After second recusal, new judge sought for Kennedy Building suit

Robert Smith

A lawsuit filed nearly a year ago in Osage County District Court, in which plaintiff Jay Mitchell alleged breach of contract and possible conspiracy in regard to a voided property sale, continues to linger as Associate District Judge Stuart Tate has recused himself and Oklahoma’s chief justice has been asked to reassign the case.

Mitchell filed the lawsuit on Aug. 24, 2018, and Osage County District Judge John Kane on Sept. 13 recused himself. The case was subsequently assigned to Associate District Judge B. David Gambill, but Judge Gambill retired in January 2019 and the case passed to his successor in office, Judge Tate.

The Osage County Board of Commissioners is the primary defendant in the lawsuit, and the commissioners are represented by the district attorney’s office. The case concerns the voiding of a sale of the Kennedy Building, in downtown Pawhuska, based on an assertion that the county commissioners failed to declare the building “surplus” before selling it. Mitchell was the high bidder.

Since Judge Kane, the senior jurist of the Osage County District Court, has recused himself from handling the lawsuit, he is prevented from being the one to reassign it. Kane’s request for the chief justice to find another judge to handle the lawsuit was filed July 16, and it isn’t clear how soon a judge will be named to move the matter along.

Judge Tate’s recusal, on July 15, came during a period of time when District Attorney Mike Fisher’s office had been seeking to get the case dismissed or, in the alternative, to at least get a hearing on the county’s motion to dismiss the case, which was filed Sept. 13, 2018. The district attorney’s office filed paperwork June 5, asking for a motion sustaining the motion to dismiss or for a hearing. The district attorney’s office said the plaintiff had never filed a formal response to the county’s motion to dismiss.

Pawhuska lawyer Bransford Shoemake, acting on behalf of Mitchell, objected to the request of the district attorney’s office. Shoemake described being “more than a little surprised” by the request for the dismissal motion to be sustained, or for a hearing. He said attorneys for the plaintiff had understood that attorneys representing Osage County’s commissioners “had agreed to an open-ended extension of time to continue to conduct written and deposition discovery in this matter prior to summary adjudication.”

Shoemake wrote that the plaintiff had served written discovery on the defendants and had received and reviewed “many pages of documents.”

“From plaintiff’s perspective, it makes sense to gather all of the documents from all of the known sources of proof before proceeding with further deposition discovery,” Shoemake wrote in paperwork filed June 19.

The district attorney’s office replied that before the county expends any more time or resources on the case, the court should consider sustaining the county’s motion to dismiss, or setting the motion to dismiss for a hearing.

The plaintiff submitted on July 26 a response to the county’s motion to dismiss.