The Tulsa Tribune
Friday, August 19, 1983
Replacing convicted lawmakers presents problems
By Michael Carrier
Tribune Capital Bureau
OKLAHOMA CITY – The race to replace Dan Draper, once a pipedream of several lawmakers, is getting ready to erupt in the House of Representatives.
With the House speaker’s conviction on mail fraud and conspiracy charges Thursday night, Reps. David Riggs and Jim Barker will probably be clearing the battlefield in preparation for the fight.
It is just part of the sticky political situation that surrounds the convictions of the Stillwater Democrat and his top lieutenant, Rep. Joe Fitzgibbon, D-Miami.
The questions are how to replace the top two members of the House, do it legally and not step on any political toes.
That is the task that apparently sits before Gov. George Nigh and members of the House of Representatives as they ponder what action to take following the convictions.
As shocked Draper-Fitzgibbon allies, opponents and other state officials try to deal with the convictions, Nigh and his staff were to meet today with Attorney General Mike Turpen.
John Reid, the governor’s press aide, said there is a legal doubt over what Nigh has to do and con do.
State law, passed during the heat of the county commissioner scandal, demands that a state or county official convicted of a felony at least be suspended pending appeal.
Reid said there is some doubt whether a legislator is a state official and whether the conviction means that Draper and Fitzgibbon should be expelled.
The state constitution automatically suspends a legislator for a conviction. It spells no role for the governor in naming a replacement.
The constitution also establishes provisions for reinstatement, with full back and benefits, it the conviction is overturned.
The House can remove any member it wishes. However, Rep. Robert Henry, D-Shawnee and chairman of the House Democratic Caucus, said any action is only enforceable when the Legislator is in session.
Henry said the House could also chose to do nothing, something he does not think will happen.
If Draper is suspended but can not be officially replaced as speaker until the Legislature reconvenes, Henry said it is believed House Pro-Tem Mike Murphy, D-Idabel, would take over House leadership.
Sources close to the governor and Turpen say the real problem facing state leaders is not whether to suspended the two lawmakers, but how to replace them.
Nigh apparently does not want to overstep his bounds or become embroiled in a political squabble over the naming of a temporary replacement.
That fight could be messy, sources said, because Draper, Fitzgibbon and their backers may want to have a say.
Historically, the governor also has a problem.
He has use the law to force from office more than 100 county commissioners who were caught up in the kickback scandal.
Nigh also recently used the law to oust Oklahoma County District Judge William Page from his seat and to name a replacement.
Page was convicted in federal court of taking and bribes.
Refusing to suspend and replace the legislators, who he testified for, almost surely would bring an unbearable amount of public heat on Nigh.
It might also turn the eyes of federal and state investigators Nigh’s way for failing to do his duty as governor, several gubernatorial and federal sources said.
Such a failure could subject Nigh to removal from office.
A number of candidates have announced for speaker and Henry said he is sure the next few weeks of positioning for speaker’s election will be “intense.”
The conviction on 19 of 20 counts for the two men caught nearly everyone by surprise.
The defeat was not lost on Draper backers.
“I hate to hear that,” said a unknowing Rep. Mick Thompson, D-Poteau.
Thompson is one of Draper’s disciples.
Across the courtroom, his 21-year-old daughter, Mary Jo, put her arm around her 18 -year-old brother Danny, in an attempt to comfort him.
Draper’s mother, who had spent the past nine days in the courtroom, listening to the testimony, and his father, Dan Draper II, were not in the courtroom when the verdict was read.
When the jury began its deliberations, both Draper and Fitzgibbon were confident they would be acquitted. Members of both families appeared buoyant and cheerful as the long wait wore on through the afternoon.
Before the jury filed into the courtroom, U.S. District Judge Frank Seay had cautioned spectators against any show of emotion.
“If you think you cannot control your emotions, you should not be in this courtroom,” Seay said.
The families did their best to follow his orders.
But as she left the courtroom, Mrs. Draper, tears streaming down her face said:
“You’ve got to fight like they do, if you’re going to beat the system, you’ve got to cheat, and lie and steal.”
That was a reference to Barney Girdner Jr. and his family. Described by one of the defense attorneys as a family of outlaws who have ruled a rustic Cookson Hills kingdom for three generations, Girdner and several family members admitted committing felonies in the Adair County voting fraud scheme which led to the conviction of Draper and Fitzgibbon.
In a deal with the government for their testimony, Girdner pleaded guilty to one felony charge. His mother, Dode, pleaded guilty to a misdemeanor.
The government agreed not to prosecute Girdner’s wife, Betty, his son, John, and his sister, Ruth Ann Hembree.
U.S. Attorney Gary Richardson, who prosecuted the case, said the system had worked.
He again called defense charges that he had prosecuted the case for political reasons “ridiculous.”
“That (politics) doesn’t happen in the federal system,” he said. “We have a grand jury system that returns indictments and ask the U.S. attorney’s office to prosecute.
“This case was handled by U.S. postal inspectors, who are not connected with this office.”
"I get no joy out of prosecuting anybody,” he said.
Draper left the courthouse and was immediately surrounded by reporters.
“I’m extremely disappointed,” he said. “I’ve done nothing wrong.”
“I’d like to be excused now,” he said. “I’d like to visit with my mother and father.”
As the horde of reporters and photographers trailed him down the street, he repeated his plea. Most of the newsmen turned back.
Fitzgibbon left the building a few minutes later.
“I have no comment at this time,” he told the waiting reporters.
As news of the verdicts spread, Muskogee residents whose lives had been touched only slightly by the nine-day trial reacted.
Asked if she was surprised at the verdict, an employee of the motel where the Draper and Fitzgibbon families have been staying said quietly, “when people have been with you for two weeks, you get close to them.”
“It kind of hurts,” a co-worker added.
Reid said Nigh on Friday will ask, Attorney General Mike Turpen to issue an opinion.
House Democrats also are likely to take some action.
Draper’s conviction left some supporters nearly speechless.
I’m stunned,” said Rep. Cleta Deatherage, D-Norman, House appropriations chairman.
“I’m surprised by the verdict,” said Rep. Jim Fried, D-Oklahoma City. “I’m very disappointed. I’ve been following the case and it seemed exceedingly weak.”
In Tulsa, Sen., Roger Randle also commented on the apparent weakness of the case presented against Draper and Fitzgibbon.
Randle, a Democrat, also expressed concern about the impact of the verdict on the upcoming session of the Legislature.
“I don’t think you can have a good time for something like this to happen,” Randle said, “but at least we’re several months from the session. It may mean that the Legislature as a whole will have additional difficulty in dealing with our severe budget problems.”
Although Draper was the third Oklahoma House Speaker to stand trial on criminal charges, he is the first to be convicted while in office.”
Reid quoted Nigh who testified as a character witness for Draper, as saying he was “surprised” by the verdict.
Rep. Robert Henry, D-Shawnee, Democratic caucus chairman, said he will have to study the legal ramifications, but he expects House Democrats will caucus.
“My reaction is about what everyone’s must be, I’m surprised,” said Rep. David Riggs, one of three rivals campaigning for Draper’s job as speaker. The Sand Springs Democrat said from reading the press coverage of the trial a conviction “appeared to be out of the question. I think everybody is in a state of shock.”
Draper’s supporters had been cheerful around the Capitol for the past few days after key government witness Barney Girdner said he was not sure Draper knew absentee ballots had been fraudulently cast for Draper’s father last September. Draper’s father, Dan Draper II, lost the House Dist. 86 race in a run-off race to Larry Adair.
The guilty verdict raises questions about what will happen next, whether Draper and Fitzgibbon will be forced to resign from office or what action may be taken by other House members.
Neither the state Constitution nor House rules outline the procedure for electing a House speaker should the sitting speaker resign or die in office. The position of speaker pro-tem held by Rep. Mike Murphy, D-Idabel, is not considered the equivalent of a vice president or lieutenant governor in line of succession.
House rules state only that the speaker pro tem will preside over the House in the speaker’s absence.
The conviction also raises the possibility of a special legislative session. Riggs, John Monks, D-Muskogee, and Jim Barker, D-Muskogee have been jockeying for position all summer to take Draper’s place should he be convicted.
“It’s going to be a bloody race from here on out, so batten down the hatches,” said one insider.
Riggs said one of the main concerns of the House should be to figure out an orderly way to handle the situation.
The race for speaker is now up in the air, he said.
“I have the lead, but the race is still open, I don’t think it’s decided right now,” he said.
Riggs said he expects a Democratic caucus will be held within two weeks to nominate a new speaker. Although Democrats and Republicans elect the speaker, the Democratic nomination is tantamount to election because of the House majority is Democratic.
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