Date: 11-30-2011

Case Style: Cox v. City of Tulsa

Case Number: 109279

Judge:

Court: Oklahoma Court of Appeals

Plaintiff's Attorney: Kirsten Bernhardt, Tulsa, Oklahoma

Alfred K. (Kent) Morlan, Morlan & Associates, P.c., Tulsa, Oklahoam

Defendant's Attorney: Gerald M. Bender, Litigation Division Manager, Office of the city Attorney of the city of Tulsa, Tulsa, Oklahoma
Fred Dorwart, J. Michael Media, Margaret L. Kobos, Frederic Dorwart, Lawyers, Tulsa, Oklahoma

Description: APPELLEES' ANSWER BRIEF

This answer brief is jointly filed by the City of Tulsa, Kathy Taylor, the Tulsa Stadium
Trust and the intervening property owners (collectively, when appropriate, the "appellees"). For
the reasons addressed below, this Court should reject the appeal in its entirety.

NATURE OF THE CONTROVERSY

Downtown Tulsa is a clearly delineated area of Tulsa described by the major interstate
highways of the Inner Dispersal Loop. Since 1979, Downtown Tulsa has been an improvement
district created by three successive resolutions of the Tulsa City Council pursuant to the
Oklahoma Improvement District Act. Effective July 1, 2009, Downtown Tulsa continued as an
improvement district (the fourth) by the creation of the Tulsa Stadium Improvement District No.
1 (the "Improvement District" or "Downtown Tulsa"). R. 689, exhibit G.

In addition to the services which had been provided through the preceding improvement
districts for over 30 years, the new Improvement District provided for the construction of a $60
million multi-purpose facility (a primary purpose of which is a baseball park for professional,
college, and high school baseball, known as ONEOK Field) and related facilities. The $60
million project was funded by: (i) $30 million in private gifts to the Tulsa Stadium Trust (a
municipal trust of which the City of Tulsa is the sole beneficiary), (ii) $25 million of bonds
issued by the Stadium Trust (to be retired by Improvement District assessments), and (iii) $5
million of project rental income. R. 689, exhibit G.

ONEOK Field was constructed on time and within budget and is nationally recognized as
the premier stadium of its class in the country. ONEOK Field was at the time of its creation
expected to materially spur civic, economic and social activity in, and property values of,
Downtown Tulsa. The trial evidence established without any genuine dispute that those high
expectations were both reasonably exceeded in actual fact. See, discussion below, throughout.
Five of the over 1,400 Downtown Tulsa property owners filed this action challenging the
creation of the Improvement District.' The Tulsa Stadium Trust and property owners intervened
to ensure that the interests of the Trust and the vast majority of Downtown Tulsa property
owners were fully represented.

PROCEDURAL POSTURE OF THE ACTION

Following the commencement of this action, both the plaintiff and the appellees filed
motions for summary judgment. R. 215,689, 857. The Trial Court denied the cross-motions for
summary judgment. R. 916. As discussed in the argument section of this brief, (i) the denial of
the cross-motions for summary judgment is not subject to appeal and (ii) the Trial Court had the
discretion to deny the motions even if, objectively, there had been no genuine issues of material
fact. Consequently, the issues for trial were important to the parties.

At a pre-trial conference on October 29, 2010, the plaintiff engaged the Trial Court in
hostile argument concerning the trial issues. R. 1890, pp. 4-22. The Trial Court ordered the
plaintiff, who has the burden of proof and persuasion, to deliver a list of trial issues not later than
November 12, 2010. Id., p. 22. The plaintiff failed to comply with the Trial Court's October 29
order. R. 1893. On November 17, the intervenors filed their Motion for Relief for Plaintiffs
Noncompliance with the Court's October 29 Order in which the intervenors proposed that (i) the
sole factual issue at trial would be whether the Tulsa City Council had a rational basis upon
which to determine that, as a general matter, property within the Improvement District was
reasonably expected to increase in value as a result of the creation of the Improvement District,
and (ii) if so, judgment should be entered in favor of the appellees. R. 1441. The plaintiff chose
not to contest the intervenors' motion. R. 1893. Consequently, on December 8, 2010, the Trial
'AS discussed below at pages 19-21, four of those five property owners failed to timely perfect
their right to challenge the creation of the District.

Court granted Intervenors' Motion for Relief for Plaintiffs Noncompliance with the Court's
Order on December 8.2010.~ R. 1515.

The action was tried January 24 through 27,2011. R. 1885-1888. At the conclusion of
the plaintiffs case-in-chief, the Trial Court sustained a demurrer to the evidence and granted a
directed verdict. R. 1888, Tr., Vol. 4, p. 535; R.1815.

THE PLAINTIFF'S TRIAL EVIDENCE

The trial evidence overwhelmingly established that the benefits the City Council
expected were reasonably expected-- indeed, at the time of trial the reasonably expected benefits
were rapidly coming to fruition. The plaintiffs trial evidence also incidentally confirmed the
reasonableness of the terms of the District.

The plaintiff called eleven witnesses; Mark Price, owner of the plaintiff; Susan Koenig,
dismissed plaintiff; William Tabla, property owner; Stanley Glanz, Sheriff of Tulsa County;
Stephen Wolfe, property owner; Kenneth Neal, former Tulsa World Editorial Writer; Michael P.
Kier, Tulsa Director of Finance; David Larsen, Real Estate Expert; John Scott, Director, Tulsa
Performing Arts Center; Kathy Taylor, Tulsa Mayor; and Stanley A. Lybarger, Chairman of the
Tulsa Stadium Trust and Chief Executive Officer of BOK Financial Corporation. Following the
presentation of these eleven witnesses, the plaintiff rested. R. 1887, Tr. Vol. 3, p. 512.

Larsen, Taylor, and Lybarger gave substantial testimony describing the reasonableness of
the terms and conditions of the Improvement District and the benefits reasonably expected to be

2The Court noted at trial that the plaintiff's decisions: (i) not to comply with the Court's October
29 Order, and (ii) not to respond to the intervenors' motion, were the basis for its evidentiary
rulings. R. 1887, Tr., p. 502.

obtained by it.' Koenig, Glanz and Neal each conceded the benefits of the District. Each of
Price, Tabler, and Wolfe gave testimony that the specific property owned by each would not be
benefited if such property were limited to its present use.' No witness gave any testimony that
the creation of the District was not reasonably expected to increase the value of property in the
Improvement District. R. Tr. Vol. I, Vol. 11, and Vol. 111, seriatim.

Overall, the plaintiffs own evidence, as the Trial Court found, established that: (i) the
Improvement District was reasonably drawn, and (ii) the Tulsa City Council had a rational basis
upon which to determine that, as a general matter, property within the Improvement District was
reasonably expected to increase in value as a result of the creation of the Improvement District.
-See, record cited in fns. 3 and 4, supra.


SUMMARY OF ARGUMENT

The plaintiff raises nine propositions for appellate review. 6 Significantly, the plaintiffs
do challenge the two outcome determinative issues decided by the Trial Court. The two
outcome determinative issues are:

(1) The plaintiff does not challenge the Trial Court's Order of December 8,2010, which
limited the trial to the factual issue "whether the City Council had a rational basis upon which to

3 R. 1.88 5, Tr. Vol. 1, pp. 221,256-272; R. 1886, Tr. Vol. 2,313,319-320,324-25,330,368-372,
380-81,388-89,392-93,399,401-04; R. 1887, Tr. Vol. 3, pp. 453-54,468-70,472-73,475,482-
493.

4 R. 1.88 5, Tr. Vol. 1, pp. 61-62,66-67,70, 101-03, 153.
5 R. 1885, Tr. Vol. 1, pp. 26, 86,89, 120-21.

6 R. The plaintiff has therefore abandoned the remainder of the issues set forth in exhibit C to the
Amended Petition in Error. Supreme Court Rule 1.11@)(1); McCorkle v. Great Atlantic Ins.
Co., 1981 OK 128,128,637 P.2d 583,588; Lockhart v. Lockhart, 1996 OK CIV APP 56,11, h.
1, 919 P.2d 454, 454. Since new issues cannot be raised in a reply brief, Supreme Court Rule
1.26(b); McCorkle, 1981 OK 128, at 110, 637 P.2d at 585, these 9 issues are the only issues
before this Court.

determine that, as a general matter, property within the Improvement District was reasonably
expected to increase in value as a result of the creation of the Improvement District." R. 1515-
16.7

(2) The plaintiff does not challenge the Trial Court's finding, based upon the plaintiffs
evidence at trial, that the City Council had a rational basis for creating the Improvement
District.

These two Trial Court decisions are outcome determinative because (i) six appellate
propositions raised by the plaintiff were raised only in a motion for summary judgment that was
denied by the Trial Court and, therefore, not subject to appeal9 and (ii) none of the nine
propositions of error have any substantive merit.

This Court should affirm the Trial Court.

7 The Plaintiff advances no argument or authority in support of the plaintiffs complaint that the
trial court limited the issue for trial. See Brief in Chief, p. 6. Any challenge to the Trial Court's
order has been waived. Supreme Court Rule 1.1 lQ(1); American First Abstract Co. v. Western
Information Services. Inc., 1987 OK 24, 11 1, 735 P.2d 1187, 1189. In any event, the Trial
Court's Order was correct. See, R. 1411-1438. The plaintiff ignored the Trial Court's order
requiring the plaintiff to specify the issues the plaintiff wanted tried and chose not to respond to
the intervernors' motion stating the issue for trial. Id. Under District Court Rule 4(e), the Trial
Court properly deemed the motion confessed. See also, R. 1891, pp. 12, 28 (Trial Court
commenting that the trial was limited to one issue due to plaintiffs failure to comply with the
Order and choice not to respond to intervenors' motion stating issue for trial); R. 1887, Tr. Vol.
3, at p. 502 (Trial Court commenting that the order limiting issues at trial was the result of the
plaintiff failing to respond to the motion seeking such relief).

8 The Trial Court explained her decision at length, both orally [R. 1888, Tr., Vol. 4, pp. 526-5351
and in a written opinion setting forth her findings of material facts. R. 1807-1814. The Trial
Court's recitation of the trial evidence clearly established that the City Council had a rational
basis for creating the Improvement District, a finding not challenged by the plaintiff on appeal.

See, Brief in Chief, Propositions I-V, VIII; R. 916 (order denying cross-motions for summary
judgment).

ARGUMENT

1

THE PLAINTIFF IS PROCEDURALLY BARRED FROM RAISING SIX OF THE NINE PROPOSITIONS.

Six of the nine propositions raised by plaintiff are not appealable issues. These issues
were raised in the Trial Court only by plaintiffs motion for summary judgment which was
denied by the Trial Court [R. 215,9161. These six issues were never properly or timely raised by
the plaintiff:

* Proposition I: Allegation that the Improvement District is a prohibited general public
improvement [pp. 7-10];

* Proposition II: Allegation that the Improvement District is an unconstitutional taking
[pp. 10-121;

* Proposition III: Allegation that the services segment of the Improvement District was
unspecified [pp. 12-13];

* Proposition IV: Allegation that the benefit of the Improvement District was
speculative and an unlawful taking without just compensation [pp. 14-16];

* Proposition V: Allegation that the boundaries of the Improvement District violated
due process [pp. 16-18]; and,

* Proposition VIII: Allegation that the exemption for property used for religious
purposes violates the First Amendment [pp. 22-25],"

Because: (i) these six propositions were only raised by motion for summary judgment
which the Trial Court denied, and (ii) the plaintiff has not challenged the Trial Court's December
8,2010 Order limiting the nonjury trial, these six propositions are barred from appellate review.

In Mvers v. Mo. Pac. Railroad Co., 2002 OK 60, 52 P.3d 1014, the Oklahoma Supreme Court held that any post-trial review of a denied motion for summary judgment is precluded.

10 "The six propositions were before the Trial Court only on motion for summary judgment.
R. 215. The motion was denied. R. 916-917. The plaintiff raised Proposition I by summary
judgment a second time and the motion was again denied. R. 1524, 1660.

2002 OK 60, at 739, 52 P.3d at 1034. To obtain review of the issues raised by the denial of a
motion for summary judgment, the party must re-assert those issues by way of a motion for
directed verdict or a motion notwithstanding the verdict. 2002 OK 60, at 741, 52 P.3d at 1034-
35. Because the plaintiff voluntarily chose not to respond to the directives of the Court
respecting the issues for trial (such voluntary decision by the plaintiff resulting in the Court's
unchallenged December 8,2010 Order), the plaintiff took none of these actions."

For this reason, six of the nine propositions asserted by the plaintiff (Propositions I
through V and VIII) are not properly before this Court on appeal. Even if the six propositions
were properly before this Court, none of the six has any merit as hereafter discussed.

II

NONE OF PLAINTIFF'S NINE PROPOSITIONS HAS MERIT.

None of the nine propositions raised by the plaintiff has any substantive merit. All nine
of plaintiffs propositions are hereafter discussed even though Propositions I through V and VIII
are not before the Court.

RESPONSE TO PROPOSITION I: ONEOK FIELD WAS A LOCAL IMPROVEMENT.

In its first proposition, the plaintiff argues that the construction of ONEOK Field was a
"general public improvement" and not a local improvement as contemplated by the BID Act.
Brief in Chief, pp. 7-10. This argument is incorrect for each of two reasons.

11 Instead, the plaintiff once again complained of the Trial Court's December 8, 2010 Order by
arguing that plaintiffs untimely "Motion to Apply Correct Standard of Law and Questions of
Fact" [R. 17251 should be granted and the December 8 Order stating the trial issue rescinded.

After hearing oral argument [R. 1887, Tr. Vol. 3, pp. 508-121, the Trial Court denied the
plaintiffs motion. &, p. 512. The plaintiff did not present the Trial Court's December 8, 2010
Order or the Trial Court's denial of plaintiffs late filed "Motion to Apply Correct Standard of
Law and Questions of Fact" as error in its appellate briefing and the propriety of those orders
cannot now be challenged.

First, the plaintiff is procedurally barred from making the argument. See, Arg. I, m.
-See -also, R. 1886, Tr., Vol. 2, p. 305 (noting the issue of local improvement not before the Trial
Court). 12

Second, the City Council properly determined that ONEOK Field was a local
improvement. The burden was on the plaintiff to prove that ONEOK Field was not a local
improvement. Moore Funeral Homes. Inc. v. Tulsa, 1976 OK 96, 77, 552 P.2d 702, 705;
Baldwin v. Lawton, 1947 OK 121,718, 185 P.2d 699, 702. The fact that properties outside an
improvement district may be incidentally benefitted does not deprive the improvement of its
local character. Baldwin, 1947 OK 121,716, 185 P.2d at 702; Harrington v. Tulsa, 1934 OK
711, 77, 39 P.2d 120, 122; Bragdon v. Muskogee, 1928 OK 659, 70.3, 271 P. 1006, 1008.'~
Furthermore, if the value of property within a district is, as a general matter, more impacted than
the value of property outside the district, the benefit is deemed special.14

12 During the summary judgment phase of the case, the appellees presented overwhelming
evidence that the property within the Improvement District would be specially benefitted by
ONEOK Field. R. 698, exhibits I, J, K, R and S. At trial, during plaintiff's case-in-chief,
plaintiff's counsel himself elicited evidence of the special benefit. See, ex., R. 1885, Tr., Vol. 1,
pp. 221,257-58,272; R. 1886, Tr. Vol. 2, pp. 326-330,388-89,403-04; R.1887, Tr., Vol. 3, pp.
453-54. See also, additional citations, h. 3 and 4, p. 4.

13 In Moore, a major state highway expansion that incidentally benefited property outside the
district did not preclude a finding that the highway expansion was a local improvement. 1976
OK 96,773, 5, 552 P.2d at 704. See also, Citv of Seattle v. Rogers Clothing for Men, Inc., 787
P.2d 39,47 (Wash. 1990) (en banc) (spillover benefit to the community at large does not change
special benefits); Charlotte Countv v. Fiske, 350 So.2d 578, 581 (Fl. App. 1977) (special benefit
is not lost merely because other properties incidentally benefit); Just's, Inc. v. Amneon Const.
Co., 583 P.2d 997, 999 (Idaho 1978) (incidental benefit to public at large does not defeat special
benefit).

14 See, U.S. v. River Rouge Improvement Co., 269 U.S. 41 1,415-416 (1926) (increase in value of
parcel caused by improvement constitutes a special and direct benefit, as distinguished from a
benefit common to all the lands in the vicinity, although other parcels are also benefited); Village
of Downers Grove v. Bailey, 156 N.E. 362, 363 (Ill. 1927) (improvement district proper where
improvement enhances the value of adjacent property as distinguished from benefits throughout
the municipality).

The Improvement District Act clearly authorized, in two separate provisions, the City
Council to create the Tulsa Stadium Improvement District to construct ONEOK Field. First, 11
O.S. 2001, 39-103 authorizes the City Council to create improvement districts which "include,
without limitation because of enumeration" parks, playgrounds, and recreational facilities.
Nothing in the statute remotely limits the permissible improvements to the plaintiffs personal
preference. Second, the Act expressly defines the word "improve" to mean "construct." $39-
102(7). ONEOK Field is precisely the type of improvement a city is entitled to construct under
the Improvement District Act.

The City Council validly concluded that ONEOK Field was a local improvement.'*

Plaintiffs reliance on Application of Erick Hospital District, 1968 OK 112,444 P.2d 216
is totally misplaced. Erick validates the Citv Council and Trial Court determinations. In Erick
the Supreme Court determine that the hospital was not a local improvement. The Erick
Court considered the unique feature of the Hospital District Act. Unlike the Improvement
District Act [ l l O.S. 2001, $39-1031, the Hospital District Act did not require a determination
that the hospital would specially benefit the properties located inside the Erick district.
Consequently, no legislative determination of special benefit was made as it was in the creation
of the Tulsa Stadium Improvement District. 1968 OK 112, 7714-22, 444 P.2d at 221-23;

15 The plaintiff's comparison of the different funding resources for various downtown Tulsa
facilities is irrelevant. See, Brief in Chief, p. 8. The City had the discretion to fund ONEOK
Field in a variety of ways. See, French v. Barber Asphalt Paving Co., 181 U.S. 324, 343-44
(1901). That the City elected to fund construction of ONEOK Field in a different manner than
the BOK Center, Maxwell Center, or Convention Center was a legislative decision not subject to
this Court's review. Gladstone v. Bartlesville Independent School District No. 30, 2003 OK 30,
723, 66 P.3d 442, 451; m, 181 U.S. at 344 (selection among various funding mechanisms a
matter of "legislative expediency.").

compare Tulsa City Resolution 7571, creating the Tulsa Stadium Improvement District, R. 698,
exhibit G. 16

Even if plaintiffs Proposition I were properly before this Court, the legislative
determination of local benefit by the Tulsa City Council, confirmed by overwhelming trial
evidence, cannot be questioned.

RESPONSE TO PROPOSITION II: THE IMPROVEMENT DISTRICT DOES NOT VIOLATE THE TAKING CLAUSES.

In Proposition II, the plaintiff contends that the Improvement District violates the taking
clauses of the federal and state constitutions. Brief in Chief, pp. 10-12. While addressing
abstract theories of taking clause jurisprudence, the plaintiff never suggests in its brief why the
taking clauses are violated. On summary judgment below, the plaintiff claimed the benefits (the
additional services and ONEOK Field) were impermissibly speculative. See, R. 215, pp. 13-14.
Since that issue constitutes plaintiffs Proposition IV, the appellees refer the Court to their
discussion of Proposition IV at pages 12-14. The appellees note here only that (i) the argument
is not before this Court on appeal as previously discussed and (ii) the extensive Trial Court
evidence overwhelmingly confirmed that the benefits of the Improvement District were
reasonably expected, as the City Council had determined. See supra. record cites in hs. 3 and 4,
P. 4

16 The other case inexplicably cited by the plaintiff, Public Service Co. v. Northwest Rogers
Countv Fire Protection District, 1983 OK 96, 675 P.2d 123, confirms the propriety of the City
Council's legislative determination that incidental benefit to property outside the Improvement
District did not preclude ONEOK Field from being of special benefit to Downtown Tulsa.

RESPONSE TO PROPOSITION 111: THE SERVICES ASSESSMENT COMPLIES WITH ALL CONSTITUTlONAL AND STATUTORY NORMS.

In Proposition 111, the plaintiff argues that the 30 year old services segment of the District
is unlawful because the services were insufficiently described. The plaintiffs argument is
incorrect for each of three separate and independent reasons.

First, the plaintiff is procedurally barred from raising this issue for appellate review.
Second, the plaintiff has cited no authority for its argument. This Court's Rule
1.1 l(k)(l) provides that "argument without supporting authority will not be considered."

Third, Proposition III fails on the merits. The notice did provide a list of services that
could be funded.17 The fact that the description mirrors the statutory text does not render the
notice impermissibly vague or uninformative. 18 As repeatedly addressed by the Oklahoma
Supreme Court, the constitutional standard for notice is inherently flexible:

An elementary . . . requirement of due process in any proceeding which is to be
accorded finality is notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an
opportunity to present their objections.19

In a similar case, the Iowa Supreme Court rejected, in reasoning equally applicable here,
a challenge made by property owners objecting to the sufficiency of notice given them of a
proposed sewer project:

17 At trial, Michael P. Kier, the City's finance director, testified on direct examination by
plaintiffs counsel that Improvement District funds were being spent for exactly the services
described in the notice. R. 1885, Tr., Vol. 1, p. 191. This evidence was uncontroverted.

18 See, Richie v. State, 1995 OK CR 67,125,908 P.2d 268,276 (information provided to criminal
defendant sufficiently apprised him of the crimes charged when it tracked the relevant statutory
language); Monev of the U.S. v. State, 774 S.W.2d 788, 793 (Tex. App. 1989) (forfeiture notice
which tracked statutory language sufficient).

19 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-315 (1949) (as quoted in
Marshall Oil Cow. v. Adams, 1983 OK 102, 113, 688 P.2d 37, 40 n.9, and State v. Four
Thousand Two Hundred Sixtv Dollars, 1996 OK 96,116,925 P.2d 50,53).

. . .we see no injustice or hardship in holding that, when one is notified that an
attached resolution is pending before the city council proposing a street
improvement for which he can see his designated property will be assessed, and
that opportunity is being offered for all who may think themselves aggrieved by
such project to appear and make known their objections to it, one cannot ignore
such notice or object to it alone on the plea that it is not as specific as he thinks it
should be. . .

Roznos v. Town of Slater, 116 N.W.2d 471,476 (Iowa 1962).

The notice of the proposed legislative action by the City Council to create the
Improvement District continuing the thirty year history of services for Downtown Tulsa clearly
met all applicable statutory, due process, and taking clause requirements. Not only is the
plaintiff procedurally barred from raising Proposition I11 for appellate review, not only does the
plaintiff cite no authority to support Proposition 111, but Proposition I11 fails on the merits.20

RESPONSE TO PROPOSITION IV: ONEOK FIELD CONFERRED SUBSTANTIAL AND CONCRETE SPECIAL BENEFITS.

In Proposition IV, the plaintiffs argue that the benefits of the Improvement District were
speculative. Brief in Chief, pp. 14-16.

Proposition IV fails for each of two reasons.

First, as addressed above, the plaintiff is procedurally barred from raising this issue for
appellate review. See. Arg. I, B. See also, R. 1887, Tr. Vol. 3, p. 443 (issue of lack of
benefit to individual property owners within the District not subject of trial).

20 Even if the notice were defective with respect to the services assessment, the ONEOK Field
assessment remains valid. The plaintiff concedes that the Improvement District creates two
separate assessments. See. Brief in Chief, p. 12. One assessment is for Downtown Tulsa
services. The second is for ONEOK Field. Section 104, title 33, of the Tulsa Revised
Ordinances provides: "If any part of any section of the Tulsa Revised Ordinances or any rule,
regulation, or requirement contained therein, shall be held to be invalid by a court of competent
jurisdiction, such invalidity shall not affect the validity of any other part, or section thereof,
or other rule, regulation or requirement." (emphasis added). See, Arthur v. Citv of
Stillwater, 1980 OK 64,712, 611 P.2d 637,642-643 (severing valid part of city ordinance fiom
invalid).

Second, the City Council legislatively determined that the Improvement District was of
special benefit to the property owners within the Improvement District, a determination
overwhelmingly confirmed by the trial evidence. The determination of benefit is primarily a
legislative question determined by the governing body. The courts have jurisdiction to substitute
their judgment for the legislative judgment only "where the evidence conclusively shows that the
properties included in a street improvement district will not be benefitted by such
improvement ..." Lawton v. Akers, 1958 OK 292,104, 333 P.2d 520,521 (Syl. No. 4) (emphasis
added); 14 McQuillin, Municipal Corporations /3d), §38:196. The City Council legislatively
determined that the Improvement District would be benefited. The trial evidence
overwhelmingly confirmed that determination.

A universally accepted method to establish a special benefit to property is to demonstrate
a reasonable expectation of an increase in property values.21 The expectation need only be
reasonable and is not limited to the current use of the property.22

21 See, EHW Properties v. Eaeen, 503 N.W.2d 135, 139, 149 (Minn. App. 1993) (special benefit
measured by increase in market value); Rowley v. Murray, 748 P.2d 973,977 (N.M. App. 1987)
(special benefit may include increase in value); Simmons v. Moscow, 720 P.2d 197,203-04 (Id.
1986) (special benefit found by increase in property value); Suffield v. Carrington, 744 A.2d
958,960 (Conn. Super. 1998) (special benefit measured by increase in value); Brock v. Lemke,
455 P.2d 1, 3 (Haw. 1969) (special benefits are pecuniary benefits which increase property's
value); 64 C.J.S., Municipal Corporations, § 121 8 (increased value of property constitutes
special benefit); 70 Am. Jur.2d, Special and Local Assessments. §95 (same)

22 See Brown v. Citv of York, 416 N.W.2d 574, 576 (Neb. 1987) (valuation of benefits extends to
future use); Nebco. Inc. v. S~eedlin, 51 N.W.2d 710,716 (Neb. 1977) (future use considered in
determining special benefit); Sterling Nat'l. Bank & Trust Co. v. Charleston Transit Co., 27
S.E.2d 256, 262 (W.Va. 1943) (special benefits not confined to present use); Philadelphia. B. &
W.R.R. v. Hazen, 116 F.2d 543, 549 (Ct. App. D.C. 1940) (future and potential uses of property
considered benefit); Tjaden v. Town of Wellsburg, 198 N.W. 772, 774 (Iowa 1924) (Editor's Note: This does not seem to be a good citation.) (future use
and reasonable anticipations may be considered); King v. Citv of Davton, 10 Ohio C.C.(n.s.)
522,522 (Cir. Ct. Ohio 1907) (future benefit to property adequate to confer special benefits).

The trial evidence overwhelmingly confirmed the legislative determination that ONEOK
Field was of special benefit to the property owners in Downtown Tulsa. See, R. 1885, Tr. Vol.
1, pp. 66-67,70, 101-02, 106,221,256-58,262,272; R. 1886, Tr. Vol. 2, 326-330,359, 368-69,
372, 388-89, 392-93, 397, 403-04, 412; R. 1887, Tr. Vol. 3, pp. 433-34, 485-89; Defendants'
Trial Exhibits 12, 14,29 and 44.

Proposition IV thus fails because: (i) the plaintiff is procedurally barred from raising the
issue for appellate review, and (ii) when considered on the merits, the trial evidence
overwhelmingly confirmed the City Council's legislative decision that ONEOK Field was of
substantial, concrete special benefit to Downtown Tulsa. 23

RESPONSE TO PROPOSITION V: THE SHAPE OF THE DISTRICT WAS RATIONALLY RELATED TO THE BENEFITS.

In Proposition V, the plaintiff argues the shape of the Improvement District as determined
by the City Council bore no rational basis to the benefits conferred. Brief-in-Chief, Proposition
V, pp. 16-18. The argument fails for each of two reasons.

First the plaintiff is procedurally barred from making the argument. &, Arg. I, supra. 1
The plaintiff refused to comply with the Court's Order requiring the plaintiff to advise the
appellees what issues would be presented for trial. The plaintiff voluntarily chose not to respond
to the intervenors' motion to determine that the sole trial issue should be the rational basis on
which the City Council acted. Consistent with those rulings, the Trial Court properly excluded
during trial evidence respecting the geographical shape of the District. See, R. 1885, Tr. Vol. I,
23The plaintiffs reliance on Board of Countv Commissioners v. Lowery, 2006 OK 31, 136 P.3d
639, is misplaced. In m,th e Supreme Court held that economic benefit would not justify
taking property through the eminent domain power. In contrast, the City Council was justified in
imposing assessments on the properties within the Improvement District because those properties
would be specially benefitted by the functions and activities promoted by the Improvement
District, and there is no taking.

pp. 251-52. The plaintiff did not raise these Trial Court orders in its Brief-in-Chief. The
plaintiff is procedurally barred from presenting Proposition V.

Second, Proposition V fails on the merits.24 The shape of the Improvement District was
rationally related to the benefits conferred. A legislative body has substantial discretion to draw
reasonable boundaries in determining a district. he City Council determined that the thirty
year old boundaries were reasonable. The trial evidence overwhelmingly confirmed the City
Council determination.

Plaintiffs argument that assessing property within the Inner Dispersal Loop without
assessing property outside the Inner Dispersal Loop violates due process has no meritz6 The test
is the rational basis test - did the City Council have a rational basis for establishing the Tulsa
Inner Dispersal Loop as the boundary? Gladstone v. Bartlesville Ind. School Dist., 2003 OK 30,
24The two cases on which plaintiff relies are easily distinguishable. In Tulsa v. McCormick,
1917 OK 196, 164 P. 985, the case was tried on an agreed statement of fact that the proposed
ordinance would assess some property owners more than the property was worth, while allowing
other property owners, clearly benefitted and within the natural boundaries of the city block at
issue, to not be assessed at all. The facts also established that in certain instances the ordinance
would be incapable of application. 1917 OK 196, at 74, 164 P. at 987. Those extreme facts are
not here present. In Rollow v. Ada, 1990 OK 59, 794 P.2d 1211, the Court found that the
assessment was only levied against property directly abutting the improvement, and not the
property getting an equal benefit. 1990 OK 59, at 78,794 P.2d at 1213.

25 Bud-Kal v. Citv of Kalispell, 204 P.3d 738, 744 (Mont. 2009) ("It is established law that a
governing body's determination of the property to be benefited by inclusion in a district is
conclusive absent proof of fraud or mistake that precludes the exercise of sound judgment.");
Davis v. Citv of Leawood, 893 P.2d 233,238 (Kan. 1995) (municipal authorities are vested with
broad discretion in establishing an improvement district, including the boundaries thereof);
Rolph v. Citv of Fargo, 76 N.W. 242, 243 (N.D. 1898) ("[Ilt is for the legislature to determine
how much of the expense of the improvement shall be collected from that district, and where the
boundaries of that district shall be drawn.").

26The distance of property from an improvement is not a reliable indicator of the special benefits
to that property from the improvement. In re Hume, 208 N.W. 285,286 (Iowa 1926) (property
received special benefit from improvement, notwithstanding its substantial distance from such
improvement); Citv of Chicago v. Farwell, 120 N.E. 520, 524 (Ill. 1918) (distance of assessed
property from improvement is not material so long as property is specially benefited).

720,66 P.3d 442, 448; Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, 755, 148 P.3d 842, 856-
857.

Under the rational basis test, a district will be upheld "so long as there is any reasonably
conceivable state of facts that could provide a rational basis for the classification." Gladstone,
2003 OK 30, at 712,66 P.3d at 448; Norman Homeowners Ass'n v. Norman, 2004 OK CIV APP
14,117, 85 P.3d 853, 859 (upholding distinction between homes greater and lesser than 1631.5
square feet). The fact that the line of inclusion "might have been drawn differently at some
points is a matter for legislative, rather than judicial, judgment." Gladstone, 2003 OK 30, at 7 18,

The United States Supreme Court put it this way:

In the area of economics and social welfare, a State does not violate the Equal
Protection Clause merely because the classifications made by its laws are
imperfect. If the classification bas some "reasonable basis," it does not offend the
Constitution simply because the classification is not made with mathematical
precision or because in practice it results in some inequality.

Dandridge v. Williams, 397 U.S. 471, 485 (1970), as quoted in Gladstone, 2003 OK 30, at 712,
67 P.3d at 448 n.33 (holding the Equal Protection rational basis standard applicable to
substantive due process issues).

Therefore, this Court, in evaluating the classifications established by the Tulsa City
Council "will presume that the [City Council] had a reasonable basis for enacting a particular
economic measure and will also hypothesize reasons for the laws enactment if the [City Council]
fails to expressly state the reasons behind the judgment." In re T.I.M. Co., 1984 OK 66, 729,

27 That any particular property owner is of the opinion his specific property is not benefitted does
not create a genuine issue of fact whether the City Council had a rational basis for establishing
the Improvement District or the shape of such district. See, Minnesota v. Clover Leaf Creamery,
-Co., 449 U.S.4 56, 464-465 (1981) (under rational basis review, court does not weigh conflicting
evidence as to whether legislation will meet its goals). In any event, no credible evidence was
adduced at trial that any specific property would not be benefited.

698 P.2d 915, 920. The Court "will not overturn such [government action] unless the varying
treatment of different groups or persons is so unrelated to the achievement of any combination of
legitimate purposes that we can only conclude that the [government's] actions were irrational."
Kimmel (sic) v. Florida Bd. of Regents, 528 U.S. 62, 84 (2000). The Court is obligated to seek out
reasons to affirm the legislative decision. Teigen v. Renfrow, 511 F.3d 1072, 1084 (10th Cir.
2007).

The City Council clearly had a rational basis for establishing the geographical boundaries
of the Improvement District. Testimony adduced by plaintiff's counsel established the
rationality of the Improvement District's boundaries. See, R. 1886, Tr., Vol. 2, pp. 453-54. See
&, R. 1815, p. 3, 719 of the Trial Court's Finding of Material Fact ("The Tulsa Stadium
Improvement Trust consists of all lands within the Tulsa Inner Disposal Loop. The Inner
Disposal Loop is defined by major interstate highways circling the major business center of the
City of Tulsa.").

The City Council's determination to establish the Inner Dispersal Loop as the
geographical boundary was overwhelmingly rational.

RESPONSE TO PROPOSITION VI: THE FOUR DISMISSED PLAINTIFFS FAILED TO GIVE THE REQUIRED NOTICE AND LACKED STANDING.

Proposition VI challenges the Trial Court's dismissal of four of the plaintiffs for lack of
standing. Brief in Chief, pp. 18-20. In a well-reasoned written order, the Trial Court correctly
interpreted the relevant statutes, determined that the dismissed plaintiffs had failed to give the
required notice, and thus, lacked standing. The decision to dismiss the four plaintiffs is moot
because the current plaintiff has standing. R. 918-20. 28 The case has proceeded in exactly the
same manner as if the four dismissed plaintiffs had remained in the case.

The four dismissed plaintiffs clearly lacked standing. Under 539-108(D), only those
persons "who, during the hearing, filed a written protest with the governing body protesting
the construction of the improvement may commence an action . . . to set aside the determination
of the governing body." (emphasis added).29 As conclusively established by the official Request
to Speak forms and the Minutes of the Tulsa Council Meeting of July 10, 2008 (collectively, the
"Record"), none of the dismissed plaintiffs filed the requisite written protest:

(1) Michael Samara: The Record establishes that plaintiff Samara did not file a
written protest.

(2) E&F Cox Family Trust: The Record establishes that plaintiff Cox Family
Trust did not file a written protest.30

28 An appellate court will not address issues disconnected from the granting of actual relief or
make determinations where no practical relief can be granted. Rogers v. Excise Bd., 1984 OK
94 (sic),715,701 P.2d 754,761. See also, In re Doornbos, 2006 OK 94,72, 151 P.3d 126 (Supreme
Court will not decide question where no practical relief can result). Plaintiff does not even
suggest any substantive harm or prejudice caused it by the Trial Court's action in dismissing four
of its fellow plaintiffs.

29 When the statutory language is clear, that ends the inquiry. Broadwav Clinic v. Liberty Mut.
Ins. Co., 2006 OK 29, 715, 139 P.3d 873, 877; World Pub. Co. v. Miller, 2001 OK 49, 77, 32
P.3d 829, 832. Words are to be given their ordinary meaning in construing legislation. Curtis v.
Bd of Education, 1995 OK 119,710,914 P.2d 656,659. The critical word "during" is neither a
word of technical meaning nor a word of art. "During" plainly means "throughout the course of;
throughout the continuance of; in the time of; after the commencement and before the expiration
of." Black's Law Dictionary (6" ed.), at 504; Havnes-Wilkinson v. Barnes-Jewish Hospital, 131
F. Supp.2d 1140, 1145 (E.D. Mo. 2001). Plaintiff concedes that none of the dismissed plaintiffs
filed anything in writing during the hearing. Brief in Chief, p. 19.

"An individual signing himself as Edward W. Cox submitted a Request to Speak form, but the
form did indicate any representative capacity in which Edward Cox was acting and the form
did express a protest of the Resolution.

(3) Koenig Properties, Inc: The Record establishes that plaintiff Koenig
Properties did not file a written protest.

The requirements of 339-108 are strictly enforced. R. 97. The dismissed plaintiffs failed
to satisfy the prerequisites of the statute.3 The claims were properly dismissed. 33

RESPONSE TO PROPOSITION V11: THE TRIAL COURT DID NOT DEPRIVE THE PLAINTIFF OF DUE PROCESS.

In Proposition VII, the plaintiff cursorily complains that the Trial Court deprived it of due
process. The plaintiff sets forth a potpouri of alleged violations with no citation to relevant
authority. The proposition should summarily be rejected as provided in this Court's Rule
1.1 1 Q(1). Furthermore, Proposition VII fails on the merits.

The plaintiff has not even come close to meeting its burden to establish a deprivation of
due process. The plaintiff had every opportunity to present its case and, for whatever reason,
chose not to. Justice Frankfurter observed, "there is no table of weights and measures for
ascertaining what constitutes due process." Burns v. Wilson, 346 U.S. 137, 149 (1953) (separate
opinion). Justice Holrnes explained that due process in any particular situation depends on
circumstances, varying with "the subject-matter and the necessities of the situation." Moyer v.
Peabody, 212 U.S. 78, 84 (1909). The burden is squarely on the plaintiff to clearly establish a

31 R. ~97, collectively, exhibit A; and the Minutes, attached as exhibit B, highlighted at pp.
16-17, listing the speakers on the proposed District issue. The Trial Court properly took judicial
notice of the completed Request to Speak forms and of the Minutes. 12 O.S. 2001, §2202(B)(2);
2 Whinery, Oklahoma Evidence (2d ed), 56.15; Wheeler v. Wavzata, 533 N.W.2d 405, 406
(Mim. 1995).

32 T.E. Morlan also lacked standing because her property, being homestead, is not subject to
assessment. See, R. 651-53, exhibit B. See, Hendrick v. Walters, 1993 OK 162, 75, 865 P.2d
1232,1234. (Editor's Note: Mrs. Morlan's property might not always be entitled to a homestead exemption. In addition, 11 O.S. Sec. 39-108 states: "At the hearing of the governing body on the proposed resolution creating a district, any interested person or owner of property to be assessed for the improvement may file a written protest or objection questioning ..." There is nothing in this section that mandates that the protest be filed during the meeting.)

33 Plaintiffs' constitutional complaint of vagueness has no merit. There is nothing vague about an
unambiguous command to file a written protest during a hearing. The words are easily
understood, as evidenced by the Request to Speak forms filed by a number of persons. The
dismissed plaintiffs' failure is not the fault of legislative drafting; the plaintiffs simply did not
follow the statute.

violation of due process. National R.R. Passenger Corp. v. Atchison. Topeka & S.F. Ry. Co.,
470 U.S. 450, 477 (1985). Under this standard, the plaintiffs complaints are easily addressed.

First, the Trial Court acted well within its discretion in setting the case for trial on
January 24, 201 1. See, Anderson v. Malone, 1932 OK 1,111, 6 P.2d 795, 796. The case had
been pending for over two and a half years at the time of trial.34 The Court informed the parties
on October 26, 2010, that its preferred trial date was January 24, 2011. R. 1890, p. 20. If the
plaintiff was not ready for trial, the plaintiff has only itself to blame.

Second, any discovery problems plaintiff suffered was of its own making, considering
how long the discovery request had been pending. If the plaintiff was concerned about not
receiving documents, it never sought Court assistance. R.1892, pp. 27-28. In this day and age, a
lawyer can hardly argue lack of due process because he cannot download and use free Adobe
software. The Trial Court devoted considerable attention to insuring that the plaintiff would
obtain the requested documents in ausable format. R. 1891, pp. 3-10,21-27,32-34; R. 1892, pp.
30-33, 35-57. The Trial Court did not abuse its discretion, much less deprive plaintiff of due
process. 35

Third, the plaintiff's complaint that the Trial Court excluded cumulative witnesses is
equally without merit. R. 1885, Tr. Vol. 1, pp. 108-109, 112, 131. The plaintiff was allowed to
present five property owners. Id., pp. 10, 49, 78, 94, and 106. The proffered additional
testimony was plainly cumulative and properly excluded. May-Li Barki v. Liberty Bank & Trust CO.,

34 The Trust was incurring substantial harm because of the prolonged proceedings. R. 1890, pp.
3-4 (lost opportunity to refinance the Trust's indebtedness in favorable market).

35 Discovery orders can only be reversed on appeal by a showing of abuse of discretion.
Robinson v. Southerland, 2005 OK CIV APP 80, 121, 123 P.3d 35, 40; Bank of Oklahoma v.
Briscoe, 1995 OK CIV APP 145,127,911 P.2d 311,318.

1999 OK 87, 715, 20 P.3d 135, 140.'~ Plaintiffs complaint about the Trial Court's refusal
to allow cross-examination is equally without merit. The Trial Court merely sustained an
objection to a leading question. Counsel then re-phrased the question and received his answer.
R. 1886, Tr. Vol. 2, pp. 295-96.

These arguments are frivolous under any standard and even more so under a claim of
deprivation of due process.

RESPONSE TO PROPOSITION VIII: THE EXCLUSION OF PROPERTY OWNED BY RELIGIOUS ORGANIZATIONS IS CONSTITUTIONALLY VALID.

In Proposition VIII, the plaintiff requests the Court strike down the entire Improvement
District because the City Council followed the State statute mandate to exclude religious
properties used for religious purposes from assessment. See, Brief in Chief, pp. 22-25. The
requested relief must be denied for each of four reasons.

First, the plaintiff is procedurally barred fiom raising this proposition. See, Arg. I, m;
R. 1887, Tr. Vol. 3, pp. 458-89 (sustaining objection because issue of religious exclusion outside
of scope of the trial issue).

Second, the United States Supreme Court has held that property tax exemptions do not
constitute an improper state sponsorship of religion.37 In Walz v. Tax Commission of Citv of
New York, 397 U.S. 664 (1970), the State of New York exempted religious organizations from
property taxes. The United States Supreme Court held:

36 The Trial Court's action was no surprise to the plaintiff. During the January 20, 2011,
consideration of the Intervenors' Motion to Preclude Property Owners From Testifying at Trial
[R. 16631, the Trial Court, while denying the Motion and permitting such testimony, cautioned
the plaintiff to select only a few property owners to testify. R. 1892, pp. 19-20.

37 While the assessments at issue are not property taxes for purposes of Oklahoma law, Idabel v.
School District No. 5, 1967 OK 202,703,434 P.2d 285 (syllabus by the Court), for purposes of
First Amendment analysis, the decision is equally applicable to special benefit assessments
as well as to property taxes.

It appears that at least up to 1885 this Court, reflecting more than a century of our
history and uninterrupted practice, accepted without discussion the proposition
that federal or state grants of tax exemption to churches were not a violation of
the Religion Clauses of the First Amendment. . .we now confirm that view.
Id., 397 U.S. at 680.

The United States Supreme Court further held that the property tax exemption did not
constitute an improper state sponsorship of religion, observing that such an exemption would, in
fact, guard against the latent damage of governmental hostility to religion and would protect
against the state inhibiting rel i,g.dioIn. 397 U.S. at 673.3'

Third the statutorily mandated exclusion of properties used for religious purposes fiom -9
assessment does not violate the First Amendment, even if not viewed as a property tax. A statute
does not offend the First Amendment Establishment Clause if the statute meets the criteria of the
well-established Lemon Test, as modified by the endorsement test. The well-established Lemon
Test validates a statute if the statute: (1) has a secular legislative purpose, (2) has a principal or
primary effect that neither advances nor inhibits religion, and (3) does not foster an excessive
government entanglement with religi0n.3~ The "endorsement test" holds that the government has
-not impermissibly endorsed religion if its conduct has neither the purpose nor the effect of

38 See also, Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 859-861
(1995) ("The historical evidence of government support for religious entities through property
tax exemptions is also overwhelming. . . . Property tax exemptions for religious bodies have been
in place for over 200 years without disruption to the interests represented by the Establishment
Clause."); Junior Chamber of Commerce of Rochester, Inc. v. U.S. Jaycees, 495 F.2d 883, 888
(10" Cir. 1974) ("The state may therefore determine that entities which foster moral or mental
improvement are not to be inhibited in their activities by ad valorem taxes or the hazard of loss
of their properties for non-payment. By so doing . . . the government is not thereby sponsoring
religion.").

39 Lemon v. Kurtzman, 403 U.S. 602,612-13 (1971); Green v. Haskell Countv Board Of Com'rs,
568 F.3d 784, 796 (10th Cir. 2009); Tulsa Area Hospital Council. Inc. v. Oral Roberts
University, 1981 OK 29,714,626 P.2d 316,321.

conveying a message that religion or a particular religious belief is favored or preferred. Lynch
v. Donnellv, 465 U.S. 668,690 (1984) (Justice O'Connor, concurring); Green, 568 F.3d at 796.

This well-established test, endorsed by the Oklahoma Supreme Court, unequivocally
validates the exemption at issue in the case at bar.

One: the legislature had a valid secular legislative purpose in amending 11 O.S. 2001,
39-104. The exemption is narrowly drawn to include only property used in the conduct of
religious activitie~.~' Furthermore, the exemption makes clear the legislature did not wish to
interfere with religious organizations' ability to function. "It is a permissible neutral purpose to
alleviate a significant governmental interference with the ability of a religious organization to
carry out its religious mission." East Bay Asian, 13 P.3d at 1135.

Two: the principal effect of the statutory exemption does not advance or inhibit religion.

"The religious clause of the First Amendment does not require absolute abstention by the state
fiom extending any aid to religious organizations." Junior Chamber of Commerce of Rochester,
Inc. v. U.S. Javcees, 495 F.2d 883, 888 (10t h Ci.r . 1974). That other non-profit organizations do
not also benefit from the exemption "is not relevant in assessing neutrality since landmark status
for properties they own does not threaten any fiee exercise rights of those organizations." East
Bav Asian, 13 P.3d at 1136. Here, the principal effect of the statute is to promote the economic
and social development of Downtown Tulsa, while at the same time, not impermissibly
interfering with religious organizations' ability to function. This secular effect does not advance
or inhibit religion.

40 Indeed, absent the exemption, the Improvement District Act could be attacked as violative of
the free exercise clause of the First Amendment. See. East Bay Asian Local Development Corp.
v. California, 13 P.3d 1122, 1133-34 (Cal. 2000).

Three: there is no excessive entanglement. "There is no delegation of substantial
governmental authority to the religious entities that own exempt properties, and thus no
entanglement between them." East Bav Asian, 13 P.3d at 1137. The Improvement District has
neither the purpose nor the effect of conveying a message that religion or a particular religious
belief is favored or preferred.

East Bay Asian is informative. East Bay Asian both: (i) affirmatively established the
exemption to the assessments provided by the Oklahoma Business Improvement Act does not
offend the anti-establishment clause of the Constitution, and (ii) distinguished Texas Monthlv,
Inc. v. Bullock, 489 U.S. 1 (1989), the single plurality opinion upon which the plaintiff relies,
and pointed out the limited applicability of the narrow Texas Monthly holding. 41

In East Bav Asian, the state statute at issue gave only religiously affiliated organizations
the authority to declare themselves exempt from historic preservation laws - making the case
indistinguishable from the Oklahoma Improvement District Act. The California Supreme Court
upheld the law. In upholding the California statute, the California Supreme Court first observed
that, unlike the sales tax exemption for religious newspapers at issue in Texas Monthlx the
dissemination of religious faith was not involved. In that vein, the East Bav Asian court properly
concluded that "in Texas Monthlv there was no clear majority holding that the [sales] tax
exemption, without more, violated the establishment clause." East Bav Asian, 13 P.3d at 1132
41There was no majority opinion in Texas Monthlv. None of the four separate opinions gathered
a majority. Where no opinion of the Supreme Court commands a majority of the justices, the
holding of the Court is the position taken by the justices who concurred in the judgment on the
narrowest grounds. Marks v. U.S., 430 U.S. 188, 193 (1977). The issue was whether Texas'
sales tax exemption for only religious publications was constitutional. The language upon which
the plaintiff relies comes from the three-justice plurality. Two other opinions with three other
justices rested on a more narrow position respecting dissemination of religious publications
without sales tax and the exemption's interplay with the freedom of the press clause of the First
Amendment. Three justices dissented.

(brackets added). As the California Court noted, the United States Supreme Court had
previously declared that "where . . . a government acts with the proper purpose of lifting a
regulation that burdens the exercise of religion, we see no reason to require that the exemption
come packaged with benefits to secular entities." East Bav Asian, 13 P.3d at 1131, e,
Corporation of Presiding Bishops v. Amos, 483 U.S. 327, 338 (1987) (upholding exemption
from application of Title VII to religious organizations). Thus, the California Court found that
each and every element of the Lemon Test had been satisfactorily met. The facts of East Bay
are the facts here present even if one does not recognize the historical property tax
exemption validated by the United States Supreme Court in Walz v. Tax Commission of Citv of
New York, 397 U.S. 664 (1970), discussed above.

The exemption provided by the Improvement District Act and, consequently, the City
Ordinance creating the Tulsa Stadium Improvement District, are Constitutional. 42

Fourth the Court cannot grant the plaintiffs requested relief. Even if one assumed for -9
purposes of argument only, that the exemption is unconstitutional, the Tulsa Stadium
Improvement District remains valid. This Court cannot, as plaintiff asks it to do, declare the
Improvement District "void." Both state law43 and the Tulsa ordinances44 expressly mandate that
the appropriate relief is to excise the offending provision and enforce the remainder of the
legislation.

42 Municipal legislation is presumed valid. McFall v. Citv of Shawnee, 1976 OK 185,114, 559
P.2d 433, 437 ("... the burden is on the person alleging its invalidity to establish that fact");
Howard v. Citv of Tulsa, 1986 OK CR 5,15, 712 P.2d 797, 798; Norman Homeowners Ass'n v.
Citv of Norman, 2004 OK CIV APP 14,16,85 P.3d 853,856-857.

43 Whether a statute or ordinance is severable is a matter of state law. Leavitt v. Jane L, 518 U.S.
137, 139 (1996).

Title 75 O.S. 2001, Section lla requires the Court to sever the offending provision and enforce
the remainder except where the Court finds one of three narrow exceptions not here present45 to
exist; legislation is presumptively severable. 46

Furthermore, even if this Court were to believe the entire statute infirm, the Court must
limit its relief to the plaintiff. United States v. Nat'l Treasury Employees Union, 513 U.S. 454,
477-78 (1995). In National Treasury, the United States Supreme Court found a statute facially
violative of the First Amendment, but did not strike or amend any portion of the statue. Rather,
the Court limited its remedy to the particular litigants before the Court, citing a desire to avoid
judicial legislation and stating, "we neither want nor need to provide relief to nonparties when a
narrower remedy will fully protect the litigants." 513 U.S. at 477-79.

Therefore, the Court cannot grant the requested relief even if the exemption for property
used for religious purposes somehow offended the First Amendment - which it clearly does
not. 47

45 No such exceptions apply here. The manifest intent of the legislature was to permit the
creation of improvement districts. The religious exemption is not so essential and inseparably
connected to the remainder of the Improvement District Act that the legislature would not have
enacted the overall statute without it. In fact, the Improvement District Act did not have the
religious exemption in it when it was enacted. See Brief in Chief, pp. 22-23. Finally, the
remaining provisions of the Improvement Act are capable of being executed in accordance with
the legislative intent.

46 See Liddell v. Heavner, 2008 OK 6, 129, 180 P.3d 1191, 1202-02; Ethics Commission v.
Cullison, 1993 OK 37, 125, 850 P.2d 1069, 1077 (Sec. ll "provides a presumption of
severability"). The City of Tulsa has a similar provision. See, fn. 20, p. 12.

47 the Plaintiff's argument that the owners of the exempt properties might then challenge the
Improvement District has absolutely no merit. That eventuality may or may not occur - this
disgruntled minority does not hold the proxies of the owners of the exempt properties. The
plaintiffs assertion that adding the exempt properties to the roll would require a reapportionment
of assessments is an unsupported allegation and flat wrong - evidencing plaintiffs continued
total lack of understanding of the District. Adding square footage does change the
assessments; rather added square footage means the Bond is repaid more quickly in reverse order
of maturities so everyone benefits, but no property owner's assessment is changed.

RESPONSE TO PROPOSITION IX: THE TRIAL COURT HAD AMPLE AUTHORITY TO AWARD FEES AND COSTS.

In its final proposition, the plaintiff contends the Trial Court exceeded its authority by
awarding incurred fees and costs attributable to the plaintiff's refusal to comply with the Court's
October 28 Order. Brief-in-Chief, pp. 26-27. The plaintiff does not challenge the October 28
Order, nor does the plaintiff deny that it failed to comply with the Order. The intervenors sought
$1,377.87 for costs of exhibits, $4,275.00 for cost of transcripts, and attorney fees of $1,500.00.
R. 1761. The Trial Court awarded (i) exhibit costs of $888.16, transcript costs of $554.16, and
(iii) attorney fees of $300. Supplemental Index, R. 1926.

The intervenors were entitled to recover these costs and fees pursuant to Fleet v
Sanguine, Ltd., 1993 OK 76, 7720, 21, 854 P.2d 892, 902 (in an equitable action, litigation
expenses - not limited to specifically enumerated statutory allowances - are recoverable). The
action was an equitable action. The plaintiff sought only a declaratory judgment and injunctive
relief? See, R. 43, p. 12. Furthermore, the intervenors were entitled to their attorney fees in
successfully prosecuting their Motion for Relief for Plaintiff's Noncompliance with the Court's
Order of December 8,2010. R. 1761.

Plaintiffs Proposition IX fails. The Trial Court acted well within its discretion and the
minimal award of costs and fees should be affirmed.

48 while a declaratory judgment can be either equitable or legal in nature depending upon the
essential nature of the case, Carpenter v. Carpenter, 1982 OK 38, 717, 645 P.2d 476, 481, this
action was clearly equitable. &, Hoffan v. Citv of Stillwater, 1969 OK 190, 7718, 20, 461
P.2d 944, 947-48 (demurrer to the evidence in a suit seeking invalidation of rezoning ordinance,
equitable rules apply).

Outcome: When the Tulsa City Council created the Tulsa Stadium Improvement District,
continuing the thirty year history of services and building ONEOK Field, the District was
reasonably expected to revitalize Downtown Tulsa.
The plaintiff's own trial evidence overwhelmingly established that the Tulsa City Council
had a rational basis upon which to determine that property within the Improvement District was
reasonably expected to increase in value as a result of the creation of the Improvement District.

That rational basis is the legal test. It is not the role of this Court to substitute its judgment for
the legislative determination.

The evidence adduced by the plaintiff in plaintiffs case-in-chief established that the
District was exceeding all of the City Council's reasonable expectations. There is plainly no
reason to remand for further trial proceedings. The Trial Court correctly granted judgment at the
conclusion of the plaintiffs evidence and should be affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: