IN THE DISTRICT COURT IN AND FOR TULSA COUNTY
STATE OF OKLAHOMA

TODD HUSTON, Plaintiff,

vs

BOARD OF COUNTY COMMISSIONERS OF TULSA COUNTY, Defendants.

BRIEF IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER
AND TEMPORARY INJUNCTION

Plaintiff, Todd Huston, in support of his motion for temporary restraining order and temporary injunction, states as follows:

FACTS

On July 7, 2003, the Board of County Commissioners of Tulsa County, Oklahoma, adopted two resolutions, among others, calling for a special election in Tulsa County to be held on the 9th day of September 2003, for the purpose of submitting to the registered voters thereof, the following propositions:

“SHALL THE COUNTY OF TULSA, OKLAHOMA, BY ITS BOARD OF COUNTY COMMISSIONERS, LEVY AND COLLECT A FORTY PERCENT (40%) OF ONE PERCENT (1.0%) SALES TAX TO FUND EDUCATIONAL, HEALTH CARE AND EVENTS FACILITIES FOR THE PURPOSE OF PROMOTING ECONOMIC DEVELOPMENT WITHIN TULSA COUNTY, OKLAHOMA, AND/OR TO BE APPLIED OR PLEDGED TOWARD THE PAYMENT OF PRINCIPAL AND INTEREST ON ANY INDEBTEDNESS, INCLUDING REFUNDING INDEBTEDNESS, INCURRED BY OR ON BEHALF OF TULSA COUNTY FOR SUCH PURPOSE, SUCH SALES TAX TO COMMENCE ON JANUARY 1, 2004 AND CONTINUING THEREAFTER TO JANUARY 1, 2017?”

and

“SHALL THE COUNTY OF TULSA, OKLAHOMA, BY ITS BOARD OF COUNTY COMMISSIONERS, LEVY AND COLLECT A SEVENTEEN AND ONE-HALF PERCENT (17.50%) OF ONE PERCENT (1.0%) SALES TAX FOR THE PURPOSE OF CAPITAL IMPROVEMENTS FOR COMMUNITY ENRICHMENT WITHIN TULSA COUNTY, OKLAHOMA AND/OR TO BE APPLIED OR PLEDGED TOWARD THE PAYMENT OF PRINCIPAL AND INTEREST ON ANY INDEBTEDNESS, INCLUDING REFUNDING INDEBTEDNESS, INCURRED BY OR ON BEHALF OF TULSA COUNTY FOR SUCH PURPOSE, SUCH SALES TAX TO COMMENCE ON JANUARY 1, 2004 AND CONTINUING THEREAFTER TO JANUARY 1, 2017?”

Proposition No. 3 on the official ballot of the Special County Election contains at least five distinct subjects. (See Official County Ballot, attached hereto as Exhibit “A”) In this single proposition, the citizens of Tulsa County are being asked to cast a single vote in order to support or oppose all of the following:

1. The renovation of existing facilities and construction of new facilities at Expo Square at an estimated cost of $40 million;

2. Construction, modernization and design of a Tulsa Regional Convention/Events Center at an estimated cost of $183 million;

3. The design and construction of various facilities for the campuses of Oklahoma University, Oklahoma State University, Northeastern State University, Langston University and Tulsa Community College at an estimated cost of $102 million;

4. Purchase of instructional materials, textbooks, library books and computer software for public schools in Tulsa County at an estimated cost of $11.3 million; and

5. The design and construction of a new clinic for Morton Healthcare Center at an estimated cost of $14 million. (See Resolution of the Board of County Commissioners of Tulsa County, Oklahoma, attached hereto as Exhibit “B”).

Proposition No. 4 of the official ballot of the Special County Election contains at least 12 distinct subjects. In this single proposition, the citizens of Tulsa County are being asked to cast a single vote in order to support or oppose all of the following:

1. The improvement/construction of community centers and swimming pools for the communities of Jenks/Glennpool, Broken Arrow, Collinsville, Owasso, Skiatook and Sperry at an estimated cost of $23.1 million;

2. The design and construction of improvements to Mohawk Park and the Air and Space Museum at an estimated cost of $8.4 million;

3. The construction and/or extension of multi-use trails in and around Tulsa County at an estimated cost of $4.7 million;

4. Construction of two low water dams, construction of a catch basin, silt removal and shoreline beautification to Zink Lake at an estimated cost of $9.5 million;

5. Road and bridge improvements/repairs for Route 66, 61st Street and 36th Street North at an estimated cost of $32.5 million;

6. An Oklahoma Aquarium capital cost reduction at an estimated cost of $12 million;

7. Construction of an Oklahoma Jazz Hall of Fame at an estimated cost of $4 million;

8. A Downtown neighborhoods fund at an estimated cost of $30 million;

9. Haikey Creek Flood Prevention at an estimated cost of $12.2 million;

10. Construction of a water line and other infrastructure for an Owasso medical complex at an estimated cost of $4.5 million;

11. Acquisition, demolition, revitalization and infrastructure redevelopment of the old industrial, commercial and residential areas abutting the Keystone Expressway between S.H. 97 and Adams Road in Sand Springs at an estimated cost of $14.5 million; and

12. Design and construction of an American Indian Cultural Center at an estimated cost of $2 million. (See Resolution of the Board of County Commissioners of Tulsa County, Oklahoma, attached hereto as Exhibit “C”).

ARGUMENTS AND AUTHORITIES

A. The Facts Warrant the Plaintiff’s Requested Injunctive Relief

A restraining order has the object of preserving the status quo, in order to prevent irreparable injury until such time as the Court may determine plaintiff's application for a temporary injunction. Morse v. Earnest, Inc., 547 P.2d 955 (Okla. 1976). A temporary injunction should be granted in the Court's sound discretion based upon the following four factors: (1) whether the plaintiff is likely to prevail upon the merits of the action; (2) whether plaintiff will suffer irreparable harm in the absence of injunctive relief; (3) whether the irreparable harm which would be suffered by plaintiff if injunctive relief is withheld outweighs irreparable harm which would be suffered by defendant if injunctive relief is granted; and (4) the public interest. See generally, 43 C.J.S. Injunctions §17.

Such relief is clearly warranted in this action, since Plaintiff has shown by affidavit that if the Special County Election is allowed to proceed using the current proposed ballot, Plaintiff could be irreparably economically harmed by the passage of an increased sales tax on goods purchased within Tulsa County based on a constitutionally impaired ballot. The interference with Defendants’ rights by granting the restraining order will be minimal, if any, because this matter should be resolved prior to the scheduled election, while protecting plaintiff from irreparable injury if the election were to proceed.

B. The Issue Presented to the Court

The issue to be decided is whether the stated propositions are in the form required by law and are legally sufficient for submission to the citizens of Tulsa County.

C. The Single Subject Rule

Plaintiff alleges that the two aforesaid propositions violate the “Single Subject Rule” set forth in Article 5, Section 57 of the Oklahoma Constitution. The Single Subject Rule has been in force since statehood. Campbell vs. White, 856 P.2d 263 (Okla. 1993).

Pursuant to Oklahoma Constitution Article 5, Section 57: "Every act of the Legislature shall embrace but one subject, which shall be clearly expressed in its title…." The court in, In Re: Initiative Petition No. 314, 625 P.2d 595, 603 (Okla. 1981), states that the Single Subject Rule has two purposes, "[t]he first is to prevent imposition upon or deceit of the public by the presentation of a proposal which is misleading or the effect of which is concealed or not readily understandable. The second is to afford the voters freedom of choice and prevent “logrolling”, or the combining of unrelated proposals in order to secure approval by appealing to different groups which will support the entire proposal in order to secure some part of it although perhaps disapproving of other parts.” In Campbell vs. White, 856 P.2d 255, 260 (Okla. 1993) the Oklahoma Supreme Court affirmed the “germaneness test” in applying the Single Subject Rule. The germaneness test is only met if the various provisions are related to a common theme or purpose (Campbell at 260).

D. Weinberg v. Board of County Commissioners

A previous attempt to “logroll” the voting citizens of Tulsa County was thwarted in Weinberg vs. Board of County Commissioners, Tulsa County District Court Case No. CJ 95-2761. In Weinberg, the Tulsa County voters were faced with a ballot that sought to pass, in a single proposition, the funding to not only construct a county jail, but to also fund “early intervention and delinquency prevention programs.” The ballot was invalidated under the Single Subject Rule and the ballot had to be redrafted because it was “very conceivable that many voters would favor the jail portion of the proposal but oppose the expenditure of funds for intervention and delinquency prevention programs; it is also conceivable that voters would favor the “social programs” portion but be unwilling to support the jail proposition." (See Order dated June 29, 1995, Weinberg vs. Board of County Commissioners, attached hereto as Exhibit “D”). The broad theme of “criminal justice” did not pass the “common, closely akin theme or purpose” test in Weinberg.

E. The September 9, 2003 Special County Election

Propositions 3 and 4 on the subject ballot are defining examples of logrolling. Each Proposition represents a grouping of multiple projects aimed at each of the various voting groups/communities in the county. The intent is clear and obvious: throw enough money at each of the voting blocks to ensure passage of a group of unrelated projects that may not pass if each individual project were considered separately. The lack of a common, closely akin theme or purpose is clear when you compare a new convention center to school books or a new public health center to Expo Square or building facilities for state colleges. Similarly, Route 66 improvements are not germane to a water line in Owasso. The Jazz Hall of Fame has nothing to do with the Zink Lake shore beautification. As was the case in Weinberg, it is clearly conceivable that there are voters who will want to vote in favor of some of the projects listed in Proposition No. 3 but to oppose other projects listed in the same Proposition. The same is true of Proposition No. 4. The Plaintiff and all Tulsa County voters deserve to be able to make the kind of choices that were intended by the drafters of Oklahoma Constitution Article 5, Section 57.

WHEREFORE, Plaintiff respectfully requests that the Court grant the restraining order, and set for hearing as expeditiously as the Court's calendar will permit Plaintiff's motion for temporary injunction; and that the Court grant a temporary injunction at such further hearing, of the same substance as the restraining order, barring Defendants from proceeding with the current proposed ballot for the Special County Election scheduled for September 9, 2003.

CERTIFICATE OF COUNSEL PURSUANT TO 12 OS §1384.1

The undersigned counsel hereby certifies to the Court pursuant to 12 OS §1384.1 that he personally made an attempt, on behalf of Plaintiff, to contact Defendants as described in paragraph 2 of his Motion for Temporary Restraining Order and Temporary Injunction, and was unsuccessful in contacting Defendants; that he is aware of no other reasonable and efficient means of contacting Defendants to give notice of this motion; and that the restraining order should be issued without notice for the reasons set forth herein, particularly because Defendants plan to proceed with their constitutionally invalid ballot.

Respectfully submitted,

__________________________________

Gary L. Richardson, OBA# 7547
Richardson, Stoops, Richardson & Ward
6555 S. Lewis Ave., Suite 200
Tulsa, OK 74136
(918) 492-7674
Attorney for Plaintiff