The Oklahoma Supreme Court has both appellate jurisdiction and original jurisdiction flowing from Article VII, Section 4 of the Oklahoma Constitution.^[1] The Supreme Court’s original jurisdiction provides “general superintending control over all inferior courts and all Agencies, Commissions and Boards created by law.”[2] Outside of the appellate process, the Supreme Court’s original jurisdiction allows the court to examine a broad swath of proceedings. The Supreme Court often uses the term original action to refer to these proceedings, and original actions encompass filings seeking writs for mandamus, prohibition, habeas corpus, certiorari[3] and quo warranto. The court also invokes its original jurisdiction for attorney discipline matters and where the Legislature has given the court exclusive original jurisdiction, like initiative and referendum petitions and bond and contract approval.[4] For parties or attorneys filing original actions before the Supreme Court, this article lays out the more common grounds for original actions and examines the court’s rules on original actions, providing a few tips to consider before filing.

ORIGINAL ACTIONS

            The Supreme Court’s original action jurisdiction is almost entirely discretionary, with some exceptions for statutory grants of exclusive original jurisdiction. In fact, the drafters of the Oklahoma Constitution conceived of the Supreme Court’s original jurisdiction, “when concurrent with that of the district court,” to function as a “stand-by service” to be “exercised only when, from the exigencies of the case, great injury will be done by its refusal so to do.”[5] The majority of these proceedings involve petitions for writs of mandamus or prohibition, parties seeking to direct or stop some action in a district court. The Supreme Court has long referred to these writs as extraordinary and rare.[6] For the court to assume original jurisdiction to issue a writ of mandamus or prohibition, a petitioner must first establish the elements for a writ of mandamus^[7] or prohibition.^[8] For both mandamus and prohibition, a petitioner must show they lack another adequate remedy; it is not enough that a petitioner simply needs a quick remedy.[9] For a writ of mandamus, a petitioner must then establish they have a “clear legal right” to the desired relief, and the district court “has a plain legal duty regarding” that relief that does not involve discretion, but then the district court has “refused to perform that duty.”[10] For a writ of prohibition, a petitioner must then set out that a court or agency is exercising quasi-judicial power and that “power is unauthorized by law.”[11] And even if a petitioner sets out the elements for either mandamus or prohibition, the court may not issue a writ in its discretion.[12]

            The Supreme Court treats original actions involving discovery orders differently from other original actions for mandamus or prohibition.^[13] The court applies a different standard to discovery orders, first examining whether the case is one of the rare occasions it should serve as a “pretrial reviewing panel for trial court orders adjudicating discovery matters.”[14] Or, as the court has recently explained, the discovery order must be “aberrant.”[15] Instead of applying the factors of a writ of mandamus or prohibition, the court examines whether there was an abuse of discretion.[16] If the court answers both questions affirmatively, it can issue a writ of mandamus or prohibition to the district court concerning the discovery order.[17]

            The Supreme Court denies most applications for original action. For the party or attorney filing an original action already facing a difficult task, it is important to keep in mind reasons the court has enumerated to reject original actions. Obviously, where a party cannot satisfy either the elements for a writ of mandamus or prohibition, the court will deny the application to assume original jurisdiction.[18] One of the elements that routinely trips parties up is whether there is another adequate remedy available. Where the complained-of order is appealable, neither prohibition nor mandamus is “a substitute for appeal.”[19] However, determining an adequate remedy is within the court’s discretion. For a party complaining of an unappealable interlocutory order, waiting for the appeal can be an adequate remedy, and simply because a party must wait until the completion of the district court litigation to pursue the appeal will not make the remedy inadequate.[20] However, where jurisdiction is lacking or venue is incorrect, an appeal presents an inadequate remedy.[21] And while mandamus can be used to correct a completed act, prohibition “is not available as a corrective remedy to undo a completed act already performed but is properly a preventive remedy.”[22] Keep in mind cases where the court has explained why writs of mandamus or prohibition cannot be issued, and you will stand a slightly better chance at extraordinary relief in an original action.

FORMATTING YOUR ORIGINAL ACTION

            Petitioners seeking to invoke the court’s original jurisdiction should consult Oklahoma Supreme Court Rules 1.190 to 1.194.[23] Rule 1.191 details the court’s requirements that a petitioner needs to file:

• Application to assume original jurisdiction and petition for mandamus or prohibition, Rule 1.191(b);^[24]
• Brief in support of the application, Rule 1.191(c);
• Appendix, Rule 1.191(d);^[25]
• Notice, Rule 1.191(e); and
• Entry of appearance.

            Additionally, if a petitioner seeks an emergency stay of the district court proceedings, the petitioner must file a separate motion for a stay.^[26]

            The application and petition (as one document) should consist of three things: the reasons relief is sought with the Supreme Court; the specific remedy the petitioner seeks (mandamus, prohibition, etc.); and the underlying facts of the proceeding.[27] A petitioner should use the application and petition to set out the pertinent facts and procedural history along with the relief the petitioner is asking from the court. It is important to remember the court and its staff have no familiarity with the underlying case – fully but succinctly communicate that story to the court. The brief in support should be devoted to the petitioner’s legal argument for the writ of mandamus or prohibition. There is no need to repeat what was laid out in the petitioner’s application and petition as these documents are routinely all read together, and repeating the same facts or arguments simply wastes the court’s time. The brief cannot exceed 15 pages and must comply with Rule 1.11.[28] Petitioners are not required to file a separate brief and application to assume original jurisdiction but can combine the two into one document if desired.

            Along with the application and brief, a petitioner should file an appendix containing all supporting documentation.[29] Most importantly, in the appendix, the petitioner should include the pertinent order that precipitated the original action; the evidentiary material examined by the district court, including affidavits, exhibits and other materials; relevant portions of transcripts; and relevant district court filings.[30] Please only include relevant portions of exhibits and evidentiary material.[31] A petitioner must include an index of the documents in the appendix, providing the document’s description, date, relevancy to the matter and synopsis.[32] To assist the court in its review of an appendix, a petitioner should tab each document in the appendix. While Rule 1.191(d)(1)(a) notes that a petitioner may include copies of cases they rely upon in the brief, it is recommended that only cases or other legal authority that may prove difficult for the Supreme Court to locate be included. Including full copies of every case cited is not necessary.

            If a petitioner desires to file part of the appendix under seal, consider two things. First, if the documents are already placed under seal in the district court and the petitioner plans to include those documents in the appendix, remove the documents from the appendix and place them in a separately sealed manila envelope with the district court order sealing the documents attached to the envelope. Second, if the documents are not currently under seal, the petitioner must first ask the Supreme Court to seal the documents. The petitioner should file a separate motion requesting the court seal the sensitive documents, citing the appropriate statutory authority. A petitioner should not file any documents in an appendix they desire to keep sealed without first seeking leave of court. Any document placed in a filed appendix becomes part of the court record, available to the public if no order sealing the documents is on file with the Supreme Court.

            Once a petitioner has filed the application and supporting documents, the court will set the briefing deadlines and the date for the oral presentation before an assigned referee.[33] The respondent in the original action is directed to respond to the petitioner’s original action through the real party in interest. This typically means the party opposing the writ of mandamus or prohibition will respond on behalf of the respondent (normally, the district court judge). A response is limited to 15 pages, and the real party in interest may also file an appendix with any documents or authority they believe pertinent to the original action not included by the petitioner.

            At the oral presentation, typically one of the court’s four referees is assigned to hear the case and make a written recommendation to the Supreme Court. Referees are assigned original actions on a rotational basis. Oral presentations are not a matter of right, and the court will set them at its discretion.[34] The oral presentations take place in the Supreme Court’s conference rooms on the second floor of the Oklahoma Judicial Center; it is an informal, conversational presentation. Remember, the referee does not make any decision about your case but writes a recommendation for the court to review when it takes up the original action in conference. The referees have reviewed all filings and the appendix, so there is no need to set out the entire factual and procedural history. The petitioner and real party in interest should focus on important facts, procedure, precedent and legal authority to explain how the elements for a writ of prohibition or mandamus are met (or are not).

            A final note of caution for petitioners seeking to invoke the court’s original jurisdiction: The court will sanction petitioners for frivolous applications to assume original jurisdiction. Typically, those sanctions are an award of costs and attorney’s fees to the real party in interest.[35] A frivolous proceeding may include one brought for the sole purpose of delaying or disrupting the proceedings in the court below or a proceeding so obviously without merit as to impute bad faith on the party bringing the action.[36] Historically, the court has not sanctioned petitioners in original proceedings; however, especially in judicial disqualification proceedings that are frivolous or seek to simply disrupt or delay the district court proceedings, the court has sanctioned the filing party to deter these frivolous filings.[37]

EMERGENCY RELIEF

            The Supreme Court does not usually grant relief in fewer than 10 days. If a party is seeking to stop a trial, hearing or other matter in 10 days or less, the court will only consider the request if the party can show, “The asserted grounds for relief were not known, or could not reasonably have been discovered, prior to the ten-day period.”[38] Remember, what you think to be an emergency will not necessarily be viewed by the court as an emergency. For context, the court normally sets a deadline for the respondent, through the real party in interest, to respond to an original action in about 20 days. The court then typically sets the original action for an oral presentation before one of the court’s four referees about a week later. After the hearing, the assigned referee submits the filings and a written recommendation to the court to review in conference.

            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 considers the original action. File a separate 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 district 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 injunctions. 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 emergency 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 opposing 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 service only invoked by the court in rare instances. More often than not, the court will deny your application 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.

---

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 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).