The Oklahoma Bar Journal February 2023

If a situation arises where you need immediate extraordinary relief, it is best to consider filing an original action and including a motion for an emergency stay. Following Oklahoma Supreme Court Rule 1.15(c), the chief justice or the entire court can issue a stay of proceedings to the district court while the Supreme Court consid ers the original action. File a sepa rate motion for an emergency stay, so it is apparent to the court when the original action is filed of the emergency nature of your request. In the motion, set out the reason as to why emergency relief was not sought sooner if asking the court to act in fewer than seven days. An emergency stay motion must also state that a stay or similar relief was first sought with the dis trict court. As for the legal analysis in the motion, a petitioner should focus on four factors the chief justice or the court weighs when determining whether to grant a stay: the likelihood of success in the original action, the threat of irreparable harm to the moving party if relief is not granted, the potential harm to the opposing party and any risk of harm to the public interest. 39 The court’s factors for emergency stays mirror the court’s precedent on injunc tions. And it holds true that where a party seeks a mandatory stay, essentially mandating some action by the district court, “the rules are more strictly construed.” 40 A few practical notes to consider when filing a motion for an emer gency stay: A referee will typically set an emergency hearing for all interested parties to present their cases for and against the stay. 41 Depending on the time allotted by the parties between filing the original action and the potential injury sought to be stayed, that hearing may be set in person or telephonically. Additionally, the

court will always try to allow the other interested parties time to file a response. In the rare instance where a written response cannot be timely completed and filed, the parties’ oral arguments at the hearing will serve. To best facilitate a quick process, serve opposing counsel with all filed materials immediately after filing the original action with the court, and be prepared to contact oppos ing counsel to agree on a time to appear before one of the court’s referees for a hearing. The Supreme Court’s original jurisdiction is still a stand-by ser vice only invoked by the court in rare instances. More often than not, the court will deny your applica tion to assume original jurisdiction. The best advice is to comply with the court’s rules, avoid the clear pitfalls where the court has said a writ will not issue, and present the rare or aberrant issue that requires extraordinary relief.

OK 140, ¶0, 503 P.2d 218 (syllabus by the court)) (cleaned up). 6. Umholtz v. City of Tulsa , 1977 OK 98, ¶6, 565 P.2d 15, 18. 7. Chandler (U.S.A.), Inc. v. Tyree , 2004 OK 16, ¶24, 87 P.3d 598, 604. 8. Umholtz , 1977 OK 98, ¶6, 565 P.2d at 18. 9. Chandler (U.S.A.) , 2004 OK 16, ¶24, 87 P.3d at 604; Umholtz , 1977 OK 98, ¶6, 565 P.2d at 18. 10. Chandler (U.S.A.) , 2004 OK 16, ¶24, 87 P.3d at 604. 11. Umholtz , 1977 OK 98, ¶6, 565 P.2d at 18. 12. Shadid v. City of Okla. City , 2019 OK 65, ¶5, 451 P.3d 161, 164. 13. Scott v. Peterson , 2005 OK 84, ¶12, 126 P.3d 1232, 1236. 14. Heffron v. Dist. Ct. of Okla. Cty. , 2003 OK 75, ¶3, 77 P.3d 1069, 1073. 15. McKesson Corp. v. Campbell , 2022 OK 6, ¶6, 502 P.3d 1110, 1111. 16. Id. ¶3, 502 P.3d at 1112. “An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling.” Christian v. Gray , 2003 OK 10, ¶43, 65 P.3d 591, 608. 17. McKesson Corp. , 2022 OK 6, ¶4, 502 P.3d at 1112. 18. Chandler (U.S.A.) , 2004 OK 16, ¶24, 87 P.3d at 604; Umholtz , 1977 OK 98, ¶6, 565 P.2d at 18. 19. Moses v. Hoebel , 1982 OK 26, ¶4, 646 P.2d 601, 603, “He cannot have resort to extraordinary means of relief when ordinary and usual remedies were available.” Id. 20. See Silver Griddle Co. v. City of Okla. City , 1977 OK 153, ¶16, 570 P.2d 619, 621-22. “A Writ of Mandamus may not be issued in any case where there is a plain and adequate remedy in the ordinary course of the law. Mandamus is an extraordinary remedy to be resorted to where the usual mode of procedure cannot furnish the desired relief.” Id. 21. Powers v. Dist. Ct. of Tulsa Cty. , 2009 OK 91, ¶10, 227 P.3d 1060, 1069-70; see Transit Cas. Co. v. Bell , 1971 OK 136, ¶13, 491 P.2d 771, 773. 22. Sneed v. State ex rel. Dep’t of Transp. , 1983 OK 69, ¶11, 683 P.2d 525, 529. 23. Oklahoma Supreme Court Rule 1.190 to 1.194, 12 O.S.2021, ch. 15, app. 1, pt. VI. 24. Along with an original copy of the application and brief, the petitioner must file another 14 copies. Okla. Supreme Court Rule 1.191(c). 25. Two copies of the appendix (an original and a copy) also must be included in the filing. 26. Oklahoma Supreme Court Rule 1.15(c). See the final section of the article for a further discussion of motions for emergency stay. 27. Okla. Supreme Court Rule 1.191(b). 28. Okla. Supreme Court Rule 1.191(c). 29. Okla. Supreme Court Rule 1.191(d). 30. Id. 31. Okla. Supreme Court Rule 1.191(d)(2). 32. Okla. Supreme Court Rule 1.191(d)(3). 33. Okla. Supreme Court Rule 1.191(g). 34. Id. 35. Okla. Supreme Court Rule 1.191( j); see also 12 O.S., §995. 36. Okla. Supreme Court Rule 1.191( j). 37. See Frazier v. Bruce , 2021 OK 14, ¶2, 484 P.3d 285, 286. “A filing seeking to invoke this Court’s original jurisdiction to disqualify a judge where the sole basis for disqualification has been routinely rejected by this Court amounts to a frivolous filing.” Id. 38. Okla. Supreme Court Rule 1.191(i). 39. Okla. Supreme Court Rule 1.15(c)(2). 40. See Owens v. Zumwalt , 2022 OK 14, ¶8, 503 P.3d 1211, 1214. 41. Okla. Supreme Court Rule 1.15(c)(1).

ABOUT THE AUTHOR

Kyle Rogers is a referee for the Oklahoma Supreme Court. He previously served as a staff attorney for Oklahoma Supreme

Court Justice Steven Taylor and practiced law with Rhodes Hieronymus Jones Tucker & Gable. Mr. Rogers is a graduate of the OCU School of Law.

ENDNOTES

1. Okla. Const. art. VII, §4. 2. Id.

3. While writs of certiorari are issued under the court’s appellate jurisdiction and Article VII, §5, the court has set aside the 20-day filing requirement under its Article VII, §4 superintending authority. See Ingram v. Oneok, Inc. , 1989 OK 82, ¶10, 775 P.2d 810, 812. 4. See 73 O.S.2021, ch. 6, §350.1; In re Application of the Okla. Capitol Improvement Auth. , 2022 OK 31, 507 P.3d 1256; 63 O.S.2021, ch. 62, §3225(B)(3); In re Petition of Univ. Hosps. Auth. , 2017 OK 108, 410 P.3d 1014. 5. Keating v. Johnson , 1996 OK 61, ¶9, 918 P.2d 51, 56 (quoting Kitchens v. McGowen , 1972

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THE OKLAHOMA BAR JOURNAL