By Wally Kennedy

wkennedy@joplinglobe.com

PICHER, Okla. — The Oklahoma Supreme Court has agreed to review an Ottawa County court decision that shot down a lawsuit filed by more than 100 Picher-Cardin residents alleging problems with the recent buyout.

Missy Beets, a former Picher resident who has relocated to Miami, said she is hopeful the high court will side with residents who allege they lost thousands of dollars when the Lead-Impacted Communities Relocation Assistance Trust and its appraisal companies “low-balled” the value of their properties.

“I hope justice is served. We all have that in our hearts,’’ she said last week.

Beets said it is difficult to let go of what’s happened to her family so that she can move on with her life.

“I’ve quit concentrating on it because it was interfering with my daily life,’’ she said. “When you feel like — when you know in your heart that you have been wronged — it becomes all consuming. I try to block it out, but it’s always going to be there. I think about it every day.’’

John Wiggins, one of the Oklahoma City attorneys representing relocated residents, said Thursday that he is encouraged by the high court’s decision to hear the appeal.

“All appeals go the Supreme Court, but the majority are farmed out to intermediate courts of appeal. A minority of appeals are retained by the Supreme Court,’’ he said. “They do that to distribute the workload with the thought that the Supreme Court retains those cases with greater public interest — those with greater impact.’’

Trust immunity?

When the appeal was filed, Wiggins said he asked the court to retain it because of constitutional questions that have been raised. The judge, who ruled in favor of the trust in Ottawa County District Court, said the statutes that created the trust and shield it from judicial scrutiny are constitutional.

“That basically kept us from having a hearing on the appropriateness of the compensation the residents received,’’ Wiggins said. “In our appeal, we put forward why the court ought to look at this because taxpayer money was being spent by a public trust.

“The Supreme Court agreed and elected to keep this case to take a look at it.’’

Wiggins said he also thinks this could speed up the appeal.

“The trust money is being expended. If the court waits too long, it will be moot because the trust will have spent itself out of business,’’ he said. “We have advised the court and it is aware of that. We are hoping for an accelerated appeal.’’

The court has requested no additional briefing; no hearing is planned at this time. Paperwork submitted at the trial court level will be what is examined by the high court.

“They will look at the case, the arguments and the exhibits. They will decide only on the material that was seen by the trial judge,’’ Wiggins said. “They will determine whether he made a mistake in his order.’’

Wiggins said he is hopeful a decision on the appeal will be made within 90 days.

J. Dwayne Steidley, a Rogers County judge, was assigned to hear the case when Ottawa County’s judges recused themselves. He sided with the trust’s lawyer, Scott Boughton, assistant attorney general in the Oklahoma attorney general’s office.

Boughton, who could not be reached for comment Friday, argued in his motion that the trust operated within the boundaries of the statute that created it, and that it did not violate the state’s Open Meetings Act when it invited non-trust members into closed-door sessions.

The trust was created to oversee the federal buyout of residential and business property in the former lead and zinc mining field. The Tar Creek Superfund Site is contaminated by acidic mine water and mountains of mining waste called chat, and faces an unsafe risk of cave-ins.

Insurance money

Boughton also has previously said the trust was within its rights to collect insurance settlements from residents who were affected by the May 10, 2008, tornado. The plaintiffs’ lawyers, Wiggins and Jeff Marr, argued the tornado victims with insurance were treated unfairly when compared to those without insurance, and that residents with insurance were denied due process.

Steidley, in his decision to grant summary judgment to the defendants, agreed with Boughton’s arguments.

Mark Osborn, a Miami physician who serves as chairman of the trust, also could not be reached for comment Friday. Trust officials have said previously that the majority of Picher’s relocated residents received fair deals or they would not have accepted the buyout offers from the trust.

Steidley was asked by the plaintiffs to decide whether a state law that created the trust and made it immune from judicial review is constitutional. Lawyers for the plaintiffs cited several precedents in state law that say every public trust using public money in Oklahoma must be subject to judicial accountability. By denying plaintiffs access to the courts, the plaintiffs’ lawyers said, the residents were denied due process.

Steidley, in his decision, said “the reality of this statute is that it seeks to shield the trust from liability,” and that there is precedence for that in Oklahoma law.

‘Extortion’?

The plaintiffs also challenged the constitutionality of a state statute that permitted the trust to appropriate private insurance payments from Picher residents in the aftermath of the 2008 tornado. That statute, plaintiffs’ lawyers argued, took property from insured residents without due process and in violation of their right to equal protection and treatment by the trust when compared with the way the trust treated uninsured residents.

Lawyers for the plaintiffs described that effort by the trust as “nothing short of extortion by a public trust” and said the effort “robbed insured residents of their private insurance money, for which they, not the trust, had paid premiums.”

In addition, the court was asked to look at whether the trust violated Oklahoma’s Open Meetings Act by permitting buyout contractors and a state employee — J.D. Strong, Oklahoma’s secretary of the environment — to attend closed-door sessions of the trust. Steidley sided with the defendants, saying the trust could invite anyone it wanted into a closed-door meeting. The plaintiffs argued that state law permits only trust members, the trust’s attorney and the trust’s immediate staff to enter those meetings.



Separate litigation

The decision in Ottawa County has no direct impact on a related lawsuit in Tulsa County that involves the trust’s primary appraisal companies, Cinnabar and Van Tuyl, and several insurance companies that worked with the appraisal companies after the May 2008 tornado. Judge Dana Kuehn recently ruled that those entities do not have immunity from judicial accountability.