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Plaintiffs push to disqualify judge from St. Isidore religious charter school lawsuit

 Board Chairman Robert Franklin speaks to the Statewide Virtual Charter School Board at its April 11 meeting.
Beth Wallis
StateImpact Oklahoma
Board Chairman Robert Franklin speaks to the Statewide Virtual Charter School Board at its April 11 meeting.

Plaintiffs in one of the lawsuits against the St. Isidore of Seville Catholic Virtual Charter School will get another chance to disqualify the judge assigned to the case.

St. Isidore would be the nation’s first publicly funded religious school. The lawsuit was filed in July against the board that approved St. Isidore’s application — the Statewide Virtual Charter School Board — as well as the Oklahoma State Department of Education and State Superintendent Ryan Walters in his official capacity.

In December, plaintiffs moved to disqualify Oklahoma County District Judge Brent Dishman from the case. Brent Dishman denied the motion, but as of last week, another hearing was set for Jan. 19 so a different judge could make that call. The plaintiff group is made up of Oklahoma taxpayers and parents, faith leaders and the Oklahoma Parent Legislative Action Committee.

Plaintiffs say Brent Dishman should be disqualified for two reasons: first, he sits on the Board of Trustees for the private Christian university, the College of the Ozarks, which was recently represented in a lawsuit by the same legal counsel — the Alliance Defending Freedom — that represents the defendants in the St. Isidore case. Both cases deal with similar themes, such as religious liberties and discriminatory practices based on sexual orientation or gender identity.

In that case, an appeals court ruled against the college in July 2022. And, plaintiffs point out, the U.S. Supreme Court declined to take up an appeal for that case just one month before the St. Isidore case was filed. The motion also cites statements from the ADF saying the legal group is ready to sue again and potentially refile the College of the Ozarks case.

“ADF could resume active representation of the College at any time,” the filing motion from the plaintiff’s counsel reads. “The lack of substantive finality to the College’s case heightens the appearance of impropriety that would result if the Assigned Judge remains on this case.”

Further, they argue the presence of similar legal questions in both cases could exacerbate the appearance of impropriety. In both cases, the ADF has argued the First Amendment and religious freedom statutes override legal prohibitions that a religious school could object to on religious grounds.

“Thus, if the Assigned Judge remains on the case, he will need to issue a decision on legal questions whose resolution could also substantially affect the College in an unresolved legal controversy,” the motion reads.

According to the Oklahoma Judicial Ethics Rules, which the motion cites, “Judges should… avoid both impropriety and the appearance of impropriety in their professional and personal lives.”

The plaintiffs’ counsel also cite several cases in which judges were disqualified because the counsel in one of the parties was currently representing or has recently represented the judge.

In response, ADF says its representation of the College of the Ozarks does not merit disqualification because the organization represented Brent Dishman in his official capacity, not in a personal capacity. Plaintiffs say according to case precedent, that should not matter.

Secondly, plaintiffs say Brent Dishman’s brother is married to a member of the Steering Committee of one of the plaintiffs, the Oklahoma Parent Legislative Action Committee. The committee acts as the controlling body for the organization. They argue that member, Jennifer Dishman, functions in a “director” capacity.

Quoting the Ethics Rules, the motion reads, “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including… the judge knows that the judge, the judge’s spouse, a member of the judge’s household, or a person within the third degree of relationship to any of them, or the spouse of such a person is: a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party.”

The second presentation by the plaintiffs of their motion to disqualify is set for Jan. 19 at 10:30 a.m., before Oklahoma County District Court Judge, Amy Palumbo.

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Beth Wallis is StateImpact Oklahoma's education reporter.
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