'State law forces the Governor's hand': OK Representative pleads guilty to felony DUI - what happens to that seat?
OKLAHOMA CITY (KFOR)- State Representative Ryan Martinez pleaded guilty to a felony DUI two weeks ago. Now, some of the state's top leaders are going head to head on what to do with his District 39 seat.
Martinez was caught in the driver seat of his car outside the Patriarch in Edmond last October. The car was running and he visibly appeared intoxicated, per Edmond Police body camera video.
Martinez then underwent a field sobriety test. He failed.
After the test, Martinez is seen sitting on a curb chatting with an Edmond Police Officer.
Edmond Police Officer: As far as I know, the regular session ended in May.
Martinez: Yes sir.
Edmond Police Officer: But you're saying right now you're in some kind of special session.
Martinez: We've been in special session the whole time sir. It never ends.
Edmond Police Officer: Who oversees your special session?
Martinez: The Governor and the Speaker of the House. Would you like me to call Kevin Stitt right now?
Martinez was arrested on a charge of felony DUI that night.
"It's a shame that Representative Martinez didn't resign last year when he was arrested," said former OK House Representative Michael Reynolds. "I knew that he should be removed from office. The Constitution, even has another provision that says you should be removed for moral turpitude. I don't think that will ever be enforced because moral turpitude means whatever it means nowadays."
Martinez continued serving District 39 throughout the 2023 regular legislative session. He was also the presiding officer over the July special session on tribal compacts.
"Martinez was one of [McCall's] top lieutenants. In fact, Martinez sat in the chair in the day of the veto, the tribal compact veto override vote and insulted the governor on the floor of the House," said Reynolds. "I think the governor was right on this issue. Constitutionally, I think the speaker was wrong. And just as I think he was totally wrong on his position of the tribal compacts, the House of Representatives has nothing to do per the statutes or the Constitution with tribal compacts. It was the height of arrogance for them to insert themselves in that."
Martinez pleaded guilty to a felony DUI in early August.
In the plea agreement, Martinez will have a one-year deferred sentence plus fines. He will also have an “interlock device” on his vehicle.
The State said during the hearing the agreement was “just and fair.”
Despite the guilty plea, the Speaker of the House Charles McCall's office told KFOR, "Nothing has changed." His office confirmed with News 4 on Friday Martinez still holds his seat in the House.
Speaker McCall did request the State Attorney General's opinion in the matter.
Is Representative Ryan Martinez eligible to continue serving as member of the Oklahoma House of Representatives following his receipt of a deferred sentence on a plea of guilty
Speaker of the House Charles McCall's question to Attorney General Gentner Drummond
Speaker McCall did not receive the formal opinion of the Attorney General, but he did receive an informal opinion from Deputy General Counsel Brad Clark on Monday.
"It is my opinion that Representative Martinez may continue serving as a member of the House of Representatives," stated Clark.
Clark argues because Martinez was not "convicted," he can still hold office. He also said a deferred sentence does not equal a conviction.
"Any elected or appointed state or county officer or employee who, during the term for which he or she was elected or appointed, is, or has been, found guilty by a trial court of a felony in a state or federal court of competent jurisdiction shall be automatically suspended from the office or employment," reads Title 51, section 24.1.
However, within in that same section of the law it reads within three days of the conviction or plea of guilty or nolo contendere of an elected or appointed state officer, the attorney responsible for prosecuting such state officer, shall notify the Governor in writing of the suspension, the date of conviction or plea of guilty or nolo contendere resulting in suspension, and the felony committed.
In the footnotes of Clark's informal opinion, he said, "Despite my interpretation, I could see a court reaching a different conclusion and finding that deferred sentences are included in the plea of guilty references in section 24.1. After all, a subsection of section 24.1 relating to the forfeiture of retirement benefits does provide that such a forfeiture will not apply to an officer who receives a deferred sentence. Thus, I recommend that the Legislature consider reviewing this section of law and utilize its policy making powers to make any amendments that it deems appropriate."
Reynolds said he is shocked by the informal opinion of Clark.
"It was a little interesting for Brad Clark to weigh in when it seemed like that was totally inappropriate," he said.
Reynolds has a differentiating view and understanding of the law. He said under the Oklahoma Constitution it's clear what should happen with Martinez.
"The Constitution is the basis for which you pass all the statutes. But if you want to determine the interpretation of something, you've got to start with the Constitution. If it's not fleshed out, the statutes can help you arrive at a conclusion. The statutes are important, but it was perfectly clear in the Constitution that he couldn't serve," stated Reynolds.
Reynolds mainly blamed the Speaker of the House for not removing Martinez sooner and allowing him to continue collecting taxpayer dollars.
Reynolds also expected the Governor to step in sooner and remove Martinez once the guilty plea was official.
Because he hasn't heard any recent updates on Martinez or his House seat, Reynolds filed a Supreme Court lawsuit. Martinez, Governor Stitt, and McCall are listed as Defendants.
"The Speaker should not authorize for any compensation or other emoluments to Martinez
post August 2nd, 2023," the lawsuit reads. "If the Governor does not call a special election
within 30 days [of the guilty plea], the citizens of House District 39 will not be represented in the upcoming Legislative session or in the never ending 2023 Special Session."
Reynolds said if Gov. Stitt does not call a special election within the next 15 days he would violate his constitutional duty to cause all laws of the State to be faithfully executed.
"I was fearful that the Speaker would try to give him protection based on the fact that he had sat in the chair on the veto override situation regarding the tribal compacts," said Reynolds in reference to why he filed the lawsuit.
The Governor's General Counsel, Trevor Pemberton responded to the lawsuit on Wednesday.
"There is no exception. Here--where a State Representative entered a plea of guilty to a felony offense--state law forces the Governor's hand," wrote Pemberton.
Pemberton said Martinez vacated his seat when he entered a plea of guilty in court on August 2.
"Two questions may be looming. The first is whether it matters that the Representative pleaded guilty to a felony but received only a deferred sentence. It does not. Neither the vacation nor the forfeiture provisions make any relevant mention of punishment stemming from a guilty plea. Had the Legislature intended for punishments, deferred or otherwise, to play a role in the analysis, it would have said as much," stated Pemberton. "For example, the Legislature explicitly allows a state officer to retain entitlement to retirement benefits if the officer 'received a deferred sentence.' That subsection does not, however, allow for retention of office or other benefits in the event of a deferred sentence."
Pemberton stated the other lingering question is whether any constitutional provisions addressing removal or suspension somehow renders Title 51, sections 8 or 24.1 inapplicable to legislators.
"The answer is again no," added Pemberton.
Pemberton said the Governor is duty-bound to act, so he is now planning to issue a writ of election.
Title 26, section 5-105A states a person who enters a plea of guilty shall not be eligible to be a candidate for or to be elected to any state... office. This would make Martinez ineligible for reelection in 2024.
Martinez has been the House Representative over District 39 since 2016. His seat runs on a two-year deal each time someone is elected.
"Governor Stitt has an obligation to execute the law. As highlighted in the Governor’s filing, Rep. Martinez vacated his seat when he pled guilty to a felony and now the governor must order a special election by September 2nd. Governor Stitt will follow the law."
Office of the Governor Communications Director, Abegail Cave
Reynolds said he has faith in the Governor calling for a special election by September 2.
Part of Reynolds' lawsuit, he is requesting any part of Martinez's salary paid out after he pleaded guilty be returned. If not, he said it should be on McCall to reimburse taxpayers.
"The state taxpayers shouldn't be paying for it. The Speaker of the House should be paying for it, and he should have asked for that Attorney General opinion or waited for the court hearing before he decided to authorize and put his name on a paycheck for Martinez," stated Reynolds.
News 4 called Martinez Friday afternoon, but he didn't answer.
Court notes show Martinez and McCall have until August 30 to respond to the lawsuit.