Earlier this morning, Oklahoma County Judge Richard C. Ogden presided over the high-profile lawsuit between Venom 64 et al., vs Oklahoma City. Attorney Frank Urbanic represents the restaurants and bars. The actual lawsuit stems from the Emergency Proclamation that Mayor Holt issued on November 19th, 2020. This Proclamation put restrictions on the “sales and service of food or alcohol after 11:00 pm”. The plaintiffs alleged that the Mayor of Oklahoma City violated the 11 O.S §14-101 and sought an injunction and declaratory relief.
Background Of The Case
The hearing today was set to hear arguments from both parties regarding the mootness of the lawsuit, which the City filed on July 19th, 2021. In their suggestion, there are two arguments the City presents as the reason the case should be dismissed
- Due to the revision of the Proclamation and revocation of the State of Emergency, this matter is moot
- There are no applicable exceptions to survive mootness.
For the first point, the City suggests that due to the Emergency Proclamation being rescinded it should be moot, stating:
“The restriction Plaintiffs alleged to be illegal was revoked on November 30, 2020, upon the Mayor’s issuance of a revised Proclamation.”
Due to this revision, the City’s Attorneys cite another high-profile case as precedent for why the lawsuit should be dismissed as moot. That case is Southwind v. Stitt, a lawsuit similar to Venom 64 et el v. Oklahoma City. The Southwind case was dismissed as moot as the 10th District Court found “the merits … now would have no real-world effect because Oklahoma no longer seeks to do what the injunction prohibits”.
The City says that there are only two exceptions that a moot case should not be dismissed. First. “Where the challenged scenario is capable of repetition, yet evades the review of the Court.” The second is a case that involves a broad and public interest. About the latter, the City asserts:
“an expired rule unlikely to resurface regarding late-night drinking at bars is not a matter of “broad public interest.””
After the City’s attorneys submitted their Suggestion of Mootness, Urbanic was given time to submit his response to their suggestion to the Court. In this suggestion, Urbanic provides 23 pages of reasoning on why the case is still relevant to the public and why it should not be dismissed.
He states that Mayor Holt’s legal authority to issue a Proclamation was issued pursuant to “§§ 15-36-15-40 of the Oklahoma City Municipal Code (the OKC Riot Control and Prevention Act).” Which is authorized under Oklahoma Statute 21 O.S § 1321.1. Urbanic described how Holt declared that a “disaster” struck Oklahoma City and that is the reason of using the riot Control and Prevention Act to end the disaster. Urbanic continues stating that:
“[the] declaration were legally insufficient to allow a disaster declaration, and thus, the “disaster” declaration was unlawful.”
Mr. Urbanic further asserts, “How could order be restored in the affected area when there is no state of disorder?”. Due to this, Urbanic begs the question “are there any limits to a mayor’s ability to declare something a disaster?” and that there “should be parameter as to what does and does not constitute a disaster in the context of the OKC Riot Control and Prevention Act.”. One of the primary reasons Urbanic cites as the reason the case should not be dismissed as moot is that “the OKC Riot Control and Prevention Act can be invoked at any time.”. The response to Suggestion of Mootness continues outlining the following reasons why the case should not be dismissed:
- The case has not met the high burden required for a Motion to Dismiss
- Both exceptions to the Mootness Doctrine apply
Urbanic showcases how the Mootness Doctrine applies especially in regard to it pertaining to “broad public interest”. He states:
“Unsurprisingly, [the] Defendant wants this case to only be about the narrow issue of “late-night drinking at bars.” The dozens of pages in [the] Plaintiffs’ Petitions and Motions for Declaratory and Injunctive Relief question the legality of the actions taken by Mayor Holt show that this case is about far more than “late-night drinking at bars.”
This lawsuit has become a high-profile case because many Oklahomans believe that the mayor overstepped his legal authority and damaged the local economy.
A full text of both the plaintiff and the defendant can be located here:
Judge Ogden entered a not but empty courtroom where he took his seat. He addressed both counsels where he advised them that he had found a recent US Supreme Court decision that he believes may weigh on the mootness of this case. Judge Ogden presented the counsels with copies of 141 S. Ct. 792 Supreme Court of the United States, Chike Uzuegbunam, et al., Petitioners v. Stanley C. Preczewski, et al. This case was decided on March 8th, 2021.
In this lawsuit, the Plaintiffs sued a college in Georgia whose policies violated their 1st Amendment. The college, instead of defending the policies, decided to discontinue them. The parties agreed that the request for injunctive relief was moot. However, the Plaintiffs argued that they still had a platform for nominal damages (money given when the compensatory relief is not applicable due to no loss or harm). The 11th District disagreed and dismissed the case as moot. The Plaintiffs appealed, and the case was heard by the US Supreme Court, who decided in a shocking 8-1 decision that the case should not have been dismissed. Chief Justice Thomas provided the opinion on which he states:
“A request for nominal damages satisfies the redressability element necessary for Article III standing where a plaintiff’s claim is based on a completed violation of a legal right.”
A complete text of the Supreme Court’s Opinion can be found here:
Judge Ogden said that he believes that this Supreme Court case is “right on point” in relation to the case before him, which could signal a favorable outcome for Urbanic.
Seeing that he just presented the new case law to both counsel’s, he stated that he would allow them both to review the case and bring forward any arguments they may have on why this Supreme Court Opinion. Should not be applied to this law. The Honorable Judge Ogden admits that Supreme Court’s decision does not dictate decisions in state cases but that they are very “persuasive,” stating, “this case persuades me that this case should not be dismissed for mootness”
Both Urbanic and the City’s counsel agree to continue the case for 1 week to allow new arguments to be formed in light of the new information. Accordingly, the case is scheduled to be heard by Judge Ogden on Monday, August 23rd, at 1:30 PM.
Ignite Liberty will continue to monitor how this case unfolds and bring you the most up-to-date information available.
– Jonathan Hewitt