Attorney Jerry Fent says his days of fighting eminent domain cases are long over. At 82-years-old, he can reflect on a long career defending citizens when the government wants to take their property. You could say he’s been there, done that.
Still, he said, Eastern Oklahoma County residents opposed to the Driving Forward program to put a new turnpike through their land kept calling him. A constitutional watchdog, Fent finally looked into the $600 million dollar bond program for six toll road projects. And he found something. Not eminent domain, but logrolling.
Fent said in court Tuesday that “logrolling” is a fancy word for the legislature putting more than one project together for funding. The State Constitution prohibits it. He likens logrolling to an example of rural lawmakers going along with a city plan, as long as there is something in it for them. That’s what happened, Fent maintains, when the legislature agreed to build a mixture of rural turnpikes and city ones. Rural turnpikes can’t pull their own weight or cost – there’s just not enough traffic – but the city ones can pay for all of it with higher traffic volume. That’s a paraphrase of the argument. And nevermind that the law was passed almost 30 years ago. It was wrong then, Fent said, just no one fought it. Incidentally, Fent is not bringing into his legal arguments what has already been built – just the new projects.
Fent was eloquent and thorough in his citation of Oklahoma constitution Article 5, Section 57; the 1987 Oklahoma law, HB 1259, signed by Governor Henry Bellmon, authorizing the new toll roads; and cases in which Fent himself detected logrolling and sued for it. One of those cases he won nabbed legislators for trying to put three separate projects together in one bond indenture: the Native American cultural museum, Tulsa river parks and some rural water conservation projects. The State High Court agreed with his logrolling case and ordered the combination to be nixed.
When it came time for the Oklahoma Turnpike Authority’s response, as anticipated, attorney Gary Bush acknowledged Fent’s logrolling victory and declared that this turnpike case is not in the least bit like that case. He said OTA’s seeking bonds is for one project, expanding the safe and efficient statewide network of tollroads, into six separate projects (including the EOC).
Bush said the $480 million bond indenture meets every test and presumption under the constitution and the law – the projects are germane, he said. Besides, for 29 years, the State Supreme Court has allowed OTA to issue bonds for turnpike projects that are part of the same network, he said.
“How could we expect OTA to act otherwise … they are not straining nets. Their 2016 bond issue is to authorize, construct, maintain and finance the state’s turnpikes,” said Bush of The Public Finance Law Group of Oklahoma City.
Bush also asked the court referee, Daniel Karim, to consolidate Fent’s case along with OTA’s request to grant the bond funding for Driving Forward in the amount of $480 million “to preserve judicial economy and promote efficiency.”
Referee Karim asked whether a representative from Victims of Eminent Domain was present. Attorney Eric Groves was seated with Mr. Fent and Groves rose to ask for an opportunity to submit an Amicus Brief in the case. Groves represents EOC neighbors in their own legal challenges to stop the toll road from being built through their land in a path from I-40 to the Turner Turnpike in Eastern Oklahoma County.
Ref. Karim granted Groves’ request and gave him until Friday to submit a brief. Groves said his filing will establish that even though the projects to be funded by a single bond issue are related, in that they are all turnpikes, they nonetheless are to be built in very diverse locations.” Groves also said that the state high court “should hear from his clients as they are those in greatest jeopardy as a result of unconstitutional legislation which, if allowed to stand, will obliterate the quality of life which these folks worked so hard to establish.”
All documents in the case can be viewed by accessing the Oklahoma Supreme Court Network.
Meantime, another hearing is scheduled for Tuesday, October 11 with Referee Karim to consider’s OTA’s consolidation request.
Some work on the Driving Forward Program has halted during this legal challenge. The State Bond Advisory Board would not approve the indenture during the legal challenge, and some ground work, and land acquisition is stalled.
Here are a couple of observations from the hearing. No other media attended the hearing besides The Luther Register. Aside from attorneys, there appeared to be no other OTA officials there, or even their public relations representatives. On the other side of the aisle, up to 50 members of Victims of Eminent Domain attended the hearing. They got one glare from Referee Karim when they laughed. The group guffaw came when Ref. Karim asked Mr. Fent whether he had received some paperwork from Mr. Bush on the consolidation motion. Fent said no. When asked when it was filed, Bush replied it was the previous Friday, at 4:30 pm before Tuesday morning’s hearing. The group’s laugh over a perceived delay tactic was silenced quickly in the hallowed courtroom.
Following the hearing, the EOC group compared notes in the marbled halls outside the hearing room at the Oklahoma Judicial Center. Harrah Town Council Member Joe Kreke commented that the proceeding reminded him of some things he’s observed since being newly involved in town governance.
“Just because something has always been done a certain way doesn’t mean it’s right,” said Kreke.
Today could mark the beginning of the legal phase for the “Citizens Opposed”. A core group of citizens that have engaged the OTA since the roll out of the “Driving Forward ” plan show no sign of rolling over. A bottoms up approach to halting abusive eminent domain practices has proven effective for our neighbors south of the Red River and it will work here. I encourage anyone that believes in the constitutional right to own land to help fight this powerful entity by doing what may have done already and contribute to the cause. In the words of Frederick Douglas “Power Concedes Nothing”.