UPDATED: Protest filed, Attorney strikes back in supreme court filing

Aug. 24—Editor's note: this article has been updated to include Labarthe's comments that a challenge to Ward's protest is expected.

After the Oklahoma Supreme Court rejected an attorney's request to put off a hearing to validate $5 billion in bonds for new turnpikes, the attorney filed a protest instead.

Stan Ward represents a growing number of residents, 245 to date, who have accused the Oklahoma Turnpike Authority of violating the state's Open Meeting Act. The lawsuit accused the OTA of not sufficiently informing the public of its plans to expand the state's toll road system in its January and February meeting agendas.

The 15-year long range plan is set to include two new turnpikes in Norman — one in east Norman from Interstate 40 south though the Lake Thunderbird Watershed to Purcell, and another along Indian Hills Road.

Last week, Ward filed an amicus brief titled "suggestion of other actions pending," which requested the court to delay an OTA hearing to validate the use of revenue bonds for the projects. The court rejected the filing due to a procedural error, an email to the court from Ward and fellow attorney Richard Labarthe reads.

"As you know, the Suggestion of Other Action(s) Pending that we filed last Thursday, August 18th, was rejected the following day by the Clerk of Court for non-compliance with Supreme Court Rule which, among other things, requires leave to file an amicus brief (which the filing was considered to be)," Labarthe's email reads. "Also, amicus briefs are not allowed to have exhibits."

Instead, Ward filed a protest Wednesday morning in line with court rules.

"It's much easier," he said. "We can also attach exhibits."

The protest is in effect the same request — to deny a hearing for the OTA's request for bond validation, Ward said.

OTA has been unable to issue bonds for new projects due to the open meeting lawsuit and the conditional approval from the Oklahoma Council of Bond Oversight that the matter be resolved in OTA's favor or dismissed before the agency would issue bonds.

OTA alleged in Cleveland County District Court that the high court has the "exclusive" jurisdiction to hear all matters related to turnpikes, but Judge Timothy Olsen disagreed and struck down its motion to dismiss.

Now Ward and Labarthe are urging the supreme court to let the case play out in court first. A trial date has been set for the lawsuit for Dec. 12-13.

"....we styled our Protest as a special and limited appearance as we are not seeking to become parties to the Supreme Court action," Labarthe's email to the supreme court reads. "Rather, as we have emphasized, our clients strongly favor the resolution of our matter in Your Honor's district court rather than having our Open Meeting Act challenge adjudicated by the Supreme Court as a part of the pending bond certification application."

The protest will be challenged by OTA's attorney Phillip Whaley, who plans to argue Ward's protest implies that the matter has supreme court jurisdiction, Labarthe said.

"We don't believe it's an appropriate or an efficient use of court resources for the Supreme Court to assume jurisdiction of the Hirschfield [lawsuit] case," Labarthe said. "The only purpose of our filing the protest was to appraise the Supreme Court of the pendency of Hirschfield and to argue that the Supreme Court should not include our case as part of the bond certification case."

A request for comment from OTA and Whaley was not immediately returned late Wednesday afternoon.

Mindy Wood covers City Hall news and notable court cases for The Transcript. Reach her at mwood@normantranscript.com or 405-416-4420.