Awad v. Ziriax et al

Filing 9

RESPONSE re 1 Complaint to Plaintiff's Motion for Preliminary Injunction filed by Thomas Prince, Susan Turpen, Ramon Watkins, Paul Ziriax. (Boughton, Scott)

Awad v. Ziriax et al

Doc. 9

CASE NO. CIV-2010-1186-M

I N THE UNITED STATES DISTRICT COURT FOR T H E WESTERN DISTRICT OF OKLAHOMA

M U N E E R AWAD, P la in tiff, v. P A U L AZIRIAX, Agency Head, Oklahoma State Board of Elections; T H O M A S PRINCE, Chairman of the Board, Oklahoma State Board of Elections; R A M O N WATKINS, Board Member, Oklahoma State Board of Elections; S U S A N TURPEN, Board Member, Oklahoma State Board of Elections; D e fe n d a n ts .

D E F E N D A N T S RESPONSE TO PLAINTIFF'S MOTION F O R PRELIMINARY INJUNCTION [Doc. 1]

S C O T T D. BOUGHTON, OBA # 991 J A N I S W. PRESLAR, OBA # 12443 A s sis ta n t Attorneys General O k la h o m a Attorney General's Office 3 1 3 N. E. 21st Street O k la h o m a City, Oklahoma 73105 T e le : [phone] Fax: [phone] S c o t t .B o u g h t o n @ o a g .o k .g o v J a n i s . P r e s l a r @ o a g .o k . g o v A tto r n e y s for Defendants, Prince, Turpen, Watkins, and Ziriax

November 16, 2010

Dockets.Justia.com

TABLE OF CONTENTS Page T A B L E OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii - iv D E F E N D A N T S ' RESPONSE TO PLAINTIFF'S MOTION F O R PRELIMINARY INJUNCTION [Doc. 1]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I N T R O D U C T I O N AND STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . 2 A R G U M E N T AND AUTHORITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. P L A I N T I F F LACKS STANDING TO BRING THIS ACTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 P L A I N T I F F 'S CLAIMS ARE NOT RIPE F O R ADJUDICATION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 P L A I N T I F F HAS NOT MET HIS BURDEN TO O B T A I N A PRELIMINARY INJUNCTION. . . . . . . . . . . . . . . . . . . . . . 6 S T A T E QUESTION 755 DOES NOT VIOLATE THE C L A U S E OF THE U.S. CONSTITUTION. . . . . . . . . . . . . . . . . . . . . . . . 9 A. S T A T E QUESTION 755 HAS A SECULAR L E G IS L A T I V E PURPOSE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 T H E PRINCIPAL OR PRIMARY EFFECT OF S T A T E QUESTION 755 NEITHER ADVANCES N O R INHIBITS RELIGION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3 S T A T E QUESTION 755 DOES NOT RESULT IN A N EXCESSIVE ENTANGLEMENT BETWEEN T H E STATE AND RELIGION.. . . . . . . . . . . . . . . . . . . . . . . . . . 1 5

2.

3.

4.

B.

C.

5.

S T A T E QUESTION 755 DOES NOT VIOLATE THE F R E E EXERCISE CLAUSE OF THE U.S. CONSTITUTION. . . . . . 1 6

C O N C L U S IO N . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 C E R T I F I C A T E OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 0

TABLE OF AUTHORITIES F E D E R A L CASES A b b o tt Labs. v. Gardner, 3 8 7 U.S. 136 (1967).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 B e a l v. Stern, 1 8 4 F.3d 117 (2d Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 C h u r c h of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 5 0 8 U.S. 520 (1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 C o r p . of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints v. Amos, 4 8 3 U.S. 327 (1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0 C o s e y v. Cherokee Nation Enterprises, LLC, 2 1 2 P.3d 447 (Okla. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 D ia z v. Board of County Commissioners of Dade County, 5 0 2 F. Supp. 190 (S.D. Flor. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 , 6 E m p lo y m e n t Div. v. Smith, 4 9 4 U.S. 872 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 E p p e r so n v. Arkansas, 3 9 3 U.S. 97 (1968).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0 E sse n c e , Inc. v. City of Fed. Heights, 2 8 5 F.3d 1272 (10th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 G r a c e United Methodist Church v. City of Cheyenne, 4 5 1 F.3d 643 (10th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 L e m o n v. Kurtzman, 4 0 3 U.S. 602 (1971).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 , 13, 14, 15, 16 L o c k e v. David, 5 4 0 U.S. 712 (2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 8 , 19

ii

Lujan v. Defenders of Wildlife, 5 0 4 U.S. 555 (1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 L y n c h v. Donnelly, 4 6 5 U.S. 668 (1984).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 , 10 M a ld o n a d o v. Pataki, 2 0 0 5 WL. 3454714. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 M o r g a n v. McCotter, 3 6 5 F.3d 882 (10th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 M u e lle r v. Allen, 4 6 3 U.S. 388 (1983).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0 N o v a Health Systems v. Edmondson, 4 6 0 F.3d 1295 (10th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 N o v a Health Systems v. Gandy, 4 1 6 F.3d 1149 (10th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 O k la ., ex rel., OK Tax Comm'n v. Int'l Registration Plan, Inc., 4 5 5 F.3d 1107 (10th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 R e c to r v. City & County of Denver, 3 4 8 F.3d 935 (10th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 R e y n o ld s v. United States, 9 8 U.S. 145 (1878).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 R ic h a rd s v. United States, 3 6 9 U.S. 1 (1962).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 S c h r ie r v. Univ. of Colo., 4 2 7 F.3d 1253 (10th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 S o u th w e s t Voter Registration Education Project v. Shelley, 3 4 4 F.3d 914 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 , 8 S o u th w e s te r n Bell Telephone Co. v. Okla. State Bd. Of Equalization, 2 3 1 P.3d 638 (Okla. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 iii

Summum v. Pleasant Grove City, 4 8 3 F.3d 1044 (10th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 U n ite d States v. American Trucking Ass'n, Inc., 3 1 0 U.S. 534 (1940).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 U n ite d States v. Locke, 4 7 1 U.S. 84 (1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 W a lla c e v. Jaffree, 4 7 2 U.S. 38 (1985).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0 , 13 W e b e r v. Lockyer, 3 6 5 F. Supp. 2d 1119 (N.D. Cal. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 W e in b e r g e r v. Romero-Barcelo, 4 5 6 U.S. 305 (1982).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 W h itm o r e v. Arkansas, 4 9 5 U.S. 149 (1990).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 STA TU TES 4 3 O.S. § 109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5 8 4 O.S. § 44. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 8 OTHER O k la . Const., art. 7, § 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 , 5 U .S . Const. amend. I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 , 16

iv

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF OKLAHOMA

M U N E E R AWAD, P la in tif f , v. P A U L ZIRIAX, Agency Head, Oklahoma S ta te Board of Elections; T H O M A S PRINCE, Chairman of the Board, O k la h o m a State Board of Elections; R A M O N WATKINS, Board Member, O k la h o m a State Board of Elections; S U S A N TURPEN, Board Member, O k la h o m a State Board of Elections, D e f e n d a n ts.

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

C a s e No.: CIV-10-1186-M

D E F E N D A N T S ' RESPONSE TO PLAINTIFF'S M O T IO N FOR PRELIMINARY INJUNCTION [Doc. 1] D e f e n d a n ts, Thomas Prince, Chairman of the Board, Oklahoma State Board of E le c tio n s , Susan Turpen, Board Member, Oklahoma State Board of Elections, Ramon W a tk in s , Board Member, Oklahoma State Board of Elections, and Paul Ziriax, Agency Head, O k la h o m a State Board of Elections, hereby object to the Plaintiff's Motion For Preliminary In ju n c tio n . [Doc. 1]. S a id Defendants will hereinafter be collectively referred to as "Election Board".

INTRODUCTION AND STATEMENT OF THE CASE O n November 2, 2010, 70.08 per cent of the citizens of the State of Oklahoma a p p ro v e d State Question 755.1 Two days later the plaintiff filed the present action seeking to enjoin the Election Board from certifying the election result. The state question voted upon and being challenged in the present action provided: S T A T E QUESTION NO. 755 LEGISLATIVE REFERENDUM N O . 355 T h is measure amends the State Constitution. It changes a s e c tio n that deals with the courts of this state. It would amend A rtic le 7, Section 1. It makes courts rely on federal and state la w when deciding cases. It forbids courts from considering or u s i n g international law. It forbids courts from considering or u s in g Sharia Law. International law is also known as the law of n a tio n s . It deals with the conduct of international organizations a n d independent nations, such as countries, states and tribes. It d e a ls with their relationship with each other. It also deals with some of their relationships with persons. The la w of nations is formed by the general assent of civilized n a tio n s . Sources of international law also include international a g re e m e n ts , as well as treaties. Sharia Law is Islamic law. It is b a s e d on two principal sources, the Koran and the teaching of M oham m ed. S H A L L THE PROPOSAL BE APPROVED? FOR THE P R O P O S A L -- YES A G A IN S T THE PROPOSAL -- NO S ta te Question 755 was put on the ballot through the legislative adoption of Enrolled H o u s e Joint Resolution 1056. Said resolution will amend Okla. Const., art. 7, § 1 by adding th e following section.

1

As reported by the Oklahoma State Election Board. 2

C. The Courts provided for in subsection A of this section, w h e n exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the O k la h o m a Constitution, the United States Code, federal re g u la tio n s promulgated pursuant thereto, established common la w , the Oklahoma Statutes and rules promulgated pursuant th e re to , and if necessary the law of another state of the United S ta te s provided the law of the other state does not include Sharia L a w , in making judicial decisions. The courts shall not look to th e legal precepts of other nations or cultures. Specifically, the c o u rts shall not consider international law or Sharia Law. The p ro v isio n s of this subsection shall apply to all cases before the r e s p e c tiv e courts including, but not limited to, cases of first im p re s s io n . Plaintiff is bringing a facial challenge to the constitutionality of this proposed c o n s titu tio n a l amendment. Plaintiff argues that the amendment violates the Establishment C la u s e and the First Amendment Free Exercise Clause of the United States Constitution. The Election Board will show that the proposed amendment is constitutional, that plaintiff la c k s standing to bring this action, that the issue is not ripe for determination, and that p la in tif f has not shown that he will suffer irreparable injury. A R G U M E N T AND AUTHORITY A lth o u g h the Court has made preliminary findings that plaintiff has standing to bring th is action and that his claims are ripe for judicial review, the Election Board respectfully a s k s the Court to reconsider its previous ruling, now that the Court has the benefit of the B o a rd 's briefing. 1. P L A I N T I F F LACKS STANDING TO BRING THIS ACTION. In order to bring the present action plaintiff must make an initial showing that he is a b o u t to sustain an actual or imminent injury. 3

Foremost among the well-established elements of a justiciable c o n tro v e rs y is the requirement that the plaintiff have standing to m a in ta in the suit. Lujan v. Defenders of Wildlife, 504 U.S. 555, 5 6 0 , 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Z.J. Gifts D-4, 3 1 1 F.3d at 1226. "There are three requirements of Article III s ta n d in g . First, the plaintiff must suffer an injury in fact. An in ju ry in fact is an invasion of a legally protected interest that is (a ) concrete and particularized and (b) actual or imminent, i.e., n o t conjectural or hypothetical." Essence, Inc. v. City of Fed. H e i g h ts , 285 F.3d 1272, 1280 (10th Cir. 2002) (internal q u o ta tio n marks omitted). A plaintiff must also demonstrate th a t the harm complained of is fairly traceable to defendant's c o n d u c t and that a favorable ruling from the court would redress p la in tif f 's injury. Id. Thus, a main focus of the standing inquiry is whether plaintiff has suffered a present or imminent injury, as o p p o s e d to a mere possibility, or even probability, of future in ju ry. See also Rector v. City & County of Denver, 348 F.3d 9 3 5 , 942-43 (10th Cir. 2003) M o r g a n v. McCotter, 365 F.3d 882, 888 (10th Cir. 2004). " A federal court is powerless to create its own jurisdiction by embellishing otherwise d e f ic ie n t allegations of standing." Whitmore v. Arkansas, 495 U.S. 149, 155-156 (1990). Standing is determined as of the date of the filing of the Complaint. Nova Health Systems v . Gandy, 416 F.3d 1149, 1154-1155 (10th Cir. 2005). Therefore, the question before this C o u rt is whether on November 4, 2010, Muneer Awad faced a concrete and actual or im m in e n t injury in fact. Plaintiff's complaint that the proposed Constitutional Amendment lim itin g the use of Sharia law condemns his religion is a personal opinion, rather than a legal a rg u m e n t. Plaintiff's claim that the Constitutional Amendment will invalidate his last will a n d testament is speculation. Likewise, until the Amendment has been interpreted by

4

Oklahoma Courts, Plaintiff's fears of excessive entanglement between the courts and any e s ta b lis h e d religion are also speculative. 2. P L A I N T I F F 'S CLAIMS ARE NOT RIPE FOR ADJUDICATION. Plaintiff filed the present action before Okla. Const., art. 7, § 1 was amended by State Q u e s tio n 755. There has been absolutely no judicial construction of the proposed

c o n s titu tio n a l changes by any court of competent jurisdiction. Plaintiff speculates that his rig h ts will be adversely affected by the new law, but cannot articulate any concrete injury at th e present time. A n a l ys i s of the prudential component of ripeness is guided by tw o considerations: "the fitness of the issues for judicial d e c is io n and the hardship to the parties of withholding court c o n s id e ra tio n ." Thomas, 220 F.3d at 1141, citing Abbott Labs. v . Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1 967 ). W e b e r v. Lockyer, 365 F.Supp.2d 1119, 1126 (N.D. Cal. 2005). P la in tif f is asking this Court to completely veto the actions of seventy per cent of the O k la h o m a electorate without any proof of direct harm. In the case of Diaz v. Board of C o u n ty Commissioners of Dade County, 502 F.Supp. 190 (S.D. Flor. 1980) an action was b ro u g h t to enjoin the placement on the ballot of a proposed ordinance which would prohibit th e expenditure of county funds for the purpose of utilizing any language other than English. In rejecting the plaintiff's request to stop the electoral process, the court noted that, T h e plaintiffs may have valid arguments if the proposed o rd in a n c e is passed by the voters of Dade County and if the o f f ic ia ls of the county interpret the enacted ordinance in a m a n n e r which violates constitutional rights. The Court today 5

only decides that those questions are not ripe for adjudication a n d that, on these facts, the procedural machinery of the people's rig h t to petition their government should not be stopped. It is clear that the proposition is not unconstitutional in its e n tire ty and that the plaintiffs have not met the stringent s ta n d a rd s required for the grant of a preliminary injunction. Diaz v. Board of County Commissioners of Dade County, 502 F.Supp. at 194. 3. P L A I N T I F F HAS NOT MET HIS BURDEN TO OBTAIN A PRELIMINARY IN JU N C T IO N . "As a preliminary injunction is an extraordinary remedy, the right to relief must be c le a r and unequivocal." Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). To o b ta in a preliminary injunction, plaintiff has the burden to establish that, (1) [he or she] will suffer irreparable injury unless the injunction is s u e s ; (2) the threatened injury ... outweighs whatever damage th e proposed injunction may cause the opposing party; (3) the in ju n c tio n , if issued, would not be adverse to the public interest; a n d (4) there is a substantial likelihood [of success] on the m e rits . Id . Preliminary injunctions are intended "merely to preserve the relative positions of the p a rtie s until a trial on the merits can be held." Summum v. Pleasant Grove City, 483 F.3d 1 0 4 4 , 1048 (10th Cir. 2007). Because of this purpose and the extraordinary nature of p re lim in a ry injunctions, movants must meet "a heightened standard" when seeking one of th e three historically disfavored injunctions: "(1) preliminary injunctions that alter the status q u o ; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the m o v a n t all the relief that it could recover at the conclusion of a full trial on the merits." S u m m u m , 483 F.3d at 1048 (citations and quotations omitted). When a movant seeks one of 6

these historically disfavored forms of injunction, the movant must "make a strong showing b o th with regard to the likelihood of success on the merits and with regard to the balance of h a rm s ."2 Id. The preliminary injunction requested by plaintiff is subject to heightened s c ru tin y because plaintiff seeks to alter the status quo and because the preliminary injunction h e seeks would grant the same relief he ultimately seeks from a final ruling on the merits. Additionally, plaintiff is seeking to stay an important governmental function. H o w e v e r, when a party seeks an injunction to stay governmental a c tio n taken in the public interest pursuant to a statutory scheme, th e more rigorous showing of likelihood of success on the merits is required. See Beal v. Stern, 184 F.3d 117, 122 (2d Cir. 1999). M a ld o n a d o v. Pataki, 2005 WL 3454714, *2. E v e n if the "balance of hardships" standard were applicable to th is case, this Court would not grant preliminary injunctive re lie f . "[A] federal court cannot lightly interfere with or enjoin a state election," Southwest Voter, 344 F.3d at 918, and this C o u rt is not persuaded by the argument that to enjoin the c e rtif ic a tio n of this election would do no more than preserve the s ta tu s quo. Rather, it would frustrate the will of the legislature, a s expressed in Chapter 240, and the will of the voters who cast b a llo ts in the general election. M a ld o n a d o v. Pataki, 2005 WL 3454714, FN3, *6.

Generally, if a movant makes a strong showing on the first three elements, a relaxed s ta n d a rd is applied to the success on the merits element. Okla., ex rel., OK Tax Comm'n v. In t'l Registration Plan, Inc., 455 F.3d 1107, 113 (10th Cir. 2006). However, where, as here, a movant seeks to enjoin the enforcement of a statute, the movant "must meet the traditional `s u b s ta n tia l likelihood of success' standard." Nova Health Systems v. Edmondson, 460 F.3d 1 2 9 5 , 1298 n.6 (10th Cir. 2006). The relaxed standard is also inapplicable here because p la in tif f seeks a historically disfavored form of injunction. 7

2

In the case of Southwest Voter Registration Education Project v. Shelley, 344 F.3d 9 1 4 (9th Cir. 2003) a voter advocacy group sought to enjoin the California Secretary of State f ro m using "punch-card" balloting machines. Plaintiffs unsuccessfully claimed that the b a llo tin g machines violated the Equal Protection Clause of the U.S. Constitution and Section 2 of the Voting Rights Act. We therefore must determine whether the district court abused its discretion in weighing the hardships and considering the p u b l i c interest. In this case, hardship falls not only upon the p u ta tiv e defendant, the California Secretary of State, but on all th e citizens of California, because this case concerns a statewide e le c tio n . The public interest is significantly affected. For this re a so n our law recognizes that election cases are different from o rd in a ry injunction cases. See, e.g., Reynolds v. Sims, 377 U.S. a t 585, 84 S.Ct. 1362. Interference with impending elections is e x tra o rd in a ry, id., and interference with an election after voting h a s begun is unprecedented. S o u th w e st Voter Registration Education Project v. Shelley, 344 F.3d at 919. T h e public interest lies in ensuring that State Question 755 takes effect as intended by th e voters of the State of Oklahoma. In exercising their sound discretion, courts of equity should pay p a rtic u la r regard for the public consequences of employing the e x tra o rd in a ry remedy of injunction. Thus, the Court has noted th a t "[t]he award of an interlocutory injunction by courts of e q u ity has never been regarded as strictly a matter of right, even th o u g h irreparable injury may otherwise result to the plaintiff," a n d that "where an injunction is asked which will adversely a f f e c t a public interest for whose impairment, even temporarily, a n injunction bond cannot compensate, the court may in the p u b lic interest, withhold relief until a final determination of the rig h ts of the parties, though the postponement may be b u rd e n s o m e to the plaintiff.

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Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-312 (1982). No injunction bond can p re v e n t the harm to the public interest which plaintiff's proposed preliminary injunction w o u ld cause. 4. S T A T E QUESTION 755 DOES NOT VIOLATE THE ESTABLISHMENT C L A U S E OF THE U.S. CONSTITUTION. The First Amendment of the U.S. Constitution states that "Congress shall make no law re s p e c tin g an establishment of religion". U.S. Const. amend. I. In determining if the g o v e rn m e n t has violated the Establishment Clause, the Supreme Court applies a three-prong te s t, first adopted in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). "First, the statute m u s t have a secular legislative purpose; second its principal or primary effect must be one th a t neither advances nor inhibits religion; finally, the statute must not foster an `excessive g o v e r n m e n t entanglement with religion.' " Id. at 612-13 (internal citations omitted). If a g o v e rn m e n t action satisfies all three of the Lemon prongs, it is constitutional. State Question 7 5 5 satisfies all three prongs of the Lemon test and, therefore, it does not violate the federal c o n s titu tio n . A. S T A T E QUESTION 755 HAS A SECULAR LEGISLATIVE PURPOSE.

F o r plaintiff to prevail on purpose grounds, he must demonstrate that State Question 7 5 5 was "motivated wholly by religious considerations." Lynch v. Donnelly, 465 U.S. 668, 6 8 0 (1984). He must also show that those considerations were constitutionally

im p e rm is s ib le . A government's purpose need not "be unrelated to religion - that would a m o u n t to a requirement that the government show a callous indifference to religious groups,

9

and the Establishment Clause has never been so interpreted." Corp. of the Presiding Bishop o f the Church of Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327, 335 (1987) (in te rn a l citation omitted). Instead, the Court's purpose test "aims at preventing the relevant g o v e rn m e n ta l decisionmaker ... from abandoning neutrality and acting with the intent of p ro m o tin g a particular point of view in religious matters." Id. T h e State, on the other hand, needs only a single legitimate secular purpose for the m e a s u re to satisfy this requirement. See Lynch, 465 U.S., at 681 n.6. The Court's inquiry in to the State's purposes is by design deferential and limited, see Wallace, 472 U.S., at 74-75 (O 'C o n n o r, J., concurring in the judgment), and the Court is reluctant to attribute u n c o n stitu tio n a l motives to the State, see Mueller v. Allen, 463 U.S. 388, 394-95 (1983). E v e n in the absence of any expressed secular purpose, the State should not be deemed to h a v e acted with an improper purpose unless "it is beyond purview that endorsement of re lig io n or a religious belief `was and is the [State Question's] reason for existence.' " W a lla c e , 472 U.S., at 75 (O'Connor, J., concurring in the judgment) (quoting Epperson v. A rk a n sa s , 393 U.S. 97, 108 (1968)). P la in tif f relies on statements made in the press by the authors of the resolution to put S ta te Question 755 to a vote of the people as evidence the measure does not have a secular le g is la tiv e purpose. Consideration of such media statements do not constitute legislative h is to ry and are improper.3

3

In federal enactments, legislative history consists of statements made in floor ( c o n tin u e d ...) 10

The Supreme Court has held there is "no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes." U n ite d States v. American Trucking Ass'n, Inc., 310 U.S. 534, 543 (1940). "The legislative p u rp o s e of a bill is expressed by the ordinary meaning of the words used." United States v. L o c k e , 471 U.S. 84, 95 (1985), quoting Richards v. United States, 369 U.S. 1,9 (1962). In order to determine if State Question 755 has a secular legislative purpose the Court m u s t derive the intent of the measure from its plain and ordinary language. Id. The Court m u s t consider the text of the Constitutional measure, not just the ballot title. Southwestern B e ll Telephone Co. v. Okla. State Bd. Of Equalization, 231 P.3d 638, 642 (Okla. 2009). In g ra n tin g the Temporary Restraining Order, the Court considered only the ballot title of State Q u e s tio n 755, and did not consider the text of the actual provision to be added to Oklahoma's C o n s titu tio n . Enrolled House Joint Resolution 1056, enacted by the Second Regular Session o f the 52nd Legislature of the State of Oklahoma, provided for the following amendment to b e added to Oklahoma's Constitution upon approval by the people of the State:

( . .. c o n t i n u e d ) d e b a te s , in committee reports, and in committee testimony during the process of enacting a la w . See, e.g. Antonin Scalia, Matter of Interpretation 17, 29 (Amy Gutmann, ed., 1997). Oklahoma has no system for preserving legislative history like the federal congressional s ys te m of receiving information and recommendations submitted in congressional hearings a n d reporting on bills. Cosey v. Cherokee Nation Enterprises, LLC, 212 P.3d 447, c o n c u r r in g op. at fn. 10 (Okla. 2009). "[I]t is simply incompatible with democratic g o v e rn m e n t...t o have the meaning of a law determined by what the lawgiver meant, rather th a n by what the lawgiver promulgated.... Men may intend what they will; but it is only the la w s that they enact which bind us." Scalia, supra. 11

3

The Courts provided for in subsection A of this section, when e x e rc is in g their judicial authority, shall uphold and adhere to the la w as provided in the United States Constitution, the Oklahoma C o n s titu tio n , the United States Code, federal regulations p ro m u l g a te d pursuant thereto, established common law, the O k la h o m a Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States p ro v id e d the law of the other state does not include Sharia Law, i n making judicial decisions. The courts shall not look to the l e g a l precepts of other nations or cultures. Specifically, the c o u rts shall not consider international law or Sharia Law. The p ro v isio n s of this subsection shall apply to all cases before the re s p e c t i v e courts, including, but not limited to, cases of first im p re s s io n . E n ro lle d House Joint Resolution 1056, § 1(C). T h e plain and ordinary language of the above-quoted measure demonstrates the p rin c ip le purpose of the measure is to ban Oklahoma courts from looking to the precepts 4 of o th e r nations5 or cultures.6 The reference to "international law or Sharia law" is merely a s u b s e t of the reference to "precepts of other nations or cultures." The measure bans, equally,

The ordinary meaning of "precept" is "a command or principle intended as a general ru le of action". Webster's Third New International Dictionary, p 1783 (1993). The ordinary meaning of "nation" is "a community of people composed of one or m o re nationalities and possessing a more or less defined territory and government". W e b s te r's Third New International Dictionary, p 1505 (1993). The ordinary meaning of "culture" is "the body of customary beliefs, social forms, a n d material traits constituting a distinct complex of tradition of a racial, religious, or social g ro u p " . Webster's Third New International Dictionary, p 552 (1993). 12
6 5

4

all laws from other nations or cultures, including, but not limited to international law and S h a ria law.7 T h e amendment to Oklahoma's Constitution is merely a choice of law provision, f a v o r i n g the law of the United States Constitution, the Oklahoma Constitution, the United S ta te s Code, federal regulations promulgated pursuant thereto, established common law, the O k la h o m a Statutes and rules promulgated pursuant thereto, and the law of other states of the U n ite d States. This is a secular legislative purpose, as required by the first prong of the L e m o n test. State Question 755 therefore satisfies the first prong of the Lemon test. B. T H E PRINCIPAL OR PRIMARY EFFECT OF STATE QUESTION 755 N E I T H E R ADVANCES NOR INHIBITS RELIGION.

T h e second prong of the Lemon test requires the principal effect of the government a c tio n to be secular. Lemon v. Kurtzman, 403 U.S. at 612-13. The second prong is satisfied

Central to Sharia law is the Qur'an, the revealed word of God, as spoken by the a n g e l Gabriel to Muhammed, the sayings (hadith) and conduct (sunnah) of Muhammed while h e lived among people, as well as, the teachings of learned jurists as they commented on the la w . B. Lavin-McEleney, "Criminality and Democracy in Ancient Systems of Law," 44 No. 6 Criminal Law Bulletin (Winter, 2008). Muhammed was a successful merchant in the city o f Mecca in 610 C.E. when he heard the voice of the angel Gabriel. N. Oman, "Bargaining in the Shadow of God's Law: Islamic Mahr Contracts and the Peril of Legal Specialization", 4 5 Wake Forest 579, 588 (Fall, 2010). The result was the first suras (chapters) of what b e c a m e the Qur'an. Id. In 622 C.E., Muhammed migrated from Mecca and became not only a spiritual leader, but also a civic and military leader. Id. The portions of the Qur'an re c e iv e d during this period frequently dealt with matters of civic administration-matters of la w . Id. Sharia law is not just religious, but necessarily political, governing all public and p riv a te activities of individuals. It regulates everything from politics, economics, and b a n k in g , to the role of women, dress codes, dietary laws, and freedom of speech. K. W a r d -L a m b e rt, "The Refugee Experience, A Legal Examination of the Immigrant E x p e rie n c e s of the Sudanese Population, 33 Nova L. Rev. 661 (Summer, 2009). 13

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so long as the government does not prefer one religion over another. Wallace v. Jaffree, 472 U .S . 38, 53 (1985). State Question 755 does not have the effect of preferring one religion o v e r another. The measure requires Oklahoma courts to apply the law of the United States C o n s titu tio n , the Oklahoma Constitution, the United States Code, federal regulations p ro m u l g a t e d pursuant thereto, established common law, the Oklahoma Statutes and rules p ro m u lg a te d pursuant thereto, and the laws of other states of the United States. The measure b a n s state courts from applying the law of other nations and cultures, regardless of what faith th e y may be based on, if any. S e v e ra l nations are governed by Sharia Law and State Question 755 rightly includes S h a ria Law as law based on the precepts of other nations and cultures.8 State Question 755 is merely a choice of law provision for Oklahoma courts. State Question 755 does not have a primary effect of inhibiting plaintiff's practice of Islam. State Question 755 therefore s a tis f ie s the second prong of the Lemon test.

Saudi Arabia's legal system is based on Sharia law. K. Scully, "Blocking Exit, S to p p in g Voice: How Exclusion from Labor Law Protection Puts Domestic Workers at Risk in Saudi Arabia and Around the World", 41 Colum Hum. Rts. L. Rev. 825 (Spring, 2010). Saudi law requires courts must "apply the rule of Islamic Shari'ah in the cases that are b ro u g h t before them...." Id. Sudan is ruled by military regimes that have governed the c o u n try under strict adherence to Sharia law. K. Ward-Lambert, "The Refugee Experience, A Legal Examination of the Immigrant Experiences of the Sudanese Population, 33 Nova L. R e v . 661 (Summer, 2009). Kano, a state in the nation of Nigeria, adopted Sharia law in 1 9 9 9 . L. Polgreen, "Nigeria Turns from Harsher Side of Islamic Law," N.Y. Times, Dec. 1 , 2007 at A1. Similarly, Aceh Province, in the nation of Indonesia, has implemented Sharia L a w as its governing law. D. Austin, P. Johnson, & M. Wojcik, "Sexual Orientation and G e n d e r Identity," 44 Int'l. Law. 547 (Spring 2010). 14

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C.

S T A T E QUESTION 755 DOES NOT RESULT IN AN EXCESSIVE E N T A N G L E M E N T BETWEEN THE STATE AND RELIGION.

T h e third prong of the Lemon test requires that a law not result in an excessive e n ta n g le m e n t between the State and religion. Lemon v. Kurtzman, 403 U.S. at 612-13. State Q u e s tio n 755 satisfies this prong. State Question 755 not only does not cause unnecessary e n ta n g le m e n t between the State and religion, State Question 755 ensures there is no e n ta n g le m e n t between the State and a particular faith by preventing courts from considering a ll laws from other nations and cultures, including nations and cultures governed by faithb a s e d laws. For example, unlike Oklahoma State law, 43 O.S. § 109, that considers the best in te re s ts of the child, Sharia law has no such emphasis. K. Uhlman, "Overview of Shari'a a n d Prevalent Customs in Islamic Societies-Divorce & Child Custody," §1.0, http:w w w .exp ertla w .c o m /lib ra ry /family_law /islamic_custody.html (January, 2004). Sharia la w considers the father the "natural guardian" of his children, with the paternal grandfather a s the second in line for guardianship.9 Id. To consider Sharia law in a child custody matter in the context of a divorce between two Saudi Arabian citizens who reside in Oklahoma w o u ld result in an undesirable entanglement between the Oklahoma family courts and Sharia f a ith -b a s e d law.

The mother may maintain physical custody, but must give up custody to the father w h e n a boy is between ages seven and nine, and when a girl reaches puberty. K. Uhlman, "O verview of Shari'a and Prevalent Customs in Islamic Societies-Divorce & Child Custody," § 1.0, http:www.expertlaw.com/library/family_law/islamic_custody.html (January, 2004). 15

9

Because State Question 755 bans Oklahoma courts from considering the laws of other n a tio n s and cultures, including those that are faith-based, State Question 755 actually p r e v e n ts excessive entanglement between the State and religion. The third prong of the L e m o n test is therefore satisfied because State Question 755 does not cause an excessive e n ta n g le m e n t between the State and religion. 5. S T A T E QUESTION 755 DOES NOT VIOLATE THE FREE EXERCISE C L A U S E OF THE U.S. CONSTITUTION. The First Amendment states that "Congress shall make no law ... prohibiting the free e x e rc ise [of religion]." U.S. Const. amend. I. "While the First Amendment provides a b s o lu te protection to religious thoughts and beliefs, the free exercise clause does not p ro h ib it governments from validly regulating religious conduct." Grace United Methodist C h u r c h v. City of Cheyenne, 451 F.3d 643, 649 (10th Cir. 2006) (citing Reynolds v. United S ta te s, 98 U.S. 145, 164, 25 L.Ed. 244 (1878)). " N e u tra l rules of general applicability normally do not raise free exercise concerns e v e n if they incidentally burden a particular religious practice or belief." Id. (citing

E m p lo y m e n t Div. v. Smith, 494 U.S. 872, 879(1990) (stating that the Free Exercise Clause " d o e s not relieve an individual of the obligation to comply with a valid and neutral law of g e n e ra l applicability on the ground that the law proscribes (or prescribes) conduct that his re lig io n prescribes (or proscribes)" (internal quotation omitted))). A law is neutral so long a s its object is something other than the infringement or restriction of religious practices. Id. (c itin g Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993)).

16

"Thus, a law that is both neutral and generally applicable need only be rationally related to a legitimate governmental interest to survive a constitutional challenge." Id. "On the other hand, if a law that burdens a religious practice is not neutral or generally a p p lic a b le , it is subject to strict scrutiny, and the burden on religious conduct violates the F re e Exercise Clause unless it is narrowly tailored to advance a compelling governmental in te re s t." Id. Therefore, the first step in analyzing plaintiff's Free Exercise Clause claim is to determine "which level of scrutiny to apply." Id. S ta te Question 755 does not burden plaintiff's religious practices. The measure does n o t infringe upon or restrict plaintiff's or anyone else's religious practices. The measure is m e re ly a choice of law provision, applicable to the courts of Oklahoma. It neither favors nor d is c rim in a te s against any religion. The measure bans Oklahoma courts from considering the l a w s of other nations and cultures, regardless of the religious origins of such laws, if any. It is therefore a neutral law of general applicability and does not raise free exercise concerns. P la in tif f speculates at page 16 of his Memorandum in Support of Plaintiff's Motion f o r Temporary Injunction that, "the Shariah ban prevents Plaintiff's will from being fully p ro b a te d by a state court in Oklahoma, because it incorporates by reference specific elements o f the Islamic prophetic traditions." This is pure conjecture at this point because no O k la h o m a court has been given the opportunity to construe plaintiff's will. This illustrates th e problem with trying to adjudicate this matter before it ripens into a legitimate c o n t r o v e r s y.

17

Nevertheless, contrary to plaintiff's assertion, the ban on Oklahoma courts applying S h a ria law does not prevent plaintiff's will from being fully probated by a state court in O k l a h o m a , even if it incorporates by reference specific personal preferences plaintiff may h a v e , based upon his faith tradition. Plaintiff can recite in his will all kinds of personal p r e f e r e n c e s based on Sharia law. Oklahoma courts will likely honor those personal

p re f e re n c e s ­ th is does not require the application of Sharia law by an Oklahoma court any m o re than a Christian stipulating in his will that he wants a Christian burial requires the a p p lic a tio n of "Christian law". A probate court simply settles a decedent's estate, ensuring th a t outstanding claims against a decedent are settled, and facilitating the distribution of p ro p e rty according to the decedent's wishes and State law. If plaintiff sets forth in his will a preference that conflicts with Oklahoma law, then s ta te law will prevail. For example, if Sharia law so provided, plaintiff could not provide in h is will for his wife to receive none of the property they acquired during their marriage. Oklahoma law would override the provisions of plaintiff's will and his wife would receive h e r statutory share, pursuant to 84 O.S. § 44. T h e analysis of State Question 755 under the Free Exercise Clause is similar to that a p p lie d by the court in Locke v. David, 540 U.S. 712 (2004). In Locke, a college student sued s ta te officials alleging a state statute prohibiting state aid to any post-secondary student p u rs u in g a degree in theology violated the Free Exercise Clause. The state had established th e Promise Scholarship Program to assist academically gifted students with postsecondary e d u c a tio n expenses. However, in accordance with the State's Constitution, the students 18

could not use the scholarship to pursue a degree in devotional theology to become clergy. The plaintiff argued that the program was presumptively unconstitutional because it was not f a c ia lly neutral with respect to religion. Id. at 720. The court said: In the present case, the State=s disfavor of religion (if it can be c a lle d that) is of a far milder kind. It imposes neither criminal n o r civil sanctions on any type of religious service or rite. It d o e s not deny to ministers the right to participate in the political a f f a irs of the community. And it does not require students to c h o o s e between their religious beliefs and receiving a g o v e rn m e n t benefit. The State has merely chosen not to fund a d is tin c t category of instruction. * * *

T h e State=s interest in not funding the pursuit of devotional d e g re e s is substantial and the exclusion of such funding places a relatively minor burden on Promise Scholars. Id . at 720 (internal citations and footnotes omitted). S im ila rly, in the present case, State Question 755 does not burden plaintiff's religious p ra c tic e s and is generally applicable to all citizens before Oklahoma courts. State Question 7 5 5 must therefore only be rationally related to a legitimate governmental interest to pass c o n s titu tio n a l muster. State Question 755 is rationally related to Oklahoma's legitimate g o v e rn m e n ta l interest in banning consideration in its courts of the laws of other nations and c u ltu re s . Oklahoma's disfavor of the use in its courts of the laws of other nations and c u ltu re s , whether faith-based or not, is substantial, and like the plaintiff in Locke, only in c id e n ta lly burdens plaintiff in this case. State Question 755 is therefore constitutional u n d e r the Free Exercise Clause.

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CONCLUSION P la in tif f 's motion for a preliminary injunction should be denied because the case does n o t present a justiciable controversy. Plaintiff does not have standing to challenge State Q u e s tio n 755 and the matter is not ripe for adjudication. Even assuming, arguendo, a ju s tic ia b le controversy was presented, plaintiff's claims must be denied because State Q u e s tio n 755 does not violate the Establishment Clause or the Free Exercise Clause of the U .S . Constitution's First Amendment. R e s p e c tf u lly submitted: s / Scott D. Boughton SCOTT D. BOUGHTON, OBA # 991 J A N I S W. PRESLAR, OBA # 12443 A s s is ta n t Attorneys General O k la h o m a Attorney General's Office 313 N. E. 21st Street O k la h o m a City, Oklahoma 73105 T e le : [phone] Fax: [phone] S c o t t . B o u g h t o n @ o a g .o k . g o v A tto rn e y for Defendants Prince, Turpen, Watkins, and Ziriax C E R T I F I C A T E OF SERVICE I hereby certify that on November 16, 2010, I electronically transmitted the attached d o c u m e n t to the Clerk of Court using the ECF System for filing, and I further certify that I tra n s m itte d a true and correct copy by postage pre-paid U.S. Mail to the following person w h o is not a registered participant of the Court's ECF System: M u n e e r Awad 1 0 1 N. E. 53rd Street, # 3514 O k la h o m a City, Oklahoma 73105 P la in tiff pro se s/ Scott D. Boughton Scott D. Boughton 20