Volume 87 No. 9 March 26, 2016

Transcription

Volume 87 u No. 9 u March 26, 2016
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570
The Oklahoma Bar Journal
Vol. 87 — No. 9 — 3/26/2016
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Vol. 87 — No. 9 — 3/26/2016
Volume 87 u No. 9 u March 26, 2016
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Vol. 87 — No. 9 — 3/26/2016
Oklahoma Bar Association
table of
contents
March 26, 2016 • Vol. 87 • No. 9
page
574
Index to Court Opinions
576
Opinions of Supreme Court
625
Opinions of Court of Criminal Appeals
643
Calendar of Events
644
Opinions of Court of Civil Appeals
662
Disposition of Cases Other Than by Publication
Vol. 87 — No. 9 — 3/26/2016
573
Index to Opinions of Supreme Court
2016 OK 19 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. DEREK BRION SMITH, Respondent. O.B.A.D. No. 2056. S.C.B.D. No.
6306......................................................................................................................................................... 5 7 6
2016 OK 20 YAUMARY CONCEPCION TORRES, Petitioner, v. SEABOARD FOODS,
LLC, AMERICAN ZURICH INS. CO., and THE WORKERS’ COMPENSATION
COMMISSION, Respondents. No. 113,649...................................................................................... 5 8 3
2016 OK 21 RE: Suspension of Certificates of Certified Shorthand Reporters SCAD-2016-13.............6 0 0
2016 OK 22 RE: Suspension of Credentials of Registered Courtroom Interpreters SCAD2016-14.........................................................................................................................................................6 0 1
2016 OK 23 JENNIFER FLEMING, Plaintiff/Appellant, v. RACHEL WHITNEY HYDE,
Defendant/Appellee. No. 113,844..................................................................................................... 6 0 1
2016 OK 24 REBEKKAH NEWLAND, Plaintiff/Appellant, v. LAURA TAYLOR, Defen
dant/Appellee. No. 113,928 ............................................................................................................... 6 0 2
2016 OK 25 STATE OF OKLAHOMA ex rel. Oklahoma Bar Association, Complainant, v.
JOHN BERNARD SULLIVAN, Respondent. Case Number: SCBD-6243; Consolidated
w/SCBD-6244....................................................................................................................................... 6 0 3
2016 OK 26 State of Oklahoma ex rel. Oklahoma Bar Association, Complainant, v. L.
Caroline Drummond, Respondent. SCBD No. 6368....................................................................... 6 0 8
2016 OK 27 In the Matter of the Reinstatement of Rhett Henry Wilburn to Membership in
the Oklahoma Bar Association and to the Roll of Attorneys. SCBD No. 6275........................... 6 0 8
2016 OK 28 DONALD DEWAYNE MOORE, Plaintiff/Appellant, v. WARR ACRES
NURSING CENTER, LLC., Defendant/Appellee. No. 113,098.................................................... 6 0 9
2016 OK 29 IN RE: AMENDMENT OF RULE 5 OF THE RULES GOVERNING ADMISSION TO THE PRACTICE OF LAW, 5 O.S. Supp. 2015, ch. 1, app. 5 SCBD 6349.................... 6 1 9
2016 OK 30 RE: ORDER VACATING SCAD-2013-11, BAR EXAM ALTERNATIVE SCORING AND GRADING METHODS SCAD-2016-18......................................................................... 6 2 1
2016 OK 31 State of Oklahoma ex rel. Oklahoma Bar Association, Complainant v. Fred
Bennett Callicoat Respondent. SCBD-6359...................................................................................... 6 2 1
Index to Opinions of Court of Criminal Appeals
2016 OK CR 3 MICA ALEXANDER MARTINEZ, Appellant, v. THE STATE OF OKLAHOMA, Appellee. Case No. D-2013-673.......................................................................................... 6 2 5
2016 OK CR 4 WILLIAM TODD LEWALLEN, Appellant, v. THE STATE OF OKLAHOMA, Appellee. Case No. F-2014-1063................................................................................................ 6 3 7
574
Vol. 87 — No. 9 — 3/26/2016
2016 OK CR 5 JERMAINE JACKSON, Appellant, v. THE STATE OF OKLAHOMA,
Appellee. Case No. F-2014-627........................................................................................................... 6 4 0
Index to Opinions of Court of Civil Appeals
2016 OK CIV APP 11 THE JAYSON W. DAVISON TRUST OF 2010, U/T/A 7/8/10 and
JAYSON W. DAVISON, TRUSTEE, Plaintiff/Appellant, vs. PAT BROCKHAUS,
Defendant/Appellee, and DON WAYNE BROCKHAUS, Successor Trustee of the
ARTHUR J. BROCKHAUS TRUST, U/T/A 4/1/1994, Defendant/Third Party Plaintiff/Appellee, vs. LOGAN COUNTY TREASURER, Third Party Defendant/Appellee. Case No. 113,175............................................................................................................................ 6 4 4
2016 OK CIV APP 12 T.L.I., a minor child, by and through his next friend, TRAVIS L.
IRICK, Plaintiff/Appellant, vs. BOARD OF COUNTY COMMISSIONERS OF THE
COUNTY OF POTTAWATOMIE, Defendant/Appellee. Case No. 113,687................................ 6 5 0
2016 OK CIV APP 13 IN RE THE MARRIAGE OF MICHAEL A. GRESS AND LINDA L.
KUHN: MICHAEL A. GRESS, Petitioner/Appellee, vs. LINDA L. KUHN, Respondent/Appellant. Case No. 112,412.................................................................................................... 6 5 5
2016 OK CIV APP 14 LISA HILL, Plaintiff/Appellant, vs. STATE OF OKLAHOMA, ex.
rel. BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA, Defendant/
Appellee. Case No. 113,718................................................................................................................. 6 5 8
Vol. 87 — No. 9 — 3/26/2016
575
Supreme Court Opinions
Manner and Form of Opinions in the Appellate Courts;
See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)
2016 OK 19
STATE OF OKLAHOMA ex rel.
OKLAHOMA BAR ASSOCIATION,
Complainant, v. DEREK BRION SMITH,
Respondent.
O.B.A.D. No. 2056. S.C.B.D. No. 6306
March 1, 2016
PROFESSIONAL DISCIPLINARY
PROCEEDING
¶0 The Oklahoma Bar Association filed a
complaint in this Court alleging respondent, licensed to practice law in this State,
committed specific acts of professional
misconduct, including a failure to provide
(1) competent representation, (2) diligent
and prompt representation, and (3) prompt
and reasonable communication with clients.
The Bar also alleged respondent collected
unreasonable fees for work not performed
and violated rules of professional conduct.
The alleged acts of misconduct were based
upon facts alleged in seven grievances filed
with the Bar Association by former clients
of respondent. The Bar Association also
alleged for purposes of enhancement of
discipline a private reprimand the respondent received in 2013 for professional misconduct. The Bar also alleged respondent
failed to timely respond to the Bar’s
requests for information. Respondent did
not file a response to the Complaint in this
Court. Respondent did not appear at his
scheduled trial panel hearing or file a posthearing brief in this Court. The trial panel
recommended respondent be disbarred
from the practice of law. This Court finds
several violations of the lawyer’s duty of
ethical conduct and imposes disbarment
and costs.
RESPONDENT DISBARRED;
COSTS IMPOSED
Stephen L. Sullins, Assistant General Counsel,
Oklahoma Bar Association, Oklahoma City, for
Complainant.
576
Derek Brion Smith, Oklahoma City Oklahoma,
No Appearance.
EDMONDSON, J.
¶1 Respondent is licensed to practice law in
this State. This Court finds several violations of
the lawyer’s duty of ethical conduct by respondent, and imposes upon him disbarment and
costs.
¶2 Seven of respondent’s former clients filed
grievances against him with the Oklahoma Bar
Association. Respondent did not respond to
the clients’ grievances as requested by the Bar
Association. The Oklahoma Bar Association
filed a formal Complaint in this Court against
Respondent alleging seven counts of professional misconduct relating to seven of his former clients. Respondent did not file a response
to the Complaint in this Court. Respondent did
not appear at his scheduled hearing before the
trial panel of the Professional Responsibility
Tribunal. Several witnesses testified at the trial
panel hearing. The Bar Association filed a motion
for the allegations of the Complaint to be deemed
admitted by respondent, and the trial panel
granted the motion. The trial panel’s report was
filed in this Court, and the Oklahoma Bar Association filed its brief. The Bar Association filed
an application for an order assessing its costs
against respondent. Respondent filed no brief or
any other filing in this Court.
Count I - McCuddy’s Grievance
¶3 Queta McCuddy paid respondent a fee of
$2,500 for representation in a child custody
dispute. Respondent filed a motion to modify
child custody for clarification of joint custody
issues and he appeared at one hearing. Respondent failed to appear at a scheduled meeting of
counsel and parties on the matter. McCuddy
tried numerous times to contact respondent by
text messages, emails, and phone calls. After a
few months of these unsuccessful efforts she
decided to hire a different lawyer and McCuddy’s father eventually obtained her file from
respondent at respondent’s residence. McCuddy testified she was required to pay additional
Vol. 87 — No. 9 — 3/26/2016
fees to her new lawyer and the child custody
matter had been completed with new counsel.
Count II - Patton’s Grievance
¶4 Patton paid respondent $1,500 as a retainer for respondent to file a paternity proceeding
so Patton could obtain custody of children. Patton stated the matter was an “agreed paternity” between him and the mother for the purpose of obtaining a judicial order awarding
child custody. Patton testified respondent took
four to six months to serve process on the
mother. He testified that he was informed that
a temporary support order was entered and he
wanted to meet with respondent to find out the
provisions of the temporary order and what
his obligations were, but “I could never get a
return of a phone call or text message.” He testified he “never knew how much child support
I was supposed to be paying.” He testified that
after getting a copy of the temporary order the
respondent would not return his phone calls or
otherwise contact him.
¶5 Patton hired a new lawyer and paid him
$1,500 to complete the legal matter. Patton sent
respondent a text message requesting an
invoice or an accounting for his work, but respondent never replied. Patton testified that
respondent’s lack of timely communication
concerning support obligations and the issue
of unpaid support resulted in Patton being
unnecessarily placed in a situation requiring
unusual efforts on Patton’s part to meet past
and current support obligations. He testified
his new lawyer was able to conclude the legal
matter with a “favorable outcome” for Patton.
Count III - Haynes’ Grievance
¶6 Haynes alleged in her grievance that she
paid a $1,500 fee for representation in a Grady
County District Court proceeding involving
child support and child daycare. She alleged
her efforts were unsuccessful when trying to
communicate with respondent concerning errors in a proposed court order.
¶7 The efforts of the Bar Association were
unsuccessful to include telephonic testimony
from Haynes during the hearing. The Bar Association filed a motion to have all allegations
against respondent in all Counts of its Complaint be deemed admitted by respondent’s
failure to file a response to the Complaint. The
trial panel granted the motion.
Vol. 87 — No. 9 — 3/26/2016
Count IV - Conley’s Grievance
¶8 Respondent represented Conley in his
first divorce. Conley’s ex-wife filed an application concerning child support and Conley paid
respondent $1,500 for legal representation.
Conley testified he paid respondent “and then
he never filed any papers or anything like
that.” His ex-wife later informed Conley that
“nobody ever filed anything” and he hired a
different lawyer.
¶9 Conley explained he tried to contact
respondent during the time he was seeking a
new lawyer, but respondent “never replied
back.” Conley testified respondent “never
done anything for me on that or gave me my
money back.” Conley asked his new lawyer to
contact respondent and request a refund of his
money. Respondent did not reply to the
requests from Conley’s new lawyer.
¶10 An investigator for the Bar Association
identified an exhibit of respondent’s bank
accounts, including personal and trust
accounts. They showed Conely’s $1,500 check
was deposited into respondent’s personal joint
account with his wife and not his trust account.
Count V - Hyden’s Grievance
¶11 Hyden paid respondent a $2,000 retainer.
Respondent did not have a written fee agreement with Hyden and told her he would inform
her how much he was going to bill her as her
child custody matter progressed. She testified
that respondent appeared at two hearings. During the one hearing she and respondent both
appeared, respondent made a disparaging comment about her to the judge. She said she had no
idea why respondent made the comment to the
judge, her motion was denied, and respondent
did no further work on her case. She testified
there were five hearings, and respondent did not
appear at three of the hearings.
¶12 Hyden tried numerous times to contact
respondent concerning her case and his failure
to appear at hearings. She attempted to contact
him by telephone, email, and faxes: “I tried
everything I knew how. I could not get ahold of
this man.” She hired another lawyer and paid
him $3,000. She testified to her belief that
respondent’s neglect hurt her case because it
happened during the time of an investigation
by the Department of Human Services when
an active lawyer could have helped the family.
She testified to her belief respondent did not
earn the $2,000 she paid him.
577
Count VI - Lenhart Grievance
¶13 Lenhart hired respondent to obtain judicial enforcement of Lenhart’s previously
awarded right for child visitation, and for
additional visitation. Lenhart paid $2,000 to
respondent. Respondent informed Lenhart of
difficulties in serving process on his ex-wife.
Respondent filed a document in the District
Court on behalf of Lenhart.
¶14 Lenhart testified concerning leaving
voice messages on respondent’s phone with no
return phone calls, and his numerous trips to
respondent’s office and being told no time was
available to meet with him. Neither respondent
or Lenhart appeared at the scheduled hearing
on the matter. The assigned judge ruled in
favor of Lenhart’s ex-wife, and ruled she was
entitled to an attorney’s fee against Lenhart.
¶15 Lenhart then hired two other lawyers
who worked together as co-counsel. He paid
them $25,000. He testified on the positive influence in the case caused by the appointed
guardian ad litem. He testified he is able to
have visitation with his child due to the efforts
of his two new lawyers. He also testified he
wrote a letter to respondent and pointed out
respondent’s failure to appeal at a scheduled
hearing, respondent had it rescheduled and
again failed to appear, and respondent did not
tell Lehnart to attend the hearing. He wrote to
respondent requesting the return of $1,000,
one-half of the amount previously paid.
Respondent did not return any money or contact Lenhart.
Count VII - Meade Grievance
¶16 Meade used respondent for legal services on three occasions. He testified that the first
two times he hired respondent things “went
well” except “it kind of got to the point where
I would call him and he wouldn’t really call me
back.” The third time he hired respondent for a
custody/visitation matter involving Meade’s
minor child. Meade paid respondent $1,500 for
this matter.
¶17 After a hearing on the matter, respondent was directed to prepare an order for the
judge’s signature. Meade testified concerning
his numerous attempts to contact respondent,
and his need to get a copy of the order because
his child’s school needed a copy of the order
showing Meade’s sole custody of the child.
Meade eventually obtained a copy of the order
directly from the judge, and respondent later
578
contacted Meade to provide him a copy. Meade
hired a new lawyer after his difficulties with
respondent.
Additional Testimony
¶18 A person employed as a secretary in an
office with respondent and another lawyer testified. She received and signed for certified mail
sent to respondent, including mail from the Bar
Association. She routinely placed respondent’s
mail on his desk where respondent received the
mail. She said she remembered the Bar Association mailings to respondent because they “were
the big flat brown ones” with a confidentiality
stamp and they were placed “in plain view on
his desk where he could see them.”
¶19 An investigator for the Bar Association
testified at the hearing. Since 2007 she has
investigated professional grievances filed
against respondent. She testified concerning
many attempts to contact respondent. These
attempts included regular mail, certified mail,
telephone messages, and emails. The mail was
sent to respondent’s address listed on the Oklahoma Bar Association roster.
¶20 Some mailings to respondent were
returned to the Bar Association and respondent
did not respond to them. Upon the investigator
discovering respondent’s new business
address, the Oklahoma Bar Association sent
the mailings to this address in addition to
simultaneously sending them to his roster
address. Respondent moved to a new address
in November 2014, but did not change his roster address until May 2015. Respondent did
not respond to several mailings or emails, or
voicemail.
¶21 In response to a strongly worded email
from the investigator stating respondent’s need
to contact the Bar, respondent replied by email
and stated he had not received the mailings
from the Bar and he would provide a response
to a grievance. Respondent did not respond to
the grievances. Respondent did not respond to
telephone calls made to him by the Bar Association. The Bar Association subpoenaed respondent for a deposition and he appeared.
¶22 Respondent appeared at the Oklahoma
Bar Center one day before the scheduled trial
panel hearing and orally requested a continuance for his hearing. The reason given for the
request was for him to have time to consider
resigning from the Bar Association. Counsel
for the Bar objected to a continuance and
Vol. 87 — No. 9 — 3/26/2016
respondent’s request was denied by the trial
panel upon noting his request was made less
than twenty-four hours prior to the scheduled
hearing and the absence of any extenuating
circumstances that would justify delaying the
hearing.
¶23 In a telephone conversation between
respondent and counsel for the Bar on the
morning of the trial panel hearing, respondent
stated he had a hearing in the District Court of
Oklahoma County involving a juvenile matter
that was scheduled at the same time as the trial
panel hearing, and he would try to appear at
his trial panel hearing upon conclusion of the
juvenile proceeding. Upon conclusion of testimony before the trial panel, the trial panel had
a short adjournment for the Bar’s counsel to
determine if any email or messages from
respondent had been sent concerning his
appearance before the trial panel. Upon reconvening the trial panel concluded the proceeding without any appearance from respondent.
Rule 6.4 Admission
¶24 A hearing was held before a trial panel of
the Oklahoma Professional Responsibility Tribunal and the trial panel members unanimously recommended disbarment for respondent’s
professional discipline.
¶25 The Bar Association alleged respondent
violated the same five Oklahoma Rules of Professional Conduct, 5 O.S.2011 Ch. 1, App. 3-A,
(ORPC), in each of the seven grievances: Rules
1.1 (competent representation required),1 1.3
(diligent and prompt legal representation
required),2 1.4 (prompt and reasonable communication with a client required),3 1.5 (collecting
an unreasonable fee prohibited),4 and 8.4(a)
(violate or attempt to violate a rule of professional conduct).5 The Bar Association alleges
respondent’s repeated failure to respond to the
Bar’s requests for responses to the client grievances shows multiple violations of Rule 5.2 of
the Rules Governing Disciplinary Proceedings
(RGDP).6
¶26 Respondent did not file an Answer to the
Bar’s Complaint, or seek additional time to file
an Answer. The Bar filed a motion to deem the
Complaint’s allegations admitted pursuant to
Rule 6.4, RGDP,7 and the trial panel granted the
motion. The person who signed the certified
mail receipts for service on respondent for both
the Complaint and Bar’s motion to deem allegations admitted testified she routinely signed
for respondent’s certified mail and placed it on
Vol. 87 — No. 9 — 3/26/2016
respondent’s desk. The Complaint and motion
to deem its allegations admitted were both
mailed by certified mail to respondent’s new
roster address after respondent made the change
to his roster address. The Bar’s evidence clearly
shows service of the Complaint upon respondent as well as service of the Bar’s motion to
have the Complaint’s allegations deemed
admitted.
¶27 Disciplinary Rule 6.4 provides that if a
respondent fails to answer the complaint, the
charges shall be deemed admitted except that
evidence shall be submitted for the purpose of
determining the discipline to be imposed. We
agree the charges are deemed admitted. However, we must note a difference between a Rule
6.4 admission of a Rule 8.4(a) violation based
solely on the violation of another rule and violations based upon Rule 8.4(b), (c), and (d).
¶28 In State ex rel. Oklahoma Bar Ass’n v.
Knight,8 we declined to accept a Rule 6.4 admission relating to Rule 8.4 of the ORPC when the
record of the proceeding did not show unprofessional motive or a bad or evil intent for the
unprofessional actions of the respondent.9 This
Court has explained that a Rule 6.4 RGDP
admission of various provisions of a Rule 8.4
ORPC violation is based upon a record showing
respondent’s knowledge, intent, or motive concerning a respondent’s violation of professional
ethical standards.10 We explained in Knight
“while … his conduct appears to be an intentional ignorance of his ethical obligations, the
evidence fails to show a bad or evil motive … .”11
¶29 Separate provisions of Rule 8.4 rely on
the lawyer’s knowledge or intent, but the Bar
relies upon the first clause of 8.4(a) which does
not focus on the lawyer’s knowledge or intent.
“It is professional misconduct for a lawyer to: (a)
violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce
another to do so, or do so through the acts of
another; ….”12 This emphasized language is
similar to former Disciplinary Rule, DR 1-102
(A)(1): “A lawyer shall not: (1) Violate a Disciplinary Rule.”13 When this Court applied former
DR 1-102(A)(1) a violation of another disciplinary rule was also a violation of DR-102(A)(1).14
¶30 In Knight, the Bar Association pled violations of “Rule 8.4 and 8.4(d)”15 and not a Rule
8.4(a) violation. In the present case, the Bar
Association’s Complaint specifically pled a
violation of Rule “8.4(A)” and no other provision of Rule 8.4, and the Complaint made no
579
allegations concerning respondent’s conduct
involving his knowingly assisting or inducing
others to violate a disciplinary rule.16 We conclude no showing of evil intent or bad motive
is necessary for the Rule 8.4(a) violation which
is based solely upon a respondent’s violation of
a different professional rule of conduct. We
accept the Rule 6.4 admission without requiring a showing on the record concerning respondent’s intent.
Enhancement
¶31 The record shows a private reprimand
respondent received from the Professional
Responsibility Commission on August 23,
2013. Exhibit No. 46, O.B.A.D. No. 1969. The
private reprimand involves respondent’s professional misconduct relating to four clients.
Respondent failed to respond to all four grievances as requested by the Bar. The misconduct
included respondent’s neglect of legal proceedings and failure to timely communicate with
clients. The Commission found violations of
Rules, 1.1, 1.3, 1.4, 1.5, 3.1, 3.2, 8.1(b), 8.4(a) and
(d) as the basis for the private reprimand.
¶32 The Complaint erroneously states that
respondent received a private reprimand on
November 28, 2011, in O.B.A.D. No. 1863. An
oral motion by counsel for the Bar Association
at the trial panel hearing was made to show a
corrected date and docket number for the private reprimand on August 23, 2013, in O.B.A.D.
No. 1969. The report of the trial panel accurately states O.B.A.D. No. 1969, but its Report
erroneously states the corrected date of the
reprimand as November 23, 2011.17 There is no
evidence respondent was prejudiced by reference to the incorrect OBAD number and date
that were corrected at the trial panel hearing.
The Complaint alleges his prior private reprimand by the Professional Responsibility Commission, and respondent participated in that
process and had notice of what the Bar was
pleading in the present matter. This matter may
be considered for enhancement purposes.18
¶33 The trial panel’s report states a retainer
check from Haynes in the amount of $450.00
was deposited into respondent’s personal
account, and such should be used for the purpose of enhancement. The Complaint alleges
Haynes paid respondent $1,500, but does not
refer to a payment of $450. The investigator for
the Bar testified that a $1,500 cashier’s check
from Conley and a $450 check from Haynes
were deposited into respondent’s personal
580
account instead of a trust account. Photocopies
of the negotiated checks and respondent’s bank
records were included in the exhibit. The Bar
gave no notice to respondent that it would raise
factual allegations or rules of professional conduct relating to mishandling19 clients’ funds.
¶34 A waiver is a relinquishment of a known
right.20 A Rule 6.4 admission is an admission to
the charges in the Bar’s complaint. There is no
language in Rule 6.4 stating that an admission
pursuant to that rule is also an admission of
additional charges of misconduct brought for
the first time during the trial panel hearing held
in the absence of the respondent. The General
Counsel may amend a Complaint to add allegations relating to professional misconduct.21 The
known right that is waived pursuant to Rule 6.4
is the opportunity to object to the allegations in
the complaint and amended complaints where
notice of such have been given to a respondent
with the result being a respondent’s admission
to those charges. Raising new allegations of professional misconduct at a trial panel hearing
without notice to a non-appearing respondent is
similar to the disapproved trial-by-ambush procedure in civil proceedings, unless a respondent
has, on the record of the proceeding, specifically
waived any objection to the new charges of professional misconduct.22
¶35 The Bar Association must give notice to
a lawyer when that lawyer’s conduct is raised
to show a breach of professional conduct23 or a
need for enhanced professional discipline.24 A
respondent must receive notice of the facts
underlying the misconduct charges brought by
the Bar Association, and when such notice is
given this Court may consider those facts as
discrete instances of misconduct or consider
them as part of a larger set of circumstances.25
We have declined to use allegations of improper misconduct raised for the first time before
the trial panel26 or in a post-hearing brief in this
Court27 when we determined the appropriate
discipline. We have explained when the Bar’s
evidence strays from allegations made in a
complaint or subsequent amended complaints,
a respondent has a “burden to object to the
Bar’s proffer of improper proof and to ask for a
continuance to afford him time to meet that
issue, and a failure to object operates to waive
the error, if any, in admitting evidence that
stood in fatal variance with the complaint’s
allegations.”28 Respondent did not participate
in the trial panel hearing, had no notice allegations relating to mishandling funds would be
Vol. 87 — No. 9 — 3/26/2016
raised to enhance discipline, and made no Rule
6.4 admission that he mishandled funds. We
decline to consider the allegations of mishandling funds for enhancement of discipline, but
we do consider respondent’s previous private
reprimand for enhancement purposes.
Discipline and Costs
¶36 This Court possesses a nondelegable,
original, and exclusive jurisdiction in a Bar
disciplinary inquiry.29 The Court conducts a de
novo review of the record30 and the professional
discipline imposed is based upon the respondent’s conduct31 and any history of respondent’s professional misconduct,32 as well as
“discipline imposed upon other lawyers for
similar acts of professional misconduct.”33 In
Oklahoma Bar Ass’n v. Parker,34 we noted the
lawyer’s neglect of three clients’ legal matters,
failure to communicate properly with clients,
and a failure to return unearned fees. The
respondent in Parker violated Rules 1.1, 1.3, 1.4,
1.5, 1.16 and 8.4(c), ORPC, and Rule 1.3 and 5.2,
RGDP. In Parker, we noted for enhancement
purposes a previous private reprimand for a
violation of Rule 5.2, RGDP, where respondent
did not timely respond to one grievance. We
explained the proper discipline for respondent
was to be disbarred from the practice of law,
and compared the circumstances to State of
Oklahoma, ex rel. Oklahoma Bar Association v.
Passmore,35 and State ex rel. Oklahoma Bar Association v. McCoy.36 We noted the respondents
had failed to respond to their clients’ needs
and to the inquiries from the Bar during the
investigations of their grievances.37 In Passmore
the respondent violated Rules 1.1, 1.3, 1.4,
1.5(a) and 8.4(d) ORPC and Rules 1.3 and 5.2,
RGDP,38 and the Court imposed disbarment as
the proper discipline. In Parker, we noted the
respondent was given sufficient notice of the
grievance and he failed to provide any explanation to the Oklahoma Bar Association or this
Court regarding his lack of communication or
commitment to represent his clients.39
¶37 In the present case, respondent’s former
clients testified concerning their frustration
with respondent not appearing at hearings, not
filing required pleadings and motions, failure
to return files, keeping unearned fees, not communicating with them, and their need to hire
additional lawyers to fix situations caused by
respondent’s neglect. Because of the nature of
respondent’s professional misconduct, as
enhanced by his previous discipline, as well as
similarities of the present case with Parker and
Vol. 87 — No. 9 — 3/26/2016
Passmore, the appropriate discipline for respondent’s conduct is disbarment.
¶38 The Bar Association filed an application
for an order assessing its costs against respondent. The costs were incurred for postage, witnesses (fees and mileage), and a transcript of
the trial panel hearing. The amount of these
costs is $1,198.38. The Rules Governing Disciplinary Proceedings (Rule 6.16)40 provides the
costs of the investigation, record and disciplinary proceedings shall be surcharged against
the disciplined lawyer, unless remitted for
good cause by this Court.41 Rule 6.16 requires
the costs to be paid within ninety days of the
Court’s opinion becoming final.42 Respondent
has not provided any argument showing good
cause to remit the costs in whole or in part.
¶39 The application of the Bar Association to
assess costs against respondent in the amount
of $1,198.38 is hereby granted.
Conclusion
¶40 Respondent is disbarred from the practice of law and his name is stricken from the
Roll of Attorneys.43 Respondent is directed to
comply with Rule 9.1, RGDP,44 to notify his
“clients having legal business then pending
within twenty (20) days, by certified mail of the
lawyer’s inability to represent them and the
necessity for promptly retaining new counsel.”
He must also file a formal withdrawal as counsel in any cases pending in any tribunal and
must file an affidavit with the Professional
Responsibility Commission and the Clerk of
the Supreme Court stating his compliance with
Rule 9.1. Respondent is further directed to pay
the Bar its costs in this proceeding in the
amount of $1,198.38, within ninety (90) days of
the date of this opinion. He may seek reinstatement pursuant to Rule 11, RGDP, no earlier
than five years from the date of this opinion.45
As a precondition to reinstatement, he will be
required to demonstrate total compliance with
Rule 11, including the satisfaction of any claims
that may be made against the Client Security
Fund, if applicable. 46
¶41 ALL JUSTICES CONCUR.
EDMONDSON, J.
1. 5 O.S.2011 Ch. 1, App. 3-A, ORPC, Rule 1.1 states: “A lawyer
shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.”
2. 5 O.S.2011 Ch. 1, App. 3-A, ORPC, Rule 1.3 states: “A lawyer
shall act with reasonable diligence and promptness in representing a
client.”
581
3. 5 O.S.2011 Ch. 1, App. 3-A, ORPC, Rule 1.4 states: (a) A lawyer
shall:
(1) promptly inform the client of any decision or circumstance with
respect to which the client’s informed consent, as defined in Rule
1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which
the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the
lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the
representation.
4. 5 O.S.2011 Ch. 1, App. 3-A, ORPC, Rule 1.5(a) states: (a) A lawyer
shall not make an agreement for, charge or collect an unreasonable fee
or an unreasonable amount for expenses. The factors to be considered
in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal service
properly;
(2) the likelihood, if apparent to the client, that the acceptance of
the particular employment will preclude other employment by the
lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the
client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent.
5. 5 O.S.2011 Ch. 1, App. 3-A, ORPC, Rule 8.4 (a) states: “It is professional misconduct for a lawyer to: (a) violate or attempt to violate
the Rules of Professional Conduct, knowingly assist or induce another
to do so, or do so through the acts of another;. . . .”
6. 5 O.S.2011 Ch. 1, App. 1-A, Rule 5.2, states in part concerning a
lawyer’s response to a grievance: “ . . . who shall thereafter make a
written response which contains a full and fair disclosure of all the
facts and circumstances pertaining to the respondent lawyer’s alleged
misconduct . . . The failure of a lawyer to answer within twenty (20)
days after service of the grievance (or recital of facts or allegations), or
such further time as may be granted by the General Counsel, shall be
grounds for discipline.”
7. 5 O.S.2011 Ch. 1, App. 1-A, Rule 6.4 states: “The respondent shall
within twenty (20) days after the mailing of the complaint file an
answer with the Chief Justice. The respondent may not challenge the
complaint by demurrer or motion. In the event the respondent fails to
answer, the charges shall be deemed admitted, except that evidence
shall be submitted for the purpose of determining the discipline to be
imposed.”
8. State ex rel. Oklahoma Bar Ass’n v. Knight, 2015 OK 59, 359 P.3d
1122.
9. State ex rel. Oklahoma Bar Ass’n v. Knight, 2015 OK 59, at ¶¶ 23-25,
359 P.3d at 1130-1131.
10. State ex rel. Oklahoma Bar Ass’n v. Knight, 2015 OK 59, at ¶ 23, 359
P.3d at 1130 (discussing Rule 8.4(b), (c), & (d)).
11. State ex rel. Oklahoma Bar Ass’n v. Knight, 2015 OK 59, ¶ 25, 359
P.3d at 1131.
12. 5 O.S.2011 Ch. 1, App. 3-A, ORPC, Rule 8.4 (a) at note 5 supra.
13. See 5 O.S.1991 Ch. 1, App. 2, ORPC, Rule 8.4, “Code Comparison,” and the comparison of Rule 8.4 with former DR 1-102(A)
(1). This comparison was also distributed to members of the Oklahoma Bar in 1988 in a special edition of the Oklahoma Bar Journal on
the Oklahoma Rules of Professional Conduct. 59 O. B. J. No. 26B
(June 25, 1988) pp. 63-64.
14. See, e.g., State ex rel. Oklahoma Bar Ass’n v. Boettcher, 1990 OK 92,
798 P.2d 1077, 1078 (respondent’s stipulation that he violated DR
5-103(B) contained a stipulated conclusion that he thereby violated DR
1-102(A)(1)).
P.3d at 1130.
16. Due process requires a respondent to receive notice of the allegations of misconduct. State ex rel. Oklahoma Bar Ass’n v. Bolusky, 2001
OK 26, ¶ 8, 23 P.3d 268, 273. See also State ex rel. Oklahoma Bar Ass’n v.
Stow, 1998 OK 105, ¶ 21, 975 P.2d 869, 875 (“The Bar Association must
allege facts sufficient to put the accused lawyer on notice of the
582
charges and afford the respondent ample opportunity to defend
against the allegations.”).
17. Report of the Trial Panel, at ¶ 3, p.2 & p. 6 (S.C.B.D. No. 6306,
Dec. 14, 2015).
18. State ex rel. Oklahoma Bar Ass’n v. Minter, 1998 OK 59, ¶¶ 16-18,
22-23, 961 P.2d 208, 212, 213 (“ . . . failing to include in the complaint
the allegations on which the private reprimands were based, there is
no evidence that the Respondent was prejudiced by this omission. . .
the complaint was sufficient to alert the Respondent that the two private reprimands could be used as enhancement of his discipline . . .the
Respondent was fully informed of the consequences of agreeing to a
private reprimand before the Commission . . . Respondent was
informed that the two private reprimands before the Commission
would be ‘preserved and ... considered in any future disciplinary proceeding against [him]’ . . . the Respondent’s due process rights are not
violated by the use of his previous two private reprimands.”).
19. Mishandling a client’s funds or property is often analyzed
using three different and well-known culpability standards: (1) commingling (a lawyer should keep separate the property of the client and
the lawyer’s own property), simple conversion (a lawyer must apply a
client’s money of property for the specific purpose entrusted to the
lawyer), and (3) misappropriation (theft by conversion or otherwise of
the client’s funds or property by the lawyer). State ex rel. Oklahoma Bar
Ass’n v. Combs, 2007 OK 65, ¶¶ 14-16, 175 P.3d 340, 346-347; State ex rel.
Oklahoma Bar Ass’n v. Johnston, 1993 OK 91, 863 P.2d 1136, 1144.
20. Shorter v. Tulsa Used Equipment and Industrial Engine Services,
2006 OK 72, n. 8, 148 P.3d 864, 868. See also Merrill on Notice, § 35 (1952),
citing Federal Life Ins. Co. v. Whitehead, 1918 OK 324, 174 P. 784, 790, for
the proposition that a waiver is the relinquishment of a known right
and a notice is information of a condition affecting an existing right.
21. 5 O.S.2011 Ch. 1, App. 1-A, RGDP, Rule 6.5:
After the complaint has been filed, the General Counsel may
amend the complaint to add or delete allegations as permitted under
the general rules of civil procedure, subject to the respondent’s right to
file an answer within twenty (20) days after such amendment.
22. See State ex rel. Oklahoma Bar Ass’n v. Eakin, infra, at note 28, and
accompanying text.
An obvious similarity in civil procedure is that a default judgment
may not be properly granted on causes of action beyond those framed
by the pleadings. See, e.g., Reed v. Scott, 1991 OK 113, 820 P.2d 445, 447,
20 A.L.R. 5th 913, explaining La Bellman v. Gleason & Sanders, Inc., 1966
OK 183, 418 P.2d 949, 953-954 (“We found that the judgment roll, on its
face, revealed that a portion of the default judgment was beyond the
issues framed by the pleadings, and that the trial court lacked the
power to render a part of the particular default judgment.”). While
pleadings may be amended to conform to evidence, In re Guardianship
of Stanfield, 2012 OK 8, n. 52, 276 P.3d 989, 1001, the Court has disapproved of a trial-by-ambush “in which a party is surprised and then
not given a reasonable time to effectively defend itself.” Corman v. H-30
Drilling, Inc., 2001 OK 92, ¶ 13, 40 P.3d 1051, 1054.
23. State ex rel. Oklahoma Bar Ass’n v. Eakin, 1995 OK 106, 914 P.2d
644, 649 (“The fundamentals of due process are applicable in lawyer
disciplinary proceedings.”).
P.3d 1122, 1132 (“When the Bar seeks enhancement of discipline based
upon former discipline it must allege the former discipline for the
purpose of enhancement to give notice to the respondent. Pleading the
prior discipline in the Complaint gives notice to a respondent that the
prior discipline may be used for enhancement purposes.”).
25. State ex rel. Oklahoma Car Ass’n v. Minter, 2001 OK 69, ¶ 23, 37
P.3d 763, 773-774.
26. State ex rel. Oklahoma Bar Ass’n v. O’Neal, 1993 OK 61, 852 P.2d
713, 716 (testimony that respondent represented two clients while
under a suspension of his Bar license, and “[t]hese two representations
were not addressed in [the] complaint, and the respondent was not
notified that he would be charged with any violation in conjunction
with these representations . . . and because these rules were not followed [Rule 6.2(Complaint) and Rule 6.5 (Amended Complaint)], this
Court declines to act on this allegation.”)
27. State ex rel. Oklahoma Bar Ass’n v. Combs, 2007 OK 65, n. 48, 175
P.3d 340, 350 ( “The Bar in its Reply Brief in Chief asserted violations
of additional rules . . . ‘The fundamentals of due process are applicable
in lawyer disciplinary proceedings. The Bar must allege facts sufficient
to put the accused lawyer on notice of the charges and afford the
respondent ample opportunity to defend against the allegations.’ . . .
We find that Combs was not placed on notice of these charges and
therefore refrain from ruling on the alleged violations.”).
28. State ex rel. Oklahoma Bar Ass’n v. Eakin, 1995 OK 106, 914 P.2d
at 650.
29. State ex rel. Oklahoma Bar Ass’n v. Mothershed, 2011 OK 84, ¶ 33,
264 P.3d 1197, 1210.
Vol. 87 — No. 9 — 3/26/2016
30. State ex rel. Oklahoma Bar Ass’n v. Clausing, 2009 OK 74, ¶ 4, 224
P.3d 1268, (the Court examines de novo the relevant facts to determine
whether discipline is warranted and what sanction, if any, is to be
imposed for a lawyer’s misconduct).
31. Our opinions “have consistently recognized that the facts and
circumstances of each case will dictate its resolution.” State ex rel. Oklahoma Bar Ass’n v. Conrady, 2012 OK 29, ¶ 11, 275 P.3d 133, 138.
32. State ex rel. Oklahoma Bar Ass’n v. Bolton, 1994 OK 53, 880 P.2d
339, 345 (if respondent’s history “should reveal a pattern of misconduct, it will be a factor in tailoring the appropriate discipline.”).
33. State ex rel. Oklahoma Bar Ass’n v. Layton, 2014 OK 21, ¶ 30, 324
P.3d 1244, 1256.
34. 2015 OK 65, 359 P.3d 184.
35. Parker, 2015 OK 65, at ¶ 20, citing State of Oklahoma, ex rel. Oklahoma Bar Ass’n v. Passmore, 2011 OK 90, 264 P.3d 1238.
36. Parker, 2015 OK 65, at ¶ 20, citing State ex rel. Oklahoma Bar Ass’n
v. McCoy, 1996 OK 27, 912 P.2d 856.
37. Parker, 2015 OK 65, at ¶ 20.
38. Passmore, 2011 OK 90, at ¶¶ 12-14, 264 P.3d at 1242-1243.
39. Parker, 2015 OK 65, at ¶ 19.
40. 5 O.S. 2011 Ch. 1, App. 1-A, RGDP, Rule 6.16, Rules Governing
Disciplinary Proceedings: “The costs of investigation, the record, and
disciplinary proceedings shall be advanced by the Oklahoma Bar
Association (or the Professional Responsibility Commission, if provision therefor has been made in its budget). Where discipline results,
the cost of the investigation, the record, and disciplinary proceedings
shall be surcharged against the disciplined lawyer unless remitted in
whole or in part by the Supreme Court for good cause shown. Failure
of the disciplined lawyer to pay such costs within ninety (90) days after
the Supreme Court’s order becomes effective shall result in automatic
suspension from the practice of law until further order of the Court.”
P.3d 1122, 1133; State ex rel. Oklahoma Bar Ass’n v. Demopolos, 2015 OK
50, ¶ 40, 352 P.3d 1210, 1222.
42. State ex rel. Oklahoma Bar Ass’n v. Knight, supra; State ex rel. Oklahoma Bar Ass’n v. Demopolos, supra.
43. 5 O.S.2011 Ch. 1, App. 5, Rules Governing Admission to the
Practice of Law in the State of Oklahoma, Rule 1, “Qualifications to
Practice Law in Oklahoma,” states in part: “To be admitted to the
practice of law in the State of Oklahoma, the applicant: . . . shall have
signed the Roll of Attorneys . . . .”
44. 5 O.S.2011 Ch. 1, App. 1-A, RGDP, Rule 9.1 states:
When the action of the Supreme Court becomes final, a lawyer
who is disbarred or suspended, or who has resigned membership
pending disciplinary proceedings, must notify all of the lawyer’s clients having legal business then pending within twenty (20) days, by
certified mail, of the lawyer’s inability to represent them and the necessity for promptly retaining new counsel. If such lawyer is a member of,
or associated with, a law firm or professional corporation, such notice
shall be given to all clients of the firm or professional corporation,
which have legal business then pending with respect to which the
disbarred, suspended or resigned lawyer had substantial responsibility. The lawyer shall also file a formal withdrawal as counsel in all cases
pending in any tribunal. The lawyer must file, within twenty (20) days,
an affidavit with the Commission and with the Clerk of the Supreme
Court stating that the lawyer has complied with the provisions of this
Rule, together with a list of the clients so notified and a list of all other
State and Federal courts and administrative agencies before which the
lawyer is admitted to practice. Proof of substantial compliance by the
lawyer with this Rule 9.1 shall be a condition precedent to any petition
for reinstatement.
45. 5 O.S.2011 Ch. 1, App. 1-A, RGDP, Rule 11.1 states in part:
A person whose name has been stricken from the Roll of Attorneys
for non-payment of dues, or who has been suspended from the practice of law for a period of longer than two (2) years or disbarred, or
who has resigned membership in the Association, may be readmitted
to the practice of law only through the following procedures: . . . (e)
The applicant shall not be permitted to file an application for reinstatement, after disbarment or resignation pending investigation or disciplinary proceedings, within five (5) years of the effective date of the
order of the Court disbarring the applicant or accepting the resignation, nor shall any applicant be permitted to file an application for
reinstatement within one (1) year after the Supreme Court has denied
an earlier application.”
46. 5 O.S.2011 Ch. 1, App. 1-A, RGDP, Rule 11.1(b) states:
“A person whose name has been stricken from the Roll of Attorneys for non-payment of dues, or who has been suspended from the
practice of law for a period of longer than two (2) years or disbarred,
or who has resigned membership in the Association, may be readmitted to the practice of law only through the following procedures: . . .
(b) If any funds of the Client’s Security Fund of the Oklahoma Bar
Vol. 87 — No. 9 — 3/26/2016
Association have been expended on behalf of the applicant, the applicant must show the amount paid and that the same has been repaid to
the Oklahoma Bar Association to reimburse such Fund.”
2016 OK 20
YAUMARY CONCEPCION TORRES,
Petitioner, v. SEABOARD FOODS, LLC,
AMERICAN ZURICH INS. CO., and THE
WORKERS’ COMPENSATION
COMMISSION, Respondents.
No. 113,649. March 1, 2016
APPEAL FROM THE OKLAHOMA
WORKERS’ COMPENSATION
COMMISSION
¶0 Petitioner (employee) filed a workers’
compensation claim for a cumulative-trauma injury pursuant to the Administrative
Workers’ Compensation Act, Oklahoma
Statutes, Title 85A, Section 2(14). The
administrative law judge, T. Shane Curtin,
determined employee was barred from
obtaining any workers’ compensation remedy because when she filed her claim she
had not worked a continuous 180-day
period for her employer. The administrative order was appealed to the Workers’
Compensation Commission, and the Commission affirmed the order of the administrative judge. Employee appealed the
Commission’s order to the Supreme Court
and the Court retained the appeal. We
hold: 85A O.S. § 2(14) violates the Due
Process Section of the Oklahoma Constitution, Art. 2 § 7, when applied to employee
because the statute’s overinclusive and
underinclusive classifications are not rationally related to legitimate State interests of
(1) preventing workers’ compensation
fraud and (2) decreasing employers’ costs.
ORDER OF WORKERS’ COMPENSATION
COMMISSION REVERSED; PROCEEDING
REMANDED FOR FURTHER
PROCEEDINGS
Bob Burke, Oklahoma City, Oklahoma, for
Petitioner.
Juan Maldonado, Oklahoma City, Oklahoma,
for Petitioner.
Connie M. Wolfe, Connie M. Wolfe & Associates, P.L.L.C., Oklahoma City, Oklahoma, for
Respondent, Seaboard Foods, L.L.C.
V. Glenn Coffee and Denise K. Davick, Oklahoma City, Oklahoma, for Amicus Curiae, State
Chamber of Oklahoma.
583
II. Workers’ Compensation Statutes Raised
by the Parties
EDMONDSON, J.
I. Introduction
¶1 Petitioner, a former employee, filed a
workers’ compensation claim and alleged she
was injured on-the-job and needed surgery.
Her former employer (employer) argued that
she was barred from receiving workers’ compensation because she alleged a cumulativetrauma injury and she had not worked a continuous 180-day period for that employer. The
administrative law judge denied her claim
because she had not worked the 180-day period. The Workers’ Compensation Commission
affirmed the order of the administrative judge.
¶2 Employer also argues on appeal petitioner has no right to file either a workers’ compensation claim or seek a common-law remedy in
a District Court. Employer asserts petitioner
has no legal right or remedy to receive any
type of compensation or medical care from her
employer in any form. Employer argues petitioner has no right to an opportunity to prove
her claim of injury before any court or any
administrative agency. Employee argues her
employer is making an unconstitutional application of workers’ compensation statutes.
¶3 Because the employee challenged the constitutionality of 85A O.S. §§ 2(14) & 5, this
Court issued an order providing the Oklahoma
Attorney General, Speaker of the House of
Representatives, and the President Pro Tempore an opportunity to intervene by filing
entries of appearance herein and briefing
issues. They did not intervene and file briefs.
The amicus curiae, State Chamber, filed a brief
in support of the constitutionality of the challenged statutes.
¶4 Several decades of court precedent from
both the U.S. Supreme Court and the Oklahoma Supreme Court on the subject of how state
and federal statutes interact with State and
Federal Due Process constitutional provisions
clearly show an unconstitutional application of
a workers’ compensation statute by employer
in the matter before the Court. We hold 85A
O.S. § 2(14) violates the Due Process Section of
the Oklahoma Constitution, Art. 2 § 7, when
applied to employee because the statute’s
overinclusive and underinclusive classifications are not rationally related to legitimate
State interests of (1) preventing workers’ compensation fraud and (2) decreasing employers’
costs.
584
¶5 Two workers’ compensation statutes are
used by employer in support of its argument:
85A O. S. Supp. 2013 § 2(14) & § 5. The first
defines cumulative trauma based upon repetitive physical activities and adds a condition
requiring an employee to have completed one
hundred eighty (180) days of continuous
employment.
14. “Cumulative trauma” means an injury to an employee that is caused by the
combined effect of repetitive physical
activities extending over a period of time in
the course and scope of employment.
Cumulative trauma shall not mean fatigue,
soreness or general aches and pain that
may have been caused, aggravated, exacerbated or accelerated by the employee’s
course and scope of employment. Cumulative trauma shall have resulted directly
and independently of all other causes and
the employee shall have completed at least
one hundred eighty (180) days of continuous active employment with the employer;
85A O.S.Supp. 2013 § 2 (14).
Employer argues that two reasons exist for an
employee to work 180 continuous days as a
condition to receive workers’ compensation.
The first, “It is reasonable to conceive that a
worker who has worked for a significant period of time is more likely to have sustained an
injury, while a worker who works for a shorter
period did not. . . [and the 180-day requirement] places reasonable qualifications on what
a compensable injury is, and what it is not.”1
This argument may be reduced to the simple
statement that the Legislature’s role includes
determining what constitutes a compensable
injury.
¶6 The second argument is that preventing
fraud and controlling economic concerns are
legitimate State interests, and the Legislature
has a role in preventing fraud and advancing
economic interests by decreasing employers’
costs. The brief of amicus curiae provides rankings from different states based upon costs for
workers’ compensation insurance premiums,
but it does so using a rule-prohibited Brandeis
brief method.2 However, amicus curiae’s argument supporting a legislative decrease in
employers’ costs as a legitimate State interest
may be considered apart from the Brandeis brief
facts. This is so because employer’s argument
Vol. 87 — No. 9 — 3/26/2016
concerning employers’ costs is sufficiently broad
to fairly include employers’ costs associated
with workers’ compensation insurance.
¶7 Employer makes the following argument:
This limitation bears a rational relationship to a legitimate State interest. Preventing
fraud is a legitimate state interest. Placing a
requirement that an employee work for a
period of time before qualifying for a compensable injury ensures that frivolous claims
and fraudulent allegations are controlled.
Respondent’s Answer Brief, at pp. 5-6.
Amicus curiae similarly argues that the 180-day
period is a “durational requirement . . . necessary to define the bounds of the injury . . . [and
the] exposure requirement merely serves to
ferret out fraudulent claims and ensure that the
injury claimed is fairly attributable to the period of employment.”3
¶8 Employee recognizes that legitimate State
interests include legislation to prevent fraud
and advance economic interests. Employee
also recognizes the Legislature’s role in creating workers’ compensation laws. Employee
argues that § 2(14) class of employees who
work less than 180 days is a statutory class that
violates the Due Process section of the Oklahoma Constitution, Okla. Const. Art. 2 § 7.4
¶9 Employer also argues that employee is
barred from bringing a District Court action
against her former employer. Employer relies
upon 85A O.S. Supp. 2013 § 5.5 Paragraph “C”
of § 5 states: “The immunity from civil liability
described in subsection A of this section shall
apply regardless of whether the injured
employee is denied compensation or deemed
ineligible to receive compensation under this
act.” Employer argues that although employee
is not eligible to bring a workers’ compensation claim because of the 180-day requirement
of § 2, employee is also barred from bringing
an action in a District Court.
¶10 Employee argues that when the workers’
compensation statutes were originally created
in several States a grand bargain was created.
This bargain consisted of an injured worker
relinquishing a common-law right to bring an
action in a District Court against the worker’s
employer and the worker gained more certain
statutory compensation but the compensation
was less in amount. On the other hand, the
employer relinquished certain common-law
Vol. 87 — No. 9 — 3/26/2016
defenses in a District Court action and gained
an economic liability that was less and fixed by
statute.6 Employee argues that statutorily barring both a workers’ compensation remedy
and a District Court remedy violates the grand
bargain and the Oklahoma Constitution. She
argues for a right to proceed against her
employer by an action filed in a District Court.
¶11 This Court has a fundamental duty to
ascertain and give effect to, or enforce, the Legislature’s intent expressed in any statute the
Legislature creates.7 If the language of the statute is plain and unambiguous, the legislative
intent is deemed to be expressed by the statutory language.8 Rules of construction are
applied to determine legislative intent when
the statutory language is ambiguous.9 We first
examine § 2(14) and conclude its language is
not ambiguous, and apply the meaning of § 2
prior to examining § 5.
¶12 The employee in this controversy alleges
a cumulative trauma injury occurred, in fact,
during less than 180 continuous days of
employment. Respondent and amicus curiae do
not assert that § 2 (14) is a legislative determination that a cumulative injury does not, or
cannot, in fact occur during the first 180 days of
a person’s employment. They agree that cumulative trauma is an injury “caused by the combined effect of repetitive physical activities
extending over a period of time in the course and
scope of employment.” The brief of amicus curiae
emphasizes this language to show that cumulative injury occurs during a period of time.
¶13 Respondent and amicus curiae appear to
agree that the statutory language would not
prohibit an employee from filing a cumulative
trauma claim on the 181st day of employment,
where the claim would be based upon repetitive and cumulative trauma occurring for a
period of time during the previous 180 days of
employment. The language requiring 180 days
of employment is thus not construed as defining the nature of an injury, but a condition
required to file a claim against an employer in
addition to the employee having suffered an
injury. As explained by amicus curiae, “the Legislature . . . delineated a particular number of
days that an individual must be employed
prior to filing a claim for an injury that was
sustained by ‘repetitive physical activities,’” or
the “legislative state purpose” of the 180-day
requirement is that “an individual be employed
for a certain length of time prior to subjecting
the employer to a claim for a repetitive injury.”
585
¶14 Respondent and amicus curiae also characterize the 180-day employment language in §
2(14) as one element defining “cumulative
trauma.” Construing the language as part of a
definition for cumulative trauma versus viewing it as a condition for filing a claim does not
help employer’s legal position. Regardless
whether the language is part of the definition
of a cumulative trauma or a condition for filing
a claim in addition to defining trauma based
upon repetitive injury, the statute is determining as a matter of law a class of employees who
are prohibited from filing a workers’ compensation claim although they may have suffered,
in fact, a repetitive injury arising out of the
course and scope of employment.10 The language in § 2(14) cannot be read as creating an
irrebutable presumption that no cumulative
trauma repetitive injury can occur, as a matter of
fact, during the 180-day period.11
¶15 We agree with respondent that § 2 (14)
does not define a cumulative trauma as an
injury which has necessarily been repeated
every day for 180 days. Section § 2(14) clearly
imposes a duration-of-employment condition
as a necessary predicate for filing a cumulative
trauma workers’ compensation claim.
¶16 The language of § 2(14) creates two
classes of employees alleging a cumulative
trauma injury. The first class are those employees who allege, in fact, they have suffered a
cumulative trauma compensable injury during
the first 180 days of employment and who may
file a claim for compensation on or after the
181st day of continuous employment. The second class are those employees who allege, in
fact, they have suffered a cumulative trauma
compensable injury during the first 180 days of
employment and who are barred by § 2 (14)
from filing a workers’ compensation claim
because they have not completed 180 days of
continuous employment. Employee alleges she
is in this latter class of employees, and that the
duration-of-employment predicate for filing a
workers’ compensation claim in § 2(14) is
unconstitutional because she is an injured
worker innocent of the evil that § 2(14) was
designed to address.
III. Employee’s Burden to Show
Unconstitutionality
¶17 A constitutional analysis begins with the
well-known judicial recognition that the Oklahoma Legislature is constitutionally vested by
Article 5 § 3612 of our Constitution with a
586
supreme legislative power extending to all
rightful subjects,13 and the presumed constitutionality of a legislative enactment is rebutted
only when either the State Constitution or federal law prohibits that enactment.14 When this
Court examines a legislative enactment it tries
to construe and apply it in a manner that avoids
conflict with our Constitution and give the
enactment the force of law.15 The burden to show
the presence of a constitutional flaw in a statute
is on the party who asserts its unconstitutionality.16 A court’s function, when the constitutionality of a statute is put at issue, is limited to a
determination of the validity or invalidity of the
statute17 with respect to a party in the controversy who is aggrieved by application of the
challenged statute.18
IV. Employer’s Reliance on United States
R.R. Retirement Bd. v. Fritz
¶18 Respondent and amicus curiae argue a
legislative body need not state its reason for
creating legislation and a legislative right or
remedy is solely within the discretion of the
legislative body. They conclude these principles
make employee’s claims without merit. We
address this argument first because if they are
correct then their argument would be outcome
determinative on the constitutional issues raised
by the employee. However, as we explain, we
conclude their argument is insufficient.
¶19 Employer relies upon the U.S. Supreme
Court opinion in United States R.R. Retirement
Bd. v. Fritz,19 for the principles that (1) a legislative body does not need to state its reasons for
creating a statute, and (2) when the right
involved is purely a statutory benefit such as a
railroad retirement benefit, a benefit within the
legislative grace of Congress, as in United States
R.R. Retirement Bd., the proper decision-maker
for drawing the line, or creating the classification is a legislative body. Employer expands
upon this latter principle and argues that the
Legislature has the power to determine what
type of injury “qualifies as [a] compensable
injury . . . The fact that an employee working
120 days falls on one side of the line and an
employee working 180 days falls on the other
side is not relevant.”20
¶20 Amicus curiae makes a similar argument
explaining that the Legislature has “the authority to prescribe rights and remedies for addressing occupational injuries,” and quotes Adams v.
Iten Biscuit Co.,21 for the proposition that the
creation of workers’ compensation statutes are
Vol. 87 — No. 9 — 3/26/2016
within the police power of the Legislature.
While this Court agrees with United States R.R.
Retirement Bd., and its principles, our agreement does not lead to the conclusion of respondent and amicus curiae that the challenged
statutes must necessarily be constitutional.
¶21 Addressing the first cited principle from
United States R.R. Retirement Bd., we agree the
Legislature is not required to explain its reasons for creating a statute or expressly state
that it has a particular intent when crafting legislation. But this Court has a fundamental duty
to ascertain and give effect to, or enforce, the
Legislature’s intent expressed in any statute
the Legislature creates.22 In cases not involving
the constitutionality of a statute, a court is
required to determine legislative intent and the
meaning of the statutory language and then
apply that meaning to the issues in controversy.23 While language indicating legislative
intent informs and assists a court with determining what a legislature is attempting to
accomplish by legislation, a court’s constitutional analysis must be based upon what the
legislation actually accomplishes by that which is
created by the statute, and not by what a legislature states it is accomplishing. Obvious
examples include, whether a payment is a
“tax” or a “license fee” is not determined by
the name given it by legislation,24 a gift of public funds to a private entity for a nonpublic
purpose may not be made constitutional by
legislation stating that the transaction is something other than a prohibited gift,25 and legislation collecting funds from the public as part of
a tax code are State funds although legislation
states they are not funds belonging to the
State.26 These examples are not novel and
reflect the long-recognized principle that a
court’s constitutional analysis of a statute is based
upon what the statute actually accomplishes
and not solely by a characterization given to
the statute by a legislative body.27 Parties in a
controversy advocate legal positions relating to
the scope or application of legislation. A court’s
function requires it to examine and adjudicate
that issue regardless whether the Legislature
has expressly articulated its reasons for creating a statute, and when the Legislature has
stated its reasons the Court must examine
them in relation to any constitutional provision
raised by any party in the controversy.
¶22 Addressing the second cited principle
from United States R.R. Retirement Bd., and as
we explain more fully herein, an argument
Vol. 87 — No. 9 — 3/26/2016
which relies on the power of a legislative body
to create or abolish statutory rights and remedies as proof that a statutory classification is
rational, is an argument that not only contains
a fallacy28 or an insufficient generality,29 but is
also historically-discredited insufficient legal
reasoning, including in circumstances where a
legislative police power has been exercised. We
address this issue within the context of the
employee’s due process claim.
V. Employee’s Claim that the Due Process
Section of the Oklahoma Constitution is
Violated by Application of 85A O.S.
Supp. 2013 § 2(14) & § 5
¶23 Due process often has been explained by
this Court in opinions discussing both the
Fourteenth Amendment’s30 Due Process Clause
and Oklahoma’s Due Process Section in the
Oklahoma Constitution. The Oklahoma Due
Process Section31 provides a bundle of rights
and one or more of those rights may be in addition to a right provided by the Due Process
Clause of the Fourteenth Amendment to the
U.S. Constitution.32 However, because (1) the
Oklahoma Due Process Section is coextensive
with and protects, at a minimum, those rights
which are also provided by the Fourteenth
Amendment,33 and (2) we hold herein that the
substantive due process minimum is violated
by employer’s construction and application of the
challenged statutes to the petitioner; we need
not address whether the Oklahoma Due Process Section has a substantive due process
component broader in scope than its federal
counterpart in the Fourteenth Amendment.34
¶24 One hundred years ago, the U.S. Supreme
Court indicated that the Federal Due Process
Clause “would likely bar states from abolishing entirely rights of action on behalf of
employees suffering physical harm because of
wrongs attributable to employers.”35 Some
authors have argued that between approximately 1870 and 1920 the U.S. Supreme Court
understood the Federal Due Process Clause as
setting (1) a ceiling with limits for expanding a
cause of action and creating additional liability
for one party when a legislature attempted a
naked redistribution of wealth and (2) a floor
with constitutional limits on abolishing a cause
of action when the legislature deprived an
individual of an opportunity to vindicate a
basic interest, such as a right to personal bodily
integrity that traditionally has been enforceable against others who invade that right.36
587
¶25 Then the High Court had a period where
it developed a rational-basis review used for
challenges to legislation that was characterized
as social and economic in its application and
not impacting a personal fundamental right.37
Consistent with this approach the Oklahoma
Supreme Court has also stated and applied a
rational-basis standard of review for due process challenges to enactments classified as
“economic legislation.”38 However, while the
High Court gave a more legislatively deferential constitutional review of legislation involving economic regulation, it also advanced a
less deferential review of legislation which
acted to restrict a person’s constitutionally protected liberty interests.39 For example, fifty
years ago one author commented on the inaccuracy of a court using a rational-basis standard
for economic legislation when such legislation
also diminished a constitutionally protected personal right, and argued that such legislation
received a judicial review that was less deferential than a legislatively deferential rationalbasis review.40
¶26 One well-known principle is that a legislature’s authority to create or abolish a right or
benefit does not mean that the legislature has
the authority to create an unconstitutional condition related to that right or benefit.41 Other
well-known and simple principles demonstrating our required analysis are: (1) a Legislature’s
exercise of a police power has been historically
recognized42 as subject to limits expressed by
the Will of the People in provisions of the Oklahoma Constitution prohibiting unreasonable
and arbitrary legislation, (2) constitutional limits
on police power continue to this day,43 and (3)
these limits are applicable to any exercise of governmental legislative power (including legislative power exercised by a municipality or quasilegislative power exercised in the form of an
administrative rule).44 The legislation in this
controversy does more than merely identify
what employees are covered by workers’ compensation or define a statutory cause of action;
and doing so in both overinclusive and underinclusive form makes the legislation unconstitutional.
¶27 When the Legislature exercises a police
power, such exercise “is an attribute of state
sovereignty . . . [and] an inherent power of the
state legislature that extends to the whole system of internal regulation by which the state
preserves public order, prevents offenses
against the state, and insures to the people the
enjoyment of rights and property reasonably
588
consistent with like enjoyment of rights and property by others.”45 Our more modern expressions
of this historically recognized constitutional
limitation on police power have explained that
a court must examine whether legislation is
rationally related to a legitimate government
interest and if the challenged legislation reasonably advances that interest.46 This analysis
requires an adjudication whether a legitimate
State interest exists47 and whether it is rationally related to the legislation.
¶28 We recently noted the nature of this
review when we quoted an opinion from 1977
which in turn quoted an opinion from 1930.
It is well settled that the state, or its agents,
in the exercise of its police power can
extend this power only to such measures as
are reasonable under all the circumstances.
The means adopted must bear some real
and substantial relation or be reasonably necessary for the accomplishment of a legitimate
object falling within the scope of the police
power, and the law or regulation must tend
toward the preservation of public welfare,
health, safety, or morals.
Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, ¶ 52,
148 P.3d 842, 857 quoting Suntide Inn Operating
Corp. v. State, 1977 OK 204, 571 P.2d 1207, 1210,
quoting Gibbons v. Missouri, K. & T. R. Co., 1930
OK 108, 285 P. 1040.
A court determines (1) if there is a legitimate
government interest (a) articulated in the legislation or (b) championed by the parties or (c)
expressed by a recognized public policy in support of the legislation, and (2) if that interest is
reasonably advanced by the legislation. We
have expressed often this two-part test in a
negative form when explaining an unconstitutional exercise of the police power is an arbitrary and capricious exercise of power; i.e., the
exercise of legislative power is unconstitutional when it was not reasonably devoted to a
legitimate interest or end, or when the legitimate police-power interest was not regulated
within reasonably necessary means for the
identified State interests.48
¶29 In due process jurisprudence involving
whether a legitimate state interest exists, a
court’s analysis will generally be less intrusive
upon an exercise of legislative discretion when
the legislation is economic in nature. For many,
an unforgivable jurisprudential error of Lochner
was the Court substituting its own judgment for
that of a legislative body on an economic issue49
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with the Court deciding that the State’s interest
was not a legitimate economic interest.50 There
are, of course, some circumstances where courts
examine the legitimacy of the state’s interest in
economic legislation,51 but the High Court does
not have a history of creating bright-line tests for
defining legitimate state interests.52 Our Court
frequently has been called upon by parties to
make such a determination.53
¶30 There is little doubt that a state legislature may alter private contractual rights of
employers and employees when it properly
exercises its police power in creating a particular workers’ compensation law,54 or that workers’ compensation laws, by themselves, have
been considered by courts as a legitimate State
interest since the compensation laws were first
created.55 In our case today, we do not repeat
Lochner’s error of improperly rejecting an articulated economic interest of the State. We accept
for the purpose of the arguments made herein,
respondent’s articulated State interest as legitimate in this case, i.e., the prevention of workers’ compensation fraud and the decrease in an
employer’s costs as a result of legislative effort
to prevent fraud.56
¶31 The Due Process Section of the Oklahoma Constitution includes an equal protection
element.57 Respondent and amicus curiae rely
upon Gladstone v. Bartlesville Indep. School Dist.
No. 30,58 and argue for the Court to use an equal
protection rational-basis review of § 2(14) and
§ 5. Many substantive due process violations
based upon impermissible underinclusive/
overinclusive classifications may also support
an equal protection claim.59
¶32 When a due process or equal protection
challenge is made because a statute creates different classes of people with different legal
rights, a legal analysis will often discuss whether the statute’s classification is underinclusive
(statute includes too few people in its created
class) or if the classification is overinclusive
(too many people are included in the statutory
class). Generally, the U.S. Supreme Court has
upheld an underinclusive statute regulating
solely an economic matter when only a portion
of the identified evil has been regulated,60 but
where the government is required to narrowly
tailor its classification the concept of underinclusiveness may be used to show the lack of a
compelling government interest sufficient to
make the statutory classification constitutional.61 A mere overinclusiveness or underinclusiveness in statutory classification will not
Vol. 87 — No. 9 — 3/26/2016
necessarily show a failure to satisfy a rationalbasis review.62
¶33 If a police-power statute is overinclusive
and prohibits both wrongful conduct by people and innocent conduct by others, then
overinclusiveness by including the innocent
may be used to show the arbitrary nature of the
classification created by the statute. In the 1951
case of Board of Regents v. Updegraff,63 we explained that when the police power is used the
acts of the Legislature are valid so long as they
are not unreasonable, arbitrary, and capricious
and do not violate any of the fundamental constitutional guaranties of the State and Federal
Constitutions.64 When this opinion was reversed on a different ground by the U.S.
Supreme Court in Wieman v. Updegraff, the
High Court applied a similar test and held due
process was violated by a loyalty-oath statute
that arbitrarily failed to distinguish between
persons whose membership activities in certain organizations were innocent and those
whose activities were based upon knowledge
of the organizations’ purposes.65
¶34 The distinction made in Wieman is noteworthy because it has been applied by courts
to legislation in the nature of business regulation, and both respondent and amicus curiae
argue that the legislation should be treated as
economic and business related. For example, in
the 1951 opinion of Adwon v. Retail Grocers
Ass’n, we noted our prior opinion in 194966
which held the1941 Unfair Sales Act unconstitutional for the reason that it violated the state
and federal constitutions by punishing for a
sale for less than cost regardless of any wrongful intent by an innocent party. The Legislature
subsequently deleted the unconstitutional language and the amended Act was before the
Court in Adwon. A party made a claim that the
Unfair Sales Act violated due process of law
and relied upon opinions from Pennsylvania
and New Jersey, which the Court rejected and
explained that those opinions, like the former
Oklahoma Act, impermissibly made no distinction in the scope of the Act between innocent
conduct by individuals and those individuals
committing the improper conduct the Act was
designed to address by the exercise of a police
power.67
¶35 We agree with respondent and amicus
curiae that decisions concerning public policy
in creating and abolishing causes of action are
routinely within the judgment of the Legislature.
This Court has a long history of recognizing the
589
Legislature’s general police power to alter private personal rights in contexts of creating or
abolishing a cause of action. For example, in
Davis Oil Co. v. Cloud,68 while the members of the
Court were not unanimous in characterizing the
legal interests altered by the then recently enacted Oklahoma Surface Damages Act,69 the Justices joining the Court’s opinion and the four
dissenting Justices all agreed that the Legislature
has the power to change private property or
rights of a person when the change is within a
proper exercise of the Legislature’s police powers.70
However, the U.S. Supreme Court has recognized substantive due process limitations on
state law arbitrarily increasing a person’s legal
liability. In the 1996 case of BMW of North
America, Inc. v. Gore,71 and the 2003 case of State
Farm Mut. Auto. Ins. Co. v. Campbell,72 the High
Court held that excessive damages violated the
substantive component of the Due Process
Clause, i.e., this constitutional provision provided a ceiling above which damages could
not be awarded. In these cases the Court recognized the legitimate state interests in awarding
punitive damages, but excessive damages were
held to constitute an arbitrary deprivation of
property.73
¶36 In BMW, punitive damages were awarded
to punish the defendant’s business practices,
and the Court used a substantive component of
due process in holding that the excessive nature
of the damages were not “reasonably necessary
to vindicate the State’s legitimate interests” in
punishing the prohibited business practices.74
Although the Court’s opinions in BMW, supra,
and State Farm Mut. Auto. Ins. Co., supra, have
the effect of using substantive due process to
establish a due process ceiling, the Court has
not recently used substantive due process to
state that the extinguishment of a cause of
action violates a due process floor of minimum
requirements. However, it is clear that a State’s
legitimate interests in regulating business practices are not exempt from the requirements of
substantive Due Process. The Court essentially
held that the imposition of arbitrarily imposed
economic liability violated due process. When
the Legislature decreases workers’ compensation liability (and costs) for the class of employers by barring an injured employee from filing
a claim, such legislation also increases potential economic liability to employees and
increased economic risk allocation by a diminished duty owed to the employees. In other
words, the creation of an arbitrarily designed
employer immunity by shifting economic loss
590
to an innocent injured employee would also
violate State and federal Due Process.
¶37 Is prohibiting injured workers from filing a claim for cumulative trauma during the
first 180 days of employment reasonably necessary (or a nonarbitrary classification) to vindicate the State’s legitimate interest in preventing
fraudulent workers’ compensation claims?75 In
other words, is barring an injured employee
from filing a cumulative trauma claim during
the first 180 days of employment an arbitrary
method to vindicate the State’s interest in preventing fraudulent claims?
¶38 In Jimenez v. Weinberger, the U.S. Supreme
Court addressed the issue of a statute created
for the purpose of avoiding or stopping Social
Security Act “spurious claims” by creating two
classes of claimants.76 In addition to denying
one class of claimants eligibility for a benefit,
the statute also “denies them any opportunity
to prove dependency in order to establish their
‘claim’ to support and, hence, their right to
eligibility.”77 In Jimenez, a statutory class of
people was created for the purpose of stopping
fraudulent claims and these people were
denied the opportunity to show that their
claims were legitimate and nonfraudulent.
¶39 Similar to Jimenez, § 2(14) creates two
classes of employees with cumulative trauma
injuries for the purpose of avoiding or stopping
spurious (or fraudulent) workers’ compensation
claims, one class is entitled to compensation and
another class is not. Also similar to Jimenez, §
2(14) individuals are denied the opportunity to
establish their claims and their right to receive
compensation for injuries arising out of the
course and scope of employment, i.e., one class
may file a claim and one may not.
¶40 The High Court noted prevention of
spurious claims is a legitimate governmental
interest.78 The Court explained that “It does
not follow, however, that the blanket and conclusive exclusion . . . [of one class to benefits]
is reasonably related to the prevention of spurious claims.”79 The Court explained that
assuming the class of individuals are, “in
fact,” within the class of people who would be
entitled to benefits but for the challenged
statutory classification, then the statutory
classification discriminates “without any basis
for the distinction since the potential for spurious claims is exactly the same as to both
subclasses.”80
Vol. 87 — No. 9 — 3/26/2016
¶41 Two years after Jimenez, the U.S. Supreme Court explained its holding by stating
that if a conclusive exclusion of one class to a
statutory benefit is combined with a statutory
prohibition for members of this class to show
they would otherwise be entitled to the statutory benefit; then the purpose of providing a
statutory benefit to those entitled is lost as to
those individuals. Further, an articulated purpose of preventing spurious claims was constitutionally insufficient in Jimenez because “to
conclusively deny one subclass benefits presumptively available to the other denies the
former the equal protection of the laws guaranteed by the due process provision of the Fifth
Amendment.”81 Different United States Courts
of Appeals have observed that a rational basis
form of review was used in Jimenez, and that this
review has been used to invalidate legislation.82
¶42 Language in Jimenez, refers to both the
underinclusiveness and overinclusiveness of
the challenged legislation.83 Similar issues are
present in our case today. When considering the
articulated purpose of preventing workers’ compensation fraud, a statute creating a class of employees who are injured, in fact, with a cumulative
trauma injury during the first 180 days of
employment with their then current employer,
and then they are conclusively placed within a
class of employees who file fraudulent claims,
that statutory placement is overinclusive by
lumping together the innocent with the guilty.
On the other hand, if one of the purposes of
workers’ compensation is to provide statutory
compensation for employees actually suffering
an injury arising out of the course and scope of
employment;84 then the statute is underinclusive
because it fails to include employees actually
injured during the first 180 days of employment.
¶43 We also observe, like the U.S. Supreme
Court in Jimenez, the prevention of spurious
and fraudulent claims is a legitimate governmental interest. As noted by the High Court, it
does not follow, however, that the blanket and
conclusive exclusion of one class of injured
employees to benefits is reasonably related to
the prevention of spurious claims. Assuming
that employees with less than 180 days of
employment are, in fact, within the class of
people who would be entitled for benefits but
for the 180-day challenged statutory classification, then the statutory classification discriminates without any rational basis for the
distinction since the potential for filing spurious claims is exactly the same for cumulativeVol. 87 — No. 9 — 3/26/2016
trauma employees before and after 180 days of
continuous employment.
¶44 In Weber v. Aetna Casualty & Surety Co.,85
the Court held Louisiana’s workers’ compensation scheme violated the Fourteenth Amendment by distinguishing for different treatment
the class of dependent unacknowledged illegitimate children and the class of dependent
legitimate children, and observing “Moreover,
imposing disabilities on the illegitimate child is
contrary to the basic concept of our system that
legal burdens should bear some relationship to
individual responsibility or wrongdoing.”86
Although we need not adopt this rationale of
Weber as a necessary part of our due process
analysis to adjudicate the present controversy,87
we note § 2(14) which prohibits an injured
worker from filing a non-fraudulent claim
prior to the 180-day period does not show a
rational relationship between legally allocating
individual responsibility with the wrongful
conduct that the State interest seeks to prevent.
¶45 Employer also makes an argument that §
2(14) and § 5 work together so that employee
has no right and no remedy for her alleged
injury and this combination of the two statutes
is constitutional. Paragraph “C” of § 5 states:
“The immunity from civil liability described in
subsection A of this section shall apply regardless of whether the injured employee is denied
compensation or deemed ineligible to receive
compensation under this act.” Respondent
argues employee is prohibited from filing an
action in the District Court against her employer although she has no workers’ compensation
remedy.
¶46 The § 5 prohibition of filing in a District
Court shows that the interest of the State
behind the classification scheme cannot be
solely the prevention of fraudulent claims filed
with the Workers’ Compensation Commission.88
Generally, the act of classifying is grouping or
segregating objects and that act assumes a purpose for the classification to accomplish a particular result that is something other than a
mere purpose to classify.89 Respondent and
amicus curiae state the two statutes are economic in nature. They state the purpose is a
State interest in lowering costs to employers. A
statute regulating economic affairs is not
unconstitutional merely because an economic
detriment or benefit is created by a statutory
classification. The very nature of such statutes
is to alter economic benefits with or without
corresponding economic detriments. Again,
591
for the purpose of our analysis we assume that
lowering an employer’s costs is a legitimate
State interest.
¶47 But their argument repeats a similar flaw.
They argue a rational basis for legislation is
shown if the purpose of a statute, as articulated
by a legitimate State interest, is accomplished in
any degree regardless of the irrationality of the
classifications created by the statute. Their first
argument is that a statute with a purpose to
decrease workers’ compensation fraud is constitutional if workers’ compensation fraud is, or
potentially will be, decreased in any degree by
operation of the statute. Their second argument
using the legitimate State interest in lowering
costs to employers becomes: A statute with a
purpose to lower an employer’s costs is constitutional if employer’s costs are, or potentially
will be, decreased in any degree by operation
of the statute. Just as their first argument fails
to include concepts of overinclusive and underinclusive constitutional flaws in statutes receiving a rational basis review, so does their second
argument. We decline their invitation to adopt
their position that class distinctions between
employees with similar injuries is rationally
related to a legitimate State interest although
principles of underinclusiveness and overinclusiveness show irrationality in the classification.
the current workers’ compensation scheme
and argues that (1) workers’ compensation
remedies are inadequate, (2) the grand bargain
is violated, and (3) the order denying her workers’ compensation benefits should be reversed.
¶50 Two concepts are often raised as being
important principles underlying workers’
compensation law, (1) the State’s interest in the
economic welfare of injured workers, and (2)
the grand bargain.91 At the time the workers’ compensation laws were created it was recognized
that a worker’s common-law remedies in District Courts for on-the-job injuries were less
than ideal. For example, in writing for the Yale
Law Journal in 1911, then Oklahoma Supreme
Court Justice Kane explained that the compensation laws then being enacted had a goal of
compensating an injured employee so that
family members economically relying on the
worker should not be left “to the tender mercy
of charity or a charge upon the State.”92 We
noted this purpose in 1935 and more recently
in 2005.93
VI. The Grand Bargain
¶51 Public policies adopted by our Legislature one hundred years ago that were foundational for establishing workers’ compensation
laws, such as the historic Legislature’s views
on the grand bargain and economic-welfare
shifting, do not control or limit the current Legislature’s determination of public policy. It is a wellknown principle of statutory and constitutional
construction that one Legislature cannot bind
another, and this Court has followed this principle for several decades.94 Courts recognize
that a legislature has the power to change the
common law “to reflect a change of time and
circumstances.”95 While the English common
law may be a starting point for a legal analysis,
statutory law may modify the common law.96
The old hand that was at the legislative helm a
hundred years ago does not control the present
Legislature’s view of good public policy.
¶49 Employee argues that when the workers’
compensation statutes were originally created
in several States a grand bargain was created.
This bargain consisted of an injured worker
relinquishing a common-law right to bring an
action in a District Court against the worker’s
employer and the worker gained statutory
compensation in a lesser amount. On the other
hand, the employer relinquished certain common-law defenses in a District Court action
and gained an economic liability that was both
less in individual cases and fixed by statute.
Employee cites to forty-two (42) provisions of
¶52 This discussion of the grand bargain
shows that the concept is important to the
extent it is a beginning for an analysis to
inform a court what may, or may not, be current and legitimate State interests (or current
public policies) for the purpose of a court’s
statutory analysis in the context of addressing this
employee’s constitutional claim. We have concluded herein that § 2(14) was unconstitutionally applied to employee, and reverse the order
of Workers’ Compensation Commission for
further administrative proceedings consistent
with this opinion. Because we have determined
¶48 We conclude the overinclusive and
underinclusive nature of § 2(14) as it relates to
the legitimate State interest to prevent workers’
compensation fraud and its prohibition preventing an employee from filing a non-fraudulent workers’ compensation claim violates the
Due Process Section of the Oklahoma Constitution, Art. 2 § 7. Adwon v. Retail Grocers Ass’n,
supra, Suntide Inn Operating Corp. v. State, supra,
Jacobs Ranch, L.L.C. v. Smith, supra, Wieman v.
Updegraff, supra, and Jimenez v. Weinberger, supra.90
592
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§ 2(14) creates an irrational classification and
violates Okla. Const. Art. 2 § 7 when applied to
employee, it is not necessary to analyze
employee’s claim that § 2(14) violates the
grand bargain upon application of Art. 2 § 7, or
if § 2 (14) is unconstitutional upon application
of some other provision of our State Constitution.97 We also need not address whether § 2
(14) violates Okla. Const. Art. 2 § 6.98
¶53 Employee’s invocation of a constitutionally deficient grand bargain in the current
Oklahoma statutes is a hypothetical question
whose judicial resolution in this appeal would
not, under the present record on appeal, alter
her rights on remand.99 Employee’s citation to
forty-two provisions of the workers’ compensation statutes is not linked by legal argument
to an aggrieved legal interest of employee that
would be affected on remand, and showing her
status as aggrieved is a record-driven necessity100 to adjudicate her claim of constitutionally
insufficient statutes101 in the absence of nonHohfeldian standing.102
VII. Conclusion
¶54 We conclude 85A O.S.Supp. 2013 § 2(14)
violates the Due Process Section of the Oklahoma Constitution, Art. 2 § 7, because its
overinclusive and underinclusive classifications are not rationally related to legitimate
State interests of (1) preventing workers’ compensation fraud and (2) decreasing employers’
costs. We do not adjudicate employee’s claims
challenging the construction or constitutional
sufficiency of other workers’ compensation
statutes, or her Okla. Const. Art. 2 § 6 claim, or
her assertion that the workers’ compensation
grand bargain has been violated.
¶55 The order of the Workers’ Compensation
Commission is reversed and the matter is
remanded for further proceedings consistent
with this opinion.
¶56 REIF, C. J., COMBS, V. C. J., WATT,
EDMONDSON, and GURICH, JJ., concur.
¶57 COLBERT, J., concur specially.
¶58 KAUGER, WINCHESTER, and TAYLOR, JJ., concur in result.
COLBERT, J., concurring specially with whom
WATT, J., joins.
¶1 I concur in the majority’s result that the
arbitrary 180-day limitation on cumulative
trauma injuries is unconstitutional, but write
Vol. 87 — No. 9 — 3/26/2016
separately to explain how the provision also
violates Article 2, Section 6 of the Oklahoma
Constitution.
¶2 The Oklahoma Constitution guarantees
that all courts “shall be open to every person,
and a speedy and certain remedy afforded for
every wrong and for every injury to person,
property, or reputation; and right and justice
shall be administered without sale, denial,
delay, or prejudice.” Okla. Const. art. 2, § 6. The
constitutional provision embodies three distinct constitutional guarantees: (1) access to the
courts; (2) right-to-a-remedy for every wrong
and every injury to person, property, or reputation; and (3) prohibition on the sale or denial of
justice.
¶3 The majority and the Attorney General
emphasize the Legislature’s police power and
the Legislature’s right in crafting a workers’
compensation scheme. In intimating that the
Legislature enjoys unfettered discretion in
abolishing a claimant’s right or benefit, the
majority postulates that such authority is only
curtailed (1) when the Legislature creates an
unconstitutional condition related to that right
or benefit, (2) by the expressed Will of the
People in the Oklahoma Constitution provisions prohibiting unreasonable and arbitrary
legislation, and (3) other Oklahoma constitutional provisions addressing private rights and
due process. See Op. at ¶ 26 & fns. 42-44. However, the majority’s analysis is incomplete. The
Legislature’s police power is not absolute. In
crafting a substitute remedy, the Legislature’s
police power is also limited by Article 2, Section 6 of the Oklahoma Constitution. When the
Legislature taketh away all of an employee’s
work-related common law actions in tort and
places such actions in the exclusive purview of
the Administrative Act, that police power must
also be curtailed by the industrial bargain’s
delicate balance.
¶4 I must again emphasize that the foundation of the Oklahoma workers’ compensation
scheme is the “Industrial Bargain” also known
as the “Grand Bargain.” Yet, I am constrained
to repeat ad nauseam the underlying policies
and purposes behind it. That system, as
explained in Parret v. Unicco Serv. Co., provides an expeditious, inexpensive means to
compensate workers for injuries, disabilities,
and deaths sustained in the course of their
employment, without a determination of fault.
See 2005 OK 54, 127 P.3d 572. The employee is
afforded swift and certain payment of benefits
593
sufficient to cure or relieve the effects of the
injury, while giving up a myriad of potential
damages available to him in tort. The employer, on the other hand, assumes liability for an
employee’s injury or death, but benefits from
the limited liability fixed to loss wages, medical, and vocational rehabilitation occasioned
by the work-related injury or death. Clearly,
the linchpin of this legislatively created bargain is that the employer assumes liability for
work-related injuries and death; while the
employee gives up any common law action
sounding in tort. In essence, the system strikes
a balance between the rights and duties of
Oklahoma employers and employees. But with
the enactment of the Administrative Workers’
Compensation Act (AWCA), the balance is
now off kilter and has become one-sided to the
benefit of the employer.
¶5 Following the enactment of the AWCA,
this Court has begun to see an influx of constitutional challenges to the Act. Although each
case presents a unique set of issues, a common
theme exists — the systematic erosion of the
Industrial or Grand Bargain. This Court, fully
aware of the rapid demise of the Grand Bargain, assured Oklahoma workers that we
would address the Act’s constitutionality, provision by provision, “as a case or controversy
or a justiciable issue is presented to this Court.”
Coates v. Fallin, 2013 OK 108, ¶ 3, 316 P.3d 924.
We are forced by our jurisprudence to insure
that claimants and employers in the workers’
compensation system have their day in court
and receive a fair shake.
¶6 Simply put, the Administrative Act abrogates an injured employee’s bargained remedies, and at times, leaves the employee bereft
of any legally cognizable recourse.
COMBS, V.C.J., concurring specially, with
whom WATT, J., joins:
¶1 While I agree with the majority that the
180-day limitation provision in 85A O.S. Supp.
2013 § 2(14) is unconstitutional as applied to
Petitioner on substantive due process grounds,
I write separately to emphasize that it also
amounts to a denial of equal protection under
the law to Petitioner and those similarly situated, in violation of Okla. Const., art. 2, §§ 6 & 7.1
¶2 In Dean v. Multiple Injury Trust Fund, 2006
OK 78, ¶19-22, 145 P.3d 1097, this Court considered whether special treatment of the Multiple
Injury Trust fund as compared to other workers’ compensation insurers violated, amongst
594
other provisions, Okla. Const., art. 2, §§ 6 & 7.
This Court explained:
[i]n testing the validity of a state statute
that differentiates in its treatment of one
group of individuals over other groups, a
common test is applied when considering
due process of law, equal protection of the
laws, and special as distinguished from
general laws: that is whether the classification forming the basis for the differentiation is arbitrary or capricious, and whether
it bears a reasonable relation to the object
to be considered.
Dean, 2006 OK 78, ¶19.
In that cause, because of its unique status
and continuing problem with timely payment
of awards due to lack of funds, this Court
determined treating the Multiple Injury Trust
Fund different from other workers compensation insurers satisfied the above-quoted standard. Dean, 2006 OK 78, ¶22.
¶3 In Gladstone v. Bartlesville Indep. School
Dist. No. 30 (I-30), 2003 OK 30, 66 P.3d 442, this
Court upheld a classification built into the
Governmental Tort Claims Act (GTCA) that
immunized the state and political subdivisions
from liability for on-the-job injuries covered by
worker’s compensation. Describing the challenged provision, the Court stated: “[i]n short,
while the state and political subdivisions are
not liable for injuries to tort claimants who
stand covered by the workers’ compensation
regime, they are legally accountable for the injuries to tort claimants not otherwise protected.”
Gladstone, 2003 OK 30, ¶13. Describing the
appellant’s argument, this Court noted:
[t]he hardship Gladstone complains of is
the arguable unfairness in treating governmental tort claimants who are covered by
workers’ compensation differently from
persons without that coverage. The latter
class not only may sue in tort to recover
damages for the negligent acts of governmental tortfeasors but is also accorded
access to collateral indemnity sources without losing the right to press a public tort
claim. The critical question here is whether
the classification in question rests upon a
difference which bears a reasonable relationship to the goals of the GTCA.
Gladstone, 2003 OK 30, ¶14.
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In Gladstone, this court determined that excluding liability under the GTCA for injuries covered by workers’ compensation was rationally
related to the legitimate state interest of protecting the public fisc by eliminating public
liability for injuries where a collateral source of
indemnity was available. 2003 OK 30, ¶18. The
Court concluded: “[w]e cannot say that the
challenged classification so lacks rationality as
to amount to a denial of equal protection.”
Gladstone, 2003 OK 30, ¶18.
¶4 The classification in the present cause,
however, goes considerably further than the
one this court analyzed in Gladstone. Title 85A
O.S. Supp. 2013 § 2(14) provides:
“Cumulative trauma” means an injury to
an employee that is caused by the combined effect of repetitive physical activities
extending over a period of time in the
course and scope of employment. Cumulative trauma shall not mean fatigue, soreness or general aches and pain that may
have been caused, aggravated, exacerbated
or accelerated by the employee’s course
and scope of employment. Cumulative
trauma shall have resulted directly and
independently of all other causes and the
employee shall have completed at least one
hundred eighty (180) days of continuous
active employment with the employer;
Section 2(14) defines “cumulative trauma” in a
particular manner: as an injury to an employee
that is caused by the combined effect of repetitive physical activities extending over a period
of time in the course and scope of employment.
It then, however, adds an arbitrary minimum
employment period of 180 days. Two claimants
may both have injuries caused by the combined effect of repetitive physical activities
extending over a period of time in the course
and scope of employment, but if one has 179
days of continuous active employment with
the employer and the other has 180 days, the
former does not have cumulative trauma.
¶5 Unlike in Gladstone, where the classification operated to bar public tort liability for
individuals who had a collateral source of
recovery, the exclusive remedy provision of the
Administrative Workers’ Compensation Act
(AWCA), 85A O.S. Supp. 2013 § 5 and the 180day cutoff in 85A O.S. Supp. 2013 § 2(14) create
a classification that completely bars Petitioner
and others in Petitioner’s position from recovering for their injuries at all. In this regard, the
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180-day line separating who may recover for
potentially identical injuries on cumulative
trauma grounds is not only arbitrary, but fundamentally unjust.
¶6 Under the provisions of the AWCA, specifically 85A O.S. Supp. 2013 §2(14) and §5, an
entire class of injured employees that includes
the Petitioner in this cause are left with no remedy at all. They are barred from recovering for
cumulative trauma by 85A O.S. Supp. 2013
§2(14)’s imposition of an arbitrary 180-day cutoff that has no reasonable relation to the goals
of the AWCA and they are barred from pursuing any tort claim by the exclusive remedy
provision, 85A O.S. Supp. 2013 § 5. This complete bar to recovery implicates the equal protection aspect of Okla. Const., art. 2, § 6 because
a subset of injured workers is being denied all
access to the courts to attain a remedy available
to other injured workers, but denied to them.
Barring both a common law tort claim and a
workers’ compensation claim, leaving claimants in Petitioner’s position without any way
to recover for their injury, is not reasonably
related to the State’s interest in preventing
workers’ compensation fraud.
¶7 To facilitate workers’ compensation and
its objectives, what has often been called the
grand (or industrial) bargain was struck: the
employee gave up the right to bring a common
law negligence action against the employer
and in return received automatic guaranteed
benefits. The employer gave up the common
law defenses and received reduced exposure to
liability. See Parret v. UNICCO Service Co., 2005
OK 54, ¶20, 127 P.3d 572. The grand bargain is
not merely the starting point for an analysis to
inform the court of what may or may not be
legitimate state interests, but the cornerstone of
the entire workers’ compensation system’s
legitimacy. By cutting off all recovery for an
injured worker, excluding them from both
workers’ compensation coverage and from filing a tort claim, the Legislature has violated the
grand bargain and betrayed the fundamental
principles of justice that gave rise to it in the
first place.
¶8 I do not dispute that the State has a legitimate interest in preventing workers’ compensation fraud. I also agree with the majority’s
substantive due process analysis. However, I
feel it necessary to further emphasize the injustice that has occurred here. The complete roadblock to any recovery for Petitioner’s injury is
595
impermissibly arbitrary and not reasonably
related to the purposes of the AWCA.
EDMONDSON, J.
1. Respondent’s Answer Brief, at p. 4.
2. The term Brandeis brief is used to describe a brief which emphasizes statistics and commission reports more than judicial precedents,
and the origin of the appellation is a brief filed by Louis D. Brandeis
when he appeared as counsel in Muller v. Oregon, 208 U.S. 412, 28 S.Ct.
324, 52 L.Ed. 551 (1908). See Allison Orr Larsen, The Trouble with Amicus
Facts, 100 Va. L.Rev. 1757, 1769-1770 (2014); William H. Rehnquist, The
Supreme Court, 209 (1987).
In an appeal, the brief of an amicus curiae is limited to facts and
issues raised by the parties that have not been “presented adequately”
by the parties from the viewpoint of the amicus curiae. Okla. Sup. Ct. R.
1.12 (b)(1). This language does not allow an amicus curiae to expand the
record on appeal via a Brandeis brief. The record on appeal is certified
from the clerk of the lower tribunal. Chamberlin v. Chamberlin, 1986 OK
30, 720 P.2d 721, 723-724 (“This court may not consider as part of an
appellate record any instrument or material which has not been incorporated into the assembled record by a certificate of the clerk of the
trial court, nor may a deficient record be supplemented by material
physically attached to a party’s appellate brief.”). An amicus curiae in
an appeal may not raise new facts by an appellate brief. Similarly, in an
original jurisdiction proceeding an amicus curiae may not put in issue a
new fact, or file an appendix or exhibits. Id. Rule 1.12 (a)(2).
3. Brief of amicus curiae at p. 9.
4. Okla. Const. Art. 2 § 7: “No person shall be deprived of life, liberty, or property, without due process of law.”
5. 85A O. S. Supp. 2013 § 5:
A. The rights and remedies granted to an employee subject to the
provisions of the Administrative Workers’ Compensation Act shall be
exclusive of all other rights and remedies of the employee, his legal
representative, dependents, next of kin, or anyone else claiming rights
to recovery on behalf of the employee against the employer, or any
principal, officer, director, employee, stockholder, partner, or prime
contractor of the employer on account of injury, illness, or death. Negligent acts of a co-employee may not be imputed to the employer. No
role, capacity, or persona of any employer, principal, officer, director,
employee, or stockholder other than that existing in the role of
employer of the employee shall be relevant for consideration for purposes of this act, and the remedies and rights provided by this act shall
be exclusive regardless of the multiple roles, capacities, or personas the
employer may be deemed to have. For the purpose of extending the
immunity of this section, any operator or owner of an oil or gas well or
other operation for exploring for, drilling for, or producing oil or gas
shall be deemed to be an intermediate or principal employer for services performed at a drill site or location with respect to injured or
deceased workers whose immediate employer was hired by such
operator or owner at the time of the injury or death.
B. Exclusive remedy shall not apply if:
1. An employer fails to secure the payment of compensation due to
the employee as required by this act. An injured employee, or his or
her legal representative in case death results from the injury, may, at
his or her option, elect to claim compensation under this act or to
maintain a legal action in court for damages on account of the injury
or death; or
2. The injury was caused by an intentional tort committed by the
employer. An intentional tort shall exist only when the employee is
injured as a result of willful, deliberate, specific intent of the employer
to cause such injury. Allegations or proof that the employer had knowledge that the injury was substantially certain to result from the
employer’s conduct shall not constitute an intentional tort. The
employee shall plead facts that show it is at least as likely as it is not
that the employer acted with the purpose of injuring the employee.
The issue of whether an act is an intentional tort shall be a question of
law.
C. The immunity from civil liability described in subsection A of
this section shall apply regardless of whether the injured employee is
denied compensation or deemed ineligible to receive compensation
under this act.
D. If an employer has failed to secure the payment of compensation for his or her injured employee as provided for in this act, an
injured employee, or his or her legal representative if death results
from the injury, may maintain an action in the district court for damages on account of such injury.
E. The immunity created by the provisions of this section shall not
extend to action against another employer, or its employees, on the
596
same job as the injured or deceased worker where such other employer does not stand in the position of an intermediate or principal
employer to the immediate employer of the injured or deceased
worker.
F. The immunity created by the provisions of this section shall not
extend to action against another employer, or its employees, on the
same job as the injured or deceased worker even though such other
employer may be considered as standing in the position of a special
master of a loaned servant where such special master neither is the
immediate employer of the injured or deceased worker nor stands in
the position of an intermediate or principal employer to the immediate
employer of the injured or deceased worker.
G. This section shall not be construed to abrogate the loaned servant doctrine in any respect other than that described in subsection F
of this section. Nothing in this act shall be construed to relieve the
employer from any other penalty provided for in this act for failure to
secure the payment of compensation under this act.
H. For the purpose of extending the immunity of this section, any
architect, professional engineer, or land surveyor shall be deemed an
intermediate or principal employer for services performed at or on the
site of a construction project, but this immunity shall not extend to the
negligent preparation of design plans and specifications.
I. If the employer has failed to secure the payment of compensation
as provided in this act or in the case of an intentional tort, the injured
employee or his or her legal representative may maintain an action
either before the Commission or in the district court, but not both.
6. The Court has noted on more than one occasion the purpose of
the workers’ compensation laws to abrogate the worker’s common law
right of action with the substitution of an exclusive statutory remedy.
See, e.g., Earnest, Inc. v. LeGrand, 1980 OK 180, 621 P.2d 1148, 1152 (“At
the time of adoption of the first Workers’ Compensation law in the
State of Oklahoma, benefits were provided for accidental personal
injury, . . . [and] This was an abrogation of the employee’s common law
right of action for personal injury against an employer.”) (material and
citations omitted); Maryland Casualty Co. v. Hankins, 1975 OK 25, 532
P.2d 426, 429 (The act abrogated the common law right of action, for
injury to an employee in a hazardous occupation, and substituted a
statutory, exclusive remedy.”).
7. In re T. H., 2015 OK 26, ¶ 9, 348 P.3d 1089, 1092 (“The fundamental rule of statutory construction is to ascertain and give effect to legislative intent, and that intent is first sought in the language of a statute.”); Rogers v. Quiktrip Corp., 2010 OK 3, ¶ 11, 230 P.3d 853, 859 (“The
fundamental rule of statutory construction is to ascertain and give
effect to legislative intent.”); State ex rel. Oklahoma Dept. of Health v.
Robertson, 2006 OK 99, ¶ 6, 152 P.3d 875, 877-878 (“Legislative intent
governs statutory interpretation and this intent is generally ascertained from a statute’s plain language.”); In re Abrams’ Will, 1938 OK
162, 77 P.2d 101, 103 (the court has a duty to ascertain and enforce the
legislative intent).
8. Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 9, 130 P.3d 213,
219.
9. Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 9, 130 P.3d at 219.
10. A “compensable injury” includes “cumulative trauma . . . arising out of the course and scope of employment.” 85A O.S. Supp. 2013
§ 2 (9)(a).
11. The statutory language may not be deemed to create an irrebuttable presumption that no cumulative trauma repetitive injury can
actually exist, in fact, during the 180-day period. For example, there is a
fundamental difference between an irrebuttable presumption of total
disability that is created upon a statutorily-required actual factual showing versus an irrebuttable presumption that no actual cumulative
trauma can exist in fact, regardless of facts that might be marshaled by
an injured worker to challenge the presumption. In Usery v. Turner
Elkhorn Mining Co., 428 U.S. 1, 22-23, 96 S.Ct. 2882, 49 L.Ed.2d 752
(1976), the Court explained an “irrebuttable presumption” did not
violate due process where a presumption of total disability was simply
to establish entitlement in the case of a miner who is “clinically diagnosable as extremely ill with pneumoconiosis arising out of coal mine
employment.” The presumption of disability was created by facts presented in the controversy. Id.
The power to adjudicate questions of fact framed by a controversy
is exclusively a judicial power, or in the case of administrative proceedings, a quasi-judicial power. Conaghan v. Riverfield Country Day School,
2007 OK 60, ¶ 20, 163 P.3d 557, 564, citing Yocum v. Greenbriar Nursing
Home, 2005 OK 27, ¶ 13, 130 P.3d 213, 220. See also State ex rel. Blankenship v. Freeman, 1968 OK 54, 440 P.2d 744, 757 (“Facts to which the law
is to be applied in the process of adjudication are called adjudicative
facts. These are facts ‘about the parties’. They must be ascertained from
formal proof and are to be distinguished from ‘legislative facts’, or
those which are helpful to a court in determining the meaning, effect,
content or validity of enactments.”).
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12. Okla. Const. Art. 5 § 36: “The authority of the Legislature shall
extend to all rightful subjects of legislation, and any specific grant of
authority in this Constitution, upon any subject whatsoever, shall not
work a restriction, limitation, or exclusion of such authority upon the
same or any other subject or subjects whatsoever.”
13. Movants to Quash Multicounty Grand Jury Subpoena v. Dixon,
2008 OK 36, ¶ 22, 184 P.3d 546, 553 (“The authority of the Legislature
extends to all rightful subjects of legislation not withdrawn by the
Constitution or in conflict therewith.”); In re Flynn’s Estate, 1951 OK
310, 237 P.2d 903, 905 (“The authority of the Legislature extends to all
rightful subjects of legislation not withdrawn by the Constitution or in
conflict therewith.”).
14. In re Detachment of Municipal Territory from City of Ada, Okla.,
2015 OK 18, ¶ 7, 352 P.3d 1196, 1199 (“This Court does not examine the
Constitution to decide whether the Legislature is permitted to act, . . .
only whether it is prohibited from acting.”); Fair School Finance Council,
Inc. v. State, 1987 OK 114, 746 P.2d 1135, 1149 (“our state Legislature
generally may do, as to proper subjects of legislation, all but that which
it is prohibited from doing.”) Williams Natural Gas Co. v. State Bd. of
Equalization, 1994 OK 150, n. 12, 891 P.2d 1219 (“Testa v. Katt, 330 U.S.
386, 393, 67 S.Ct. 810, 814, 91 L.Ed. 967 (1947), teaches that the Supremacy Clause compels a state court to exercise jurisdiction over a federallaw claim.”); Nova Health Systems v. Pruitt, 2012 OK 103, ¶ 2, 292 P.3d
28 (“this Court is not free to impose its own view of the law...this Court
is duty bound by the United States and the Oklahoma Constitutions to
‘follow the mandate of the United States Supreme Court on matters of
federal constitutional law.’”); In re Initiative Petition No. 348, State Question No. 642, 1992 OK 122, 838 P.2d 1, 3, n. 2 (“When the United States
Supreme Court speaks on matters of federal constitutional law, state
courts are bound under the Fourteenth Amendment to follow its mandate. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081,
1090 (1961).”).
15. St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139, 782
P.2d 915, 918 (“Whenever an act of the legislature can be so construed
and applied as to avoid conflict with the constitution, and give it the
force of law, such construction will be adopted by the courts.”); Fent v.
Oklahoma Capitol Imp. Authority, 1999 OK 64, ¶ 3, 984 P.2d 200, 204 (“A
court is bound to accept an interpretation that avoids constitutional
doubt as to the legality of a legislative enactment.”).
16. CDR Systems Corp. v. Oklahoma Tax Commission, 2014 OK 31, ¶
10, 339 P.3d 848, 852, quoting Thomas v. Henry, 2011 OK 53, ¶ 8, 260 P.3d
1251, 1254. See also In re Initiative Petition No. 397, State Question No. 767,
2014 OK 23, ¶ 39, 326 P.3d 496, 512 (“A burden to present facts, claims
and legal arguments falls on the party who asserts an entitlement to
the judicial relief sought.”).
17. CDR Systems Corp. v. Oklahoma Tax Commission, 2014 OK 31, at
¶ 10, 339 P.3d at 853, quoting Fent v. Okla. Capitol Improvement Auth.,
1999 OK 64, ¶ 3, 984 P.2d 200, 204.
18. Generally, a party challenging the constitutionality of a statute
must have a legally cognizable interest which is threatened by application of that statute. Seal v. Corporation Commission, 1986 OK 34, 725 P.2d
728, 283, appeal dismissed sub. nom., Amerada Hess Corp. v. Corporation
Commission, 479 U.S. 1073, 107 S.Ct. 1265, 94 L.Ed.2d 126 (1987) (standing to challenge constitutionality of statutes and administrative rules
by Corporation Commission was shown by a causal connection
between the party’s direct and pecuniary injury and application of the
challenged statutes and rules); Herring v. State ex rel. Oklahoma Tax Commission, 1995 OK 28, 894 P.2d 1074, 1076 (summary judgment for
defendants affirmed on appeal because plaintiff did not have standing
where record failed to show any injury to plaintiff caused by application of the challenged statute). Cf. Tulsa Industrial Auth. v. City of Tulsa,
2011 OK 57, n. 21, 270 P.3d 113, 121, citing Tulsa Indus. Auth. v. State,
1983 OK 99, 672 P.2d 299, 301 (listing four elements of justiciability and
explaining 12 O.S. § 1651 [declaratory judgment proceeding] invests
District Courts with jurisdiction in cases of actual controversy to determine the construction or validity of any statute.).
There are exceptions to this general rule. See, e.g., Gentges v. Oklahoma State Election Bd., 2014 OK 8, ¶ 7, 319 P.3d 674, 676, citing State ex
rel. Howard v. Oklahoma Corporation Commission, 1980 OK 96, 614 P.2d
45, 51 (a private party may be granted standing to vindicate a public
interest). The parties in the controversy before the Court do not discuss
exceptions to the general rule.
19. 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980).
20. Respondent’s Answer Brief at p. 6.
21. 1917 OK 47, 162 P. 938 (quoting the Court’s Syllabus).
22. In re T. H., supra, and State ex rel. Oklahoma Dept. of Health v.
Robertson, supra, at note 7 supra.
23. Multiple Injury Trust Fund v. Wade, 2008 OK 15, ¶ 23, 180 P.3d
1205, 1212 (the court applies the meaning of statutory language).
24. Red Slipper Club, Inc. v. City of Oklahoma City, 1979 OK 118, 599
P.2d 406, 408.
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25. Veterans of Foreign Wars v. Childers, 1946 OK 211, 171 P.2d 618.
26. State ex rel. Wright v. Oklahoma Corp. Com’n, 2007 OK 73, ¶¶
18-28, & n. 14, 170 P.3d 1024, 1031- 1034.
27. See, e.g., Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 508,
57 S.Ct. 868, 81 L.Ed. 1245 (1937) (“. . . the particular name which a state
court or legislature may give to a money payment commanded by its
statute is not controlling here when its constitutionality is in question”). Cf. Van Orden v. Perry, 545 U.S. 677, 681, 691-692, 125 S.Ct. 2854,
162 L.Ed.2d 607 (2005) (Rehnquist, C.J., and joined by Scalia, Kennedy,
and Thomas, JJ.) (although legislation stated a monument commemorated “people, ideals, and events that compose Texan identity,” First
Amendment Establishment Clause constitutionality was not based
upon legislative characterization of the monument, but upon facts
showing the monument was physically placed with many secular
historical monuments and it had a government significance as well as
a religious one).
28. The general principle that a legislature may use a police power
to create or destroy workers’ compensation rights and remedies may
not be successfully used to necessarily show constitutionality of a particular workers’ compensation statute. The attribute of a constitutional
exercise of police powers that is applied to a legislature creating workers’ compensation laws in general may not be applied as a necessary
attribute to a specific workers’ compensation statute without such
reasoning committing the fallacy of division. See State ex rel. Oklahoma
Bar Ass’n v. Mothershed, 2011 OK 84, n. 91, 264 P.3d 1197, 1220.
29. Reliance upon a generality to decide a legal issue has been longrecognized as insufficient legal analysis when application of a legal
principle requires a greater degree of specificity. For example, Judge
Posner, in commenting on Justice Holmes’ dissent in Lochner v. New
York, 198 U.S. 45, 76, 5 S.Ct. 539, 49 L.Ed 937 (1905), stated that “general propositions do not decide concrete cases,” and explained that
while generality is necessary to provide guidance for future disputants
and many often instinctively think of particulars as instantiations of
generalities; a law may be grammatically overinclusive based upon its
purpose and effect in relation to a particular application, and people
usually recognize in daily life that overinclusiveness should be remedied with an interpretation that rationally relates the purpose of the
law to the actual circumstances of its application, e.g., a sign “forbidding animals in a restaurant” should not be interpreted to ban humans.
Richard A. Posner, Reflections on Judging, 120-121 (2013).
30. U.S. Const. Amendment 14, § 1 provides in pertinent part: “...
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection
of the laws.”
31. The Okla. Const. Article 2, § 7 provides: “No person shall be
deprived of life, liberty, or property, without due process of law.”
32. See, e.g., Turner v. City of Lawton, 1986 OK 51, 733 P.2d 375, 378
(noted the exclusion of evidence acquired by an unconstitutional
search or seizure was not merely a rule of procedure, but rather a fundamental right under the Oklahoma Constitution existing independent of either the Fourth or Fourteenth Amendments of the United
States Constitution); PruneYard Shopping Center v. Robins, 447 U.S. 74,
81, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (Court explained that its construction of the U.S. Constitution did not “limit the authority of the
State to exercise its police power or its sovereign right to adopt in its
own Constitution individual liberties more expansive than those conferred by the Federal Constitution.”).
33. Presley v. Board of County Commissioners of Oklahoma County,
1999 OK 45, ¶ 6, 981 P.2d 309, 312 (“Due process protections encompassed within the Okla. Const. art. 2, § 7 are coextensive with those of
its federal counterpart.”).
34. See, e.g., In re Initiative Petition No. 348, State Question No. 642,
1992 OK 122, 838 P.2d 1, 12, n. 29 (after noting states which had recognized individual state constitutional rights additional to those granted
by the Federal Constitution, the Court noted that it was not called
upon to address whether such additional rights were present in the
controversy before the Court.).
35. John C.P. Goldberg, The Constitutional Status of Tort Law: Due
Process and the Right to a Law for the Redress of Wrongs, 115 Yale L.J. 524,
569-575 (2005), explaining New York Central Railroad Co. v. White, 243
U.S.188, 37 S.Ct. 247, 61 L.Ed. 667 (1917); Missouri Pacific Railway Co. v.
Humes, 115 U.S. 512, 6 S.Ct. 110, 29 L.Ed. 463 (1885); Poindexter v. Greenhow,114 U.S. 270, 5 S.Ct. 903, 29 L.Ed. 185 (1885). Both Missouri Pacific
Railway Co. and Poindexter predate the often-discredited Lochner v. New
York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed 937 (1905), which protected a
liberty of contract using the Due Process Clause. Thomas Colby &
Peter J. Smith, The Return of Lochner, 100 Cornell L. Rev. 527 (2015)
(“For a very long time, it has been an article of faith among liberals and
conservatives alike that Lochner v. New York was obviously and irre-
597
deemably wrong.”); Richard A. Primus, Canon, Anti-Canon, and Judicial
Dissent, 48 Duke L. J. 243, 245 (1998) (“The Supreme Court’s positions
in Lochner and Plessy [v. Ferguson, 163 U.S.52-37 (1896)] are paradigmatic examples of what is not the law.”). See also Jamal Greene, The
Anticanon, 125 Harv. L. Rev. 379, 418-419 discussed at note 49, infra.
36. John C.P. Goldberg, The Constitutional Status of Tort Law: Due
Process and the Right to a Law for the Redress of Wrongs, 115 Yale L.J. 524,
559-560 (2005). Another author characterizes the period of 1895 to 1936
as one where the U.S. Supreme Court “manipulated doctrines of constitutional law” against several then popular statutory reforms. Leonard W. Levy, Original Intent and the Framers’ Constitution, 369 (1988). See
also David E. Bernstein, Lochner Era Revisionism, Revised: Lochner and the
Origins of Fundamental Rights Constitutionalism, 92 Geo. L.J. 1, 11 (2003)
(arguing that there was not one Lochner era, but three, 1897-1911, 19111923, and 1923 to the mid-1930s.)
37. U.S. v. Carolene Products, Co., 304 U.S. 144, 153, 58 S.Ct. 778, 82
L.Ed. 1234 (1938) (“regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the
light of the facts made known or generally assumed it is of such a
character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.”);
Goldberg, The Constitutional Status of Tort Law: Due Process and the Right
to a Law for the Redress of Wrongs, 115 Yale L.J. at 578 commenting on
Carolene Products. In Carolene Products, the Court noted “There may be
narrower scope for operation of the presumption of constitutionality
when legislation appears on its face to be within a specific prohibition
of the Constitution, such as those of the first ten amendments, which
are deemed equally specific when held to be embraced within the
Fourteenth.” 304 U.S. at 152 n.4.
38. Gladstone v. Bartlesville Indep. School Dist. No. 30 (I-30), 2003 OK 30,
n. 54, 66 P.3d 442, citing Duke Power Co. v. Carolina Environmental Study
Group, 438 U.S. 59, 82-84, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978) and T.I.M.
Co., Inc. v. Oklahoma Land Title Ass’n, 1984 OK 66, 698 P.2d 915, 920.
39. St. Joseph Abbey v. Castille, 712 F.3d 215, 221 (5th Cir.) cert. den.,
__ U.S. __, 134 S.Ct. 423 187 L.Ed.2d 281 (2013), (“Chief Justice Stone’s
footnote 4 in United States v. Carolene Products, etched in the brains of
several generations of law students, both described and prescribed a
fundamental dichotomy of judicial review; it retreated from the aggressive review of state regulation of business in the Lochner period while
proceeding in the opposite direction in matters of personal liberty.”).
40. Robert G. McCloskey, Economic Due Process and the Supreme
Court: An Exhumation and Reburial, 1962 Sup.Ct.Rev. 34, 55 (“From the
first the modern Court has been troubled by a recurring problem: how
does the dichotomy stand up when economic matters and personal
rights are involved in a single government action?”).
41. An assertion that a legislature has the power to create and abolish workers’ compensation actions as well as common-law actions
generally, and that such power is sufficient to decide the issues in this
controversy is the type of argument condemned more than fifty years
ago by the U.S. Supreme Court as a “facile generalization” that
obscures the issue to be decided. See the discussion herein of Wieman v.
Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 97 L.Ed.2d 216 (1952). This
type of reasoning has been criticized by the U.S. Supreme Court in
other cases as well. See, e.g., Koontz v. St. Johns River Water Management
Dist., ___ U.S. ___, 133 S.Ct. 2586, 2596-2597, 186 L.Ed.2d 697 (2013)
(Justice Alito’s opinion for the Court collecting U.S. Supreme Court
cases on the issue that government’s authority to deny or withhold a
right or benefit generally does not mean government has the authority
to create an unconstitutional condition attached to the right or benefit
created, and the opinion quotes the “facile generalization” language in
Wieman.).
42. See, e.g., Daniel J. Crooks, III, Toward “Liberty”: How the Marriage
of Substantive Due Process and Equal Protection in Lawrence and Windsor
Sets the Stage for the Inevitable Loving of Our Time, 8 Charleston L. Rev.
223, 238 (Winter 2013-2014) citing Randy E. Barnett, The Proper Scope
of the Police Power, 79 Notre Dame L. Rev. 429, 484 (2004), and Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon
the Legislative Power of the States of the American Union (1866) (“Following in the natural law tradition of John Locke and the vast majority of
the framers of the Constitution and Bill of Rights, as well as the framers
of the Fourteenth Amendment, Cooley understood the concept of ‘due
process of law’ to entail a substantive component that existed to provide a check on the states’ police powers. To Cooley, this substantive
nature safeguarded individuals’ natural rights from unwarranted
intrusion by the state. . . . ‘Just as it is proper to prohibit wrongful or
rights-violating conduct, proper police power regulations specify the
manner in which persons may exercise their liberties so as to prevent
them from accidentally interfering with the rights of others.’”).
43. Northeast Oklahoma Elec. Co-op., Inc. v. State ex rel. Corp. Com’n,
1989 OK 18, 768 P.2d 901, 904, quoting Oklahoma Natural Gas Co. v.
Choctaw Gas Co., 1951 OK 224, 236 P.2d 970, 977 (the Court stated “we
598
agree that “’the police power must at all times be exercised with scrupulous regard for private rights guaranteed by the Constitution.’”). Cf.
Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir. 1948), cert.
denied, 335 U.S. 887, 69 S.Ct. 236, 93 L.Ed. 425 (1948) (“ . . . while Congress has the undoubted power to give, withhold, and restrict the
jurisdiction of courts other than the Supreme Court, it must not so
exercise that power as to deprive any person of life, liberty, or property without due process of law or to take private property without
just compensation.”).
44. McConnell v. Town Clerk of Tipton, 1985 OK 61, 704 P.2d 479, 481,
citing Keaton v. Oklahoma City, 1940 OK 215 102 P.2d 938 ( “Municipalities are authorized to enact zoning ordinances and when the legislative
branch of the municipal government has acted in a particular case, its
expressed judgment on the subject will not be overridden by the judiciary unless such judgment is unreasonable, arbitrary or constitutes an
unequal exercise of police power.”); Mid-Continent Life Ins. Co. v. City of
Oklahoma City, 1985 OK 41, n.4, 701 P.2d 412, 413 (Court collected opinions dating from 1979, 1976, 1972, 1967, two from 1966, in support of
its statement that “Unless the zoning decisions of a municipality are
found not to have a substantial relation to the public health, safety,
morals or general welfare or to constitute an unreasonable, arbitrary
exercise of police power, its judgments will not be overridden by the
district court.”).
For a discussion of the quasi-legislative function of an administrative rule see Waste Connections, Inc. v. Oklahoma Dept. of Environmental
Quality, 2002 OK 94, ¶ 11, 61 P.3d 219, 224. It has been long-recognized
that administrative actions are subject to the Due Process provisions of
the State and U.S. Constitutions. See, e.g., State v. Parham, 1966 OK 9,
412 P.2d 142, 154 (“The due process clauses of the state and federal
constitutions afford protection against arbitrary and unreasonable
administrative action.”).
45. Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, ¶ 24, 148 P.3d 842, 849
(emphasis added).
46. Edmondson v. Pearce, 2004 OK 23, ¶ 35, 91 P.3d 605, 624 (courts
may not annul legislation for being in violation of substantive due
process unless it is clearly irrelevant to the policy the Legislature may adopt
or is arbitrary, unreasonable or discriminatory.”), emphasis added and
quoting Jack Lincoln Shops, Inc. v. State Dry Cleaners’ Board, 1943 OK 28,
135 P.2d 332, 333, appeal dismissed, 320 U.S. 208, 63 S.Ct. 1448, 87 L.Ed.
1847 (1943).
47. See, e.g., Timothy Sandefur, In Defense of Substantive Due Process,
or the Promise of Lawful Rule, 35 Harv. J. L. & Pub. Pol’y 283, 323 (2012)
(“To put this in modern parlance: So long as courts must decide
whether a law is rationally related to a legitimate government interest,
they cannot hope to avoid determining what is and is not a legitimate
government interest.”).
48. See, e.g., Federal Land Bank of Wichita v. Story, 1988 OK 52, 756
P.2d 588, 593, quoting State ex rel. Roth v. Waterfield, 1933 OK 546, 29
P.2d 24 (Court explained that “Section 493 [62 O.S.Supp.1986 § 493]
operates as ‘an arbitrary and capricious extension of time amounting
to a taking of private property without ... compensation ... or protection of the rights of the mortgagee’ [and] Therefore, Section 493 is not
a reasonable exercise of the police power devoted to a legitimate
end...”). Cf. Amoco Production Co. v. Corporation Commission of State of
Oklahoma, 1986 OK CIV APP 16, 751 P.2d 203 (modified on certiorari
and adopted as opinion of the Supreme Court) (substantive due process required reversal because an order of the Commission had an
unreasonable impact).
49. See, e.g., Ashira Pelman Ostrow, Judicial Review of Local Land Use
Decisions: Lesson from RLUIPA, 31 Harv. J. L. & Pub. Pol’y 717, n. 56, 731
(2008) (“In the post-Lochner era, courts are particularly wary of substituting their judgment for that of the community’s elected representatives when examining economic legislation. The Lochner era refers to a
period of time in which the Court invalidated regulatory economic
legislation because it disagreed with its legislative purpose.”); Jamal
Greene, The Anticanon, 125 Harv. L. Rev. 379, 418-419 (2011) (The standard critique of Lochner is usually placed into two separate categories:
(1) It is error for a court to second-guess legislative judgments identifying a State interest based on the Court’s own judgment reflecting its
subjective moral or political preferences rather than using values
authoritatively codified in the Constitution; and (2) A court should not
second-guess legislative judgments and invalidate them on the basis of
an “unenumerated” right.).
50. In Lochner, the Court initially recognized the State’s interest in
protecting the health and safety of the public, but then the Court independently reviewed the State’s justification for the legislation (although
majority denied that it was simply substituting its judgment for that of
the legislature). Lochner v. New York, 198 U.S. at 57 (“There is no reasonable ground for interfering with the liberty of person or the right of
free contract....”).
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51. See, e.g., Kimberly N. Brown, ‘’We the People,” Constitutional
Accountability, and Outsourcing Government, 88 Ind. L. J. 1347, n. 210,
1376 (2013) (“The [Supreme] Court has required that an asserted government interest serves the public good, rather than merely private
interests or biases, in order to qualify as ‘legitimate’ under the rational
basis test.”), citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S.
432, 446-47, 105 S.Ct. 3249, 67 L.Ed.2d 313 (1985) (“The State may not
rely on a classification whose relationship to an asserted goal is so
attenuated as to render the distinction arbitrary or irrational. . . Furthermore, some objectives-such as ‘a bare ... desire to harm a politically
unpopular group, . . . are not legitimate state interests.’”); U.S. Dep’t of
Agric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed. 782 (1973)
(“The challenged classification clearly cannot be sustained by reference
to this congressional purpose. For if the constitutional conception of
‘equal protection of the laws’ means anything, it must at the very least
mean that a bare congressional desire to harm a politically unpopular
group cannot constitute a legitimate governmental interest.”).
52. Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 834, 107 S.Ct. 3141,
97 L.Ed.2d 677 (1987) ( In controversies involving land-use regulations
and permits the High Court does not have a history of defining a
legitimate state interest: “Our cases have not elaborated on the standards for determining what constitutes a ‘legitimate state interest’....”).
53. See, e.g., Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, ¶ 26, 148 P.3d
842, 850 (“For the health, welfare and safety of its citizens, the Legislature may regulate a landowner’s use and enjoyment of water resources
to prevent waste and infringement on the rights of others.”).
54. Shepard v. Oklahoma Dept. of Corrections, 2015 OK 8, ¶ 18, 345
P.3d 377, 384.
55. Indian Territory Illuminating Oil v. Davis, 1932 OK 210, 9 P.2d 40,
42 (discussed constitutional challenges to workers’ compensation laws
in other states and the constitutionality of Oklahoma’s version “under
the doctrine of general police power.”).
56. The Oklahoma penal code states workers’ compensation fraud
is punishable as a felony. 21 O.S. 2011 §§ 1, 2, 1663. Workers’ compensation fraud is prohibited by the Administrative Workers’ Compensation
Act: “Any person or entity who makes any material false statement or
representation, who willfully and knowingly omits or conceals any
material information, or who employs any device, scheme, or artifice,
or who aids and abets any person for the purpose of: (1) obtaining any
benefit or payment, (2) increasing any claim for benefit or payment, or
(3) obtaining workers’ compensation coverage under this act, shall be
guilty of a felony punishable pursuant to Section 1663 of Title 21 of the
Oklahoma Statutes.” 85A O.S.Supp. 2015 § 6 (A)(1).
57. The Due Process Section of the Oklahoma Constitution also has
an equal protection component. Oklahoma Ass’n for Equitable Taxation v.
City of Oklahoma City, 1995 OK 62, 901 P.2d 800, n. 29, 805, cert. denied, 516
U.S. 1029, 116 S.Ct. 674, 133 L.Ed.2d 523 (1995) (“The same equal protection component found in the fourteenth amendment of the United States
Constitution is present in the due process clause of art. 2, § 7.”).
The Due Process Clause of the Fifth Amendment to the U.S. Constitution also includes an equal protection element. See, e.g., Johnson v.
Robison, 415 U.S. 361, 364 n. 4, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974)
(“Although the Fifth Amendment contains no equal protection clause,
it does forbid discrimination that is ‘so unjustifiable as to be violative
of due process.’ . . . Thus, if a classification would be invalid under the
Equal Protection Clause of the Fourteenth Amendment, it is also inconsistent with the due process requirement of the Fifth Amendment.”)
(citations omitted).
58. 2003 OK 30, ¶ 12, 66 P.3d 442.
59. See, e.g., Developments in the Law — The Interpretation of State
Constitutional Rights, 95 Harv. L. Rev. 1324, 1473 (1982) (“Almost any
substantive due process claim may be translated into an equal protection claim merely by pointing to some other group not subject to the
challenged regulation. If a regulation does not serve a legitimate purpose — and so violates substantive due process — applying it to one
group and not to another violates the equal protection requirement
that a legitimate state purpose support a given classification.”) (citations omitted).
60. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466, 101 S.Ct.
715, 66 L.Ed.2d 659 (1981), quoting New Orleans v. Dukes, 427 U.S. 297,
303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976), (a legislature may make
imperfect classifications which only partially ameliorate a perceived
evil and defer complete elimination of the evil to future legislation);
Erznoznik v. City of Jacksonville, 422 U.S. 205, 215, 95 S.Ct. 2268, 2275, 45
L.Ed.2d 125 (1975), citing Williamson v. Lee Optical Co., 348 U.S. 483,
488-489, 75 S.Ct. 461, 464-465, 99 L.Ed. 563 (1955) (“This Court frequently has upheld underinclusive classifications on the sound theory
that a legislature may deal with one part of a problem without addressing all of it.”).
61. An underinclusive statute may demonstrate the absence of a
compelling state interest required for a state’s justification when
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restricting a fundamental right. See, e.g., Justice Kennedy’s opinion for
the Court in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) and its reliance, in part,
upon Justice Scalia’s opinion concurring in judgment in The Florida Star
v. B. J. F., 491 U.S. 524, 540-541,109 S.Ct. 2603, 105 L.Ed.2d 443 (1989),
for the concept that when a statute prohibits certain conduct, the
articulated state interest given in justification of the prohibition is not
a compelling state interest when the statute is underinclusive due to its
failure to prohibit “other conduct producing substantial harm or
alleged harm of the same sort.” Church of Lukumi Babalu Aye, Inc., 508
U.S. at 547 (Part III of the opinion for the Court). See also Smith v. Daily
Mail Publishing Co., 443 U.S. 97, 104-105, 99 S.Ct. 2667, 61 L.Ed.2d 399
(1979) (A statute was insufficiently tailored [underinclusive] in protecting anonymity of juveniles where it restricted only newspapers, not
the electronic media or other forms of publication, from identifying
juvenile defendants, and even assuming the statute served a state
interest in furthering such anonymity, the statute’s underinclusiveness
failed to accomplish its purpose.).
62. Vance v. Bradley, 440 U.S. 93, 97,108, 99 S.Ct. 939, 59 L.Ed.2d 171
(1979).
63. Board of Regents v. Updegraff, 1951 OK 270, 237 P.2d 131,
reversed, Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed.2d 216
(1952).
64. Board of Regents v. Updegraff, 237 P.2d at 137. The Court relied on
this language in Gilbert Cent. Corp. v. State, 1986 OK 6, 716 P.2d 654, 659.
65. Wieman v. Updegraff, 344 U.S. at 190, 191 (the Court concluded
that “Indiscriminate classification of innocent with knowing activity
must fall as an assertion of arbitrary power. The oath offends due
process. . . We need not pause to consider whether an abstract right to
public employment exists. It is sufficient to say that constitutional
protection does extend to the public servant whose exclusion pursuant
to a statute is patently arbitrary or discriminatory.”) (material omitted).
66. Englebrecht v. Day, 1949 OK 154, 208 P.2d 538.
67. Adwon v. Retail Grocers Ass’n, 1951 OK 43, 228 P.2d 376, 378.
For a short note on legal challenges to Oklahoma’s Unfair Sales
Act, see So-Lo Oil Co., Inc. v. Total Petroleum, 1992 OK 71, n. 14, 832 P.2d
14, 17, commenting on Englebrecht v. Day, supra, Adwon, supra, Safeway
Stores, Inc. v. Oklahoma Retail Grocers Ass’n, Okl., 1957 OK 336, 322 P.2d
179, aff’d 360 U.S. 334, 79 S.Ct. 1196, 3 L.Ed.2d 1280 (1959), and Glenn
Smith Oil Co. v. Sheets, 1985 OK 56, 704 P.2d 474, 477.
68. Davis Oil Co. v. Cloud, 1986 OK 73, 766 P.2d 1347.
69. In Davis Oil Co., the majority opinion classified the Surface
Damages Act (52 O.S.Supp.1982 §§ 318.2 through 318.9) as the removal
of a common-law defense while the dissenting opinion viewed the Act
as shifting a contractual property right from one contracting party to
another when the Act was applied retroactively to a mineral lease that
had been created prior to the effective date of the Act. Compare Davis
Oil, 766 P.2d at 1350 (“The limitation on the operator’s liability in the
exercise of that right is to be viewed as no more than a defense which
has been provided to the operator by operation of the common law in
actions for damages by the surface estate holder”) with 766 P.2d 13531357, at 1356 (“The implied covenant to reasonable use of the surface
estate is thus “a part of the written lease as fully as if it had been
expressly contained therein.”) (Summers, J., dissenting opinion on
rehearing, joined by Opala, V.C.J., Hodges, and Simms, JJ.).
70. Davis Oil Co., 766 P.2d at 1351, quoting Anderson-Prichard Oil
Corp. v. Corporation Commission, 1951 OK 234, 241 P.2d 363, appeal dismissed, 342 U.S. 938, 72 S.Ct. 562, 96 L.Ed. 698 (1952), and 766 P.2d at
1356, (Summers, J., dissenting), citing Anderson-Prichard Oil Corp. (“A
state may in some cases exercise its police power and properly alter
existing contractual obligations.”).
71. 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996).
72. 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003).
73. BMW of North America v. Gore, 517 U.S. at 568 (Court held that
the Constitution imposed limits on procedures for awarding punitive
damages and also explained that “Only when an award can fairly be
categorized as ‘grossly excessive’ in relation to these interests does it
enter the zone of arbitrariness that violates the Due Process Clause of
the Fourteenth Amendment.”); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. at 417 (“To the extent an award is grossly excessive, it
furthers no legitimate purpose and constitutes an arbitrary deprivation of property. . . [and] they have a devastating potential for harm.”)
74. BMW of North America v. Gore, 517 U.S. at 568 (citing rule and
explaining that a State’s legitimate intersts do not include a grossly
excessive damages which are arbitrary).
75. BMW, supra, and State Farm Mut. Auto. Ins. Co., supra. See also
Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 4 L.Ed.2d 1435
(1960) (“...when we deal with a withholding of a noncontractual benefit under a social welfare program . . . Due Process Clause can be
thought to interpose a bar only if the statute manifests a patently
arbitrary classification, utterly lacking in rational justification.”).
599
76. Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363
(1974).
77. Jimenez, 417 U.S. at 635.
78. Jimenez, 417 U.S. at 636.
79. Jimenez, 417 U.S. at 636, material omitted and explanatory
phrase added.
80. Jimenez, 417 U.S. at 636.
81. Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651
(1976) quoting Jimenez v. Weinberger, 417 U.S. 628, 636, 637.
82. See, e.g., Murillo v. Bambrick, 681 F.2d 898, n. 15, 905 (3rd Cir.
1982) cert. denied, 459 U.S. 1017, 103 S.Ct. 378, 74 L.Ed.2d 511 (1982),
(court observed that “judicial review under the rational relation standard has never been entirely ‘toothless.’”), citing Jimenez v. Weinberger,
supra, and two additional Supreme Court opinions); Williams v. St.
Clair, 610 F.2d 1244, 1249 (5th Cir. 1980) (reaffirming basic principles of
rational basis review from Dandridge v. Williams, 397 U.S. 471 (1970),
and noting Jimenez v. Weinberger, supra, for the concept that there was
no rational basis for the classification scheme); Berger v. City of Mayfield
Heights, 154 F.3d 621, 625 (6th Cir. 1998), (observing that while rational
basis is “the least demanding test used by courts,” it is not “toothless”),
citing Mathews v. Lucas, 427 U.S. 495, 510 (1976), and its reference to
Jimenez v. Weinberger, supra); Kitchen v. Herbert, 755 F.3d 1193, 1221(10th
Cir. 2014), citing Jimenez v. Weinberger, supra, as an example of an
underinclusive statute which conclusively excluded a subclass of individuals who were, in fact, otherwise statutorily qualified to be in the
class of recipients for the statutory benefit); Martin v. Bergland 639 F.2d
647, 650 (10th Cir. 1981) (citing Jimenez for the proposition “some plaintiffs have succeeded under the rational basis test in overcoming the
presumption of validity generally accorded government action.”).
83. Jimenez v. Weinberger, 417 U.S. at 637.
84. See, e.g., 85A O.S.Supp. 2013 § 35 (A)(1): “Every employer shall
secure compensation as provided under this act to its employees for
compensable injuries without regard to fault.”
85. 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).
86. Weber, 406 U.S. at 175.
87. Employer’s argument is that a legislative body may constitutionally prohibit one class of people from exercising a right (injured
workers filing nonfraudulent claims) because another group of people
abuse that right (workers filing fraudulent claims). Workers’ compensation fraud is punishable as a criminal felony in Oklahoma. 21
O.S.2011 § 1663. The issue of if, or when, a legislative body may constitutionally stop one group of people from exercising a right granted or
recognized by law and prohibiting their innocent conduct because
another group of people engage in criminal activity is an issue which
arises frequently in various political debates involving issues beyond
the scope of workers’ compensation jurisprudence. We need not
decide the issue today.
88. In District Court common-law actions fraud is “never presumed, but must be affirmatively alleged and proven by the party who
relies on it, and cannot be inferred from facts which may be consistent
with honesty of purpose.” Albert & Harlow, Inc. v. Fitzgerald, 1964 OK
42, 389 P.2d 994, 996, citing Stafford v. McDougal, 1935 OK 251, 42 P.2d
520. In District Court, the issue of fraud is generally a question of fact
that must be proved, even when it is inferred from facts and circumstances. Croslin v. Enerlex, Inc., 2013 OK 34, ¶ 12, 308 P.3d 1041, 1046,
citing 15 O.S.2011 § 60; Bloch v. Morgan, 1926 OK 163, 244 P. 176; and
Singleton v. LePak, 1967 OK 37, ¶ 13, 425 P.2d 974, 978. Prohibiting an
employee from filing a District Court action against an employer has
no relationship to preventing that person from filing a fraudulent
claim before the Workers’ Compensation Commission, an administrative agency.
89. Jay M. Feinman, The Jurisprudence of Classification, 41 Stan. L.
Rev. 661, 664 (1980).
90. We construe the reliance upon § 5 by respondent and amicus
curiae as an effort to show the rationality of § 2(14). While we conclude
an unconstitutional application of § 2 (14) occurred, we make no conclusion or holding on the constitutionality of § 5 due to our disposition
of this appeal. See opinion part VI. The Grand Bargain, herein.
91. See the discussion of the grand bargain in note 6, supra, and its
accompanying text.
92. Matthew J. Kane, The Need for Reform in Our Employers Liability
Laws, 20 Yale L.J. 353, 356 (1911).
93. Parret v. UNICCO Service Co., 2005 OK 54, ¶ 19, 127 P.3d 572,
577-578 quoting Corbin v. Wilkinson, 1935 OK 977, 52 P.2d 45, 48
(“Workers’ compensation was designed to avoid destitution. It ‘was
passed for the special benefit of injured work[ers]. The Legislature
intended the benefits of the act shall flow to the injured work [ers] and
their dependents, in order to afford them a living and prevent them
from becoming public charges.’”).
94. See, e.g., State ex rel. Wright v. Oklahoma Corp. Com’n, 2007 OK 73,
¶ 28 & n. 17, 170 P.3d 1024, 1034 (stating principle and collecting some
600
of our cases from 2007, 1997, 1937, 1935, and a 1912 opinion from the
Court of Criminal Appeals).
95. St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139, 782
P.2d 915, 919.
96. This was recognized early in the history of our State, by R. L.
1910, § 4642 (12 O.S.2011 § 2):
The common law, as modified by constitutional and statutory law,
judicial decisions and the condition and wants of the people, shall
remain in force in aid of the general statutes of Oklahoma, but the rule
of the common law, that statutes in derogation thereof, shall be strictly
construed, shall not be applicable to any general statute of Oklahoma;
but all such statutes shall be liberally construed to promote their object.
97. For example, we need not address whether Okla. Const. Art. 2
§ 7 protects unenumerated rights derived from the nature of liberty, or
the proper analysis for determining the nature of State constitutional
rights, or the nature and scope of a party’s burden to create a factual
record sufficient to support such an inquiry, or any other legal issue
involved with such inquiry. But see, generally, Joshua D. Hawley, The
Intellectual Origins of (Modern) Substantive Due Process, 93 Tex. L. Rev.
275, 280 -281 (2014) (arguing that modern substantive due process
should be conceptualized as a doctrine of unenumerated rights
derived from the nature of liberty), and compare Draper v. State, 1980
OK 117, 621 P.2d 1142, 1145 (“The Constitution, the bulwark to which
all statutes must yield, must be construed with reference to the fundamental principals which support it. Effect must be given to the intent
of its framers and of the people adopting it.”).
98. Okla. Const. Art. 2 § 6: The courts of justice of the State shall be
open to every person, and speedy and certain remedy afforded for
every wrong and for every injury to person, property, or reputation;
and right and justice shall be administered without sale, denial, delay,
or prejudice.
99. Guardianship of Berry, 2014 OK 56, n. 43, 335 P.3d 779, 800 (the
Court does not issue advisory opinions or answer hypothetical questions); Baby F. v. Oklahoma County Dist Ct., 2015 OK 24, ¶ 11, 348 P.3d
1080, 1084 (A hypothetical issue includes circumstances where adjudication of that issue will fail to grant effective legal relief).
100. A workers’ compensation proceeding is a statutory public-law
proceeding (not a private dispute) and when resolving a public-law
question therein the Court may sua sponte choose the dispositive public-law theory. Yeatman v. Northern Oklahoma Resopurce Center of Enid,
2004 OK 27, nn. 28, 29, ¶ 15, 89 P.3d 1095, 1101. However, a public-law
theory may not be used by the Court when the record on appeal is
insufficient to support that theory. Lincoln Farm, L.L.C. v. Oppliger, 2013
OK 85, n. 19, 315 P.3d 971, 977.
101. See note 18, supra, and the discussion explaining a party who
challenges the constitutionality of a statute must have a legally cognizable interest which is threatened by application of that statute.
102. Non-Hohfeldian standing is when plaintiff sues to secure
judicial relief that would benefit a public entity or the community as a
whole, but Hohfeldian standing is when a plaintiff seeks to adjudicate
his or her claimed right, privilege, immunity, or power with respect to
another party. State ex rel. Oklahoma Bar Ass’n v. Mothershed, 2011 OK 84,
n. 135, 264 P.3d 1197, 1228; State ex rel. Macy v. Bd. of County Comr’s of
Oklahoma County, 1999 OK 53, n. 28, 986 P.2d at 1138.
COMBS, V.C.J., concurring specially, with
whom WATT, J., joins:
1. As the majority correctly points out, many claims alleging violations of substantive due process also support an equal protection
claim, because Okla. Const., art. 2, § 7 has an equal protection component. Oklahoma Ass’n for Equitable Taxation v. City of Oklahoma City, 1995
OK 62, ¶12, 901 P.2d 800, cert. denied, 516 U.S. 1029, 116 S.Ct. 674, 133
L.Ed.2d 523 (1995). Okla. Const., art. 2, §§ 6, also contains an equal
protection component. See Thayer v. Phillips Petroleum Co., 1980 OK 95,
¶¶12-15, 613 P.2d 1041 (“The courts must be open to all on the same
terms without prejudice.”).
2016 OK 21
RE: Suspension of Certificates of Certified
Shorthand Reporters
SCAD-2016-13. February 29, 2016
ORDER
The Oklahoma Board of Examiners of Certified Shorthand Reporters has recommended to
Vol. 87 — No. 9 — 3/26/2016
the Supreme Court of the State of Oklahoma
the suspension of the certificate of each of the
Oklahoma Certified Shorthand Court Reporters listed on the attached Exhibit for failure to
comply with the continuing education requirements for calendar year 2015 and/or with the
annual certificate renewal requirements for
2016.
The Oklahoma Board of Examiners of Certified Courtroom Interpreters has recommended
to the Supreme Court of the State of Oklahoma
the suspension of the credential of each of the
Oklahoma Registered Courtroom Interpreters
listed on the attached Exhibit for failure to
comply with the annual certificate renewal
requirements for 2016.
Pursuant to 20 O.S., Chapter 20, App. 1, Rule
20(c), failure to satisfy the annual renewal
requirements on or before February 15 shall
result in administrative suspension on that
date. Pursuant to 20 O.S., Chapter 20, App. 1,
Rule 23(d), failure to satisfy the continuing
education reporting requirements on or before
February 15 shall result in administrative suspension on that date.
Pursuant to 20 O.S., Chapter 23, App. II, Rule
20(c), failure to satisfy the annual renewal
requirements on or before February 15 shall
result in administrative suspension on that
date. Pursuant to 20 O.S., Chapter 20, App. 1,
Rule 23(d), failure to satisfy the continuing
education reporting requirements on or before
February 15 shall result in administrative suspension on that date.
IT IS THEREFORE ORDERED that the certificate of each of the court reporters named on
the attached Exhibit is hereby suspended effective February 15, 2016.
IT IS THEREFORE ORDERED that the certificate of each of the interpreters named on the
attached Exhibit is hereby suspended effective
February 15, 2016.
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE this 29th day of
FEBRUARY, 2016.
FEBRUARY, 2016.
/s/ John F. Reif
CHIEF JUSTICE
/s/ John F. Reif
CHIEF JUSTICE
ALL JUSTICES CONCUR.
Exhibit
Name
CSR #
Exhibit
Ariel Nuncio
Alyssa Olvera
Reason
Lori Byrd
1981 Continuing
Education/Renewal
Christina Ogle
1088 Continuing
Education/Renewal
Norma Rico
1992 Renewal
Lisa Stockwell
1969 Continuing
Education/Renewal
Nikki Tate
1608 Continuing
Education/Renewal
Amy Taylor
1993 Renewal
JENNIFER FLEMING, Plaintiff/Appellant, v.
RACHEL WHITNEY HYDE, Defendant/
Appellee.
No. 113,844. March 1, 2016
ON APPEAL FROM THE DISTRICT
COURT OF LOGAN COUNTY, THE
HONORABLE LOUIS A. DUEL,
PRESIDING
ORDER OF SUMMARY DISPOSITION
Renetta Thompson 606 Continuing
Education
2016 OK 22
RE: Suspension of Credentials of
Registered Courtroom Interpreters
SCAD-2016-14. February 29, 2016
ORDER
Vol. 87 — No. 9 — 3/26/2016
2016 OK 23
¶1 Rule 1.201 of the Oklahoma Supreme
Court Rules provides that “[i]n any case in
which it appears that a prior controlling appellate decision is dispositive of the appeal, the
court may summarily affirm or reverse, citing in
its order of summary disposition this rule and
the controlling decision.” Okla. S. Ct. Rule 1.201.
601
¶2 After reviewing the record in this case,
THE COURT FINDS that our recent decision in
Ramey v. Sutton, 2015 OK 79, 362 P.3d 217, disposes of the issues in this case.
¶3 In Ramey, we made clear our intent “to
recognize those unmarried same sex couples
who, prior to Bishop [Bishop v. Smith, 760 F.3d
1070 (10th Cir.), cert. denied, 574 U.S. _____, 135
S.Ct. 271, 190 L.Ed.2d 139 (2014)] and
Obergefell,[Obergefell v. Hodges, 576 U.S. ____,
135 S.Ct. 2584, 192 L.Ed2d 609, (2014)] entered
into committed relationships, engaged in family planning with the intent to parent jointly
and then shared in those responsibilities after
the child was born.” Id. at ¶19.
¶4 Fleming made a proposal of marriage that
was accepted by Hyde. The couple exchanged
rings to signify their commitment to one another. They expressed interest in having a family
and raising a child together. The couple made
financial adjustments to prepare for becoming
parents. Fleming and Hyde consulted with a
fertilization physician to become pregnant. At
the request of their physician, the couple met
with a counselor for evaluation and a determination as to their fitness to become parents.
¶5 Fleming attended all pre-natal appointments. Fleming was present in the delivery
room and participated in the delivery of their
child. The couple prepared a baby book together. They both attended pediatrician appointments with their child. Fleming was listed as
the other “mom” at the daycare. The couple
held themselves out as a family to their friends,
family and the public.
¶6 We find that the district court erred in
granting the motion to dismiss, and that Fleming has standing to pursue a best interests of
the child hearing.
¶7 IT IS THEREFORE ORDERED that the
district court’s order of dismissal is vacated,
and the cause remanded to the district court for
further proceedings.
COURT IN CONFERENCE THIS 29TH DAY
OF FEBRUARY, 2016.
/s/ John F. Reif
CHIEF JUSTICE
ALL JUSTICES CONCUR
602
2016 OK 24
REBEKKAH NEWLAND, Plaintiff/
Appellant, v. LAURA TAYLOR, Defendant/
Appellee.
No. 113,928. March 1, 2016
ON APPEAL FROM THE DISTRICT
COURT OF OKLAHOMA COUNTY, THE
HONORABLE LYNNE McGUIRE,
PRESIDING
ORDER OF SUMMARY DISPOSITION
¶1 Rule 1.201 of the Oklahoma Supreme Court
Rules provides that “[i]n any case in which it
appears that a prior controlling appellate decision is dispositive of the appeal, the court may
summarily affirm or reverse, citing in its order of
summary disposition this rule and the controlling decision.” Okla. S. Ct. Rule 1.201.
¶2 After reviewing the record in this case,
THE COURT FINDS that our recent decision in
Ramey v. Sutton, 2015 OK 79, 362 P.3d 217, disposes of the issues in this case.
¶3 In Ramey, we made clear our intent “to
recognize those unmarried same sex couples
who, prior to Bishop [Bishop v. Smith, 760 F.3d
1070 (10th Cir.), cert. denied, 574 U.S. _____, 135
S.Ct. 271, 190 L.Ed.2d 139 (2014)] and
Obergefell,[Obergefell v. Hodges, 576 U.S. ____,
135 S.Ct. 2584, 192 L.Ed2d 609, (2014)] entered
into committed relationships, engaged in family planning with the intent to parent jointly
and then shared in those responsibilities after
the child was born.” Id. at ¶19.
¶4 Newland and Taylor engaged in a two
year same sex relationship before discussing
having a family and raising a child together.
The couple was not legally able to marry in
Oklahoma in 2003. The couple made arrangements for Taylor’s artificial insemination. Taylor became pregnant. Newland was present at
the delivery of their child.
¶5 The couple’s romantic relationship ended
approximately six months after delivery of
their child. Taylor and Newland shared custody since the birth of their child. They have both
held themselves out to the public as the parents
of the minor child. Taylor prepared a baby
book reflecting Newland as the other parent.
¶6 We find that the district court erred in
granting the motion to dismiss, and that Fleming has standing to pursue a best interests of
the child hearing.
Vol. 87 — No. 9 — 3/26/2016
¶7 IT IS THEREFORE ORDERED that the
district court’s order of dismissal is vacated,
and the cause remanded to the district court for
further proceedings.
COURT IN CONFERENCE THIS 29th DAY OF
FEBRUARY, 2016.
/s/ John F. Reif
CHIEF JUSTICE
ALL JUSTICES CONCUR
2016 OK 25
STATE OF OKLAHOMA ex rel. Oklahoma
Bar Association, Complainant, v. JOHN
BERNARD SULLIVAN, Respondent.
Case Number: SCBD-6243;
Consolidated w/SCBD-6244. March 1, 2016
BAR DISCIPLINARY PROCEEDING
¶0 The complainant, Oklahoma Bar Association, commenced disciplinary proceedings
against the respondent, John Bernard Sullivan,
pursuant to Rule 7 of the Rules Governing Disciplinary Proceedings. The respondent did not
respond to the Bar Association’s correspondence requesting information, nor did the
respondent respond to notices to him that the
OBA had opened formal investigations regarding his suspensions from the practice of law by
the United States Court of Appeals for the 10th
Circuit for failure to comply with rules and
orders of that court, and by the State of Kansas
for criminal convictions in that state.
RESPONDENT DISBARRED AND ASSESSED
COSTS OF THESE PROCEEDINGS.
Loraine Dillinder Farabow, Oklahoma Bar
Association, Oklahoma City, Oklahoma, for
Complainant.
WINCHESTER, J.
¶1 The complainant, Oklahoma Bar Association, brought Rule 71 summary disciplinary
proceedings against the respondent, John Bernard Sullivan. The respondent practiced criminal defense law primarily in Kansas. The Bar
Association opened an investigation culminating in filing the SCBD No. 6243 proceeding
pursuant to information that the respondent
had been temporarily suspended from the
practice of law by the 10th Circuit Court of
Appeals for neglect in handling a client’s
appeal2 and his failure to comply with court
rules. The Bar Association also opened an
Vol. 87 — No. 9 — 3/26/2016
investigation culminating in the filing of SCBD
No. 6244 pursuant to information that the
respondent had pled guilty in two different
cases to drug charges in Kansas, served time in
jail and had multiple arrests while on probation.
¶2 This Court on March 30, 2015, ordered the
temporary interim suspension of the respondent as a result of his criminal convictions. On
June 15, 2015, this Court ordered the suspension of the respondent from membership in the
Bar Association and prohibited his practice of
law in this state for failure to comply with the
Mandatory Continuing Legal Education Rules
for the year 2014.
The Bar Association has recommended that
the respondent be disbarred and asks for the
costs of the proceedings in the amounts of
$64.06 in SCBD No. 6243, and $7.40 in SCBD
No. 6244.
I. FACTS AND PROCEDURE
(A) Suspension from the practice of law by the
10th Circuit Court of Appeals
¶3 On December 5, 2012, the 10th Circuit
Court of Appeals removed the respondent as
counsel for a defendant in a criminal case
when he failed to perfect his client’s appeal in
a timely manner and failed to follow the rules
of the court. The next day, that court issued an
order seeking a response as to why further disciplinary action should not be taken against
him. The response to the show cause order was
due December 26, 2012. Having received no
response, the 10th Circuit suspended the
respondent from practice indefinitely on January 24, 2013, and ordered the suspension be for
no less than six months. Although the respondent faxed a response document to that court
on the same day, the Chief Deputy Clerk
advised him in a January 24, 2013, letter that
his response was deficient because the court
does not accept FAX filings, and his response
was not timely.
¶4 On February 1, 2013, the respondent filed
a document explaining to the court his failure
to pursue the appeal. The respondent stated
that his client told him to file a notice of appeal
but cease any other work on his case. He
explained the difficulties he had with that client and as soon as he believed his duties were
complete he “hit the door running and did not
look back.” He added that he had missed the
court’s email notices and then speculated as to
603
how he may have missed them. In mitigation,
he offered that he had tried fourteen jury trials
in 2012, including three murder cases and his
first federal trial. He also left his law firm and
started a solo practice. In addition, he reported
he had suffered from some mental health
issues. These issues were diagnosed as bipolar
disorder and attention deficit hyperactive disorder, which he did not take seriously, mostly
ignored and that he had quit taking his medications. He added that the same week as his
filed response, he had been to a psychologist
and his doctor, and had all of his prescriptions
filled. The 10th Circuit Court Clerk responded
by letter dated February 4, 2013, that his filing
was only a modified version of his earlier fax,
was untimely, and would not be submitted to
the disciplinary panel. The Clerk reminded
him he was suspended and that no other action
would be taken on his response.
¶5 On July 29, 2013, the respondent filed a
Petition for Reinstatement. He advised the
court that he had read the rules of the court
and pledged to abide by them. He added that
his failure to perfect his client’s appeal had
resulted from his belief that he was no longer
counsel for the client. His failure to respond to
the court’s show cause order was from fear and
the result of his overall life at the time. He
included the information he previously reported to the court in his February response and
information regarding the demise of a fiveyear relationship with his significant other. He
also included that he had received injuries
from a single car accident that hospitalized
him and caused him to be out of his office for
two months. He reported he was currently
under psychological counseling and had been
since April of 2013. He concluded that he had
taken great pains to ensure that neither his
personal nor professional life would become
as hectic as it was at the end of 2012 and the
beginning of 2013.
¶6 On August 13, 2013, the 10th Circuit
denied the respondent’s petition for reinstatement without prejudice to renewal. The court
allowed him to file a renewed petition for reinstatement without regard to the court’s one-year
limitation rule on successive petitions for reinstatement. On August 21, 2013, the 10th Circuit
denied his renewed petition without prejudice
to renewal, but permitted the respondent to file
a second renewed petition for reinstatement in
45 days. The court asked for specific assurances
that the respondent understood the court’s pro604
cedural requirements for counsel to criminal
defendants who appeal to that court. General
assertions about reading and abiding by the
rules would not suffice.
(B) Suspension from the practice of law by the
State of Kansas
¶7 In the early afternoon on December 11,
2013, Clark County Kansas deputies arrested
the respondent for speeding, driving under
suspension, failure to carry liability insurance,
possession of marijuana, and possession of
methamphetamine. The respondent reported
to the deputy who stopped him that he had a
hearing with a client in Guymon, Oklahoma.
We presume that means Guymon was his destination before his arrest. The next day, the
State of Kansas brought criminal charges consisting of six counts pursuant to that arrest.
¶8 Less than three weeks later, just two hours
after the New Year, 2014, began, an Enforcement Agent for the Kansas Racing and Gaming
Commission arrested the respondent at the
Kansas Star Casino in Mulvane, Kansas, on a
charge of methamphetamine possession. The
Kansas Star Casino security supervisor notified Agents for the Commission that one of the
casino’s security officers witnessed the respondent drop a clear plastic baggy containing a
crystal-like substance onto the floor near the
area entrance. After locating the respondent
and detaining him, the respondent finally consented to a search. The agent found the baggy
in the respondent’s coat pocket. On January 15,
2014, the State of Kansas brought two counts
against the respondent consistent with the discovery at the casino that the respondent was in
possession of methamphetamine and drug
paraphernalia.
¶9 The next month, February 10, 2014, the
respondent and the Kansas Disciplinary
Administrator filed a joint motion for temporary suspension of his Kansas bar license. The
Supreme Court of Kansas granted the joint
motion and ordered the respondent’s immediate suspension during the pendency of his
disciplinary proceedings. That court ordered
him to comply with Kansas Supreme Court
Rule 218,3 which required written notice within
fourteen days of his suspension to clients and
other jurisdictions in which he held licenses to
practice law. Although the respondent notified
the 10th Circuit, he did not notify the Oklahoma Bar Association.
Vol. 87 — No. 9 — 3/26/2016
¶10 The respondent entered a guilty plea
pursuant to a plea agreement on March 20,
2014, for Possession of Drug Paraphernalia in
Sumner County District Court Case No. 14 CR
11, and fined $250.00 plus court costs, and sentenced to six months in the county jail. In lieu
of his jail time, the court placed him on probation for one year, with the special condition
that he successfully complete a drug treatment
program. The court dismissed the charge of
Possession of Methamphetamine.
¶11 In an amended Order of Probation, filed
April 10, 2014, Sumner County District Court
Case No. 14 CR 11, the court ordered the
respondent to obey all federal and state laws,
and all city and county ordinances. The court
further ordered that if law enforcement officers
questioned, detained or arrested him, he must
notify his Court Service Officer within the next
business day. The court specifically ordered
him not to illegally possess, use or traffic in any
controlled substance, narcotic or other drugs
except as prescribed by a licensed practitioner.
Within six days, April 16, 2014, Wichita, Kansas, police officers arrested the respondent at
10:41 p.m. for Possession of Methamphetamine, Possession of Drug Paraphernalia,
Driving While Suspended, Failure to Signal,
and Running a Stop Sign.
¶12 On July 30, 2014, the respondent pled
guilty to an Amended Complaint. Pursuant to
this plea agreement filed, in the Clark County
District Court, Case No. 13-CR-40, the court
found the respondent guilty of “Count I”: Possession of a Controlled Substance, and “Count
II”: Possession of Drug Paraphernalia. The
court sentenced him to 365 days in the county
jail on the two counts, with all time suspended,
and placed him on supervised probation for
one year under Sumner County supervision,
with standard conditions of probation including obeying all federal, state, and local laws,
and attending AA/NA. The order of probation
was filed August 28, 2014, adding the condition that the respondent must notify his Court
Service Officer immediately of any law enforcement contact.
¶13 One month later, on September 30, 2014,
the respondent was arrested in Sedgwick
County for Trafficking Contraband in a Penal
Institution. The arrest constituted a violation of
the terms and conditions of his supervised probation in both the Clark County District Court
Case No. 13-CR-40 and the Sumner County
District Court Case No. 14 CR 11.
Vol. 87 — No. 9 — 3/26/2016
¶14 The respondent did not report his September 30, 2014, arrest for Trafficking Contraband in a Penal Institution within the next
business day and as a result, on October 3, 2014
at 3:45 p.m., when he reported to his Court
Service Officer in Sumner County, Kansas, the
officer reported in an Order to Arrest and
Detain that the respondent had violated his
conditions of probation. The respondent’s
defense attorney in Case No. 14 CR 11 sent a
letter dated October 29, 2014, to the Sumner
County Attorney regarding the respondent’s
future plans, which were to return to practice
law in Oklahoma if he was reinstated. On
November 13, 2014, at his hearing to revoke his
probation, the court remanded the respondent
to the custody of the Sheriff of Sumner County
to serve the remainder of his sentence in Case
No. 14 CR 11. The court reinstated his probation for a period of one year from the date of
the hearing, under the same terms and conditions as before.
¶15 In a letter dated, April 10, 2015, the
respondent’s Kansas attorney informed the
First Assistant General Counsel of the Oklahoma Bar Association, Loraine Dillinder Farabow, that the respondent was not actively
practicing law in Kansas or Oklahoma, and
that he had entered into a voluntary agreed
order of temporary suspension on February
10th, 2014, in the State of Kansas. The respondent’s attorney attached the Kansas order.
II. DISCIPLINE
¶16 This Court on March 30, 2015, ordered
the temporary interim suspension of the
respondent as a result of his criminal convictions. On June 15, 2015, this Court ordered the
suspension of the respondent from membership in the Oklahoma Bar Association and
prohibited his practice of law in this state for
failure to comply with the Mandatory Continuing Legal Education Rules for the year 2014.
¶17 The respondent did not notify the Office
of the General Counsel of his suspension by
the 10th Circuit. Rule 7.7(a) of the Rules Governing Disciplinary Proceedings, 5 O.S.2011,
ch. 1, app. 1-A provides that “It is the duty of a
lawyer licensed in Oklahoma to notify the General Counsel whenever discipline for lawyer
misconduct has been imposed upon him/her
in another jurisdiction, within twenty (20) days
of the final order of discipline, and failure to
report shall itself be grounds for discipline.”4
605
Subsection (b) of that rule provides in pertinent
part that:
“When a lawyer has been adjudged guilty
of misconduct in a disciplinary proceeding,
except contempt proceedings, by the highest court of another State or by a Federal
Court, the General Counsel of the Oklahoma Bar Association may cause to be transmitted to the Chief Justice a certified copy
of such adjudication and the Chief Justice
shall direct the lawyer to appear before the
Supreme Court at a time certain, not less
than ten (10) days after mailing of notice,
and show cause, if any he/she has, why
he/she should not be disciplined. The
documents shall constitute the charge and
shall be prima facie evidence the lawyer
committed the acts therein described. The
lawyer may submit a certified copy of transcript of the evidence taken in the trial tribunal of the other jurisdiction to support
his/her claim that the finding therein was
not supported by the evidence or that it
does not furnish sufficient grounds for discipline in Oklahoma. The lawyer may also
submit, in the interest of explaining his/her
conduct or by way of mitigating the discipline which may be imposed upon him/her,
a brief and/or any evidence tending to mitigate the severity of discipline. The General
Counsel may respond by submission of a
brief and/or any evidence supporting a recommendation of discipline.”5
¶18 The Oklahoma Bar Association argues
that the failure of the respondent to answer
supports the assertion that he violated his professional duties under Rules 1.1,6 1.3,7 and
8.4(d)8 of the Oklahoma Rules of Professional
Conduct, and Rule 1.39 of the Rules Governing
Disciplinary Proceedings. The Bar Association
asserts that the respondent’s neglect in handling his client’s appeal, his failure to notify
the OBA of his suspension by the 10th Circuit
court, his failure to respond to and cooperate
with the OBA’s investigation, and his failure to
respond to this Court’s Show Cause Order in
SCBD No. 6243, warrants discipline. We agree
and find that the respondent violated his professional duties pursuant to the rules cited.
¶19 Regarding the respondent’s criminal
convictions, Rule 7.1 of the Rules Governing
Disciplinary Proceedings provides:
“A lawyer who has been convicted or has
tendered a plea of guilty or nolo conten606
dere pursuant to a deferred sentence plea
agreement in any jurisdiction of a crime
which demonstrates such lawyer’s unfitness to practice law, regardless of whether
the conviction resulted from a plea of
guilty or nolo contendere or from a verdict
after trial, shall be subject to discipline as
herein provided, regardless of the pendency of an appeal.”
5 O.S. 2011, ch. 1, app. 1-A.
¶20 The Bar Association investigated these
grievances without receiving any responses
from the respondent. These investigations
began on February 6, 2015, when the Oklahoma Bar Association Membership Department
notified the OBA’s Office of the General Counsel that the respondent had written an insufficient check for his bar dues. Membership
advised the General Counsel that it had
attempted to contact the respondent at his official roster telephone number. The answering
party related that the respondent had lost his
license in Kansas because of his drug charges.
The Office of the General Counsel found a
newspaper article on the Internet reporting the
respondent’s suspension from the practice of
law in Kansas due to his felony arrest for possession of methamphetamine and misdemeanor possession of drug paraphernalia.
¶21 In a letter dated April 10, 2015, received
by the Oklahoma Bar Association on April 17,
2015, the respondent’s counsel for his criminal
cases in Kansas related that the respondent had
not actively practiced law in Kansas or Oklahoma, pursuant to a voluntary order of temporary suspension to which he had agreed on
February 10, 2014. The letter revealed that the
respondent had active cases in Kansas and
Oklahoma in which he served as the lawyer,
and his counsel wrote “we had contacted one
of the co-chairs for the Lawyers Helping Lawyers Assistance Program . . . to apprise them of
this situation and they were able to get his
cases covered in Oklahoma, and this back in
January, 2014.” The letter continued that they
believed proper notice had been given at that
time to the State of Oklahoma.
¶22 Contacting Lawyers Helping Lawyers
does not comprise proper notice. Pursuant to
Rule 7.7(a) of the Rules Governing Disciplinary Proceedings, 5 O.S.2011, ch. 1, app. 1-A,
proper notice requires that the respondent
notify the General Counsel of the Oklahoma
Bar Association.
Vol. 87 — No. 9 — 3/26/2016
¶23 The regulation of licensure, ethics, and
discipline of legal practitioners is a non-delegable, constitutional responsibility solely vested
in this Court in the exercise of our exclusive
jurisdiction. State ex rel. Oklahoma Bar Ass’n v.
McArthur, 2013 OK 73, ¶ 4, 318 P.3d 1095, 1097.
In these matters this Court has exclusive original jurisdiction. Rule 1.1, RGDP; State ex rel.
Oklahoma Bar Ass’n v. Garrett, 2005 OK 91, ¶ 3,
127 P.3d 600, 602. Before this Court can impose
discipline on an attorney, the charges must be
proved by clear and convincing evidence,
which is “proof which results in reasonable
certainty of truth.” Rule 6.12, RGDP; State ex
rel. Oklahoma Bar Ass’n v. Miller, 2013 OK 49, ¶
10, 309 P.3d 108, 114; Black’s Law Dictionary
251 (6th ed. 1990) (defining “clear and convincing evidence”). We review such matters de
novo. State ex rel. Oklahoma Bar Ass’n v. Farrant,
1994 OK 13, ¶ 7, 867 P.2d 1279, 1283-84.
¶24 Because the respondent did not respond
to inquiries from the Oklahoma Bar Association, the Bar Association filed a brief that
included exhibits to support its recommendation that the respondent be disbarred. We find
by clear and convincing evidence that those
exhibits are sufficient to support the OBA’s
recommendation. In State ex rel. Oklahoma Bar
Ass’n v. Whitebook, 2010 OK 72, ¶ 26, 242 P.3d
517, 523, this Court observed that when a lawyer places so little value on his license to practice law and shows no desire to protect that
license, if he ever wishes to regain his license,
he should be forced to appear before this Court
pursuant to Rule 11 of the Rules Governing
Disciplinary proceedings to show why he
should be again licensed to practice law.
¶25 In State ex rel. Oklahoma Bar Ass’n v. Soderstrom, 2013 OK 101, 321 P.3d 159, the respondent, Soderstrom, pled guilty to the felony
charge of unlawful possession of a controlled
dangerous substance, and the court sentenced
him to eight years with the Department of Corrections, but delayed commitment pending
successful completion of the drug court program. After this Court issued an Order of
Interim Suspension, Soderstrom filed a brief in
this Court in support of mitigation of discipline
and we assigned the matter to the Professional
Responsibility Tribunal for a hearing. He later
tested positive for methamphetamine after
being accepted into the Lincoln County Drug
Court. He appeared later at Drug Court under
the influence of Percocet without a prescription. The Professional Responsibility Tribunal
Vol. 87 — No. 9 — 3/26/2016
recommended that he be suspended from the
practice of law for two years and one day, to
safeguard the interest of the public and to preserve the public confidence in the legal professional and the entire judicial system. Soderstrom,
2013 OK 101, ¶ 8, 321 P.3d at 160. This Court
followed the recommendation of the tribunal.
¶26 In State ex rel. Oklahoma Bar Ass’n v.
McArthur, 2013 OK 73, 318 P.3d 1095, the facts
reveal that the respondent, McArthur, was
originally charged with felony trafficking in
illegal drugs, felony possession of a firearm
during the commission of a felony, and unlawful use of a communication device to facilitate
a felony. Pursuant to a negotiated plea, McArthur was convicted of a felony, that is, unlawful
possession of a controlled substance, cocaine,
and sentenced to ten years in prison, two in a
Department of Corrections facility and the balance suspended. The suspended sentence
included twenty-four months of District Attorney supervision. McArthur had purchased the
cocaine from a client he was representing in a
criminal case. He was convicted in the county
where he practiced law. The Court ruled that
offenses involving violence, dishonesty, breach
of trust or serious interference with the administration of justice facially demonstrates the
lawyer’s unfitness to practice law for the purpose of a Rule 7 summary disciplinary proceeding. McArthur, 2013 OK 73, ¶ 5, 318 P.3d at
1098. The Court disbarred McArthur.
¶27 The respondent, Sullivan, has been suspended from the practice of law before the 10th
Circuit and the Kansas Bar. He failed to notify
this Court of his suspensions and did not obey
the order of the Supreme Court of Kansas to
notify other jurisdictions in which he was
licensed of his suspension. He has had two
convictions and subsequent arrests on drug
charges. He was the sole attorney in the drug
court in one Kansas County. Because he wrote
a check for his Oklahoma Bar dues that was
returned for insufficient funds, the Oklahoma
Bar Association tried to find him and did not
learn of his suspensions by the 10th Circuit and
the Kansas Bar through the respondent, but
through Kansas authorities. He did not respond
to the Oklahoma Bar Association’s inquiries,
nor did he file any briefs to mitigate damages.
¶28 We agree with the recommendation of
the Oklahoma Bar Association that the respondent, John Bernard Sullivan be disbarred.
Accordingly, Sullivan is disbarred and his
name is stricken from the roll of attorneys,
607
effective on the date this case is handed down.
He is also assessed the costs of the proceedings
in the amounts of $64.06 in SCBD No. 6243,
and $7.40 in SCBD No. 6244.
¶29 On April 14, 2015, the OBA filed a motion
to join SCBD No. 6243 and SCBD No. 6244. By
order of May 12, 2015, that motion was deferred.
We grant the motion. These two cases are consolidated under surviving SCBD No. 6243.
RESPONDENT DISBARRED AND ASSESSED
COSTS OF THESE PROCEEDINGS.
WINCHESTER, J.
1. Rules Governing Disciplinary Proceedings, 5 O.S.2011, ch. 1,
app. 1-A.
2. In the respondent’s letter of January 24, 2013, he reported to the
10th Circuit that his client, whose appeal the respondent started, had
accepted a plea agreement to one count of illegal use of a communication facility in facilitation of conspiracy to distribute cocaine, which
carried a maximum sentence of four years in prison.
3. Kansas Supreme Court Rule 218(a)(5) provides:
“(a) Attorney’s Duty. When the Supreme Court issues an order or
opinion suspending or disbarring an attorney or striking the attorney’s
name from the roll of attorneys, the attorney must, within 14 days of
the order or opinion . . .
“(5) notify each jurisdiction, in writing, where the attorney is or has
been authorized to practice law that the attorney is suspended, disbarred, or is no longer authorized to practice law.”
4. The Rule was amended by order of the Supreme Court, 2014 OK
82, eff. September 30, 2014. The wording in subsection “a” was not
affected by the amendment.
5. 5 OS. 2011, ch. 1, app. 1-A, Rule 7.7(b). The Rule was amended
by order of the Supreme Court, 2014 OK 82, eff. September 30, 2014.
6. Rule 1.1 provides: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for
the representation.” Oklahoma Rules of Professional Conduct, 5
O.S.2011, ch.1, App. 3-A.
7. Rule 1.3 provides: “A lawyer shall act with reasonable diligence
and promptness in representing a client.” Oklahoma Rules of Professional Conduct, 5 O.S.2011, ch. 1, App. 3-A.
8. Rule 8.4(d) provides: “It is professional misconduct for a lawyer
to . . . (d) engage in conduct that is prejudicial to the administration of
justice. . . .” Oklahoma Rules of Professional Conduct, 5 O.S.2011, ch.
1, App. 3-A.
9. Rule 1.3 “The commission by any lawyer of any act contrary to
prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to
bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a
crime at all. Conviction in a criminal proceeding is not a condition
precedent to the imposition of discipline.” Rules Governing Disciplinary Proceedings, 5 O.S.2011, ch. 1, app. 1-A.
has forwarded to this Court certified copies of
the Criminal Information and Plea, in which L.
Caroline Drummond entered a plea of guilty to
one felony count of Bringing/Possessing Contraband in Jail/Penal Institution, in violation of
57 O.S. 2011 §21(A), occurring on April 28,
2015. The OBA also forwarded a certified copy
of the Deferred Sentence.
¶2 Rule 7.3 of the RGDP provides: “Upon
receipt of the certified copies of Judgment and
Sentence on a plea of guilty, order deferring
judgment and sentence, indictment or information and the judgment and sentence, the
Supreme Court shall by order immediately suspend the lawyer from the practice of law until
further order of the Court.” Having received
certified copies of these papers and orders, this
Court orders that L. Caroline Drummond is
immediately suspended from the practice of law.
L. Caroline Drummond is directed to show
cause, if any, no later than March 18, 2016, why
this order of interim suspension should be set
aside. See RGDP Rule 7.3. The OBA has until
March 29, 2016, to respond.
¶3 Rule 7.2 of the RGDP provides that a certified copy of a plea of guilty, an order deferring
judgment and sentence, or information and
judgment and sentence of conviction “shall
constitute the charge and be conclusive evidence of the commission of the crime upon
which the judgment and sentence is based and
shall suffice as the basis for discipline in accordance with these rules.” Pursuant to Rule 7.4
of the RGDP, L. Caroline Drummond has until
April 14, 2016, to show cause in writing why
a final order of discipline should not be
imposed, to request a hearing, or to file a brief
and any evidence tending to mitigate the
severity of discipline. The OBA has until May
2, 2016, to respond.
¶4 DONE BY ORDER OF THE SUPREME
COURT this 7th day of March, 2016.
/s/ John F. Reif
CHIEF JUSTICE
2016 OK 26
State of Oklahoma ex rel. Oklahoma Bar
Association, Complainant, v. L. Caroline
Drummond, Respondent.
SCBD No. 6368. March 7, 2016
ORDER OF IMMEDIATE INTERIM
SUSPENSION
¶1 The Oklahoma Bar Association (OBA), in
compliance with Rules 7.1 and 7.2 of the Rules
Governing Disciplinary Proceedings (RGDP),
608
ALL JUSTICES CONCUR
2016 OK 27
In the Matter of the Reinstatement of Rhett
Henry Wilburn to Membership in the Oklahoma Bar Association and to the Roll
of Attorneys.
SCBD No. 6275. March 7, 2016
Vol. 87 — No. 9 — 3/26/2016
ORDER
The petitioner, Rhett Henry Willburn (Wilburn/attorney) was stricken from the roll of
attorneys from the Oklahoma Bar Association
on March 16, 2010, after he was suspended
from the practice of law for two years and one
day. On June 10, 2015, he petitioned this Court
for reinstatement as a member of the Oklahoma Bar Association.
On September 2, 2015, a hearing was held
before the Trial Panel of the Professional
Responsibility Tribunal and the tribunal recommended that the attorney be reinstated with
conditions. Upon consideration of the matter,
we find:
1) The attorney has met all the procedural
requirements necessary for reinstatement
in the Oklahoma Bar Association as set out
in Rule 11, Rules Governing Disciplinary
Proceedings, 5 O.S. 2011, ch.1, app. 1-A.
2) The attorney has established by clear and
convincing evidence that he has not
engaged in the unauthorized practice of
law in the State of Oklahoma.
convincing evidence that he possesses the
competency and learning in the law
required for reinstatement to the Oklahoma Bar Association.
convincing evidence that he possesses the
good moral character which would entitle
him to be reinstated to the Oklahoma Bar
Association.
IT IS THEREFORE ORDERED that the petition of Rhett Henry Wilburn for reinstatement
be granted with the following conditions
applied for two years following reinstatement:
refraining from the use of alcohol or any illegal
substance; participation in the Lawyers Helping Lawyers Committee; continued attendance
at Alcoholics Anonymous meetings at least
once a week; and independent verification to
be provided to Lawyers Helping Lawyers
regarding his AA attendance. The costs associated with these proceedings, in the amount of
$1839.80 shall be paid monthly at a rate of
$153.00 beginning in the month of reinstatement until paid in full.
COURT THIS 7TH DAY OF MARCH, 2016.
Vol. 87 — No. 9 — 3/26/2016
/s/ John F. Reif
CHIEF JUSTICE
REIF, C.J., KAUGER, WATT, WINCHESTER,
EDMONDSON, and COLBERT, JJ., concur.
COMBS, V.C.J., TAYLOR, (by separate writing), GURICH, JJ., dissent.
TAYLOR, J., with whom COMBS, V.C.J., joins,
dissenting:
The law requires that the Respondent prove
by clear and convincing evidence that he has
“stronger proof of qualifications than one seeking admission for the first time.” (Rule 11.4
RGDP)
This Respondent’s application for reinstatement should be denied. His qualifications are
not stronger than one seeking admission for
the first time.
2016 OK 28
DONALD DEWAYNE MOORE, Plaintiff/
Appellant, v. WARR ACRES NURSING
CENTER, LLC., Defendant/Appellee.
No. 113,098. March 8, 2016
As Corrected March 9, 2016
APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY
Honorable Barbara G. Swinton, Trial Judge
¶0 The Warr Acres Nursing Center terminated the employment of the plaintiff,
Donald Dewayne Moore, after he called in
sick with influenza. The employee filed a
complaint in the District Court of Oklahoma County, alleging that he had been fired
in violation of public policy. The trial court
granted summary judgment to the employer and we retained the appeal. We hold that
terminating a licensed practical nurse for
missing work in a nursing center while
infected with influenza would violate public policy, but disputed facts exist as to the
reason for termination which preclude summary judgment.
TRIAL COURT REVERSED.
Marilyn D. Thomson, Oklahoma City, Oklahoma, for Appellant.
Daniel J. Hoehner, Oklahoma City, Oklahoma,
for Appellee.
KAUGER, J.:
609
¶1 We retained this cause to address the dispositive issue of whether terminating a licensed
practical nurse for missing work in a nursing
center based on vomiting on the job and a doctor’s note admitting that he should not work
for three days due to an infection with influenza would violate public policy.1 We hold that
it would. The public policy behind precluding
a nursing home employee from working while
infected with influenza is manifested in the
Oklahoma Constitution, the Oklahoma statutes, Oklahoma and Federal regulations and
caselaw. To hold otherwise would exacerbate
communicable disease and expose the most
vulnerable people. However, the reason for
termination of this employee may have had
nothing to do with whether he missed work
with the flu.
¶2 At-will employment is not in jeopardy or
threatened under these facts. Under the alleged
facts, this at-will employee could have been
legally terminated by the employer. The
employee’s disciplinary record at the nursing
center shows he was written up at least five
times for disregarding and failing to follow
supervisor’s instructions, spreading rumors,
failing to complete tasks, and rebellious behavior. One employee stated that he was belligerent when he found out he was not on the work
schedule. The employee’s employment history
appears to show a pattern of constantly moving from one job to another. This job appears to
have been his seventh in seven years. These
facts may reflect that the termination was neither pretextual, post hoc rationalization, nor a
violation of public policy. Nevertheless, that
issue is for the jury to decide.
FACTS
¶3 The plaintiff/appellant, Donald Dewayne
Moore (Moore/employee) worked for the
defendant/appellee Warr Acres Nursing Center (employer/Nursing Center) as a licensed
practical nurse. Moore began employment
around January 17, 2008. Moore, became acutely ill with the influenza while working on
November 25, 2008. The Nursing Center’s
director of nursing overheard Moore vomiting
at the Nursing Center. She stated that he did
not look good and that he must have a virus or
the flu and she told him to go home. After continuing to experience symptoms on the way
home, he went directly to his physician at the
Department of Veterans Affairs for treatment.
His physician treated him and issued a written
610
notice taking him off work for three days due
to his illness.2
¶4 According to Moore, he followed the
Nursing Center’s handbook procedures3 and
called the on-call scheduler and reported his
illness and his doctor’s directive, even though
he was not scheduled, he also offered to work
the upcoming weekend providing that he had
recovered. Otherwise, Moore informed the
scheduler that he would report to work Monday, and that he would bring his doctor’s note.
On November 26, 2008, the Nursing Center’s
director of nursing called Moore and he repeated the information he had previously given the
scheduler.
¶5 When the employee arrived at the Nursing Center on Sunday, November 30, 2008, to
deliver his doctor’s note, he discovered that he
had been crossed off of the work schedule for
the week of December 1, 2008 and he was subsequently discharged on December 3, 3008. On
April 15, 2010, the employee filed a lawsuit
against the nursing center alleging that he was
discharged for not being at work while suffering from influenza. He insisted that his discharge was unlawful and wrongful as against
public policy and against the Workers Compensation Act (the Act).4
¶6 On May 6, 2010, the employer filed a
motion to dismiss the employee’s lawsuit. The
employer sought dismissal for failure to state a
claim under the Act for which relief could be
granted and failure to articulate a clear public
policy which the employer violated. After a
hearing on June 18, 2010, the trial court granted the employer’s motion to dismiss for failure to state a claim upon which relief can be
granted and the order of dismissal was filed
on July 13, 2010.
¶7 The employee appealed, and the Court of
Civil Appeals, in an unpublished opinion filed
on December 8, 2010, reversed and remanded
with instructions. It upheld the trial judge’s
dismissal of the workers compensation claim.
However, it stated that a number of statutes,
Acts, and regulations of this State that may
well articulate a public policy of prohibiting a
health care worker from interacting with nursing home patients while having a communicable disease such as influenza. Nevertheless, the
court noted that the employee had neglected to
provide the specific legal authorities which
would support such a public policy.
Vol. 87 — No. 9 — 3/26/2016
¶8 The Court of Civil Appeals remanded the
matter to the trial court, holding that the
employee should have been given the opportunity to amend his petition and be afforded the
opportunity to show with particularity the
public policies upon which he relied and which
he contended were violated by his termination.
We denied certiorari in that appeal on February 14, 2011. The employee filed his first
amended petition on March 13, 2011.
¶9 Pursuant to the Court of Civil Appeals
instructions, the employee referenced Silver v.
CPC-Sherwood Manor, Inc. 2004 OK 1, 84 P.3d,
728, 63 O.S. 2011 §§1-1900.1 et seq (the Nursing
Care Act; 63 O.S. 2011 §§ 1-819 et seq. (The
Residential Care Act); Infection Control Regulations from the Department of Health, 310:6757-17.1 as well as federal regulations 42 CFR Ch.
V., Pt. 483, §483 (Infection Control) and §483.65,
§483.75, and Oklahoma Regulations, 9 OK Reg
3163, 10 OK Reg 1639, 24 OK Reg. 2030, 25 OK
Reg. 2382.
¶10 The employer, on March 23, 2011, again
attempted to have the lawsuit dismissed and
on April 18, 2011, the employee submitted 17
supplemental exhibits in opposition to the
employer’s motion to dismiss. These exhibits
included copies of specific statutes, state and
federal regulations and guidelines as well as
caselaw, all of which will be discussed herein.5
The exhibits were not merely broad references
to whole acts, but rather were specific sections
with the applicable provisions underlined, so
that the trial court could easily identify them.
The trial court again dismissed the case for
failure to state a claim upon which relief could
be granted on May 12, 2011. The employee
again appealed.
¶11 The Court of Civil Appeals, in another
unpublished opinion filed April 10, 2012, again
reversed and remanded for further proceedings. It held that unquestionably, the employee
shouldered the initial burden of proof by providing a well-pled cause of action sufficient to
withstand a motion to dismiss. However, once
he submitted evidentiary material to the trial
court, the analysis should have proceeded as one
for summary judgment, placing the burden on
the employer to prove no material facts were in
dispute and only a pure question of law
remained. We denied certiorari on May 29, 2012.
¶12 By December 5, 2013, after various pleadings and discovery requests were filed, the
employee filed a motion to set the case for a
Vol. 87 — No. 9 — 3/26/2016
jury trial. Discovery and depositions continued
until the employer filed a motion for summary
judgment on April 10, 2014, arguing that there
is no clear violation of a compelling public
policy. For purposes of the summary judgment
motion, the employer admitted all of the facts
that the employee alleged and accepted them
as true, but still insisted no cause of action
existed. The trial court held a hearing on the
motion for summary judgment on May 2, and
June 13, 2014. At the June 13, 2014, hearing, the
trial court said:
All right. Given that we’ve had the discovery of the key witness that had the authority to develop policy for the defendant, and
because the defendant, Warr Acres Nursing Center, no longer is a ongoing facility
I’ll find that there is no public policy to
prevent the termination of Mr. Moore, or a
violation of public policy upon the termination of Mr. Moore and sustain the summary judgment.
The journal entry reflecting the June 13, 2014,
ruling was filed July 3, 2014. The employee
appealed on August 1, 2014, and we retained
the cause on October 2, 2014, addressing the
public policy exception to at-will employment.
(It should be noted that the fact that Warr Acres
Nursing Center, L.L.C., is no longer in operation does not preclude the employee from
seeking a remedy, although it may affect what
Moore would be able to recover.6)
I.
BECAUSE THE RECORD REFLECTS
DISPUTED FACTS EXIST AS TO THE
REASONS FOR TERMINATION WHICH
WERE NEITHER PRETEXTUAL, POST
HOC RATIONALIZATIONS, NOR
VIOLATIONS OF PUBLIC POLICY
SUMMARY JUDGMENT WAS
INAPPROPRIATE.
¶13 Pursuant to Rule 13, 12 O.S.2011, Ch. 2
App., Rules for the District Courts, a motion
for summary judgment may be filed if the
pleadings, depositions, interrogatories, affidavits, and other exhibits reflect that there is no
substantial controversy pertaining to any material fact.7 A party opposing the motion may file
a written statement showing that a genuine
controversy exists. Affidavits and other evidentiary materials which are admissible at trial
may be attached in support of these facts. Even
when basic facts are undisputed, motions for
summary judgment should be denied, if under
611
the evidence, reasonable persons might reach
different inferences or conclusions from the
undisputed facts.8 Summary judgment is proper only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to
any material fact, and that the moving party is
entitled to judgment as a matter of law.9 All
conclusions drawn from the evidentiary material submitted to the trial court are viewed in
the light most favorable to the party opposing
the motion.10
¶14 The alleged facts show that this at-will
employee could certainly have been legally
terminated by the employer. Given the employee’s disciplinary record at the nursing center,
failure to follow supervisor’s instructions,
spreading rumors, failure to complete tasks,
and rebellious behavior, the termination likely
was neither pretextual, post hoc rationalization, nor a violation of public policy. Oklahoma
follows the at-will employment doctrine which
allows an employer to discharge an employee
for good cause, for no cause without being
guilty of legal wrong.11 However, summary
judgment was granted based on finding there
was no violation of public policy not on the
employee’s employment history or for no
cause. Instead, for the purpose of summary
judgment, the employer insisted that no cause
of action existed. There are material questions
of fact for the jury to decide.
II.
OKLAHOMA PUBLIC POLICY CLEARLY
ARTICULATES THAT A NURSE CANNOT
BE FIRED SOLELY FOR MISSING WORK
DUE TO AN INFLUENZA INFECTION.
¶15 For summary judgment purposes, the
employer admits and accepts the employee’s
version of the facts. The Nursing Center argues,
that as a matter of law, the employee has no
claim against it because the employee was an
at-will employee. The employee insists that he
was fired solely for not working with the flu
and that this is an exception to at-will employment as articulated by Burk v. K-Mart Corp.,
1989 OK 22, ¶17, 770 P.2d 24 and its progeny.
¶16 Burk involved a federal certified question concerning an alleged “implied obligation
of good faith and fair dealing” in reference to
termination of any employment-at-will contract. The Burk employee sued her employer in
contract and in tort, alleging that she was prevented from performing her job duties and
612
was, consequently, constructively discharged.
She further asserted that her employer’s agent
told her he would not recommend her for a
promotion because of her sex.
¶17 Although the Court rejected the implication of a duty of good faith and fair dealing in
every employment-at-will contract, Burk was
the landmark case wherein the Court adopted
a public policy exception to the at-will termination rule in a narrow class of cases in which the
discharge of an employee is contrary to the
clear mandate of public policy as articulated by
constitutional, statutory, or decisional law. We
recognized, for the first time, that the action
was a tort. We also noted that because the term
“public policy” was vague, the exception had
to be tightly circumscribed.12
¶18 In Clinton v. State of Oklahoma ex rel.
Logan County Election Board, 2001 OK 52, ¶10,
29 P.3d 543, the Court also clarified the parameters of the Burk tort remedy, noting that:
1) the plaintiff must identify an Oklahoma
public policy goal that is clear and compelling and is articulated in existing Oklahoma constitutional, statutory or jurisprudential law;
2) the existence of a federal statutory remedy or state statutory remedy which is sufficient to protect the identified Oklahoma
public policy goal precludes a Burk tort;
3) the plaintiff must establish he or she is
an at-will employee and the reason for discharge violates the identified Oklahoma
public policy goal;
4) a discharge for purposes of the Burk tort
may be either actual or constructive.
¶19 We again addressed the elements of a
Burk tort in Vasek v. Board of County Commissioners, 2008 OK 35, ¶¶27-28, 186 P.3d 928. It
involved a plaintiff who alleged wrongful termination for making a complaint to the Department of Labor (DOL) concerning mold at the
courthouse. The plaintiff’s action was based on
the fact that she alleged she was fired for
reporting her employer’s violation of the law.
We reiterated the elements of a Burk tort in
such circumstances, stating:
The elements of a claim for wrongful discharge of an at-will employee articulated in
Burk and its progeny can be summarized.
A viable Burk claim must allege (1) an
actual or constructive discharge (2) of an at-
Vol. 87 — No. 9 — 3/26/2016
will employee (3) in significant part for a
reason that violates an Oklahoma public
policy goal (4) that is found in Oklahoma’s
constitutional, statutory, or decisional law or
in a federal constitutional provision that prescribes a norm of conduct for Oklahoma and
(5) no statutory remedy exists that is adequate to protect the Oklahoma policy goal.
¶20 In Vasek, we equated “adequacy” of
remedies with “sufficiency,” in other words:
Were the remedies available to the plaintiff sufficient to protect Oklahoma’s public policy
goals? In this cause, the precise question of law
is not the employee’s sufficiency of remedies,
but rather whether Oklahoma’s constitutional,
statutory, or decisional law or in a federal constitutional provision even prescribes a norm of
conduct for Oklahoma that was violated. The
answer is overwhelmingly and clearly yes.
¶21 In Silver v. CPC-Sherwood Manor, Inc.,
2004 OK 1, 84 P.3d 728, we recognized that a
cook for a nursing home who was fired for
going to the emergency room with diarrhea
and throwing up stated a cause of action by
showing a public policy violation of the Oklahoma Administrative Code provisions of the
Oklahoma State Department of Health. We
noted that the public health codes “in a clear
and compelling fashion,” articulate a welldefined, firmly established, state public policy
prohibiting the holding, preparing, or delivering of food prepared under conditions whereby it may have been rendered diseased,
unwholesome, or injurious to health.
¶22 The nursing home’s alleged failure to
follow this policy stated a cause of action
under Burk sufficient to survive a motion to
dismiss for failure to state a claim. Yet, we
expressed no opinion as to the sufficiency or
quality of the plaintiff’s evidence, yet to be
presented, concerning the nursing home’s reason for dismissing the cook. The dissenters in
Silver, did not join the majority opinion because
there was no doctor’s diagnosis of a communicable disease. There is such a note in the present case.
¶23 Similar public health codes in a clear and
compelling fashion, also articulate a welldefined, firmly established, state public policy
prohibiting a nurse from working while infected with the influenza. The Okla. Const. art. 5
§39 directs the legislature to create the Board of
Health13 and art. 5 vests the Legislature the
power to establish agencies such as the OklaVol. 87 — No. 9 — 3/26/2016
homa Health Department and to designate
agency functions.14 The Legislature delegates
rule making authority to facilitate administration of legislative policy and such delegation
is intended to eliminate the necessity of establishing every administrative aspect of general
public policy by legislation.15 Administrative
agencies create rules which are binding similar to a statute and are only created within
legislatively-granted authority and approval.
Such rules are necessary in order to make a
statutory scheme fully operative.16
¶24 In Estes v. Conoco Phillips Co., 2008 OK
21, ¶10, 184 P.3d 518 we recognized that: 1)
pursuant to the Administrative Procedures
Act, 75 O.S. 2011 §§250-323, the Legislature
may delegate rulemaking authority to agencies, boards, and commissions to facilitate the
administration of legislative policy; and 2)
Administrative rules are valid expressions of
lawmaking powers having the force and effect
of law.
¶25 The Oklahoma Department of Health
Regulations §310:675-7-17-1, which were statutorily mandated17 to implement the Nursing
Home Care Act,18 to cover infection control and
require nursing home facilities to have an
infection control policy to provide a safe and
sanitary environment. This policy is required
to include provisions excluding personnel and
visitors with communicable infections19 as well
as to ensure the health of its residents.20 A
nurse’s license may be withdrawn for failing to
follow minimum quality of care standards.21
¶26 In addition to the Oklahoma statutory
directives, Federal law regulates the states,
including Oklahoma, when it comes to infectious disease control. For example, the regulation governing medicare & medicaid services
requires facilities to control infectious diseases
by prohibiting employees with communicable
disease to come in direct contact with residents.22 Federal quality of care standards also
require development of policy and procedures
to ensure that residents in a nursing home are
protected from influenza and pneumonia.23
Nursing facilities must comply with all Federal, State, and local laws regarding regulations
and professional standards of care.24
¶27 Clearly, it cannot be said the there are not
constitutional, statutory or caselaw public policy manifestations which would prohibit a
registered nurse from working with the flu.
The present cause is just like Silver, supra. In
613
Silver, a nursing home cook was fired for missing work because he suffered with a virus,
even though statutes prohibited nursing home
food to be prepared under conditions whereby
it may have been unwholesome or injurious to
health.25 Here, a nurse was fired for missing
work because he suffered with a virus even
though health codes prohibited nurses from
working while infected with influenza.
¶28 Title 63 O.S. 2011 §1-1102 and §1-10926
prohibit the handling of food which may have
been rendered diseased, unwholesome, or injurious to health. The Oklahoma Department of
Health Regulations §310: 675-17-1 require the
exclusion of personnel and visitors with communicable infections in nursing homes.27 The
Nursing Center provided the employee’s job
description in its motion for summary judgment. It required him to check foods brought
into the facility, make sure they were appropriate according to order and allowances, report
dietary changes, and assist in infection control
to ensure that tasks in which there is a potential
exposure were properly identified.28 The statutes, coupled with his job description, put this
employee in a better position than Silver. The
only difference between this cause and Silver is
that in this cause, the employee suffered from a
communicable disease diagnosed by a doctor.
The reason for the dissenting opinion in Silver
was because the employee was not diagnosed
by a doctor as having a communicable disease.
Stare decisis and consistent jurisprudence compel this conclusion. Otherwise, we must overrule Silver v. CPC-Sherwood Manor, Inc., 2004
OK 1, 84 P.3d 728.
¶29 There were over 100 people who died in
Oklahoma from the flu last year. Obviously
precautions must be taken to prevent the transfer of such a communicable and potentially
deadly disease. A recap of Clinton v. State of
Oklahoma ex rel. Logan County Election Board,
2001 OK 52, ¶10, 29 P.3d 543, which sets the
parameters of the Burk tort remedy is compelling. It requires that:
1) the plaintiff must identify an Oklahoma
public policy goal that is clear and compelling and is articulated in existing Oklahoma
constitutional, statutory or jurisprudential
law;
[The employee furnished a plethora of
legal authorities delineating public policy
goals.]
614
2) the existence of a federal statutory remedy or state statutory remedy which is sufficient to protect the identified Oklahoma
public policy goal precludes a Burk tort;
[There is no federal or state remedy. The
public policy exception was recognized in
Silver v. CPC-Sherwood Manor, Inc., 2004
OK 1, 84 P.3d 728.]
3) the plaintiff must establish he or she is
an at-will employee and the reason for discharge violates the identified Oklahoma
public policy goal;
[The employee has established that he is an
at-will employee. If, it were to be found by
the trier of facts that his absence due to
influenza was the reason for his termination, it would violate Oklahoma public
policy.]
4) a discharge for purposes of the Burk tort
may be either actual or constructive.
[It was undisputed that he was discharged.]
¶30 Accordingly, based on the constitution,
the statutes, the regulations approved by Congress and the Oklahoma Legislature, and the
Nursing Center’s rules, regulations and handbook, a public policy exception exists which
would prohibit a nurse from being fired solely
for not working while infected with influenza.
This is an exception to at-will employment as
articulated by Burk v. K-Mart Corp., 1989 OK
22, ¶17, 770 P.2d and its progeny. This holding,
however does not end the inquiry of this cause
because disputed facts are alleged which show
that the firing had nothing to do with not
working with the flu.
CONCLUSION
¶30 Summary judgment was inappropriate.
Oklahoma as well as federal law clearly shows
that a nurse in a nursing center cannot be fired
for not working with the flu. However, the disputed facts show that this employee’s firing
may have had very little to do with his threeday absence from work with the flu.
TRIAL COURT REVERSED.
REIF, C.J., COMBS, V.C.J., KAUGER, WATT,
EDMONDSON, COLBERT, GURICH, JJ., concur.
WINCHESTER, (by separate writing) and TAYLOR, JJ., dissent.
Vol. 87 — No. 9 — 3/26/2016
Winchester, J., with whom Taylor, J., joins, dissenting:
¶1 I respectfully dissent.
¶2 This employer did not require the employee to work his schedule nor remain at work
and do other duties not associated with direct
patient care. While I understand the summary
judgment aspect, the majority nevertheless
acknowledged that the termination of this
employee was likely the result of actual misconduct. The majority opinion clearly impacts
and restricts employment-at-will. I do not take
issue with a health department rule that protects patient exposure. But, the employer
should be given the flexibility to evaluate his
employee’s absence from work and also the
flexibility to determine whether alternative
duties are appropriate and consistent with the
employment contract. The practical impact of
this Court’s holding is to expand the public
policy exception to employment-at-will, which
will now be governed by administrative rules
and regulations. After this case becomes law,
an employer must consult those rules and regulations before exercising the decision to terminate an employee.
¶3 The rule of stare decisis does not support
the majority opinion. My reading of the opinion is that public policy is now also found in
“Oklahoma and Federal regulations.”1 The
majority opinion cites the at-will employment
rule as established by stare decisis. In ¶ 18 of
that opinion the Court quotes: “1) the plaintiff
must identify an Oklahoma public policy goal
that is clear and compelling and is articulated
in existing Oklahoma constitutional, statutory
or jurisprudential law. . . .” The majority opinion in ¶ 20 poses the “precise question of law”
as “whether Oklahoma’s constitutional, statutory, or decisional law or . . . a federal constitutional provision even prescribes a norm of
conduct for Oklahoma that was violated.” The
opinion then answers “overwhelmingly and
clearly yes.”
¶4 The majority opinion cites Silver v. CPCSherwood Manor, Inc., 2004 OK 1, 84 P.3d 728,
and pronounces a result not found in the Silver
opinion: “In Silver . . . we recognized that a
cook for a nursing home who was fired for
going to the emergency room with diarrhea
and throwing up stated a cause of action by
showing a public policy violation of the Oklahoma Administrative Code provisions of the
Vol. 87 — No. 9 — 3/26/2016
Oklahoma State Department of Health.” Majority Opinion, ¶ 21. Emphasis added.
¶5 The majority opinion continues in the
same paragraph that the public health codes
“’in a clear and compelling fashion’ articulate a
well-defined, firmly established, state public
policy prohibiting the holding, preparing, or
delivering of food prepared under the conditions whereby it may have been rendered diseased, unwholesome, or injurious to health.”
That holding is not found in Silver.
¶6 An examination of that opinion reflects
that the Silver majority attempted to continue
to restrict “public policy” to statutes, as
opposed to administrative regulations. The
Silver Court does not cite Administrative Code
provisions as setting public policy. In fact, it
specifically disclaims such a position: “This
Court need not mire itself in the controversy
which confronted the Court of Civil Appeals
concerning whether certain agency rules promulgated by the Oklahoma Department of
Health provide a permissible source of public
policy in this matter.” Silver, 2004 OK 1, ¶ 6, 84
P.3d at 730.
¶7 The statutes cited in Silver were from title
63, and are now codified at 63 O.S.2011, §§
1-1102, and 1-1109. The Silver Court held: “ Sections 1-1102(a), (c) and 1-1109(a)(4) articulate,
in a clear and compelling fashion, a welldefined, firmly established, state public policy
prohibiting the holding, preparing, or delivering of food prepared under conditions whereby it may have been rendered diseased,
unwholesome, or injurious to health.” Silver,
2004 OK 1, ¶ 7, 84 P.3d at 730.
¶8 The new, and previously rejected rule,
comes in ¶ 23 of the majority opinion of the
case now before this Court: “Similar public
health codes in a clear and compelling fashion,
also articulate a well-defined, firmly established, state public policy prohibiting a nurse
from working while infected with the influenza.” The Court attempts its support of this new
rule by linking article 5, § 39 of Oklahoma’s
Constitution, which vests legislative power to
establish agencies, to the subsequent establishment of agencies. Then when administrative
agencies promulgate rules, the majority opinion concludes that because administrative
agencies create rules that are binding “similar
to” statutes, and because those rules are authorized and approved by the Oklahoma Legisla-
615
ture, then these are somehow equivalent to
statutory law. That reasoning is faulty.
¶9 Public policy cannot be delegated to an
administrative agency. Section 1 of article IV of
the Oklahoma Constitution provides:
“The powers of the government of the
State of Oklahoma shall be divided into
three separate departments: The Legislative, Executive, and Judicial; and except as
provided in this Constitution, the Legislative, Executive, and Judicial departments
of government shall be separate and distinct, and neither shall exercise the powers
properly belonging to either of the others.”
¶10 Section 1 of article V of the Oklahoma
Constitution requires that “The Legislative
authority of the State shall be vested in a Legislature consisting of a Senate and House of
Representatives. . . .” From these constitutional
provisions comes the prohibition against the
delegation of legislative power.
¶11 The Court in Democratic Party v. Estep,
1982 OK 106, ¶ 16, n. 23, 652 P.2d 271, 277 n. 23
(1982) observed that this prohibition against
the delegation of legislative power “rests on
the premise that the legislature must not abdicate its responsibility to resolve fundamental
policy making by [1] delegating that function
to others or [2] by failing to provide adequate
directions for the implementation of its
declared policy.” Declaring that a violation of
the Oklahoma Administrative Code provisions
of the Oklahoma State Department of Health is
a violation of public policy and therefore fits
within the exception to at-will employment
articulated in Burk v. K-Mart Corp., 1989 OK 22,
¶ 17, 770 P.2d 24, 28, is not supported by our
case law.
¶12 “The terminable-at-will employment
doctrine allows an employer to discharge an
employee for good cause, no cause, or even for
a morally wrong cause without being liable for
a legal wrong.” Reynolds v. Advance Alarms,
Inc., 2009 OK 97, ¶ 5, 232 P.3d 907, 909. “The
Burk tort does not even protect an employee
from the employer’s poor business judgment,
or corporate foolishness. Shero v. Grand Savings
Bank, 2007 OK 24, ¶ 12, 161 P.3d 298, 302. In
Darrow v. Integris Health, Inc. 2008 OK 1, ¶ 13,
176 P.3d 1204, 1211, that Court held that even a
federal statute by itself cannot serve as an
articulation of Oklahoma public policy absent
a specific Oklahoma court decision, statute or
constitutional provision.
616
¶13 If administrative rules are added to the
list of sources for finding a violation of a clear
mandate of public policy, I do not see how a
Burk tort can be described as a “tightly circumscribed framework.” Shero, 2007 OK 24, ¶ 12,
161 P.3d at 303. Including administrative rules
within the public policy exception greatly
expands the Burk tort, placing a greater burden
on employers who must search through those
rules to determine whether termination of an
employee will be against public policy. This
new at-will employment rule forces employers
to require that they terminate employees only
if an articulable and provable good cause can
be shown. The majority’s holding continues to
erode the right of employers to manage their
businesses on a day-to-day basis.
¶14 I would affirm the summary judgment of
the trial court.
KAUGER, J.:
1. In his Third Amended Petition in Error, the appellant attaches an
exhibit listing 50 issues to be raised on appeal. Included in that exhibit
are many arguments and authorities Appellant had not previously
presented to the trial court in his motion to vacate the grant of summary
judgment and the Appellee has moved to strike most of the exhibit,
arguing it violates the rules of accelerated procedure for summary
judgement. We agree. Okla. Sup. Ct. Rule 1.36, 12 O.S. 2011 App. 1.
2. The note is signed from Dr. Quang Van Pham, a Staff Physician
at the Department of Veterans Affairs Medical Center in Oklahoma
City, Oklahoma, dated November 25, 2008 and it provides:
To Whom It May Concern:
Mr. Moore may return to work in three days.
Please contact me for further assistance.
3. The Warr Acres Nursing Center Handbook provides:
Absenteeism
All employees are expected to report to work as scheduled
on time. It is the responsibility of the employee to notify
her/his supervisor when illness or other circumstances
prevent them from reporting to work. Please note that you
must call your SUPERVISOR not a peer.
Except in a life-threatening emergency, all employees must
personally call their supervisor two (2) hours before his/
her inability to report to work. No Call No Show is a
CRITICAL violation and may result in termination per
policy.
Upon your return to work, you will be asked for the reason of
absence which will be documented and put into your personnel record. The facility reserves the right to request proof of the
reason for absenteeism, ie. a written physician’s statement,
death notice, etc. [It appears the employee underlined the most
relevant portions in order for the trial court to easily identify
them.]
4. Title 85 O.S. Supp. 2011 §§ 1 et. seq The current version is known
as the Administrative Workers Compensation Act, 85A O.S. Supp. 2013
§§1 et seq.
5. The exhibit list includes: Oklahoma Department of Health Regulation §310: 675-7-17-1 governing infection control in nursing homes;
42 Code of Federal Regulation §483.65, governing facilities which
provide medicare & medicaid services; 42 CFR §483.25(n), quality of
care, 59 O.S. §567.8 (Nursing Practice Act) 42 CFR §483.75, compliance
with local laws and standards; Silver v. CPC-Sherwood Manor, Inc,
2004 OK 1, 84 P.3d 728, Moore v. Warr Acres Nursing Center, LLC, No.
108,595, prior appeal; Warr Acres Nursing Center’s Employee Handbook, a Physician’s written statement taking the employee off work for
three days; 42 CFR §§70.1(a)-(d) providing the definition of communicable diseases; 45 CFR §482.42 conditions of participation in Medicare/
Medicaid; Band v. Baptist Village Retirement Communities of Oklahoma, Inc., 2009 WL 5216927 (N.D. Okla. 12-30-2009); U.S. Govern-
Vol. 87 — No. 9 — 3/26/2016
ment Operations Manual for all states to regulate compliance with
long term care facilities.
6. The Nursing Center is a L.L.C. which is apparently no longer in
business. Title 18 O.S. 2011 §2037(B) provides that:
B. A limited liability company continues in existence after dissolution, regardless of whether articles of dissolution are filed,
but may carry on only activities necessary to wind up its business or affairs and liquidate its assets under Sections 2039 and
2040 of this title.
Title 18 O.S. 2011 §2039(A)(2) provides:
2. The persons winding up the business or affairs of the limited
liability company may, in the name of, and for and on behalf
of, the limited liability company:
a. prosecute and defend suits,
b. settle and close the business of the limited liability company,
c. dispose of and transfer the property of the limited liability
company,
d. discharge the liabilities of the limited liability company, and
e. distribute to the members any remaining assets of the limited liability company.
7. Rules for District Courts of Oklahoma, Rule 13 12 O.S. 2011, Ch.
2, App., provides in pertinent part:
a. A party may move for either summary judgment or summary disposition of any issue on the merits on the ground that
the evidentiary material filed with the motion or subsequently
filed with leave of court show that there is no substantial controversy as to any material fact. The motion shall be accompanied by a concise written statement of the material facts as to
which the movant contends no genuine issue exists and a
statement of argument and authority demonstrating that summary judgment or summary disposition of any issues should
be granted. Reference shall be made in the statement to the
pages and paragraphs or lines of the evidentiary materials that
are pertinent to the motion. Unless otherwise ordered by the
court, a copy of the material relied on shall be attached to or
filed with the statement. . . .
c. The affidavits that are filed by either party shall be made on
personal knowledge, shall show that the affiant is competent to
testify as to the matters stated therein, and shall set forth matters that would be admissible in evidence at trial. The admissibility of other evidentiary material filed by either party shall
be governed by the rules of evidence. If there is a dispute
regarding the authenticity of a document or admissibility of
any submitted evidentiary material, the court may rule on the
admissibility of the challenged material before disposing of the
motion for summary judgment or summary disposition. A
party challenging the admissibility of any evidentiary material
submitted by another party may raise the issue expressly by
written objection or motion to strike such material. Evidentiary
material that does not appear to be convertible to admissible
evidence at trial shall be challenged by objection or motion to
strike, or the objection shall be deemed waived for the purpose
of the decision on the motion for summary judgment or summary disposition. If a trial of factual issues is required after
proceedings on a motion for summary judgment or summary
disposition, evidentiary rulings in the context of the summary
procedure shall be treated as rulings in limine. . . .
e. If it appears to the court that there is no substantial controversy as to the material facts and that one of the parties is
entitled to judgment as a matter of law, the court shall render
judgment for said party. . . .
8. Brown v. Oklahoma State Bank & Trust Company of Vinita, 1993
OK 117, ¶7, 860 P.2d 230.
9. Brown v. Oklahoma State Bank & Trust Company of Vinita, see
note 8, supra.
10. Brown v. Oklahoma State Bank & Trust Company of Vinita, see
note 8, supra.
11. City of Jenks v. Stone, 2014 OK 11, ¶13, 321 P.3d 179.
12. Three years after Burk, we promulgated Tate v. Browning Ferris, Inc, 1992 OK 72, 833 P.2d 1218. Tate involved the question of
whether a Burk tort could be asserted for racial discrimination, to
which we answered — yes. The history and evolution of the Burk tort
is detailed in our opinion in Kruchowski v. Weyerhaeuser Company,
2008 OK 105, 202 P.3d 144.
13. The Okla. Const. art. 5 §39 provides:
Boards of Health, Dentistry and Pharmacy - Pure Food Commission - Present practitioners.
The Legislature shall create a Board of Health, Board of Dentistry, Board of Pharmacy, and Pure Food Commission, and
prescribe the duties of each. All physicians, dentists and pharmacists now legally registered and practicing in Oklahoma
Vol. 87 — No. 9 — 3/26/2016
and Indian Territory shall be eligible to registration in the State
of Oklahoma without examination or cost.
14. Title 75 O.S. Supp. 2013 §250.2(A) provides:
A. Article V of the Oklahoma Constitution vests in the Legislature the power to make laws, and thereby to establish agencies
and to designate agency functions, budgets and purposes.
Article VI of the Oklahoma Constitution charges the Executive
Branch of Government with the responsibility to implement all
measures enacted by the Legislature.
15. Title 75 O.S. Supp. 2013 §250.2(B) provides:
B. In creating agencies and designating their functions and
purposes, the Legislature may delegate rulemaking authority
to executive branch agencies to facilitate administration of
legislative policy. In so doing, however, the Legislature
reserves to itself:
1. The right to retract any delegation of rulemaking authority
unless otherwise precluded by the Oklahoma Constitution;
2. The right to establish any aspect of general policy by legislation, notwithstanding any delegation of rulemaking authority;
3. The right and responsibility to designate the method for rule
promulgation, review and modification;
4. The right to approve or disapprove any adopted rule by joint
resolution; and
5. The right to disapprove a proposed permanent, promulgated or emergency rule at any time if the Legislature determines
such rule to be an imminent harm to the health, safety or welfare of the public or the state or if the Legislature determines
that a rule is not consistent with legislative intent.
16. See, Estes v. Conoco Phillips Co., 2008 OK 21, ¶10, 184 P.3d 518
[Pursuant to the Administrative Procedures Act, 75 O.S. 2001 §§250323, the Legislature may delegate rulemaking authority to agencies,
boards, and commissions to facilitate the administration of legislative
policy. Administrative rules are valid expressions of lawmaking powers having the force and effect of law.]; See Chevron, U.S.A, Inc. v.
NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.ED.2d 694 for discussion of
the controlling weight given to an administrative agency and administrative agency’s power and necessity to formulate policy and fill any
gaps left implicitly or explicitly by Congress; Been v. O.K Industries,
Inc., 495 F.3d 1217, 1226 [Regulations promulgated by an agency exercising its congressionally granted rule-making authority are entitled to
Chevron deference and have the ful force of law.]
17. In addition to specifically implementing the Nursing Home
Care Act, required the State Board of Health to promulgate rules and
establish procedures for nursing facilities. For example, 63 O.S. 2011
§1-1942 provides:
The Department shall have the power to adopt rules and regulations in furtherance of the purpose of this act.
Title 63 O.S. 2011 §1-1900.2 provides:
A. It is the intent of the Legislature to foster the development
of resident autonomy, individualization and culture change in
nursing facilities licensed by the State Department of Health.
B. The Commissioner of Health is authorized to waive any
provision of the Nursing Home Care Act and any rules promulgated pursuant thereto, provided:
1. The waiver will not cause the State of Oklahoma to fail to
comply with any applicable requirements established by the
Centers for Medicare and Medicaid Services;
2. The waiver is granted to allow a nursing facility to satisfy the
spirit of a statutory or administrative requirement by alternative means;
3. The waiver will not adversely affect the health, safety or
welfare of any resident of a nursing facility; and
4. The waiver is in support of a deinstitutionalization model
that restores individuals to a self-contained residence in the
community that is designed like a private home and houses no
more than twelve individuals.
C. The State Board of Health shall promulgate rules and establish procedures necessary to implement the waiver process
established by this section.
Title 63 O.S. 2011 §1-836 provides in pertinent part:
A. The State Board of Health shall promulgate rules to enforce
the provisions of the Residential Care Act. Such rules shall
regulate:
1. Location and construction of the home, including plumbing,
heating, lighting, ventilation, and other physical conditions
which shall ensure the health, safety, and comfort of residents
and protection from fire hazards;
2. Number of all personnel, including management and supervisory personnel, having responsibility for any part of the care
given to residents. The Department shall establish staffing
ratios for homes which shall specify the number of staff hours
617
of care per resident that are needed for care for various types
of homes or areas within homes. Minimum personnel ratio
requirements for all homes shall be based only on average
daily census;
3. All sanitary conditions within the home and its surroundings, including water supply, sewage disposal, food handling,
and general hygiene, which shall ensure the health and comfort of residents; . . .
18. Oklahoma Department of Health Regulation §310: 675-1-1 Purpose, provides:
The purpose of this Chapter is to implement the ‘Nursing
Home Care Act’ (63 O.S. 1991 §§ 1-1901 et seq.) And to establish the minimum criteria for the issuance or renewal of a nursing or specialized facility license.
Title 63 O.S. 2011 §1-1900.1 was added in 2001 and it provides:
A. This act shall be known and may be cited as the “Long-Term
Care Reform and Accountability Act of 2001.”
B. The purpose of the Long-Term Care Reform and Accountability Act of 2001 shall be to design, develop and implement
policies and procedures that improve the quality of care provided in this state’s long-care delivery system for the elderly
and disabled. The purpose of the Long-Term Care Reform and
Accountability Act of 2001 shall be accomplished through a
series of initiatives.
The short title of the act is found in §1-1901 and it provides:
This act shall be known and may be cited as the “Nursing
Home Care Act.”
19. Oklahoma Department of Health Regulations §310: 675-17-1
provides in pertinent part:
(a) The facility shall have an infection control policy and procedures to provide a safe and sanitary environment. The policy
shall address the prevention and transmission of disease and
infection. The facility, and its personnel, shall practice the universal precautions identified by the Centers for Disease Control. All personnel shall demonstrate their knowledge of universal precautions through performance of duties.
(b) The facility shall maintain a sanitary environment and prevent the development and transmission of infection in the following areas.
...
(7) Sources of air-borne infections.
(8) Health status of all employees and residents. . . .
(c) Infection control policies to prevent the transmission of
infection shall include the following:
(1) Excluding personnel and visitors with communicable infections. . . .
Federal guidelines define communicable disease. Title 42 Code of
Federal Regulations, §70.1(a-d), vol. 4, provides:
As used in this part, terms shall have the following meaning:
(a) Communicable diseases means illnesses due to infectious
agents or their toxic products, which may be transmitted from
a reservoir to a susceptible host either directly as from an
infected person or animal or indirectly through the agency of
an intermediate plant or animal host, vector, or the inanimate
environment.
(b) Communicable period means the period or periods during
which the etiologic agent may be transferred directly or indirectly from the body of the infected person or animal to the
body of another.
(c) Conveyance means any land or air carrier, or any vessel as
defined in paragraph (h) of this section.
(d) Incubation period means the period between the implanting of disease organisms in a susceptible person and the
appearance of clinical manifestation of the disease.
20. Title 63 O.S. 2011 §1-1925 provides in pertinent part:
The State Department of Health shall prescribe minimum standards for facilities. These standards shall regulate:
1. Location and construction of the facility, including plumbing,
heating, lighting, ventilation, and other physical conditions
which shall ensure the health, safety and comfort of residents
and protection from fire hazards;
2. Number and qualifications of all personnel, including management and nursing personnel, having responsibility for any
part of the care given to residents; specifically, the Department
shall establish staffing ratios for facilities which shall specify
the number of staff hours per resident of care that are needed
for professional nursing care for various types of facilities or
areas within facilities;
3. All sanitary conditions within the facility and its surroundings, including water supply, sewage disposal, food handling,
618
and general hygiene, which shall ensure the health and comfort of residents;. . .
Title 63 O.S. 2011 §1-821 provides in pertinent part:
A. The State Board of Health shall promulgate rules to enforce
the provisions of the Residential Care Act which shall include,
but not be limited to, provisions for temperature settings, lighting, ventilation, and other physical conditions that affect the
health, safety and welfare of the residents in a home. Residential care homes that provide care for three or fewer residents
shall be subject to the provisions of the Residential Care Act;
provided, however, if such rules unduly restrict operation of
the home, the Board shall be authorized and shall promulgate
additional rules for residential care homes based upon the
number of residents in a home. . . .
21. Title 59 O.S. 2011 §567.8 provides in pertinent part:
B. The Board shall impose a disciplinary action against the
person pursuant to the provisions of subsection A of this section upon proof of one or more of the following items. The
person: . . .
3. Fails to adequately care for patients or to conform to the
minimum standards of acceptable nursing or Advanced Unlicensed Assistant practice that, in the opinion of the Board,
unnecessarily exposes a patient or other person to risk of harm;
...
Title 63 O.S. 2011 §1-825 provides:
Any person who violates any of the provisions of the Residential Care Act, the rules promulgated pursuant thereto by the
State Board of Health, or any order or determination of the
State Department of Health pursuant to the provisions of the
Residential Care Act, or who fails to perform any duty
imposed upon such person by the provisions of the Residential
Care Act, shall be subject to any of the following penalties and
liabilities as authorized by the provisions of the Residential
Care Act:
1. License revocation, suspension, or nonrenewal;
2. Transfer of residents;
3. Temporary manager;
4. Injunctive proceedings;
5. Civil fines; and
6. Criminal penalties as provided in Section 1-832 of this title.
22. Title 42 Code of Federal Regulations, §483, vol. 4, Part 483
Requirements for States and Long Term Care Facilities, Sec. 483.65
provides:
Infection control.
The facility must establish and maintain an infection control
program designed to provide a safe, sanitary, and comfortable
environment and to help prevent the development and transmission of disease and infection.
(a) Infection control program. The facility must establish an
infection control program under which it—
(1) Investigates, controls, and prevents infections in the facility;
(2) Decides what procedures, such as isolation, should be
applied to an individual resident; and
(3) Maintains a record of incidents and corrective actions
related to infections.
(b) Preventing spread of infection.
(1) When the infection control program determines that a resident needs isolation to prevent the spread of infection, the
facility must isolate the resident.
(2) The facility must prohibit employees with a communicable
disease or infected skin lesions from direct contact with residents or their food, if direct contact will transmit the disease.
(3) The facility must require staff to wash their hands after each
direct resident contact for which handwashing is indicated by
accepted professional practice.
(c) Linens. Personnel must handle, store, process, and transport linens so as to prevent the spread of infection.
Title 45 Code of Federal Regulations §482.42 provides:
§482.42 Condition of participation: Infection control.
The hospital must provide a sanitary environment to avoid
sources and transmission of infections and communicable diseases. There must be an active program for the prevention,
control, and investigation of infections and communicable
diseases.
(a) Standard: Organization and policies. A person or persons
must be designated as infection control officer or officers to
develop and implement policies governing control of infections and communicable diseases. The infection control officer
or officers must develop a system for identifying, reporting,
investigating, and controlling infections and communicable
diseases of patients and personnel.
Vol. 87 — No. 9 — 3/26/2016
(b) Standard: Responsibilities of chief executive officer, medical
staff, and director of nursing services. The chief executive officer, the medical staff, and the director of nursing services
must—
(1) Ensure that the hospital-wide quality assessment and performance improvement (QAPI) program and training programs address problems identified by the infection control
officer or officers; and
(2) Be responsible for the implementation of successful corrective action plans in affected problem areas.
23. Title 42 Code of Federal Regulations, §483, vol. 4, (2008), Part
483 Requirements for States and Long Term Care Facilities, Sec. 483.25
. . .(n) Influenza and pneumococcal immunizations—
(1) Influenza. The facility must develop policies and procedures that ensure that—
(i) Before offering the influenza immunization, each resident or
the resident’s legal representative receives education regarding
the benefits and potential side effects of the immunization;
(ii) Each resident is offered an influenza immunization October
1 through March 31 annually, unless the immunization is
medically contraindicated or the resident has already been
immunized during this time period;
(iii) The resident or the resident’s legal representative has the
opportunity to refuse immunization; and
(iv) The resident’s medical record includes documentation that
indicates, at a minimum, the following:
(A) That the resident or resident’s legal representative was
provided education regarding the benefits and potential side
effects of influenza immunization; and
(B) That the resident either received the influenza immunization or did not receive the influenza immunization due to
medical contraindications or refusal. . . .
24. Title 42 Code of Federal Regulations, §483, vol. 4, (2008), Part
483 Requirements for States and Long Term Care Facilities, Sec. 483.75
A facility must be administered in a manner that enables it to
use its resources effectively and efficiently to attain or maintain
the highest practicable physical, mental, and psychosocial
well-being of each resident.
(a) Licensure. A facility must be licensed under applicable State
and local law.
(b) Compliance with Federal, State, and local laws and professional standards. The facility must operate and provide services in compliance with all applicable Federal, State, and local
laws, regulations, and codes, and with accepted professional
standards and principles that apply to professionals providing
services in such a facility. . . .
25. Title 63 O.S. 2011 §1-1102(a), (c) provides in pertinent part:
The following acts and the causing thereof within the State of
Oklahoma are hereby prohibited:
(a) the manufacture, sale, or delivery, holding or offering for
sale of any food that is adulterated or misbranded. . . .
(c) the receipt in commerce of any food that is adulterated or
misbranded, and the delivery or proffered delivery thereof for
pay or otherwise.
Title 63 O.S. 2011 §1-1109(a)(4) provides:
A food shall be deemed to be adulterated:
(a) . .(4) if it has been produced, prepared, packed, or held
under insanitary conditions whereby it may have been rendered diseased, unwholesome, or injurious to health; . . .
26. Title 63 O.S. 2001 §§1-1102 and 1-1109, see note 25, supra.
27. Oklahoma Department of Health Regulations §310: 675-17-1,
see note 19, supra. See also, 63 O.S. 2011 §1-836, see note 17, supra; 42
Code of Federal Regulations, §70.1(a-d), vol. 4, see note 9, supra; 63
O.S. 2011 §1-1925 see note 10, supra; 63 O.S. 2011 §1-821 see note 10,
supra; 42 C1ode of Federal Regulations, §483.65, see note 22, supra; 45
Code of Federal Regulations §482.42, see note 22, supra; 42 Code of
Federal Regulations §483.25, see note 23, supra.
28. Moore’s job description was provided by the Nursing Center
and it is found in the record at tab 33 attached as exhibit #2 to the Nursing Center’s motion for summary judgment and brief. A charge nurse’s
duties state:
Duties
Responsibilities. . .
*Report all discrepancies noted concerning physicians orders,
diet change, charting errors, etc, to the Director. . .
Nursing:. . .
*Check foods brought into facility and make sure they are
appropriate/according to order and allowances. Reports any
problems to the DON and Dietary Supervisor. . .
Vol. 87 — No. 9 — 3/26/2016
*Assist in infection control to ensure that tasks in which there
is a potential exposure to blood/bodily fluids are properly
identified. . . .
Winchester, J., with whom Taylor, J., joins, dissenting:
1. Majority Opinion, ¶ 1 proclaims: “The public policy behind
precluding a nursing home employee from working while infected
with influenza is manifested in the Oklahoma Constitution, the Oklahoma statutes, Oklahoma and Federal regulations and caselaw.” Emphasis added.
2016 OK 29
IN RE: AMENDMENT OF RULE 5 OF THE
RULES GOVERNING ADMISSION TO
THE PRACTICE OF LAW, 5 O.S. Supp. 2015,
ch. 1, app. 5
SCBD 6349. March 7, 2016
ORDER
Rule 5 of The Rules Governing Admission to
the Practice of Law in the State of Oklahoma,
attached hereto, is hereby amended, effective
June 1, 2016.
March, 2016.
/s/ John F. Reif
CHIEF JUSTICE
ALL JUSTICES CONCUR
Rules Governing Admission to the Practice
of Law in the State of Oklahoma
Chapter 1, App. 5
Rule 5. Examination.
All applicants for admission by examination
who shall have attained a grade of at least 75 in
the subject of Oklahoma Rules of Professional
Conduct and who shall attain an average grade
of at least 75 on the examination given by the
Board of Bar Examiners covering The Multistate Bar Examination (MBE) and combinations of the subjects hereinafter specified, and
who are otherwise qualified under these Rules,
shall be recommended by the Board of Bar
Examiners for admission to the practice of law
in this state.
All applicants for admission by examination who:
A) shall have attained a grade of at least
75% in the subject of Oklahoma Rules of
Professional Conduct;
B) shall have attained an average grade of at
least 75% on the examination given by the
619
Board of Bar Examiners covering combinations of the subjects hereinafter specified;
The following examination shall cover
combinations of the following subjects:
1. Oklahoma Rules of Professional Conduct
2. Commercial Law, which may include:
(a) Contracts
(b) Uniform Commercial Code
(c) Consumer Law
(d) Creditor’s rights, including bankruptcy
3. Property
4. Procedural Law, which may include:
(a) Pleadings
(b) Practice
(c) Evidence
(d) Remedies (damages, restitution and
equity)
5. Criminal Law
6. Business Associations, which may
include:
(a) Agency
(b) Partnerships (including joint ventures)
(c) Corporations
(d) Limited Liability Companies
on the subject Oklahoma Rules of Professional
Conduct. Such re-examination shall be conducted by the Board at a time and place to be
fixed by the Board and may be written or oral
or both. If, upon such reexamination, the applicant receives a satisfactory grade in the subject
Oklahoma Rules of Professional Conduct and
is found by the Board to have otherwise qualified to be recommended for admission to the
Bar, such applicant shall thereupon be so recommended. Any applicant who fails to receive
a satisfactory grade upon such reexamination
shall be required to reapply for permission to
take a further examination concerning the
Oklahoma Rules of Professional Conduct,
which may be given at the discretion of the
Board.
The following examination shall cover combinations of the following subjects:
1. Oklahoma Rules of Professional Conduct
2. Commercial Law, which may include:
(a) Contracts
(b) Uniform Commercial Code
(c) Consumer Law
(d) Creditor’s rights, including bankruptcy
3. Property
7. Constitutional and Administrative Law
4. Procedural Law, which may include:
8. Torts
(a) Pleadings
(b) Practice
(c) Evidence
(d) Remedies (damages, restitution and
equity)
9. Intestate Succession, wills, trusts, estate
planning, including federal estate and gift
taxation
10. Conflicts of law
5. Criminal Law
11. Family law
C) shall have attained a satisfactory score
on The Multistate Bar Examination (MBE);
and
D) are otherwise qualified under these
rules
6. Business Associations, which may
include:
(a) Agency
(b) Partnerships (including joint ventures)
(c) Corporations
(d) Limited Liability Companies
shall be recommended by the Board of Bar
Examiners for admission to the practice of law
in this state.
7. Constitutional and Administrative Law
Any applicant who is otherwise qualified to
be recommended for admission to the Bar
except by reason of failure to pass satisfactorily
the section of the Oklahoma Bar Examination
concerning the Oklahoma Rules of Professional Conduct shall be eligible for re-examination
9. Intestate Succession, wills, trusts, estate
planning, including federal estate and gift
taxation
620
8. Torts
10. Conflicts of law
11. Family law
Vol. 87 — No. 9 — 3/26/2016
There shall be held two bar examinations
each year, at dates, times, places and duration
to be prescribed by the Board of Bar Examiners.
2016 OK 30
RE: ORDER VACATING SCAD-2013-11,
BAR EXAM ALTERNATIVE SCORING
AND GRADING METHODS
examination is not a reason to change the
examination’s grading or scaling.
The action taken today by the majority is a
mistake. I dissent.
2016 OK 31
SCAD-2016-18. March 7, 2016
State of Oklahoma ex rel. Oklahoma Bar
Association, Complainant v. Fred Bennett
Callicoat Respondent.
ORDER
SCBD-6359. March 9, 2016
The order of April 9, 2013, SCAD-2013-11,
implementing a new scoring model which
scaled the Oklahoma raw total score to the
equated Multistate Bar Exam (MBE) score for
the Oklahoma Bar Examination, is hereby
vacated effective June 1, 2016.
ORDER APPROVING RESIGNATION FROM
OKLAHOMA BAR ASSOCIATION PENDING
DISCIPLINARY PROCEEDINGS AND
WAIVING COSTS
March, 2016.
/s/ John F. Reif
CHIEF JUSTICE
CONCUR: REIF, C.J., COMBS, V.C.J., KAUGER,
EDMONDSON, and GURICH, JJ.
DISSENT: WATT, WINCHESTER, TAYLOR (by
separate writing), and COLBERT, JJ.
TAYLOR, J., joined by Watt, Winchester, and
Colbert, JJ., dissenting:
In a hearing before this Court on December
12, 2015, the Oklahoma Board of Bar Examiners (whose members are appointed by this
Court) unanimously recommended that there
be no change in the bar examination testing,
composition, grading, or scaling. The Bar
Examiners reported to this Court that our bar
examination process is clearly in line with
national standards.
The Deans of all three Oklahoma law schools
were present at this hearing, and all three made
comments to this Court concerning the bar
examination. The consensus was that the Court
should await further experience with future
bar examinations before taking action, rather
than react to the results of one bar examination.
The purpose of the bar examination is to
screen applicants in such a way as to protect
the public and to protect the reputation of the
legal profession. The bar examination should
not be easy. It should be a rigorous test of legal
knowledge and ability. The fact that there was
a greater failure rate on the most recent bar
Vol. 87 — No. 9 — 3/26/2016
Upon consideration of Complainant Oklahoma Bar Association’s (Bar Association)
application for an order approving the Resignation Pending Disciplinary Proceedings executed by Respondent, Fred Bennett Callicoat,
the application reveals:
(1) Respondent, Fred Bennett Calicoat, OBA
#18519, was admitted to membership in the
Oklahoma Bar Association on January 10, 2000.
His official OBA roster address is 10203 S.
Oswego Place, Tulsa, OK 74103. On February
25, 2015, Respondent executed a Diversion
Program Agreement. On January 30, 2016, he
submitted his affidavit regarding resignation
from membership in the Bar Association pending investigation of disciplinary proceedings.
(2) Respondent’s affidavit of resignation
reflects that he desires to resign and: a) it is
freely and voluntarily rendered; b) he is not
subject to coercion or duress; c) he is fully
aware of the consequences of submitting the
resignation; and d) he is aware the resignation
is subject to the approval of the Supreme
Court. He also intends the effective date of the
resignation to be the date and time of its execution and will conduct his affairs accordingly.
(3) Respondent’s affidavit states he is aware
the Oklahoma Bar Association has investigated
specific allegations of professional misconduct
to wit:
Complaint 1 - Brians’ Grievance
Kayce R. Brians alleges neglect of the client’s
adversarial bankruptcy proceeding and a failure to earn the $1,500.00 fee paid to Respondent. Following investigation of this grievance,
Respondent executed a Diversion Program
Agreement.
621
(4) While enrolled in the Diversion Program,
complaints 2-15 were received by the Office of
the General Counsel for the Oklahoma Bar
Association and were under investigation.
Complaint 2 - Lewis’ Grievance
Brenda Lewis alleges that Respondent
neglected her bankruptcy case and failed to
communicate with her regularly. During the
Bar Association’s investigation of this matter,
Respondent failed to respond to its requests for
information. The investigator and the process
server could not locate Respondent until
December 1, 2015.
Complaint 3 - Johnson’s Grievance
Rochelle Johnson alleges that Respondent
neglected and abandoned her bankruptcy case,
despite receiving a $1,500.00 fee, and failed to
December 1, 2015.
Complaint 4 - Bennett’s Grievance
Michael Bennett alleges that Respondent
failed to prepare a contract for the sale of Bennett’s land, failed to earn his retainer, and
failed to communicate with him. The investigator and the process server could not locate
Respondent until December 1, 2015.
Complaint 5 - Thornton’s Grievance
Byrder Maye Thornton alleges that Respondent neglected and abandoned her bankruptcy
case, despite receiving a $1,300.00 fee, and
failed to communicate with her regularly. During the Bar Association’s investigation of this
matter, Respondent failed to respond to its
requests for information. The investigator and
the process server could not locate Respondent
until December 1, 2015.
Complaint 6 - Goins’ Grievance
Sean Goins alleges that Respondent neglected and abandoned his bankruptcy case, despite
receiving a $1,500.00 fee, and failed to communicate with him regularly. During the Bar Association’s investigation of this matter, Respondent
failed to respond to its requests for information.
The investigator and the process server could
not locate Respondent until December 1, 2015.
622
Complaint 7 - Haddox’s Grievance
Andrea Haddox alleges that Respondent
December 1, 2015.
Complaint 8 - Brown’s Grievance
John Brown alleges that Respondent neglected
and abandoned his civil matter, despite receiving a $1,200.00 fee, and failed to communicate
with him regularly. During the Bar Association’s
investigation of this matter, Respondent failed to
respond to its requests for information. The
investigator and the process server could not
locate Respondent until December 1, 2015.
Complaint 9 - Cooper’s Grievance
Paul Cooper alleges that Respondent neglected and abandoned his bankruptcy case, despite
receiving a $1,800.00 fee, and failed to communicate with him regularly. During the Bar Association’s investigation of this matter, Respondent
failed to respond to its requests for information.
The investigator and the process server could
not locate Respondent until December 1, 2015.
Complaint 10 - Capers’ Grievance
Shaeina Capers alleges that Respondent
despite receiving a $635.00 fee, and failed to
information.
Complaint 11 - Barrett’s Grievance
Jeanie Barrett alleges that Respondent
neglected and abandoned her small claims
case, despite receiving a $800.00 fee, and failed
to communicate with her regularly. During the
information.
Complaint 12 - Tran’s Grievance
Son Tran alleges that Respondent neglected
and abandoned the client’s bankruptcy case and
appeal of the civil judgment, despite receiving a
$4,900.00 fee, and failed to communicate with
her regularly. The Bar Association has not completed its investigation of this matter.
Vol. 87 — No. 9 — 3/26/2016
Complaint 13 - Czubkowski’s Grievance
Ester Czubkowski alleges that Respondent
neglected and abandoned her case, despite
receiving a $1,500.00 fee, and failed to communicate with her regularly. The Bar Association has
not completed its investigation of this matter.
Complaint 14 - Martin’s Grievance
Charles Martin alleges that Respondent
neglected and abandoned his bankruptcy case,
communicate with him regularly. The Bar
Association has not completed its investigation
of this matter.
Complaint 15 - Williams’ Grievance
Amie Williams alleges that Respondent
communicate with her regularly. The Bar Association has not completed its investigation of
this matter.
(5) Respondent is aware that the allegations
against him would constitute violations of the
Rules Governing Disciplinary Proceedings
(RGDP), the Oklahoma Rules of Professional
Conduct, and his oath as an attorney.
(6) Respondent waives any and all rights to
contest the allegations.
(7) Respondent is aware that, pursuant to
Rule 8.1, RGDP, either the approval or disapproval of his resignation is within the discretion of the Supreme Court of Oklahoma.
(8) Respondent has agreed to comply with all
provisions of Rule 9.1, RGDP, within twenty
(20) days following the date of his resignation.
(9) Respondent acknowledges and agrees
that he may be reinstated to the practice of law
only upon full compliance with the conditions
and procedures prescribed by Rule 11, RGDP,
and that he may make no application for reinstatement prior to the expiration of five years
from the effective date of this Order Approving
Resignation Pending Disciplinary Proceedings.
(10) Respondent acknowledges that, as a
result of his conduct, the Client Security Fund
may receive claims from his former clients. He
agrees that should the Oklahoma Bar Association approve and pay such Client Security
Vol. 87 — No. 9 — 3/26/2016
Fund claims, he will reimburse the fund the
principal amounts and the applicable statutory
interest prior to the filing of any application for
reinstatement.
(11) Respondent has surrendered his Bar
membership card to the Office of the General
Counsel with his resignation.
(12) Respondent acknowledges and agrees to
cooperate with the Office of the General Counsel in the task of identifying any active client
cases wherein documents and files need to be
returned or forwarded to new counsel, and in
any client case where fees or refunds are owed
by Respondent.
(13) Respondent acknowledges that the OBA
has incurred minimal costs in its investigation
of the disciplinary complaints and the OBA is
not seeking the reimbursement of any costs at
this time.
IT IS THEREFORE ORDERED, ADJUDGED,
AND DECREED that the name of Fred Bennett
Callicoat be stricken from the roll of attorneys.
Since resignation pending disciplinary proceedings is tantamount to disbarment, Respondent Callicoat may not make application for
reinstatement prior to the expiration of five
years from the effective date of this order. Pursuant to Rule 9.1, Respondent shall notify all of
his clients having legal business pending with
him of his inability to represent them and of
the necessity for promptly retaining new counsel. Notification shall be given to these clients
within twenty days by certified mail. Repayment to the Client Security Fund for any
money expended because of the malfeasance
or nonfeasance of the attorney shall be one of
the conditions of reinstatement.
IT IS FURTHER ORDERED, ADJUDGED,
AND DECREED that the resignation pending
disciplinary proceedings of Respondent Fred
Bennett Calicoat is hereby approved. Costs of
the proceeding are waived.
COURT IN CONFERENCE the 7th day of
March, 2016.
/s/John F. Reif
Chief Justice
623
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624
Vol. 87 — No. 9 — 3/26/2016
Court of Criminal Appeals Opinions
2016 OK CR 3
MICA ALEXANDER MARTINEZ,
Appellant, v. THE STATE OF OKLAHOMA,
Appellee.
Case No. D-2013-673. March 8, 2016
OPINION
LEWIS, JUDGE:
¶1 Mica Alexander Martinez, Appellant, was
tried by jury and found guilty of Counts 1 and
2, murder in the first degree, in violation of 21
O.S.Supp.2009, § 701.7(A); and Count 3, assault
and battery with a dangerous weapon, in violation of 21 O.S.Supp.2006, § 645, in Comanche
County District Court, Case No. CF-2009-473.
The jury found two statutory aggravating circumstances1 and sentenced Appellant to death
in Counts 1 and 2, and ten (10) years imprisonment in Count 3. The Honorable Mark R. Smith,
District Judge, pronounced judgment and sentence accordingly. Mr. Martinez appeals.
FACTS
¶2 Carl and Martha “Faye” Miller lived five
miles south of Cache, Oklahoma, on State
Highway 115 and Woodlawn Road. Around
4:49 a.m. on Monday, October 12, 2009, Ms.
Miller called 911 to report shots being fired
from a vehicle parked near her residence. She
could only describe the vehicle as having its
lights on. Ms. Miller asked police to come
quickly, saying that “We opened the garage
door, and they saw me standing there with the
telephone.” Two officers were dispatched to
the scene.
¶3 A short time later, another motorist also
called 911 to report an abandoned vehicle facing east in the westbound lane of Woodlawn
Road at the intersection of Highway 115. The
two deputies soon arrived and found the
reported vehicle, with no one inside. The keys
were still in the vehicle’s ignition and its cabin
lights were on. After seeing loose rounds of
high-powered ammunition inside, the deputies turned off their vehicle lights and got a
shotgun, an assault rifle, and night vision
equipment.
¶4 As the deputies scanned the area, they
received a third dispatch, to a burglary in progVol. 87 — No. 9 — 3/26/2016
ress at a house just across Highway 115, a few
hundred feet from the abandoned vehicle. As
they approached the house, deputies heard a
struggle. They knocked at the back door and
demanded entry. Just before they broke in,
Shawn Monk unlatched and opened the door.
The deputies found Shawn Monk and the
Appellant inside and quickly detained them.
¶5 The kitchen floor where the two men had
been fighting was slick with a mixture of blood
and water, which was pouring from a broken
refrigerator line. Shawn Monk was badly
injured with bleeding wounds to his head.
Appellant repeatedly said “I’m sorry,” and
eventually told the officers that Monk lived at
the house. The officers also saw a Winchester
.30-30 rifle lying on the kitchen floor. Monk
told the deputies the rifle belonged to Appellant. Monk also told the deputies that his parents were injured and needed help.
¶6 Shawn Monk later testified at trial that he
had spent Sunday night with his parents, Carl
and Faye Miller, and slept in a guest bedroom.
He awoke early the following morning to loud
noises and voices. He first thought his father
might have fallen asleep with the television on.
He heard a loud, unfamiliar voice say “Where’s
the money, bitch?” A short time later, he heard
a voice say “You like my dick in your ass, don’t
you?” Monk was now alarmed and got up. The
lights in the hallway were turned on. He
screamed down the hallway, “What the fuck is
going on?”
¶7 Monk then saw a stranger step into the
hallway from his parents’ bedroom and walk
away from him toward the living room area.
He followed the intruder, pausing at his parents’ bedroom long enough to see his mother
lying on the bed, face down, her pants around
her ankles, still breathing but obviously
injured. Appellant was looking in the garage as
Mr. Monk stepped into the living room. Appellant attacked him. As the Appellant and Monk
fought, Monk pleaded with Appellant to let
him get help for his parents.
¶8 Appellant eventually relented and sat
down in the floor, saying “I fucked up, I’m
sorry. My friends fucked him up,” referring to
Carl Miller. Shawn Monk looked in the garage
and saw his father lying on the floor, still
625
breathing but also obviously injured. Monk
also picked up the .30-30 lever action rifle he
saw lying on the floor, determined it was
unloaded, and called 911. Appellant sat in the
floor for a few minutes, then got up and threw
a barbell at Shawn Monk, striking the phone he
was using to call 911. Appellant then wrestled
the rifle from Mr. Monk and gashed his head
with several blows from the butt of the rifle.
Mr. Monk was still fighting with Appellant
when he opened the door and deputies entered
the home.
¶9 Emergency responders transported Carl
and Faye Miller to local hospitals, where both
later died of their injuries. Faye Miller suffered
extensive bruising to her face and upper body,
arms, inner thighs, and legs. Blunt force head
trauma caused bleeding and bruising to her
scalp, a subarachnoid hemorrhage, and a large
subdural hematoma with midline shift of the
brain. She also sustained traumatic injuries to
her vagina and anus consistent with forcible
sexual assault. Carl Miller’s wounds included
blunt force head trauma with several scalp lacerations, a 7 cm skull fracture, subarachnoid
hemorrhage, and contusion of the temporal
lobe. Mr. Miller also suffered bruising and
scraping of his arms.
¶10 Appellant’s father testified that Appellant borrowed his .30-30 Winchester rifle and a
box of ammunition and left to go hog hunting
early in the morning of October 12, 2009. He
learned a few days later that Appellant had
been arrested. When Appellant was searched
at the crime scene, the deputies recovered Carl
Miller’s wallet and a set of keys belonging to
Shawn Monk. They also recovered Appellant’s
sweatshirt and t-shirt in the Millers’ bedroom.
Appellant’s jeans were stained with blood,
which was eventually matched to all three victims by DNA comparisons. Carl Miller’s blood
was found on Appellant’s shoe.
¶11 Appellant did not testify at trial. In his
first written and taped statements to police on
the morning of his arrest, he claimed that a
friend named D.J. attacked the victims. Police
later identified “D.J.” and confirmed his alibi
for the morning of the crimes. In a second
interview several days after the crimes, Appellant then told investigators the murders were
committed by a hitchhiker.
¶12 At trial, defense counsel acknowledged
that Appellant had killed the victims, but argued
that the unplanned nature of the crimes and
626
Appellant’s intoxication created a reasonable
doubt of the element of malice aforethought.
Further facts will be discussed in connection
with the propositions of error.
ANALYSIS
¶13 In Proposition One, Appellant argues
that the State’s failure to promptly obtain and
test his blood sample for alcohol concentration
and subsequent “exploitation” of that failure at
trial violated due process. He argues that
investigators acted in bad faith by “waiting”
more than twelve hours after the crimes before
drawing blood, depriving him of exculpatory
evidence of voluntary intoxication. Appellant
also argues that even absent bad faith, the combination of extreme negligence by investigators
in collecting his blood, and its resulting prejudice to his defense, requires reversal.
¶14 Appellant failed to object on this ground
at trial, and failed to object to the admission of
other evidence of his blood alcohol concentration. We therefore review this claim only for
plain error. Simpson v. State, 1994 OK CR 40, ¶
2, 876 P.2d 690, 692-93. To obtain relief, Appellant must prove a plain or obvious error affected the outcome of the proceeding. Hogan v.
State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923.
Even where plain error is shown, this Court
will remedy the error only if it seriously affects
the fairness, integrity, or public reputation of
the proceedings or represents a miscarriage of
justice. Murphy v. State, 2012 OK CR 8, ¶ 18, 281
P.3d 1283, 1290.
¶15 Trial evidence and testimony indicate
that Appellant was a problem drinker, and had
been drinking on the morning he committed
these crimes. Around 3:30 a.m., Appellant had
stopped by the home of two friends and asked
them to go hog hunting. They testified that
Appellant said he had a bottle of rum; that he
smelled of alcohol, and was slurring his speech.
After borrowing a spotlight, Appellant left
their house. He called a third friend around
4:00 a.m., who later testified that Appellant
sounded intoxicated on the phone.
¶16 The arresting officer noticed an odor of
alcohol when he encountered Appellant at the
crime scene. Another investigator confirmed
that Appellant smelled of alcohol some two
hours later during an interview. Appellant
claimed to police that he had been drinking
and briefly passed out in his truck before the
crimes, but no empty bottles or cans of alcohol
were recovered from the vehicle. Appellant
Vol. 87 — No. 9 — 3/26/2016
also presented expert testimony of his alcoholism and his probable level of intoxication during the crimes, citing physical evidence that
Appellant had defecated in his pants and
attempted to clean himself off near the intersection across from the victims’ house.
¶17 When an investigator first requested that
Appellant provide a blood sample, at around
10 a.m. on the morning of his arrest, Appellant
refused. Police eventually obtained a warrant
for the blood draw, which was executed around
6:35 p.m. The State presented testimony at trial
that Appellant’s blood alcohol concentration
from this sample showed no detectable alcohol, and that Appellant’s blood alcohol level at
the time of the crimes was unknown.
¶18 The preliminary question on plain error
review is whether error, an actual violation of
law, has plainly or obviously occurred. Murphy, 2012 OK CR 8, ¶ 19, 281 P.3d at 1290.
Under Oklahoma law, “[n]o act committed by
a person while in a state of voluntary intoxication shall be deemed less criminal by reason of
his having been in such condition,” 21 O.S.2001,
§ 153; and “[h]omicide committed with a
design to effect death is not the less murder
because the perpetrator was in a state of anger
or voluntary intoxication at the time.” 21
O.S.2001, § 704. Voluntary intoxication may
reduce criminal homicide from first degree
murder to second degree murder or first degree
manslaughter; but only when the defendant is
“so utterly intoxicated, that his mental powers
are overcome, rendering it impossible for a
defendant to form the specific criminal intent
… element of the crime.” Grissom v. State, 2011
OK CR 3, ¶ 38 n.13, 253 P.3d 969, 983 n.13 (quoting McElmurry v. State, 2002 OK CR 40, ¶ 72, 60
P.3d 4, 23).
¶19 The Supreme Court has held that regardless of the good or bad faith of the State and its
agents, the prosecution’s suppression or nondisclosure of material exculpatory evidence
violates a defendant’s right to due process of
law. Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L. Ed.2d 215 (1963). Official destruction of evidence, when its exculpatory significance is apparent before destruction can also
violate due process, when it leaves the defendant unable to “obtain comparable evidence by
other reasonably available means.” California v.
Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528,
2534, 81 L.Ed.2d 413 (1984).
Vol. 87 — No. 9 — 3/26/2016
¶20 In Arizona v. Youngblood, 488 U.S. 51, 109
S.Ct. 333, 102 L.Ed.2d 281 (1988), the Supreme
Court held that a different rule would apply
where the State destroys or fails to preserve
evidence “of which no more can be said than
that it could have been subjected to tests, the
results of which might have exonerated the
defendant.” 488 U.S. at 57, 109 S.Ct. at 337.
“Unless a criminal defendant can show bad
faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” 488 U.S.
at 58, 109 S.Ct. at 337.
¶21 The Supreme Court in Youngblood
reversed a lower court ruling that the State
violated the rights of a defendant convicted of
child abduction and rape by its destruction or
failure to preserve serological samples. 488
U.S. at 54-55, 109 S.Ct. at 335-36. Though the
lost evidence might have excluded the appellant as the perpetrator, the Court found police
had collected the samples according to usual
practice, and the failure to preserve the samples and conduct prompt testing was, at worst,
negligent. 488 U.S. at 58, 109 S.Ct. at 337-38.
¶22 In Illinois v. Fisher, 540 U.S. 544, 124 S.Ct.
1200, 157 L.Ed.2d 1060 (2004), the Supreme
Court again reversed a lower court ruling that
the State’s destruction of potentially useful evidence violated due process. In Fisher, the defendant filed a discovery motion seeking access to
alleged controlled drugs for independent testing. He then absconded and remained at large
for ten years. Upon his arrest, he renewed his
request for the evidence, which had been
destroyed in the meantime according to standard procedure. 540 U.S. at 545-547, 124 S.Ct. at
1200-01.
¶23 At trial, the State presented evidence
that four tests on the substance indicated the
presence of controlled drugs, and Fisher was
convicted. The state appellate court reversed,
finding destruction of the remaining evidence
violated due process under Youngblood. The
state court held the appellant’s pending discovery request put the State on notice of
appellant’s desire to access the evidence; and
that Youngblood’s bad faith showing was unnecessary where a favorable test was the “only
hope of exoneration” and “determinative of
the outcome.” 540 U.S. at 548, 124 S.Ct. at 1202.
The Supreme Court granted certiorari.
¶24 The Supreme Court held that neither the
pending discovery request, nor the “centrality”
627
of the evidence to the prosecution’s case or the
defendant’s defense, vitiated the showing of
bad faith required by Youngblood. The bad faith
requirement rested instead on the distinction
between material exculpatory (i.e., Brady/Trombetta) evidence and potentially useful (i.e.,
Youngblood) evidence. Fisher, 540 U.S. at 549,
124 S.Ct. at 1203. Police testing of the substance
in Fisher had actually inculpated the defendant; the most he could hope was that another
test would exonerate him. The loss of such
“potentially useful evidence” was governed by
Youngblood’s bad faith destruction rule, not
Brady’s stricter suppression rule for material
exculpatory evidence. 540 U.S. at 549, 124 S.Ct.
at 1203.
¶25 This Court followed Youngblood in Hogan
v. State, 1994 OK CR 41, 877 P.2d 1157, rejecting
a capital defendant’s claim that the State’s
destruction of vials of the victim’s blood violated due process. The defendant claimed testing would have supported his claim that he and
the victim smoked marijuana laced with an
unknown drug. The Court found that although
the State had agreed to perform further testing,
the vials previously available for testing had
been inadvertently destroyed. Because the defendant in Hogan failed to show bad faith, the
Court found no due process violation. Id., 1994
OK CR 41, ¶¶ 17-18, 877 P.2d at 1161.
¶26 In Gilson v. State, 2000 OK CR 14, 8 P.3d
883, the Court rejected a capital defendant’s
claim that the State violated due process when
it failed to videotape and preserve every interview with several child witnesses, allegedly
depriving the defendant of evidence of suggestive interviewing techniques. Id., 2000 OK CR
14, ¶ 51, 8 P.3d at 905. The Court declined to
hold that due process “mandate[d] that every
interview conducted with a child victim be
taped because it may potentially be exculpatory.” 2000 OK CR 14, ¶ 57, 8 P.3d at 906. The
defense received either summaries or copies of
the available interviews, and was able to explore
allegedly suggestive interviewing through crossexamination of the interviewers. Because defendant had not shown that the State acted in bad
faith by failing to tape and preserve all interviews, no due process violation occurred. Id.
¶27 Within the context of these controlling
principles, we must determine whether the
investigators’ failure to obtain and test Appellant’s blood sample for alcohol concentration,
closer to the time of the crimes than they did,
violated due process of law. Due process does
628
not impose on the State or its agents “an undifferentiated and absolute duty to retain and to
preserve all material that might be of conceivable evidentiary significance in a particular
prosecution.” Ochoa v. State, 1998 OK CR 41, ¶
26, 963 P.2d 583, 595 (quoting Youngblood, 488 U.S.
at 58, 109 S.Ct. at 337). We therefore reiterate that
unless a defendant can show bad faith, the
State’s destruction of potentially useful evidence
does not constitute a due process violation.
¶28 Investigators here did not destroy blood
samples like the officials in Hogan. They simply
did not collect and preserve a blood sample
within the time that Appellant now speculates
could have been helpful. The facts are more
comparable to Gilson, where we rejected the
claim that police should have recorded and
preserved interviews, but did not. Appellant
effectively asks us to recognize a new “constitutional duty to collect and preserve” all potentially useful defense evidence. We find no
justification for this broader obligation under
current state or federal constitutional due process. Ochoa, 1998 OK CR 41, ¶ 26, 963 P.2d at
595 (rejecting a higher standard and finding
case controlled by Hogan and Youngblood);
United States v. Marrero, 904 F.2d 251, 261 (5th
Cir. 1990) (Brady places no obligation on government to conduct defendant’s investigation
or assist in the presentation of a defense)
¶29 We also find no evidence of bad faith by
investigators, in the sense that collection of
Appellant’s blood was “intentionally delayed
to gain some tactical advantage” in the prosecution. Youngblood, 488 U.S. at 57, 109 S.Ct. at
337. Appellant himself created some delay
when he refused to give a blood sample around
10 a.m. on the morning of his arrest. Even then,
it was hardly evident that a test of Appellant’s
blood alcohol concentration “would have
enabled the defendant to exonerate himself” in
these crimes. Id. at 56, 109 S.Ct. at 336. At most,
such evidence was “an avenue of investigation
that might have led in any number of directions.” Id. at 56 n.*, 109 S.Ct. at 366 n.*. These
facts fall considerably short of the bad faith
destruction of potentially useful evidence prohibited by Youngblood.
¶30 Finally, even assuming that the failure to
promptly collect a blood sample was error, the
error did not affect the outcome at trial. The
State did not suppress or destroy evidence that
Appellant consumed alcohol. Officers testified
that Appellant smelled of alcohol that morning; other lay and expert testimony indicated
Vol. 87 — No. 9 — 3/26/2016
that Appellant was an alcoholic who was possibly impaired at the time of the crimes. The
countervailing evidence (including the sustained manner of the attacks; the severity and
multiplicity of injuries to multiple victims;
Appellant’s fabrications, attempts to implicate
others, and ability to recall details about the
crime scene) strongly indicated that Appellant’s mental powers were not so overcome by
intoxication that he was unable to form malice
aforethought.
¶31 The State did not deny Appellant had
been drinking, but argued that anger, rather
than alcoholic oblivion, was the major factor in
the crimes. Appellant was able to argue that
intoxication and other facts raised a reasonable
doubt of malice aforethought; and that that the
failure to preserve better intoxication evidence
was incompetent or biased police work. “[B]ut
the police do not have a constitutional duty to
perform any particular tests.” Youngblood, 488
U.S. at 59, 109 S.Ct. at 338. Appellant has therefore failed to show that a plain or obvious error
affected the outcome of the trial. Proposition
One is denied.
¶32 In Proposition Two, Appellant claims the
evidence is insufficient to support his convictions for first degree murder. He admits having
unlawfully caused the victims’ deaths, but
argues that the evidence fails to show the
essential element of malice aforethought. On
appeal, this Court reviews the evidence admitted at trial to determine whether, “in the light
most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt.” Young v. State, 2000 OK CR 17, ¶¶
34-35, 12 P.3d 20, 35 (citing Spuehler v. State,
1985 OK CR 132, ¶ 7, 709 P.2d 202, 203).
¶33 Malice aforethought may be “manifested
by external circumstances capable of proof.” 21
O.S.Supp.2009, § 701.7. The design to effect
death or intent to kill may be inferred from the
fact of killing itself, “unless the circumstances
raise a reasonable doubt whether such design
existed.” 21 O.S.2001, § 702. In the light most
favorable to the prosecution, the evidence here
shows an unprovoked, early morning attack
on the victims in their rural home. Appellant
carried his rifle across the road and entered
through their garage, probably after seeing
they had reported him for shooting nearby.
¶34 He apparently subdued Carl Miller in
the garage with several blows, most likely with
Vol. 87 — No. 9 — 3/26/2016
the rifle butt, causing large gashes to Miller’s
head and internal trauma to his brain. He then
followed Faye Miller into the home, beat her
head and face severely with his hands or fists,
and was sexually assaulting her when he heard
Shawn Monk calling out. When he saw Shawn
Monk, Appellant immediately attacked him,
briefly relented, and eventually bludgeoned
and beat Monk until officers arrived. Any
rational trier of fact could find beyond a reasonable doubt that Appellant killed the victims
with malice aforethought. Proposition Two is
denied.
¶35 Proposition Three argues that the trial
court committed plain error by admitting irrelevant and unduly prejudicial testimony about
the chemical testing of Appellant’s blood. OSBI
Criminalist Jerry Carter testified for the State
that Appellant’s blood, drawn more than
twelve hours after the crimes at 6:35 p.m.,
tested negative for the presence of drugs and
alcohol. Carter also stated that Appellant’s
blood might have been free of intoxicants at the
time of the crime, but this could not be known
from the testing.
¶36 Because Appellant failed to object to the
testimony at trial, we again review for plain
error, as discussed in Proposition One. Appellant argues that because the sample was
obtained more than twelve hours after the
crimes, it was not relevant to the issue of
Appellant’s intoxication, or its relevance was
substantially outweighed by the danger of
unfair prejudice. We must first determine
whether Appellant can establish a plain or
obvious violation of controlling law; here, the
rules of relevance in the Oklahoma Evidence
Code.
¶37 Relevant evidence is evidence having
any tendency to make the existence of a fact
that is of consequence to the determination of
the action more probable or less probable than
it would be without the evidence. 12 O.S.2001,
§ 2401; Taylor v. State, 2011 OK CR 8, ¶ 40, 248
P.3d 362, 375-76. It need not conclusively or
directly establish guilt if, when taken with
other evidence in the case, it tends to establish
a material fact in issue. Id. Relevant evidence
may be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or needless
presentation of cumulative evidence. Relevancy and materiality of evidence are matters
within the sound discretion of the trial court.
Grissom, 2011 OK CR 3, ¶ 58, 253 P.3d at 989.
629
¶38 Appellant sought to show his intoxication at the time of the crimes through a variety
of evidence. He argues the chemical test result
was irrelevant, misleading, and unduly prejudicial because its remoteness from the crimes
made it impossible to infer his level of intoxication. We find that evidence of the blood test
result was relevant to show the State’s overall
collection of evidence and investigation which,
along with other evidence, tended to establish
guilt. Patton v. State, 1998 OK CR 66, ¶¶ 72-74,
973 P.2d 270, 293 (drawing of unknown shoe
print obtained from luminol test properly
admitted in murder trial to show thorough
investigation). Although the test result was not
highly probative of Appellant’s intoxication
more than twelve hours earlier, this was an
issue for cross-examination regarding the
weight of the evidence. The evidence did not
mislead the jury, and was not unduly prejudicial or cumulative. Appellant has not shown
plain or obvious error in the admission of the
test result. Proposition Three is denied.
¶39 Appellant argues in Proposition Four
that the trial court erred in the admission of
photographic evidence. Appellant’s objections
to individual photographs at trial were overruled. The trial court’s admission or exclusion
of evidence over a timely objection or offer of
proof is ordinarily discretionary and will not
be reversed on appeal unless clearly erroneous
or manifestly unreasonable. Hancock v. State,
2007 OK CR 9, ¶ 72, 155 P.3d 796, 813. An abuse
of discretion is a clearly erroneous conclusion
and judgment, one that is clearly against the
logic and effect of the facts presented. C.L.F. v.
State, 1999 OK CR 12, ¶ 5, 989 P.2d 945, 946.
¶40 Appellant first argues the admission of a
photograph of the homicide victims, taken
together as a couple during their lives, was
reversible error. He argues the statute authorizing such a photo in a homicide prosecution
without balancing its relevance against the
potential for unfair prejudice or other countervailing factors violates due process of law. He
also argues that the prosecutor denied him a
fair trial when he showed the photograph to
jurors in opening statement; and that his death
sentence must be vacated because this improper evidence was incorporated in the second
stage of trial.
¶41 By a 2002 amendment, the Legislature
made a live photograph relevant and admissible in a homicide trial when offered “to show
the general appearance and condition of the
630
victim while alive.” 12 O.S.2011, § 2403; Stouffer
v. State, 2006 OK CR 46, ¶ 101, 147 P.3d 245, 268.
The photograph must be “appropriate;” and if
its relevance is substantially outweighed by the
danger of unfair prejudice or other section 2403
factors, the court may exclude it. Coddington v.
State, 2006 OK CR 34, ¶ 56, 142 P.3d 437, 453.
¶42 We rejected almost identical constitutional challenges to section 2403’s photograph
rule in Coddington, 2006 OK CR 34, ¶¶ 55-56,
142 P.3d at 452, ultimately finding the trial
court’s admission of a photograph of the victim in life was appropriate to show his general
appearance; and that the appellant “was not
deprived of a fair trial or a fair sentencing proceeding as a result.” Id., 2006 OK CR 34, ¶ 58,
142 P.3d at 453. The photograph here was
appropriate and properly admitted under the
statute. No relief is warranted.
¶43 Appellant further complains that the
prosecutor erroneously showed the challenged
photograph to the jury in opening statement,
before its identification and admission in evidence. This display apparently passed without
objection, waiving all but plain error, as defined
above. Without citing earlier authority, the Court
disapproved the prosecutor showing items of
potential evidence in opening statement in
Cheatham v. State, 1995 OK CR 32, ¶ 31, 900 P.2d
414, 424, but did not reverse the conviction.
¶44 Citing Cheatham, the Court again found
error in Bell v. State, 2007 OK CR 43, ¶ 13 172
P.3d 622, 627, where the prosecutor’s computer
presentation in opening statement included
photographs of potential evidence. The error in
both cases was harmless, as the evidence was
later admitted and its depiction in opening statement was consistent with its content at trial.
Neither defendant could show any conceivable
prejudice from the prosecutor’s display in opening statement of items later properly admitted in
evidence. Cheatham, id.; Bell, id.
¶45 We reach the same conclusion here,
because the photograph of the victims shown
in opening statement was promptly identified
and offered in evidence during trial; its prejudicial impact was negligible in light of the
remaining evidence; and its depiction in opening statement was consistent with its content at
trial. If the prosecutor’s use of this potential
evidence in opening statement could even be
termed an error, it is certainly not unfairly
prejudicial, and requires no relief.
Vol. 87 — No. 9 — 3/26/2016
¶46 Appellant’s remaining arguments challenge the trial court’s admission of pictures
depicting the victims’ respective injuries. The
trial court overruled Appellant’s objections to
the exhibits, and we review these rulings for
abuse of discretion. Photographs may be probative of the nature and location of wounds;
may corroborate the testimony of witnesses,
including the medical examiner; and may show
the nature of the crime scene. Browning v. State,
2006 OK CR 8, ¶ 32, 134 P.3d 816, 837. Gruesome crimes make for gruesome photographs,
but the issue is whether the probative value of
the evidence is substantially outweighed by
the danger of unfair prejudice, confusion of the
issues, or needless presentation of cumulative
evidence. Pavatt v. State, 2007 OK CR 19, ¶ 55,
159 P.3d 272, 290. 12 O.S.2001, §§ 2401-2403.
¶47 State’s Exhibit 6 depicted injuries to
Shawn Monk’s head and face before it was
cleaned, showing a large amount of blood.
State’s Exhibits 84-86 depicted injuries to Carl
Miller’s head. State’s Exhibit 89 depicts injuries
to Faye Miller’s face, while State’s Exhibit 93
depicts injuries to her vagina. Appellant complains that this exhibit was unfairly prejudicial
because the opening of the vaginal canal to permit an image of the injuries, and the inclusion of
a ruler in the image, was unfairly prejudicial.
¶48 We find no abuse of discretion in the trial
court’s admission of these exhibits. All were
probative of the disputed issue of Appellant’s
intent to kill the victims, corroborative of other
lay and expert testimony, and germane to the
issues of guilt and punishment. Proposition
Four is denied.
¶49 In Proposition Five, Appellant challenges the trial court’s admission of certain testimony over hearsay objections by the defense.
The State agrees that the statements in question
were hearsay, but claims the testimony was
admissible under a hearsay exception or did
not rise to the level of plain or obvious error.
Appellant first challenges statements attributed to Shawn Monk in the testimony of Deputy
Miles. Miles testified that shortly after entering
the crime scene and securing Appellant and
Shawn Monk that morning, Shawn Monk told
him how he was startled awake by loud voices,
then heard someone say “Gimme your wallet!”
and “You like that, bitch. You like it in the ass.”
¶50 Section 2803(2) of the Evidence Code
provides that a statement “relating to a startling event or condition made while the declarVol. 87 — No. 9 — 3/26/2016
ant was under the stress of excitement caused
by the startling event or condition” is not
excluded by the hearsay rule. 12 O.S.2011, §
2803(2). An excited utterance must meet three
foundational requirements: (1) a startling event
or condition; (2) a statement relating to that
startling event or condition; (3) made while the
declarant is under the stress of excitement
caused by the startling event or condition.
Slaughter v. State, 1997 OK CR 78, ¶ 36, 950 P.2d
839, 852.
¶51 We examine both the timing of the statement and its spontaneity on a case-by-case
basis. Marquez v. State, 1995 OK CR 17, ¶ 15, 890
P.2d 980, 984. “Whether a statement qualifies as
an excited utterance depends not on a fixed
time but on the facts and circumstances.” Williams v. State, 1996 OK CR 16, ¶ 17, 915 P.2d 371,
379. An excited utterance “need not be substantially contemporaneous with the startling
event or condition . . . so long as the declarant
is under the stress of excitement at the time the
statement is made.” Rawlings v. State, 1987 OK
CR 135, ¶ 74, 740 P.2d 153, 163.
¶52 Deputy Miles first encountered Shawn
Monk when Monk opened the door to the
home, and was still partially engaged in the
struggle with the Appellant. The deputies
entered and briefly secured both Appellant
and Shawn Monk in handcuffs, while sweeping the house and trying to locate and assist the
injured victims. After the house was secured,
Monk was released from restraints. While
Monk was still being treated for his head injuries by emergency personnel at the scene,
Deputy Miles asked Mr. Monk what had happened, and received the responses related in
trial testimony. Considering the timing and circumstances of Monk’s statements to Deputy
Miles, made while Monk was still under the
evident stress of these startling events, we find
these excited utterances were properly admitted.
Rawlings, 1987 OK CR 135, ¶ 75, 740 P.2d at 163.
¶53 Appellant also challenges the admission
of the autopsy report during testimony from
the medical examiner, and the report of a sexual assault nurse examiner concerning examination of Faye Miller. Defense counsel objected at
trial that the reports were repetitive and vouching. Appellant waived any objection based on
the hearsay rule, and we review only for plain
error, as defined above. Myers v. State, 2006 OK
CR 12, ¶ 27, 133 P.3d 312, 324 (when trial objection differs from argument on appeal, review is
limited to plain error). The State contends that
631
while these exhibits were not admissible under
the hearsay rule, their admission was not plain
error.
¶54 The medical examiner’s report was hearsay, and should not have been admitted absent
a pertinent hearsay exception. Cooks v. State,
1985 OK CR 48, ¶ 28, 699 P.2d 653, 659 (1985).
However, the report summarized the findings
of the medical examiner, who testified at trial.
Appellant does not dispute that he killed the
victims or question the accuracy of the reports.
The hearsay was thus cumulative to proper
testimony and caused no prejudice. Appellant’s only argument that he was prejudiced by
the sexual assault nurse examiner’s report is
that it mentions a dark hair recovered from
Faye Miller’s rectal area. Given the undisputed
evidence that Appellant sexually assaulted Ms.
Miller, this evidence could not have affected
the outcome. Cooks, id. (admission of autopsy
report was harmless error). Proposition Five
requires no relief.
¶55 In Proposition Six, Appellant seeks reversal or modification of his convictions or sentences due to prosecutorial misconduct. Relief
will be granted for prosecutorial misconduct
only where it effectively deprives the defendant of a fair trial or sentencing. Cuesta-Rodriguez v. State, 2010 OK CR 23, ¶ 96, 241 P.3d 214,
243. We evaluate prosecutorial conduct within
the context of the entire trial, considering not
only the propriety of the prosecutor’s actions,
but also the strength of the evidence and the
corresponding arguments of defense counsel.
Hanson v. State, 2009 OK CR 13, ¶ 18, 206 P.3d
1020, 1028.
¶56 Appellant first argues the prosecutor
committed misconduct in presenting evidence
and argument on the issue of intoxication.
Appellant limited his objection at trial to the
prosecutor’s use of records indicating Appellant’s childhood toileting problems as a possible explanation for Appellant having defecated
on himself the morning of the crimes. In this
context, we find no reversible error. The prosecutor is an advocate, and may properly seek
to minimize evidence presented by the defense,
especially on the critical disputed issues in the
trial. Warner v. State, 2006 OK CR 40, ¶ 192, 144
P.3d 838, 891. Reviewing the remainder of the
prosecutor’s presentation on the issue of intoxication for plain error, we find none.
¶57 Appellant also argues that the prosecutor committed misconduct in second stage by
632
commenting on Appellant’s decision to call his
children as mitigation witnesses; saying that
Appellant was a bouncer; and arguing Appellant had started bossing people around and
bullying at a young age. Appellant failed to
object to these comments, waiving all but plain
error. Counsel are entitled to liberal freedom of
speech in argument. Frederick v. State, 2001 OK
CR 34, ¶ 150, 37 P.3d 908, 946. Reversal is
required only where grossly improper and
unwarranted argument affects a defendant’s
rights. Howell v. State, 2006 OK CR 28, ¶ 11, 138
P.3d 549, 556.
¶58 The prosecutor’s comments regarding
the position in which Appellant had placed his
children by calling them as witnesses urged the
jury to avoid a purely emotional reaction to the
mitigation evidence, and did not exceed the
bounds of proper argument. The remaining
arguments were fair comments on the evidence
and the appropriateness of the death sentence.
Appellant has not shown any plain or obvious
error that affected the outcome of the trial in the
prosecutor’s conduct. Proposition Six is denied.
¶59 In Proposition Seven, Appellant argues
that testimony about his use of racial epithets
during a fight violated his constitutional right
to freedom of speech and denied him a fair
sentencing proceeding. In the sentencing phase
of trial, Appellant’s former girlfriend testified
that while she was with Appellant one night,
he jumped from the car and got into a fight
with two African American men. When he
returned to the car, Appellant explained to her
that “those two n***ers said they were going to
rape you.”
¶60 After this testimony, defense counsel
moved for a mistrial, noting that two African
Americans were on the jury. The trial court
overruled the motion and instead admonished
the jury to disregard “any racial comments that
were just made.” Appellant first argues that the
racial comments were an evidentiary harpoon.
We disagree. An evidentiary harpoon occurs
when an experienced police officer makes a
voluntary, willfully jabbed statement injecting
other crimes, which is both calculated to prejudice, and actually prejudicial to, the rights of
the defendant. Robinson v. State 1995 OK CR 25,
¶ 47, 900 P.2d 389, 402-3. The witness here was
not a professional witness, and did not inject
inadmissible evidence of other crimes. Most
importantly, the trial court’s prompt admonition cured any error from this fleeting remark.
Smith v. State, 2013 OK CR 14, ¶ 38, 306 P.3d
Vol. 87 — No. 9 — 3/26/2016
557, 571 (absent contrary evidence, admonition
cures evidentiary error).
¶61 Appellant next argues that this testimony violated his First and Fourteenth Amendment rights. He relies on Dawson v. Delaware,
503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309
(1992), where the Supreme Court held the
admission of capital sentencing evidence that
defendant belonged to the Aryan Brotherhood,
where such evidence had “no relevance to the
issues being decided in the proceeding,” was
constitutional error. 503 U.S. at 160, 112 S.Ct. at
1095. The evidence in Dawson, though not
inadmissible per se, id. at 165, 112 S.Ct. at 1097,
was irrelevant because the victim and defendant were both white; the evidence contained
no link between gang membership and the
crime; and it proved nothing more than the
defendant’s abstract beliefs. Id. at 166-67, 112
S.Ct. at 1098.
¶62 We find no violation of Dawson. The
Constitution erects no “per se barrier to the
admission of evidence concerning one’s beliefs
and associations at sentencing simply because
those beliefs and associations are protected by
the First Amendment.” 503 U.S. at 165, 112
S.Ct. at 1097. The Dawson Court acknowledged
that such evidence “might serve a legitimate
purpose in showing that a defendant represents a future danger to society,” because a
belief or association “that endorses the killing
of any identifiable group, for example, might
be relevant to . . . whether the defendant will be
dangerous in the future.” Id. at 166, 112 S.Ct. at
1098. The evidence challenged in Dawson was
presented by a stipulation and, in the Supreme
Court’s view, “employed simply because the
jury would find . . . [it] morally reprehensible.”
Id. at 167, 112 S.Ct. at 1098.
¶63 By contrast, Appellant’s use of racist language in this case was unexpectedly interjected
by a lay witness, and the jury was immediately
instructed to disregard it. The State maintained
no link between this evidence and the murders
or aggravating factors; it was not unconstitutionally “employed” at all. Though Appellant’s
racially motivated violence was arguably relevant to the continuing threat aggravating circumstance, the jury rejected that circumstance.
We find no violation of Appellant’s free speech
rights under Dawson; and the evidentiary error,
if any, was cured by the trial court’s instruction. Proposition Seven is therefore denied.
Vol. 87 — No. 9 — 3/26/2016
¶64 Proposition Eight argues that the death
sentences must be reversed or modified due to
admission of improper victim impact evidence
by the victims’ two daughters. He also argues
that victim impact testimony generally operates as a unconstitutional “super aggravator.”
Appellant’s failure to object to the testimony at
trial on these grounds waived all but plain
error. Simpson, 1994 OK CR 40, ¶ 2, 876 P.2d at
692-93. We therefore initially consider whether
any plain or obvious violation of law occurred
in the admission of this testimony. Murphy,
2012 OK CR 8, ¶ 18, 281 P.3d at 1290.
¶65 Evidence about the victim, physical
effects of the crime, the circumstances surrounding the crime and the manner in which it
was perpetrated, and the financial, emotional,
psychological, and physical impact of the murder on the victims’ family is admissible in
capital sentencing. 21 O.S.2001, § 701.10(C); 22
O.S.2001, § 984; Cuesta-Rodriguez, 2010 OK CR
23, ¶ 68, 241 P.3d at 236. Appellant complains
that the victims’ testimony here improperly
emphasized the crimes’ impact on their emotional lives, including evidence that the trauma
had been responsible for weight gain, high
blood pressure, diabetes, insomnia, and additional medications.
¶66 We rejected an almost identical challenge
in Cuesta-Rodriguez, where the defendant contended that the victim impact testimony
“focused exclusively on the emotional and
psychological impact of the loss of their mother and was therefore too emotionally charged
to be admissible.” 2010 OK CR 23at ¶ 66, 241
P.3d at 236. The victims in Cuesta-Rodriguez
testified of nightmares reliving the scene of the
murder; the difficulty of telling children about
the crime; of facing holidays, pregnancy, and
motherhood without their mother. We see no
significant difference in either the scope or
magnitude of the testimony given in that case
and the type of evidence offered here. We have
also previously rejected the broader claim that
victim impact testimony is an impermissible
super-aggravator, and do so again. CuestaRodriguez, 2010 OK CR 23, ¶ 71, 241 P.3d at 236
(citing cases). Appellant has not shown a plain
or obvious violation of state or federal law in
the admission of this evidence. Proposition
Eight is denied.
¶67 We also reject Appellant’s claim, in
Proposition Nine, that the especially heinous,
atrocious, or cruel aggravating circumstance is
unconstitutionally vague and overbroad. The
633
current uniform instructions defining this
aggravating circumstance are sufficient to
meaningfully narrow the sentencing jury’s discretion. Cuesta-Rodriguez, 2010 OK CR 23, ¶ 80,
241 P.3d at 238-39. Appellant also challenges
the sufficiency of the evidence to show the
murders were especially heinous, atrocious,
and cruel. This Court reviews the record to
determine whether the evidence, considered in
the light most favorable to the State, was sufficient for a rational trier of fact to find the
aggravating circumstance beyond a reasonable
doubt. Magnan v. State, 2009 OKCR 16, ¶ 29,
207 P.3d 397, 407.
¶68 To support this aggravating circumstance the State must prove beyond a reasonable doubt that the defendant inflicted either
torture, including great physical anguish or
extreme mental cruelty, or serious physical
abuse, and that, for great physical anguish or
serious physical abuse, the victim experienced
conscious physical suffering before death.
DeRosa v. State, 2004 OK CR 19, ¶ 96, 89 P.3d
1124, 1156.
¶69 Appellant carried out these fatal attacks
over approximately forty minutes. Shortly after
Faye Miller thought someone in the suspicious
vehicle had seen her making the 911 call at 4:49
a.m., Appellant crossed the road carrying his
rifle and trapped the Millers inside their garage.
The presence of one of Carl Miller’s house slippers just outside the garage indicates that the
victims sought to escape after Appellant surprised them.
¶70 The attack on Carl Miller involved
repeated blows from the rifle butt, which lacerated and fractured his skull. He suffered bruises and scrapes consistent with conscious movement during the attack and attempts to defend
himself. He struck his head at some point
against the rear tire of a car in the garage, but
was found lying against the garage door some
distance away. Mr. Miller was still partially
conscious when officers found him, but could
not speak as a result of his injuries. He appeared
to be in pain.
¶71 Appellant severely beat and sexually
assaulted Faye Miller in her own bedroom. She
was found with her legs on the floor, lying face
down across the bed, unconscious but still
breathing. In addition to massive head trauma,
Faye Miller had injuries to her hands, arms,
and legs, indicating she tried to resist the
attack. Shawn Monk heard Appellant demand
634
money from Ms. Miller and sexually humiliate
her.
¶72 The Millers endured a horrifying early
morning invasion of their rural home before
police officers could arrive to help them. The
sustained manner of these attacks permits the
inference that Appellant pursued the victims
and viciously pounded them, one by one, into
submission, and ultimately, death. Counsel for
the Appellant in his brief concedes that “the
Millers suffered unspeakably brutal and horrific deaths.” In the light most favorable to the
State, the evidence is sufficient for any rational
jury to find beyond a reasonable doubt that the
victims endured torture and serious physical
abuse before their deaths. Proposition Nine is
therefore denied.
¶73 In Proposition Ten, Appellant argues
that the trial court and the prosecutor diminished the burden of proof by defining the concept of reasonable doubt. As Appellant failed
to object to either of the challenged comments,
we review only for plain error. Simpson, 1994
OK CR 40, ¶ 2, 876 P.2d at 692-93. During voir
dire examination, the trial court told jurors:
You’ll watch a lot of TV shows where they
want to talk to you about the state has to
prove their case beyond a reasonable
doubt. That’s not the burden of proof. It’s
not beyond a shadow of a doubt; it’s
beyond a reasonable doubt. And that burden of proof goes to the elements only.
The prosecutor in voir dire also referenced what
Appellant terms a “supposed distinction”
between a shadow of a doubt and a reasonable
doubt, and referred to the presumption of
innocence as “one of those buzz words that
you hear on TV shows.”
¶74 Our preliminary inquiry is whether
these challenged comments were a plain or
obvious violation of law. Murphy, 2012 OK CR
8, ¶ 18, 281 P.3d at 1290. The Court has long
disapproved of attempts by the trial court or
counsel to define reasonable doubt for the jury.
Cuesta-Rodriguez, 2010 OK CR 23, ¶ 62, n.13,
241 P.3d at 234 n.13 (citing cases). However,
distinguishing the applicable burden of proof
from popular misconceptions is not an improper attempt to define or diminish the reasonable
doubt standard. Taylor v. State, 2011 OK CR 8, ¶
47, 248 P.3d 362, 377 (citing Myers v. State, 2006
OK CR 12, ¶ 57, 133 P.3d 312, 329)(comments
contrasting “shadow of a doubt” and other
phrases with applicable standard did not violate
Vol. 87 — No. 9 — 3/26/2016
prohibition against defining reasonable doubt).
The court and counsel may “attempt to dispel
commonly held attitudes concerning the definition of reasonable doubt.” Id. Appellant has
shown no plain or obvious error in the challenged comments. Proposition Ten is denied.
¶75 In Proposition Eleven, Appellant claims
the deficient performance of his trial attorneys
violated his right to the assistance of counsel
under the Sixth and Fourteenth Amendments
and Article II, section 20 of the Oklahoma Constitution. We address this proposition by applying the familiar test required by the Supreme
Court in Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To
prevail, Appellant must show that counsel’s
performance was deficient, and that the deficient performance deprived him of a fair trial
with a reliable result. Fisher v. State, 2009 OK
CR 12, ¶ 7, 206 P.3d 607, 609; Wiggins v. Smith,
539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156
L.Ed.2d 471 (2003).
¶76 Counsel’s performance is measured by
an objective standard of reasonableness under
prevailing professional norms. Harris v. State,
2007 OK CR 28, ¶ 29, 164 P.3d 1103, 1114; Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456,
2462, 162 L.Ed.2d 360 (2005). We consider
counsels’ choices from their perspective at the
time, and give great deference to counsels’
decisions. Rompilla, 545 U.S. at 380-81, 125 S.Ct.
at 2462; Wiggins, 539 U.S. at 523, 123 S.Ct. at
2536. We presume counsels’ conduct is professional and their actions are the product of a
reasonable trial strategy. Harris, 2007 OK CR
28, ¶ 29, 164 P.3d at 1115.
¶77 Appellant must also show a reasonable
probability that, but for counsel’s deficient performance, the outcome of the trial would have
been different. Littlejohn v. State, 2008 OK CR
12, ¶ 27, 181 P.3d 736, 745. A reasonable probability is one sufficient to undermine confidence
in the outcome. Fisher, 2009 OK CR 12, ¶ 7, 206
P.3d at 609. If a claim of ineffectiveness can be
resolved on the ground of lack of sufficient
prejudice, we will follow that course. Bland v.
State, 2000 OK CR 11, ¶ 113, 4 P.3d 702, 731.
¶78 Appellant first contends that counsel
rendered unreasonably deficient performance
in waiving the voluntary intoxication instructions.2 The record reflects that counsels’ waiver
of these instructions was a strategic decision,
with which Appellant agreed after consultation. In declining the instruction, which counVol. 87 — No. 9 — 3/26/2016
sel assumed Appellant would be entitled to
because of the evidence of his intoxication, trial
counsel explained their concern that under the
voluntary intoxication instruction:
[I]f it hasn’t been proven to them by the
defendant that he was incapable of forming, in this case, malice aforethought, then
malice aforethought exists.
¶79 Counsel acknowledged that the instruction placed no burden on them to prove intoxication, but further stated that:
In a case where we have what we believe is
significant evidence of a lack of malice outside of the intoxication, we don’t want to run
the risk that we can confuse the jury and
essentially cause them to shift the burden
to the defense side (emphasis added).
In Grissom, supra, defense counsel opted to
concede guilt on the charge of first degree murder and focus the entire defense on the penalty
phase. There, the Court held that:
[w]here the defendant makes admissions
by counsel during trial that render every
defense unavailable save one, he is deemed
to have elected that defense; and may, by
his election, foreclose the submission of
instructions on other theories of defense or
lesser-included offenses inconsistent with
his defense.
2011 OK CR 3, ¶ 35, 253 P.3d at 982.
¶80 The decision to waive particular jury
instructions is analogous to other “classic
example[s] of strategic trial judgment for which
Strickland requires that judicial scrutiny be
highly deferential.” Malone v. State, 2013 OK
CR 1, ¶ 18, 293 P.3d 198, 207 (waiver of jury in
capital sentencing trial). To violate the Sixth
Amendment guarantee, counsel’s tactical judgment or advice must have been completely
unreasonable, not merely wrong, so that it bore
“no relationship to a possible defense strategy.” Id. (quotations and citation omitted).
Indeed, “strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable.”
Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.
¶81 Although appellate counsel argues that
defense counsel “meticulously set up a defense
of voluntary intoxication,” then unreasonably
abandoned it by declining the relevant instructions, this argument mischaracterizes counsel’s
trial strategy. On Appellant’s behalf, trial coun-
635
sel acknowledged to the jury that Appellant
had killed the Millers unlawfully and assaulted
Shawn Monk with a dangerous weapon.
Defense counsel, with Appellant’s express consent, sought convictions of second degree murder in the killings. Consistent with this strategy, counsel elicited evidence during the trial,
and urged the jury in the first stage closing
argument to consider, a range of facts indicating Appellant’s lack of premeditation.3
¶82 Despite its marginal chances of success,
defense counsel advanced a thoughtful argument for convicting Appellant of lesser included offenses, presenting jurors with reasons to
doubt the element of malice aforethought that
were not entirely dependent on the relatively
weak intoxication evidence. Counsels’ tactical
recommendation that Appellant decline the
intoxication instructions was reasonable and
bore a visible relationship to the overall defense
strategy. This argument fails.
¶83 Appellant also argues that counsel were
ineffective for failing to raise the due process
challenge in Proposition One, failing to object
to the chemical blood test results and related
testimony, and failing to request a negative
inference instruction regarding the lost evidence. Our resolution of the related propositions also forecloses these claims of ineffectiveness. In Proposition One, we found no due
process violation in the State’s failure to collect
and preserve an earlier blood sample for testing. Reviewing the admission of the blood test
result and related testimony in Proposition
Three, the Court found no plain or obvious
error. Any objection to this evidence at trial
would have been properly overruled, and a
negative inference instruction would have
been properly denied. Cuesta Rodriguez v. State,
2010 OK CR 23, ¶ 61, 241 P.3d at 234 (absent
bad faith by police, negative inference instruction on destruction of evidence is improper).
These omissions by counsel cannot satisfy
either the deficient performance or prejudice
standards of Strickland. Mitchell v. State, 2011
OK CR 26, ¶ 144, 270 P.3d 160, 191. We reach
the same conclusion regarding trial counsel’s
failure to preserve the alleged errors raised in
other propositions. As Appellant has shown
neither unreasonably deficient performance,
nor that such performance creates a reasonable
probability of a different outcome at trial,
Proposition Eleven is denied.
¶84 Proposition Twelve argues the accumulation of errors in this case warrants reversal or
636
modification of the sentence. When numerous
irregularities during the trial tend to prejudice
the rights of the defendant, reversal will be
required if the cumulative effect of all the
errors is to deny the defendant a fair trial. Warner v. State, 2006 OK CR 40, ¶ 223, 144 P.3d 838,
896. However, such an argument has no merit
when this Court fails to sustain any of the other
errors raised by Appellant. Id.
¶85 The Court found minor errors in the
prosecutor’s use of exhibits during opening
statement, the admission of hearsay evidence
from reports, and testimony concerning the
racial remarks by the Appellant. Some of these
errors were cured by the trial court’s instructions or by the admission of proper evidence,
and none of the individual errors unfairly
prejudiced the Appellant or contributed to an
arbitrary or unreliable result in either stage of
the trial. Considering the potential cumulative
effect of these errors on the fairness of the proceedings and the reliability of the results, we
find Proposition Twelve requires no relief.
¶86 This Court must determine in every
capital case: (1) whether the sentence of death
was imposed under the influence of passion,
prejudice or any other arbitrary factor; and (2)
whether the evidence supports the jury’s finding of the aggravating circumstances. 21
O.S.2001, § 701.13(C). The jury’s findings of the
aggravating circumstances are factually supported. 21 O.S.2001, §§ 701.12(2), (4). Appellant
presented substantial evidence of mitigating
circumstances for the jury to weigh against the
evidence of aggravation. The Court finds that
the jury was not improperly influenced by passion, prejudice, or any other arbitrary factor in
its determinations of guilt or sentence. The
sentences of death are factually substantiated
and appropriate.
DECISION
¶87 The Judgment and Sentence of the District Court of Comanche County is
AFFIRMED. Pursuant to Rule 3.15, Rules
of the Court of Criminal Appeals, Title 22,
Ch. 18, App. (2016), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT
COURT OF COMANCHE COUNTY
THE HONORABLE MARK R. SMITH,
DISTRICT JUDGE
APPEARANCES AT TRIAL
Vol. 87 — No. 9 — 3/26/2016
Craig Corgan, Perry Hudson, 1315 N. Shartel,
Oklahoma City, OK 73103, Attorneys for Defendant
Eddie Valdez, Mark Stoneman, Asst. District
Attorneys, County Courthouse, Lawton, OK
73501, Attorneys for the State
APPEARANCES ON APPEAL
James H. Lockard, William H. Luker, P.O. Box
926, Norman, OK 73070-0926, Attorneys for
Appellant
E. Scott Pruitt, Attorney General, Jennifer L.
Crabb, Asst. Attorney General, 313 N.E. 21st
St., Oklahoma City, OK 73105, Attorneys for
Appellee
OPINION BY LEWIS, J.
SMITH, P.J.: CONCURS
LUMPKIN, V.P.J.: CONCURS IN RESULT
JOHNSON, J.: CONCURS
HUDSON, J.: CONCURS
LEWIS, JUDGE:
1. The defendant knowingly created a great risk of death to more
than one person; and the murders were especially heinous, atrocious,
or cruel. 21 O.S.2001, §§ 701.12(2), (4).
2. The uniform jury instructions on voluntary intoxication include
OUJI-CR(2d) Instructions Nos. 8-35 to 8-39. Instruction No. 8-36, as
relevant here, provides that:
A person is entitled to the defense of intoxication if that person
was incapable of forming the specific criminal intent of malice
aforethought because of his intoxication.
Instruction No. 8-38, as relevant here, would read:
It is the burden of the State to prove beyond a reasonable doubt
that the defendant formed the specific criminal intent of malice
aforethought. If you find that the State has failed to sustain that
burden, by reason of the intoxication of [the Defendant], then
[Defendant] must be found not guilty of first degree murder. You
may find [Defendant] guilty of [second degree murder], if the
State has proved beyond a reasonable doubt each element of the
crime of [second degree murder].
Instruction No. 8-39 defines intoxication as a “state in which a
person is under the influence of an intoxicating liquor/drug/substance to such an extent that his/her (passions are visibly excited)/
(judgment is impaired).”
3. Counsel elicited testimony and argued at trial that Appellant
was drunk; he had drawn attention to himself by shooting his rifle
from the road; his car was broken down and parked in the wrong lane;
he had not loaded his rifle or shot the victims, though he could have;
he had left the victims alive, and allowed Shawn Monk to call for help.
Appellate counsel reiterated most of these themes in his challenge to
the sufficiency of the evidence to prove malice aforethought.
2016 OK CR 4
WILLIAM TODD LEWALLEN, Appellant, v.
THE STATE OF OKLAHOMA, Appellee.
Case No. F-2014-1063. March 11, 2016
SUMMARY OPINION
HUDSON, JUDGE:
¶1 Appellant William Todd Lewallen was
tried by jury and convicted of Child Neglect,
After Former Conviction of Two or More FeloVol. 87 — No. 9 — 3/26/2016
nies, in violation of 21 O.S.2011, § 843.5(C), in
the District Court of Tulsa County, Case No.
CF-2012-5174. The jury assessed punishment at
twenty-three (23) years imprisonment. The
Honorable Mark Barcus, District Judge, sentenced accordingly.1 Lewallen appeals, raising
the following issues:
(1) whether the district court erroneously
instructed the jury on the range of punishment for child neglect after former
conviction of two or more felonies;
(2) whether the evidence was sufficient to
support his conviction for child neglect;
(3) whether improper expert opinion invaded the province of the jury and denied
him a fair trial;
(4) whether the district court erred in refusing defense counsel’s request for an
instruction on the offense of child endangerment; and
(5) whether he received the effective assistance of counsel.
¶2 After thorough consideration of these
propositions, and the entire record before us on
appeal, including the original record, transcripts, exhibits and briefs of the parties, we
AFFIRM Lewallen’s conviction. However,
finding merit with Lewallen’s first proposition
of error, we VACATE the sentence and
REMAND this matter for RESENTENCING.
1.
¶3 Lewallen contends the trial court erroneously instructed the jury on the range of punishment for child neglect after former conviction of
two or more felonies. For the reasons set forth
below, we agree. The jury was incorrectly
instructed pursuant to 21 O.S.2011, § 51.1(B)
that the range of punishment was 20 years to
life imprisonment. Although Lewallen failed to
timely object, this error constitutes plain error
which requires Lewallen’s sentence be vacated
and the case remanded for resentencing with
proper instructions on the range of punishment. See Scott v. State, 1991 OK CR 31, ¶ 14,
808 P.2d 73, 77 (in a non-capital case where the
Court has determined that a sentence is infirm
due to trial error it may exercise one of three
options: modify within the range of punishment, modify to the minimum punishment
allowable by law, or remand to the trial court
for resentencing); 22 O.S.2011, § 1066.
637
¶4 When a defendant with two or more felony convictions is convicted of an offense enumerated in 57 O.S.2011, § 571, his punishment
range is 20 years to life. 21 O.S.2011, § 51.1(B).
If the conviction is for an offense not listed in §
571, and the offense does not carry a minimum
sentence for a first offense, the range of punishment is 4 years to life. 21 O.S.2011, § 51.1(C).
While child abuse is an enumerated offense
under § 571,2 child neglect is not. The State
asserts that the definition of child abuse
includes neglect, and accordingly, the inclusion
of child abuse in § 571 automatically encompasses child neglect. The Court’s resolution of
this issue in unpublished cases has been inconsistent — both accepting and rejecting the
State’s assertion.3 A definitive resolution of this
issue is necessary to rectify the confusion created by these cases.
¶5 At the time of Lewallen’s offense, the
definition of “child abuse” as provided within
21 O.S.2011, § 843.5(A) specifically referenced
the definition of “abuse” set forth in 10A
O.S.Supp.2012, §§ 1-1-105(2) of the Oklahoma
Children’s Code. This definition contains the
phrase “harm or threatened harm.” Id. “Harm”
is defined in subsection 1-1-105(2)(a) and
includes the term “neglect.” It is the inclusion of
the word “neglect” within this definition that
provides the basis for the State’s argument.
¶6 “[T]o ascertain the intention[s] of the Legislature . . . , we may look to each part of the
statute, to other statutes upon the same or relative subjects, to the evils and mischiefs to be
remedied, and to the natural or absurd consequences of any particular interpretation.” State
ex rel. Mashburn v. Stice, 2012 OK CR 14, ¶ 11,
288 P.3d 247, 250 (citing Lozoya v. State, 1996 OK
CR 55, ¶ 20, 932 P.2d 22, 28). “Each part of the
various statutes must be given intelligent
effect.” Id.
¶7 The relevant statutes which must be
evaluated and balanced in this matter are 21
O.S.2011, § 843.5 and 57 O.S.2011, § 571. Pursuant to 21 O.S.2011, §§ 843.5(A) and (C), child
abuse and child neglect are separate and distinct criminal offenses. Simply, each offense is
defined differently. As previously noted, child
abuse was defined by 10A O.S.Supp.2012, §
1-1-105(2)4 at the time of Lewallen’s offense. On
the other hand, the crime of child neglect was
defined by 10A O.S.Supp.2012, § 1-1-105(47).5
By definition both offenses include a failure to
protect component. However, the protection
component of child neglect is strictly limited to
638
protecting a child from exposure to drugs, illegal activities or sexual acts. 21 O.S.2011, §
843.5(C); 10A O.S.Supp.2012, § 1-1-105(47).
Hence, while some instances of child neglect
could amount to child abuse, not every case of
neglect is encompassed within child abuse.
Indeed, in light of the definitional restrictions
set forth in § 1-1-105(47), it is a stretch to say
that even a bare majority of the instances of
child abuse would amount to child neglect or
vice versa. Thus, the Legislature clearly intended to create two separate criminal offenses.
Lumping the two offenses together with regard
to § 571 ignores the distinct delineation between
the two offenses.
¶8 Had the Legislature intended for both
offenses to be designated as a “violent crime”
pursuant to § 571, it would have specifically
designated both offenses as such in § 571. To
find otherwise fails to give “intelligent effect”
to each part of the relevant statutes. See Stice,
2012 OK CR 14, ¶ 11, 288 P.3d at 250. Thus,
finding the jury was incorrectly instructed pursuant to 21 O.S.2011, § 51.1(B), Lewallen’s sentence should be vacated and the case remanded
for resentencing with proper instructions on
the range of punishment — 4 years to life.
2.
¶9 After reviewing the evidence in the light
most favorable to the State, we find that any
rational trier of fact could find beyond a reasonable doubt that Lewallen was guilty of
child neglect based on the evidence presented
at trial. See Logsdon v. State, 2010 OK CR 7, ¶ 5,
231 P.3d 1156, 1161; Spuehler v. State, 1985 OK
CR 132, ¶ 7, 709 P.2d 202, 203-204. The evidence
was sufficient to sustain Lewallen’s conviction.
3.
¶10 We reject Lewallen’s claim that he was
denied a fair trial by admission of improper
expert opinion from a pediatrician who examined the victims for abuse and neglect. The
medical expert was qualified based on her
training and experience to testify on the subject
of child neglect. 12 O.S.Supp.2013, § 2702. Her
testimony was helpful and admissible to assist
the jury in its determination of the issues at
trial. See Coddington v. State, 2006 OK CR 34, ¶
41, 142 P.3d 437, 449 (“Any properly qualified
expert testifying in accordance with the standards governing admissibility of expert testimony may offer an opinion on the ultimate
issue if it would assist the trier of fact.”) (quot-
Vol. 87 — No. 9 — 3/26/2016
ing Johnson v. State, 2004 OK CR 25, ¶ 16, 95
P.3d 1099, 1104).
4.
¶11 We find that the trial court did not abuse
its discretion in denying Lewallen’s requested
jury instruction on the offense of child endangerment because the evidence did not support
this instruction. Jones v. State, 2006 OK CR 17, ¶
6, 134 P.3d 150, 154; Shrum v. State, 1999 OK CR
41, ¶ 9, 991 P.2d 1032, 1036 (a lesser offense
instruction should not be given unless the evidence would support a conviction for the lesser
offense).
5.
¶12 Lewallen’s final claim of ineffective assistance of counsel has been rendered moot by this
Court’s finding of error in proposition one,
which dictates Lewallen’s sentence be vacated
and the case remanded for resentencing.
DECISION
¶13 The Judgment is AFFIRMED, but the
Sentence is VACATED and the cause REMANDED to the District Court for RESENTENCING
consistent with this Opinion. Lewallen’s request
for oral argument is DENIED. Pursuant to Rule
3.15, Rules of the Oklahoma Court of Criminal
Appeals, Title 22, Ch. 18, App. (2015), the MANDATE is ORDERED issued upon delivery and
filing of this decision.
AN APPEAL FROM THE DISTRICT COURT
OF TULSA COUNTY
THE HONORABLE MARK BARCUS,
DISTRICT JUDGE
Charles Sullivan, Sara Garrett, Assistant Public
Defenders, 423 S. Boulder, Suite 300, Tulsa, OK
74103, Attorneys for Defendant
Kevin Gray, Assistant District Attorney, 500 S.
Denver, Tulsa, OK 74103, Attorney for State
Stuart W. Southerland, Assistant Public
Defender, 423 S. Boulder, Suite 300, Tulsa, OK
74103, Attorney for Appellant
E. Scott Pruitt, Oklahoma Attorney General,
Matthew L. Warren, Assitant Attorney General,
313 N.E. 21st Street, Oklahoma City, OK 73105,
Attorneys for Appellee
OPINION BY: HUDSON, J.
Vol. 87 — No. 9 — 3/26/2016
SMITH, P.J.: CONCURS IN PART/
DISSENTS IN PART
LUMPKIN, V.P.J.: CONCURS
JOHNSON, J.: CONCURS IN PART/
DISSENTS IN PART
LEWIS, J.: CONCURS
JOHNSON, J., CONCURRING IN PART
AND DISSENTING IN PART:
¶1 The majority concludes, and I agree, that
Lewallen’s Judgment should be affirmed. I
cannot agree, however, with the majority’s conclusion that error raised in Proposition 1
requires the case be remanded for resentencing. I would reject Lewallen’s claim that the
district court erroneously instructed the jury
on the range of punishment for child neglect
after former conviction of two or more felonies.
When a defendant with two or more felony
convictions is convicted of an offense enumerated in 57 O.S.2011, § 571, his punishment
range is twenty years to life. 21 O.S.2011, §
51.1(B). Child abuse is an enumerated offense
under § 571. 57 O.S.2011, § 571(2)(w). “Abuse”
is defined, in pertinent part, as “harm or threatened harm or failure to protect from harm or
threatened harm to the health, safety, or welfare of a child[.]” 10A O.S.Supp.2012, § 1-1105(2). “Harm or threatened harm to the health
or safety of a child” is further defined as “any
real or threatened physical, mental, or emotional injury or damage to the body or mind
that is not accidental including but not limited
to sexual abuse, sexual exploitation, neglect, or
dependency.” Id. § 1-1-105(2)(a) (emphasis
added). In other words, “neglect” is explicitly
included in the definition of “harm or threatened harm to the health or safety of a child,” a
phrase used to define “child abuse.” The inclusion of child abuse in § 571, therefore, automatically encompasses child neglect. The district court properly instructed the jury on the
range of punishment under 21 O.S.2011, §
51.1(B). I would find, therefore, that because
the jury instructions, as a whole, fairly and
accurately stated the applicable law in effect at
the time the crime was committed there was no
abuse of discretion. See Hicks v. State, 2003 OK
CR 10, ¶ 3, 70 P.3d 882, 883.
¶2 I am authorized to state that Judge Smith
joins this opinion.
1. Under 21 O.S.2011, § 13.1, Lewallen must serve 85% of the sentence imposed before he is eligible for parole.
2. 57 O.S.2011, § 571(2)(w).
3. See Littleraven v. State, No. C-2014-0693 (Okl.Cr. July 9, 2015)
(Unpublished) (Petitioner who entered guilty plea to child neglect
after former conviction of two or more felonies was allowed to with-
639
draw his guilty plea after being advised that the range of punishment
was 20 years to life because child neglect is not a specifically enumerated crime under 57 O.S.2011, § 571); Cole v. State, No. F-2013-0813 (Okl.
Cr. Oct. 29, 2014) (Unpublished) (inclusion of child abuse in § 571
encompasses child neglect); Jackson v. State, No. F-2013-0833 (Okl.Cr.
Oct. 1, 2014) (Unpublished) (same).
4. Effective May 9, 2014, the Legislature amended Title 21, Section
843.5(A) wholly defining “child abuse” within the subsection and
removing its reference to Title 10A, § 1-1-105(2) for the definition.
Notably, “neglect” is not included within this definition.
5. The current version of Title 21, Section 843.5(C) — child neglect
— still references § 1-1-105 for the definition of “child neglect.”
2016 OK CR 5
JERMAINE JACKSON, Appellant, v. THE
STATE OF OKLAHOMA, Appellee.
Case No. F-2014-627. March 15, 2016
OPINION
HUDSON, JUDGE:
¶1 Appellant Jermaine Jackson was tried by
jury in the District Court of Tulsa County, Case
No. CF-2012-4007, and convicted of two counts
of First Degree Malice Aforethought Murder, in
violation of 21 O.S.2011, § 701.7(A).1 The jury
assessed punishment at life imprisonment with
the possibility of parole for both counts. The
Honorable William Musseman, District Judge,
pronounced judgment and sentence accordingly and ordered that the sentences be served
consecutively.2 Jackson now appeals raising the
following issues:
I. THE TRIAL COURT COMMITTED PLAIN
ERROR BY INCLUDING WITHIN THE
DEFINITION AND EXPLANATION OF
MALICE AFORETHOUGHT IN JURY
INSTRUCTION NO. 31 THE LAST PARAGRAPH OF INSTRUCTION NO. 4-62,
OUJI-CR(2d) WHICH INSTRUCTED ON
TRANSFERRED INTENT; and
II. THE APPELLANT WAS DEPRIVED OF
EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL.
¶2 After thorough consideration of these
propositions, and the entire record before us on
appeal, including the original record, transcripts, exhibits and briefs of the parties, we
AFFIRM the Judgment and Sentence.
I.
¶3 Appellant contends the trial court committed plain error when it instructed the jury
on the doctrine of transferred intent with
regard to his Count II charge of malice murder.
Appellant asserts the State failed to specify in
the Information that Appellant’s intent to kill
Mr. White could transfer to the killing of Mr.
640
Thorsson. As a result, Appellant argues he was
unfairly convicted in Count II based on the
“un-charged theory of transferred intent” without proper notice.
¶4 Appellant failed to object to either the sufficiency of the Information or the court’s instructions to the jury. Appellant has therefore
waived on appeal all but plain error review. See
Short v. State, 1999 OK CR 15, ¶ 48, 980 P.2d
1081, 1098 (instructional error claim reviewed
for plain error only as no objection was raised
at trial); Conover v. State, 1997 OK CR 6, ¶ 10,
933 P.2d 904, 909 (sufficiency of the Information challenge reviewed for plain error only as
defendant failed to object to the Information at
trial). “To be entitled to relief under the plain
error doctrine, Appellant must prove: 1) the existence of an actual error (i.e., deviation from a
legal rule); 2) that the error is plain or obvious;
and 3) that the error affected his substantial
rights, meaning the error affected the outcome of
the proceeding.” Levering v. State, 2013 OK CR
19, ¶ 6, 315 P.3d 392, 395. “If these elements are
met, this Court will correct plain error only if the
error ‘seriously affect[s] the fairness, integrity or
public reputation of the judicial proceedings’ or
otherwise represents a ‘miscarriage of justice.’”
Id. (quoting Hogan v. State, 2006 OK CR 19, ¶ 38,
139 P.3d 907, 923).
¶5 The crux of Appellant’s allegation hinges
on his contention that the transferred intent
doctrine is an alternative theory of first degree
murder that must be specifically charged. To
assess the sufficiency of an Information the following two-pronged test is utilized: “(1)
whether the defendant was in fact misled by it,
and (2) whether conviction under it would
expose the defendant to the possibility of being
put in jeopardy a second time for the same
offense.” Fields v. State, 1996 OK CR 35, ¶ 25,
923 P.2d 624, 629 (citing Lambert v. State, 1994
OK CR 79, ¶ 44, 888 P.2d 494, 504). An Information need not list every element of the charged
offense. Fields, 1996 OK CR 35, ¶ 26, 923 P.2d at
629. The question is rather whether the Information provided the defendant with notice of
the crimes charged and apprised him of what
he must defend against at trial. Id.; Van White v.
State, 1999 OK CR 10, ¶ 13, 990 P.2d 253, 261.
¶6 In support of his claim of insufficient
notice, Appellant cites to Lambert v. State, 1994
OK CR 79, ¶¶ 44-45, 888 P.2d 494, 504, where
this Court found reversible error occurred
when the jury was instructed on felony murder
despite the State’s failure to specifically charge
Vol. 87 — No. 9 — 3/26/2016
Lambert in the alternative with felony murder.
The case herein is distinguishable from Lambert, as transferred intent is not an alternative
legal theory of guilt — such as first degree
malice murder and felony murder as provided
in 21 O.S.2011, § 701.7. The doctrine of transferred intent provides:
[W]hen one person acts with intent to harm
another person, but because of a bad aim
he instead harms a third person who he
did not intend to harm, the law considers
him just as guilty as if he had actually
harmed the intended victim.
Short, 1999 OK CR 15, ¶ 44, 980 P.2d at 1098
(citing W. LaFave & A. Scott, Criminal Law, §
3.12(d) (2nd ed.1986)). The transferred intent
doctrine directly relates to the relevant mens rea
element of the charged offense. Application of
the transferred intent doctrine does not create a
new and different crime. Rather, the transferred intent doctrine provides an alternative
factual theory with the same legal basis, i.e.,
Appellant either directly intended to kill Thorsson or his intent to kill White transferred to
Thorsson. Cf. Slaughter v. State, 1997 OK CR 78,
¶ 63, 950 P.2d 839, 857 (aiding and abetting is
an alternative factual theory versus a different
legal theory of guilt); Rounds v. State, 1984 OK
CR 49, ¶ 20, 679 P.2d 283, 287 (charging Information need not specifically allege that the
defendant aided and abetted the offense).
¶7 In Bradshaw v. Richey, the United States
Supreme Court found it doubtful that the principle of fair notice had any application to a case
of transferred intent, “where the defendant’s
contemplated conduct was exactly what the relevant statute forbade.” Bradshaw v. Richey, 546
U.S. 74, 76-77, 126 S.Ct. 602, 604, 163 L.Ed.2d
407 (2005) (emphasis in original). Looking to
the relevant mens rea provision for the crime of
aggravated murder in Ohio, the Court found
Ohio’s law provided adequate notice of the
applicability of transferred intent. Id. at 77, 126
S.Ct. at 604. The statutorily established mens rea
provision for the offense required proof that
the defendant “intended to cause the death of
another.” Id. (emphasis in original). The Court
found “[t]here was no reason to read ‘another’
(countertextually) as meaning only ‘the actual
victim,’ since the doctrine of transferred intent
was ‘firmly rooted in Ohio law.’” Id. Thus, the
Court concluded the respondent in Bradshaw
“could not plausibly claim unfair surprise that
the doctrine applied in his case.” Id.
Vol. 87 — No. 9 — 3/26/2016
¶8 The doctrine of transferred intent is likewise
firmly rooted in Oklahoma case law. See Short,
1999 OK CR 15, ¶ 44, 980 P.2d at 1098. Moreover, similar to the mens rea provision examined in Bradshaw, the relevant mens rea provision of first degree malice murder in Oklahoma
requires only that the State prove the accused
had the deliberate intention of taking away the
life of another “human being.”3 21 O.S.2011, §
701.7(A). Thus, the plain language of § 701.7(A)
contemplates application of the doctrine of
transferred intent as it requires the State prove
only that the defendant was intending to cause
the death of another human being. As determined in Bradshaw, there is no reason to read §
701.7(A) countertextually as restricting the relevant mens rea to “the actual victim.” Consequently, the Information as filed with regard to
Count II in the present case was sufficient to
notify Appellant of the crime charged and the
applicability of the transferred intent doctrine.
¶9 Additionally, Appellant has failed to demonstrate he was in fact misled — to his detriment — by the Information. See Fields, 1996 OK
CR 35, ¶ 25, 923 P.2d at 629; Lambert, 1994 OK
CR 79, ¶ 44, 888 P.2d at 504. An audiotape of
Appellant’s statement to police was properly
admitted into evidence and played for the jury.
Appellant’s subsequent testimony during trial
mirrored his pretrial statement to Tulsa police.
Under these circumstances, Appellant cannot
claim prejudice resulted from his decision to
testify. Moreover, testifying that he acted in
self-defense is not an admission of the necessary mens rea element of malice murder, i.e.,
that he acted with the deliberate intention of
“unlawfully” taking away the life of another
human being. See 21 O.S.2011, § 701.7(A). Thus,
unlike what occurred in Lambert, 1994 OK CR
79, ¶ 44, 888 P.2d at 504, Appellant’s testimony
did not guarantee his conviction on Count II.
¶10 The record further demonstrates defense
counsel was not surprised by the application of
the transferred intent doctrine. Defense counsel’s lack of surprise is evidenced in a discussion had between the parties regarding which
lesser included offense instructions should be
provided in relation to Count 2.
¶11 In light of the foregoing, Appellant’s claim
that he was unfairly convicted in Count II
based on the “un-charged theory of transferred
intent” without proper notice is without merit.
The Information contained the essential elements of the crimes charged and was sufficient
to bar future prosecution for those offenses.
641
Application of the transferred intent doctrine
directly related to the relevant mens rea element
of Appellant’s Count 2 charge of malice murder. The application of the doctrine did not
create a new and different crime. Moreover,
Appellant has failed to demonstrate that he
was misled — to his detriment — by the Information. Based on the circumstances of this case
as well as the record, Appellant cannot “plausibly claim unfair surprise that the doctrine
applied in his case.” Bradshaw, 546 U.S. at 77,
126 S.Ct. at 604. The trial court did not commit
plain error by instructing the jury on the doctrine of transferred intent.
¶12 This proposition of error is denied.
II.
¶13 Appellant argues that his trial counsel was
ineffective for failing to object to the transferred intent instruction for the reasons set
forth in his first proposition of error. To prevail
on an ineffective assistance of counsel claim,
the defendant must show both that counsel’s
performance was deficient and that the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). As
discussed in Proposition I, the transferred
intent instruction was proper under the facts
and circumstances of this case. Thus, trial
counsel was not ineffective for failing to make
a meritless objection. Logan v. State, 2013 OK
CR 2, ¶ 11, 293 P.3d 969, 975 (“The omission of
a meritless claim, i.e., a claim that was destined
to lose, cannot constitute deficient performance; nor can it have been prejudicial.”)
Thus, this proposition of error is denied.
DECISION
¶14 The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule
3.15, Rules of the Oklahoma Court of Criminal
642
Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon delivery and
filing of this decision.
AN APPEAL FROM THE DISTRICT COURT
OF TULSA COUNTY
THE HONORABLE BILL MUSSEMAN,
DISTRICT JUDGE
David Phillips, Assistant Public Defender, 423
S. Boulder, Suite 300, Tulsa, OK 74103, Attorney for Defendant
Julie Doss, Assistant District Attorney, 500 S.
Boulder, Suite 900, Tulsa, OK 74103, Attorney
for State
Richard Couch, Assistant Public Defender, 423
S. Boulder, Suite 300, Tulsa, OK 74103, Attorney for Appellant
E. Scott Pruitt, Oklahoma Attorney General,
Jennifer B. Welch, Assistant Attorney General,
313 N.E. 21st Street, Oklahoma City, OK 73105,
Attorneys for Appellee
OPINION BY: HUDSON, J.
SMITH, P.J.: CONCUR
LUMPKIN, V.P.J.: CONCUR
JOHNSON, J.: CONCUR
LEWIS, J.: CONCUR
1. With regard to Count II, Appellant was charged with alternative
theories of First Degree Murder — malice murder or felony murder in
violation of 21 O.S.2011, § 701.7(A) & (B). In addition to malice and
felony murder, the jury was also instructed on Manslaughter in the
First Degree, Murder in the Second Degree by Imminently Dangerous
Conduct and Felony Murder — Second Degree.
2. Appellant must serve at least 85% of his sentences before parole
eligibility. 21 O.S.2011, § 13.1(1).
3. The definition of murder in the first degree refers to the “death
of another human being”; the definition of malice uses the phrase “take
away the life of a human being.” 21 O.S.2011, § 701.7(A). Whether
“human being” or “another human being”, the interpretation of the
relevant mens rea — malice — is the same.
Vol. 87 — No. 9 — 3/26/2016
CALENDAR OF EVENTS
March
30
31
OBA Communications Committee meeting;
12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact
David A. Poarch Jr. 405-329-6600
OBA Professionalism Committee meeting;
4 p.m.; Oklahoma Bar Center, Oklahoma City with
teleconference; Contact Patricia Podolec
405-760-3358
April
1
5
19
OBA Alternative Dispute Resolution Section
meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma
City with videoconference; Contact John H. Graves
405-684-6735
OBA Government and Administrative Law
Section meeting; 4 p.m.; Oklahoma Bar Center,
Oklahoma City with teleconference; Contact
Michael Mannes 405-473-0352
20
21
22
26
7
8
OBA Lawyers Helping Lawyers Discussion
Group; Office of Tom Cummings, 701 NW 13th St.,
Oklahoma City, OK 73012; Contact Jeanne M. Snider
405-366-5466 or Hugh E. Hood 918-747-4357
OBA Access to Justice Committee meeting;
11 a.m.; Oklahoma Bar Center, Oklahoma City with
teleconference; Contact Michael Speck 405-205-5840
OBA Law-related Education Committee
City with teleconference; Contact Professor Paul Clark
405-208-6303 or Brady Henderson 405-524-8511
Vol. 87 — No. 9 — 3/26/2016
28
29
OBA Family Law Section meeting; 3 p.m.;
Oklahoma Bar Center, Oklahoma City with videoconference; Contact Luke Barteaux 918-585-1107
OBA Bench and Bar Committee meeting;
12 p.m.; Oklahoma Bar Center, Oklahoma City
with teleconference; Contact Judge David B. Lewis
405-556-9611 or David Swank 405-325-5254
OBA Women in Law Committee meeting;
teleconference; Contact Ann E. Keele 918-592-1144
or Reign Grace Sikes 405-419-2657
OBA Indian Law Section meeting; 12 p.m.;
Oklahoma Bar Center, Oklahoma City with teleconference; Contact Deborah Reed 918-728-2699
OBA Clients’ Security Fund Committee
City with videoconference Contact Micheal Salem
405-366-1234
OBA Diversity Committee meeting; 12 p.m.;
Oklahoma Bar Center, Oklahoma City with videoconference; Contact Tiece Dempsey 405-609-5406
OBA Board of Governors meeting; 10 a.m.;
Oklahoma Bar Center, Oklahoma City; Contact
John Morris Williams 405-416-7000
OBA Legal Intern Committee meeting; 3 p.m.;
Oklahoma Bar Center, Oklahoma City; Contact
H. Terrell Monks 405-733-8686
OBA Professionalism Committee meeting;
teleconference; Contact Patricia Podolec
405-760-3358
OBA Professional Responsibility Commission
meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma
City; Contact Gina Hendryx 405-416-7007
May
3
OBA Government and Administrative Law
Section meeting; 4 p.m.; Oklahoma Bar Center,
Oklahoma City with teleconference; Contact
Michael Mannes 405-473-0352
643
Court of Civil Appeals Opinions
2016 OK CIV APP 11
THE JAYSON W. DAVISON TRUST OF
2010, U/T/A 7/8/10 and JAYSON W.
DAVISON, TRUSTEE, Plaintiff/Appellant,
vs. PAT BROCKHAUS, Defendant/Appellee,
and DON WAYNE BROCKHAUS, Successor
Trustee of the ARTHUR J. BROCKHAUS
TRUST, U/T/A 4/1/1994, Defendant/Third
Party Plaintiff/Appellee, vs. LOGAN
COUNTY TREASURER, Third Party
Defendant/Appellee.
Case No. 113,175. August 26, 2015
LOGAN COUNTY, OKLAHOMA
HONORABLE PHILLIP CORLEY,
TRIAL JUDGE
AFFIRMED
Paul Streck, STRECK & ASSOCIATES,
Edmond, Oklahoma, for Plaintiff/Appellant
Kraettli Q. Epperson, Sara K. Hawkins, MEE
MEE HOGE & EPPERSON PLLP, Oklahoma
City, Oklahoma, for Defendant/Appellee and
Defendant/Third Party Plaintiff/Appellee
JANE P. WISEMAN, JUDGE:
¶1 The Jayson W. Davison Trust of 2010, u/t/a
7/8/10, and Jayson W. Davison, Trustee, appeal
the trial court’s order granting summary judgment in favor of Defendant and Third-Party
Plaintiff, Don Wayne Brockhaus, Successor
Trustee of the Arthur J. Brockhaus Trust, u/t/a
4/1/1994. The primary issue on appeal is whether Don Brockhaus, as successor trustee, received
the required notice of the tax sale of certain real
property in Guthrie, Oklahoma. This appeal
was assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12
O.S. Supp. 2014, ch. 15, app. 1, without appellate briefing. After review, we affirm.
FACTS AND PROCEDURAL
BACKGROUND
¶2 Jayson W. Davison, as trustee as of the
Jayson W. Davison Trust of 2010, u/t/a 7/8/10
(Davison), filed an affidavit for forcible entry
and detainer in small claims court in July 2012,
alleging he is the owner of property at 708
Meadow Rock Trail, Guthrie, Oklahoma. Davi644
son obtained the property on June 11, 2012,
through a County Treasurer’s resale deed, and
placed the property in the Jayson W. Davison
Trust of 2010 (Davison Trust) through a quit
claim deed dated June 26, 2012. Pat Brockhaus
was named as the defendant. Davison seeks
possession of the property, alleging Brockhaus
lives on the property and is wrongfully in possession of it.
¶3 Brockhaus asked that the case be dismissed because it was brought as an eviction
proceeding and because he claims an ownership interest in the property, the proper action
is one in ejectment. Brockhaus further alleged
the Logan County Treasurer failed to obtain
proper service and or to give proper notice of
the tax resale of the property. The case was
transferred from the small claims division to
the civil division docket on October 25, 2012.
¶4 Davison filed a motion for summary
judgment, and in his brief in support of the
motion, he alleged as undisputed the facts
summarized and quoted below. We have
included Brockhaus’s response to each statement of undisputed fact.
• The Davison Trust is the owner of the property located at 708 Meadow Rock Trail,
Guthrie, Oklahoma (Property), pursuant to
a County Treasurer’s Resale Deed, dated
June 11, 2012, and a quit claim deed dated
June 26, 2012, which placed the property in
the Davison Trust. (Disputed. “Don Wayne
Brockhaus, Trustee of the Arthur J. Brockhaus Trust, U/T/A 4/1/1994, is the owner
of [Property]. Defendant, Pat Brockhaus,
has an equitable interest in [Property].”)
• Pat Brockhaus resides at the Property and
his mailing address is 708 Meadow Rock
Trail, Guthrie, Oklahoma. (Admitted.)
• Pat Brockhaus is wrongfully in possession
of Property. (Disputed.)
• Davison Trust has legal title to Property and
is entitled to possession. Davison Trust has
made demand on Pat Brockhaus to vacate,
but he has refused to do so. (“Disputed in
Part. [Davison Trust] does not have legal
title to the real property which is a subject of
this case. Admitted in Part. Pat Brockhaus
does refuse to leave the premises.”)
Vol. 87 — No. 9 — 3/26/2016
• Pat Brockhaus does not currently have any
ownership interest in Property and had no
ownership interest when Property “was
sold for delinquent taxes.” “Prior to the tax
sale, title to the property was held by the
Arthur Brockhaus Trust, u/t/a 4/01/1994.”
Davison Trust now holds title to Property.
(“Disputed. Pat Brockhaus has an equitable interest in the property, Don Wayne
Brockhaus, Trustee of the Arthur J. Brockhaus Trust, U/T/A 4/1/1994 has legal title
to [Property]. [Davison Trust] does not
have legal title to [Property] which is a subject of this case.”)
• “Pat Brockhaus was initially served with a
Ten Day Notice to Quit on June 22, 2012.”
Pat Brockhaus failed to vacate property
and Davison Trust commenced a Forcible
Entry and Detainer action. (Admitted.)
• “Pat Brockhaus was served with a Forcible
Entry and Detainer on August 20, 2012, setting forth a hearing date of August 24, 2012
at 1:30 P.M. The August 24, 2012 hearing
was continued to September 6, 2012 at 9:00
A.M. At the hearing on September 6, 2012,
following the arguments of counsel, the
Court set forth a Briefing Schedule and
continued the hearing to October 4, 2012, at
9:00 A.M. The October 4, 2012, hearing was
then continued to October 11, 2012, at 9:00
A.M.” (Admitted.)
• At the October 11th hearing, the trial court
found that Davison Trust’s action should
proceed as one in ejectment and the case
should be transferred to the civil division.
The trial court ordered Pat Brockhaus to
file a verified answer within 10 days after
the transfer of the case to the civil division.
(Admitted.)
• Pat Brockhaus failed to pay the filing fee to
transfer the case and Davison Trust paid
$85.70 to transfer the case. Pat Brockhaus
reimbursed Davison Trust. (“Disputed in
Part. Defendant, Pat Brockhaus, was not
ordered to pay the necessary filing fees to
transfer this case. Admitted. Defendant,
Pat Brockhaus, has subsequently reimbursed the Plaintiff for the transfer fee.”)
• Pat Brockhaus’s answer was due 10 days
after the transfer, or by November 5, 2012.
(Disputed. Pat Brockhaus filed a brief in
support on September 17, 2012. Although
the brief was not titled “Answer,” “one can
Vol. 87 — No. 9 — 3/26/2016
easily conclude it contains each and every
essential element of an answer.”)
• Pat Brockhaus has failed to file a verified
answer of any documentation to support
his allegation he has an ownership interest
in Property. (Disputed. Pat Brockhaus filed
a brief in support on September 17, 2012.
Although the brief was not titled “Answer,”
“one can easily conclude it contains each
and every essential element of an answer.”)
• Pat Brockhaus remains in wrongful possession of Property. (Disputed.)
¶5 Pat Brockhaus filed a supplemental
answer, which also contained counterclaims
and a third-party petition. The filing added
Don Wayne Brockhaus, Successor Trustee of
the Arthur J. Brockhaus Trust, u/t/a 4/1/1994
(Brockhaus Trust), as a third-party plaintiff,
and added the Logan County Treasurer (Treasurer) as a third-party defendant. Pat and
Brockhaus Trust alleged Brockhaus Trust owns
Property and that Treasurer conducted a tax
sale at which Treasurer purported to sell Property. They asserted Brockhaus Trust was not
served with proper notice before the tax sale.
They alleged the document that was sent was
directed to “’Brockhaus, Arthur J. Trust c/o
Glyna Noe, 10312 Park Road, Edmond, OK
73034-000’ not Don Wayne Brockhaus at 10907
Magnolia Blvd., Suite 467, North Hollywood,
CA 91601, who is the Trustee of the Trust.” Pat
and Brockhaus Trust alleged Glyna Noe is not
the trustee or successor trustee of this Trust.
They further alleged the notice did not contain
“the amount of all delinquent taxes, costs, penalties and interest accrued, due and unpaid as
required by 68 O.S. § 3127.” The mail sent to the
Edmond address was returned unclaimed. No
notice was sent to Don Wayne Brockhaus as Successor Trustee or to Pat Brockhaus at Property.
¶6 Pat and Brockhaus Trust asserted affirmative defenses of negligence on the part of Davison Trust or Treasurer, that Davison Trust’s
allegations are not well grounded in fact or law
and are not warranted by existing law or by
good faith extension of existing law, and that
Davison Trust failed to state a claim on which
relief could be granted. Pat and Brockhaus
Trust alleged claims against Davison Trust for
quiet title, trespass, and unjust enrichment.
¶7 The trial court overruled Davison Trust’s
motion for summary judgment. Pat and Brockhaus Trust filed a “motion for leave of the court
to amend their counterclaims and complaint of
645
defendant and third party plaintiff and petition
of third party plaintiff.” The supplemental
counterclaims and third-party petition sought
to add seven third-party defendants involved
in the sale and purchase of 5 properties at the
tax sale which are allegedly owned by Brockhaus Trust. Davison Trust objected to the
motion for leave to amend. The trial court
denied Pat’s and Brockhaus Trust’s motion for
leave to amend and granted Davison Trust’s
motion to enter on the non-jury docket.
¶8 Brockhaus Trust then filed a motion for
summary judgment asserting the following as
uncontroverted facts:
8. “During the time of the publication and
mailed Resale Notice of the Tax Resale, Pat
Brockhaus, brother of Don Wayne Brockhaus, Successor Trustee, resided on the
Property. Pat Brockhaus never received or
was delivered a Resale Notice of the Tax
Resale.” The Treasurer did not send notice
to Property.
1. Brockhaus Trust owned Property prior to
June 11, 2012.
9. Don Brockhaus found out about the tax
resale after Pat was served at Property with
Davison’s forcible entry and detainer
action. The action was transferred from the
small claims division.
2. Brockhaus Trust obtained title to Property through a warranty deed dated April
1, 1994.
10. “Treasurer admits that no notices were
served on [Don] Brockhaus prior to the Tax
Resale.”
3. Don Wayne Brockhaus became successor
trustee of the Brockhaus Trust after the
death of Arthur J. Brockhaus, who was the
original trustee.
11. “Davison filed his action on the underlying premise that the Davison deed is argued
by Davison to be a valid instrument.”
4. Treasurer caused the purported notice of
the resale of Property for delinquent taxes
to be published on May 10, 2012, May 17,
2012, May 24, 2012, and May 31, 2012, but
Brockhaus Trust did not receive notice.
5. “Treasurer caused purported Resale
Notice of the Tax Resale to be mailed by
certified mail on or about April 5, 2012 to a
sister (Glyna Noe) of Don Wayne Brockhaus, Successor Trustee. . . . The certified
mail was sent to the sister’s address and
not the Property itself. The sister was not
the Trustee nor was she listed as a Successor Trustee in the Memorandum of Trust
filed in Book 1559, at Page 103 of the
records of Logan County . . . . Said Memorandum was provided to the Treasurer
through a Title Search Affidavit the Treasurer received from Logan County Abstract
. . . .”
6. The notice was returned “unclaimed”
and Brockhaus Trust never received the
notice. “As a result of the Tax Resale Davison holds a County Treasurer’s Resale
Deed (the “Resale Deed”) executed by
Treasurer of Logan County on June 12,
2012.”
7. “During the time of the publication and
mailed Resale Notice of the Tax Resale,
646
[Don] Brockhaus resided in North Hollywood, California and never received actual
notice of the Tax Resale.”
¶9 Brockhaus Trust asserted that due process
requires that it receive actual notice of the tax
resale, the notice sent by certified mail that was
returned unclaimed was constitutionally deficient, and actual notice to the record owner by
certified mail was not met. It asserts the resale
deed is void.
¶10 In its answer, Davison Trust admits in
part and disputes in part Brockhaus Trust’s
uncontroverted facts numbered 1 through 4. It
admits Arthur J. Brockhaus placed Property in
trust and that when he passed away, Don
Brockhaus was named successor trustee by the
memorandum of trust. Davison Trust states it
has insufficient knowledge as to whether Don
Brockhaus is acting as successor trustee of
Brockhaus Trust and alleges Don Brockhaus
never provided Logan County with any type of
notification that he accepted the position as
successor trustee.
¶11 Davison Trust also admits in part and
disputes in part uncontroverted facts numbered 5 through 8. Davison Trust “admits that
notice was mailed to Glyna Noe, that notice
was not mailed to the property, and that Glyna
Noe’s position as Trustee or Co-Trustee of the
Arthur J. Brockhaus Trust is unknown.” It
alleges, “If Glyna Noe is not a Trustee, then she
or someone else had designated her as the person to whom notices for the Trust would be
Vol. 87 — No. 9 — 3/26/2016
sent.” It claims Treasurer complied with the
statutory notice provisions when the Treasurer
mailed notice to Noe because “[t]he statute
does not require that the notice be received.” It
asserts, “Under these facts, if Ms. Noe is not a
Trustee, then the publication notice should
stand on it’s [sic] own as Don Wayne Brockhaus, has not registered his name and address
with Logan County Assessor, the Logan County Clerk and/or the Logan County Treasurer.”
¶12 Regarding Brockhaus Trust’s fact number 9, Davison Trust claims it is without sufficient information to know when Brockhaus
Trust received notice of the proceeding. It
denied the fact in paragraph 10 and admitted
the one in paragraph 11.
¶13 Davison Trust filed a supplement to its
response in which it attaches the affidavit of
County Treasurer Sherri Longnecker. It claims
the affidavit shows Don Brockhaus has not
registered his name with the Logan County
Assessor, Logan County Clerk, and/or Logan
County Treasurer, and the “Treasurer used due
diligence in trying to ascertain the name and
address, where tax notices should be sent, by
having a title search conducted.” Although
Don Brockhaus’s name appears on the memorandum of trust, his address is not listed.
Because Noe’s address was listed with the
County Assessor’s office, Treasurer sent notice
to Noe. Treasurer claims Noe had actual notice
of the tax sale, contacted Treasurer’s office
before the sale, and stated she was going to pay
the taxes.1
¶14 The trial court found the tax sale was
void and granted summary judgment to Don
Brockhaus as Successor Trustee of the Brockhaus Trust, restoring ownership of Property to
Brockhaus Trust. The court stated, “That
because Don Wayne Brockhaus was the Successor Trustee of the [Brockhaus Trust] and he
did not receive actual notice of the tax resale,
that the tax sale was void.”
¶15 Davison Trust appeals from this summary judgment.
STANDARD OF REVIEW
¶16 Summary judgment is properly granted
“when the pleadings, affidavits, depositions,
admissions or other evidentiary materials
establish that there is no genuine issue as to
any material fact and that the moving party is
entitled to judgment as a matter of law.” Davis
v. Leitner, 1989 OK 146, ¶ 9, 782 P.2d 924. In
Vol. 87 — No. 9 — 3/26/2016
reviewing a grant of summary judgment, we
must view all conclusions and inferences to be
drawn from the evidentiary materials in a light
most favorable to the party who opposes the
motion. Id.
¶17 An appeal from an order granting summary judgment is subject to de novo review.
Shull v. Reid, 2011 OK 72, ¶ 3, 258 P.3d 521. “In
its re-examination of the trial tribunal’s legal
rulings an appellate court exercises plenary,
independent and nondeferential authority.”
Bronson Trailers & Trucks v. Newman, 2006 OK
46, ¶ 5, 139 P.3d 885.
ANALYSIS
¶18 Davison Trust includes seven sections in
its “Legal Issues to be Determined on Appeal.”
The primary issue on appeal, however, is
whether Treasurer provided constitutionally
sufficient notice of the tax sale to Brockhaus
Trust. We agree with the trial court that the
notice given was deficient and the tax sale and
resale tax deed are void.
¶19 The Oklahoma Supreme Court recently
addressed the notice requirements in tax resale
cases in Crownover v. Keel, 2015 OK 35, ___ P.3d
___, (petition for rehearing pending; not yet
released for publication). This is the issue in
Crownover: “[W]hether an owner of real property received constitutionally sufficient notice
of the sale of his property for delinquent taxes
when notice was provided only by publication
and certified mail that was returned undelivered.” Id. ¶ 1. The Supreme Court held that the
owner did not receive sufficient notice. Id.
¶20 After Crownover failed to pay taxes for
several years on certain real property in McIntosh County, Oklahoma, McIntosh County
offered the property for sale in 2010. Id. ¶ 3.
The Court explained:
It is undisputed that the notice provisions of 68 O.S.2011 § 3106, mandating
notice by mail and publication, were complied with. Notice was sent by certified
mail to Crownover at the address he provided when he purchased the property in
McIntosh County, and was also published
in a newspaper in McIntosh County. Unbeknownst to county treasurer’s office,
Crownover no longer lived at the address
to which notice was sent.
Id. ¶ 3. Crownover did not become aware of the
sale of the property at the tax resale until the
647
purchaser contacted him about a boat and
trailer on the property. Id. ¶ 4. Crownover
brought a quiet title action against the McIntosh County Treasurer and Board of County
Commissioners. Id. ¶ 5. Crownover asserted
the tax deed was void because “he did not
receive notice because while the notices of
delinquent taxes and of the resale were sent to
the address he provided to McIntosh County
when he purchased the property, Crownover
no longer lived at that address.” Id. Crownover
argued “that the County should have sent
notice to the address listed on the last check he
wrote for taxes on January 1, 2006.” Id.
¶21 Both Crownover and McIntosh County
moved for summary judgment. Id. ¶ 6. McIntosh County asserted “that it complied with all
statutory notice requirements by: 1) mailing
notice by certified mail to the address
Crownover had originally provided; and 2)
publishing notice of the resale in a publication
in McIntosh County.” Id. Crownover claimed
that McIntosh County sent the notice “to his old
address via certified mail [and it] was returned
to the County treasurer marked ‘Not Deliverable
as Addressed Unable to Forward.’” Id. ¶ 7. The
trial court granted summary judgment in favor
of County. Id. The Court of Appeals affirmed the
trial court’s decision. Id. ¶ 9.
¶22 Title 68 O.S.2011 § 3105(A) provides:
The county treasurer shall in all cases,
except those provided for in subsection B
of this section, where taxes are a lien upon
real property and have been unpaid for a
period of three (3) years or more as of the
date such taxes first became due and payable, advertise and sell such real estate for
such taxes and all other delinquent taxes,
special assessments and costs at the tax
resale provided for in Section 3125 of this
title, which shall be held on the second
Monday of June each year in each county.
The county treasurer shall not be bound
before so doing to proceed to collect by sale
all personal taxes on personal property
which are by law made a lien on realty, but
shall include such personal tax with that
due on the realty, and shall sell the realty
for all of the taxes and special assessments.
¶23 The Crownover Court stated:
While 68 O.S.2011 § 3105 authorizes the
sale of real property for delinquent taxes,
the U.S. Const. amend. XIV, § 1 and Okla.
Const. Art. 2, § 7 ensure that no person may
648
be deprived of life, liberty, or property
without due process of law. At a minimum,
due process requires notice and a meaningful opportunity to appear and be heard.
Edwards v. City of Sallisaw, 2014 OK 86, ¶ 19,
339 P.3d 870; Daffin v. State ex rel. Okla. Dep’t
of Mines, 2011 OK 22, ¶ 16, 251 P.3d 741.
Accordingly, constitutionally sufficient
notice must be given to real property owners before the property is sold for failure to
pay taxes. Jones v. Flowers, 547 U.S. 220, 234,
126 S.Ct. 1708, 164 L.Ed.2d 415 (2006) (“[B]
efore forcing a citizen to satisfy his debt by
forfeiting his property, due process requires
the government to provide adequate notice
of the impending taking.”). See Southwestern Commercial Capital, Inc. v. Cornett Packing Co., 2000 OK 19, ¶ 16, 997 P.2d 849;
Luster v. Bank of Chelsea, 1986 OK 74, ¶ 18,
730 P.2d 506.
Crownover, 2015 OK 35, ¶¶ 14-15 (footnotes
omitted). Title 68 O.S.2011 § 3106 addresses the
notice requirements that must be met before a
property may be sold for delinquent taxes.2 It
provides, in relevant part:
The county treasurer, according to the
law, shall give notice of delinquent taxes and
special assessments by publication once a week
for two (2) consecutive weeks at any time after
April 1, but prior to the end of September
following the year the taxes were first due
and payable, in some newspaper in the
county to be designated by the county treasurer. Such notice shall contain a notification that all lands on which the taxes are
delinquent and remain due and unpaid
will be sold in accordance with Section
3105 of this title, a list of the lands to be
sold, the name or names of the last record
owner or owners as of the preceding
December 31 or later as reflected by the
records in the office of the county assessor,
which records shall be updated based on
real property conveyed after October 1
each year and the amount of taxes due and
delinquent. . . . In addition to said published
notice, the county treasurer shall give notice by
mailing to the record owner of said real property as of the preceding December 31 or later as
reflected by the records in the office of the
county assessor, which records shall be
updated based on real property conveyed
after October 1 each year, a notice stating
the amount of delinquent taxes owed and
informing the owner that the subject real
Vol. 87 — No. 9 — 3/26/2016
property will be sold as provided for in
Section 3105 of this title if the delinquent
taxes are not paid and showing the legal
description of the property of the owner
being sold. Failure to receive said notice shall
not invalidate said sale.
(Emphasis added.)
¶24 McIntosh County asserted that it complied with the due process requirements
because it complied with § 3106 by publishing
notice in a newspaper located in McIntosh
County and sending notice by certified mail to
the address originally provided by Crownover.
Crownover, 2015 OK 35, ¶ 17. The Supreme
Court rejected this argument finding “compliance with the notice provisions 68 O.S.2011 §
3106 is not in and of itself sufficient if the notice
provided is constitutionally deficient.” Id. ¶ 18.
The Court quoted Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306, 315, 70 S. Ct. 652,
94 L. Ed. 865 (1950) for the proposition that:
when notice is a person’s due, process
which is a mere gesture is not due process.
The means employed must be such as one
desirous of actually informing the absentee
might reasonably adopt to accomplish it.
The reasonableness and hence the constitutional validity of any chosen method may
be defended on the ground that it is in
itself reasonably certain to inform those
affected.
Crownover, 2015 OK 35, ¶ 18.
¶25 The Crownover Court held, “The notice
requirement of due process is not satisfied
where, as here, notice sent via certified mail is
returned undelivered and no further action is
taken.” Id. ¶ 19. The Court stated:
The decision of the United States Supreme
Court in Jones v. Flowers, 547 U.S. 220, 126
S.Ct. 1708, 164 L.Ed.2d 415 (2006), is directly on point concerning notice required to
satisfy the requirements of due process
prior to sale of real property for delinquent
taxation. In Jones, under similar facts to this
cause, the Supreme Court of the United
States determined that “when mailed
notice of a tax sale is returned unclaimed,
the State must take additional reasonable steps
to attempt to provide notice to the property
owner before selling his property, if it is practicable to do so.” Jones, 547 U.S. at 225. The tax
sale in Jones occurred after the State published notice in a newspaper and attemptVol. 87 — No. 9 — 3/26/2016
ed to notify the property owner — who no
longer lived on the property — by certified
mail twice, with the notice returned
unclaimed both times. Jones, 547 U.S. at
223-224.
Id. (emphasis added). The Court noted that the
Jones Court also concluded “that the property
owner’s failure to keep his address updated,
which was required by statute, did not result
in the owner somehow forfeiting his right to
constitutionally sufficient notice.” Id. ¶ 20. The
Court also recognized:
While the Jones Court determined that
the State should have taken other reasonable measures to reach the property owner,
it stopped short of requiring the state to
search elsewhere for an address for the
property owner, noting that an open-ended
search for a new address would unduly
burden the State. 547 U.S. at 236. Rather,
the Court suggested reasonable measures
such as posting notice on the property
door, or even sending notice by regular
mail, which could at least have resulted in
its delivery and presence on the property.
Jones, 547 U.S. at 235. The Court noted that
it was not its responsibility to redraft the
State’s notice statute, but it was sufficient
that the Court was confident additional
reasonable steps were available for Arkansas to employ before taking the property.
Jones, 547 U.S. at 238.
Id. ¶ 21.
¶26 The Crownover Court held:
It is undisputed that Crownover failed
to timely pay taxes on the subject property.
It is also undisputed that the County fulfilled the notice requirements of 68 O.S.
2011 § 3106 by publishing notice and by
sending notice via certified mail to the
address it had been given for Crownover.
The County asserts this was sufficient
notice, regardless of whether the notice
was actually received by Crownover, and
further cites Crownover’s own need to
notify them of an address change and his
presumed knowledge that he would owe
taxes.
However, the record contains undisputed evidence that the notice to Crownover
sent via certified mail was never received
by him, was in fact returned to the County
marked as “not deliverable as addressed
649
unable to forward.” The Court of Civil
Appeals erred by declaring that this envelope was mentioned but not actually
attached to the record. Pursuant to Jones,
when confronted with the knowledge that its
notice via certified mail was not delivered and
therefore not seen by Crownover, the County
was required to attempt some other reasonable
method of supplying notice to Crownover. 547
U.S. at 225. The [p]rior decisions of this
Court also indicate that simple compliance
with the notice statute is not always enough
to satisfy the requirements of due process.
See Garcia, 2008 OK 90, ¶ 15; Ziegler, 1989
OK 113, ¶ 6.
The County could have taken other reasonable steps to attempt to provide
Crownover with notice, without necessarily being obligated to conduct a lengthy
hunt for a correct address. See Jones, 547
U.S. at 235-36. Like the Supreme Court of
the United States, we do not think that a
person who actually desired to inform a
real property owner of an impending tax
sale of the real property would do nothing
when a certified letter sent to the owner is
returned unclaimed. Jones, 547 U.S. at 229.
The return of the certified notice undelivered
was a red flag that should have tipped off the
County it needed to follow up. Ziegler, 1989
OK 113, ¶ 6. The County’s failure to make
any further effort resulted in Crownover
being denied constitutionally sufficient
notice of the eminent3 sale of his property.
The Jones decision also deals succinctly,
from the standpoint of U.S. Const. amend.
XIV, § 1, with the County’s claims concerning Crownover’s obligations. Crownover’s
failure to timely pay taxes and his failure to
provide an updated address to the County
did not relieve it of its obligation to provide
him with constitutionally adequate notice
prior to selling his property. Jones, 547 U.S.
at 229, 232. We agree.
Id. ¶¶ 27-30 (emphasis added.)
¶27 Here, the certified mail, sent to a person
unconnected to Property, was also returned
unclaimed. Treasurer and Davison Trust admitted notice was not mailed to Property. Based on
the reasoning in Crownover, which relied heavily on the United States Supreme Court’s decision in Jones, when Logan County learned that
its certified mail notice was not delivered to
Brockhaus Trust but returned unclaimed, and
650
was therefore not seen by the Trustee, Logan
County was then “required to attempt some
other reasonable method of supplying notice to
[Brockhaus Trust].” Id. ¶ 28. Because Logan
County did not take any other reasonable steps
to provide notice, Brockhaus Trust was “denied
constitutionally sufficient notice of the [im]
minent sale of [its] property.” Id. ¶ 29. The subsequent sale and resulting tax deed based on
this inadequate notice are void.
CONCLUSION
¶28 Based on the undisputed facts presented
in the summary judgment record, it is clear
Brockhaus Trust was not provided with constitutionally adequate notice before Logan County sold Property for delinquent taxes. See id. ¶
31. The trial court was correct in granting summary judgment in favor of Brockhaus Trust.
The trial court’s decision is affirmed.
¶29 AFFIRMED.
GOODMAN, V.C.J., and FISCHER, P.J., concur.
JANE P. WISEMAN, JUDGE:
1. The trial court in its Order granting summary judgment to
Brockhaus Trust stated that “Noe denied the allegations of the County
Treasurer’s Affidavit.”
2. Brockhaus Trust in its Response to Davison Trust’s petition in
error argues that 68 O.S.2011 § 3127 (“Notice of Resale”), not 68
O.S.2011 § 3106 (“Notice of Sale”), applies and requires that “the June
Tax Resale Notice must be mailed by certified mail at least 30 days
before the sale.” Its arguments regarding inadequate notice and the
resulting deed being void remain the same.
3. We believe this is meant to be “imminent.”
2016 OK CIV APP 12
T.L.I., a minor child, by and through his next
friend, TRAVIS L. IRICK, Plaintiff/
Appellant, vs. BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY OF
POTTAWATOMIE, Defendant/Appellee.
Case No. 113,687. August 11, 2015
POTTAWATOMIE COUNTY, OKLAHOMA
HONORABLE JOHN G. CANAVAN, JR.,
TRIAL JUDGE
AFFIRMED
Jack S. Dawson, Andrea R. Rust, Patrick H.
Lane, MILLER DOLLARHIDE, Oklahoma City,
Oklahoma, for Plaintiff/Appellant
Jordan L. Miller, COLLINS, ZORN & WAGNER, P.C., Oklahoma City, Oklahoma, for
Defendant/Appellee
KEITH RAPP, PRESIDING JUDGE:
Vol. 87 — No. 9 — 3/26/2016
¶1 The plaintiff, T.L.I. (T.L.I.) a minor, by and
through his next friend Travis L. Irick (Plaintiff), appeals an Order denying his motion for
new trial entered after the trial court granted
summary judgment to the defendant, Board of
County Commissioners of the County of Pottawatomie (Board). This appeal proceeds under
the provisions of Okla.Sup.Ct.R. 1.36, 12 O.S.
Supp. 2013, ch. 15, app. 1.
BACKGROUND
¶2 Plaintiff’s lawsuit claimed injury in an
automobile accident at night on December 27,
2010. T.L.I. was a passenger in an automobile
driven by another teenager. He and the other
passengers and driver were traveling from the
Prague, Oklahoma, area to Shawnee, Oklahoma.
¶3 After an apparently mistaken turn, the
group ended up on a county road named
Crosslin Road. The road is a dead end road.
¶4 Board had erected a sign signifying that
the road is a dead end road. On the date of the
accident, the sign was down. The driver continued on the dead end road and crashed into
an embankment. T.L.I. sustained injury.
¶5 After Board denied Plaintiff’s claim, he
filed this action. In his amended petition,
Plaintiff alleged that Board was negligent in
maintaining the road and road signs. Board
responded with several defenses, including
immunity under provisions of the Governmental Tort Claims Act, specifically citing 51
O.S. Supp. 2013, §§ 155(5) and 155(15). Board
then filed its motion for summary judgment.1
¶6 Board maintained, and the trial court
agreed, that it did not have actual or constructive notice that the dead end sign was down.
Board presented the deposition testimony of
County Commissioner Guinn, whose district
covered the location of the accident. Commissioner Guinn stated that he was not aware of
the dead end sign being down.
¶7 Commissioner Guinn stated that his telephone complaint logs did not show any complaint about the road or the sign. The summary
judgment record contains the logs for the last
half of the year 2010. These logs show a call on
August 9, 2010, about litter; a call on August
18, 2010, about a need for right-of-way mowing; a call on December 3, 2010, about a drain
(tinhorn); and a call on December 10, 2010,
about holes on the dead end of Hickory HolVol. 87 — No. 9 — 3/26/2016
low of Crosslin Road. The logs have an “action
taken” column which is blank for all of the
foregoing except the last which contains the
entry “done.” The Record does not indicate
whether a response, if any, to the calls would
have brought attention to the dead end sign.
¶8 T.L.I. did not have any personal knowledge of the dead end sign’s history prior to the
accident. The car’s driver testified that he did
not see a dead end sign, but he also had no
personal knowledge about the sign’s history.
¶9 Plaintiff’s summary judgment response,
as relates to this appeal, was that the County
erected the dead end sign and did not maintain
it. The dead end sign fell or was knocked down
and thus failed to warn the driver of the car
that he was on a dead end road. Plaintiff’s
summary judgment response did not present
any evidentiary materials that would show a
dispute regarding whether Board had actual
knowledge of the condition of the dead end
sign on the date of the accident.
¶10 Plaintiff argued for application of constructive notice. Plaintiff’s response characterized the testimony of Commissioner Guinn to
be that the County had no policy requiring its
employees to report downed or damaged
signs.2 He then maintained that Board’s ignorance of the knocked down sign was negligent
or willful and therefore Board had constructive
notice of the condition of the dead end sign.
¶11 The trial court ruled that Section 155(15)
shielded Board from liability because there was
no evidence showing a question of fact about
whether Board had actual or constructive
knowledge of the fact that the dead end sign
was down. The trial court awarded summary
judgment on the basis of this ruling and rejected the other grounds urged by Board. Board
has not appealed.
¶12 Plaintiff then filed a motion for new
trial.3 In this motion, Plaintiff conceded that
Board had no actual notice of the fact that the
dead end sign was down.4 Therefore, the trial
court’s ruling regarding lack of actual notice to
Board is affirmed.
¶13 In the motion for new trial, Plaintiff
argued that Board had constructive notice of
the downed dead end sign. He maintained that
Board failed to have and implement any policy
for its employees to report downed and damaged signs and that such policy would have
651
provided the mechanism to notify Board of a
downed or damaged sign.
¶14 In addition to his basic argument, Plaintiff added the allegation that Board’s employees
worked on Crosslin Road at least fourteen
times in the year preceding the wreck, with one
of those instances occurring eight days prior to
the wreck. He attached Board road grader
employees’ work and time sheets to establish
that presence. However, there is no indication
where in the work and time sheets it appears
that an employee was present on Crosslin
Road and a downed dead end sign was noted.5
¶15 Part of Board’s response to the motion
for new trial was an objection to the added
materials on the ground that the materials had
not been made a part of the response to the
motion for summary judgment. Without contradiction, Board represented that Plaintiff possessed the added materials when responding
to the motion for summary judgment. Therefore, the added materials did not qualify as
“new evidence” unavailable at the time of the
summary judgment proceedings.
¶16 In its ruling denying the motion for new
trial, the trial court agreed that the added materials did not qualify as new evidence.6 Nevertheless, the trial court further ruled that Plaintiff
had not demonstrated a fact issue regarding
constructive notice even considering the added
materials.
¶17 Plaintiff appeals.7
STANDARD OF REVIEW
¶18 As a general rule, “a motion for new trial
is addressed to the trial court’s sound discretion and, absent error as to a pure and unmixed
question of law, or arbitrary and capricious
action, every presumption should be indulged
in favor of the trial court’s ruling on appeal.”
Bennett v. Hall, 1967 OK 122, ¶ 5, 431 P.2d 339,
340-41. The standard of review when a summary judgment is followed by a ruling on a
motion for new trial is set out in Reeds v. Walker,
2006 OK 43, ¶ 9, 157 P.3d 100, 106-07.
Summary relief issues stand before us
for de novo review. All facts and inferences
must be viewed in the light most favorable
to the non-movant. Appellate tribunals
bear the same affirmative duty as is borne
by nisi prius courts to test for legal sufficiency all evidentiary material received in
summary process in support of the relief
652
sought by the movant. Only if the court
should conclude there is no material fact
(or inference) in dispute and the law favors
the movant’s claim or liability-defeating
defense is the moving party entitled to
summary relief in its favor. A trial court’s
denial of a motion for new trial is reviewed
for abuse of discretion. Where, as here, our
assessment of the trial court’s exercise of
discretion in denying defendants a new
trial rests on the propriety of the underlying grant of summary judgment, the abuseof-discretion question is settled by our de
novo review of the summary adjudication’s
correctness. Judicial discretion is abused
when a trial court errs with respect to a
pure, unmixed question of law.
¶19 The summary judgment standard of
review is set out in Murray County v. Homesales,
Inc., 2014 OK 52, ¶ 4, 330 P.3d 519, 523.
The district court’s order granting summary judgment is reviewed de novo. Carmichael
v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051,
1053. That review requires examination of
the pleadings and evidentiary materials
submitted by the parties to determine
whether there exists a genuine issue of
material fact. Id. This Court bears “an affirmative duty to test all evidentiary material
tendered in summary process for its legal
sufficiency to support the relief sought by
the movant.” Copeland v. The Lodge Enters.,
Inc., 2000 OK 36, ¶ 8, 4 P.3d 695, 699.
¶20 One who defends against a claim and
who does not bear the burden of proof is not
required to negate the plaintiff’s claims or theories in order to prevail on motion for summary judgment. When, as here, a defendant
moves for summary judgment without relying
upon an affirmative defense, the defendant
must show that: 1) no substantial factual controversy exists as to at least one fact essential to
plaintiff’s theory of the cause of action; and, 2)
the fact is in defendant’s favor. Once a defendant has introduced evidentiary materials to
establish these points, the plaintiff then has the
burden of showing that evidence is available
which justifies a trial of the issue. Akin v. Missouri Pacific Railroad Co., 1998 OK 102, ¶ 8, 977
P.2d 1040, 1044; Stephens v. Yamaha Motor Co.,
Ltd. Japan, 1981 OK 42, ¶ 11, 627 P.2d 439, 441;
Runyon v. Reid, 1973 OK 25, ¶¶ 12-13, 510 P.2d
943, 946. On the other hand, when the defendant relies upon an affirmative defense then
the defendant, as the party with the burden of
Vol. 87 — No. 9 — 3/26/2016
proof, must meet the same standards as a
plaintiff movant. Akin, 1998 OK 102 at ¶ 9, 977
P.2d at 1044.
¶21 The appellate court has the plenary,
independent, and nondeferential authority to
reexamine a trial court’s legal rulings. Neil
Acquisition, L.L.C. v. Wingrod Investment Corp.,
1996 OK 125 n.1, 932 P.2d 1100.
ANALYSIS AND REVIEW
¶22 Plaintiff claims error by the trial court’s
statement in the Order denying the motion:
The Commissioner who represents the district where the accident occurred testified
that his employees do call in downed signs
when they are seen by the employees or
notified by the public.
¶23 Plaintiff claims that no such testimony
was given in those words and the trial court
misstated the evidence. This Court does not
view the language of the trial court here as a
direct quotation. A review of the Commissioner’s testimony shows that the trial court reasonably summarized the Commissioner’s
statements. Thus, the claim of error is rejected.
¶24 Plaintiff’s premises for his conclusion
that Board has constructive knowledge of the
downed dead end sign are: (1) Board did not
have any policy or standard procedure to
report downed signs, and (2) the absence of
such policy or standard procedure constitutes
willful ignorance of the problem. The argument concludes that constructive knowledge
follows as a consequence, in the wake of willful
ignorance or at least, that a question of fact is
established requiring the jury to decide the
ultimate conclusion of constructive notice.
¶25 In Cooper v. Flesner, 1909 OK 137, ¶ 8, 103
P. 1016, 1020, (quoting Williamson v. Brown, 15
N.Y. 354 (N.Y.)), the Court defined and
explained actual and constructive notice.
Notice is of two kinds — actual and constructive. Actual notice embraces all degrees and grades of evidence from the most
direct and positive proof to the slightest
circumstance from which a jury would be
warranted in inferring notice. It is a mere
question of fact, and is open to every species of legitimate evidence which may tend
to strengthen or impair the conclusion.
Constructive notice, on the other hand, is a
legal inference from established facts, and, like
other legal presumptions, does not admit of
Vol. 87 — No. 9 — 3/26/2016
dispute. ‘Constructive notice,’ says Judge Story,
‘is in its nature no more than evidence of notice,
the presumption of which is so violent that the
court will not even allow of its being controverted.’ Story’s Eq. Juris. § 399. (Emphasis
added.)
Here, the final and conceded determination is
that Board did not have actual notice.
¶26 The Oklahoma Statutes and current case
law incorporate these definitions. 25 O.S.2011,
§§ 10-13;8 Manokoune v. State Farm Mut. Auto.
Ins. Co., 2006 OK 74, ¶ 18, 145 P.3d 1081, 108586; see State ex rel. Oklahoma Bar Ass’n v. Scroggs,
2003 OK 21, n.6, 70 P.3d 821.
¶27 Here, the component of “actual notice of
circumstances sufficient to put a prudent [person] upon inquiry as to a particular fact” is
missing from the Record. Thus, Plaintiff has
failed to demonstrate that any fact question
exists regarding “actual notice of circumstances.” In general, where constructive notice has
been applied, there has been some circumstance, or circumstances, which should excite
inquiry and that inquiry, if diligently pursued
would lead to actual notice and knowledge of
the facts. DeWeese v. Baker-Kemp Land Trust
Corp., 1940 OK 184, ¶ 12, 102 P.2d 884 (actual
notice of circumstances to excite attention).
¶28 In other words, constructive notice may be
legally inferred from established facts. However,
the Record shows no actual notice and an
absence of actual notice of any facts to present
to a jury on the issue of constructive notice. The
cases and statutes call for “actual notice . . . sufficient to put a prudent [person] upon inquiry.”
25 O.S.2011, § 13; Ehret v. Prices, 1927 OK 19, 254
P. 748. “For constructive notice to be imputed as
a matter of law, there must first be a finding that
there are facts sufficient to ‘put a prudent [person] upon inquiry.’” Manokoune, 2006 OK 74 ¶
18, 145 P.3d at 1085. The sufficiency of existing
facts to put a person on inquiry is a question of
fact. Id.
¶29 As explained in Cooper, constructive
notice is a legal inference from established
facts. An inference is a permissible deduction
from evidence. Leo H. Whinery, Oklahoma Evidence, Commentary on the Law of Evidence § 9.10
(West Publishing Co. 1994). Here, there is no
evidence from which to make an inference
because, as argued by Plaintiff, Board had no
policy or procedure in place to find out about
downed signs. Thus, there are no “established
facts” or fact established from which it may be
653
inferred that Board had notice of the condition
of the dead end sign.
did not establish that facts existed to place
Board on inquiry.
¶30 Therefore, unless the doctrine of constructive notice is expanded to include cases
such as this one, Plaintiff’s argument must fail.
As a result, Plaintiff’s argument necessarily is
an argument for expansion of the doctrine.
Plaintiff maintains that the consequence of
Board’s passivity, or nonfeasance, has the same
constructive notice consequence as a case
where Board had actual knowledge of circumstances such as to put it on inquiry. This Court
concludes that expansion of the constructive
notice doctrine cannot be made for the following reasons.
¶36 As a result, Plaintiff’s contention necessarily attempted to expand the doctrine of
constructive notice beyond an inference of
actual notice based upon existing facts putting
a prudent person on inquiry. This expansion
has not been recognized by the statute on constructive notice or by case law. Moreover, the
Legislature is presumed to act with knowledge
of existing law. When the Legislature enacted
Section 155(15), it expressed its intent and
nothing more. The Legislature did not expand
the constructive notice rule in the context of
Section 155(15).
¶31 First, the Supreme Court decisions and
the statutes do not encompass the expansion.
¶32 Second, the Legislature presumptively
acted with a view in mind of existing law when
it enacted Section 155(15) and provided for
“constructive notice.” Laws are presumed to be
passed with full knowledge of all existing law
on the same subject, here constructive notice.
TXO Production Corp. v. Oklahoma Corp. Comm’n,
1992 OK 39, ¶ 10, 829 P.2d 964, 970 (enacting
amendments); State v. Prairie Oil & Gas Co., 1917
OK 450, ¶ 7,167 P. 756, 757-58. If the Legislature
had desired to expand the constructive notice
doctrine it could have done so, but it did not.
This Court presumes that the Legislature
expressed its intent and nothing more when it
enacted Section 155(15). U.S.I.F. Norman Corp. v.
Oklahoma Tax Comm’n, 1974 OK 124, ¶ 10, 534
P.2d 1298, 1301.
¶33 The trial court’s judgment awarding summary judgment is affirmed.
SUMMARY AND CONCLUSION
¶34 T.L.I. was involved in a motor vehicle
accident on a dead end county road. A dead
end warning sign was down. Plaintiff sought
to impose liability under the provisions of 51
O.S. Supp. 2013, § 155(15).
¶35 Plaintiff conceded that Board did not
have actual knowledge that the dead end sign
was down. Therefore, Plaintiff maintained that
Board had constructive notice because it did
not have in place policy or procedure regarding reporting downed signs. However, constructive notice is an inference of notice of the
ultimate fact based upon existing facts which
put a prudent person on inquiry. Here, Plaintiff
654
¶37 Therefore, the judgment of the trial court
is affirmed.
¶38 AFFIRMED.
THORNBRUGH, J., and BARNES, J., concur.
KEITH RAPP, PRESIDING JUDGE:
1. The trial court denied Board’s summary judgment motion as to
Section 155(5) because Board had erected the dead end sign. The trial
court also rejected Board’s proximate cause and open and obvious
contentions. Board has not appealed, so the Section 155(5), proximate
cause, and open and obvious issues are not before this Court. The
Background and Analysis will omit information pertinent only to the
Section 155(5) grounds rejected by the trial court.
The trial court did grant summary judgment on the basis of Section
155(15). This Section has been unchanged by sundry amendments and
reads:
Absence, condition, location or malfunction of any traffic or
road sign, signal or warning device unless the absence, condition, location or malfunction is not corrected by the state or
political subdivision responsible within a reasonable time after
actual or constructive notice or the removal or destruction of
such signs, signals or warning devices by third parties, action of
weather elements or as a result of traffic collision except on failure of the state or political subdivision to correct the same within
a reasonable time after actual or constructive notice. Nothing
herein shall give rise to liability arising from the failure of the
state or any political subdivision to initially place any of the
above signs, signals or warning devices. The signs, signals and
warning devices referred to herein are those used in connection
with hazards normally connected with the use of roadways or
public ways and do not apply to the duty to warn of special
defects such as excavations or roadway obstructions.
2. The cited Commissioner Guinn testimony was:
Q. Is a dead end sign one that you would expect one of your
employees to have told you had been knocked down?
A. Not necessarily.
....
Q. If they had noticed it would you expect them to report it
to the road foreman?
....
THE WITNESS: I don’t know that I would - not necessarily.
3. Appellate Record, Tab 13.
4. Id. at p. 4.
5. The time and work sheets do not reference “Crosslin Road.”
There are references to “347” which is the same number as the “Crosslin” county road shown in the police report and listed in the motion for
summary judgment. This Court notes that: (1) in his deposition taken
by Plaintiff, Commissioner Guinn was specifically asked about
employee work and time sheets; and, (2) in her deposition taken prior
to the summary judgment proceedings, the successor County Commissioner referred to the road grader personnel in the area.
6. Plaintiff has not included this part of the trial court’s ruling in his
appeal, so that specific ruling will not be further addressed.
Vol. 87 — No. 9 — 3/26/2016
7. In the Appellate Record before this Court, the Order denying
summary judgment and the Order denying the motion for new trial
are not appended to the petition-in-error as required. Certified copies
of both documents are contained in the Rule 1.36 materials.
8. “Notice is either actual or constructive.” 25 O.S.2011, § 10.
“Actual notice consists in express information of a fact.” 25 O.S.2011, §
11. “Constructive notice is notice imputed by the law to a person not
having actual notice.” 25 O.S.2011, § 12. “Every person who has actual
notice of circumstances sufficient to put a prudent [person] upon
inquiry as to a particular fact, and who omits to make such inquiry
with reasonable diligence, is deemed to have constructive notice of the
fact itself.” 25 O.S.2011, § 13.
2016 OK CIV APP 13
IN RE THE MARRIAGE OF MICHAEL A.
GRESS AND LINDA L. KUHN: MICHAEL
A. GRESS, Petitioner/Appellee, vs. LINDA
L. KUHN, Respondent/Appellant.
Case No. 112,412. December 18, 2015
McCLAIN COUNTY, OKLAHOMA
HONORABLE CHARLES GRAY,
TRIAL JUDGE
AFFIRMED IN PART, REVERSED IN PART
AND REMANDED
Dean Hart, Jr., HART & HART, Pauls Valley,
Oklahoma, for Petitioner/Appellee.
Robert T. Keel, Oklahoma City, Oklahoma, for
Respondent/Appellant.
Wm. C. Hetherington, Jr., Chief Judge:
¶1 Appellant Linda Kuhn (Wife) appeals the
trial court’s decree of marital dissolution
which, in pertinent part, finds the couple
entered into a stipulated common law marriage in October of 2005, awards Appellee
Michael Gress (Husband) the farm the couple
purchased when they moved to Oklahoma in
2004, values the same on the date of trial held
three years after their separation, deducts from
that value a credit for Husband’s down payment from his separate funds, and awards Wife
her share of the equity in the property subject
to a lien. Based on our review of the record and
applicable law, we reverse the trial court’s
down payment credit awarded to Husband,
affirm the remaining findings, and remand the
case for entry of a new judgment in accordance
with this opinion.
McClain County with a house and purchased it
for $192,500.00. Husband paid the $38,500.00
down payment using funds from the sale of his
separate property. The mortgage securing the
promissory note included both parties’ names,
and the warranty deed to the property, although
noting each as “a single person,” conveyed the
title to the parties as joint tenants with rights of
survivorship.
¶3 Husband remained in Oklahoma but Wife
returned to Pennsylvania for a few months,
returning with the parties’ horses and mule.
Husband worked as a truck driver and drove a
hotshot rig. Wife started employment in Pauls
Valley, sewing trailer and boat covers. It is
undisputed Wife used approximately $20,000.00
of her separate funds to repair and remodel the
house and for furniture. They obtained a
$25,000.00 loan to buy farm equipment.
¶4 At Husband’s suggestion, Wife quit her
job and operated a restaurant in Stratford,
Oklahoma in July 2005. When home, Husband
assisted at the restaurant. In early 2006, Husband was seriously injured in a multi-car pileup in New Mexico. Due to potential litigation
in that state, the parties executed a deed in
March 2006, which transferred without consideration the title to the farm to Wife and was
filed of record in May 2006. During the same
year, Wife had a stroke, requiring care by her
mother, and they had to close the restaurant.
FACTS
¶5 Before Wife moved back to Pennsylvania
in April 2009, she executed a warranty deed
which transferred title to the property in her
and Gress’ names. Husband filed a petition for
dissolution of the marriage in August 2012,
alleging the parties entered into a common law
marriage in McClain County on or about 2004
and seeking dissolution of the marriage based
on incompatibility and abandonment. Wife
filed an Answer and Counterclaim, and after
Husband moved to dismiss the same, she filed
an amended answer and counterclaim, denying all of the petition’s allegations, specifically
the alleged common law marriage. She also
claimed they purchased the real property as
tenants in common and requested the property
be sold and the proceeds equally divided.
¶2 Wife and Husband met in Pennsylvania
following divorces from their respective spouses, began living together, and decided they
wanted to buy property in Oklahoma and raise
livestock. In 2004, they found 150 acres in
¶6 The matter was tried on September 13,
2013, at the commencement of which the parties announced their stipulation to a common
law marriage. The parties each testified in their
respective cases, admitted several exhibits, and
Vol. 87 — No. 9 — 3/26/2016
655
then rested. The trial court took the matter
under advisement.
¶7 On November 14, 2013, the trial court
filed a Decree of Dissolution of Marriage, finding the parties entered into a common law
marriage on or about October 2005, since that
time have been husband and wife, and no children were born or adopted. Following its jurisdictional and venue findings, the trial court
granted dissolution of the marriage to “the
parties” based on incompatibility and abandonment. Husband was awarded as his separate property the parties’ 150 acre property,
subject to its indebtedness. Wife was awarded as
her separate property, all household furniture,
effects and personal property in her possession.
Finding insufficient evidence of valuation of the
real property upon the date of separation, he
assigned the date of trial as the valuation date,
which, based on Husband’s testimony, the court
valued at $225,000.00, with $121,510.68 owed
on the note. After giving Husband “credit for
$38,500.00 he paid on the real property from
his separate funds,” the trial court awarded
alimony in lieu of property to Wife in the
amount of “$32,494.66 as her share of the
remaining equity in the real property. Said
amount to be a lien in favor of [Wife] against
said property until paid.” From this Decree,
Wife filed her appeal.
STANDARD OF REVIEW
¶8 Wife’s Brief in Chief challenges the trial
court’s property division, date of valuation,
and failure to order the sale of their property
and divide the proceeds equally. A divorce suit
is one of equitable cognizance in which the trial
court has discretionary power to divide the
marital estate. Colclasure v. Colclasure, 2012 OK
97, ¶ 18, 295 P.3d 1123, 1129. The trial court
must follow the provisions of 43 O.S. 2006 § 121
which require a fair and equitable division of
property acquired during the marriage by the
joint industry of the husband and wife. Id. An
appellate court will not disturb the trial court’s
property division absent a finding of abuse of
discretion or a finding that the decision is
clearly contrary to the weight of the evidence.
Id. Appellate review of a trial court’s valuation
of marital assets is limited to determining if the
court’s findings are clearly against the weight
of the evidence. Thompson v. Thompson, 2005
OK CIV APP 2, ¶ 18, 105 P.3d 346, 353 (citing
Bond v. Bond, 2004 OK CIV APP 3, ¶ 8, 916 P.2d
272, 274. We address the issues argued in
Wife’s Brief in reverse order.1
656
ANALYSIS
Decree-Ordered Lien
¶9 Wife alleges error with the trial court’s
award of the farm to Husband subject to a lien
of $32,494.66 without a provision for payments
or a time period in which payment had to be
paid, which she claims leaves her lien interest
under Husband’s control and domination. As
authority, Wife cites Blount v. Blount, 1967 OK
74, 425 P.2d 474 and Palmer v. Palmer, 1969 OK
182, 465 P.2d 156, in both of which the trial
courts’ property divisions were reversed for
failure to completely sever the common title in
the property the spouses held as joint tenants.
¶10 Husband argues the trial court’s division
complies with 43 O.S.Supp.2012 §121(B), which
requires setting apart the title to the real property and its decree-ordered lien authorized by
43 O.S.Supp.2012 §134(A), “secures the payment of her $32,494.66 award of alimony in lieu
of property division until said sum is paid in
full.” He further argues “the court did not
order the amount to be paid in installments,
therefore the gross full amount was due and
payable upon the entry of the Decree.”
¶11 Based on Wife’s authorities and subsequent precedent, we find no error. Unlike in
Blount and Palmer, the trial court in this case
completely severed the title to the farm property in favor of Husband. Further, according to
one authority cited by the Blount Court, Lawson
v. Lawson, 1956 OK 113, 295 P.2d 769, severance
of title and a decree ordered lien is a property
award free from the claims or domination of
the other.2 More importantly, Oklahoma case
law supports the validity of a lien entered
without a specific due date. In Peters v. Peters,
1975 OK 114, ¶ 2, 539 P.2d 26, 27, the wife
sought review of a decree ordered lien that
provided “if said property is sold, [husband] is to
receive $3,625.00 which represents his equity in
said home. This shall create a lien against said
property in favor of the [husband].” (Emphasis
added.) Relying on Lawson, the Peters Court
ultimately found no abuse of discretion based
on its conclusion that:
The title did not remain jointly in both parties as it did in Blount and Lawson. The
husband was given a lien that reflected his
equity in the property at the time of the
divorce which would become due and payable only at such time as the wife should choose
to sell the home. The husband was given no
right to dominate the actions of the wife in
Vol. 87 — No. 9 — 3/26/2016
relation to the sale or use of the property.
(Emphasis added.) Peters, 1975 OK 114, ¶ 6.
The trial court’s lien in this case, which has no
order for periodic payments and no due date,
permits Husband to pay Wife’s alimony in lieu
of property division if and when he chooses,
much like the lien in Peters. Based on Peters, we
find no abuse of discretion with the trial court’s
decree ordered lien.
Valuation Amount and Date of Valuation
¶12 Wife also argues the trial court erred by
accepting Husband’s valuation of $225,000
when she testified her research indicated the
property was worth $300,000, the cash offer the
parties received in 2009 and Husband rejected.
Neither party presented expert testimony
appraising the real property. Wife did not contradict Husband’s testimony about the poor
economy and the drop of property prices in the
county or the deteriorated condition of the real
property. She also admitted both her absence
from the area since April 2009 and failure to see
the real property and its condition since that
time. Her testimony of the value of the same
was based on one day’s research of real estate
prices in the county and her opinion if she
were given 30 days to fix the home the property would again be worth $300,000.00, the
cash amount both parties admit was offered
2-3 months after Wife left in 2009.
¶13 The trial court is vested with discretion
in determining the cut-off time for the valuation of marital assets, and the date of valuation
is to be determined by the trial court after due
consideration of all the circumstances of the
case. Colclasure v. Colclasure, 2012 OK 97, ¶ 18,
295 P.3d 1123, 1129. The trial court is entitled to
choose which testimony to believe as the judge
who observes the behavior and demeanor of
the witnesses. Mueggenborg v. Walling, 1992 OK
121, ¶ 7, 836 P.2d 112, 114. In light of the above
and the meager testimony presented by both
parties, we find no legal error or abuse of the
trial court’s discretion in setting the valuation
amount and the trial date as the date for valuing the real property.
Credit for Separate Funds
¶14 Citing Shackelton v. Sharrard, 1963 OK
193, 385 P.2d 898, Wife alleges the trial court
erred by giving Husband a credit for his
$38,500 down payment because the property
was placed then in joint tenancy and a gift was
presumed. Husband contends Wife’s cases are
Vol. 87 — No. 9 — 3/26/2016
distinguishable because they deal with married parties acquiring property in joint tenancy
and as a result, a gift of separate property was
presumed. In July 2004, however, he argues the
parties were not married, relying on the court’s
finding their common-law marriage commenced in October 2005, and claims because
said marriage did not arise until a year after
the real property’s acquisition, the same presumption of a gift of separate property between
husband and wife when property is placed in
joint tenancy does not apply. Instead, Husband
contends the applicable law is whether there
was an inter vivos gift3 and that it is clear from
evidence that he had no intention to give
$38,500.00 to Wife.
¶15 Wife’s argument is supported by Shackelton, in which the Court held:
...where a man and woman have acquired
property in joint tenancy while cohabiting
as husband and wife, even under an illegal
marriage, the same rule will be applied by
analogy as would obtain under a valid
marriage.
Under such rule it is ordinarily immaterial
how much money the wife or husband has
actually contributed to the purchase of the
property involved because a gift from one
to the other is presumed. Absent any fraud
or special agreement, where the wife or
husband knowingly agrees and consents to
the conveyance being made to themselves
as joint tenants, either is estopped to deny
the tenancy of the other. 1963 OK 193, ¶ 9,
385 P.2d at 900.
Her argument is also supported by the clear
weight of the evidence. Review of the trial
transcript reveals Husband’s testimony is
totally void of any reference to fraud or a special agreement between the parties when purchasing the property. He also admitted the
parties lived together for a year and incurred
debts together on his credit cards prior to moving to Oklahoma, and it is undisputed on the
record that they continued to cohabit as man
and wife after they moved to this state. Based
on Shackelton, the parties’ unmarried status
when purchasing the property in 2004 does not
preclude application of the presumption of a
gift to Husband’s $38,500.00 down payment
from his separate funds.
¶16 In addition, Husband admitted as a trial
exhibit the parties’ 2004 joint tenancy warranty
deed, which expressly conveys the subject
657
property to each party “as joint tenants and not
as tenants in common with the full rights of
survivorship, the whole estate to vest in the
survivor in the event of death of either.” The
same or similar language “demonstrates the
conveying party’s intent,” the effect of which
overcomes statutory or common law presumptions of tenancies in common. In the Matter of
Estate of Metz, 2011 OK 26, ¶ 10, 256 P.3d 45, 49.
“The party seeking to rebut that presumption
must present clear and convincing evidence
that no gift was intended.” Bartlett v. Bartlett,
2006 OK CIV APP 112, ¶ 7, 144 P.3d 173, 177
(citing Chastain v. Posey, 1983 OK 46, 665 P.2d
1179). “The Oklahoma Supreme Court has
clarified this holding to require a party seeking
to rebut the gift presumption to present clear
and convincing evidence of a purpose for placing the property in joint tenancy which is collateral to intending a gift.” Id., (citing Larman v.
Larman, 1999 OK 83, ¶ 9, 991 P.2d 536). Husband has failed to present clear and convincing
evidence of a special agreement or of a purpose
for using his separate funds and placing the
subject property in joint tenancy with Wife
other than as a gift to Wife. Consequently, we
conclude the trial court erred in giving Husband a $38,500.00 credit and reverse that part
of the decree. In all other respects, the trial
court’s findings addressed herein are affirmed.
However, because our ruling changes Wife’s
share of equity in the property, the trial court’s
decree must be reversed and the case remanded to the trial court with instructions to enter a
new decree of dissolution in accordance with
this opinion.
AFFIRMED IN PART, REVERSED IN PART
AND REMANDED
MITCHELL, P.J., and JOPLIN, J., concur.
Wm. C. Hetherington, Jr., Chief Judge:
1. Exhibit C attached to Wife’s Petition in Error basically lists seven
issues, while her Brief in Chief contains simply three propositions of
errors. “Issues raised in the Petition in Error but omitted from the brief
may be deemed waived.” Okla.Sup.Ct.R. 1.11(k)(1). To the extent Wife
has failed to address in her Brief issues she raised in the Petition in
Error, they are deemed waived.
2. Interpreting 12 O.S.1951 § 1278, the predecessor of 43
O.S.Supp.2012 § 121, the Lawson Court held:
To comply with the statute, the entire title with right of possession to part of the property should have been given to one and
the entire title with right of possession to the remainder should
have been given to the other. Neither should have been required to
account to the other for what he or she did with the property or the
income derived therefrom. If one party thereby was awarded property in excess of what the trial court thought he or she was
equitably entitled to, a lien could be established thereon securing
the payment of such sum as the court thought necessary to adjust
the equities. In other words, the property awarded to each should be
free from the claims or domination of the other.” Id., 1956 OK 113, ¶ 7.
658
3. Husband cites Cummings v. Garris, 1961 OK 85, 362 P.2d 1106, for
the following elements of a gift inter vivos: 1) intention to give; 2) complete delivery of the thing given; 3) acceptance by the donee. Even if
we were to conclude Shackelton does not apply in this case, we would
find Husband has failed to present evidence to overcome the intent
expressed in the 2004 joint tenancy warranty deed of a gift of his separate funds.
2016 OK CIV APP 14
LISA HILL, Plaintiff/Appellant, vs. STATE
OF OKLAHOMA, ex. rel. BOARD OF
REGENTS OF THE UNIVERSITY OF
OKLAHOMA, Defendant/Appellee.
Case No. 113,718. December 18, 2015
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE DON ANDREWS, JUDGE
AFFIRMED
Bryan G. Garrett, HOLLOWAY, DOBSON &
BACHMAN, Oklahoma City, Oklahoma, for
Plaintiff/Appellant,
Eric A. Moen, Gus H. Buthman, Heidi J. Long,
UNIVERSITY OF OKLAHOMA, OFFICE OF
LEGAL COUNSEL, Norman, Oklahoma, for
Defendant/Appellee.
Bay Mitchell, Presiding Judge:
¶1 Plaintiff/Appellant Lisa Hill (“Plaintiff”)
appeals the trial court’s dismissal of her negligence claim against Defendant/Appellee State
of Oklahoma ex rel. Board of Regents of the
University of Oklahoma (“Defendant”). The
trial court determined Plaintiff’s notice of injury to Defendant did not comply with the notice
requirements of the Governmental Tort Claims
Act (“GTCA”), specifically 51 O.S. §156(C). Following our de novo review of the record and
applicable law, we affirm the decision of the
trial court.
¶2 According to the facts as alleged in Plaintiff’s Petition, on November 16, 2013 Plaintiff
was present on the University of Oklahoma
Health Sciences Center campus to attend a
medical appointment with her son when campus police asked her to leave the facility for
unknown reasons. When Plaintiff was outside
of the facility but still on campus, the police
attempted to restrain or handcuff her causing
her to fall to the ground and sustain injuries.
Plaintiff’s Petition also stated “Plaintiff has
complied with the Governmental Tort Claims
Ac[t], and this matter is timely filed.” The Petition contained no other factual assertions relat-
Vol. 87 — No. 9 — 3/26/2016
ed to Plaintiff’s compliance with the notice
requirements of 51 O.S. §156(C).
¶3 In response to Plaintiff’s Petition, Defendant filed a Motion to Dismiss arguing that
Plaintiff’s Petition should be dismissed pursuant to 12 O.S. §2012(B)(1) or 12 O.S. §2012(B)(6)
because Plaintiff did not comply with the
notice requirements of 51 O.S. §156(C). Defendant provided an affidavit signed by the Director of Risk Management at the Oklahoma
Office of Management and Enterprise Services
who stated that he had access to all the files
related to tort claims filed against the State of
Oklahoma, including the Board of Regents of
the University of Oklahoma, and that no claims
had been filed by Plaintiff against the Board of
Regents or any other state entity. Defendant
argued compliance with the notice requirement is a jurisdictional prerequisite to maintaining a tort claim against the state and that
failure to specifically plead factual allegations
demonstrating compliance leaves a petition
which is insufficient to state a claim upon
which relief can be granted.
¶4 Plaintiff countered with her Response to
Defendant’s Motion to Dismiss and argued
that, pursuant to the Supreme Court’s decision
in Reirdon v. Wilburton Board of Ed., 1980 OK 67,
611 P.2d 239, she “substantially complied” with
the GTCA by providing notice to “The University of Oklahoma Health Science Center, The
University of Oklahoma Health Science Center
Police Department, OU Medical Center/The
Children’s Hospital, and to Amanda Miller, the
Directory (sic) of Property and Risk Management of the University of Oklahoma Health
Science Center” (hereinafter the “OU entities.”)
Plaintiff attached as an exhibit a copy of the
letter sent by her counsel to the OU entities
dated December 3, 2013 which set forth the
details of Plaintiff’s claim of injury. Plaintiff
also attached copies of the certified mail receipts showing delivery upon all of the OU
entities except the University of Oklahoma
Health Science Center Police Department,
which received the notice via fax.
STANDARD OF REVIEW
¶5 Defendant sought dismissal based on
both 12 O.S. §2012(B)(1) (lack of subject matter
jurisdiction) and §2012(B)(6) (failure to state a
claim). Both Defendant and Plaintiff attached
evidentiary materials to their respective filings.
A court must convert a motion to dismiss into
one for summary judgment if evidentiary
Vol. 87 — No. 9 — 3/26/2016
materials are attached to a motion to dismiss
for failure to state a claim under §2012(B)(6).
E.g., Dyke v. Saint Francis Hospital, 1993 OK 114,
¶7, 861 P.2d 295. However, such conversion is
not required for a motion seeking to dismiss
for grounds other than failure to state a claim.
When deciding a motion to dismiss for absence
of jurisdictional prerequisites, courts may
review evidentiary materials attached to the
motion without converting it to one for summary judgment. Visteon Corp. v. Yazel, 2004 OK
CIV APP 52, ¶21, 91 P.3d 690.
¶6 Here, the trial court’s order stated Plaintiff’s Petition was “dismissed for failure to
comply with 51 O.S. §156(C).” Compliance
with the notice requirement of 51 O.S. §156(C)
is a “prerequisite[] to the state’s consent to be
sued and to the exercise of judicial power to
remedy the alleged tortious wrong by the government.” Shanbour v. Hollingsworth, 1996 OK
67, ¶7, 918 P.2d 73 (internal quotations and
citations omitted). Accordingly, the trial court
appropriately resolved the issue here under
Defendant’s Motion to Dismiss. Regardless,
our standard of review is de novo whether
reviewing a motion to dismiss or a motion for
summary judgment. Indiana Nat. Bank v. State
Dept. of Human Services, 1994 OK 98 ¶2, 880
P.2d 371 (setting forth standard of review for a
motion to dismiss); Manley v. Brown, 1999 OK
79, ¶22, 989 P.2d 448 (setting for the standard of
review for summary judgment).
ANALYSIS
¶7 The record shows and Plaintiff does not
dispute that her tort claim against Defendant is
subject to the GTCA.1 Section 156 provides the
first step in bringing an authorized suit under
the GTCA is notice. Valid notice of the claim
must be given to the government within one
year of the alleged tort injury. 51 O.S. §156(B).
Section 156 provides in pertinent part:
C. A claim against the state shall be in
writing and filed with the Office of the
Risk Management Administrator of the
Office of Management and Enterprise
Services who shall immediately notify
the Attorney General and the agency
concerned and conduct a diligent investigation of the validity of the claim
within the time specified for approval or
denial of claims by Section 157 of this
title. A claim may be filed by certified
mail with return receipt requested. A
Claim which is mailed shall be consid-
659
ered filed upon receipt by the Office of
the Risk Management Administrator.
(Emphasis added.)
¶8 Plaintiff unquestionably failed to comply
with the statutory notice requirements as she
did not provide notice of her injury to the
Office of Risk Management as provided in 51
O.S. §156(C). Instead, Plaintiff argues her notice
to the OU entities meets the “substantial compliance” doctrine as set forth in Reirdon. We
reject this argument. First, the tenets of statutory construction mandate that when “a statute
is plain and unambiguous, it will not be subjected to judicial construction but will receive
the effect its language dictates.” Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶9, 130 P.3d
213. Section 156 plainly sets forth how a claimant is to provide notice under the GTCA and
leaves no discretion for how a claimant is to
submit a notice of injury. See Keating v. Edmondson, 2001 OK 110, ¶13, 37 P.3d 882 (“Generally,
when the Legislature uses the term ‘shall’, it
signifies a mandatory directive or command.”)
Here, Plaintiff failed to comply with the mandatory notice requirements of the GTCA.2
Accordingly, the trial court correctly dismissed
her suit for such failure.
¶9 Second, the “substantial compliance” doctrine as initially set forth in Reirdon is inapplicable to the facts of this case. In Reirdon, the
trial court granted the Wilburton School
Board’s demurrer to the plaintiff’s petition
which alleged the trial court did not have jurisdiction over the suit because the plaintiff filed
her notice of injury with the president of the
school board rather than the clerk of the school
board as required by the predecessor to the
GTCA.3 Reirdon, 1980 OK 67, ¶2. On appeal the
plaintiff argued she had “substantially complied” with the statute by providing notice to
the president of the school board and that the
school was estopped from invoking the notice
provisions of the act. In overturning the trial
court’s grant of the demurrer the Supreme
Court noted the record showed that the school
board discussed the plaintiff’s claim at a meeting, hired an attorney, entered a general appearance in the lawsuit, and could not demonstrate
any prejudice because the notice was presented
to the president of the school board as opposed
to the clerk.
¶10 Unlike in Reirdon, the trial court here was
not faced with a government defendant who
treated a claimant’s notice of injury as valid
660
only to reverse its position when suit was actually filed. There is no evidence in the record
that Defendant responded in any manner to
Plaintiff’s letter to the OU entities. Defendant
maintained a consistent position that Plaintiff’s
claim of injury did not comply with the notice
requirements of the GTCA.4
¶11 As in Reirdon, other cases which have
applied the “substantial compliance” doctrine
have done so in circumstances where the government entity being sued acted in a manner
where it treated the allegedly invalid notice as
acceptable or otherwise responded to such
notice only to change position when a lawsuit
was actually filed. For example, in Mansell v.
City of Lawton, 1995 OK 81, ¶¶4-6, the claimant
sent a letter to the city clerk giving details of his
alleged injury. The city responded asking for
additional information to which the claimant
provided a preliminary response. Later, when
the claimant filed suit but before he supplemented his response, the city argued the initial
letter did not constitute valid notice for purposes of calculating the deadline for claimant
to file suit after denial of his claim. The Supreme
Court rejected the city’s argument finding that
the information provided by the claimant in his
initial letter fulfilled the notice requirements of
the GTCA. Id. at ¶¶9-10. Cf. Juvenal v. Okeene
Public Schools, 1994 OK 83, ¶¶8-10, 878 P.2d
1026 (public works authority could not claim
that undisputably valid GTCA notice to city
was insufficient to put it on notice when the
city’s board of trustees oversaw the public
works authority).
¶12 Additionally, the continued validity of
the “substantial compliance” doctrine is, at
best, questionable. Hathaway v. State ex rel.
Medical Research & Technical Authority, 2002 OK
53, n. 25, 49 P.3d 740 (stating that Lucas v. Ind.
Public School Dist. No. 35, 1983 OK 121, ¶7, 674
P.2d 1131 has been superseded by statute only
to the extent that it stands for the proposition
that notice provisions may be satisfied through
substantial compliance) (relying on Minie v.
Hudson, 1997 OK 26, ¶6, 934 P.2d 1082). All of
the cases relied on by Plaintiff were decided
prior to the Supreme Court’s decision in Minie
v. Hudson. There, the claimant relied on early
“substantial compliance” case law to argue
that verbal communication to the governmental entity may “substantially comply” with the
GTCA’s notice requirements. Minie, 1997 OK
26, ¶¶6-7. In rejecting this argument, the
Supreme Court held that the 1985 amendments
Vol. 87 — No. 9 — 3/26/2016
to the GTCA specifically required notice to
political subdivisions to be in writing, which
directly contravened many of the Court’s earlier decisions upholding substantial compliance. Id. (rejecting the earlier decision of Dusterhaus v. City of Edmond, 1981 OK 107, 634 P.2d
720, which held that verbal notice to a city’s
insurer substantially complied with the applicable notice provisions).
¶13 As the Court of Civil Appeals, Div. 2
recently noted, while “Minie does not speak
directly to the requirement for filing a claim
with the [designated governmental recipient]
.… , Minie [nonetheless] abrogated the doctrine
of substantial compliance.” Duncan v. City of
Stroud, 2015 OK CIV APP 28, ¶¶ 11-15, 346 P.3d
446 (finding unpersuasive a plaintiff’s argument that a letter which was not filed with the
city clerk could constitute valid notice under
the GTCA). Considering the undisputed fact
that Plaintiff here did not provide notice to the
Office of Risk Management as required by the
GTCA along with the mandatory statutory language and the questionable validity of prior
“substantial compliance” case law, we agree
with the trial court’s dismissal of Plaintiff’s
suit. See Slawson v. Board of County Comm’rs of
Logan County, 2012 OK 87, ¶6, 288 P.3d 533
(“The limitations of the Tort Claims Act are
narrowly structured, and a grant of substantial
compliance under the general procedural regime is
not allowed.”) (Emphasis added.) The decision
of the trial court is AFFIRMED.
HETHERINGTON, C.J., and JOPLIN, J., concur.
Bay Mitchell, Presiding Judge:
1. The GTCA provides that the State of Oklahoma has adopted the
doctrine of sovereign immunity and that liability is waived only to the
extent provided in the GTCA. 51 O.S. §152.1. Further, the GTCA
defines “State” as “the State of Oklahoma or any office, department,
agency, authority, commission, board, institution, hospital, college,
university, public trust ... or other instrumentality thereof...” which
undisputably includes Defendant here. Id. at §152(12).
2. Plaintiff’s Petition and Defendant’s Motion to Dismiss provide
that this is Plaintiff’s second lawsuit against Defendant. Plaintiff filed
her first suit on July 18, 2014 and voluntarily dismissed it without
prejudice. Defendant’s Motion to Dismiss states that Plaintiff dismissed her first suit in response to Defendant’s motion to dismiss
which also argued Plaintiff failed to comply with the notice requirements of the GTCA.
3. The Political Subdivision Tort Claims Act was renamed the Governmental Tort Claims Act in 1984. 1984 Okla. Sess. Laws, ch. 226, §1.
Like the current version of the GTCA, the Political Subdivision Tort
Claims Act required notice to a political subdivision (i.e., a school district) to be filed with the “clerk of the governing body of the political
subdivision.” Compare 51 O.S.Supp. 2015 §156(D) with 51 O.S.Supp.
1978 §156(C).
4. Later case law further defined the “substantial compliance”
doctrine and provided that “substantial compliance with the notice
provisions of the Act is sufficient when the political subdivision is not
prejudiced, and the provided information satisfies the purposes of the
statutory notice requirement.” Mansell v. City of Lawton, 1995 OK 81,
¶9, 901 P.2d 826. One of the issues Plaintiff raised on appeal is whether
Defendant “suffered any prejudice by the method the tort claim notice
was sent.” First, we note that the continued validity of the “substantial
compliance” doctrine is questionable as discussed below. Second, we
find no support for Plaintiff’s implication that a governmental defendant bears the burden to demonstrate prejudice when a claimant
admittedly fails to comply with the strict notice requirements of the
GTCA, especially when, as here, the governmental defendant consistently treats the notice as invalid. This position is further supported by
the substantial compliance cases decided prior to the Supreme Court’s
decision in Minie v. Hudson, 1997 OK 26, 934 P.2d 1082. In these cases
the governmental defendants treated the notices as acceptable only to
change position when the claimants actually filed suit. Reirdon, Mansell, Juvenal, infra. Clearly, the defendants in those cases did not suffer
prejudice as demonstrated by their responses to the claimants’ notices.
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Vol. 87 — No. 9 — 3/26/2016
661
Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
Wednesday, February 24, 2016
F-2015-413 — Robert Wayne Collins, Appellant, was tried by jury for the crime of Assault
and Battery with a Deadly Weapon in Case No.
CF-2013-4004 in the District Court of Oklahoma County. The jury returned a verdict of
guilty and recommended as punishment five
years imprisonment. The trial court sentenced
accordingly. From this judgment and sentence
Robert Wayne Collins has perfected his appeal.
AFFIRMED. Opinion by: Smith, P.J.; Lumpkin,
V.P.J., concur; A. Johnson, J., concur; Lewis, J.,
concur; Hudson, J., concur.
F-2014-862 — Eddie James Thompson,
Appellant, was tried by jury for the crimes of
Count I - First Degree Murder (Malice Aforethought), Count II - Burglary in the First
Degree, Count III - Kidnapping and Count IV
- Kidnapping in Case No. CF-2012-1636 in the
District Court of Cleveland County. The jury
returned a verdict of guilty and recommended
as punishment life imprisonment without the
possibility of parole on Count I, and life imprisonment on each of Counts II, III and IV, to run
consecutively. The trial court sentenced accordingly. From this judgment and sentence Eddie
James Thompson has perfected his appeal.
AFFIRMED. Opinion by: Smith, P.J.; Lumpkin,
V.P.J., concur in result; A. Johnson, J., concur;
Lewis, J., concur; Hudson, J., concur.
C-2015-599 — Petitioner Calet Israel Vernal
was charged with Trafficking in Illegal Drugs
(Methamphetamine) (Count I); Possession of a
Controlled Dangerous Substance (Marijuana)
with Intent to Distribute (Count II); Possession
of Drug Proceeds Derived from a Violation of
the Uniform Controlled Dangerous Substances
Act (Count III); Possession of a Controlled Dangerous Substance (Marijuana) in the Presence of
a Minor Under Twelve (Count IV); Possession of
an Offensive Weapon while Committing a Felony (Count V); and Possession of a Firearm After
Former Conviction of a Felony (Count VI) in
the District Court of Oklahoma County, Case
No. CF-2014-2032. On May 15, 2015, Petitioner
entered a guilty plea to each of the above
charges before the Honorable Glenn M. Jones,
662
District Judge. The pleas were accepted and
Petitioner was sentenced to imprisonment for
thirty (30) years in Count I and eighteen (18)
years in each of Counts II – VI. All sentences
were ordered to run concurrently. In a handwritten letter dated May 22, 2015, and filed
with the District Court on May 27, 2015, Petitioner asked to withdraw his guilty pleas. The
Court accepted the filing as a motion to Withdraw Guilty Plea and on June 19, 2015, held a
hearing wherein Petitioner was represented by
counsel. The District Court denied the application as not timely filed. It is that denial which
is the subject of this appeal. The order of the
District Court denying Petitioner’s motion to
withdraw guilty plea is AFFIRMED. Opinion
by: Lumpkin, V.P.J.; Smith, P.J., Concur; Johnson, J., Concur; Lewis, J., Concur; Hudson, J.,
Concur.
Thursday, February 25, 2016
C-2015-170 — Tommy Montana Wheeler,
Petitioner, was charged with one count of Robbery with a Firearm, in Case No. CF-2008-5609,
in the District Court of Tulsa County. Petitioner
entered a negotiated plea of guilty to this
charge before the Honorable Tom C. Gillert,
District Judge. Petitioner’s plea was accepted
and the district court sentenced Petitioner to
thirty years imprisonment, a $500.00 fine and a
$250.00 Victim of Crime assessment. After being granted an appeal out of time by this Court
— Petitioner filed a motion to withdraw his
plea of guilty with Judge Gillert. A hearing was
held and Judge Gillert denied Petitioner’s
motion to withdraw. Wheeler now appeals the
district court’s denial of his motion to withdraw his plea of guilty and seeks a Writ of
Certiorari. The Petition for Writ of Certiorari is
DENIED. Opinion by: Hudson, J.; Smith, P.J.,
Concurs; Lumpkin, V.P.J., Concurs in Results;
Johnson, J., Concurs; Lewis, J., Concurs.
F-2014-1017 — John Paul Noland, Appellant,
was tried by jury, in Case No. CF-2012-141, in
the District Court of Oklahoma County, for the
crime of two counts of Indecent or Lewd Acts
with a Child Under Sixteen. Each count alleged
different victims — S.E. (Count 1) and S.S.
(Count 2). The jury acquitted Noland on Count
Vol. 87 — No. 9 — 3/26/2016
1, however, convicted him on Count 2 and recommended a twenty-five year term of imprisonment. The Honorable Cindy H. Truong,
District Judge, sentenced Noland in accordance
with the jury’s verdict. From this judgment and
sentence John Paul Noland has perfected his
appeal. AFFIRMED. Opinion by: Hudson, J.;
Smith, P.J., Concurs in Results; Lumpkin, V.P.J.,
Concurs in Results; A. Johnson, J., Concurs;
Lewis, J., Concurs.
Friday, February 26, 2016
RE-2014-1079 — Appellant, Emmett Leon
Van, pled guilty May 27, 2009, to Knowingly
Concealing Stolen Property, a felony, in Washington County District Court Case No. CF-2008201. He was given a ten year sentence with
sixty days to serve in the County Jail, credit for
time served, and the balance suspended with
rules and conditions of probation. He was also
fined $1,000.00. The State filed a motion to
revoke Appellant’s suspended sentence on
January 6, 2014. On November 25, 2014, Appellant stipulated to the grounds stated in the
application to revoke. The Honorable Curtis
DeLapp, District Judge, accepted Appellant’s
stipulation and found Appellant violated the
terms and conditions of his probation. At a
sentencing hearing on December 9, 2014, Judge
DeLapp revoked the remaining balance of
Appellant’s suspended sentence. Appellant
appeals the revocation of his suspended sentence. The revocation of Appellant’s suspended
sentence is AFFIRMED. Opinion by: Hudson, J.;
Smith, P.J.: Concurs; Lumpkin, V.P.J.: Concurs;
Johnson, J.: Concurs; Lewis, J.: Concurs.
F-2014-1019 — Charles Leonard Bennett, III,
Appellant, was tried in a bench trial before the
Honorable Timothy R. Henderson for the crime
of Assault and Battery with a Deadly Weapon
in Case No. CF-2012-7254 in the District Court
of Oklahoma County. Judge Henderson found
Bennett guilty and sentenced him to fifteen
years imprisonment. From this judgment and
sentence Charles Leonard Bennett, III has perfected his appeal. The Judgment and Sentence
of the District Court is AFFIRMED. The District
Court’s restitution order is VACATED and the
case is REMANDED to the District Court for a
proper determination on the issue of loss in
accordance with this opinion. Opinion by:
Johnson, J.; Smith, P.J., concurs; Lumpkin,
V.P.J., concurs in results; Lewis, J., concurs;
Hudson, J., concurs.
Vol. 87 — No. 9 — 3/26/2016
F-2014-939 — Ryan Lee Nixon, Appellant,
was tried by jury for the crimes of Manufacturing a Controlled Dangerous Substance (Count
1) and Possession of a Controlled Dangerous
Substance (Count 2), in Case No. CF-2013-407,
in the District Court of Washington County.
The jury returned a verdict of guilty and recommended Nixon serve fifteen years imprisonment and pay a fifty thousand dollar
($50,000.00) fine on Count 1, and two years
imprisonment and pay a five thousand dollar
($5,000.00) fine on Count 2. The Honorable
Russell Vaclaw, Associate District Judge, sentenced Nixon in accordance with the jury’s
verdict, but suspended the fine imposed on
Count 2. Judge Vaclaw also ordered Nixon’s
sentences be run concurrently and directed
that Nixon be given credit for time served.
From this judgment and sentence Ryan Lee
Nixon has perfected his appeal. The Judgment
and Sentence for Manufacturing a Controlled
Dangerous Substance is AFFIRMED. The Judgment and Sentence for Possession of a Controlled Dangerous Substance is REVERSED
AND REMANDED WITH INSTRUCTIONS
TO DISMISS. Opinion by: Hudson, J.; Smith,
P.J., Concurs; Lumpkin, V.P.J., Concurs; A.
Johnson, J., Concurs; Lewis, J., Concurs.
Tuesday, March 1, 2016
RE-2015-84 — Nicholas James Hosley, Appellant, appeals from his termination from drug
court and revocation of his ten year suspended
sentence in Case No. CF-2011-221 the District
Court of Wagoner County, by the Honorable
Darrell G. Shepherd, District Judge. AFFIRMED.
Opinion by: Hudson, J.; Smith, P.J., Concurs;
Lumpkin, V.P.J., Concurs; Johnson, J., Concurs;
Lewis, J., Concurs.
F-2014-1005 — Appellant, Harvey Randall
Wilson, was tried by jury and found guilty of
Count 1, conspiracy to commit a felony (burglary and/or first degree murder), in violation
of 21 O.S.2011, § 421; Count 2, murder in the
first degree, in violation of 21 O.S.2011, §
701.7(A); and Count 3, burglary in the second
degree, in violation of 21 O.S.2011, § 1435; in
the District Court of Cleveland County, Case
No. CF-2013-576. The jury sentenced Appellant
to ten (10) years imprisonment and a $5,000
fine in Count 1, life imprisonment without the
possibility of parole and a $10,000 fine in
Count 2, and seven (7) years imprisonment
and a $10,000 fine in Count 3. The Honorable
Lori Walkley, District Judge, pronounced judgment and ordered the terms of imprisonment
663
served consecutively, but declined to impose
the fines assessed by the jury. The trial court
sentenced accordingly. AFFIRMED. Opinion
by: Lewis, J.; Clancy Smith, P.J., Concurs;
Lumpkin, V.P.J., Concurs; Johnson, J., Concurs;
Hudson, J., Concurs.
F-2014-944 — Thomas Craig Levering, Appellant, was tried by jury and found guilty of first
degree murder, in violation of 21 O.S.Supp.1973,
§ 701.1, in the District Court of Oklahoma
County, Case No. CF-2013-675. The jury sentenced Appellant to life imprisonment. The
Honorable Ray C. Elliott, District Judge, pronounced judgment and ordered the sentence
served consecutively to six (6) life sentences in
Case No. CF-2011-729. The trial court sentenced accordingly. From this Judgment and
Sentence, Appellant has perfected his appeal.
AFFIRMED. Opinion by: Lewis, J.; Clancy
Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs;
Johnson, J., Concurs; Hudson, J., Concurs.
Wednesday, March 2, 2016
C-2015-664 — Trent Gene Veasey, Petitioner,
entered unnegotiated guilty pleas to the crimes
of Count 1 - Possession of Methamphetamine,
After Conviction of Two or More Felonies, and
Count 2 - Possession of Drug Paraphernalia in
Case No. CF-2014-137 in the District Court of
Kay County. He was sentenced to 15 years
imprisonment with the last five suspended on
Count 1 and one year in the county jail on
Count 2, to be served concurrently. Petitioner
filed a Motion to Withdraw Pleas and at a June
20, 2015, hearing, the district court denied his
request. Trent Gene Veasey has perfected his
certiorari appeal. CERTIORARI DENIED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., Concur in
Result; A. Johnson, J., Concur; Lewis, J., Concur; Hudson, J., Concur.
F-2015-281 — John Simpson, Appellant, was
tried by jury for the crime of Assault with a
Dangerous Weapon, After Conviction of Two
or More Felonies in Case No. CF-2014-5149 in
the District Court of Oklahoma County. The
jury returned a verdict of guilty and recommended as punishment 20 years imprisonment. The trial court sentenced accordingly.
From this judgment and sentence John Simpson has perfected his appeal. AFFIRMED.
Opinion by: Smith, P.J.; Lumpkin, V.P.J., Concur; A. Johnson, J., Concur; Lewis, J., Concur;
Hudson, J., Concur.
C-2015-421 — Brandon Shane Christian, Petitioner, entered a blind plea of nolo contendere
664
to the crime of Second Degree Murder, after
former conviction in Case No. CF-2013-191 in
the District Court of Garvin County. Before
formal sentencing, Christian moved to withdraw his plea. After a hearing, the motion to
withdraw plea was denied. On March 30, 2015,
Christian was sentenced to life imprisonment.
Christian filed a second motion to withdraw
plea, and after a hearing, the motion was denied. Brandon Shane Christian has perfected
his certiorari appeal. PETITION FOR CERTIORARI DENIED; APPLICATION FOR EVIDENTIARY HEARING DENIED. Opinion by:
Smith, P.J.; Lumpkin, V.P.J., Concur in Result;
A. Johnson, J., Concur; Lewis, J., Concur; Hudson, J., Concur.
F-2014-574 — On October 29, 2010, Appellant
Eric Lee Houston stipulated to the second
amended application to revoke Appellant’s
suspended sentence in Garfield County Case
No. CF-2008-125. On March 15, 2012, Appellant
entered pleas of guilty in Garfield County Case
Nos. CF-2009-658 and CF-2010-194. Sentencing
was delayed in all three cases pending completion of Garfield County Adult Sobriety Court.
On December 4, 2013, the State filed a motion
to terminate Appellant’s participation in drug
court. Following a hearing on the application,
the Honorable Paul K. Woodward, District
Judge, sustained the State’s application to terminate Appellant’s participation in drug court
and sentenced Appellant pursuant to his drug
court plea agreement. Appellant appeals. The
termination of Appellant’s participation in
drug court is AFFIRMED. Opinion by: Johnson, J.; Smith, P.J.: Concur; Lumpkin, V.P.J.:
Concur; Lewis, J.: Concur; Hudson, J.: Concur
RE-2015-180 — In the District Court of Oklahoma County, Case No. CF-2013-6027, Appellant, Decarlos Marquis Latham, while represented by counsel, entered pleas of guilty to
two counts of Rape in the First Degree. In
accordance with a plea agreement, the Honorable Cindy H. Truong, District Judge, on September 10, 2013, imposed a sentence of twelve
(12) years imprisonment on each count, ordered
those sentences to be served concurrently, and
suspended their execution conditioned on
Appellant’s compliance with written rules of
probation. On February 18, 2015, Judge Truong
found Appellant had violated his probation
and revoked the suspension order in full.
Appellant appeals this final order of revocation. REVERSED AND REMANDED. Opinion
Vol. 87 — No. 9 — 3/26/2016
by: Hudson, J.; Smith, P.J., Concurs; Lumpkin,
V.P.J., Concurs; Johnson, J., Concurs; Lewis, J.,
Concurs.
Lewis, J.; Smith, P.J.: Specially Concurs; Lumpkin, V.P.J.: Concurs; Johnson, J: Concurs; Hudson, J.: Concurs.
C-2015-517 — Petitioner, Lawrence Raymond
Tucker, entered a no contest plea to, counts one
and two, first degree rape in violation of 21
O.S.2011, § 1114(A)(1), and count three, lewd or
indecent acts with a child under 12 years of
age, in violation of 21 O.S.2011, § 1123(A)(2), in
Pontotoc County District Court case number
CF-2014-84 before the Honorable Steven Kessinger, District Judge. Judge Kessinger accepted the pleas on February 6, 2015, and ordered a
presentence investigation. On the same day,
Tucker filed a motion to withdraw his plea.
The trial court did not hold a hearing on the
motion until after sentencing. At the sentencing hearing, the trial court sentenced Tucker to
thirty (30) years imprisonment on each count,
ordering that the sentences be served concurrently. A hearing on the motion to withdraw,
which had been amended by new counsel, was
held on May 21, 2015. After the hearing, the
trial court denied the motion. Petitioner has
perfected his appeal. The trial court’s decision to
deny Tucker’s motion to withdraw plea is
AFFIRMED and the Application for Writ of Certiorari is DENIED. Opinion by: Lewis, J.; Clancy
Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs;
Johnson, J., Concurs; Hudson, J., Concurs.
F-2014-0783 — Appellant, Stuart Chance
Jones (date of birth May 16, 1991), pled guilty
September 12, 2008, as a Youthful Offender to
Burglary - First Degree in Tulsa County District
Court Case No. CF-2008-2232. He was sentenced to seven years as a Youthful Offender
with the term to be served under the custody
of OJA. He was also fined $500.00. Appellant
was bridged to the Department of Corrections
on January 4, 2010, and was given a deferred
sentence for a period of five years, until February 9, 2015, with rules and conditions of probation. The State filed an application to accelerate
Appellant’s deferred sentence on May 27, 2014.
Following an acceleration hearing on August
25, 2014, the Honorable Mark Barcus, District
Judge, found the State had met its burden, by
the preponderance of the evidence, and sustained the State’s application. Judgment and
Sentence was entered and Appellant was sentenced to seven years imprisonment. Appellant
appeals from the acceleration of his deferred
sentence. The acceleration of Appellant’s
deferred sentence is AFFIRMED. Opinion by:
Vol. 87 — No. 9 — 3/26/2016
F-2015-287 — Steven John Keeto, Appellant,
was tried by jury for the crime of Assault and
Battery with a Dangerous Weapon in Case No.
CF-2014-363 in the District Court of Custer
County. The jury returned a verdict of guilty
and recommended as punishment imprisonment for twenty (20) years. The trial court sentenced accordingly. From this judgment and
sentence Steven John Keeto has perfected his
appeal. The Judgment and Sentence is hereby
AFFIRMED. Opinion by: Lumpkin, V.P.J.;
Smith, P.J., Concur in Results; Johnson, J., Concur in Results; Lewis, J., Concur; Hudson, J.,
Concur.
F-2015-156 — Danny Mack West, Appellant,
was tried by jury for the crime of First Degree
Robbery, After Former Conviction of Two or
More Felonies in Case No. CF-2014-3204 in the
District Court of Tulsa County. The jury
returned a verdict of guilty and recommended
as punishment twenty years imprisonment
and a $36.00 fine. The trial court sentenced
accordingly. From this judgment and sentence
Danny Mack West has perfected his appeal.
The Judgment and Sentence of the District
Court is AFFIRMED. Request for oral argument is DENIED. Opinion by: A. Johnson, J.;
Smith, P.J., concurs; Lumpkin, V.P.J., concurs;
Lewis, J., concurs; Hudson, J., concurs.
Thursday, March 10, 2016
RE-2015-5 — In the District Court of Payne
County, Case No. CF-2013-504, David Arlen
Williams, Appellant, while represented by
counsel, entered a plea of guilty to Domestic
Assault and Battery in Presence of a Child, a
Second or Subsequent Offense. On December
27, 2013, the Honorable Phillip C. Corley, District Judge, sentenced Appellant in accordance
with a plea agreement to four (4) years imprisonment, with all but the first 120 days of that
term suspended under written conditions of
probation. On December 18, 2014, Judge Corley found Appellant violated his probation and
revoked the suspension order in full. Appellant
appeals the final order of revocation. AFFIRMED. Opinion by: Johnson, J.; Smith, P.J.,
concurs; Lumpkin, V.P.J., concurs; Lewis, J.,
concurs; Hudson, J., concurs.
665
Friday, March 11, 2016
F-2015-569 — The State charged Appellant
Derek Anthony Williams with Injuring or
Burning a Public Building, After Former Conviction of Two or More Felonies (Count 1) and
Attempted Escape from County Jail while
Being Held for Felony Offenses, After Former
Conviction of Two or More Felonies (Count 2)
in Case No. CF-2014-26 in the District Court of
Roger Mills County. Williams entered a guilty
plea to Count 1 prior to trial and does not appeal that conviction. The Honorable Jill Weedon, Associate District Judge, found Williams
guilty of Count 2 in a non-jury trial and sentenced him to twenty years imprisonment on
Count 2 and twenty years imprisonment resulting from his plea to Count 1. The sentences
were ordered to be served concurrently with
each other and concurrently with the sentences
imposed in Case No. CF-2014-23. Williams appeals his judgment and sentence in Count 2.
The Judgment and Sentence of the District
Court is AFFIRMED. Opinion by: Johnson, J.;
Smith, P.J., concurs; Lumpkin, V.P.J., concurs;
Lewis, J., concurs; Hudson, J., concurs.
COURT OF CIVIL APPEALS
(Division No. 1)
112,940 — Virginia Gamble, Plaintiff/Appellant, vs. Stephen L. Waldrup and Patricia Waldrup, Defendants/Appellees. Appeal from the
District Court of Atoka County, Oklahoma.
Honorable Preston Harbuck, Judge. Plaintiff/
Appellant Virginia Gamble (“Plaintiff”) seeks
review of a judgment entered in favor of Defendants/Appellees Stephen L. Waldrup and
Patricia Waldrup (collectively, “Defendants.”)
Plaintiff filed an action against Defendants
seeking to quiet title to approximately 9.2 acres
in Atoka County (the “Subject Property”)
which she claimed through adverse possession. Plaintiff also sought monetary damages
incurred when Plaintiff had to build a temporary fence after Defendants removed a fence
on the Subject Property and for her loss in
income due to a reduction in the size of her
cattle herd caused by the loss of access to the
Subject Property. Defendants denied Plaintiff
met the elements of adverse possession and
filed a counterclaim wherein they sought to
quiet title to the Subject Property in their
names because they were the record title holders. Following a bench trial, the trial court entered judgment in favor Defendants and, upon
the Defendants’ motion, ordered Plaintiff to
666
pay $1,059.49 in attorney fees and costs. On
appeal, Plaintiff argues the judgment is against
the clear weight of the evidence and that Plaintiff has no right to recover attorney fees or costs
in this case. Plaintiff’s evidence falls short of a
clear and specific case for adverse possession
especially considering Defendants presented
evidence directly contradicting Plaintiff’s assertions. Plaintiff did not present clear and
positive evidence demonstrating her use of the
Subject Property by grazing cattle on it was
adverse, hostile, exclusive or continuous. That
portion of the trial court’s order is affirmed.
Regarding attorney fees, we conclude Plaintiff
made a claim for physical injury to property,
and Defendants, as the prevailing parties, are
entitled to attorney fees. We cannot say the trial
court abused its discretion in how it apportioned the attorney fees pursuant to 12 O.S.
§940. However, the court failed to identify the
recoverable costs pursuant to 12 O.S. §942.
Defendants may not have been entitled to recover all of the costs which the court lumped in with
the award of attorney fees. On remand, the court
is instructed to identify which costs are recoverable pursuant to §942 before apportioning the
same. AFFIRMED IN PART; VACATED IN
PART; REMANDED WITH INSTRUCTIONS.
Opinion by Mitchell, J.; Buettner, V.C.J., P.J., and
Goree, J., concur.
113,163 — In Re the Marriage of Jeanett Lupton Leibold and William Leibold: Jeanett Lupton Leibold, Petitioner/Appellant, vs. William
Leibold, Respondent/Appellee. Appeal from
the District Court of Oklahoma County, Oklahoma. Honorable Don Andrews, Trial Judge.
Wife and Husband were married approximately five years. In their Decree of Dissolution,
among other things, the trial court equally
divided the parties’ joint bank accounts, awarded each of them their separate retirement
accounts, awarded Wife the marital home subject to the mortgage, and awarded Husband
$144,544.94 as alimony in lieu of property division. We affirm the trial court’s decision.
AFFIRMED. Opinion by Goree, J.; Buettner,
V.C.J., P.J., and Mitchell, J., concur.
113,328 — Kambre Deshon Smith, S.F., and
K.F., Petitioners/Appellants, vs. Peter Xiaouhua Fu, Respondent/Appellee. Appeal from
the District Court of Caddo County, Oklahoma.
Honorable David A. Stephens, Judge. Petitioners/Appellants Kambre Deshon Smith (Mother), S.F., and K.F., minor children, appeal from
the trial court’s orders denying Mother’s
Vol. 87 — No. 9 — 3/26/2016
motion to reconsider its order transferring her
petition for a victim’s protection order on
behalf of her and her children to a court in the
state of Washington and awarding Respondent/Appellee Peter Xiaouhua Fu (Father)
attorney fees and costs. We hold that according
to the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA) Washington has
exclusive and continuing jurisdiction over
child custody proceedings, including this proceeding for protection from domestic violence
and, therefore, the trial court properly transferred the case to Washington. After de novo
review, we hold that Father is not entitled to
attorney fees and costs under the Protection
from Domestic Abuse Act. AFFIRMED IN
PART AND REVERSED IN PART. Opinion by
Buettner, V.C.J., P.J.; Mitchell, J., and Goree, J.,
concur.
113,404 — Miranda Long, Petitioner/
Appellee, vs. Charles Long, III, Respondent/
Appellant. Appeal from the District Court of
Oklahoma County, Oklahoma. Honorable
Howard R. Haralson, Judge. Respondent/Appellant Charles Long, III (Father) appeals the
denial of his motion to disqualify the trial
judge and the trial court’s order modifying the
decree of dissolution of marriage by terminating joint custody and awarding sole custody to
Petitioner/Appellee Miranda Long. We hold
denying Father’s motion to disqualify was not
an abuse of discretion and evidence supports
the trial court’s order terminating joint custody. AFFIRMED. Opinion by Buettner, V.C.J.,
P.J.; Mitchell, J., and Goree, J., concur.
113,497 — Lucia Jasso, Petitioner, vs. Taco
Bueno Restaurants, Inc., and American Zurich
Insurance Co., Insurance Carrier, Respondents.
Proceeding to Review an Order of a ThreeJudge Panel of The Workers’ Compensation
Court of Existing Claims. Petitioner/Appellant, Lucia Jasso (Claimant), seeks review of an
order of a three-judge panel of the Workers’
Compensation Court of Existing Claims denying Claimant’s request for surgery. We sustain
the panel’s order because it is neither contrary
to law nor against the clear weight of the evidence. SUSTAINED. Opinion by Goree, J.;
Buettner, V.C.J., P.J., and Mitchell, J., concur.
113,901 — Oklahoma Department of Health,
Petitioner, vs. Eli Franco, and The Workers’
Compensation Court of Existing Claims,
Respondents. Proceeding to Review an Order
of a Three-Judge Panel of The Workers’ Compensation Court of Existing Claims. Petitioner
Vol. 87 — No. 9 — 3/26/2016
(Employer) seeks review of an order of a
Three-Judge Panel of the Workers’ Compensation Court of Existing Claims which vacated
the decision of the trial court and ordered
Employer to provide treatment in the form of a
total knee replacement for Respondent (Claimant). Claimant suffered an undisputably compensable injury in July 2005. At the time of
injury, this Court employed an “any competent
evidence” standard of review for factual determination. Claimant’s treating physician opined
that, while Claimant needed a total left knee
replacement, the reason for such treatment was
not the work-related injury but rather degenerative joint disease, while the independent
medical examiner opined the work-related
injury was the cause of the need for a total left
knee replacement. Once the trial court made a
finding, which was also admitted by Employer,
that Claimant’s injury was work-related, such
a finding necessarily included a finding on
major cause. Once compensability has been
determined, an employer cannot challenge a
“particular type of treatment for the undisputably compensable injury” based on the argument that the employment was not the “major
cause” of the need for the particular type of
treatment. The necessity of the total knee
replacement was supported by competent evidence in the form of both physicians’ opinions.
The order of the three-judge panel is SUSTAINED. Opinion by Mitchell, J.; Buettner,
V.C.J., P.J., and Goree, J., concur.
(Division No. 2)
114,435 — Jason Cole, Plaintiff/Appellant,
vs. Robert Feather and Jennifer Feather, Defendants/Appellees. Appeal from an Order of the
District Court of Osage County, Hon. Bruce
David Gambill, Trial Judge. The plaintiff, James
Cole (Cole), appeals an Order granting the
defendants, Robert Feather and Jennifer Feather (Feather), summary judgment. On July 1,
2014, Feather filed a forcible entry and detainer
(FED) case in small claims court. The FED
action asked for possession and past due rent
in the sum of $900.00. Cole appeared at the trial
pro se. On July, 10, 2014, the small claims judge
entered a small claims court “minute and/or
judgment.” On January 20, 2015, Cole filed an
amended suit in the District Court for Creek
County, Oklahoma claiming damages “in excess of the amount required for diversity jurisdiction” for his injuries that he claimed
occurred at the rental property. Feather argued
667
first that Cole’s claim was a compulsory counterclaim in the FED action pursuant to 12
O.S.2011, § 2013(A). Feather maintained that
the doctrine of “res judicata” barred Cole’s
action because Cole’s action was a compulsory
counterclaim and, not having been asserted, it
is now barred by the prior FED judgment.
Statutory authority for a forcible entry and
detainer action to be adjudicated in a proceeding in a small claims court is found in that portion of Title 12 on forcible entry and detainer
and not in that portion involving small claims
procedure. A forcible entry and detainer action
is governed by 12 O.S.2011, §§ 1148.1-1148.16,
and is discrete from a small claims action that
is governed by 12 O.S.2011, §§ 1751-1773. The
forcible entry and detainer statutes limit the
type of defenses and counterclaims that may
be presented and Cole’s claim here is not one of
those. Therefore, the trial court erred by granting summary judgment on the premise that,
having failed to assert a compulsory counter
claim, Cole’s lawsuit here is barred. REVERSED
AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil
Appeals, Division II, by Rapp, J.; Thornbrugh,
P.J., and Barnes, J., concur.
Monday, February 22, 2016
113,973 — Oklahoma Association of Broadcasters, Inc., Plaintiff/Appellant, v. City of Norman, Norman Police Department, District
Attorney Office for the Twenty First Judicial
District, Defendants/Appellees. Appeal from
the District Court of Cleveland County, Hon.
Thad Balkman, Trial Judge. Plaintiff/Appellant (OAB) appeals from a “Journal Entry”
(Order) of the district court granting a motion
to dismiss made by Defendants/Appellees dismissing OAB’s petition for declaratory, injunctive and mandamus relief under the Open
Records Act, 51 O.S. 2011 §§ 24A.1-24A.30,
because OAB alleged it was denied access to a
public record, a certain video surveillance recording. Among the issues OAB asserts on
appeal is whether the surveillance video that
captured a criminal act and was the basis for a
probable cause affidavit for an arrest warrant
shows the facts of an arrest or cause for an
arrest referenced in 51 O.S. 2011 § 24A.8(A),
and whether “arrest” includes a defendant’s
voluntary submission to the custody of a court
after an affidavit of probable cause has been
filed and an information has been filed. Based
on the record and applicable facts, we conclude
the trial court did not err in determining no
668
arrest occurred; thus, OAB had no right to
access the public record pursuant to the provisions of § 24A.8(A). However, we further conclude the trial court erred in dismissing OAB’s
petition for injunctive and declaratory relief
because OAB has alleged a cognizable legal
theory for access to the surveillance video pursuant to 51 O.S. 2011 § 24A.8(B) and no determination was made by the trial court that the
reasons for denial of access (whatever they
may be) outweigh the public’s interest to access the surveillance video, a public record.
Accordingly, we reverse the Order and remand
for further proceedings. REVERSED AND
REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals,
Division II, by Barnes, J.; Thornbrugh, P.J., and
Rapp, J., concur.
112,760 — In re the Marriage of: Margaret L.
Kannard, Petitioner/Appellant, vs. John L.
Kannard, Respondent/Appellee. Proceeding
to review a judgment of the District Court of
Oklahoma County, Hon. Lisa K. Hammond,
Trial Judge. Margaret Kannard (Mother) appeals the amount of a fee award in her favor
following John Kannard’s (Father) attempt to
change custody of the couple’s minor children.
Mother sought $98,283 in fees, but the court
awarded Mother only $50,000. Mother argues
that she was entitled to a mandatory full-fee
award pursuant to 43 O.S. § 112(D)(2), rather
than discretionary fees pursuant to 43 O.S. §
110(D), because Father’s litigation conduct was
“contrary to the best interests of the children.”
We find that Mother has not shown the court’s
decision on this question to be an abuse of discretion. Mother next alleges that the district
court’s fee award is invalid because the court
made no findings pursuant to State ex rel. Burk
v. City of Oklahoma City, 1979 OK 115, 598 P.2d
659. Although certain Burk factors may be applicable to, or overlap the general criteria for
fees pursuant to § 110(D), we find no directive
by the Supreme Court that the entire Burk procedure is mandatory in these cases, or that a
court awarding fees pursuant to § 110(D) is
required to make Burk findings. Mother finally
argues that Father’s overall pattern of seeking
a custody change, false testimony, and refusal
to observe the court’s orders, renders any
award of fees less than the total amount billed
by counsel an abuse of discretion. The record
shows that the trial court, which had the benefit of observing the behavior of the parties
through five years of litigation and over 400
docket sheet entries, fully understood the
Vol. 87 — No. 9 — 3/26/2016
nature of Father’s behavior, and yet decided
that equity required only a partial fee. If a trial
court awarding fees pursuant to § 110(D) has
discretion to award partial fees based on the
court’s evaluation of the equities, it is difficult
to say that the court was “without a reasonable
basis in the evidence” given its superior knowledge in this matter. AFFIRMED. Opinion from
Court of Civil Appeals, Division II by Thornbrugh, P.J.; Rapp, J., and Barnes, J. concur.
113,135 — State of Oklahoma, ex rel., Department of Transportation, Plaintiff/Appellee, vs.
Cedars Group, L.L.C., an Oklahoma Limited
Liability Company, Centoma, an Oklahoma
Limited Partnership, Bush, LTD., d/b/a Deer
Creek Texaco and A. Sam Courty, an individual, Defendants/Appellants, and Oklahoma
County Treasurer, Dollar General Stores, Dolgencorp, Inc., NBANC Commercial Federal
Bank, Spiritbank and First United Bank and
Trust Co., Defendants. The trial court defendants, Cedars Group, L.L.C., an Oklahoma
limited liability company; Centoma, an Oklahoma limited partnership; A. Sam Coury; and,
Bush, Ltd. d/b/a Deer Creek Texaco, (collectively, Coury Defendants) appeal an Order
which denied attorney fees and costs in a condemnation action brought by the State of Oklahoma ex rel. Department of Transportation
(ODOT). ODOT brought a condemnation action. After return of the Commissioners’ report,
the Coury Defendants requested a jury trial.
The jury returned a verdict which exceeded the
Commissioners’ report by ten percent, thereby
triggering the attorney fee statutes. The trial
court entered judgment on April 18, 2011.
Thereafter, the Coury Defendants applied for
attorney fees, expert witness fees and costs.
The Coury Defendants and counsel had an oral
contract absolving the Coury Defendants of
any responsibility for fees, costs, or expenses
(except the appraiser’s fee which the trial court
reimbursed to them). Thus, the request for
attorney fees, expenses and costs fails because
such were not actually incurred as required by
the statutory authority for the award. This failure includes the appeal related fees in the prior
appeal of this action. Therefore, the judgment
of the trial court is affirmed. AFFIRMED.
Memorandum Opinion from Court of Civil
Appeals, Division II by Rapp, J.; Thornbrugh,
P.J., and Barnes, J., concur.
Vol. 87 — No. 9 — 3/26/2016
113,658 — M’Liss Thigpen, Plaintiff/Appellant vs. Charlie Don Thigpen, Defendant/
Appellee. Appeal from an Order of the District
Court of Oklahoma County, Hon. Lisa K. Hammond, Trial Judge. The plaintiff, M’Liss Thigpen, appeals a judgment in favor of the defendant, Charlie Don Thigpen, which denied
plaintiff’s motion to dismiss and granted
defendant’s motion for an order nunc pro tunc.
After de novo review this Court holds that the
judgment of the trial court is not against the
facts or contrary to law. The judgment is
affirmed. AFFIRMED. Opinion from Court of
Civil Appeals, Division II, by Rapp, J.; Thornbrugh, P.J., and Barnes, J., concur.
114,232 — In the Paternity of: Couper Edwards, Petitioner/Appellant, vs. Susan Whiteneck, Respondent/Appellee, and Honorable
Tammy Bruce, Judge of the District Court of
Tulsa County, 14th Judicial District, Appellee.
Appeal from Order of the District Court of
Tulsa County, Hon. Tammy Bruce, Trial Judge.
Appellant (Father) appeals the trial court’s
order denying Father’s motion to reconsider
the court’s prior order finding that Oklahoma
is an inconvenient forum in which to determine child custody pursuant to the Uniform
Child Custody Jurisdiction and Enforcement
Act. On review of the factors set forth in 43
O.S.2011 § 551-207(A), the record reflects that
the trial court did not abuse its discretion in its
decision. We further reject Father’s argument
that the trial court erred because it was undisputed that Oklahoma is the home state of the
parties’ child and that the Oklahoma court has
jurisdiction of the matter; the argument ignores
the fact that Mother acknowledged throughout
the proceedings that Oklahoma is Child’s
“home state,” and that this was precisely the
reason Mother filed her motion regarding inconvenient forum. Father’s other arguments
similarly furnish no basis on which to set aside
the trial court’s determination. AFFIRMED.
Opinion from the Court of Civil Appeals, Division II, by Thornbrugh, P.J.; Rapp, J., and
Barnes, J., concur.
113,957 — Multiple Injury Trust Fund, Petitioner, vs. Danny Ray Daniel and The Workers’
Compensation Court of Existing Claims. Proceeding to Review an Order of a Three-Judge
Panel of the Workers’ Compensation Court of
Existing Claims, Hon. L. Brad Taylor, Trial
669
Judge. Multiple Injury Trust Fund (MITF) seeks
review of an award of permanent total disability benefits to Claimant. Independent review of
the record reveals that Claimant established
the jurisdictional fact that he meets the definition of a “physically impaired person” by virtue of obvious and apparent “loss of the use or
partial loss of the use” of his left arm and both
knees. MITF also asserts that Claimant may not
be found PTD without having completed vocational retraining benefits awarded in the trial
tribunal. As to the necessity for such retraining,
MITF may not change its legal theory on
appeal in order to assert an argument not presented to the lower court. Even so, we find the
workers’ compensation panel’s decision finding that Claimant is PTD is supported by competent evidence and the law. According, the
panel’s decision is sustained. SUSTAINED.
Opinion from Court of Civil Appeals, Division
II, by Thornbrugh, P.J.; Rapp, J., and Barnes, J.,
concur.
113,590 — Linda C. McGlaun, Plaintiff/Appellee, vs. Gary Dale Gregg and Clayton Alan
Gregg, individually and as Co-Trustees of the
Bobbie Leon Gregg Testamentary Trust, Defendants/Appellants. Proceeding to review a
judgment of the District Court of Beaver County, Hon. Jon Parsley, Trial Judge. Gary Dale
Gregg and Clayton Alan Gregg, individually
and as Co-Trustees of the Bobbie Leon Gregg
Testamentary Trust, appeal the decisions of the
district court removing them as Trustees and
awarding money damages to beneficiary Linda
McGlaun. As part of his will, settlor Bobbie
Leon Gregg created the Bobbie Trust. McGlaun,
a lifetime income beneficiary of the Trust,
alleged that the trustees used their authority to
direct current and future trust income into purchases and loans benefitting trustees Gary and
Clayton Gregg, rather than distributing it to
the income beneficiaries. The district court
made comprehensive and substantial findings
on all material elements of fact and law in this
case. We agree that the major challenged transactions appeared to have little or no business
justification, and functioned primarily to divert
the benefits of trust income away from Linda
McGlaun; toward supporting a business owned
by Clayton Gregg; and toward another family
trust in which Gary and Clayton Gregg had an
interest but McGlaun did not. We further find
no error in the court’s reduction of the trustee
fees claimed. Trustees further argue that the
court erred in removing them because the evi-
670
dence did not show they were personally hostile to McGlaun. We find that, when a trustee’s
actions show clear hostility to the interests of
the beneficiaries, a court need not find personal hostility in order to remove a trustee. AFFIRMED. Opinion from Court of Civil Appeals,
Division II, by Thornbrugh, P.J.; Barnes, J., and
Rapp, J. concur.
113,516 — Proctor Community Church Incorporated, Plaintiff/Appellee, v. Proctor-Sanders
Community Cemetery, Inc., Defendant/Appellant. Appeal from an Order of the District
Court of Adair County, Hon. Elizabeth L.
Brown, Trial Judge. The defendant, ProctorSanders Community Cemetery, Inc. (ProctorSanders Cemetery) appeals an Order denying
its motion for new trial entered after judgment
for the plaintiff, Proctor Community Church,
Incorporated (Proctor-Church) in the quiet title
action brought by Proctor Church. Proctor
Church counter-appeals that part of the original judgment conditioning its decreed title “for
as long as it is used for church purposes” and
for further providing that Proctor-Sanders
Cemetery “shall be permitted to park in the
church parking area as needed for funerals,
Decoration Day and Memorial Day.” The trial
court heard evidence regarding the open, notorious, hostile and exclusive elements of a quiet
title action. The requisite time period is not
disputed. This Court has examined the entire
record and weighed the evidence in accord
with the standard of review and concludes that
the judgment of the trial court is not clearly
against the weight of the evidence. Therefore,
the judgment quieting title in Proctor Church is
affirmed. The trial court’s finding limiting
Proctor Church’s title for as long as the property is used for church purposes is not supported by evidence and is contrary to law. The
judgment journal entry is modified to vacate
and strike that provision. The trial court’s finding imposing an easement for parking on
church property at certain times is not supported by the evidence and is contrary to law.
The judgment journal entry is modified to
vacate and strike that provision. AFFIRMED
IN PART, VACATED AND MODIFED IN
PART. Opinion from Court of Civil Appeals,
Division II, by Rapp J.; Thornbrugh, P.J., and
Barnes, J., concur.
Vol. 87 — No. 9 — 3/26/2016
(Division No. 3)
113,173 — Ward Lee & Coats, P.L.C., Plaintiff/Appellant, vs. City of Claremore; Sarah
Sharp, City Clerk, Defendants/Appellees.
Appeal from the District Court of Rogers
County, Oklahoma. Honorable Sheila Condren, Judge. Appellant (Law Firm) appeals
from the trial court’s order denying the firm’s
petition for declaratory relief brought pursuant
to the Oklahoma Open Records Act, 51 O.S.
2011 §24A.1 et seq. (Act). All parties to the present case agree that Law Firm is entitled to the
records it sought from Appellees (City) under
the Open Records Act. At issue is whether the
records given to Law Firm satisfied the Act’s
mandate. We hold that they did not. The financial records of the City of Claremore have
never been produced in this litigation as requested by Law Firm in their two Open Records
Act requests. Law Firm was never provided
with evidence of what City actually spent defending the underlying suit; Law Firm requested “all expenditures” and “copies of all checks,
vouchers, or other form of payment to any and
all law firms or attorneys . . . .” The amount of
those expenditures might equal the billing statements supplied, but we do not know because the
official records of City were never compared
with the documents delivered. The judgment of
the trial court is reversed and this matter is
remanded for further proceedings. Law Firm’s
request for reasonable attorney fees for prosecuting this action and appeal is granted. The
trial court is directed to determine the same on
remand. REVERSED AND REMANDED.
Opinion by Bell, P.J.; Joplin, J., and Hetherington, J., concur.
113,672 — Riza Johnson and Brent Johnson,
Plaintiffs/Appellees, vs. Angelo Cuzalina, M.D.,
D.D.S., a/k/a Lawrence A. Cuzalina, Tulsa
Surgical Arts, P.C., Tulsa Cosmetic Surgery
Center, P.C., Defendants/Appellants. Appeal
from the District Court of Tulsa County, Oklahoma. Honorable Mary F. Fitzgerald, Judge.
Appeal of the trial court’s denial of a motion to
compel arbitration and for appointment of a
substitute arbitrator. The trial court found four
documents containing the same provisions
were confusing, invalid, unenforceable, and
unconscionable as being retroactive. HELD: The
existence of an agreement to arbitrate presents
a gateway question of law for review de novo
under Oklahoma contract law. After conducting such a review of the record and applying
Vol. 87 — No. 9 — 3/26/2016
Oklahoma law, we conclude there was no enforceable agreement for arbitration of the parties’ disputes. The first document purporting
to form an arbitration agreement was ineffective to form such a contract and the later documents were unenforceable because they were
unconscionable under the circumstances of the
case. In addition, the designation of the arbitral
forum and its code was integral to the formation of an agreement. The unavailability of that
named arbitral forum caused a failure of the
agreement. Further, factors cited as evidencing
interstate commerce which implicated the Federal Arbitration Act were expressly rejected in
Bruner v. Timberlane Manor Limited Partnership,
2006 OK 90, ¶¶31, 42-44, 155 P.3d 16, and, as in
that case, we conclude the events were local in
nature. Due to the unenforceable nature of the
alleged contracts for arbitration, discussion of
choice of law is unnecessary. The trial court’s
denial of the motion to compel arbitration and
for appointment of a substitute arbitrator is
AFFIRMED. Opinion by Hetherington, J.; Bell,
P.J., and Joplin, J., concur.
114,181 — Tulsa 912 Project, Inc., Plaintiff/
Appellant, vs. Oklahoma Department of Environmental Quality, Defendant/Appellee. Appeal from the District Court of Tulsa County,
Oklahoma. Honorable Jefferson D. Sellers,
Judge. Plaintiff/Appellant Tulsa 912 Project,
Inc. (TPI), seeks review of the trial court’s order
granting the motion to dismiss of Defendant/
Appellee Oklahoma Department of Environmental Quality (ODEQ), on TPI’s claim asserting the invalidity of action by ODEQ as “rulemaking” adopted in violation of the Oklahoma
Administrative Procedures Act, (OAPA) 75 O.S.
§§250, et seq. In this appeal, TPI argues the trial
court erred as a matter of law and fact in dismissing its action. The Revised Regional Haze
Implementation Plan, adopted by agreement
between, inter alia, ODEQ and PSO as operator
of the Northeastern Plant Units 3 and 4, does
not constitute a “rule” of general application
subject to the “rule” making requirements of
the OAPA. The EPA identified only the Northeastern Plant Units 3 and 4 as contributors to
regional haze, not any other electrical generating plants in the state. The Revised Regional
Haze SIP, adopted by agreement between, inter
alia, ODEQ and PSO as operator of the Northeastern Plant Units 3 and 4, deals specifically
only with those two coal-fired electrical generating plants, not to any other electrical generating plants in the state. PSO was not made a
party to this action and, when faced with a
671
choice between closure of Northeastern Plant
Units 3 and 4 and retrofitting Northeastern
Plant Units 3 and 4 to ameliorate the sulfur
dioxide emissions contributing to regional
haze, PSO chose closure as the preferable
approach by agreeing to the Revised Regional
Haze SIP, and we will not second-guess its
business judgment. Beyond ODEQ’s agreement to consider retrofit technology if other
sulfur dioxide contributors to regional haze
were identified, it cannot be said that the decision to close Northeastern Plant Units 3 and 4,
embodied in the agreed-to Revised Regional
Haze SIP, will compel the closure of any other
coal-fired electrical generating facilities as to
constitute a statement of generally applicable
policy. The fact that the Oklahoma Clean Air
Act, 27A O.S. §§2-5-101, et seq., §2-5-107(6)(c),
permits, but does not require, the ODEQ Air
Quality Council to conduct public hearings for
the purpose of receiving public comment on
the fulfillment of federal SIP requirements, in
our estimation, clearly evinces our legislature’s
intent to treat SIP compliance as a matter outside the ruling making requirements of the
OAPA. AFFIRMED. Opinion by Joplin, J.; Bell,
P.J., and Hetherington, J., concur.
113,173 — John William Phillips, Plaintiff/
Claimant/Appellant, vs. Daniel Gene Witham
and UVEST Financial Services Group, Inc.,
Defendants/Respondents/Appellees. Appeal
from the District Court of Oklahoma County,
Oklahoma. Honorable Barbara G. Swinton,
Judge. Appellant (Phillips) appeals from the
district court’s order and judgment confirming
an arbitration award (Award) in favor of Appellees (Witham and UVEST), and denying Phillips’ motion to vacate the Award. Phillips contends the district court should have vacated the
infirm Award because he was denied his rights
to a full and fair hearing under the Oklahoma
Uniform Arbitration Act (Act), 12 O.S. 2011
§1851 et seq., and the Federal Arbitration Act
(FAA), 9 U.S.C. §1 et seq. While Phillips’ petition in error stated three assignments of error,
these arguments may be summarized as one
issue: Did the district court commit reversible
error by failing to follow the “shall” language
of 12 O.S. 2011 §1874(A) and vacate the award.
Witham and UVEST contend the district court
properly denied Phillips’ attempt to vacate the
Award because his pleadings were untimely
and defective under the Act and the FAA and
Phillips failed to state any basis under Okla672
homa law or the FAA to disturb the Award.
The record belies Phillips’ contention that he
was denied the right to a full hearing. The arbitrators held hearings and considered the evidence presented at trial, and the motions filed
in the arbitration proceeding and Oklahoma
substantive law before determining that Phillips’ claims were barred by the applicable statute of limitations, issue and claim preclusion,
and res judicata. Regarding the testimony of
witnesses, the panel did not allow this evidence because Phillips intended to use these
witnesses to testify about ownership, invasion
and improper use of client files and solicitation
of clients to file NASD complaints. Because the
statute of limitations dates were fixed by Phillips’ own testimony and would not be changed
by further witness testimony, the panel decided to exclude this evidence. We cannot find the
panel’s decision to exclude this evidence was
misconduct or prejudicial. Phillips sought this
arbitration and now seeks to avoid the unfavorable result and expenses. Considering the
law applicable to this proceeding and Phillips’
failure to present clear evidence supporting the
specific grounds he alleged for vacation of the
Award, we cannot find the district court erred.
AFFIRMED. Opinion by Bell, P.J.; Joplin, J., and
Hetherington, J., concur.
(Division No. 4)
113,701 — Larry C. Ruppel, Petitioner, vs.
Band of Brothers Recycling, LLC, No Insurance, and The Workers’ Compensation Court
of Existing Claims, Respondents. Proceeding to
review an order of a three-judge panel of the
Workers’ Compensation Court of Existing
Claims, Hon. Carla Snipes, Trial Judge, which
modified a trial court order awarding temporary total disability (TTD) benefits. The panel
modified the trial court’s order by denying
TTD for a specific period because Claimant
filed for unemployment benefits. Claimant
argues the panel’s modification of the trial
court’s TTD award was against the clear weight
of the evidence, in excess of its powers, and
contrary to law. Claimant contends the panel’s
reduction of his TTD award because he had
been approved for unemployment benefits by
the Oklahoma Employment Security Commission was in error. Title 85 O.S.2011 § 332(P)
provides that an employee cannot receive TTD
benefits during the time period he receives
unemployment benefits. Because he never received unemployment benefits and, in fact,
Vol. 87 — No. 9 — 3/26/2016
declined them on advice of counsel, Claimant
is not precluded from receiving TTD benefits
during that time period. The record does not
support the panel’s reason for modifying the
TTD award. We therefore vacate its decision
and remand with directions to enter an order
affirming paragraph 5 of the trial court’s order.
VACATED IN PART AND REMANDED WITH
DIRECTIONS. Opinion from the Court of Civil
Appeals, Division IV, by Wiseman, P.J.; Goodman, C.J., and Fischer, J., concur.
113,530 — Multiple Injury Trust Fund, Petitioner, vs. Stephen McBane, and The Workers’
Compensation Court of Existing Claims, Respondents. Proceeding to review an order of a
three-judge panel of the Workers’ Compensation Court of Existing Claims, Hon. David P.
Reid, Trial Judge, affirming in part and modifying in part a trial court order awarding Stephen
McBane (Claimant) permanent total disability
(PTD) benefits from MITF. The principal issue
before us is whether the Workers’ Compensation Court erroneously found that at the time
of his latest compensable injury, Claimant was
a previously impaired person and thus entitled
to PTD benefits from MITF. There was indeed
competent evidence in the form of lay witness
testimony that Claimant had an obvious and
apparent disability to his left leg, which by
definition is a major member. Accordingly, the
decision that Claimant was a physically impaired person at the time of his latest injury is
supported by competent evidence. We further
conclude that based on the holding of Multiple
Injury Trust Fund v. Sugg, 2015 OK 78, 362 P.3d
222, we see no error by the trial court in including Crumby findings in deciding the PTD issue.
The evidence also supports the trial court’s decision that Claimant was entitled to MITF benefits,
despite the fact that he did not complete vocational rehabilitation. The decision is sustained.
SUSTAINED. Opinion from the Court of Civil
Appeals, Division IV, by Wisaman, P.J.; Goodman, C.J., and Fischer, J., concur.
Tuesday, February 16, 2016
113,388 — In the Matter of the Adoption of
M.F.M.E., a minor child: Jonathan and Jaime
Swim, Appellants, vs. State of Oklahoma, ex
rel., Department of Human Services, Melissa
and Michael McClain, Appellees. Appeal from
the District Court of Oklahoma County, Oklahoma. Hon. Lisa Tipping Davis, Trial Judge.
Appellants Jonathan and Jaime Swim appeal
the final decree granting adoption to Appellees
Melissa and Michael McClain in a competing
Vol. 87 — No. 9 — 3/26/2016
adoption case. We affirm the district court’s
order, finding that the court fully complied
with 10 O.S.2011 § 7505-1.4 in docketing and
conducting the trial on the Swims’ petition to
adopt. We further find no violation of the
Swims’ right to due process. The district court
did not abuse its discretion in determining that
the McClains were suitable adoptive parents
and that the child’s best interests were served
by granting the adoption. AFFIRMED. Opinion from the Court of Civil Appeals, Division
IV by Fischer, J.; Goodman, C.J, concurs, and
Wiseman, P.J., concurs in result.
113,539 — Donald E. Fry, Plaintiff/Appellant, vs. Wausau Business Insurance Company,
Defendant/Appellee, and Karen S. Inman,
Defendant. Appeal from the District Court of
Tulsa County, Oklahoma. Hon. Mary Fitzgerald, Trial Judge. Donald Fry appeals the district
court’s grant of summary judgment in favor of
Wausau Business Insurance Company on his
claim for underinsured motorist benefits. The
dispute over coverage involves interpretation
of policy language defining the term “occupying.” The term is defined in the policy endorsement as “in, getting in, on, out or off.” We find
the material facts regarding whether Fry was
“getting in” his vehicle are not disputed and,
therefore, show that Fry was “occupying” the
vehicle at the time of the accident as that term
is defined in the policy. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
Opinion from the Court of Civil Appeals, Division IV by Fischer, J.; Goodman, C.J., and Wiseman, P.J., concur.
113,483 — Bharat Mittal, Plaintiff/Appellant
vs. Bluestem Emergency Medical P.L.L.C., a
professional limited liability company, and
Thomas W. Britt, Roger J. Cotner, Holly B.
Fouts, Ronald L. Hay, and Ruth M. Thompson,
Defendants/Appellees. Appeal from the District Court of Washington County, Oklahoma.
Hon. Russell C. Vaclaw, Trial Judge. Appellant
Bharat Mittal appeals the district court’s order
awarding attorney fees to Defendants/Appellants. Having reviewed the record and applicable law, we conclude that the district court’s
award was improper because it failed to specify
the statutory basis for the award and calculation
for its determination that the fee awarded was
reasonable. Because we find it necessary to vacate the district court’s order and remand the
matter, we do not determine whether any of
the Defendants’ asserted grounds for awarding
673
fees was proper. VACATED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion
from the Court of Civil Appeals, Division IV by
Fischer, J.; Goodman, C.J., and Wiseman, P.J.,
concur.
113,047 — The Bank of New York Mellon
f/k/a The Bank of New York, Not in its Individual Capacity but Solely as Trustee for the
Benefit of the Certificate-Holders of the CWABS
Inc., Asset-Backed Certificates, Series 2005BC5, Plaintiff/ Appellee, vs. William L. Howard a/k/a William Lee Howard, Defendant/
Appellant. Appeal from an order of the District
Court of Tulsa County, Hon. Mark Barcus, Trial
Judge, denying Howard’s motion to strike and
objection to a sheriff’s sale in this foreclosure
action. We are asked to address whether the
trial court properly confirmed a sheriff’s sale in
which Howard claims he did not receive proper notice of the sale or the motion to confirm
the sale. We see no abuse of the trial court’s
discretion when it granted Bank’s motion to
confirm the sale despite Howard’s assertions
he did not receive proper notice. The record
shows Bank mailed to all parties of record the
notice of sale, the motion to confirm the second
alias sheriff’s sale, and the notice of hearing to
confirm the sale. Although Howard and his
attorney claim they never received the notices,
they filed a motion to strike before the hearing
on the motion to confirm the sale, and the trial
court moved the hearing giving Howard three
additional weeks to prepare. We conclude
Howard’s due process rights were not violated, and affirm the trial court’s decision. AFFIRMED. Opinion from the Court of Civil
Appeals, Division IV, by Wiseman, P.J.; Goodman, C.J., and Fischer, J., concur.
ORDERS DENYING REHEARING
(Oklahoma City Divisions)
113,517 — In Re the Marriage of Kevin Hefley
and Kathy Hefley: Kevin Hefley, Petitioner/Appellee, vs. Kathy Hefley, Respondent/Appellant. Respondent/Appellant Kathy Hefley’s
Petition for Rehearing the Order Dismissing
Appeal filed on January 11, 2016 is DENIED as
being filed out of time.
(Division No. 1)
Securities Corp., Home Equity Asset Trust
2006-4, Home Equity Pass-Through Certificates, Series 2006-4, Plaintiff/Appellee, vs.
James B. Hobi, Defendant/Appellant, and
Spouse, if any, of James B. Hobi; John Doe,
Occupant; Jane Doe, Occupant; Mortgage Electronic Registration Systems, Inc., as Nominee
for Southstar Funding, LLC; Hefner Village
Homeowners’ Association, Inc; Saxon Mortgage, Inc.; Citibank Federal Savings Bank; Isabel Chancellor, Trustee of the Ingenuity, Inc.
401K Plan F/B/O Isabel Chancellor; John D.
Meyer; and Affordable Property and Construction, LLC, Defendants. Defendant/Appellant’s
Motion for Rehearing filed February 11, 2016 is
DENIED.
114,082 — Brandon and Danielle Andrew, as
Guardians of Briana Andrew, a minor child,
and individually, as her parents, Plaintiffs/
Appellants, vs. Elisa Depani-Sparkes, D.O., The
Physician Group, PLLC, a/k/a OCCO Healthcare Network, and Integris Ambulatory Care
Corporation d/b/a Integris Family Care Edmond, Defendants, and Mercy Health Center,
Inc., d/b/a Mercy Health Center, Defendant/
Appellee. Plaintiffs/Appellants’ Petition for
Rehearing filed January 28, 2016 is DENIED.
113,262 — In the Matter of the Estate of Stanley R. Littleton, Deceased: Lucille Kathryn Littleton, Petitioner/Appellant, vs. Michael David
Littleton, Respondent/Appellee. Petitioner/
Appellant’s Petition for Rehearing filed February 2, 2016 is DENIED.
113,571 — City of Tulsa and Own Risk
#10435, Petitioners, vs. Jennifer Jean Hodge
and The Workers’ Compensation Court of
Existing Claims, Respondents. Respondent’s
Petition for Rehearing filed February 24, 2016
is DENIED.
(Division No. 2)
112,958 — State of Oklahoma, ex rel. Oklahoma Board of Medical Licensure and Supervision, Plaintiff/Appellee, vs. Jarret G. Gregory,
MD License No. 13611, Defendant/Appellant.
Appellant’s Petition for Rehearing is hereby
DENIED.
114,062 — US Bank, National Association, as
Trustee for Credit Suisse First Boston Mortgage
674
Vol. 87 — No. 9 — 3/26/2016
113,339 — ONB Bank and Trust Company,
Plaintiff/Counter-Defendant, vs. Timothy S.
Blackburn a/k/a Timothy Scott Blackburn,
Defendant/Cross-Defendant, and Occupants
of the Premises (Marcus Adolfo Diaz and Dannette L. Diaz, Husband and Wife), Defendants/
Cross-Plaintiffs/Appellees, and Ferguson Enterprises, Inc.; Double Eagle Property Group,
LLC, an Oklahoma Limited Liability Company; Dennis Semler, Tulsa County Treasurer, and
Board of County Commissioners of Tulsa County, Defendants, and Mary Monica Blen-dowski,
Intervenor/Appellee, and Ferguson Enterprises,
Inc., Plaintiff, vs. Timothy S. Blackburn, an Individual; Central Plumbing Company, Inc. a/k/a
Central Plumbing and Heating Company; Oklahoma National Bank; and Double Eagle Property Group, LLC, Defendants, and Mary Monica
Blendowski, Intervenor/Appellee, and Tulsa
County Treasurer Office, 500 S. Denver, 3rd
Floor, Tulsa, Oklahoma 74103-3840, Garnishee.
Appellant’s Petition for Rehearing is DENIED.
Friday, March 4, 2016
113,830 — In the Matter of Jm.G. and Ja.G.,
Jr., Adjudicated Deprived Children, Chantal Y.
Moore and Jamar A. Gatlin, Appellants, vs.
State of Oklahoma, Appellee. Appellants’ petition for rehearing is DENIED.
(Division No. 3)
113,672 — Riza Johnson and Brent Johnson,
Plaintiffs/Appellees, vs. Angelo Cuzalina, M.D.,
D.D.S., a/k/a Lawrence A. Cuzalina, Tulsa
Surgical Arts, P.C., Tulsa Cosmetic Surgery
Center, P.C., Defendants/Appellants. Appellants’ Petition for Rehearing, filed February 24,
2016, is DENIED.
112,520 — Deborah Jean Rowe, Personal
Representative of the Estate of Robert L.
Hutchins, Deceased, Plaintiff/Appellant, vs.
Lawton Novelty Company, Defendant/Appellee. Appellant’s Petition for Rehearing and
Brief in Support, filed December 23, 2015, is
DENIED.
Vol. 87 — No. 9 — 3/26/2016
675
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INTERESTED IN PURCHASING PRODUCING &
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EXPERT WITNESS – ENERGY. EnEx Energy Advisors is a team of seasoned energy professionals (engineers and lawyers) possessing broad experience in
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BRIEF WRITING, APPEALS, RESEARCH AND DISCOVERY SUPPORT. Eighteen years experience in civil
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CONTRACT LEGAL SERVICES – Lawyer with
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Admitted and practiced before the United States
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OFFICE SPACE
LUXURY OFFICE SPACE - Three offices for lease, one
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OFFICE AVAILABLE FOR SOLE PRACTITIONER. Includes office space and overhead costs such as phone,
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FOR SALE/ LEASE LUXURY LAW OFFICE BUILDING 6,531 sq. ft. 2417 E. Skelly Drive in the heart of
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Vol. 87 — No. 9 — 3/26/2016
POSITIONS AVAILABLE
POSITIONS AVAILABLE
HARTZOG CONGER CASON & NEVILLE is seeking
a 2-6 year attorney to work in the firm’s litigation
group. Applicants should have a strong academic
background with experience in complex litigation matters. Applicants should submit a resume and cover letter to: “Box W,” Oklahoma Bar Association, P.O. Box
53036, Oklahoma City, OK 73152. Applications will be
kept in strict confidence.
MID-SIZED 50 PENN PLACE LAW FIRM seeks Legal
Assistant. Estate Planning and/or Real Estate background helpful. meehogeresume@gmail.com.
FORT WORTH REGIONAL OFFICE OF THE U.S. SECURITIES AND EXCHANGE COMMISSION SEEKS
ONE OR MORE ENFORCEMENT ATTORNEYS. Enforcement attorneys investigate potential violations of
the federal securities laws and, when necessary, litigate
resulting civil and administrative cases. Candidates
should have excellent academic credentials and a minimum of three years of experience working as a lawyer.
Substantive securities law or litigation experience is
greatly preferred. Salary range: $101,819 - $167,443 depending on experience and qualifications. Interested
individuals should email resume and cover letter to
fwroattyapps@sec.gov no later than April 1, 2016. If
you are unable to email materials, they may be faxed to
817-978-2700. Equal Opportunity Employer.
FULL SERVICE, AV-RATED, DOWNTOWN TULSA
LAW FIRM seeks associate attorney with 3 - 6 years’
commercial litigation experience. Solid deposition and
trial experience is a must. Our firm offers a competitive
salary and benefits, with bonus opportunity. Submit
résumé and references to “Box P,” Oklahoma Bar Association; PO Box 53036; Oklahoma City, OK 73152.
COLLECTIONS ATTORNEY - “COMPSOURCE MUTUAL INSURANCE COMPANY is seeking a highly
motivated and detail-oriented professional for the
position of collections attorney. This position will examine collection accounts and take necessary steps to
effect collection of delinquent premium. We are a great
company that offers paid health benefits for employees, paid time off and a Retirement Savings Plan with
employer matching. For complete details/salary info
and to apply, please visit https://rew21.ultipro.com/
COM1048/JobBoard/ListJobs.aspx or email roberts@
compsourcemutual.com with any questions.
ASSOCIATE NEEDED. AV RATED LAWYER in medium sized NE Oklahoma town. Practice consists primarily of criminal defense, domestic relations and
estate planning. 2-5 years’ experience in court appearances and research. Must have strong interpersonal/
communications skills and work independently. Competitive salary and benefits. Unique opportunity for the
right lawyer. Send resume with references to: “Box D,”
Oklahoma Bar Association, P.O. Box 53036, Oklahoma
City, OK 73152.
ASSISTANT DISTRICT ATTORNEY POSITIONS
AVAILABLE. 8th District Attorney Brian T. Hermanson
is taking applications for an assistant district attorney
in Kay County. The position will include prosecuting a
wide range of criminal cases with a focus on general
misdemeanor and felony cases, and requires a focus
on a desire to work closely with victims. Strong writing and researching skills are required. This is a salaried position with full state benefits. Time is of the
essence. Please forward resume, a writing sample references and a cover letter to Brian T. Hermanson at
201 South Main, Newkirk, OK 74647, or by e-mail at
brian.hermanson@dac.state.ok.us.
Vol. 87 — No. 9 — 3/26/2016
THE OKLAHOMA BAR ASSOCIATION HEROES program is looking for several volunteer attorneys. The
need for FAMILY LAW ATTORNEYS is critical, but attorneys from all practice areas are needed. All ages, all
counties. Gain invaluable experience, or mentor a
young attorney, while helping someone in need. For
more information or to sign up, contact Gisele Perryman, 405-416-7086 or heroes@okbar.org.
ASSISTANT D.A. NEEDED FOR SOLO OFFICE IN
PUSHMATAHA COUNTY to perform legal services
related to county government operations; prosecute
any/all criminal offenses; assist in any/all juvenile
cases; other duties as assigned. Duties vary based on
experience. Requires J.D. from accredited law school,
legal experience in criminal and civil law preferred.
Prior courtroom experience preferred. Admitted to the
Oklahoma Bar and in good standing. Salary commensurate with experience. Submit resume with supporting documentation to District Attorney Mark Matloff,
108 N Central, Suite 1; Idabel, OK 74728; 580-286-7611
or email résumé to tammy.toten@dac.state.ok.us.
THE IOWA TRIBE OF OKLAHOMA IS SEEKING AN
ESTABLISHED JUDGE AND ATTORNEY for their
tribal court. The ideal candidates will be able to meet
all necessary qualifications to practice before the Judicial Courts of the Iowa Tribe of Oklahoma and have
adequate background knowledge of the unique jurisdictional issues where Indian Country is concerned.
Please submit your resume to jobs@iowanation.org for
consideration.
OKLAHOMA CITY LAW FIRM IS SEEKING AN ESTABLISHED ATTORNEY with significant experience
with property and casualty insurance matters, including
coverage litigation in state and federal court. Writing
samples required. Send resume and writing samples to
“Box X,” Oklahoma Bar Association, P.O. Box 53036,
Oklahoma City, OK 73152.
HENSLEY LEGAL SERVICES, PLLC IN DOWNTOWN
TULSA, OK SEEKS AN ASSOCIATE ATTORNEY with
1-4 years of family law experience. Excellent writing and
communication skills are a must. Client service is a priority. Candidate must be highly motivated, possess the
ability, experience and confidence to appear in court. The
salary will be commensurate with experience. Please
submit a confidential cover letter, resume, references and
writing samples to hensleylegalservices@gmail.com.
Law firm seeks attorney with experience handling
BILINGUAL SPANISH/ENGLISH IMMIGRATION
MATTERS. Send résumé to “Box Z,” Oklahoma Bar Association; P.O. Box 53036; Oklahoma City, OK 73152.
677
POSITIONS AVAILABLE
POSITIONS AVAILABLE
THE MUSCOGEE (CREEK) NATION NATIONAL COUNCIL IS SEEKING A LAW FIRM OR AN INDIVIDUAL ATTORNEY TO PROVIDE LEGAL COUNSEL SERVICES ON
A CONTRACT BASIS. Law firms and attorneys are invited
to submit qualifications and proposals for the provision of
these services. In order to be considered, proposals must
address each of the concerns requested in this document,
including rates and fees. Legal Counsel will be required
to provide general governmental counsel, basic legal services, and advice on special projects. The National Council requests accessibility to and a timely response from
the selected law firm or attorney. Basic legal services include: reviewing/drafting ordinances and resolutions;
providing guidance regarding government operations,
open meetings, open records, routine matters, and personnel matters; reviewing agendas, materials and preparing legal advice/opinions for Committee and Full
Council Sessions; attending Committee (upon request)
and monthly Council Sessions of the National Council.
Minimum qualifications include a Juris Doctorate from
an accredited law school, a license to practice in the State
of Oklahoma, a member in good standing of the Oklahoma Bar, 5+ years of legal experience, and be a member
or become a member in good standing of the Muscogee
(Creek) Nation Bar. Experience with a Tribal government
and familiarity with Muscogee (Creek) Nation law is
preferable. Interested parties please provide the following information: Firm or Individual name and contact
information, including e-mail and website addresses and
the year organized; Summary of qualifications, specializations, experience, professional affiliation, special
training, availability, and contact information for key
personnel and proposed lead and back-up attorneys; Information on any previous experience or services provided, including Tribal experience, such as Tribal attorney services, Tribal court cases, litigation experience
and a list of past or present Tribal clients; List of clients
that you currently represent that could cause a conflict
of interest with your responsibilities of Legal Counsel
of the National Council. Describe how you would be
willing to resolve these or any future conflicts of interest; Other factors or special considerations you feel
would influence your selection; List of three references
and contact information; Proposed rates for the attorney assigned to the National Council or any alternative
fee structure that you propose. The National Council
retains the right to reject any or all responses and reserves the right to waive any variances from the original
RFP specifications in cases where the variances are considered to be, in the sole discretion of the National Council, in the best interest of the National Council. A contract
for the accepted proposal will be drafted based upon the
factors described in this RFP. Please provide three unbound copies of the proposal, including one original
with the signature of the authorized individual on a
typed letter of submittal. Proposals shall be submitted in
a sealed envelope, clearly marked on the outside of the
envelope, “Legal Counsel – Muscogee (Creek) Nation
National Council” and addressed to: Lucian Tiger III
Speaker, Muscogee (Creek) Nation National Council,
P.O. Box 158, Okmulgee, OK 74447; Facsimile: (918) 7566812. All proposals must be received no later than 4:00
pm on Tuesday, April 12, 2016.
OKC AV RATED LAW FIRM seeking associate with excellent litigation, research, and writing skills, 1-5 years’
experience for general civil/commercial defense
practice, health care law. Must have solid litigation
experience for all phases of Pretrial discovery and
Trial experience with excellent research and writing
skills. Submit a confidential résumé with references,
writing sample and salary requirements to “Box E,”
OBA PO Box 53036, OKC 73152.
678
AV-RATED NW OKC FIRM SEEKING TO EXPAND
ITS LITIGATION PRACTICE. We are looking for commercial litigator(s) with existing client base and 5 to 10
years substantive commercial or oil and gas litigation
experience. Applicants should be motivated, self-starters, with strong work ethic, excellent communication
and organizational skills. We are looking for persons
with sound judgment and who work well with others.
Send resume to “Box H,” Oklahoma Bar Association,
P.O. Box 53036, Oklahoma City, OK 73152.
AV-RATED TULSA INSURANCE DEFENSE FIRM
SEEKS AN ATTORNEY with a minimum of 3 years
civil litigation experience. Insurance defense or bad
faith litigation practice preferred. Send law school transcript, writing sample and 3 references to: aphillips@
richardsconnor.com.
NORMAN LAW FIRM IS SEEKING sharp, motivated
attorneys for fast-paced transactional work. Members
of our growing firm enjoy a team atmosphere and an
energetic environment. Attorneys will be part of a creative process in solving tax cases, handle an assigned
caseload, and will be assisted by an experienced support
staff. Our firm offers health insurance benefits, paid vacation, paid personal days, and a 401K matching program. Applicants need to be admitted to practice law in
Oklahoma. No tax experience necessary. Submit cover
letter and résumé to Justin@irshelpok.com.
CLASSIFIED INFORMATION
REGULAR CLASSIFIED ADS: $1.25 per word with $35 minimum per insertion. Additional $15 for blind box. Blind box
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DISPLAY CLASSIFIED ADS: Bold headline, centered, border
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DEADLINE: See www.okbar.org/members/BarJournal/
advertising.aspx or call 405-416-7084 for deadlines.
SEND AD (email preferred) stating number of times to be
published to:
advertising@okbar.org, or
Mackenzie McDaniel, Oklahoma Bar Association,
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Publication and contents of any advertisement are not to be
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shall the publication of any advertisement be considered an endorsement of the procedure or service involved. All placement
notices must be clearly nondiscriminatory.
DO NOT STAPLE BLIND BOX APPLICATIONS.
Vol. 87 — No. 9 — 3/26/2016
WHAT IS GOOD
PARENTING?
Exploring Parental Competency
in a legal context
April 8, 2016, 9-3 p.m.
AVAI LA
OKLAHOMA BAR CENTER, OKC
BL E
6/1
Program Planner/Moderators:
Robert Danaher, Psy. D. Alden Clinical Evaluation Services LLC
Laura McConnell-Corbyn J.D. American Academy of Matrimonial Lawyers
TOPICS INCLUDED:
Parental Competency from a Legal Perspective
What is a Good Parent? Parental Competency vs. Best Interests of Child
Major Issues in Assessment
Deconstructing Child Custody Evaluations
$150 for early-bird registrations received with payment at least four, full business
days prior to the first seminar date; $175 for registrations received with payment
within four, full business days of the seminar. $200 for walk-ins. To receive a $10
discount for the live onsite program, register online http://www.okbar.org/members/CLE. Continental breakfast and networking lunch included in registration.
You may also register for the live webcast (pricing varies).
Vol. 87 — No. 9 — 3/26/2016
679
Zephyr Teachout
Associate Professor of Law, Fordham University
CITIZENS UNITED:
ARE AMERICA’S DEMOCRATIC TRADITIONS AT RISK OF CORRUPTION?
A panel discussion moderated by OBA President Garvin Isaacs
Including: Zephyr Teachout, Professor, Fordham Law School, Live via Skype
The Honorable Keith Rapp, Court of Civil Appeals
The Honorable Roger Stuart, Oklahoma County District Court
Renee DeMoss, GableGotwals, former OBA President, Tulsa
Andrew C. Spiropoulos, Professor, Oklahoma City University School of Law
Rick Tepker, Professor, University of Oklahoma School of Law
APRIL 1, 2016, 9 A.M. - NOON
Oklahoma City University School of Law, OKC
3/0
$120 for early-bird registrations received with payment at least four, full business days prior
to the first seminar date; $135 (one day) for registrations received with payment within four,
full business days of the first seminar date. Walk-in registration $150. To receive a $10 discount for the live onsite program, register online http://www.okbar.org/members/CLE. Continental breakfast is included with registration.
Registrants will also receive a copy of Zephyr Teachout’s book, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United.

Volume 87 No. 9 March 26, 2016

Transcription

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