Judge lifts ban to seat Kelly Lynn's replacement for Ward 3

May 25—A City Council member's fight to regain his seat on the dais suffered another blow in Cleveland County District Court on Thursday after a judge denied a request for a permanent restraining order to prevent seating his replacement.

Ward 3's Kelly Lynn was removed from the dais last month when McClain County District Judge Leah Edwards ruled he violated the state's dual office holding law when he accepted a judgeship in Wewoka in January, while still seated as a councilor.

Lynn appealed the decision to Oklahoma Supreme Court, which has yet to be heard, and lost a motion to stay Edwards' ruling to keep him off the dais.

His term does not end until the first Tuesday in July when his replacement, Bree Montoya's term begins.

The city planned to seat Montoya during Tuesday's council meeting, but District Judge Jeff Virgin granted a temporary restraining order for David Ballard late that same day.

Named in the legal dispute are all eight councilors and Mayor Larry Heikkila.

Michael Amend of the Amend Law firm — for which Lynn is also an attorney — represented Ballard in court Thursday for a hearing to decide whether the restraining order should stand. Lynn also was present.

Ballard is a private investigator who voted for Lynn in April 2021, according to court records, and donated to his campaign, city records show.

His claim to the court is that the city usurped his vote and right to the duly elected representation for the remainder of Lynn's term when the city attempted to remove and replace him with Montoya.

Assistant City Attorney Rick Knighton's questions focused on whether Ballard believes his constitutional rights had been taken away from him by the council who were named in the restraining order.

Ballard answered that no member of the council had personally impeded his constitutional right to vote, to appear before the council or contact any council member.

"Doesn't this come down to the fact that you just don't like Judge Edwards' ruling?" Knighton asked. Ballard answered no.

Amend argued that the city's actions, from rumors that Lynn's name would not be on the ballot to legal action to remove him on election day, "interfered" with Ballard's right to vote by removing the purpose of voting at all.

Knighton argued there was no evidence the city or the council influenced voters. He also argued to the court that a stay on the judge's ruling was not granted and the city was acting on the district court's ruling that Lynn violated a state law that disqualified him from serving on the council.

In the city's written argument to the court filed Wednesday, the city argued Ballard's case was an attempt to usurp Edwards ruling and the Oklahoma Supreme Court's authority to weigh in on the case.

Amend, however, argued the city's actions to remove Lynn were done outside the procedure set in Oklahoma state law under Title 51, sections 91-105, and therefore the case was unlikely to stand up on appeal.

Following the hearing, Amend told The Transcript that the city should have followed the law.

"Our position is this is the only way you can remove them from office is for the AG (Oklahoma Attorney General) to do it and the AG to file it in the Supreme Court," Amend said.

Lynn added that he expected that argument to be included in the briefs his attorney, Tracy Schumacher, will file with the state Supreme Court.

City Attorney Kathryn Walker said Lynn was not removed from office, but according to previous Oklahoma Supreme Court opinions forfeited the seat the minute he accepted the judge position.

Councilor for Ward 5, Rarchar Tortorello attended the hearing and said he was grateful for the judge's ruling.

"The court made the right call by standing up for the public's best interests and maintaining trust in both council and city staff," Tortorello said. "Now that the issue has been resolved, it's time to move on and focus on the needs of our residents. Ward 3 needs to be assured their voices will be heard and concerns addressed by their representative."

Walker also clarified the city filed legal action on Feb. 14 only because the Spencer Fane law firm hired by the city, had completed the filing at that time.

"It was completely unrelated to election day," Walker said.

It was not known late Thursday if the city would move to seat Montoya at the next regular council meeting June 6.