 Kellough, William C. “Oklahoma: The Territorial and District Courts,” Ch. VI in The Federal Courts of the Tenth Circuit: A History, Logan, James K. ed., (U.S. Court of Appeals for the Tenth Circuit 1992) (hereafter “History Part I”). 4420943.3 twentieth century, the federal judiciary has been dominated by home grown judicial leadership. Nothing demonstrates this more vividly than the overwhelming prevalence of University of Oklahoma law graduates on the federal bench, appointed in the past fifty years. Sixteen of the twenty-three judges discussed in this current history graduated from O. U. Law School. The subject matter which dominated the federal dockets also has changed dramatically. Rather than dealing with outlaw gangs and rapacious oil barons defrauding Indian allotees, the Oklahoma federal courts have more recently been flooded with complex civil litigation, bank failures, sophisticated drug conspiracies and political scandals. The early judges never had to deal with civil rights class actions, employment discrimination cases, or protracted discovery disputes. Nor were those judges familiar with federal court supervision over the modification or wholesale dismantling of entire sectors of state government. These new areas of docket concentration have become the daily grist for the federal judicial mills of Oklahoma. The focus in this Part II remains on the Oklahoma Article III judges themselves, what made them who they became, how they were appointed and confirmed and the impact they have made on individual cases and state jurisprudence generally. For the most part, all of the living judges -- active, senior status and retired -- have contributed to this narrative. Most were willing and able to be interviewed and, at times, revealed details never captured in any published accounts of their careers. Some attention also will be paid to evolving trends in federal court administration and the impact of national laws which have modernized judicial procedure and at the same time imposed greater burdens on these Oklahoma courts of limited jurisdiction. Regrettably, the limited scope of this study will not allow discussion of the bankruptcy and magistrate judges whose work has, in many instances, been just as important as the work of the Article III district judges. Unlike a history of the Supreme Court or the federal appellate courts, this narrative provides little insight into the deep-seated judicial philosophy, if any, of these trial judges. With varying levels of allegiance to precedent set by their appellate colleagues whose job is to explain, expand or, in the eyes of some, make law, district judges are selected to decide cases and controversies and preside over jury trials. It is difficult to write treatises or law review articles on these dispute-resolving judges or to explain their body of work in some academic sense. However, one important common element of the post-1970’s federal trial judges becomes apparent in this history and is worth noting. The majority of these trial judges were appointed from the ranks of conservative lawyers and state politicians. To put a fine point on it: most have been or are Republicans. But once on the bench, their motion practice decisions, criminal sentences and interpretations of ambiguous precedent do not reflect, to any noticeable degree, a rightward leaning frame of mind. The same can be said for the earlier generation of judges appointed when Democrats dominated state politics. They have been willing to take judicial action at times contrary to the political winds which blew them onto the bench. This observation is admittedly based on anecdotal and historical not empirical evidence. Some enterprising law professor may undertake a more rigorous statistical analysis of their decisions and come to a contrary conclusion. But until then, the opinion of this amateur historian will have to suffice. This narrative is organized into five sections, one section for each of the three Districts and a fourth for the supernumerary or roving judges who serve all three Districts. The fifth section will briefly address some of the political and legal trends affecting the Oklahoma federal 2 courts during this time period. Within the first four sections the storyline will follow the judges and aligned historical events chronologically through the lineage created by individual “seats” or offices. Much like Genesis, one judge and his or her docket will “begat” the next and so on. Many of the historical events and judicial issues will, of course, involve multiple judges and will overlap. Hopefully, the reader will get a sense of the personality and contributions of each of the judges addressed in this study. This is not a legal treatise, intended as an authoritative source for briefing or other lawyerly purpose. It is merely a history, its intrinsic worth to be measured by how well it satisfies the curiosity of the reader or fosters an appreciation of the character and contributions of the federal jurists who have served this state. The overall picture which emerges shows the maturation of the Oklahoma federal judiciary with its reputation for professionalism and some imperfections which should not be hidden. The Eastern District. The Eastern Judicial District was created by the Oklahoma Enabling Act with boundaries coextensive with Indian Territory, not to be confused with the generic concept of Indian Country. The Twin Territories, Oklahoma and Indian, were created by an Act of Congress in 1890.2 Indian Territory was joined to Oklahoma Territory; and, together with the panhandle (formerly No Man’s Land), Congress forged the 46th State in 1907.3 In an era when transportation was a challenge and court sessions infrequent, six separate frontier settlements served as court towns. Eventually, Muskogee alone became the site of a permanent federal court housed in an impressive neo classical building. Rivaled only by the State Capitol in Oklahoma City, this 1915 edifice was substantially renovated in 2002 and restored to its original glory.4 With the smallest population of the three Districts, the Eastern District also has experienced the lowest turnover and addition of judges. Since statehood only one permanent federal judicial seat has been authorized.5 During the time covered by this study, only two judges, Frank Seay and Ronald White, have occupied that seat. Various so-called roving judges have been assigned Eastern District cases, as well as cases in the other two Districts, since roving judges were authorized by Congress in 1936. The lives and work of the roving judges will be covered in the fourth section below. At the time of the resignation of Judge Joseph Morris in 1978 to take the position as General Counsel of Shell Oil Co., newly elected Senator David Boren recommended an Oklahoma State District Judge, Frank H. Seay, from Shawnee to fill Morris’s position. Seay was 2 Act of May 2, 1890, ch. 182, §1, 26 Stat.

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