HY —gperuat — MARRIMERRYY suri Eau STATE OF OKLAHOMA OCT 18 2019 IN THE SUPREME COURT OF THE STATE OF eee HN D. HADDEN EDWARD A. SHADID, CLERK Petitioner, vs. NO. O-118271 CITY OF OKLAHOMA CITY, a Municipal Corporation; Respondent. PETITION FOR REHEARING Jay W. Bamett (OBA # 33115) Bamett Legal, PLLC 1008 S. Bryant, Suite 230 Edmond, Oklahoma 73034 Telephone: (405) 456-9343 ATTORNEY FOR PETITIONER October 18. 2019Table of Authorities PETITION FOR REHEARING STATUTES AND RULES: Article V, § 57 of the Oklahoma Constitution. Okla. Sup. Ct. R. 1.13... Mayor David Holt, What's at Stake in OKC's Vote on MAPS 4, September 18, 2019 at 22:58-23:52, https://www.youtube.com/watch?v=jsLkG8rfxSo&feature=youtu.be. Mayor David Holt, State of the City: MAPS 4 Ideas, Jan. 18, 2019, bups://www.youtube.com/watch?v-4vSnRsMp3tU... CASES: Burns v. Cline, 2016 OK 121, 4 27, 387 P.3d 348, 356. Fent v. Contingency Review Bd., 2007 OK 27, 411, 163 P.3d 512, 521 Naifeh v. State ex rel. Okla, Tax. Comm'n, 2017 OK 63, 418, 400 P.34 759, 765 Shadid v. City of Oklahoma City, 2019 OK 65 at §7. State ex rel. Tharel v. Bd. of Cty. Comm'rs, 1940 OK 468, § 10, 107 P.2d $42, 548..COMES NOW Edward A. Shadid (“Peti ner”), by and through counsel of record, and, pursuant to Okla. Sup. R. 1.13 on the Court’s Order issued on October 14, 2019, hereby submits this Petition for Rehearing and alleges and states as follows: Rather than the narrow analysis employed by the Court in its Order of October 14, Petitioner asks that this Court to follow its own precedent in Naifeh v, State ex rel. Okla. Tax. Comm'n, 2017 OK 63, §f 4-5, 400 P.3d 759, 761 and consider the totality of the materials presented, The City has crafted a measure which, while popular in many quarters, subverts the single subject rule, ‘This Court must take into account the damning evidence available: public, extensively documented, unequivocal, proclamations of the City’s intent. To do otherwise is to permit an unconstitutional charade. This Court has given heed to such evidence in previous cases, like Naifeh, preserving the integrity of constitutional provisions constraining the manner in which Oklahomans may be taxed. In cases like Naieh, the Court took note of exhibits provided by the Petitioner, citations to support in the public domain, non-binding acts of the legislature, and other evidence extrinsic to the language of the legislation. Id at f¥ 4-5, 8. By choosing not to do so here, the Court has imposed an impossible burden upon this Petitioner and has validated the unconstitutional mechanism crafted by the City. Petitioner urges the Court to apply its Naifeh analysis in defense of the single subject rule, While Petitioner acknowledges the question presented in Naifeh is not identical, the principles and interests are, In Naifeh the Court noted that it acted to protect a constitutional framework “mandat[ing] a fiscally responsible government.” Jd at { 16. Article V, § 57 mandates that revenue bills which are not general revenue bills comply with the single subject rule. Expounding on that principle, this Court has said, “The heart of the single subject rule is to insure constitutional protection that each piece of legislation enacted is worthy of the approval of the voter and to 1prevent the enactment of unpopular provisions by logrolling or attaching it to a favorable bill.” Burns y. Cline, 2016 OK 99, § 13, 382 P.3d 1048, 1052. It has furthermore said, “[T]he power to tax is the strongest and most pervading of all the powers of government...” State ex rel. Tharel v. Bd. of Cty. Comm'rs, 1940 OK 468, § 10, 107 P.2d 542, 548. Most importantly, here, the Tharel Court said, "Now, what the Legislature cannot do directly, it cannot do indirectly.” /d at § 14 (emphasis added). Read together, Oklahoma's Constitutional framework is meant to mandate fiscally responsible government and restrain the “most pervading” power to tax by ensuring that unworthy taxes and expenditures may not be enacted by attachment to those worthy. This Court ‘must not allow these purposes to be thwarted by indirect means. Like the constitutional provision in Naifeh, the single subject rule fits seamlessly with the constitutional framework in place to restrain the power to tax and spend which the City seeks to circumvent by indirect means. It is the intent of the City to acquire $1 billion taxpayer dollars by logrolling, The City's leaders have expressed that intent openly, unashamedly, and on the record.! They have, in fact, promised the voters of Oklahoma City that they will spend the revenue generated by Ordinance 26,255 (“the Ordinance”), not on general governmental functions, but on sixteen special projects chosen to pose to the voters an all or nothing choice. Petitioner respectfully asks this Court to do exactly as the City leaders have asked ~ believe their promises to the voters. In denying Petitioner relief, the Court focused on Petitioner’s admittedly high evidentiary burden required to overcome the presumption of constitutionality afforded the Ordinance. Shadid ‘+. [Sleparately, the City has adopted a Resolution of Intent of how that money will be spent and for twenty-six ‘years the City has developed a pretty good reputation of keeping its word, People may not have always liked what ‘their word was initially, but they’ve always Kept it... [the projects] were always built as promised... “To the ‘question of wanting to vote on [the projects} individually, that’s fine; that’s just not MAPS.” Mayor David Holt, Whut's at Stake in OKC's Vote on MAPS 4, September 18, 2019 at 22:58-23:52, huips:/www.youtube.com/watch?v=jsL kGBrfxSo8 feature=youtu be 2¥. City of Olahoma City, 2019 OK 65 at {7 (not released for publication) citing Fent v. Oklahoma Capitol Imp. Authority, 1999 OK 64, 4 3, 984 P.2d 200, The Court concluded that Petitioner had not proved the City’s revenue raising mechanism unconstitutional beyond a reasonable doubt. Hd. However, the Court appears to have considered only the language of the ordinance and the ballot — which the Petitioner never suggested were themselves violative of the single subject rule of Article V. 57 of the Oklahoma Constitution. Neither did Petitioner rely exclusively on the City’s. Resolution of Intent, though Petitioner suggests the City’s Resolution should be given significant weight, Id. In Naifeh, the genesis of the offending proposal was found in the Governor’s State of the State Address where she called upon the legislature to balance the budget using reoccurring, revenue sources. /d at § 5. Here, the genesis of MAPS 4 can be found in the Mayor’s State of the City Address where he never spoke of a billion dollars to fund a “wish list but of dreaming big and funding projects — many of which he had already identified.* The Mayor spent fifteen minutes using his bully pulpit to sell MAPS 4 to the voters and never one time even hinted that the revenue generated by the tax might not be spent on the projects.? Indeed, that is the bait to voters: they will vote for this proposed tax because they wish to sec, at least some, of those specific project realized even if it includes projects they do not desire. In Naifeh the Court considered extrinsic evidence “strongly indicating” the motive of the legislature in raising the revenue in question but agreed with the Respondent that the measure's purpose had to be determined “by its actual operation and effect...” Jd at { 22. The Court added that “the allocation of [the] revenues makes up a significant part of the measure's actual effect.” ? Mayor David Holt, State of the City: MAPS 4 ideas, Jan. 18, 2019, hutps:/Awww.youtube.com/watch?v=4vSaRsMp3tU, 3d,Id. at 4 33. Here, the Court should not indulge the fiction that the operation and effect of the ordinance is to place revenue into the general fund. The voters of the City of Oklaboma City would not approve taxing themselves a billion dollars without the promise and certainty of how that revenue would be allocated, and, indeed, the City is not asl them to. The City has told the voters these revenues will merely “touch” the general fund before being allocated to special projects and the City has pinned its hopes on being believed. This Court should take the City at its word. The City has created a body of multiple projects and robed it in the garb of a “general tax”. This Court must see through the fiction to the fact. ‘The City’s argument should fail for the same reason the Respondent in Naifeh failed — the cffect of this tax is not to bolster the general fund but to fund special projects, and the tax should. be evaluated in that light. Even if the City can change the oversight; even if the City can alter the nature and scope of the projects the revenues will fund; no one will vote for MAPS 4 who does not fully expect the revenues to be spent on special projects rather than general governance, The effect of the tax, and thus the purpose, will exclusively be to fund special projects that are found neither in the ordinance nor on the ballot. In Naifeh, the Court found dispositive the primary reason for the existence of the legislation and noted that to rule otherwise would be to deny “the stark reality” of the context in which the egislation was passed. Id at 437. Here, to narrowly limit the Court's analysis to only the language of the Ordinance is to deny the stark reality that the City is openly and intentionally logrolling in order to induce citizens to tax themselves in disregard of Article V, § 57. This Court has asked other questions of the legislation in Naifeh that are dispositive here. What is the mission given the revenue? /d. at 43. What is the payor receiving? /d. at 45. Timeand again Naifeh points in the direction of the Court being allowed to know what everyone else knows. The Ordinance is indivisible from the MAPS 4 Projects. In considering the totality of the evidence submitted by Petitioner and cited in the public domain evidencing the clear intent of the City to secure the votes to pass the Ordinance on the promise of the projects, and in light of fact the voters, in fact, believe the MAPS 4 projects are “on the ballot,” what reasonable doubt remains that the purpose of the ordinance is to tax the citizens and apply the revenue to a “package” of special projects that fails every requirement of the single subject rule? (Pet. Ex. J, K, L, M). This Court should broaden its constitutional analysis. Wherefore, premises considered, Petitioner prays the Court reconsider its ruling on and grant Petitioner’s request for relief, or, in the alternative, set this matter for oral argument before the Court, Respgeffully submitted, 1008 S. Bryant, Suite 230 Edmond, Oklahoma 73034 ‘Telephone: (405) 456-9343 jay@bamettlegal.net Attorney for PetitionerCERTIFICATE OF MAILING 1 certify that a true and correct copy of the Petition for Rehearing was mailed this 18th day of October, 2019, by depositing it in the U.S. Mail, postage prepaid to the following Kenneth Jordan, OBA #4831 Municipal Counselor 200 North Walker, 4 Floor Oklahoma City, OK 73102 Kenneth Jordan@oke.gov Amanda Carpenter, OBA #20965 Deputy Municipal Counselor 200 North Walker, 4" Floor Oklahoma City, OK 73102 Amanda Carpenten@oke gov Laura McDevitt, OBA # 30641 Assistant Municipal Counselor 200 North Walker, 4 Floor Oklahoma City, OK 73102 Laura McDevitt @oke.gov Jay W. Harb