Amendment draws fire from experts

[ NOVEMBER 10, 2010 - OKLAHOMA CITY, OK ] - An amendment to the Oklahoma Constitution – passed by a 70-percent yes vote – stands to cause major problems for Oklahoma companies doing business with foreign interests, two legal experts said Tuesday.

State Question 755, which prevents Oklahoma courts from considering foreign and Sharia laws, could stifle foreign trade and hamper international contracts, said Robert Haupt, a director in the litigation and bankruptcy department at the Phillips Murrah law firm.

“The Sharia law component is only one part of this,” Haupt said. “What everyone is ignoring is the international aspect. Let’s say you’re in Oklahoma and you sign a contract with a company in Canada. When you enter into that contract, you decide what country’s laws you’re going to use. If the parties chose Canadian law, then that contract (under 755) would not be enforceable in Oklahoma.”

Haupt’s statement came on the heels of a ruling issued this week by federal judge Vicki Miles-LaGrange.

On Tuesday, Miles-LaGrange issued a temporary restraining order against the amendment, saying a lawsuit filed by Muneer Awad, director of the Oklahoma office of the Council on American-Islamic Relations, has standing.

“The court, based upon the pleadings filed to date and the argument of counsel made at this hearing, finds that the plaintiff has standing to be in this court,” Miles-LaGrange said. “The court also finds that the plaintiff has met the factors for this court to enter a temporary restraining order.”

Haupt said the state’s business community “better hope that Judge Miles-LaGrange issues a permanent restraining order” against the amendment.

“We’re in a state that depends heavily on international trade,” he said. “And (should 755 become part of the state constitution) the practical impact of doing business in Oklahoma is going to be severely affected.”

University of Oklahoma law professor Rick Tepker agreed.

“I’m not an expert in international trade, but one of the most tangible ways this could come up is in international financial transactions,” Tepker said.

Other aspects of the amendment are problematic too, Tepker said.

“If you take the broadest interpretation of this, there are a whole bunch of Oklahoma Supreme Court decisions that cannot be read because those decisions reference foreign law. I cannot believe the Legislature would really outlaw judges looking at English Common Law,” he said.

Supporters of the amendment denounced the lawsuit.

“This amendment, which is supported overwhelmingly by the people of Oklahoma, protects non-Muslims and Muslims alike from the tyranny and discrimination of Sharia law,” Brigitte Gabriel, president of ACT! For America, said in a media release.

The group, which campaigned for the amendment, is an issues advocacy organization that promotes policies for America’s national security and the defense of American democratic values against the assault of radical Islam.

“It is absolutely absurd for CAIR-Oklahoma to say it’s filing a lawsuit simply because the law is ‘discriminatory,’” Gabriel said. “CAIR’s lawsuit is consistent with the desires of its leaders – it wants Sharia law in America. And SQ 755 is a firewall against Sharia law.”

Tepker said the amendment would affect more than just Sharia law.

“I feel sure that Rep. Rex Duncan (the amendment’s author) didn’t intend that British Common Law be banned from briefs and the court,” he said. “In some ways 755 is virtually unenforceable.”

Even if the current lawsuit against the amendment fails, Tepker predicted the amendment would be the cause of other litigation.

“Every time a court relies on this provision, it’s another potential constitutional case,” he said. “We could have lots of future litigation in Oklahoma caused by 755.”

Haupt agreed. He said the law could also cause serious problems between state businesses and tribal companies.

“It could affect contracts with other sovereign nations such as Oklahoma tribes,” he said. “Say you were doing business with the Choctaws. The Choctaws are a sovereign nation. They have certain rights and privileges. You’ve got to make a decision on whether to stipulate to Choctaw tribal courts or Oklahoma, or federal courts. But under 755, which law could we apply if there’s a dispute?”

In addition, he said the amendment could negate treaties and procedures developed at the Hague Convention, an association that develops international legal procedures for dozens of countries.

“What would make for property service in all of those countries, the 80 countries that have signed off on the methods of service developed at the Hague Convention?” Haupt said. “Does 755 say that you can’t apply that? 755 says you cannot consider anything other than state and federal laws of the United States and that, absolutely, will have a negative effect on state businesses. I would suggest that all of us be rooting for Mr. Awad.”