In a unanimous decision this summer, the Oklahoma Supreme Court invalidated the results of a November 2022 lodging-tax election in McCurtain County for failure to follow statutory publication requirements.

Statute Title 19 O.S. 2021 §383 requires questions to the people “to be published at least four (4) weeks in some newspaper published in the county” if there is such a newspaper.

(This story was originally published in the July 2024 issue of The Oklahoma Publisher, the monthly newsletter of the Oklahoma Press Association. It is reprinted here courtesy of OPA.)

“The Legislature has mandated what constitutes notice by publication. Here, the statutorily required notice was not given. Anything less than strict compliance requires us to invalidate the election,” Justice Yvonne Kauger wrote.

In November 2022, voters of McCurtain County approved a ballot proposal of a lodging tax increase to fund a new county hospital. After the measure was approved, a lodging renter and property owner filed a lawsuit seeking to have the election declared null and void due to lack of newspaper publication.

The hospital and McCurtain County Board of County Commissioners sought to have the election upheld, citing numerous other measures of informing voters including social media, billboards and radio advertisements. The trial court judged in favor of the board and hospital.

The renter and owner appealed and filed a motion for oral argument. The Supreme Court retained the cause, denied the motion for oral argument and held that because the county commissioners neglected to follow the statutory publication requirements, the voter-approved lodging tax increase is invalid.

The court also suggested the legislature update publication requirements.

In response to this judicial editorial statement, OPA Executive Vice President Mark Thomas said, “While we agree with the court the election be overturned because the county failed to do the one thing the statute requires, we are dismayed the court hints that Facebook posts governed by secret algorithms, billboards encouraging a yes vote and civic club speeches could be the equivalent of a printed notice in the local newspaper.

“OPA is working on modernization methods as several other states have done,” said Thomas. “However, fundamental principles of public notice, including publication by an independent non-government third-party, proof of publication, court verification and unaltered archives are paramount.”