IN THE SUPREME COURT OF THE STATE OF OKLAHOMA INDEPENDENT SCHOOL DISTRICT NO.

5 OF TULSA COUNTY, OKLAHOMA, a/k/a JENKS PUBLIC SCHOOLS, and INDEPENDENT SCHOOL DISTRICT NO. 9 OF TULSA COUNTY, OKLAHOMA, a/k/a UNION PUBLIC SCHOOLS, Plaintiffs/Appellees,
vs.

Case No. 110694, consolidated with Case No. 110693

RUSSELL SPRY, STEPHANIE SPRY, TIM TYLICKI, KIMBERLY TYLICKI, TIM FISHER, KRISTIN FISHER, STEFAN HIPSKIND, STEPHANIE HIPSKIND, JERRY SNEED, and SHANNA SNEED, Defendants/Appellants. E. SCOTT PRUITT, OKLAHOMA ATTORNEY GENERAL, Appellant.

APPELLEES' RESPONSE IN OPPOSITION TO JOINT MOTION OF DEFENDANTS/APPELLANTS AND

THE ATTORNEY GENERAL FOR ORAL ARGUMENT

ROSENSTEIN, FIST & RINGOLD J. Douglas Mann, OBA #5663 Frederick J. Hegenbart, OBA 410846 Karen L. Long, OBA #5510 Jerry A. Richardson, OBA #10455 525 S. Main, Suite 700 Tulsa, OK 74103 (918) 585-9211 (918) 583-5617 facsimile ATTORNEYS FOR APPELLEES

The Appellees respectfully submit this response in opposition to the joint motion of the Appellant Parents and the Attorney General seeking oral argument. Pursuant to Okla. Supt. Ct. R. 1.9, a party who wishes to present oral argument must set forth "the exceptional reason that oral argument is necessary and the issues sought to be presented." The Appellant Parents and the Attorney General do not acknowledge that they must support their request for oral argument with an "exceptional reason," and their motion contains nothing that approaches this high standard. The Appellant Parents and the Attorney General assert that oral argument would help "crystallize the issues" and provide an opportunity for this Court to be further informed. The issues presented by this appeal are clearly identified in the complete summary judgment record. If any "crystallization" of the issues were necessary, the Court afforded the parties ample opportunity to do so when it authorized additional briefing on this appeal. Because the parties' briefs clearly and concisely identify the issues presented by this appeal, and because the Appellant Parents and the Attorney General have had multiple opportunities to present whatever arguments they want the Court to consider, oral argument is not necessary. The Appellant Parents and the Attorney General assert that oral argument should be granted to allow them to respond to certain arguments made in the Appellees' briefs. They contend that the Appellees' briefs contain an equal protection argument that was not raised in the district court. This is not true. The equal protection argument summarized in the introductions to the Appellees' appeal briefs is taken almost verbatim from pp. 4-5 of the Plaintiffs' Opening Brief in Support of Motion for Summary Judg.ment, Tab 7, Record on Accelerated Appeal (arguing that the Act provides more funding to a private school in certain situations than a public school district would receive for the same student). The Appellees raised this argument in the district court: the Appellant Parents and the Attorney General chose not to address it in their supplemental briefs authoriz ed by this Court. They now ask for oral ar gument because they want

another opportunity to address this issue. This is not an "exceptional reason" for granting oral argument. The Appellant Parents and the Attorney General also claim that the "funding issue" was not raised below. The Appellees discussed the manner in which the Act is funded because the Appellant Parents and the Attorney General specifically raised this issue in their briefs.

See

Appellants' Brief p. 7 (arguing that the School Districts did not suffer any "direct and pecuniary loss"), and Attorney General's Brief p. 5 (arguing that public school districts do not lose money as a result of the Act). The Appellees responded to these arguments by showing them to be false and demonstrating that the Act harms all public school districts in the state, the same position the Appellees argued in the district court.

See Opening Brief in Support of Motion for Summary

Judgment, p. 2, Tab 7, Record on Accelerated Appeal; Plaintiffs' Reply Brief in Support of Their Motion for Summary Judgment, pp. 2-3, Tab 12, Record on Accelerated Appeal. The Appellant Parents and the Attorney General also argue that the Appellees' briefs "take a novel approach" with regard to arguments about the absence of consideration, whether the state could give scholarships to students who are home schooled or who move out of state, and the fate of similar scholarship programs in other states. All of these issues were raised in the district court. See Response in Opposition to Defendants' Motion for Summary Judgment and Brief in Support, pp. 10-12, Tab 9, Record on Accelerated Appeal (arguing that the state receives no consideration under the Act and noting that Defendants' argument could justify providing scholarships to students who are home schooled), and Opening Brief in Support of Motion for Summary Judgment, p. 14, Tab 7, Record on Accelerated Appeal (citing Arizona and Florida decisions invalidating similar scholarship programs). The Appellant Parents and the Attorney General have failed to identify any "exceptional reason" that warrants oral argument. Their motion for oral argument should be denied.

Respectfully submitted, ROSENSTEIN, FIST & RINGOL

by glas Mane, OBA #5663 rederick J. Hegenbart, OBA #10846 Karen L. Long, OBA #5510 Jerry A. Richardson, OBA #10455 525 S. Main, Suite 700 Tulsa, OK 74103 (918) 585-9211 (918) 583-5617 facsimile E-mail: dougral&rfrlaw.com fredhla)rfrlaw.corn karenkiixfrlaw.com ierrvrrierfrlaw.com ATTORNEYS FOR APPELLEES

CERTIFICATE OF MAILING I hereby certify that on the 11 th day of July, 2012, I caused a true and correct copy of the above and foregoing instrument to be mailed, via certified mail, return receipt requested, with sufficient postage prepaid thereon, to: Andrew W. Lester Matt Hopkins Carrie L. Vaughn LESTER. LOVING & DAVIES, PC 1701 South Kelly Avenue Edmond, Oklahoma 73103 Attorneys for Appellants Patrick R. Wyrick Solicitor General Oklahoma Office of the Attorney General 313 NE 21 st Street Oklahoma City, Oklahoma 73105 Attorney for Attorney General E. Scott Pruitt, Appellant by depositing it in the U.S. Mails, postage prepaid. Eric S. Baxter The Becket Fund for Religious Liberty 3000 K Street NW, Suite 220 Washington, D.C. 20007 Attorneys for Appellants

glas I.