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Date: 08-27-2014

Case Style: Bruce Neimi v. City of Tulsa

Case Number: CV-2011-686

Judge: Daman H. Cantrell

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Laurie Phillips

Defendant's Attorney: Gerald M. Bender

Description: Bruce Neimi, Eddie Evans, Donald a. Lowe and Dorris M. Orr v. City of Tulsa

Issue # 1.
Issue: DECLARATORY JUDGMENT (DECLARE)
Filed by: NEIMI, BRUCE
Filed Date: 07/08/2011
Party Name: Disposition Information:

Defendant: CITY OF TULSA
Disposed: DISMISSED - COURT ORDER, 08/27/2014. Judge.

Issue # 2.
Issue: DECLARATORY JUDGMENT (DECLARE)
Filed by: EVANS, EDDIE L
Filed Date: 07/08/2011
Party Name: Disposition Information:

Defendant: CITY OF TULSA
Disposed: DISMISSED - COURT ORDER, 08/27/2014. Judge.

Issue # 3.
Issue: DECLARATORY JUDGMENT (DECLARE)
Filed by: LOWE, DONALD A
Filed Date: 07/08/2011
Party Name: Disposition Information:

Defendant: CITY OF TULSA
Disposed: DISMISSED - COURT ORDER, 08/27/2014. Judge.

Issue # 4.
Issue: DECLARATORY JUDGMENT (DECLARE)
Filed by: ORR, DORIS M
Filed Date: 07/08/2011
Party Name: Disposition Information:

Defendant: CITY OF TULSA
Disposed: DISMISSED - COURT ORDER, 08/27/2014. Judge.

The following material facts are not in dispute:
1. Art. VI, Sec. 105 of the City of Tulsa Charter provides that the Election District Plan will not become final if a petition for review is filed in district court within thirty days of the filing of said plan with the Tulsa City Clerk. Said plan was filed with the clerk on Friday, June 10,2011, and this petition for review was timely filed on July 8, 2011. Ex. 2, Allegation of City in CV-201 1-600, Petition ¶ 14.
2. Plaintiff Bruce E. Niemi is a resident of the City of Tulsa, Tulsa County, State of Oklahoma and is a qualified elector of the City of Tulsa. He is a registered voter who is a member of the Oklahoma Democratic Party. Petition ¶ 1.
3. Plaintiff Eddie L. Evans is a resident of the City of Tulsa, County of Osage, State of Oklahoma and is a qualified elector of the City of Tulsa. He is a registered voter who is a member of the Oklahoma Democratic Party. Petition ¶ 2.
4. Plaintiff Donald A. Lowe is a resident of the City of Tulsa, County of Tulsa, State of Oklahoma and is a qualified elector of the City of Tulsa. He is a registered voter who is registered as a member of the Oklahoma Republican Party. Petition ¶ 3
5. Plaintiff Doris M. Off is a resident of the City of Tulsa, County of Osage, State of Oklahoma, and is a qualified elector of the City of Tulsa. She is a registered voter who is registered as a member of the Oklahoma Republican Party. Petition¶ 4.
6. It is undisputed that the Oklahoma Republican and Democratic parties are respectively the “political parties having the largest number of registered voters within the city as of the date of the preceding general election.” As of November 10, 2009 or November 2, 2010 (the last preceding relevant general elections conducted in the City of Tulsa). It is also undisputed that Tulsa County has the vast majority of registered voters for each party within the City of Tulsa, but that Osage and Wagoner Counties also have voters and party members residing within the City of Tulsa. Ex. 2 and Ex. 3, Email from Patty Bryant, Tulsa County Election Board Secretary.
7. The Oklahoma Democratic Party (ODP) is made up of all qualified electors of the State of Oklahoma who are registered as Democrat. Ex. 4, ODP Constitution and Bylaws, Art. II, p.5.
8. The State Convention of the Oklahoma Democratic Party is the supreme governing body of the Oklahoma Democratic Party. The State Central Committee of the ODP shall have the authority to act for and on behalf of the State Convention when it is not in session. The ODP State Convention, or when it is not in session, the ODP State Central Committee, is the governing body for registered Democrats within the City of Tulsa. Ex. 4, ODP Constitution and Bylaws, Art. VII, § 6 & 7(B), p. 12.
9. With respect to Democrats, the governing body of a County Party is the County Convention or the County Central Committee when it is not in session. Ex. 4, ODP Constitution and Bylaws, Art. VII, § 2(A) & 3(A), pp. 10-11.
10. The Oklahoma Republican Party (ORP) is made up of all qualified electors of the State of Oklahoma who are registered as Republican. Ex. 5, ORP Rules, Rule 3.
11. The ORP State Committee is the supreme governing body of the Oklahoma
Republican Party, subject to its rules and the direction and control of the Republican
State Convention. It is charged with controlling the affairs of the Oklahoma Republican
Party and the Oklahoma State Republican Conventions. The ORP State Committee is the
governing body for registered Republicans within the City of Tulsa. Ex. 5, ORP Rules,
Rule 10(b).
12. With respect to Republicans, the governing body of a County Party is the
County Committee. Ex. 5, ORP Rules, Rule 6(b).
13. In December 2010 the Mayor of Tulsa sent letters to the respective chairs of the Tulsa County Democratic Party and the Tulsa County Republican Party. The Mayor asked the governing bodies of the Tulsa County Democratic Party and the Tulsa County Republican Party to each appoint a member to the City of Tulsa Election District Commission. Exs. 6 & 7, Letters from Mayor Bartlett, 12/2/2010.
14. The City of Tulsa Election District Commission representative of the Democratic party was not appointed by the governing body of the Oklahoma Democratic Party or by the governing body of the Tulsa County Party, but instated was appointed solely by the Chair of the Tulsa County Democratic Party without approval or consent of any governing body. Ex. 8, Affd. of Jack Boyt.
15. The City of Tulsa Election District Commission representative of the Republican party was not appointed by the governing body of the Oklahoma Republican Party, or the governing body of the Tulsa County Party, but instated was appointed solely by the Chair of the Tulsa County Republican Party without approval or consent of any governing body. Ex. 9, Affd. of Sally Bell.
16. The City of Tulsa knew or should have known that the respective political party governing bodies did not name the Election District Representative based on the correspondence received from the County Chairs. Exs. lOa, lOb & 11, communication to City from Sally Bell and Jack Boyt.

Outcome: OPINION AND ORDER ON HEARING MOTION FOR SUMMARY JUDGMENT
STATEMENT OF FACTS
Pursuant to the City Charter for the City of Tulsa concerning the formation of the Election District Commission’, Mayor Dewey Bartlett contacted the Tulsa County Democratic Party Chairman and the Tulsa County Republican Party Chairman on December 2, 2010, seeking appointments from each party 2 The Election District Comrmssion consists of three members a Democratic Party representative, a Repub1icp Party representative, and the Mayor’s appointment Notably, the Tulsa City Chartr gives party appointing authority to “[tjhe governing body of the two (2) politiQa1partiesc? “ Further, while Tulsa County holds the majority of voters within the City of Tuls’ Osage and Wagoner Counties also contain voters residing within the City of Tulsa.5
In response to Mayor Bartlett’s correspondence, the Tulsa County Democratic and Republican Party Chairmen submitted their appointments6 without the approval or consent of their respective governing bodies.7 Following said appointments, Mayor Bartlett appointed his committee member.8 The Election District Commission met at least eleven (11) times in the subsequent months, and ultimately approved a new Election District Map on June 3, 2011, with a two-to-three vote.9 The Commission filed the Election District Plan on June 10, 2011.10
On June 29, 2011, the Oklahoma Democratic Party (“ODP”) contacted the City of Tulsa, attempting to appoint its own Democratic representative to serve on the Election District Commission.” In addition to its appointment, the ODP stated, “a county party and/or individual county chair is not authorized to act for the party without (its) authorization.”2
Notably, the Oklahoma Democratic and Republican Parties are separate entities from the Tulsa County Democratic and Republican Parties.’3 Ergo, Plaintiff contends that the Oklahoma Parties, not the Tulsa Parties, had the sole authority to appoint Election District Commission members.’4 The Tulsa City Charter allows, “[amy qualified elector of the city [to] seek a review of an adopted Election District Plan by filing a petition for review . . . within thirty (30) days.”5 Plaintiff filed an action within 30 days of the Election District Commission’s filing of the Plan, challenging the Commission’s composition.’6 Defendant maintains that Plaintiffs seeking review of the Commission members does not adequately contest the Plan.’7
ARGUMENT AND AUTHORITY
Plaintiff moves for Partial Summary Judgment based on the premise that the City
of Tulsa failed to properly secure the Republican and Democratic Election District Commission members.’8 Further, Plaintiff seeks a declaratory judgment invalidating the actions taken by the Commission.’9 Defendant, in turn, requests a Countermotion for Summary Judgment, asserting that appointment of Commission members was proper, and, in the alternative, the members were de facto officials whose Commission actions were valid.20
The first issue concerns whether Plaintiffs challenge to the board was proper or untimely. If the Plaintiff’s challenge is untimely, no further analysis is necessary in this case. The Tulsa City Charter includes instruction for the formation of the Election District Commission, adoption of the new Election District Plan and Judicial review of the adopted Election District Plan. The Charter does not include authority to challenge the composition of the Commission. Notably, if the governing bodies do not make their Commission appointments in a timely fashion, the Presiding Judge of the District Court of Tulsa County must make the necessary appointments. Further, Judicial review is only available to consider the adopted Plan. Under Judicial review, it is the District Court’s duty to “determine whether the Election District Plan complies with the provisions of [the] amended Charter.” If the District Court finds that the Plan does not comply, the Court “shall” modify the Plan to comply with the Charter. 21
Based on the Charter, no process is available to contest Commissioner appointments. Additionally, the authority granted to the District Court to appoint members if vacancies remain indicates that a proper appointment process is not outcome determinative on the validity of the Commission’s actions. Further, the only remedy available to qualified electors seeking review of the process is to determine if the Plan complies with the Charter. If the Court finds the Plan does not comply, it is the Court’s role to modify the Plan to ensure compliance. As a result, ‘ it is determined that challenging the composition of the Commission validly constitutes a challenge to the
Plan, the Court’s analysis should focus on the Plan’s compliance with the Charter. Ultimately, if the Plan did not comply, it is the Court’s job to make it comply; not to appoint, or allow appointments of new Commission members.
If the challenge to the Commission composition is proper, it is necessary to consider whether appointments were proper. This, again, requires considering the Charter’s language. Specifically, “[t]he governing body of the two (2) political parties... shall each appoint one (1) member of the Election District Commission.”22 The dispute focuses on the proper “governing body” for each party.
Plaintiff asserts the “governing body” of the Democratic Party is the State Convention of the Oklahoma Democratic Party.23 Further, that the “governing body” of the Republican Party is the Oklahoma Republican Party Committee.24 Contrarily, Defendant contends the Tulsa County Democratic and Republican Parties are the governing bodies for Republicans and Democrats within Tulsa County.25 Conversely, if no factual “governing party” exists, but instead, the issue is one of Charter ambiguity, the court should determine the legislative intent to interpret the Charter. When considering the governing statute or charter, “[i]f there is a doubt or ambiguity. . . it is the duty of the court in interpreting the same to give it to the most reasonable and just interpretation as the legislative intent, rather than an interpretation unreasonable, unjust, or one that will lead to an absurdity.”26 In Walton v. Donnelly, the Oklahoma Supreme Court considered the “absurdity” that would arise by construing the language in defendant’s favor.27 Notably, defendant’s interpretation would enable four of the five seated commissioners to transfer all of their duties by vote to the fifth commissioner, “and leave themselves free to draw their salaries without any duties whatever to perform.”28 Under such interpretation, the Court determined the defendant’s construction was unreasonable.29
In Niemi v. City of Tulsa, neither Plaintiff’s nor Defendant’s interpretation lends itself to an absurd, unreasonable outcome. The discrepancy focuses on whether the state or local parties should have authority to nominate Commission members. Both Plaintiff and Defendant have reasonable arguments for their respective positions. Plaintiff asserts,
“City of Tulsa registered voters and party members live in counties other than Tulsa. ,,30 Therefore, the Commission did not adequately represent City of Tulsa party member
interests by allowing the Tulsa County parties to nominate members. Plaintiff also argues that because the appointments were made by local party chairpersons, no bodies were consulted, further violating the Charter. On the other hand, Defendant states 98.6% of the City’s citizens reside in Tulsa County, minimizing Plaintiff’s concerns of adequate representation.3’ Further, Defendant states, “[b]oth county parties are part of, organized under, or affiliated with their state counterpart.” Thus indicating that reliance on the Tulsa County parties adequately embodies the respective State Parties’ authority.32 Finally, Defendant notes the City of Tulsa “provided the county party chairs with the ‘governing body’ charter provisions and asked them to make an appointment pursuant to those provisions.”33 This demonstrates the City informed the County Parties of the Charter guidelines and relied on the chairpersons to appoint the members.
Based on the ambiguity of the statute concerning the governing bodies, if a question of fact does not exist to define the proper bodies, the Court should interpret the term relying on apparent legislative intent. It appears that the City’s reliance on County Party chairs for appointments adequately complied with the Charter, therefore, making the appointments proper.
If the appointments are improper, Defendant further argues that the actions taken by the Commission were proper, as the members were de facto officers.34 Conversely, Plaintiff asserts the improper appointments should render the Commission’s actions null and voi&35 Based on case law, even if this Court interprets the Charter as invalidating the appointments, the officers should be found as de facto officers, thus upholding their actions.
De facto officials arise under the theory of de facto corporations. A de facto corporation is one that includes “(1) A charter or general law under which such a corporation as it purports to be might lawfully be organized; (2) an attempt to organize thereunder; and (3) actual user of the corporate franchise.”36 Further, the Oklahoma Supreme Court defines a defacto official as:
[O]ne whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interest of the public and third persons. Where the functions of the office are exercised by one who was in the actual possession of it under color of title, even if the officer may not be properly qualified in accordance with the law, his or her acts will be upheld as valid and cannot be collaterally attacked.37
Oklahoma courts have applied the defacto theory to the State Legislature, school
board members, municipal corporations, union graded school districts, city boards of adjustments, and county boards of equalization.38 For instance, in State ex rel. Tayrien v. Doggett, the Oklahoma Criminal Court of Appeals applied the de facto officer theory to validate actions taken by the Oklahoma Legislature.39
Specifically, the Oklahoma Constitution imposed a duty on the State Legislature to reapportion voting districts in Oklahoma after each federal census.40 The Legislature redistricted Oklahoma following the 1910 and 1920 federal censuses, but neglected to do so from 1921 until 1955, when the plaintiff brought the case.41 The plaintiff argued that because the Legislature had not reapportioned the State, as per its Constitutional duty, “the 1955 legislative assembly met in direct violation of the provisions of the Constitution and that all acts of said legislative assembly were null and void.”42 The court upheld the Legislature’s acts, noting, “[a]ssuming that the members of the 1955
Legislature were not selected in the manner provided by the Constitution, still the acts of such legislative body would be those of de facto officers.”43
Tayrien is similar to the case before us. Plaintiff argues that the appointments were invalid; therefore, the actions taken by the Commission should be null and void. Contrarily, like Tayrien, even if the appointments were invalid, the Court should validate actions taken as those done by de facto officers. While the defendant in Tayrien raised legitimate arguments that the Legislature violated the Constitution, resulting in invalid appointments of the Oklahoma Legislature, the court essentially excused any possible invalidity under the defacto officer theory. In our case, the Commission, like the Tayrien Legislature, was appointed, had actual possession of the Commission positions under color of title, and executed official actions in such roles. Therefore, like Tayrien, the Commission actions should be valid under the defacto officer theory.
Plaintiff relies on distinguishable case law to argue the de facto officer theory does not apply to its case. First, in City of Ardmore v. Sayre, the Oklahoma Supreme Court found that a defacto officer could not exist when a dejure officer is in possession of said office at the same time. In Sayre, the city mayor attempted to remove and fill a city position in violation of the city’s charter.45 Specifically, the charter did not grant the mayor authority to remove said appointed officer. Because the removal was invalid, the further appointment was invalid, as it resulted in filling a position already held by a de jure officer with a defacto officer.46
Sayre is distinguishable from Plaintiff’s case. Notably, the de facto Commissioners did not coincidently hold their positions with de jure Commissioners. Additionally, nothing in the Tulsa City Charter indicates that the City of Tulsa parties’ explicitly lacked authority to appoint the positions. Instead, a mere ambiguity in the proper appointees existed.
Furthermore, Plaintiff relies on Welch v. Key. In Welch, the Governor was to appoint two members to the State Election Board from lists submitted to him from the two dominate state political parties.47 The Governor proceeded by appointing his own members, neither of which were included on either list.48 Because there were “no words or expressions whatsoever, granting the Governor the power or authority to make a selection other than from such list,” the appointments were found ineffective.49
Welch is also distinguishable from Plaintiffs case. The Tulsa City Mayor was not bound by a list submitted by the two dominate parties, nor was the Mayor to ultimately choose the party Commission members. Instead, the Mayor reached out to the two party representatives, informed said representatives of the Charter language and appointment responsibilities, and accepted the resulting appointments. As such, unlike the Governor, the Tulsa Mayor was not out of line by relying on the party representatives’ appointments.
Based on the foregoing analysis, Defendant’s position on defacto officers is valid in this case. That being, even if the party appointments were not “good in law, [they were] in fact in the unobstructed possession of an office and discharging its duties in full view of the public, in such manner and under such circumstances as not to present an appearance of being an intruder or usurper.”5° As a result, this Court should not invalidate the Election District Commission’s Election District Plan for want of proper Commissioners.
CONCLUSION
Defendant’s position concerning proper appointment of Commissioners, and argument concerning de facto officers is persuasive to this Court. As both sides stipulated, this is a pure question of law for the Court as none of the facts are in dispute. Therefore, Defendant’s counter-motion for summary judgment is granted and Plaintiffs motions for summary judgment and declaratory judgment are respectfully denied. The Court appreciates all counsel’s courtesy in allowing the hearing on the motions to take place at the College of Law and professionalism in oral advocacy.

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