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The Oklahoma Bar Journal
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FEDERAL PUBLIC DEFENDER
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POSITION ANNOUNCEMENT
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The Federal Public Defender for the Northern and Eastern Districts of Oklahoma is accepting
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federal defender organization operates under authority of the Criminal Justice Act, 18 U.S.C. §
3006A, to provide defense services in federal criminal cases and related matters in the federal
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practice and must be eligible for immediate admission to the Bar of the United States District
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the Tenth Circuit, and the United States Supreme Court.
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ability to work well in a team environment. The initial period of employment will be
probationary, subject to successful completion of a background check.
Salary and Benefits: This is a full-time position. Federal salary and benefits apply. Salary is
commensurate with experience and education. This position is subject to mandatory electronic
transfer (direct deposit) of net pay.
How to Apply: To be considered for this position, qualified persons may apply by submitting a
letter of interest, resume (with at least three personal and professional references), and a writing
sample to:
Julia L. O’Connell
Federal Public Defender
1 West 3rd Street, Suite 1225
Tulsa, OK 74103
Application materials may also be submitted by e-mail to: [email protected]
APPLICATIONS WILL BE ACCEPTED UNTIL POSITION IS FILLED.
The Federal Public Defender is an Equal Opportunity Employer.
124
The Oklahoma Bar Journal
Vol. 87 — No. 3 — 1/23/2016
Oklahoma Bar Association
table of
contents
Jan. 23, 2016 • Vol. 87 • No. 3
page
126
Index to Court Opinions
127
Opinions of Supreme Court
141
Applicants for February 2016 Oklahoma Bar Exam
143
Opinions of Court of Civil Appeals
159
Calendar of Events
160
Disposition of Cases Other Than by Publication
Vol. 87 — No. 3 — 1/23/2016
The Oklahoma Bar Journal
125
Index to Opinions of Supreme Court
2016 OK 1 IN RE INITIATIVE PETITION NO. 403, STATE QUESTION NO. 779, OCPA
IMPACT, INC., and DAVID BOND, Petitioners, v. SHAWN SHEEHAN, LINDA
REID, and MELVIN MORAN, Respondents. Case No. 114,425................................................... 1 2 7
2016 OK 2 In re: Amendment of Rule Seven (b) of the Rules Governing Admission to the
Practice of Law, 5 O.S.2011, ch. 1, app. 5. SCBD 6350.................................................................... 1 3 8
2016 OK 3 IN THE MATTER OF THE REINSTATEMENT OF: KIM KAKISH, TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF
ATTORNEYS SCBD No. 6276............................................................................................................ 1 3 9
Index to Opinions of Court of Civil Appeals
2016 OK CIV APP 1 APPROVED FOR PUBLICATION BY THE SUPREME COURT THE
STATE OF OKLAHOMA ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff/
Appellant/Counter-Appellee, vs. CALIBER DEVELOPMENT COMPANY, LLC,
Defendant/Appellee/Counter-Appellant THE OKLAHOMA COUNTY TREASURER, Defendant. Case No. 111,896....................................................................................................... 1 4 3
2016 OK CIV APP 2 TAMMY OBER, Plaintiff/Appellee, vs. STATE OF OKLAHOMA, ex
rel. DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant. Case No. 111,990................ 1 5 0
2016 OK CIV APP 3 STATE OF OKLAHOMA, DEPARTMENT OF HUMAN SERVICES,
CHILD SUPPORT SERVICES, Plaintiff, vs. LAFE C. COLDWATER, Defendant/
Appellant, and ERICA ANN BUTLER, Appellee. Case No. 113,103........................................... 1 5 4
126
The Oklahoma Bar Journal
Vol. 87 — No. 3 — 1/23/2016
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 1
IN RE INITIATIVE PETITION NO. 403,
STATE QUESTION NO. 779, OCPA
IMPACT, INC., and DAVID BOND,
Petitioners, v. SHAWN SHEEHAN, LINDA
REID, and MELVIN MORAN, Respondents.
Case No. 114,425. January 12, 2016
ORIGINAL PROCEEDING TO
DETERMINE THE VALIDITY OF
INITIATIVE PETITION NO. 403
¶0 This is an original proceeding to determine the legal sufficiency of Initiative Petition
No. 403. The petition seeks to amend the Oklahoma Constitution by adding a new Article
13-C which would create the Oklahoma Education Improvement Fund. Opponents filed
this protest alleging the petition is unconstitutional because it violates the one general subject rule of Art. 24, § 1 of the Oklahoma Constitution. Upon review, we hold that Initiative
Petition No. 403 does not violate the one general subject rule of Art. 24, § 1 and is legally
sufficient for submission to the people of Oklahoma.
INITIATIVE PETITION NO. 403 IS
LEGALLY SUFFICIENT FOR SUBMISSION
TO THE PEOPLE OF OKLAHOMA.
Robert G. McCampbell and Travis V. Jett, Fellers Snider, P.C., Oklahoma City, OK, for Petitioners
D. Kent Meyers, Harvey D. Ellis, Melanie Wilson Rughani, and Paige Masters, Crowe &
Dunlevy, P.C., Oklahoma City, OK, for Respondents
Patrice Douglas and Kathryn Evans Boren,
Latham, Wagner, Steele & Lehman, P.C., Oklahoma City, OK, for Amici Curiae Oklahoma
Municipal League and Dewey Bartlett
Ryan C. Owens and Hayley B. Jones, Oklahoma
City, OK, for Amicus Curiae the Cooperative
Council for Oklahoma School Administration,
Inc.
Vol. 87 — No. 3 — 1/23/2016
Julie L. Miller, Oklahoma City, OK, for Amicus
Curiae the Oklahoma State School Boards
Association
Richard B. Wilkinson, Oklahoma City, OK, for
Amicus Curiae the Oklahoma Education Association
PER CURIAM
Facts & Procedural History
¶1 On October 21, 2015, Respondents Shawn
Sheehan, Linda Reid, and Melvin Moran (Proponents) filed Initiative Petition No. 403 with
the Oklahoma Secretary of State. The petition
seeks to amend the Oklahoma Constitution by
adding a new Article 13-C. The proposed article creates the Oklahoma Education Improvement Fund, designed to provide for the
improvement of public education in Oklahoma
through an additional one-cent sales and use
tax.1 Funds generated by the one-cent tax
would be distributed to public school districts,
higher education institutions, career and technology centers, and early childhood education
providers for certain educational purposes
outlined in the proposed article. Additionally,
a percentage of the funds would be used to
provide a $5,000.00 pay raise to all public
school teachers. The proposed article delegates
oversight and auditing responsibilities to the
State Board of Equalization and requires monies allocated from the Fund to be used by the
Legislature to enhance and not supplant current public education appropriations.
¶2 On November 12, 2015, Petitioners OCPA,
Inc. and David Bond (Opponents) filed an
Application to Assume Original Jurisdiction in
this Court. Opponents raised a single constitutional challenge to the initiative measure, arguing the petition is unconstitutional because it
violates the one general subject rule of Art. 24,
§ 1 of the Oklahoma Constitution. After hearing arguments from the parties and upon consideration, we assume original jurisdiction and
hold that Initiative Petition No. 403 embraces
one general subject and does not violate Art.
24, § 1 of the Oklahoma Constitution. Initiative
Petition No. 403 is legally sufficient to submit
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127
to the voters of this state, and the proponents
of the petition may proceed with the remaining
statutory requirements.2
Standard of Review
¶3 “The first power reserved by the people is
the initiative . . . .” Okla. Const. Art. 5, § 2. With
that, comes “the power to propose laws and
amendments to the Constitution and to enact
or reject the same at the polls independent of
the Legislature, and also reserve power at their
own option to approve or reject at the polls any
act of the Legislature.” Okla. Const. Art. 5, § 1.
This Court is vested with original jurisdiction
to evaluate and determine the sufficiency of
proposed initiative petitions pursuant to 34
O.S. Supp. 2015 § 8.3 However, we have generally refused to declare a ballot initiative invalid
in advance of a vote of the people except where
there is a “clear or manifest” showing of
unconstitutionality. In re Initiative Petition No.
358, 1994 OK 27, ¶ 7, 870 P.2d 782, 785 (emphasis added). The power of the people “to institute change through the initiative process is a
fundamental characteristic of Oklahoma government.” In re Initiative Petition No. 360, 1994
OK 97, ¶ 9, 879 P.2d 810, 814. We have emphasized how vital the right of initiative is to the
people of Oklahoma and how diligently we
must protect this entitlement:
The right of the initiative is precious, and it
is one which this Court is zealous to preserve to the fullest measure of the spirit
and the letter of the law. Because the right
of the initiative is so precious, all doubt as
to the construction of pertinent provisions
is resolved in favor of the initiative. The
initiative power should not be crippled,
avoided, or denied by technical construction by the courts.
In re Initiative Petition No. 382, 2006 OK 45, ¶
3, 142 P.3d 400, 403 (internal citations omitted)
(emphasis added). Opponents bear the burden
of demonstrating the proposed initiative petition presented in this case clearly and manifestly violates the Oklahoma Constitution. In re
Initiative Petition No. 362, 1995 OK 77, ¶ 12,
899 P.2d 1145, 1151.
One General Subject
¶4 The sole challenge to the petition in this
case is under Art. 24, § 1, which provides:
No proposal for the amendment or alteration of this Constitution which is submit128
ted to the voters shall embrace more than
one general subject and the voters shall
vote separately for or against each proposal submitted; provided, however, that in
the submission of proposals for the amendment of this Constitution by articles,
which embrace one general subject, each
proposed article shall be deemed a single
proposal or proposition.
Okla. Const. Art. 24, § 1 (emphasis added). The
above-emphasized language was added to Art.
24, § 1 in 1952. In In re Initiative Petition No.
314, 1980 OK 174, ¶ 38, 625 P.2d 595, 600, this
Court held that the one general subject rule of
Art. 24, § 1 applies to an initiative petition.
Germaneness Test
¶5 In the case before us, proponents of the
petition seek to amend the Oklahoma Constitution by adding a new article — Article 13-C
— to create the Oklahoma Education Improvement Fund. In In re Initiative Petition No. 314,
1980 OK 174, 625 P.2d 595, proponents of an
initiative petition sought to change the alcohol
laws of this state by amending the existing
Article 27 of the Oklahoma Constitution to
allow for unrestricted franchising arrangements for brewers, on-premises consumption,
unlimited advertising, and the sale of liquor by
the drink by privately owned licensed onpremises outlets. In finding the petition violated the one general subject rule of Art. 24, § 1,
this Court advised that “[t]he changes sought
by the multifarious proposal could have been
effected either by submission of three separate
proposals or a submission amending, under
Art. 24, [§] 1, the entirety of Art. 27, as an
amendment by article, as was done in 1959
when prohibition was repealed and Art. 27 was
submitted and adopted by a vote of the people.” In re Initiative Petition No. 314, 1980 OK
174, ¶ 81, 625 P.2d at 608 (emphasis added).
¶6 Taking the Court’s advice, proponents, in
their second attempt at changing the liquor
laws of this state, again tendered an initiative
petition seeking to amend the Oklahoma Constitution. This time, however, the proponents
submitted the proposal as an amendment to the
Oklahoma Constitution by article. Notably, the
initiative petition proposed many of the same
substantive changes as the previously stricken
petition, including the sale of alcoholic beverages for on-premises consumption and the sale
of liquor by the drink by privately owned
licensed on-premises outlets. In addition, the
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Vol. 87 — No. 3 — 1/23/2016
proposal abolished the Alcoholic Beverage
Control Board and replaced it with a new Alcoholic Beverage Laws Enforcement Commission
to enforce the alcoholic beverage laws of the
state. Opponents of the petition again argued
the portion of the petition authorizing the Legislature to permit the sale of liquor by the drink
embraced a different and additional subject
matter. In re Initiative Petition No. 319, 1984
OK 23, ¶ 8, 682 P.2d 222, 223-224.
of authorized gaming, authorized the commission to collect gaming fees from each licensed
gaming facility operator, retaining the legislatively approved amount of its budget and initial operations cost, earmarked the remaining
receipts for specific computer-related educational purposes, local governments, and correctional institutions. Opponents challenged
the petition for, among other things, a violation
of the one general subject rule in Art. 24, § 1.
¶7 The Court rejected the argument and
stated: “In Re Initiative Petition No. 314, recognized that our constitution may be amended
by article under Article 24, Section 1, and that
such an amendment may cover changes which
would violate the single subject rule if not proposed in that format. Proponents have complied
with that procedure. While the amendment is
still required to relate to a single general subject,
our previous ruling indicates clearly that the
various changes need not meet the test which
was applied in Initiative Petition No. 314, and
which resulted in the invalidity of that proposal.” Id. ¶ 9, 682 P.2d at 224 (internal citations omitted) (emphasis added).
¶10 Rejecting the constitutional attack, the
Court reiterated that “when the proposed constitutional amendment is by a new article the test
for gauging multiplicity of subjects is whether
the changes proposed are all germane to a singular common subject and purpose or are
essentially unrelated to one another.” Id. ¶ 15,
927 P.2d at 566. The Court continued:
¶8 The Court then applied the following test:
‘[G]enerally provisions governing projects
so related as to constitute a single scheme
may be properly included within the same
amendment; and that matters germane to
the same general subject indicated in the
amendment’s title, or within the field of
legislation suggested thereby, may be
included therein. . . . ‘4
The Court held the provisions of the petition
contributed to the overall scheme of control of
the sale of alcoholic beverages embodied in the
proposed article. The petition was found legally sufficient to submit to a vote of the people.
¶9 This Court affirmed the amendment by
article approach in 1996 in an opinion authored
by Justice Opala. In In re Initiative Petition No.
363, 1996 OK 122, 927 P.2d 558, proponents of
an initiative petition sought to amend the
Oklahoma Constitution by adding a new article which provided for the creation of four
locations immediately eligible for authorized
gaming, prohibited casino gaming in counties
not specifically authorized for a period of five
years, created a seven-member state gaming
commission with authority to provide regulation and enforcement of casino gambling, provided criminal penalties for violation of gaming
laws, legalized obligations incurred in the course
Vol. 87 — No. 3 — 1/23/2016
In In re Init. Pet. 319, the court also observed
that Rupe included within the single-subject standard components which were incidents, ‘necessary or convenient or tending
to the accomplishment of one general
design notwithstanding other purposes
that the main design may be thereby subserved.’ Rupe accorded a liberal rather than
a narrow or technical construction to the
single-subject requirement.5
Applying this test, the Court upheld the measure finding that “the elements of taxability,
distribution of gaming revenue and of civil
liability for debts incurred in gaming to be
authorized are germane to the general subject of
legalization and regulation of authorized casino gambling.”6
¶11 In the case before us, the proposed Article 13-C consists of seven sections. Section 1
creates the Oklahoma Education Improvement
Fund. Section 2 levies an additional 1% sales
and use tax with “[a]ll revenue from the sales
tax and the use tax levied” being used to fund
the Oklahoma Education Improvement Fund
created by Section 1. Section 3 directs the percentage distribution of the monies in the Fund
for certain educational purposes including,
common education (69.5%), higher education
(19.25%), career and technology education
(3.25%), and early childhood education (8%).
Section 4 provides for a $5,000 increase in
teacher salaries to be funded with 86.33% of
the common education distribution under Section 3.7 Section 5 directs that funds “expended
or distributed from the Oklahoma Education
Improvement Fund shall supplement, and
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129
shall not be used to supplant or replace, other
state funds” supporting education. Section 5
also directs the State Board of Equalization to
“examine and investigate appropriations from
the Fund each year,” and if it finds that education funding was supplanted by monies from
the Fund, the State Board of Equalization must
“specify the amount by which education funding was supplanted.” If education funding was
supplanted by monies from the Fund, Section 5
directs that “the Legislature shall not make any
appropriations for the ensuing fiscal year until
an appropriation in that amount is made to
replenish the Oklahoma Education Improvement Fund.” Section 6 provides the effective
date of the proposed amendment, and Section
7 provides a severability clause.8
¶12 The subject of the proposed amendment
is the Oklahoma Education Improvement
Fund. Each section of the proposed amendment is “’reasonably interrelated and interdependent, forming an interlocking “package”’”
deemed necessary by the initiatives’ drafters to
assure effective public education improvement
funding.9 Proponents drafted the petition with
each component being necessary to the accomplishment of one general design.10 The proposal stands or falls as a whole.11 For example, if a
voter agrees that the Oklahoma Education
Improvement Fund should be created but does
not agree that an additional one cent sales tax
is the appropriate funding mechanism to do so,
then the voter must choose whether to approve
the proposal based on such considerations. If,
on the other hand, a voter agrees that an additional one cent sales tax is the appropriate
funding mechanism to fund the Oklahoma
Education Improvement Fund, but does not
agree with the percentage distribution of the
monies as set forth in Section 3, then again, the
voter must choose whether to approve the proposal based on such considerations. Such
choices are the consequence of the voting process rather than any constitutional defect in the
proposal.12 The proposed initiative petition
clearly constitutes a single scheme to be presented to voters, and each section is germane to
creating and implementing the Oklahoma
Education Improvement Fund.
Purpose of the One General Subject Rule
¶13 The purpose of the one general subject
rule, as this Court has repeatedly held, is “’to
prevent imposition upon or deceit of the public
by the presentation of a proposal which is misleading or the effect of which is concealed or not
130
readily understandable,’” and to “’afford the voters freedom of choice and prevent “logrolling,”
or the combining of unrelated proposals in order to
secure approval by appealing to different groups
which will support the entire proposal in order
to secure some part of it although perhaps disapproving of other parts.” In re Initiative Petition
No. 314, 1980 OK 174, ¶ 59, 625 P.2d 595, 603
(quoting Fugina v. Donovan, 104 N.W.2d 911,
914 (Minn. 1960)) (emphasis added).
¶14 In the case before us, opponents argue
the proposal is misleading because voters will
“think they are voting for teacher pay raises,
when in fact, they are voting to significantly
change our state’s fiscal structure to give the
Board of Equalization control over their local
Representative and Senators deciding on education appropriations.”13 This argument ignores
the powers already conferred to the State
Board of Equalization in the Oklahoma Constitution. Article 10, § 21 of the Oklahoma Constitution provides that the duty of the State Board
of Equalization “shall be to adjust and equalize
the valuation of real and personal property of
the several counties in the state, and it shall
perform such other duties as may be prescribed
by law . . . .” Okla. Const. Art. 10, § 21(A)
(emphasis added). In Art. 10, § 23, entitled
“Balanced Budget,” Section 23(1) states that
“prior to the convening of each regular session
of the Legislature, the State Board of Equalization shall certify the total amount of revenue
which accrued during the last preceding fiscal
year to the General Revenue Fund and to each
Special Revenue Fund appropriated directly by
the Legislature, and shall further certify amounts
available for appropriation . . . of the revenues to
be received by the state under the laws in effect
at the time such determination is made, for the
next ensuing fiscal year . . . .” Article 10, § 23(2)
goes on to provide that “[t]he Legislature shall
not pass or enact any bill, act or measure making
an appropriation of money for any purpose until
such certification is made and filed. . . .” All
appropriations made in excess of such certification shall be “null and void” unless the Legislature follows certain specific procedures to adjust
the certification amount.
¶15 In Art. 10, § 41, entitled the Oklahoma
Education Lottery Trust Fund, the State Board
of Equalization acts “to ensure that the funds
from the trust fund are used to enhance and
not supplant funding for education,” and
“examine[s] and investigate[s] appropriations
from the trust fund each year.” Art. 10, § 41(D).
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Vol. 87 — No. 3 — 1/23/2016
The State Board of Equalization “shall issue a
finding and report which shall state whether
appropriations from the trust fund were used
to enhance or supplant education funding. If
the State Board of Equalization finds that education funding was supplanted by funds from
the trust fund, the Board shall specify the
amount by which education funding was supplanted. In this event, the Legislature shall not
make any appropriations for the ensuing fiscal
year until an appropriation in that amount is
made to replenish the trust fund.” Id.
¶16 In Section 1521 of Title 69, which creates
the Rebuilding Oklahoma Access and Driver
Safety Fund, the State Board of Equalization
also acts to “ensure that the funds from the
ROADS Fund are used to enhance and not supplant state funding for the Department of
Transportation,” and “the State Board of Equalization shall examine and investigate expenditures from the fund each year.” 69 O.S. Supp.
2013 § 1521(E). If the State Board of Equalization finds that funds were used to supplant
state funding for the Department of Transportation, the Board “shall specify the amount by
which such funding was supplanted,” and in
this event, “the Legislature shall not make any
appropriations for the ensuing fiscal year until
an appropriation in that amount is made to
replenish state funding for the Department of
Transportation.”14
¶17 The State Board of Equalization already
examines the General Revenue Fund and each
Special Revenue Fund and certifies to the Legislature the amounts available for appropriation in the upcoming fiscal year. The State
Board of Equalization audits the Lottery Education Fund in the same way it would audit the
Education Improvement Fund. The Lottery
Education Fund was proposed and passed by
the people in 2004. For more than ten years
now, since the implementation of the Fund and
the yearly auditing process by the State Board
of Equalization, there has been no legal challenge. Thus, any suggestion by Petitioners at
oral argument that the implementation of the
Education Improvement Fund would negatively affect the legislative appropriations process or usurp legislative fiscal policy-making is
entirely speculative at this point.15 We decline,
at the pre-election stage, to declare the proposal unconstitutional on nothing more than
speculation.16
¶18 Opponents also argue that including
funding for higher education and common
Vol. 87 — No. 3 — 1/23/2016
education in the same proposal constitutes logrolling because each is “established in separate
articles of the constitution.”17 We first note that
Art. 13 of the Oklahoma Constitution, entitled
“Education,” creates not just a common public
school system, but also the Board of Regents of
the University of Oklahoma. Title 70 of the
Oklahoma statutes includes acts governing
common education, career and technology
education, and higher education.18 Additionally, the Lottery Education Trust Fund delineates
specific educational purposes and programs
for which the funds can be used and does not
treat common and higher education as separate and distinct. The Lottery Education Trust
Fund includes appropriations for, among others: 1) K-12 public education “including but
not limited to compensation and benefits for
public school teachers and support employees”; 2) early childhood development programs; 3) tuition grants, loans and scholarships
for higher education; 4) construction of educational facilities for “elementary school districts,
independent school districts, the Oklahoma
State System of Higher Education, and career
and technology education”; and 5) “[e]ndowed
chairs for professors at institutions of higher
education operated by the Oklahoma State
System of Higher Education.”19
¶19 In In re Initiative Petition No. 363, the
Court defined logrolling in the context of initiative petitions as “the combining of unrelated
proposals.”20 In In re Initiative Petition No. 344,
1990 OK 75, 797 P.2d 326, proponents filed an
initiative petition, seeking to repeal Article VI
of the Oklahoma Constitution and replace it
with a new Article VI. Article VI defines the
executive branch of government. The proposed
changes were numerous and unrelated and
ranged from changing the method of selecting
the Lieutenant Governor to adding the requirement that the State Auditor examine the books
of school districts and provide uniform
accounting systems for school districts and
municipalities to repealing the constitutional
authorization for the Department of Mines.
Proponents challenged the constitutionality of
the petition, alleging it violated the one general
subject rule of Art 24, § 1. The Court found the
topics were tenuously connected at best, and
“not so intertwined as to require that they be
adopted at the same time in order to preserve
the integrity of each section.” Id. ¶ 9, 797 P.2d
at 329. The Court held that “[c]learly the placing of sole authority with the Governor to
grant reprieves, commutation, and pardons is
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not dependent on the method of electing the
Lt. Governor or a cabinet form of government.” Id. ¶ 9, 797 P.2d at 329.
¶20 In In re Initiative Petition No. 342, 1990
OK 76, 797 P.2d 331, proponents presented an
initiative petition, which sought to repeal and
re-enact Article IX of the Oklahoma Constitution. That Article dealt with the Oklahoma
Corporation Commission. The petition covered multiple loosely related subjects including
removal of the prohibition against foreign corporations consolidating with domestic corporations, removal of the provision abrogating
the fellow-servant doctrine rule, removal of the
requirement that mining and public service
corporations arbitrate labor disputes, and
removal of the prohibition against bank or
trust companies holding or controlling stock in
another bank or trust company. The Court
found the petition violated the one general
subject rule of Okla. Const. Art. 24, § 1 and
held: “There are numerous subjects covered by
the Petition ranging from financial institutions
holding stock in another financial institution to
the power of eminent domain of foreign corporations to the fellow-servant doctrine rule. The
only connection that these topics have to each
other is that they all tangentially relate to the
general subject of corporations. Otherwise,
they are unrelated.” Id. ¶ 8, 797 P.2d at 333.
¶21 The proposal in the case before us is
markedly different from the proposals struck
down in Initiative Petition No. 344 and Initiative Petition No. 342 which included completely unrelated proposals. The proposal in this
case does not amount to logrolling and constitutes a single scheme to be presented to voters.
Conclusion
¶22 Our inquiry today is limited to whether
or not Initiative Petition No. 403 violates the
one general subject rule of Art. 24, § 1. We hold
that it does not and find it is legally sufficient
for submission to the people of Oklahoma.
INITIATIVE PETITION NO. 403 IS
LEGALLY SUFFICIENT FOR SUBMISSION
TO THE PEOPLE OF OKLAHOMA.
¶23 Reif, C.J., Combs, V.C.J., Edmondson,
Gurich, JJ., Mitchell, Thornbrugh, SJ., concur.
¶24 Kauger, Winchester, Taylor (by separate
writing with whom Kauger, Winchester, JJ.,
join), JJ., dissent.
¶25 Watt, Colbert, JJ., disqualified.
132
1. The proposed ballot title reads:
This measure adds a new Article to the Oklahoma Constitution.
The new article creates a limited purpose fund to improve public
education. It levies a one cent sales and use tax to provide revenue for the fund. It allocates funds for specific institutions and
purposes related to the improvement of public education, such
as increasing teacher salaries, addressing teacher shortages, programs to improve reading in early grades, to increase high school
graduation rates, college and career readiness, and college
affordability, improving higher education and career technology
education, and increasing access to voluntary early learning
opportunities for low-income and at-risk children. It requires an
annual audit of school districts’ use of monies from the fund. It
prohibits school districts’ use of these funds for administrative
salaries. It provides for an increase in teacher salaries. It requires
that monies from the fund not supplant or replace other education funding. The Article takes effects [sic] on the July 1 after its
passage.
Initiative Petition No. 403, Proposed Ballot Title.
2. Sections 8 and 9 of Title 34 were amended by the Legislature
effective April 28, 2015. Notably, the ballot title is now to be filed separately from the petition and is not “part of or printed on the petition.”
34 O.S. Supp. 2015 § 8(A). Additionally, the notice published pursuant
to § 8(B) no longer includes the text of the ballot title. According to §
8(H), after the signed copies of a petition are timely filed with the Secretary of State, the Secretary of State “shall file a copy of the proponent’s ballot title with the Attorney General,” which then triggers the
ballot title review process in §§ 9 and 10.
Section 8(I) now requires that the Secretary of State publish a
“notice of the filing of the signed petitions and the apparent sufficiency
or insufficiency thereof, and shall also publish the text of the ballot title as
reviewed and approved, or if applicable, as rewritten by the Attorney General
pursuant to the provisions of subsection D of Section 9 of this title” and
notice that any citizen may file an objection to the count or the ballot
title within 10 business days after publication.
The record before this Court and the Secretary of State’s website
indicate the only notice published regarding this petition was the
notice of the filing of the petition alerting citizens of this state of their
right to challenge the constitutionality of the petition within ten business days of the notice pursuant to § 8(B). Petitioners’ App. B. The
ballot title has presumably not yet been reviewed by the Attorney General or published as per §§ 8(I) and 9(D), and no challenge to the ballot
title is before the Court at this time. Additionally, the Petitioners have not
raised a challenge to the gist of the proposition in this proceeding.
3. The procedures for presenting an initiative petition are outlined
in 34 O.S. Supp. 2015 §§ 1-27.
4. Id. ¶ 10, 682 P.2d at 224 (citing Rupe v. Shaw, 1955 OK 223, 286
P.2d 1094, and In Re Initiative Petition No. 271, 1962 OK 178, 373 P.2d
1017).
5. Id. n.34, 927 P.2d at 566 n.34 (citing Rupe, 1955 OK 223, 286 P.2d
1094, and In Re Initiative Petition No. 271, 1962 OK 178, 373 P.2d 1017)
(internal citations omitted) (emphasis added). The germaneness test
under the one general subject rule of Art. 24, § 1 is “more liberal” than
the germaneness test applied to legislative acts under the single-subject rule of Art. 5, § 57. See id.
6. Id. ¶ 16, 927 P.2d at 566.
7. We again note the only challenge brought by the opponents of
the petition was under the one general subject rule of Art. 24, § 1.
Opponents did not challenge the teacher pay raise portion of the proposal as a special law. Regardless, this Court has held that the special
law provision of Art. 5, § 59 “applies to the ‘Legislative Department’”
and not to a constitutional amendment approved by the people. Eastern Okla. Bldg. & Const. Trades Council v. Pitts, 2003 OK 113, ¶ 13, 82
P.3d 1008, 1013.
8. See Petitioners’ App. A.
9. In re Initiative Petition No. 314, 1980 OK 174, ¶ 67, 625 P.2d at
605 (citing Amador Valley Joint Union High Sch. Dist. v. State Bd. of
Equalization, 583 P.2d 1281 (Cal. 1978)).
10. In re Initiative Petition No. 363, 1996 OK 122 n.33, 927 P.2d at
566 n.33.
11. In re Initiative Petition No. 314, 1980 OK 174, ¶ 75, 625 P.2d at
603.
12. In re Initiative Petition No. 348, 1991 OK 110, ¶ 13, 820 P.2d 772,
777.
13. Brief in Support of Application to Assume Original Jurisdiction
at 12.
14. Id. See also 70 O.S. §§ 2601-2605; 62 O.S. § 34.87.
15. In In re Initiative Petition No. 348, 1991 OK 110, 820 P.2d 772,
opponents challenged the legality of a petition that sought to amend
Art. V, § 33 of the Oklahoma Constitution to require all revenue raising
bills to be approved by a majority of the people at the next general
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Vol. 87 — No. 3 — 1/23/2016
election unless such revenue bill was approved by a three-fourths vote
of both houses. Opponents argued that the proposal would severely limit
the Legislature’s ability to raise new revenue. Opponents challenged the
proposal under the one general subject rule and argued that the proposal violated the rule because it would affect more than one subject.
The Court found the proposal did not violate the one general subject rule and that although the amendment, if adopted, could affect
other articles of the constitution, such was insufficient reason for the
Court to deny the people of Oklahoma the right to vote on the petition,
“though indeed, the [p]etition’s effect may result in subsequent challenges.” Id. ¶ 12, 820 P.2d at 776. Notably, in that case, the opponents
also argued that the proposal would destroy the entire design for
financing state governments as organized in the Oklahoma Constitution. The Court again rejected the argument, finding that “the people
have the sovereign right under the reserved power to institute constitutional tax reform by way of the initiative process,” and that “specific
legislative grants of power will always be subject to the reserved
power of the people under Article V, § 1.” Id. ¶ 16, 820 P.2d at 778. The
Court also noted it was “mere conjecture” as to whether the petition
would destroy the state financing scheme, and declined to invalidate
the petition on such speculation. Id. ¶ 18, 820 P.2d at 778.
16. In In re Initiative Petition No. 358, 1994 OK 27, 870 P.2d 782,
opponents challenged an initiative petition that proposed enactment of
the Oklahoma Lottery Act. In that case, the opponents argued the
proposal would unconstitutionally delegate the Legislature’s fiscal
policy-making power because the Lottery Authority had the authority
to create the formula for determining gross revenues and net revenues.
The Court rejected the opponents’ argument and found that the proposal specified the percentage of gross lottery revenues to be paid into
the state treasury and the purposes for which the revenues could be
appropriated by the Legislature. Thus, the language of the proposed
measure authorizing the Lottery Authority to determine “net revenues” did not clearly contravene Art. IV, § 1 or Art. V, § 55 of the Oklahoma Constitution. The Court specifically held it would “not interpret
the contents of an initiative proposal, nor speculate implementation, at
th[e] pre-election stage.” Id. ¶ 12, 870 P.2d at 787.
17. Brief in Support of Application to Assume Original Jurisdiction
at 9.
18. See, e.g., School Code of 1971 in 70 O.S. §§ 1-101-27-103; Career
and Technology Education in 70 O.S. §§ 14-101-14-112; Junior CollegesConstruction and Maintenance in 70 O.S. §§ 2201-2212; Higher Education Code in 70 O.S. §§ 3101-8005.
19. Okla. Const. Art. 10, § 41(B).
20. 1996 OK 122, ¶ 15, 927 P.2d at 566.
Taylor, J., dissenting:
¶1 I respectfully dissent to the Court’s decision finding no constitutional infirmity with
Initiative Petition No. 403. The Court is presented with a clear example of logrolling —
what Article XXIV, Section 1 of the Oklahoma
Constitution intends to prevent. An extremely
popular one-time pay raise for a group of state
employees paired with other less popular tangentially related questions is repulsive to this
constitutional provision. The plain language of
Article XXIV, Section 1 requires each proposition
in an initiative petition to be of one general subject. This proposed constitutional article to provide a pay raise for a small group of state
employees, paired with an increase in funding
for common education and higher education, a
1% sales tax, and the enhancement of the Board
of Equalization’s power is a perfect example of
what Article XXIV, Section 1 was written to prevent. Even if logrolling were not the determinative issue, the proposed initiative petition
impacts several other constitutional provisions
Vol. 87 — No. 3 — 1/23/2016
in which allocations for salaries are delegated to
the Legislature, and only the Legislature.1
¶2 The Respondents admitted during oral
argument that amending our founding document to give a pay raise to one group of state
employees is unprecedented. Unprecedented
may undersell this point. Stop and think about
this proposal for a moment — our Constitution
will be amended to grant a onetime pay raise
to a group of state employees. Is constitutional
amendment to become the new vehicle for pay
raises for state employees going into the future?
It is evident that this unprecedented constitutional pay raise is being proposed because it is
the popular subject in this collection of independent and unrelated provisions. Without the
pay raise provision, Initiative Petition No. 403
would likely stand no chance with the voters.
¶3 It is the duty of this Court to follow the
rule of law and the Oklahoma Constitution.
This case is not simply an approval or disapproval of increasing pay for common education teachers of this state. If that were the case,
it would sail through these challenges and be
adopted by the people. I would send Initiative
Petition No. 403 back to the Respondents and
require the questions of a public-school-teacher pay raise, an increase in the state sales tax,
the marriage of common education and higher
education, and an increase in the Board of
Equalization’s powers to be presented to the
voters as separate conditional propositions.
¶4 Three impediments exist as Initiative Petition No. 403 is written currently. Initiative Petition No. 403 violates Article XXIV, Section 1 of
the Oklahoma Constitution, violates Oklahoma’s separation of powers as set out in the
Constitution, and deceives the voters by failing
to identify each crucial change to be voted on
in the gist. We address each impediment in
turn.
I. Initiative Petition No. 403 Violates
Article XXIV, Section 1
¶5 Amendment by initiative petition is a
long-held right to Oklahomans, enshrined in
the Constitution. See Okla. Const. art. V, § 1;
Okla. Const. art. XXIV, §§ 1, 3. “We cannot
undervalue the importance of the constitutional right, under the Oklahoma Constitution,
to initiative and referendum.” In re Initiative
Petition No. 349, State Question No. 642, 1992 OK
122, ¶ 19, 838 P.2d 1, 8. But the Constitution has
imposed upon this Court the duty and responsibility to “’see the petitions for change actually
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reflect the voters[‘] intent and comply with the
requirements set out in both the Constitution
and statutes.’” Id. ¶ 14, 838 P.2d at 7 (quoting In
re Initiative Petition No. 344, State Question No.
630, 1990 OK 75, ¶16, 797 P.2d 326, 330). I
believe the Court must begin with Article
XXIV, Section 1 of the Oklahoma Constitution:
No proposal for the amendment or alteration of this Constitution which is submitted to the voters shall embrace more than
one general subject and the voters shall
vote separately for or against each proposal submitted; provided, however, that in
the submission of proposals for the amendment of this Constitution by articles, which
embrace one general subject, each proposed article shall be deemed a single proposal or proposition.
Okla. Const. art. XXIV, § 1.
a. The controlling test
¶6 Following Article XXIV, Section 1, a proposed amendment or article to the Constitution must embrace only one general subject.
Our case law has clarified the test the Court
must apply:
“If the different changes contained in the
proposed amendment all cover matters
necessary to be dealt with in some manner,
in order that the Constitution, as amended,
shall constitute a consistent and workable
whole on the general topic embraced in
that part which is amended, and if, logically speaking, they should stand or fall as
a whole, then there is but one amendment
submitted. But if it is not such that the
voter supporting [the amendment] would
reasonably be expected to support the
principle of the others, then there are in
reality two or more amendments to be submitted, and the proposed amendment falls
within the constitutional prohibition.”
In re Initiative Petition No. 344, 1990 OK 75, ¶ 8,
797 P.2d at 329 (quoting In re Initiative Petition
No. 314, State Question No. 550, 1980 OK 174, ¶
62, 625 P.2d 595, 603-04). Put another way, “[v]
oters should not have to adopt measures of
which they really disapprove in order to
embrace propositions that they favor . . . [or
that] are not so related that a voter supporting
one of the proposed measures can reasonably
be expected to support all of the changes.” In re
Initiative Petition No. 342, State Question No. 628,
1990 OK 76, ¶ 10, 797 P.2d 331, 333. This con134
trolling test applies to initiative petitions proposing new articles, repealing and replacing
articles, and proposing amendments. The plain
language of Article XXIV, Section 1 makes no
distinction.
¶7 The Court fails to tackle our case law as it
is written, and it instead picks and chooses the
law it follows. The Court has long since backed
away from the test announced in Rupe v. Shaw,
1955 OK 223, 286 P.2d 1094, as the controlling
test for initiative petitions by article — doing
so multiple times. See In re Initiative Petition No.
344, 1990 OK 75, 797 P.2d at 330; see also In re
Initiative Petition No. 342, 1990 OK 76, ¶ 4, 797
P.2d at 333 (following In re Initiative Petition No.
314, 1980 OK 174, 625 P.2d at 595, not Rupe); In
re Initiative Petition No. 382, 2006 OK 45, ¶¶
13-14, 142 P.3d 400, 407-08 (failing to recognize
the “germaneness” test and instead applying
the plain language of Article XXIV, Section 1,
“one general subject”). The Court does not take
these cases into account, instead relying on older
cases from the early 1980s and a 1996 opinion
which I read as an aberration from our “one general subject” jurisprudence. The “germaneness”
test the majority applies grossly ignores the
plain language of Article XXIV, Section 1. In re
Initiative Petition No. 344 and In re Initiative Petition No. 342 follow the plain language of Article
XXIV, Section 1. It is an approach I whole-heartedly endorse and believe this Court would be
wise in applying today.
b. Application of the controlling test
¶8 Initiative Petition No. 403 embraces a
multitude of distinct subjects; three subjects
alone violate the “general subject rule” of
Article XXIV, Section 1: common education,
higher education, and new power to the Board
of Equalization. The Court must be on guard
for logrolling in initiative petitions because to
force voters to adopt a provision they do not
support in order to adopt one they do is the
very purpose of Article XXIV, Section 1. The
Court’s opinion sums it up perfectly:
For example, if a voter agrees that the Oklahoma Education Improvement Fund should
be created but does not agree that an additional one-cent sales tax is appropriate funding mechanism to do so, then the voter must
choose whether to approve the proposition
based on such considerations.
Majority Opinion, ¶12. While the Court
attempts to argue that the choice is left to the
voter, its argument perfectly encapsulates the
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Vol. 87 — No. 3 — 1/23/2016
very ill Article XXIV, Section 1 seeks to prevent:
logrolling.
compelled to accept a cabinet form of government . . . .” Id. ¶ 11, 797 P.2d at 329-30.
¶9 The Respondents argue that the one general subject of Initiative Petition No. 403 is
Oklahoma Education Improvement. One
immediate problem with this general subject is
that is marries common education and higher
education. Oklahoma has not before treated
the two as similar subjects. Since the founding
of our state, we have separated common education and higher education and treated them as
“entirely different subjects, the one to the University, the other to the public or common
schools of the state.” Regents of Univ. of Okla. v.
Bd. of Educ., 1908 OK 67, ¶ 6, 95 P. 429, 430 (internal quotation marks omitted). The Oklahoma
Constitution establishes common education in
Article XIII. Okla. Const. art. XIII. Oklahoma
voters set out higher education in new articles,
XIIIA and XIIIB, in the Oklahoma Constitution
in the 1940s. Okla. Const. art. XIIIA; Okla.
Const. art. XIIIB. The Board of Education and
the Superintendent of Public Instruction supervise common education. Okla. Const. art. XIII,
§ 5. The Board of Regents supervise higher
education. Okla. Const. art. XIIIB, § 1.
¶12 In In re Initiative Petition No. 342, the
Court again examined an initiative petition by
article, a proposal that would rework the Corporation Commission, Corporation Commission
improvement. 1990 OK 76, ¶¶ 7-8 , 797 P.2d at
333. The Court cut through the proposed general subject, identifying the “only connection
that these topics have to each other is that they
all tangentially relate to the general subject of
corporations.”2 Id. The Court must look beyond
the general subject proposed to determine if
the topics the initiative petition seeks to alter
are truly one general subject. Simply because
proponents could identify a common trait did
not satisfy the constitutional test. And here, the
proponents of Initiative Petition No. 403 seek
to put forward the general subject of Oklahoma Education Improvement. But digging into
the topics in the initiative petition (pay raise
for common education teachers, college prep
funding, career tech funding, higher education
funding, increase in sales tax, and additional
power to the Board of Equalization), it becomes
clear that voters would be forced to adopt measures of which they readily disapprove in
order to embrace the popular teacher pay-raise
proposal. A proposition argued by the Court in
its opinion nonetheless. I refuse to buy into the
Respondent’s overly broad subject as each
topic is only tangentially related to Oklahoma
Education Improvement.
¶10 I take issue with Petitioner’s neatly spun
buzzwords, Oklahoma Education Improvement, as the subject is merely a catchall for the
myriad of topics in the petition before the
Court. One need only look to two of the Court’s
previous cases to understand why. We have
twice recently addressed initiative petitions
that seek to improve state government. The first
is In re Initiative Petition No. 344, 1990 OK 75,
797 P.2d 326, a case that can be easily summarized as executive branch improvement. The second is In re Initiative Petition No. 342, 1990 OK
76, 797 P.2d 331, a case whose general subject
could be identified as Corporation Commission
improvement.
¶11 In In re Initiative Petition No. 344, the
Court examined an initiative petition by article, one that proposed to rework the executive
branch or executive branch improvement. 1990
OK 75, ¶ 9, 797 P.2d at 329 (proposing to
address “the method of the election of the Lt.
Governor . . . to changing the Executive Branch
to cabinet form of government, to repealing the
constitutional authority for certain boards”).
The Court rejected the proposed general subject, executive branch improvement, writing that
the petition “simply does not give the voters a
choice. Voters who may be in favor of changing
the method of electing a Lt. Government are
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II. Initiative Petition No. 403 Violates
Oklahoma’s Separation of Powers
¶13 Initiative Petition No. 403 contains within it an enhancement of power for the Board of
Equalization. The Board of Equalization is
tasked with ensuring “that the monies from the
Oklahoma Education Improvement Fund are
used to enhance and not supplant funding for
education,” allowing the Board to “examine
and investigate appropriations from the Fund
each year.” Initiative Petition No. 403, § 5(c).
The enforcement mechanism in Section 5 is
where the constitutional impediment raises its
head.
If the State Board of Equalization finds
that education funding was supplanted by
monies from the Oklahoma Education
Improvement Fund, the State Board of
Equalization shall specify the amount by
which education funding was supplanted.
In this event the Legislature shall not make
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any appropriations for the ensuing fiscal
year until an appropriation in that amount
is made to replenish the Oklahoma Education Improvement Fund.
Id. The Board of Equalization can effectively
shut down the Oklahoma Legislature. Counsel
for Respondents directly admitted as much in
oral argument.
¶14 The Oklahoma Constitution provides
that “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.” Okla. Const. art. IV, § 1. The Legislature
has the constitutional power to make appropriations for the support of common schools of
the state and appropriations to higher education. Okla. Const. art. XII, § 1a; Okla. Const. art.
XIIIA, § 3. The State Board of Equalization, on
the other hand, is an executive board. Okla.
Const. art. X, § 21.
¶15 The Court examined a similar issue in
Fent v. Contingency Review Board, 2007 OK 27, ¶
1, 163 P.3d 512, 516. In Fent, the Legislature created a three-person mandatory review board,
that included two legislative members, and
gave it oversight and the ability to approve or
deny the use of appropriated funds as expenditures over a specific state fund. Id. ¶ 14, 163
P.3d at 524. The Court held that the review
board created continued legislative control
over enacted appropriations which offended
the constitutional concept of separated powers
and was a usurpation of executive power. Id. ¶
15, 163 P.3d at 523. The Court noted that “[p]assing an appropriation blll is clearly a legislative
lawmaking function while the administration of
appropriated funds is a purely executive task.”
Id. ¶ 12, 163 P.3d at 521. In the present case, Initiative Petition 403 would give an executive
board control over appropriations, a clear legislative function, in violation of the concept of
separation of powers as outlined in the Oklahoma Constitution. And as Initiative Petition
No. 403 contains no repeal of the legislative
power being taken by the Board of Equalization, the Initiative Petition is in direct conflict
with Article V of the Oklahoma Constitution,
the power of the legislative branch.
¶16 Despite Respondents’ argument to the
contrary, this Court can examine any constitutional infirmity in an initiative petition.3 Part of
the Court’s constitutional duty is to examine
these constitutional concerns in initiative peti136
tions to “prevent the holding of a costly and
unnecessary election.” Initiative Petition No.
349, 1992 OK 122, ¶ 18, 838 P.2d at 8. It is the
responsibility of this Court to examine all possible constitutional infirmities of the petition to
prevent the people from voting on an unconstitutional amendment. See id. While a similar
mechanism exists for the Board of Equalization
to oversee the Legislature’s use of the lottery
funds, that system has never been challenged.
And to close our eyes to a constitutional infirmity simply because no problem or challenge
has arisen with the Board of Equalization’s
oversight of the lottery-funds process would
be a dereliction of this Court’s constitutional
duty. The question is now squarely before the
Court to decide.
¶17 The usurpation of legislative power by
the Board of Equalization is glaring in Initiative Petition No. 403. Unfortunately, the Court
turns a blind eye to these constitutional infirmities by relying on In re Initiative Petition No.
358, State Question No. 658, 1994 OK 27, 870
P.2d 782. This support is unpersuasive as the
Court in In re Initiative Petition No. 358 made the
same mistake — it chose to punt on a question of
constitutionality: “Although it is conceivable
that the implementation of the proposed measure may result in an unconstitutional usurpation of the legislative power of appropriation,
we refrain from further consideration of this
argument because implementation cannot be
discerned from the face of the proposed measure.” 1994 OK 27, ¶ 9, 870 P.2d 782, 786. The
Court is once again punting on a clear constitutional issue, the violation of the separation of
powers between the executive and legislative
branches of government. This issue should not
be left for another day, but should be addressed
here and now.
¶18 In a future budget year, where failure of
revenue will require the Legislature to make
cuts across the board to all agencies, the Legislature will cut common education and higher
education at its own peril due to the powers
now given to the Board of Equalization. If the
Board of Equalization does not approve of the
Legislature’s decisions on education appropriations, then the Board of Equalization can shut
down the entire legislative branch of government until it follows the command of an executive branch entity. We may very well see the
Legislature grind to a halt as the Board of
Equalization test-drives its new power.
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¶19 There is a reason that a state employee
pay raise through constitutional amendment
has never been utilized before. The Oklahoma
Constitution sets forth precise appropriations
procedures for the Legislature to utilize, and
the Legislature only. This proposed provision
thwarts a core function of the Legislature and
clashes with other constitutional provisions
which control the appropriations process. See
Okla. Const. art. 5, §§ 55-56;4 Okla. Const. art.
13A, § 3;5 Okla. Const. art. 13, § 1A.6 In essence,
Initiative Petition No. 403 contains internal
logrolling and causes external logrolling of
other relevant constitutional provisions.
III. Initiative Petition No. 403 Violates Title
34, Section 3 of the Oklahoma Statutes
¶20 The final problem with Initiative Petition
No. 403 is with the gist or proposed ballot title.7
Title 34, Section 3 of the Oklahoma Statutes
requires initiative petitions to contain a “simple statement of the gist of the proposition,”
and in no more than 200 words (for the ballot
title), explain the changes in the proposition.
The Court must examine the gist with the purpose of Title 34, Section 3 in mind: “to prevent
deceit and fraud.” In re Initiative Petition No.
342, 1990 OK 76, ¶ 11, 797 P.2d at 333; see 34
O.S. Supp. 2015, § 9(B)(1). “[N]oncompliance is
fatal.” In re Initiative Petition No. 342, 1990 OK
76, ¶ 11, 797 P.2d at 333.
¶21 This Court can examine the gist before
the petition has even been put before potential
signatories as the Legislature “has deemed the
gist a necessary part of the pamphlet and we
are not at liberty to ignore that requirement.”
In re Initiative Petition No. 384, State Question
No. 731, 2007 OK 48, ¶ 13, 164 P.3d 125, 130. In
In re Initiative Petition No. 384, the Court held
that the petition in question did not satisfy the
statutory requirement for the gist before the
petition was put before voters. Id. The initiative
petition at issue added a new section to the
Oklahoma Statutes on schools that required
65% of operational expenditures to be used for
“classroom instructional expenditures.” Id. ¶ 1,
164 P.3d at 126. The gist did not state the legislative sanctions imposed on “non-conforming
schools and the possibility of waivers by the
state superintendent.” Id. ¶ 11, 164 P.3d at 129.
Because this information was not identified to
voters, “a potential signatory, looking only at
the gist, did not have sufficient information to
make an informed decision about the true
nature of the proposed legislation.” Id. ¶ 12,
164 P.3d at 130.
Vol. 87 — No. 3 — 1/23/2016
¶22 As currently written, the gist does not
alert the voters to each change in Initiative
Petition No. 403. The biggest problem is the
gist’s description of the Board of Equalization’s
power: Initiative Petition No. 403 “requires
that monies from the fund not supplant or
replace other education funding.” Initiative
Petition No. 403, Gist. The new powers given
to the Board of Equalization have already been
highlighted and clearly are not addressed by
the one minor sentence in the gist. The gist is
easily deceitful to the voters in this respect and
must fail. Just as in In re Initiative Petition No.
384, a potential signatory or voter would not
have sufficient information to make an informed decision about the true nature of Initiative Petition No. 403.
¶23 The gist also lumps common and higher
education into what it calls “public education.”
Public education, or public schools, has long
referred to common education, not college. See
Regents of Univ. of Okla., 1908 OK 67, ¶ 6, 95 P.
at 430. Voters would not be able to discern how
Initiative Petition No. 403 marries common
education and higher education for the first
time in this state. The gist is dead on arrival.
Along with the unconstitutionality of Initiative
Petition No. 403, the gist or proposed ballot
title deceives potential signatories and potential voters. I would send Initiative Petition No.
403 back to the Respondents as the gist does
not satisfy the statutory requirements set out
by the Legislature.
CONCLUSION
¶24 Public support for a public-school-teacher pay raise is very high in this state. I could
not agree more that it is a noble goal and purpose. Yet this Court has an obligation to follow
the rule of law and the Constitution. And when
such a well-supported measure is used as a
Trojan horse to add provisions into the Constitution which are only tangentially related to
public-school-teacher pay raises, the Constitution and the Court become the gatekeepers.
The voters should decide these issues, but they
should not be forced to support public-schoolteacher raises along with an increase in the
sales tax, the marriage of common education
and higher education, and an increase in the
power of the Board of Equalization all in one
vote. I respectfully dissent.
I have been authorized to state that Justices
Kauger and Winchester join in this writing.
The Oklahoma Bar Journal
137
1. Appropriations are exclusive to the legislature and as a fundamental principle, may not be delegated to any executive or administrative officer. To do so would violate not only Article V, Section 55 of the
Oklahoma Constitution, but also Article I, Section 4, “by which the
government is divided into three separate and distinct departments.”
Wells v. Childers, 1945 OK 365, ¶ 36, 165 P.2d 371, 376. “’The Legislature,
unless prohibited by the Constitution, has a right to declare fiscal policy.’” In re State Bldg. Bonds Comm’n, 1950 OK 45, ¶ 10, 214 P.2d 934, 937
(quoting Ward v. Bailey, 127 S.W.2d 272, 278 (Ark. 1939)).
2. If the Court’s jurisprudence followed Rupe and In re Initiative
Petition No. 319 as the Court proposes, in the executive branch and Corporation Commission improvement cases, a tangentially related subject
would suffice. The Court used those words, tangential relation, when
noting a concession by the challenging party in In re Initiative Petition
No. 363, State Question No. 672, 1996 OK 122, ¶ 14, 927 P.2d 558, 566,
that the subjects were of one general subject. It is the only time in our
jurisprudence those words are used to relate topics to “one general
subject”; in our other case law, tangential relation is used to indicate
subjects which do not meet Article XXIV, Section 1’s requirement. I
believe the Court used the incorrect test in In re Initiative Petition No.
363, but the Court’s result was correct under the controlling test the
Court has long followed and I follow here.
3. It is also relevant to note that the Court has long ago dispensed
with the requirement that a challenge to an Initiative Petition cannot be
heard until it has been put before the voters; a rule first announced in
Threadgill v. Cross, 109 P. 558, 562 (Okla. 1910), that “the constitutionality of an initiative petition is not subject to review prior to its enactment by the voters.” Initiative Petition No. 349, 1992 OK 122, ¶ 26, 838
P.2d at 10. We cannot (and should not) go back to the Threadgill rule
and allow Oklahoma voters to believe that their “votes on matters of
intense public concern count, when this Court is already fully aware
that the proposed measure is subject to being struck down as unconstitutional.” Id. ¶ 32, 838 P.2d at 10.
4. Article V, Section 55 provides:
No money shall ever be paid out of the treasury of this State, nor
any of its funds, nor any of the funds under its management,
except in pursuance of an appropriation by law, nor unless such
payments be made within two and one-half years after the passage of such appropriation act, and every such law making a
new appropriation, or continuing or reviving an appropriation,
shall distinctly specify the sum appropriated and the object to
which it is to be applied, and it shall not be sufficient for such law
to refer to any other law to fix such sum.
Article V, Section 56 provides:
The general appropriation bill shall embrace nothing but appropriations for the expenses of the executive, legislative, and judicial departments of the State, and for interest on the public debt.
The salary of no officer or employee of the State, or any subdivision thereof, shall be increased in such bill, nor shall any appropriation be made therein for any such officer or employee, unless
his employment and the amount of his salary, shall have been
already provided for by law. All other appropriations shall be
made by separate bills, each embracing but one subject.
5. Article XIIIA, Section 3 provides:
The appropriations made by the Legislature for all such institutions shall be made in consolidated form without reference to
any particular institution and the Board of Regents herein created shall allocate to each institution according to its needs and
functions.
6. Article XIII, Section 1A provides:
The Legislature shall, by appropriate legislation, raise and
appropriate funds for the annual support of the common schools
of the State to the extent of forty-two ($42.00) dollars per capita
based on total state-wide enrollment for the preceding school
year. Such moneys shall be allocated to the various school districts in the manner and by a distributing agency to be designated by the Legislature; provided that nothing herein shall be
construed as limiting any particular school district to the per
capita amount specified herein, but the amount of state funds to
which any school district may be entitled shall be determined by
the distributing agency upon terms and conditions specified by
the Legislature, and provided further that such funds shall be in
addition to apportionments from the permanent school fund created by Article XI, Section 2, hereof.
7 The proposed ballot title is as follows:
This measure adds a new Article to the Oklahoma Constitution.
The new Article creates a limited purpose fund to improve public education. It levies a one cent sales and use tax to provide
revenue for the fund. It allocates funds for specific institutions
and purposes related to the improvement of public education,
such as increasing teacher salaries, addressing teacher shortages,
138
programs to improve reading in early grades, to increase high
school graduation rates, college and career readiness, and college
affordability, improving higher education and career and technology education, and increasing access to voluntary early learning opportunities for low-income and at-risk children. It requires
an annual audit of school districts’ use of monies from the fund.
It prohibits school districts’ use of these funds for administrative
salaries. It provides for an increase in teacher salaries. It requires
that monies from the fund not supplant or replace other education funding. The Article takes effects [sic] on the July 1 [sic] after
its passage.
Initiative Petition No. 403, Proposed Ballot Title. The gist of Initiative
Petition No. 403 is identical to the proposed ballot title with the exception of the last sentence of the proposed ballot title. The analysis therefore is the same. See In re Initiative Petition No. 384, State Question No.
731, 2007 OK 48, ¶ 7, 164 P.3d 125, 129.
2016 OK 2
In re: Amendment of Rule Seven (b) of the
Rules Governing Admission to the Practice
of Law, 5 O.S.2011, ch. 1, app. 5.
SCBD 6350. January 11, 2016
ORDER
¶1 Rule Seven (b) of the Rules Governing
Admission to the Practice of Law in the State of
Oklahoma is hereby amended as shown on the
attached document, effective immediately. The
Rule as amended is also attached.
¶2 The amended rule shall be codified as
Rule Seven of the Rules Governing Admission
to the Practice of Law in the State of Oklahoma,
5 O.S. Supp. 2015, Ch. 1, App. 5.
DONE BY ORDER OF THE SUPREME
COURT this 11th day of January, 2016.
/s/ John F. Reif
CHIEF JUSTICE
¶3 ALL JUSTICES CONCUR.
RULE SEVEN
Fees
The following non-refundable fees shall be
paid to the Board of Bar Examiners at the time
of filing of the application:
(a) Registration:
Regular................................... $125
Nunc Pro Tunc........................ $500
(b) By each applicant for admission upon
motion: the sum of $1,500 $2,000.
(c) By each applicant for admission by examination under Rule Four, §1:
FEBRUARY BAR EXAM
Application filed on or before:
The Oklahoma Bar Journal
1 September........................ $1,000
1 October............................. $1,050
Vol. 87 — No. 3 — 1/23/2016
1 November........................ $1,150
1 September........................ $1,000
1 October............................. $1,050
1 November........................ $1,150
JULY BAR EXAM
Application filed on or before:
JULY BAR EXAM
1 February........................... $1,000
1 March............................... $1,050
1 April.................................. $1,150
Application filed on or before:
(d) By each applicant for a Special Temporary
Permit under Rule Two, §5: the sum of
$750.
(e) By each applicant for admission by a Special Temporary Permit under Rule Two, §6:
the sum of $100.
(f) For each applicant for a Special Temporary Permit under Rule Two, §7, there will
not be any fee charged to the applicant.
(g) By each applicant for a Temporary Permit
under Rule Nine: $150.
(h) By each applicant for admission by examination other than those under subparagraph (c) hereof:
1 February........................... $1,000
1 March............................... $1,050
1 April.................................. $1,150
(d) By each applicant for a Special Temporary
Permit under Rule Two, §5: the sum of
$750.
(e) By each applicant for admission by a Special Temporary Permit under Rule Two,
§6: the sum of $100.
(f) For each applicant for a Special Temporary Permit under Rule Two, §7, there will
not be any fee charged to the applicant.
(g) By each applicant for a Temporary Permit
under Rule Nine: $150.
FEBRUARY BAR EXAM
(h) By each applicant for admission by examination other than those under subparagraph (c) hereof:
Application filed on or before:
FEBRUARY BAR EXAM
1 September........................ $300
1 October............................. $350
1 November........................ $450
Application filed on or before:
1 September........................ $300
1 October ............................ $350
1 November........................ $450
JULY BAR EXAM
Application filed on or before:
JULY BAR EXAM
1 February........................... $300
1 March............................... $350
1 April.................................. $450
Application filed on or before:
1 February........................... $300
1 March............................... $350
1 April.................................. $450
RULE SEVEN
Fees
2016 OK 3
The following non-refundable fees shall be
paid to the Board of Bar Examiners at the time
of filing of the application:
IN THE MATTER OF THE
REINSTATEMENT OF: KIM KAKISH, TO
MEMBERSHIP IN THE OKLAHOMA BAR
ASSOCIATION AND TO THE ROLL OF
ATTORNEYS
(a) Registration:
Regular................................... $125
Nunc Pro Tunc........................ $500
SCBD No. 6276. January 12, 2016
(b) By each applicant for admission upon
motion: the sum of $2,000.
(c) By each applicant for admission by examination under Rule Four, §1:
FEBRUARY BAR EXAM
Application filed on or before:
Vol. 87 — No. 3 — 1/23/2016
ORDER
¶1 The petitioner, Kim Kakish, was stricken
from the roll of attorneys in September 21, 2009,
for Mandatory Continuing Legal Education
noncompliance. The petitioner seeks reinstatement to the Oklahoma Bar Association by Petition for Reinstatement filed June 17, 2015. The
The Oklahoma Bar Journal
139
Trial Panel recommended in their report by
unanimous vote that reinstatement be granted.
Upon consideration of the matter, we find:
4. Petitioner possesses the competency and
learning in the law required for admission
to practice law in the State of Oklahoma.
1. Petitioner has met all the procedural requirements necessary for reinstatement in the
Oklahoma Bar Association as set out in Rule
11 of the Rules Governing Disciplinary Proceedings, 5 O.S. 2011, ch. 1, app. 1-A;
¶2 IT IS THEREFORE ORDERED that the
Petition for Reinstatement be granted.
2. Petitioner has established by clear and
convincing evidence that she possesses
the good moral character which entitles
her to be admitted to the Oklahoma Bar
Association;
3. Affidavits were presented showing that the
petitioner has not engaged in the unauthorized practice of law in the State of Oklahoma during the period of her resignation;
¶3 IT IS FURTHER ORDERED that Petitioner
shall pay the costs associated with this proceeding in the amount of $26.30.
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THIS 11th DAY OF
JANUARY, 2016.
/s/ John F. Reif
CHIEF JUSTICE
ALL JUSTICES CONCUR
NOTICE:
DESTRUCTION OF RECORDS
Pursuant to Court Order SCBD No. 3159, the Board of Bar Examiners
will destroy the admission applications of persons admitted to practice in
Oklahoma after 3 years from date of admission.
Those persons admitted to practice during 2011 who desire to obtain
their original application may do so by submitting a written request and
$25 processing fee. Bar exam scores are not included. Requests must be
received by February 27, 2016.
Please include your name, OBA number, mailing address, date of
admission, and daytime phone in the written request. Enclose a check for
$25, payable to Oklahoma Board of Bar Examiners.
Mail to: Oklahoma Board of Bar Examiners, PO Box 53036, Oklahoma
City, OK 73152.
140
The Oklahoma Bar Journal
Vol. 87 — No. 3 — 1/23/2016
BOARD OF BAR EXAMINERS
Applicants for February 2016
Oklahoma Bar Exam
T
he Oklahoma Rules of Professional Conduct impose on each member of the bar the duty to aid
in guarding against the admission of candidates unfit or unqualified because of deficiency in
either moral character or education. To aid in that duty, the following is a list of applicants for
the bar examination to be given Feb. 23-24, 2016.
The Board of Bar Examiners requests that members examine this list and bring to the board’s
attention in a signed letter any information which might influence the board in considering the
moral character and fitness to practice of any applicant for admission. Send correspondence to
Cheryl Beatty, Administrative Director, Oklahoma Board of Bar Examiners, P.O. Box 53036,
Oklahoma City, OK 73152.
EDMOND
Haleigh Ann Collins
Kylie Paige Cooper
Sean Marcus Dobkins
Matthew David Eidson
Rebecca Audrine Mickey
Jericah Jenee Selby
NORMAN
Sean Phillip Chesley
Heather Marie Cook
Travis James Couch
Tiffani Dawn Dragg
Bradford A Hillman
Caroline Elizabeth Jane Hunt
Ge’Andra Denise Johnson
Monica Michelle Kuykendall
Jennifer Lauren Murphy
Jason Marshell Temple
Devon Paul Walke
Sean Ryan Webb
Summer Wesley
Edward William Wunch IV
OKLAHOMA CITY
Alia Rula Al-Assaf
Sheema Hossaini Anvar
April Arnesen
Russell Don Bedard
Vol. 87 — No. 3 — 1/23/2016
Steven Andrew Berklacy II
Jared Ian Boren
Travis Walter Brown
Graham Harms Chapman
Neil Barrett Cooley
Dallas Lauren Coplin
Clayton Michael Darby
Jenna Rae Davis
Jesus Dario Elizondo
Andre Valentim Farinha
Kristin Nicole Fisher
Christopher Wallis Foshee
Evan Jordan Frey
Barrett Ford Fuller
Nikki LaShawn Godwin
Allison Jane Hauck
Virginia Lynn Hefner
Kendra Lane Howard
Clarence Joe Hutchison
Steven Carl O’Dell Ivanoski
Jasmine Denise Lashae Johnson
Meagan Marie Kania
Anakaren Aguilar Kennedye
Evan William King
Jared A. King
Soddee Raymone Knight
Meghan Julia LeFrancois
Noelle Cherie Moorad
The Oklahoma Bar Journal
Douglas Alexander Palmer
Amy Catherine Pearsons
Kristen Annette Prater
Allison Paige Roso
Geoffrey Wayne Seay
Pierce Waid Winters
Austin Joseph Young
Ashley Erin Zamudio
TULSA
Ross Ryan Alexander
Yu Cai
Anne Field Daniel
Joshua Stephen Donaldson
William Zane Duncan
Micah Joseph Felton
Lindsey Windauer Fine
Timothy Andrew Franco
Damon Lee Freeman
John Austin Gladd
Maria Elena Gonzalez
Kayla Janae Grant
Hayley Anne Hartman
Matthew Thomas Helberg
Madison Nicole Holder
Maryann Margaret Hon
Eran Andrew McGuire
Andrew Michael McMahon
141
Cathleen Whitaker McMahon
Ariel Nicole Parry
Lia Renee Rottman
Donald Patrick Stephens
Meltem Karla Tankut
Miles Grayden Taylor
Clark W. Wheeler
Richard James Wilson
OTHER OKLAHOMA
CITIES AND TOWNS
Mary Jordan Berglund, Bixby
Shondra Beth Brumbelow-Neal,
Moore
David Aaron Bruner,
Broken Arrow
Darlene Mayre Carroll,
Nichols Hills
Steven Chance Clinkenbeard,
Fort Gibson
Kayla Elizabeth DeWitt, Calera
Jessica Tennille Drymon,
Pawnee
Amber Celeste Duncan, Antlers
Taylor Renee Edwards,
Collinsville
George Randall Eisworth,
Warr Acres
Robert Edward Epps III,
Choctaw
Marianela Estrella Schwabe,
Broken Arrow
Kevin Christopher Firth,
Owasso
Ericka Carmen Burey Fisher,
Yukon
Westley Wayne Franklin, Jenks
Stephanie Kay Fryar, Newalla
Andrew Ross Giddens II, Jenks
Andrew Stephen Goforth,
Sapulpa
Justin Lee Hall, Jenks
Jeremy Kyle Hamby, Tahlequah
David Marshall Hammer,
Shawnee
Krystle LeJoyce Hampton,
Sawyer
Heather Dawn Healey, Ardmore
142
Julie Elizabeth Huse, Catoosa
Jonathan Michael Irwin,
Choctaw
Sheri Marie Johnson, Yukon
Joy Dawn Jones, Miami
Yvonne Denise Jones, Newcastle
Caitlan Whitney Kemether,
The Village
Lauren Ashley Kitchens,
Bethany
Katrina Margaret Matousek,
Hennessey
William Charles Maxcey,
McAlester
Cole McMahan, Altus
Bryan Ross Means, Lawton
Howard Tremayne Morrow,
Enid
Justin Wade Mosteller,
Broken Arrow
Eric Scott Nickel, Broken Arrow
Jordan Lee Pace, Stillwater
Michael Clinton Pierson, Kiowa
Alexandra Elizabeth Pratt,
Broken Arrow
Joshua L. Pyron, Seminole
Joshua Brian Romano, Moore
Chynna Gaylene Scruggs,
Moore
Gessica Danielle Sewell, Ada
John Shelby Shelton, Perry
Rachel Nicole Sibila, Wayne
Kevin Woodward Stump,
Cushing
Andrew Todd Swann, Moore
Stephen Robert Taylor, Durant
Rachael Kathleen Want,
Broken Arrow
Clifford Allan Wright Jr., Vian
Melissa Lynn York, Ada
OUT OF STATE
Bryan Lewis Alkire,
Lexington, MO
Lisa Marie Bazzano Loader,
Montgomery, TX
Thomas Chase Diethrich,
Lubbock, TX
The Oklahoma Bar Journal
Sara Ann Dupree,
Pointblank, TX
Frances Cassandra Ekwerekwu,
Arlington, TX
Karl Thomas Fisher,
Muenster, TX
Kaylie Sue Fogle, Marengo, IA
Edward Fonseca,
Kansas City, MO
Jessika Ilene Groban,
Abilene, TX
Michael Sean Hollman,
Houston, TX
Andrew Tyler Hudgens,
Mansfield, AR
Zachery Jordan Kahn, Paris, TX
Carson Andrew Klingenberg,
Saint Louis, MO
Chase Hamilton Miller,
Memphis, TN
Bradley Major Mitchell,
Columbia, MO
Kevin Thomas O’Shields,
Arlington, TX
Oishy Reza, Madison, AL
Elizabeth Rebecca Rumley,
Fayetteville, AR
Joel Stephen Schachar,
Dallas, TX
Rebecca Lyn Sher, Lafayette, CO
Christopher Douglas Skelton,
Russellville, AR
Christopher Jeffrey Snyder,
Yorba Linda, CA
Steven Eugene Stafford,
Pearland, TX
Lacey Dawn Stevenson,
Fouke, AR
Laura Ruth Talbert, Clovis, NM
Stephen Wayne Tencleve,
Scranton, AR
Michael A. Whiting,
Grapevine, TX
Clarence Eugene Wilson Jr.,
Houston, TX
Daniel Bryant Woolston,
Scottsdale, AZ
Vol. 87 — No. 3 — 1/23/2016
Court of Civil Appeals Opinions
2016 OK CIV APP 1
BACKGROUND
APPROVED FOR PUBLICATION BY THE
SUPREME COURT
¶2 In April of 2005, Caliber bought 640 acres
of land in northwest Oklahoma City abutting
Highway 74. Caliber filed and obtained approval for a planned unit development (PUD)
of 225 acres of its property nearest the highway, 125 acres of which could be developed for
commercial purposes. In November of 2007,
the Department filed a petition pursuant to its
power of eminent domain to take a portion of
Caliber’s property located next to Highway 74
in order to complete a highway expansion
project. The petition described two tracts of
land, parcel 17 and parcel 18, and two associated easements totaling 25.15 acres of Caliber’s
property (the Property). Together, parcels 17
and 18 are approximately one mile in length
and contain all of Caliber’s property adjacent
to the existing highway as well as two corners
at highway intersections on either side of Caliber’s property. Commissioners were appointed, who determined that the just compensation
due Caliber was $1,351,250.00. The Department paid this amount on April 23, 2008, but
both parties filed a demand for jury trial. The
case was tried to a jury on April 8 and 9 of
2013. Caliber’s two expert witnesses testified
the Property was worth $3,960,000 and
$2,806,000 respectively. The Department’s
expert witness testified the Property was worth
$595,000. The jury returned a verdict in favor
of Caliber in the amount of $2,670,351.00. The
Department’s appeal seeks to reverse that
judgment and a subsequently entered judgment awarding Caliber costs and attorney fees
in the amount of $376,526.97.
THE STATE OF OKLAHOMA ex rel.
DEPARTMENT OF TRANSPORTATION,
Plaintiff/Appellant/Counter-Appellee, vs.
CALIBER DEVELOPMENT COMPANY,
LLC, Defendant/Appellee/CounterAppellant THE OKLAHOMA COUNTY
TREASURER, Defendant.
Case No. 111,896. July 9, 2015
APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE BARBARA G. SWINTON,
TRIAL JUDGE
AFFIRMED
Kelly F. Monaghan, Lori Gilliard, HOLLOWAY
& MONAGHAN, Tulsa, Oklahoma, for Plaintiff/Appellant
Dennis R. Box, David M. Box, Michael D.
O’Neal, WILLIAMS, BOX, FORSHEE & BULLARD, P.C., Oklahoma City, Oklahoma, for
Defendant/Appellee Caliber Development
Company, LLC
JOHN F. FISCHER, PRESIDING JUDGE:
¶1 This appeal results from a condemnation
proceeding prosecuted by the Department of
Transportation pursuant to its power of eminent
domain to take property owned by Caliber
Development Company, LLC, for the purpose of
widening a highway. The principal issue in this
appeal concerns the proper method for determining just compensation in that eminent
domain proceeding. The Department contends
the district court erred in several evidentiary
rulings by not permitting its expert witness to
testify regarding his valuation method based
on its contention that no valuable highway
frontage had been taken from Caliber because
new frontage was created when the highway
was widened. Because we hold that this method is unconstitutional, we affirm the district
court’s evidentiary rulings, and, therefore, the
judgment in favor of Caliber.
Vol. 87 — No. 3 — 1/23/2016
STANDARD OF REVIEW
¶3 The standards relevant to appellate review
of the issues raised in this appeal were recently
stated by the Supreme Court:
A condemnation proceeding is a special
proceeding for the taking of private property for public use and must be carried out
in accordance with legislatively-proscribed
[sic] procedure. On appeal in eminent
domain proceedings, the verdict of the jury
may be set aside only when it manifestly
appears that it is unjust and not supported
The Oklahoma Bar Journal
143
by any competent evidence. An appellate
court’s duty is to ensure that there is
“competent evidence reasonably tending
to support the verdict of the jury and no
prejudicial errors are shown in the trial
court’s instructions to the jury or on legal
questions presented during trial.”
The trial court is vested with wide discretion in determining what information it
receives in a condemnation proceeding.
See, e.g., State ex rel. Dep’t of Transp. v. Little,
2004 OK 74, ¶ 11, 100 P.3d 707, 712 (evaluation of property value left largely to discretion of trial court). Any “competent
evidence of matters, not merely speculative, which would be considered by a
prospective vendor or purchaser, or which
tend to enhance or depreciate the value of
the property, is admissible.” The “admissibility of evidence of value in condemnation
cases is more largely within the trial court’s
discretion than is the determination of other
issues, so that error predicated upon the
exclusion of certain evidence will not be sustained except in cases of manifest error.”
State ex rel. Dep’t of Transp. v. Lamar Adver. of
Oklahoma, Inc., 2014 OK 47, ¶¶ 8-9, 335 P.3d
771, 774 (citations omitted).
¶4 The amount of the district court’s attorney
fee award is reviewed for abuse of discretion.
Spencer v. Oklahoma Gas & Elec. Co., 2007 OK 76,
¶ 13, 171 P.3d 890, 895. “An abuse of discretion
occurs when a decision is based on an erroneous conclusion of law or where there is no
rational basis in evidence for the ruling.” Id.
(emphasis omitted).
ANALYSIS
¶5 The Department asserts five assignments
of error in this appeal.
I. Valuation Method
¶6 The essence of the Department’s argument is that the district court erred in excluding part of the testimony of one of its expert
witnesses, Rick Carlile. Specifically, the Department contends that Carlile was improperly prevented from fully testifying regarding the
appraisal method he used to value the Property.
This argument takes two forms: (1) the district
court erred in excluding Carlile’s “slide-back”
appraisal theory, and (2) the district court erred
in otherwise unfairly limiting the scope of Car144
lile’s testimony regarding the value of the “larger parcel” from which the Property was taken.1
A. The “Slide-back” Valuation
¶7 During pretrial discovery, Caliber determined that Carlile’s opinion of the value of the
property was based on the theory that the
Department’s highway expansion did not
“take” the landowner’s valuable highway
frontage or corners because new frontage and
corners would exist after the expansion; the
previous frontage and corners would merely
“slide-back” to a new location. As a result, Carlile’s opinion was based on his valuation of the
“backland,” a part of the property owned by
Caliber within which the property taken was
located but having a uniform value independent of any increased value resulting from its
location adjacent to the highway. Caliber filed
a motion in limine seeking to exclude this evidence. The district court conducted a hearing
but reserved ruling on the motion until trial.
During Carlile’s direct examination, Caliber
renewed its objection, which the district court
sustained.
¶8 The Department argues that the district
court’s exclusion of Carlile’s opinion based on
his slide-back or backland appraisal theory
was fundamental error. The Department acknowledges that this is an issue of first impression but contends the district court’s ruling is
contrary to the holding in Bauman v. Ross, 167
U.S. 548, 17 S. Ct. 966 (1896). The Department
particularly relies on the following passage:
If, for example, by the widening of a street
the part which lies next the street, being the
most valuable part of the land, is taken for
the public use, and what was before in the
rear becomes the front part, and upon a
wider street, and thereby of greater value
than the whole was before, it is neither just
in itself, nor required by the constitution,
that the owner should be entitled both to
receive the full value of the part taken, considered as front land, and to retain the
increase in value of the back land, which has
been made front land by the same taking.
Id. at 574-75, 17 S. Ct. at 976-77. The Department’s Bauman argument is not persuasive.
The legal principle enunciated in Bauman,
167 U.S. at 574-75, 17 S. Ct. at 976-77, and
restated in U.S. v. Sponenbarger, 308 U.S.
256, 266-67, 60 S. Ct. 225, 229 (1939), was
grounded on a finding that the govern-
The Oklahoma Bar Journal
Vol. 87 — No. 3 — 1/23/2016
ment had inflicted only “slight damage” on
the property allegedly taken, and had “in
substance take[n] nothing from the landowner.” Id.
City of Van Buren, Ark. v. United States, 697 F.2d
1058, 1062 (Fed. Cir. 1983). There is no contention in this case that the Department’s taking of
25.15 acres of Caliber’s property constituted
“slight damage.”
¶9 Further, Bauman addressed the constitutionality under the Fifth Amendment to the
United States Constitution of a statute permitting the enhanced value of property not taken
to be offset against the value of the property
taken in determining the compensation due a
landowner. Bauman held: “The constitution of
the United States contains no express prohibition against considering benefits in estimating
the just compensation to be paid for private
property taken for the public use . . . .” Bauman,
167 U.S. at 584, 17 S. Ct. at 980. The Oklahoma
Constitution is different in this regard: “Just
compensation shall mean the value of the
property taken, and in addition, any injury to
any part of the property not taken. Any special
and direct benefits to the part of the property
not taken may be offset only against any injury
to the property not taken.” Okla. Const. art. 2,
§ 24. Oklahoma’s “constitutional eminent
domain provisions . . . place more stringent
limitation on governmental eminent domain
power than the limitations imposed by the
Fifth Amendment of the U.S. Constitution.”
Board of Cnty. Comm’rs of Muskogee Cnty. v. Lowery, 2006 OK 31, ¶ 19, 136 P.3d 639, 651.
¶10 In addition, article 2, § 24 was amended
in 1990 to add the language previously cited.
Prior to the amendment, the method for determining just compensation had not been specified. The Supreme Court had previously
adopted the “before-and-after” method, which
determined just compensation as the difference
in the value of the property before and after the
taking. State ex rel. State Highway Comm’n v.
Anderson, 1950 OK 333, 226 P.2d 398. The 1990
amendment changed the law of just compensation. “Section 24, article 2 now requires just
compensation to be determined by taking the
value of the property taken and adding the
injury to the remaining property.” Williams
Natural Gas Co. v. Perkins, 1997 OK 72, ¶ 4, 952
P.2d 483, 486 (declaring unconstitutional the
Legislature’s 1991 attempt “to rejuvenate the
old before-and-after method of determining
just compensation . . . .”). The before-and-after
Vol. 87 — No. 3 — 1/23/2016
method of determining just compensation produces a valuation similar, if not identical, to the
slide-back method used by Carlile.
¶11 We hold that the slide-back appraisal
theory relied on by Carlile conflicts with the
constitutionally specified manner for determining just compensation, because it is not
limited to determining “the value of the property taken” and does not offset any benefits to
the landowner “only against any injury to the
property not taken.” Okla. Const. art. 2, § 24.
See also, Oklahoma Uniform Jury Instruction
25.3: “[Y]ou may offset an increase in the value
of the remaining property against any injury to
the remaining property, but you may not offset
an increase in the value of the remaining property against the value of the property that was
taken.” In accordance with article 2, § 24, Carlile’s opinion testimony regarding the value of
the property taken determined pursuant to the
slide-back method constituted incompetent
evidence. Therefore, the district court did not
err in excluding Carlile’s opinion based on this
valuation method.2
B. The “Larger Parcel” Valuation
¶12 The Department also argues that the district court improperly limited Carlile’s testimony about his valuation method independent
of his slide-back theory. Carlile testified that he
did not use the same appraisal method used by
Caliber’s expert witness Jim Hoyt. Hoyt testified that he was not a “larger parcel guy” and
that he had appraised the property actually
taken as land zoned for commercial development that was particularly valuable because it
was adjacent to a highway. Carlile testified that
he used the “larger parcel” method. He explained this was a four-step process.
¶13 First, an appraiser identifies a larger tract
of land within which the property taken is
located. In this case, Carlile selected 227.5 of
the 640 acres owned by Caliber as the “larger
parcel.” This larger parcel included the 25.15
acres of Caliber’s property adjacent to the
highway and taken by the Department for the
highway expansion.
¶14 Second, Carlile testified that although
commercial development of the Property was
permitted by the PUD, no development had
yet occurred, and the highest and best use for
Caliber’s property was to “hold for future
development.” In Carlile’s opinion, residential
development in the area was insufficient to support commercial development of the Property
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145
on the date of taking, and any such development
would have had to compete with substantial
commercial development existing nearby. Carlile discounted the fact that development in this
area was increasing. Carlile testified that he
identified ten properties within three miles of
the Caliber property that had not been developed and were of similar size to his larger parcel. Carlile looked at recent sales of those properties and concluded that $0.50 per square foot
was an appropriate and representative value
for the Caliber property in his larger parcel. In
reaching this opinion, Carlile also considered
the fact that, three years prior to the taking,
Caliber had purchased this property for $0.42
per square foot. Carlile multiplied his $0.50
number by the number of square feet taken
and determined that the value of the property
taken was $546,692.
¶15 Third, because only part of Caliber’s
property was taken, Carlile testified he was
required to determine if there was any damage
to the Caliber property that was not taken. Carlile concluded there was, and added $3,900 to
relocate three signs from the Property and
$8,500 in engineering fees necessary to revise
the existing PUD to account for the expanded
highway. Carlile testified that his initial damage assessment totaled $595,000.
¶16 According to Carlile, the final step in his
“larger parcel” approach required the subtraction of any benefit to the property not taken
resulting from improvements created by the
taking. Although recognizing the value of the
frontage and corners adjacent to the highway
would exceed $0.50 per square foot, Carlile
testified that any damage from taking the existing frontage was offset by the benefit created
when new frontage was created by the expansion of the highway. Carlile testified to this
opinion during his direct examination.
Q. Okay. And then did you determine the
value of the part acquired?
A. Yes, ma’am. To value the part acquired
we have a permanent acquisition of parcels 17 and 18 of 1,093,384 square feet.
Now, the State is not acquiring any
frontage. And the State is not acquiring
any corners. The corners and the frontage are going to still be there.
Following such testimony, counsel for Caliber
objected without stating a basis for the objection, and the district court sustained the objection without discussion. The jury was excused
146
for lunch, and a conference with the court followed. After hearing the arguments of counsel,
the trial judge granted Caliber’s motion in
limine, instructed Carlile that any further opinion testimony in the form of slide-back or backland valuations was not admissible and, if
provided, could result in the striking of his
entire testimony. For the reasons stated in Part
I(A) of this Opinion, we have affirmed the district court’s ruling regarding the admissibility
of Carlile’s slide-back opinion testimony.
¶17 Nonetheless, the Department argues that
the threat to strike Carlile’s testimony was
improper, unfairly limited the scope of his
admissible testimony and deprived the Department of a fair trial. However, Carlile was permitted, over Caliber’s objection, to fully discuss the difference between his “larger parcel”
approach and Hoyt’s “property taken”
approach. Carlile’s opinion testimony that the
Department had not taken any frontage or corners was not stricken after the district court
granted Caliber’s objection and motion in
limine. After the jury returned from lunch, the
district court did not comment on this testimony, did not instruct the jury to disregard it
or discuss the basis for its previous ruling.
Therefore, Carlile’s opinion that the Department did not take any frontage or corners
remained part of the evidence the jury could
consider. Doyle v. Douglas, 1964 OK 65, 390 P.2d
871 (party objecting to the district court’s evidentiary ruling has the burden of showing that
the ruling was prejudicial).
¶18 Finally, during cross-examination, Carlile
was questioned extensively about his larger parcel appraisal method, including his view that the
Property should not be valued as commercial
property. Carlile did concede that this view was
not shared by other expert witnesses, including
another expert who testified on behalf of the
Department. Carlile was also questioned twice
during cross-examination regarding his previous testimony that the Department had not
taken any frontage or corners. Carlile concluded
his testimony by stating that he would “stand
by” his previous testimony that frontage and
corners were not taken. Although discussed on
cross-examination, the subject was not addressed again during the Department’s redirect examination of Carlile. After Caliber
“opened the door” on this subject during Carlile’s cross-examination, it is possible that the
district court would have permitted additional
examination on this subject by the Department.
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Vol. 87 — No. 3 — 1/23/2016
See Conwill v. Eldridge, 1918 OK 705, ¶ 29, 177 P.
79, 85 (abrogated on other grounds) (party cannot exclude redirect examination of a witness
regarding matters discussed on cross-examination). However, the Department did not give
the district court that opportunity and, therefore, cannot complain that the district court
unfairly limited Carlile’s testimony. This Court
does not generally review issues the appealing
party fails to raise in the trial court. Bottles v.
State ex rel. Oklahoma State Bd. of Med. Licensure
and Supervision, 1996 OK 59, ¶ 4, 917 P.2d 471,
472. See also, Jackson v. Jackson, 2002 OK 25, n.12,
45 P.3d 418. The Department has thus demonstrated no error by the district court regarding
its evidentiary rulings concerning the scope of
Carlile’s testimony.
II. Denial of a Continuance
¶19 The Department next argues that the
district court erred when it refused to grant a
continuance because of an unanticipated health
condition of its designated trial counsel. The
Department’s motion was filed on March 21,
2013, and denied on March 28, ten days in
advance of the trial. The Department’s Senior
Trial Attorney then represented the Department during trial. The Department contends
that the ten days its Senior Trial Attorney had
to prepare was insufficient, prejudicing the
Department’s ability to effectively advocate its
position during the trial. The only specific
prejudice identified was the fact that the Department’s Senior Trial Attorney would have
had to work twenty hours a day to put in the
same amount of time devoted by Caliber’s
attorneys during such time period.
¶20 The Department cites Kinnear v. Dennis,
1924 OK 171, 223 P. 383, for the proposition that
a litigant has the right to be represented by
counsel of its own choosing. The Department
acknowledges that its Senior Trial Attorney
was “generally familiar” with the case, but
contends that she lacked the detailed knowledge possessed by its designated trial counsel.
Caliber points out that the Department’s Senior
Trial Attorney had over twenty years’ experience in this area while working for the Department and that she had been involved in this
particular matter since its inception. We agree
that “requiring [an] attorney’s law clerk to proceed with the trial is a denial of the right of the
party litigant to be represented by counsel of
his own choosing . . . .” Id. ¶ 0, 223 P. 383 (syllabus 2). However, unlike the situation in
Kinnear, Department’s Senior Trial Attorney
Vol. 87 — No. 3 — 1/23/2016
was not a law clerk who “knew nothing of the
facts or the law in the case.” Id. ¶ 3. Additionally, this record does not show “that the stricken attorney is the only person familiar with the
facts and the theory of the case represented by
him, and is the only one who has prepared to
try the case.” Id.
¶21 Further, the Department had already
sought and been granted one continuance of a
previous trial setting. A second continuance
would have delayed the trial and the determination of the just compensation due Caliber for
well more than five years. The Department’s
interest in having its preferred counsel try this
case must be balanced with Caliber’s interest
in receiving the just compensation it was due
as a result of the Department’s taking. “The
court may, for good cause shown, continue an
action at any stage of the proceedings upon
terms as may be just. . . .” 12 O.S.2011 § 667.
Good cause is not an issue. The issue is whether the denial of the continuance was unjust
considering the interests of both parties.
The prompt trial and determination of
cases in court is most commendable, but
when a trial is forced with such dispatch as
to result in depriving an interested party of
reasonable opportunity to prepare for trial
and secure witnesses, and the whole circumstances are such as to convince that
there was an abuse of judicial discretion, it
is the duty of this court to reverse.
State v. Duerkson, 1943 OK 6, ¶ 7, 132 P.2d 649,
650. The Department does not argue that five
years was an insufficient time to prepare for
trial or that the denial of its request for a continuance prevented it from presenting evidence or the testimony of its witnesses at the
April 2013 trial. The “refusal to grant a continuance is not reversible error unless an abuse of
discretion is shown.” Bookout v. Great Plains
Reg’l Med. Ctr., 1997 OK 38, ¶ 10, 939 P.2d 1131,
1134. The Department has failed to make the
required showing.
III. Admission of Exhibit 38
¶22 The Department argues that the district
court improperly admitted Caliber’s Exhibit
38. Exhibit 38 compared the comparable sales
used by Caliber’s expert Hoyt and the Department’s expert Carlile with traffic counts in the
locations near those sales. The only difference
between Exhibit 38 and other exhibits the
Department did not challenge is the addition
of the traffic count information. The Depart-
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147
ment argues that the district court erred in
admitting this exhibit because it was not listed
on the Pretrial Conference Order and was not
exchanged prior to trial as required by that
Order and related district court rules.
the evidence.” Accord Karriman v. Orthopedic
Clinic, 1973 OK 141, ¶ 21, 516 P.2d 534, 540. The
Department has made no showing that the
verdict in favor of Caliber would have been
different if Exhibit 38 had not been admitted.
¶23 Caliber argues the exhibit was prepared
after the first day of trial and in response to
questions asked by the Department’s counsel
during cross-examination of two of Caliber’s
expert witnesses. Caliber provided Exhibit 38
to the Department prior to the start of the second day of trial. Caliber concedes that it did
not comply with the terms of the Pretrial Conference Order regarding Exhibit 38 but argues
compliance was not required, because the
exhibit was a rebuttal exhibit and the traffic
count issue had been raised by the Department
during cross-examination. Whether compliance with the Pretrial Conference Order was or
was not required is the only potential error on
which the Department relies. “The court, in
every stage of action, must disregard any error
or defect in the . . . proceedings which does not
affect the substantial rights of the adverse
party; and no judgment shall be reversed or
affected by reason of such error or defect.” 12
O.S.2011 § 78; accord 12 O.S.2011 § 2104(A)
(“Error may not be predicated upon a ruling
which admits or excludes evidence unless a
substantial right of a party is affected.”).
IV. Jury Instructions
¶24 The Department also complains that
Exhibit 38 showed that traffic counts related to
the comparable sales used by Hoyt were more
similar to the traffic counts near the Property
than the traffic counts near the comparable
sales used by Carlile and, therefore, may have
“left the jury with the impression that Hoyt’s
comparable sales were more accurate based on
such representations.” If so, this evidence had
a “tendency to make the existence of any 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.2011
§ 2104 (defining relevant evidence). A party
objecting to the admission of evidence has the
“burden of showing that admitted evidence
was incompetent and also prejudicial.” Doyle,
1964 OK 65, ¶ 10, 390 P.2d at 874. The Department does not argue that Exhibit 38 was
“incompetent.” And, as this Court stated in
Hartford Ins. Co. v. Dyer, 2002 OK CIV APP 126,
¶ 17, 61 P.3d 912, 916: “The test of prejudice is
the likelihood the verdict would have been different had the error not occurred measured by
the usual criterion of the verdict’s support in
148
¶25 The Department also argues that the
district court erred in refusing to give two
requested instructions. Instruction No. 4, the
Department contends, is an accurate statement of the law and explains that the condemnation process requires it to pay the amount of
the Commissioners’ award before it can take
Caliber’s property. By not instructing the jury
on that fact and in light of Caliber’s argument
that they had been waiting five years for the
jury to determine the amount of just compensation, the Department contends the jury was
prejudiced and misled into believing that the
Department had not paid any compensation
prior to trial. The fact that the Department’s
requested instruction accurately states the law
is not the issue. The issue is whether the
instructions that were given fairly and accurately presented the applicable law. “Where
the instructions given fairly and reasonably
present the issues in the cause, it is not error to
refuse to submit requested instructions to the
jury.” Oklahoma Tax Comm’n v. Price, 1946 OK 85,
¶ 19, 167 P.2d 873, 876.
¶26 The Department acknowledges that the
amount of the Commissioners’ report is not
admissible. “[W]here a trial by jury is had in a
condemnation proceeding, the jury determines
the damages from the evidence submitted and
the award of the Commissioners is not competent evidence.” Oklahoma Turnpike Auth. v. Daniel, 1965 OK 7, ¶ 5, 398 P.2d 515, 517. Nonetheless, the Department concludes that the fact
that the commissioners made an award and
that the Department paid that award is competent and necessary to inform the jury they
should not take into account the value of the
time between the taking and trial. It is equally
plausible to speculate that if the jury is informed
that an award has been paid the jury would
infer that the amount of that award was more
than the Department’s trial evidence and less
than the landowner’s evidence regarding the
value of the property taken. In other words, the
jury would speculate about a fact the Supreme
Court has determined is not competent evidence. Id.
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Vol. 87 — No. 3 — 1/23/2016
¶27 As Caliber points out, the Department’s
concern about how the jury was instructed to
determine the amount of just compensation is
resolved completely and directly by Instruction No. 7:
You should give consideration to all facts
and circumstances which would be substantially weighed by a prospective purchaser in
determining its value. Your decision must be
based upon probabilities, not possibilities.
You must not consider any sentimental interest the owner has in the property. You may
not base your award on conjecture, speculation or guesswork. Your decision must
be based upon conditions known as of
April 23, 2008.
Even though it took five years for this case to
be tried, the jury was clearly instructed to
determine the amount of just compensation
“as of April 23, 2008.”
¶28 The Department also contends that the
district court erred in refusing to give its
requested Instruction No. 17, which would
have instructed the jury not to consider “the
amount of attorney fees, appraisal fees and
engineering fees and other costs which may
have been incurred by either party in this
action.” The Department’s expert witness, Carlile, testified that the damage to the part of
Caliber’s property that was not taken included
$8,500 in engineering fees necessary to revise
Caliber’s PUD after the Department’s highway
expansion had been completed. Instruction
No. 17 is not an accurate statement of the applicable law.3 The Department has demonstrated
no error by the district court in refusing to give
the Department’s requested instructions Nos. 4
and 17.
V. The Attorney Fee Award
¶29 Finally, the Department appeals the
amount of the district court’s award of attorney fees to Caliber. The Department complains
that the district court awarded fees “for over
1200 hours of attorney time by six different
attorneys.” Both parties called expert witnesses
during the hearing on Caliber’s motion. In
addition, Caliber submitted an exhibit containing 143 pages of detailed time records in support of its motion. Caliber’s expert witness
addressed factors required by Burk v. Oklahoma
City, 1979 OK 115, 598 P.2d 659, and specifically
pointed out that although six attorneys had
been involved in the case, some were involved
early and some later and, in general, only two
Vol. 87 — No. 3 — 1/23/2016
were working on the case at any particular
time. The Department also argued that the
time spent by legal assistants was excessive or
for non-recoverable secretarial time, but its
expert did not identify specific time entries or
the amount of time he deemed excessive. The
district court reviewed the relevant time entries
but “could not find any billings that reflect
anything other than a substitute for legal work,
which would have been billed at a higher rate
had it been done by the attorneys.”
¶30 Caliber’s evidence showed that part of
the reason it incurred the amount of fees it did
was because its attorneys had prepared for trial
only to have the trial continued at the Department’s request, and three depositions had to be
taken of the Department’s expert witness
because he was not fully prepared on the first
two occasions. Consequently, there was some
duplication of effort, but the duplication was
not caused by Caliber. Caliber’s expert testified
regarding the complexity of this case, due in
part to: (1) the Department’s delay in finalizing
its plans for the expansion of Highway 74; and
(2) the nature and intensity of the Department’s defense strategy. He also described the
skill and expertise required of and demonstrated by Caliber’s counsel in prosecuting this
case and the very favorable result obtained, a
judgment for twice the amount awarded by the
Commissioners.
¶31 At the conclusion of the hearing, the district court described various requests for attorney fees or expenses that would not be awarded
and then granted Caliber’s motion with respect
to most of the attorney fees, expenses and costs
requested. The reasonableness of an attorney
fee award “is peculiarly within the province of
a trial court and will not be disturbed on
appeal absent an abuse of discretion.” Security
Nat’l Bank of Enid v. Bonnett, 1980 OK CIV APP
63, ¶ 10, 623 P.2d 1061, 1064 (approved for publication by the Oklahoma Supreme Court) (citing Burk v. City of Oklahoma City, 1979 OK 115,
598 P.2d 659). The Department has failed to
show an abuse of the district court’s discretion
in determining the amount of attorney fees
awarded to Caliber.
¶32 Caliber filed a counter-appeal contending the district court erred in denying its
request for post-trial costs and attorney fees
incurred in the preparation and presentation of
its successful motion for attorney fees. However, Caliber failed to address this matter in its
appellate briefing and, therefore, appears to
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149
have abandoned its counter-appeal. Regardless,
issues not supported by argument and authority
in a party’s brief may be deemed waived. Walker
v. Walker, 1985 OK 2, ¶ 4, 695 P.2d 1, 1-2; Oklahoma Supreme Court Rule Rule 1.11(k)(1), 12
O.S. Supp. 2013, ch. 15, app. 1.
CONCLUSION
¶33 The district court did not err with respect
to its evidentiary rulings limiting the testimony
of the Department’s expert witness, because
the testimony excluded relied on a valuation
method that is not permitted by the Oklahoma
Constitution. Neither did the district court err
in refusing to grant the Department’s requested instructions Nos. 4 and 17. The requested
instructions either did not accurately state
applicable law or could have misled the jury to
consider incompetent evidence. In addition,
the Department has not shown that the jury
would have reached a different verdict had the
district court refused to admit Caliber’s Exhibit 38. Balancing the interests of both parties, the
district court’s refusal to grant a second continuance of the trial was not an abuse of discretion. Finally, the Department has not shown
that the district court abused its discretion in
determining the amount of attorney fees and
costs to be awarded Caliber. The judgments of
the district court in favor of Caliber entered on
the jury’s verdict and granting Caliber’s motion
for attorney fees are AFFIRMED.
¶34 AFFIRMED.
GOODMAN, V.C.J., and WISEMAN, J., concur.
JOHN F. FISCHER, PRESIDING JUDGE:
1. To the extent the Department raises other objections to the district court’s evidentiary rulings regarding Carlile’s testimony, they are
unsupported by authority and too unfocused to permit appellate
review. Cox Oklahoma Telecom, L.L.C. v. State of Oklahoma ex rel. Oklahoma Corp. Comm’n, 2007 OK 55, ¶ 33, 164 P.3d 150, 162; Oklahoma
Supreme Court Rule 1.11(k)(1), 12 O.S. Supp. 2013, ch. 15, app. 1.
2. Because we reach this conclusion, we find no error in the district
court’s denial of the Department’s motion for a mistrial, the fifth
assignment of error asserted in the Department’s Brief-in-Chief.
3. The Oklahoma Supreme Court found in Oklahoma Turnpike Auth.
v. New, 1993 OK 42, ¶ 6, 853 P.2d 765, 766 that:
Section 11 of title 27 is a provision which is applicable to the
OTA. It provides for reimbursement to a landowner of “reasonable attorney, appraisal and engineering fees, actually incurred
because of the condemnation proceedings” when the jury’s
award exceeds the court-appointed commissioners’ award by
ten percent. Section 9 makes section 11 applicable to condemnation proceedings for projects which use federal, state, or local
funds. (Citation omitted.)
150
2016 OK CIV APP 2
TAMMY OBER, Plaintiff/Appellee, vs.
STATE OF OKLAHOMA, ex rel.
DEPARTMENT OF PUBLIC SAFETY,
Defendant/Appellant.
Case No. 111,990. April 6, 2015
APPEAL FROM THE DISTRICT COURT OF
CLEVELAND COUNTY, OKLAHOMA
HONORABLE TOM A. LUCAS,
TRIAL JUDGE
REVERSED
John Hunsucker, HUNSUCKER LEGAL
GROUP, Oklahoma City, Oklahoma, for Plaintiff/Appellee
Brian K. Morton, Assistant General Counsel,
Department of Public Safety, Oklahoma City,
Oklahoma, for Defendant/Appellant
JERRY L. GOODMAN, VICE-CHIEF JUDGE:
¶1 State of Oklahoma ex rel., Department of
Public Safety (DPS) appeals a June 17, 2013,
order granting Tammy Ober’s (Ober) application for a protective order sealing the public
records. Based on our review of the facts and
applicable law, we reverse.
FACTS
¶2 On August 14, 2011, Ober was arrested for
operating a vehicle while under the influence
of alcohol. Ober timely requested an administrative hearing, which was held on September
27, 2012. DPS ultimately issued an Order of
Revocation revoking Ober’s driver’s license
for a period of 180 days.
¶3 On December 21, 2012, Ober filed a petition in the District Court of Cleveland County
appealing the Order of Revocation. However,
the parties settled the case by agreeing to the
statutory modification which permitted driving privileges with the statutorily required
installation of an interlock device. A final order
was signed by the district court incorporating
the agreement on March 4, 2013.
¶4 On March 11, 2013, Ober filed an application for protective order seeking to have the
record sealed. After a hearing on June 17, 2013,
the district court issued an order directing the
entire record be sealed from the general public,
subject to reopening by court order. DPS
appeals.
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Vol. 87 — No. 3 — 1/23/2016
STANDARD OF REVIEW
¶5 “Records of a court are in that court’s custody and control, and a court pursuant to its
general equity powers may issue an order
which impounds and seals papers or records.”
Shadid v. Hammond, 2013 OK 103, ¶ 6, 315 P.3d
1008, 1010, as corrected (Dec. 11, 2013)(Edmondson, J., concurring in part, dissenting in part).
“An order sealing a record is the functional
equivalent of an injunction adjudicating rights
of the parties to the principal proceeding as
well as the public’s right to the information in
a public record.” Id., at ¶ 14, at 1013. Accordingly, the appellate court applies the same
standard of review imposed for the issuance of
a temporary injunction. Collier v. Reese, 2009
OK 86, ¶ 11, 223 P.3d 966, 971. The granting or
denying of injunctive relief is an equitable matter within the sound discretion of the district
court and a judgment issuing or refusing to
issue an injunction will not be disturbed on
appeal unless the court has abused its discretion or the decision is clearly against the weight
of the evidence. Collier v. Reese, 2009 OK 86, ¶
11, 223 P.3d 966, 972; Sharp v. 251st Street Landfill, Inc., 1996 OK 109, ¶ 4, 925 P.2d 546, 549.
ANALYSIS
1. Protective Order
¶6 On appeal, DPS contends the district
court erred in issuing the protective order and
in sealing the records in the court file from the
general public. DPS asserts Ober failed to cite
any authority for the district court’s actions
other than a vague reference to the “Open
Records Act and other applicable law.”
¶7 Ober disagrees, asserting no statute or
case law prohibits the district court from sealing the entire record and that the court correctly found the potential harm to her far
exceeded any benefit the public might gain
from leaving the record unsealed.
¶8 Title 51 O.S.2011 and Supp. 2012, § 24A.29
of the Oklahoma Open Records Act provides:
A. Unless confidentiality is specifically
required by law, any order directing the
withholding or removal of pleadings or
other material from a public record shall
contain:
1. A statement that the court has determined it is necessary in the interests of
justice to remove the material from the
public record;
Vol. 87 — No. 3 — 1/23/2016
2. Specific identification of the material
which is to be withheld, removed or withdrawn from the public record, or which is
to be filed but not placed in the public
record; and
3. A requirement that any party seeking to
file protected materials place such materials in a sealed manila envelope clearly
marked with the caption and case number,
the word “CONFIDENTIAL,” and stating
the date the order was entered and the
name of the judge entering the order.
¶9 In Shadid, 2013 OK 103, 315 P.3d 1008, the
Oklahoma Supreme Court, in a special concurrence, addressed the sealing of a court record
under § 24A.29.
[]Court records are public records. There
are specific statutory exceptions to this
general rule (juvenile, adoption, mental
health, etc.). Otherwise, documents filed
with the Court Clerk’s office are public
records and available for public access.
[] Sealing a public record should be a very rare
event that occurs in only the most compelling of
circumstances.
If after very careful and independent consideration a District Court decides to seal a
public record, it “shall” make a specific
finding that sealing the public record is
“necessary in the interests of justice to
remove the material from the public
record.” 51 O.S. 24A.29. That is a very high
standard for good reason and is required in
every case.
All of this current litigation and expense
demonstrates the very reason why courts
should rarely take the drastic measure of sealing
public records. ..
My future guidance to the District Courts
is to not block public access to court records
unless it is absolutely “necessary in the interests of justice.” Public records should remain
public except in the most compelling of
circumstances.
Id., 2013 OK 103, at ¶¶ 2-5, 315 P.3d at 1009
(Taylor, J., concurring)(emphasis added). Accordingly, there is a strong presumption in
Oklahoma in favor of public access to judicial
proceedings and court records.
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151
¶10 In the present case, Ober testified why
the court should grant her application for protective order sealing the record:
As a teacher and a coach, I feel like it’s my
responsibility to be a positive role model
for my students and my players. I just feel
like I don’t want my players or my students to look up that information, or to
even stumble upon it, because I feel like it
could lead to a disruption due to my lapse
in judgment one evening. And I don’t want
that to disrupt my classroom or to disrupt
what I do on the court with my players. …
I feel like you should have a right to know
information about the teachers, but this is
the one mistake that I’ve made in my life,
and I feel like it should not follow me
around for the rest of my career. … I feel like
… they don’t need to know…. because if
they do .. they’re going to hold it as part of
my character and as part of defining me, and
that’s not what defines me whatsoever.…
I feel that, one, the mistake should not follow my career around, especially being so
early in my career. ..
In granting Ober’s application, the district
court stated:
The motion will be granted. My primary
reason, .. if the school wants to know, they
can come ask me to open the record, ask
somebody to open the record, and they’ll
do that. … I think potential harm here far
exceeds any benefit that the public might
gain. Parents, for example, aren’t prohibited
from finding out about their teachers by asking the district attorney in the local area or
[DPS], for example, or anybody. They can
call the DA’s office and ask for criminal
records if they hadn’t been expunged. They
can call the DA’s office and ask for any DUI
cases or anything like that. So those are the
main reasons that I would grant this motion.
¶11 We find the trial court abused its discretion in granting the application and sealing the
record. Ober has failed to establish a compelling reason why it is necessary in the interests
of justice to seal the record, instead merely
speculating that leaving the record open could
lead to disruption at work, could interfere with
employment endeavors in the future, or could
cause others to erroneously define her character. Ober is not asking for the sealing of specific
pleadings or confidential information, includ152
ing a social security number or financial information. Rather, concerned over the potential
consequences of her actions, Ober seeks to seal
the entire record and prevent public access and
knowledge of her conviction for driving under
the influence and revocation of her driver’s
license. If this Court took Ober’s assertion to its
logical conclusion, any individual convicted of
a crime or quasi-crime would be entitled to a
protective order sealing the record from public
access. However, as stated in Shadid, in a special concurrence,
Sealing a public record should be a very
rare event that occurs in only the most
compelling of circumstances... Public
records should remain public except in the
most compelling of circumstances.
Id., 2013 OK 103, at ¶¶ 2 & 5, 315 P.3d at 1009.
¶12 Accordingly, we find the district court
abused its discretion in granting Ober’s application for protective order sealing the record.
The June 17, 2013, order is therefore reversed.
II. DPS’s Jurisdiction
¶13 In her response brief on appeal, Ober
asserted the underlying Order of Revocation
should be set aside because the record does not
contain an officer’s affidavit, required to invoke
DPS’s jurisdiction. Ober contends her failure to
timely appeal this issue to the district court is
immaterial because a void judgment can be
attacked at any time.
¶14 Ober is correct that “[q]uestions of jurisdiction may be raised at any time, either in the
trial court or on appeal; and even in the
absence of an inquiry by the litigants, [this]
Court may examine jurisdiction.” Woods Petroleum Corp. v. Sledge, 1981 OK 89, ¶ 1, 632 P.2d
393, 394. Questions concerning a district court’s
jurisdictional power invoke the de novo standard of review. Jackson v. Jackson, 2002 OK 25, ¶
2, 45 P.3d 418, 422. However, a district court’s
decision comes to a court of review clothed
with a presumption of correctness. “Every fact
not disputed by the record must be regarded as
supportive of the trial court’s ruling.” Olinghouse v. Olinghouse, 1995 OK CIV APP 104, ¶ 19,
908 P.2d 280, 288 (citing First Fed. Savings and
Loan Assoc., Chickasha, OK v. Nath, 1992 OK 129,
¶ 10, 839 P.2d 1336, 1342).
¶15 In the present case, Ober did not appeal
the district court’s March 4, 2013, order modifying DPS’s Order of Revocation.1 That order is
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Vol. 87 — No. 3 — 1/23/2016
now final. Rather, DPS is appealing the district
court’s June 17, 2013, order granting Ober’s
application for protective order. Accordingly, the
record on appeal does not contain the record of
the administrative proceeding before DPS.
¶16 The party assigning error on appeal
bears the burden of presenting the appellate
court with a record on appeal in support of the
assignments of error. Bailey v. Bailey, 1994 OK 6,
¶ 14, 867 P.2d 1267, 1272 (superseded by statute
on other grounds). Legal error may not be presumed in an appellate court from a silent
record. Hamid v. Sew Original, 1982 OK 46, ¶ 6,
645 P.2d 496, 497. See also, Powers v. District Ct.
of Tulsa Cty., 2009 OK 91, ¶ 10 fn. 22, 227 P.3d
1060, 1070 fn. 22 (quoting Pracht v. Oklahoma
State Bank, 1979 OK 43, ¶ 5, 592 P.2d 976, 978
(“The appellant bears the burden of demonstrating a sufficient record and applicable law
to demonstrate in this Court that the trial court
committed error since error in the lower court
is not presumed.”)). “As a general rule findings, decisions and orders of an administrative
body, in the absence of evidence to the contrary, are presumptively correct and valid.”
Banking Bd. of State of Ok. v. Wilkerson, 1982 OK
33, ¶ 6, 642 P.2d 1141, 1142. See also, Willis v.
Sequoyah House, Inc., 2008 OK 87, ¶ 15 fn.18, 194
P.3d 1285, 1290 fn.18 (“The trial court’s decision is presumptively deemed to include a
finding of every fact necessary to support it.”).
¶17 Thus, the burden of overcoming the
law’s presumption of correctness rests on Ober.
This presumption of correctness is not overcome by Ober’s mere assertion, notably in a
response brief on appeal of an entirely different
issue, that an officer’s affidavit was never
entered into evidence in the administrative
proceeding below. Ober has failed to provide
this Court with an acceptable record by showing that the presumptively correct order may
be vulnerable to reversal. Willis, 2008 OK 87, at
¶ 15, 194 P.3d at 1290 (Every fact not disputed
by the record must be regarded as supportive
of the court’s ruling).
¶18 Accordingly, this assertion of error is
therefore rejected.
¶19 REVERSED.
WISEMAN, J., concurs, and FISCHER, P.J.,
concurs in part and dissents in part.
FISCHER, P.J., concurring in part and dissenting in part:
Vol. 87 — No. 3 — 1/23/2016
¶1 This case is unique with respect to its
simultaneous criminal and civil proceedings.
This case also requires our reconciliation, if
possible, of the public policy informing the
Open Records Act and the public policy permitting the expungement of court records in
criminal proceedings in certain circumstances.
In my view, the district court reconciled the
two statutes, and I would affirm the order
appealed.
¶2 Ober’s arrest for driving under the influence of alcohol resulted in a criminal charge
and triggered the administrative process resulting in the revocation by DPS of her driver’s
license for 180 days.1 Ober appealed the revocation by filing this civil action. In this case,
Ober argued she had no alternate means of
transportation and that the revocation imposed
an extreme hardship. DPS then agreed to modify its previous revocation and permit Ober to
operate her vehicle while an interlock device
was installed and the district court entered the
order modifying the revocation.2 Ober then
filed her motion to seal the record in this case.
Ober argued that the records in her criminal
case can be expunged and to achieve the benefit of the expungement statute the records in
this case must be sealed.3 DPS argued that Ober
could have accepted the revocation and not
driven for six months and there would be no
court record of her arrest for DUI. According to
DPS, Ober voluntarily created a court record of
her arrest when she filed this appeal to obtain
the modification of the previously imposed
revocation.
¶3 The district court agreed with Ober and
ordered the file in this case sealed. The Majority reverses that order finding it incompatible
with the policy of the Open Records Act. I
respectfully dissent.
¶4 I do not disagree with the Majority that
the Open Records Act evidences a strong public policy in favor of access to the records in
judicial proceedings. However, that policy is not
absolute and exceptions are specifically incorporated in the Act. Further, in my view, this is a
circumstance in which the confidentiality of the
records in Ober’s civil case may be “required by
law.” 51 O.S.2011 and Supp. 2012 § 24A.29(A).
Section 991c(C) of Title 22 provides:
Upon completion of the conditions of the
deferred judgment, and upon a finding by
the court that the conditions have been met
and all fines, fees, and monetary assess-
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153
ments have been paid as ordered, the
defendant shall be discharged without a
court judgment of guilt, and the court shall
order the verdict or plea of guilty or plea of
nolo contendere to be expunged from the
record and the charge shall be dismissed
with prejudice to any further action.
22 O.S.2011 § 991c(C). If Ober is entitled to the
expungement of the record in her criminal proceeding, she is entitled, in my view, to an order
in this case that protects the benefit conferred
by the expungement statute. “Whenever it is
possible to construe two acts by giving effect to
both without doing violence to either, such
construction is preferred over one that may be
productive of conflict between them.” Grand
River Dam Auth. v. State, 1982 OK 60, ¶ 25, 645
P.2d 1011, 1019 (footnote omitted).
¶5 According to Justice Edmondson:
The Open Records Act does not create privacy rights; but its exceptions to disclosure
indicate that under some circumstances
privacy rights of individuals should be
protected, and the Act provides such protection for a privacy right in the context of a
divorce proceeding when the personal privacy right supersedes the public’s right to
acquire the information because “the interests of justice” in the particular circumstance
presented gives precedence to the individual’s right. 51 O.S.2011 § 24A.29(A)(1).
Shadid v. Hammond, 2013 OK 103, ¶ 9, 315 P.3d
1008 (Edmondson, J., concurring in part and
dissenting in part) (footnote omitted). In my
view, the district court’s order is consistent
with Ober’s privacy interest protected by both
the Open Records Act and the expungement
statute in this specific case.
¶6 Finally, affirming the district court’s order
is consistent with the Legislature’s current
statement of the policy underlying the Open
Records Act found in 51 O.S. Supp. 2014 §
24A.30: “All court records . . . shall be considered public records and shall be subject to the
provisions of the Oklahoma Open Records Act,
unless otherwise identified by statute to be
confidential.” Title 22 O.S.2011 § 991c(C) identifies the records related to Ober’s DUI arrest
that may be confidential. It is also consistent
with the relief to which Ober might be entitled
in this Court if she is entitled to expungement
of the record in her criminal case. See Okla.
Sup. Ct. R. 1.260, 12 O.S.2011, ch. 15, app. 1
(parties entitled to expungement of records
154
pursuant to Title 22, sections 13 and 19 “may
seek expungement of related civil records.”)
¶7 I concur with the Majority’s disposition of
Ober’s jurisdictional argument.
JERRY L. GOODMAN, VICE-CHIEF JUDGE:
1. The record on appeal before this Court does contain Ober’s petition to the district court appealing DPS’s Order of Revocation. However, Ober did not assert the Order of Revocation should be set aside
for lack of jurisdiction and did not contend that the officer’s affidavit
was missing. The record on appeal further includes the district court’s
March 4, 2013, final order entered upon the parties’ agreement to
modify DPS’s Order of Revocation.
FISCHER, P.J., concurring in part and dissenting in part:
1. The record in this appeal is sparse. The record from the administrative hearing is not included, nor is the record from the criminal
proceeding. Nonetheless, most of the relevant facts can be derived
from the transcript of the hearing on Ober’s motion to seal the file in
this case and do not appear to be disputed by the parties.
2. There is some indication in the hearing transcript that DPS may
have offered Ober a modified license prior to the administrative hearing.
3. During the hearing, Ober’s counsel stated she assumed that
counsel representing Ober in the criminal proceeding would take care
of the expungement in that case.
2016 OK CIV APP 3
STATE OF OKLAHOMA, DEPARTMENT
OF HUMAN SERVICES, CHILD SUPPORT
SERVICES, Plaintiff, vs. LAFE C.
COLDWATER, Defendant/Appellant, and
ERICA ANN BUTLER, Appellee.
Case No. 113,103. October 22, 2015
APPEAL FROM THE DISTRICT COURT OF
GARFIELD COUNTY, OKLAHOMA
HONORABLE DENNIS W. HLADIK,
TRIAL JUDGE
REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS
Jon R. Ford, Enid, Oklahoma, for Defendant/
Appellant
Terri K. Blakley, Randy J. Long, FIELD, TROJAN, LONG & CLAYPOLE, P.C., Enid, Oklahoma, for Appellee
JANE P. WISEMAN, JUDGE:
¶1 Lafe C. Coldwater (Father) appeals from
the trial court’s “Order Setting Forth Findings
of Fact Regarding Child Support Deviation.”1
After review of the record and relevant law, we
reverse and remand for further proceedings.
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Vol. 87 — No. 3 — 1/23/2016
FACTS AND PROCEDURAL
BACKGROUND
¶2 After the minor child was born, DHS initiated an administrative action to determine
paternity and support obligations. In that
action, it was determined that Father was the
father of the minor child. According to the facts
outlined on appeal in Case No. 110,933:
Pursuant to an order entered by the Office
of Administrative Hearings: Child Support, Father was ordered to pay child support to Mother beginning October 1, 2010.
Father was not ordered to pay any back
child support to Mother for the time period
from C.M.B.’s birth through September
2010. Mother did not appeal this administrative order to the district court, and it was
docketed in district court pursuant to 56
O.S.2011 § 237.10. Father filed a petition for
joint custody on October 15, 2010 using the
same district court case number assigned
to the docketed administrative order.
State ex rel. Dep’t of Human Servs. v. Coldwater,
2014 OK CIV APP 56, ¶ 2, 328 P.3d 1252.
¶3 In the “Order Determining Custody, Visitation and Child Support” entered on January
20, 2012, the trial court terminated joint custody and granted “the full care, custody and
control of the minor child” to Father. The trial
court awarded Mother visitation and stated in
the order that “[i]t is the intent of [the trial
court] that the parties each receive approximately equal time with the child.” As to child
support, the order stated:
a. Based on the parties’ current income, a
monthly credit of $800 that is attributed
to Mom supporting her two (2) older
children, and the arguments of counsel,
Dad, as Obligor, would normally pay to
Mom a monthly child support payment
of $661.29 based on the Child Support
Computation attached as “Exhibit 2”;
however, the Court is deviating from the
Child Support Computation and is ordering Dad to pay Mom monthly child support in the amount of $400.00 per month.
b. The payments shall begin on the 1st day
of April, 2012 and continue on the 1st
day of each month thereafter until the
child ages out or until further order of
this Court.
The Child Support Computation form attached
to the trial court’s order was signed by the trial
Vol. 87 — No. 3 — 1/23/2016
court as required by 43 O.S.2011 § 120(A)(“A
child support computation form shall be signed
by the judge and incorporated as a part of all
orders which establish or modify a child support obligation.”) However, the trial court neither checked the box on the form indicating it
deviated from the child support guidelines nor
explained the deviations in the space provided.
¶4 Father filed a motion to reconsider the
trial court’s computation of child support. He
argues that because he is by definition the custodial parent having the minor child more than
182 days per year, he should not be the “Obligor” for purposes of determining child support.
He argues that Mother as the non-custodial parent should be the obligor. Father further asserts
the trial court mistakenly deducted $800 from
Mother’s monthly income to compensate for
having two other children in the home unrelated to this action. Father contends the trial court
should have inserted Mother’s full monthly
gross income and inserted the number “2” in
the “In Home Children” deduction line on the
form to account for the other two children in
the home. According to Father, changing these
items would result in neither party owing any
child support. Father asked the trial court to
correct the child support form accordingly.
¶5 Mother responded to the motion to reconsider “stating that Father’s arguments that he
should not pay child support in this situation
was a misapplication of Oklahoma law and
argued that a proper application of parenting
time adjustments . . . resulted in Father paying
child support to Mother.” In an order filed July
3, 2012, the trial court denied Father’s motion
to reconsider.
¶6 Mother appealed “(1) the award of legal
custody to [F]ather, (2) the deviation from the
child support guidelines without written findings and (3) the failure of the Trial Court to
award her a child support arrearage.” Father
filed a counter-petition in error which was subsequently dismissed by the Oklahoma Supreme
Court as being untimely filed.
¶7 In that appeal, Case No. 110,933, another
division of this Court vacated the trial court’s
order reducing Father’s child support obligation from $661.29 to $400 per month holding
that the trial court “failed to make specific findings of fact justifying the deviation as required
by 43 O.S.2011 § 118H(C). Thus, this portion of
the trial court’s order must be VACATED and
REMANDED for a determination of whether
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155
such facts exist to support the deviation, and, if
so, to articulate them as required by statute.”
Coldwater, 2014 OK CIV APP 56, ¶ 12.
¶8 On remand, the trial court entered an
order on July 9, 2014, making specific findings
of fact justifying its deviation from the child
support guidelines.
¶9 Father appeals.
STANDARD OF REVIEW
¶10 “Child support proceedings are of equitable cognizance.” Thornton v. Thornton, 2011
OK 6, ¶ 5, 247 P.3d 1180. “When reviewing the
decision of the trial court in an equity proceeding, [the appellate court] has long held that the
judgment will not be disturbed unless the trial
court abused its discretion or unless the court’s
finding was clearly contrary to the weight of
the evidence.” Id.
¶11 “Further, child support matters are governed by statute. Legal questions involving
statutory interpretation are subject to de novo
review.” Herrera v. Herrera, 2013 OK CIV APP
25, ¶ 8, 298 P.3d 1209 (citing Heffron v. District
Court of Oklahoma Cnty., 2003 OK 75, ¶ 15, 77
P.3d 1069).
ANALYSIS
I. 43 O.S.2011 § 109.2
¶12 Father first argues that because the trial
court granted him legal custody, “43 O.S. §
109.2 requires the court to order the non-custodial party to be the obligor and pay child support.” This provision provides:
Except as otherwise provided by Section
7700-607 of Title 10 of the Oklahoma Statutes, in any action concerning the custody
of a minor unmarried child or the determination of child support, the court may
determine if the parties to the action are the
parents of the children. If the parties to the
action are the parents of the children, the court
may determine which party should have custody of said children, may award child support to
the parent to whom it awards custody, and
may make an appropriate order for payment of costs and attorney’s fees.
43 O.S.2011 § 109.2 (emphasis added).
¶13 We find Father’s first argument to be
without merit. The statute does not require the
trial court to order the non-custodial parent to
be the obligor and pay child support. Section
156
109.2 provides that it “may award child support to the parent to whom it awards custody.”
(Emphasis added.) When construing statutory
language, “[t]he term ‘may’ is ordinarily construed as permissive while ‘shall’ is commonly
considered to be mandatory.” Oklahoma Pub.
Emps. Ass’n v. State ex rel. Oklahoma Office of
Pers. Mgmt., 2011 OK 68, n. 18, 267 P.3d 838.
This permissive statute does not prohibit the
trial court from entering an order requiring
Father to pay Mother child support even
though he is the custodial parent. And, as set
forth below, the Parenting Time Adjustment
statute which replaced the Shared Parenting
Adjustment statute makes it possible for a custodial parent to be an obligor for child support
purposes.
II. 43 O.S. § 118 et seq.
¶14 Child support for a child born out of
wedlock “shall be ordered and reviewed in
accordance with the child support guidelines
provided in Section 118 of Title 43 of the Oklahoma Statutes.” 10 O.S. Supp. 2014 § 83(D). We
must therefore determine whether the trial
court properly deviated from the guidelines.
In-Home Deduction
¶15 The trial court reduced Mother’s gross
monthly income by $800 in order “to provide
necessities for the two older children in her
custody” who are not part of this action.
Instead, the trial court should have followed 43
O.S.2011 § 118C to determine whether Mother
could receive a deduction from her gross
income for “qualified prior-born other children
whose primary residence is with the parent
seeking deduction.” 43 O.S.2011 § 118C(D)(2)
(a). If Mother can establish the requirements of
§ 118(C)(D)(2)(a), then the trial court must follow § 118C(D)(2)(b) and (c). Once the trial court
determines the number of qualified prior-born
children, then that number can be inserted on
the Child Support Computation form to determine the deduction amount. This amount will
then be deducted from Mother’s gross monthly
income. We conclude the trial court did not
properly compute this deduction and must do
so in accordance with 43 O.S.2011 § 118C.
Parenting Time Adjustment
¶16 The Parenting Time Adjustment statute,
which replaced the Shared Parenting Adjustment statute, makes it possible for a custodial
parent to be an obligor for child support purposes. The previous Shared Parenting Adjust-
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Vol. 87 — No. 3 — 1/23/2016
ment statute prohibited a child support award
against the custodial parent: “In no event shall
the provisions of this paragraph be construed
to authorize or allow the payment of child support by the custodial parent to the noncustodial parent.” 43 O.S. Supp. 2007 § 118(E)(10)(f)
(partially repealed and amended effective July
1, 2009). This provision was removed from the
new Parenting Time Adjustment statute. 43
O.S.2011 § 118E. In its place, the new statute
prohibits “the payment of child support by a
parent having more than two hundred five
(205) overnights.” 43 O.S.2011 § 118E(D)(5).
¶17 According to the Child Support Computation form signed by the trial court on April
23, 2012, Father was awarded 183 overnights
per year and Mother was awarded 182 overnights per year.2 Pursuant to the Child Support
Guidelines: a “[c]ustodial person” is “a parent
. . . who has physical custody of a child more
than one hundred eighty-two (182) days per
year” and a “[n]oncustodial parent” is “a parent who has physical custody of a child one
hundred eighty-two (182) days per year or
less.” 43 O.S.2011 § 118A(4)-(5). Because neither
parent has the child more than 205 overnights
a year, either parent may become the obligor
for child support purposes. The Legislature
clearly omitted the previous provision prohibiting “the payment of child support by the
custodial parent to the noncustodial parent”
and replaced it with prohibiting the payment
of child support “by a parent having more than
two hundred five (205) overnights.” This provision seems to correlate the amount of credit
received under the new formula more directly
with the amount of time each parent spends
with the child, making the support obligations
more proportionate. This provision also allows
the court to determine that a noncustodial parent is the obligee. When a statute is plain and
unambiguous, as it is here, “there is no need to
resort to statutory construction.” Rouse v. Oklahoma Merit Prot. Comm’n, 2015 OK 7, ¶ 17, 345
P.3d 366. We conclude the Parenting Time
Adjustment statute found in 43 O.S.2011 §
118E, when not prohibited by the number of
overnights, allows a custodial parent to be an
obligor for child support purposes, for instance,
when the custodial parent has a larger gross
monthly income than the noncustodial parent.
See generally Amy E. Wilson, The New Child
Support Guidelines: What You Need to Know
About Changes to the Guidelines Statute, 80 Okla.
B. J. 2359 (Nov. 21, 2009).
Vol. 87 — No. 3 — 1/23/2016
¶18 Although the trial court on remand adequately explained its deviation from the child
support guidelines as previously required by
this Court, we conclude the child support can
be calculated without deviating from the
guidelines based on our analysis regarding the
in-home deduction and the Parenting Time
Adjustment statute. We reverse the “Order Setting Forth Findings of Fact Regarding Child
Support Deviation” and remand to the trial
court (1) to follow the requirements in 43
O.S.2011 § 118C regarding the in-home deduction rather than deducting $800 from Mother’s
gross monthly income under “A1” in the Child
Support Computation form, and (2) to allocate
183 overnights to Father and 182 overnights to
Mother to receive the proper parenting time
adjustment. If Father is designated to pay child
support as obligor after inserting the correct
numbers into the Child Support Computation
form, then as stated in this Opinion, the statute
will not prohibit the trial court from awarding
Mother, the noncustodial parent, child support. The trial court should then enter an order
setting child support as calculated according to
the guidelines and attach a signed Child Support Computation form.
III. Appellate Attorney Fees
¶19 Mother requested appellate attorney fees
pursuant to 43 O.S.2011 § 109.2, which provides: “If the parties to the action are the parents of the children, the court . . . may make an
appropriate order for payment of costs and
attorney’s fees.” Her request does not comply
with Oklahoma Supreme Court Rule 1.14(B)
which requires “a separately filed and labeled
motion in the appellate court prior to issuance
of mandate.” Okla. Sup. Ct. R. 1.14(B), 12 O.S.
Supp. 2014, ch. 15, app. 1. The request is therefore denied.
CONCLUSION
¶20 After reviewing the record and relevant
law, we reverse the decision of the trial court
and remand for further proceedings in accordance with this Opinion.
¶21 REVERSED AND REMANDED FOR
FURTHER PROCEEDINGS.
GOODMAN, V.C.J., and FISCHER, P.J., concur.
JANE P. WISEMAN, JUDGE:
1. Mother filed a motion to dismiss Father’s appeal arguing that
because Father raised identical issues regarding child support in his
counter-petition in error in the previous appeal (Case No. 110,933)
which was dismissed as being untimely filed, he should be prohibited
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157
from raising the same issues in this appeal based on the doctrine of res
judicata. In the previous appeal, the Court of Civil Appeals (COCA)
vacated the trial court’s order as to the issue of child support and
remanded for the trial court to first comply with 43 O.S.2011 § 118H(C).
COCA did not address the merits of the trial court’s decision.
“’The doctrine of the settled law of the case which we have recognized since 1915, provides that issues which are litigated and settled on
appeal, or which could have been settled in that appeal, may not be the
subject of further litigation between the parties in that case and are
deemed settled.’” Acott v. Newton & O’Conner, 2011 OK 56, ¶ 10, 260
P.3d 1271 (quoting Miller Dollarhide, P.C. v. Tal, 2006 OK 27, n. 11, 174
P.3d 559). “Thus, under the settled law of the case doctrine, an issue
may not be asserted on remand, or in a second or subsequent appeal,
if the issue (1) was addressed in the first appeal, (2) could have been
raised in the first appeal, or (3) the issue asserted was determined by
implication in the first appeal.” Acott, 2011 OK 56, ¶ 11. “Where, on the
judgment’s reversal, a cause is remanded, it returns to the trial court as
if it had never been decided, save only for the ‘settled law’ of the case.”
Smedsrud v. Powell, 2002 OK 87, ¶ 13, 61 P.3d 891. “The parties are relegated to their prejudgment status and are free to re-plead or re-press
their claims as well as defenses.” Id. (emphasis omitted). “The doctrine
embodies a call for judicial economy designed to prevent ‘rehashing’
of issues in successive appeals.” Id.
Because COCA vacated the portion of the trial court’s order
regarding child support and remanded to the trial court to determine
whether facts exist to support deviating from the child support guidelines and, if so, to articulate those reasons, the merits of the trial court’s
decision were not reviewed on appeal. Even if Father’s counter-petition in error had been timely, COCA would not have addressed his
issues regarding child support. Father is now appealing the order
entered on remand as directed by COCA in Case No. 110,933. Father is
not “rehashing” issues previously addressed in the first appeal.
Mother’s motion to dismiss Father’s appeal is denied.
2. We note the only signed Child Support Computation form
awarded 183 overnights to Father and 182 overnights to Mother totaling 365 days. However, the trial court’s subsequent order denying
Father’s motion to reconsider states it awarded each parent “182.5
days per year,” making both parents the custodial parent pursuant to
43 O.S.2011 § 118A. The order on remand which is before us today
makes the same statement. Exhibits 1 and 2 attached to Father’s appellate brief in chief award Father 183 overnights and Mother 182 overnights. Mother states in her appellate brief in chief that she was
awarded 182 overnights with the minor child. It is unclear from the
record why the trial court changed the overnights to 182.5 for each
parent when the parties and the original order with the only signed
Child Support Computation form state otherwise.
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Vol. 87 — No. 3 — 1/23/2016
CALENDAR OF EVENTS
January
28
OBA Professionalism Committee meeting;
4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact
Patricia Podolec 405-760-3358
February
2
4
5
9
11
12
OBA Government and Administrative Law
Section meeting; 4 p.m.; Oklahoma Bar Center,
Oklahoma City with teleconference; Contact
Michael Mannes 405-473-0352
OBA High School Mock Trial Committee
meeting; 5:30 p.m.; Oklahoma Bar Center, Oklahoma
City; Contact Judy Spencer 405-755-1066
Lawyers Helping Lawyers discussion group;
6 p.m.; 701 NW 13th St., Office of Tom Cummings,
Oklahoma City; Contact Jeanne Snider 405-366-5423
or Hugh Hood 918-747-4357
16
OBA Alternative Dispute Resolution Section
meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma
City with teleconference; Contact John H. Graves
405-684-6735
OBA Access to Justice Committee meeting;
11 a.m.; Oklahoma Bar Center, Oklahoma City with
teleconference; Contact Michael Speck 405-205-5840
17
OBA Master Lawyers Section meeting;
12 p.m.; Oklahoma Bar Center, Oklahoma City with
videoconference; Contact Ronald Main 918-742-1990
18
OBA Law-related Education Committee meeting;
12 p.m.; Oklahoma Bar Center, Oklahoma City with
teleconference; Contact Professor Paul Clark
405-208-6303 or Brady Henderson 405-524-8511
19
OBA Board of Editors meeting; 1:30 p.m.;
Oklahoma Bar Center, Oklahoma City; Contact
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22
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25
15
OBA Bench and Bar Committee meeting; 12 p.m.;
Oklahoma Bar Center, Oklahoma City with teleconference; Contact David B. Lewis 405-556-9611 or
David Swank 405-325-5254
OBA Women in Law Committee meeting; 4 p.m.;
Oklahoma Bar Center, Oklahoma City with teleconference; Contact Ann E. Keele 918-592-1144 or
Reign Grace Sikes 405-419-2657
OBA Indian Law Section meeting; 10 a.m.;
Oklahoma Bar Center, Oklahoma City with teleconference; Contact Deborah Reed 918-348-1789
OBA High School Mock Trial Committee
meeting; 5:30 p.m.; Oklahoma Bar Center, Oklahoma
City; Contact Judy Spencer 405-755-1066
OBA Board of Governors meeting; 10 a.m.;
Oklahoma Bar Center, Oklahoma City; Contact
John Morris Williams 405-416-7000
OBA Appellate Practice Section meeting;
12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact
Mark Koss 405-720-6868
OBA Professionalism Committee meeting;
4 p.m.; Oklahoma Bar Center, Oklahoma City with
teleconference; Contact Patricia Podolec 405-760-3358
OBA Closed - President’s Day
Vol. 87 — No. 3 — 1/23/2016
The Oklahoma Bar Journal
159
Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
Tuesday, January 5, 2016
RE-2015-206 — In the District Court of Pontotoc County, Case No. CF-2014-72, Appellant,
Benjamin Andrew Akers, while represented by
counsel, entered pleas of nolo contendere to
Count 1: Burglary in the Second Degree; Count
2: Knowingly Concealing Stolen Property;
Count 3: Conspiracy to Commit Burglary II;
and Count 4: Possession of a Controlled Dangerous Substance (Methamphetamine); all
after former conviction of a felony. In accordance with a plea agreement, the Honorable C.
Steven Kessinger, District Judge, on May 30,
2014, sentenced Appellant to twenty-five (25)
year terms of imprisonment on Counts 1, 3 and
4, and to a ten (10) year term of imprisonment
on Count 2, all terms to be served concurrently
with one another and all conditionally suspended under written rules of probation. On
February 25, 2015, Gregory D. Pollard, Special
Judge, found that Appellant had violated his
probation and revoked a seven (7) year portion
of the order suspending execution of the sentences. Appellant appeals that final order of
revocation. REVERSED AND REMANDED
WITH INSTRUCTIONS. Opinion by: Lumpkin, V.P.J.; Smith, P.J.Concur; Johnson, J.; Concur; Lewis, J., Concur; Hudson, J.; Concur.
F-2014-628 — Tyrone Dale David Woodfork,
Appellant, was tried by jury in Case No.
CF-2012-1307, in the District Court of Tulsa
County, for the crimes of: Count 1: First Degree
Felony Murder; Count 2: First Degree Burglary,
After Former Conviction of Two Felonies;
Count 3: First Degree Robbery, After Former
Conviction of Two Felonies; Count 4: First
Degree Robbery, After Former Conviction of
Two Felonies; Count 5: First Degree Rape by
Force and Fear, After Former Conviction of
Two Felonies; Count 5: (Alternative) Sexual
Battery, After Former Conviction of Two Felonies; Count 6: Assault and Battery with a Dangerous Weapon, After Former Conviction of
Two Felonies; and Count 7: First Degree Rape
by Force and Fear, After Former Conviction of
Two Felonies. The jury returned a verdict of
guilty and recommended as punishment:
Count 1: Life Imprisonment; Count 2: Life
160
Imprisonment; Count 3: Twenty years imprisonment; Count 4: Twenty years imprisonment;
Count 5: Life Imprisonment; Count 5: (Alternative) Twenty years imprisonment; Count 6:
Life Imprisonment and $10,000.00 fine; and
Count 7: Life Imprisonment. The Honorable
William C. Kellough, District Judge, dismissed
Count 2, finding that it merged with Count 1.
On Count 5, the State elected to proceed with
the life sentence on the First Degree Rape conviction and Judge Kellough dismissed the
alternative sexual battery count. Judge Kellough thereafter sentenced Appellant in accordance with the jury’s verdicts and ordered the
sentences for each count to run consecutively.
However, Judge Kellough ordered credit for
time served. accordingly. From this judgment
and sentence Tyrone Dale David Woodfork has
perfected his appeal. AFFIRMED. Opinion by:
Hudson, J.; Smith, P.J., Concurs; Lumpkin,
V.P.J., Concurs; Johnson, J., Concurs; Lewis, J.,
Concurs.
F-2014-976 — Stephen A. Hacker, Appellant,
was tried by jury for the crimes of Aggravated
Possession of Child Pornography (Count 1)
and Using a Computer to Violate Oklahoma
Statutes (Count 2) in Case No. CF-2013-109 in
the District Court of Okmulgee County. The
jury returned a verdict of guilty and set punishment at four years imprisonment and a
$5,000.00 fine on Count 1 and two years imprisonment and a $5,000.00 fine on Count 2. The
trial court sentenced accordingly. From this
judgment and sentence Stephen A. Hacker has
perfected his appeal. 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.
Wednesday, January 6, 2016
F-2014-865 — Sir Demarco Dartanyon Bledsoe, Appellant, was tried by jury for the crime
of Assault and Battery with a Dangerous
Weapon in Case No. CF-2013-296 in the District Court of Logan County. The jury returned
a verdict of guilty and recommended as punishment five years imprisonment. The trial
court sentenced accordingly. From this judg-
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Vol. 87 — No. 3 — 1/23/2016
ment and sentence Sir Demarco Dartanyon
Bledsoe has perfected his appeal. AFFIRMED;
Application for Evidentiary Hearing DENIED.
Opinion by: Smith, P.J.; Lumpkin, V.P.J., concur; A. Johnson, J., concur; Lewis, J., concur;
Hudson, J., recuse.
RE-2014-1018 — Michael Dean Coots, Appellant, appeals from the revocation of three years
of his concurrent suspended sentences in Case
Nos. CF-2009-615 and CF-2011-449 in the District Court of Kay County, by the Honorable
D.W. Boyd, District Judge. AFFIRMED. Opinion by:; Smith, P.J.; Lumpkin, V.P.J., concur;
Johnson, J., concur; Lewis, J., concur; Hudson,
J., concur.
RE-2014-371 — In the District Court of Mayes
County, Case No. CF-2011-197, Darrell Spencer
Holland, Appellant, entered a plea of guilty to
Rape in the Second Degree. On January 25, 2013,
pursuant to a plea agreement, the Honorable
Terry H. McBride, District Judge, sentenced
Appellant to five (5) years imprisonment, with
all but thirty (30) days of that term conditionally
suspended under written rules of probation. On
December 17, 2013, the Honorable Rebecca J.
Gore, Special Judge, found Appellant had violated his probation and revoked the suspension
order in full. Appellant appeals this final order
of revocation. AFFIRMED AS MODIFIED. Opinion by: Lewis, J.; Smith, P.J., Concurs; Lumpkin,
V.P.J., Concurs in Results; Johnson, J, Concurs;
Hudson, J., Concurs.
F-2014-869 — Larry D. Bynum, Appellant,
appeals from an order, entered by the Honorable Doug Haught, District Judge, terminating
him from the Drug Court Program and sentencing him in accordance with the plea agreement and Drug Court contract to serve twenty
years imprisonment on Count 1, one year imprisonment on Count 2 and ninety days imprisonment on Count 3, in Case Nos. CF-2011-218
and DC-2011-33 in the District Court of Beckham County. The State filed an Application to
Terminate Drug Court Participation and Sentence Defendant alleging that sanctions had
been insufficient to gain Appellant’s compliance and that he violated his contract by being
charged with the crime of Public Intoxication in
the District Court of Beckham County, Case No.
CM-2014-309. A hearing on the application to
terminate was held before Judge Haught. After
hearing the evidence and arguments, Judge
Haught found the evidence sufficient to show
that Appellant had again violated his Drug
Court contract, and that previous disciplinary
Vol. 87 — No. 3 — 1/23/2016
sanctions have been insufficient to gain his compliance. Judge Haught terminated Appellant
from Drug Court, and as agreed ordered him to
serve the terms of twenty years, one year, and
ninety days. AFFIRMED. Opinion by: Lewis, J.;
Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs;
Johnson, J., Concurs; Hudson, J., Concurs.
RE-2014-689 — In the District Court of Ottawa County, Case No. CF-2010-123C, Gloria
Marie Story, Appellant, entered a plea of guilty
to two counts of Burglary in the Second Degree.
On July 17, 2012, pursuant to a plea agreement,
the Honorable Robert E. Reavis, II, Associate
District Judge, sentenced Appellant to seven
(7) years imprisonment on each count, ordered
the terms to be served concurrently, and conditionally suspended execution of those terms
under written rules of probation. On February
21, 2014, Judge Reavis found Appellant had
violated her probation and revoked the suspension order in full. Appellant appeals this
final order of revocation. AFFIRMED. Opinion
by: Lewis, J.; Smith, P.J., Concurs; Lumpkin,
V.P.J., Concurs in Results; Johnson, J, Consults;
Hudson, J., Consults.
F-2015-33 — Stephen Randall Christensen,
Appellant, was tried by jury for the crimes of
Sexual Abuse of a Child (Count 1) and Procuring Child Pornography (Counts 2 and 3) in
Case No. CF-2013-499 in the District Court of
Canadian County. The jury returned a verdict
of guilty and assessed punishment at life
imprisonment on Count 1 and twenty years,
suspended, for each of Counts 2 and 3. The
trial court sentenced accordingly and ordered
the sentences on Counts 2 and 3 to be served
concurrently with each other, but consecutively to the life sentence on Count 1. From this
judgment and sentence Stephen Randall Christensen has perfected his appeal. 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 in
results; Hudson, J., concurs.
F-2014-1080 — Johnny Cannon Sumner, Appellant, was tried by jury for the crime of Child
Sexual Abuse (Count 2) in Case No. CF-2013181 in the District Court of McIntosh County.
The jury returned a verdict of guilty and recommended as punishment imprisonment for
twenty-five (25) years and a fine in the amount
of $5,000.00. The trial court sentenced accordingly but suspended the payment of the fine.
From this judgment and sentence Johnny Cannon Sumner has perfected his appeal. The
The Oklahoma Bar Journal
161
Judgment and Sentence of the District Court is
hereby AFFIRMED. Opinion by: Lumpkin,
V.P.J.; Smith, P.J., Concur; Johnson, J., Concur;
Lewis, J., Concur; Hudson, J., Concur.
F-2014-860 — Justin Lee Hammer, Appellant,
was tried by jury for the crime of First Degree
Murder in Case No. CF-2012-285 in the District
Court of Garvin County. The jury returned a
verdict of guilty and recommended as punishment life imprisonment without the possibility
of parole. The trial court sentenced accordingly.
From this judgment and sentence Justin Lee
Hammer has perfected his appeal. The Judgment and Sentence of the District Court is
AFFIRMED. Opinion by: Lumpkin, V.P.J.; Smith,
P.J., Concur; Johnson, J., Concur; Lewis, J., Concur; Hudson, J., Concur.
F-2014-858 — Andrew Dewaun Boyles,
Appellant, was tried by jury for the crimes of
Count 1: Falsely Personate Another to Create
Liability, After Former Conviction of Two or
More Felonies; Count 2: Burglary in the Second
Degree, After Former Conviction of Two or
More Felonies; and Count 3: Possession of Burglary Tools, in Case No. CF-2012-3, in the District Court of Creek County. The jury returned
a verdict of guilty and recommended as punishment ten years imprisonment and a $5,000.00
fine on Count 1; seventeen years imprisonment
and a $5,000.00 fine on Count 2; and one year
in the county jail plus a $500.00 fine on Count
3. The Honorable Douglas W. Golden, District
Judge, sentenced Boyles in accordance with the
jury’s verdicts and ordered the sentences on
Counts 1-2 to run consecutively and ordered
the sentence on Count 3 to run concurrent with
Count 2. From this judgment and sentence
Andrew Dewaun Boyles has perfected his
appeal. AFFIRMED. Opinion by: Hudson, J.;
Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs;
A. Johnson, J., Concurs; Lewis, J., Concurs.
Thursday, January 7, 2016
F-2014-769 — Appellant, Gary Davis was
tried before the court and found guilty of trafficking in illegal drugs, in violation of 63 O.S.
2011, § 2-415, after former conviction of two (2)
or more felonies, in the Associate District Court
of Carter County, Case No. CF-2013-633. The
Honorable Lee Card, District Judge, sentenced
Appellant to twenty (20) years imprisonment
and a $2,500.00 fine. The trial court sentenced
accordingly. From this Judgment and Sentence,
Gary Davis has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; Clancy Smith,
162
P.J., Concurs in Results; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs in Results; Hudson,
J., Concurs.
F-2014-975 — Appellant, Dennis Ray Daney,
was convicted by jury of first degree malice
murder in violation of 21 O.S.2011, § 701.7(B),
in the District Court of Tulsa County, case
number CF-2013-577, before the Honorable
Mark Barcus, District Judge. In accordance
with the jury verdict, Judge Barcus sentenced
Daney to life without the possibility of parole.
Daney has perfected his appeal to this Court.
AFFIRMED. Opinion by: Lewis, J.; Clancy
Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs;
Johnson, J., Concurs; Hudson, J., Concurs.
F-2014-880 — Sandro Ramos, Appellant, was
tried by jury and found guilty of Count 1, first
degree rape, in violation of 21 O.S.2011, § 1114
(A)(1) and Counts 2 through 5, lewd molestation, in violation of 21 O.S.2011, § 1123, in the
District Court of Choctaw County, Case No.
CF-2013-165. The jury sentenced Appellant to
life imprisonment in Count 1, and ten (10) years
imprisonment in each of Counts 2 through 5.
The Honorable Gary L. Brock, Special Judge,
pronounced judgment and ordered the sentences served consecutively. Mr. Ramos has perfected his appeal to this court. AFFIRMED.
Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J.,
Concurs; Hudson, J., Concurs.
F-2014-554 — John Kennedy Onyango, Appellant, was convicted of first degree rape in
violation of 21 O.S.Supp.2008, § 1114, in Payne
County district court case number CF-2010578, before the Honorable Phillip Corley, District Judge. The jury set punishment at thirtyfive (35) years imprisonment. The trial court
sentenced accordingly. Onyango has perfected
his appeal to this court. The Judgment and Sentence of the district court is AFFIRMED. Appellant’s application for an evidentiary hearing
and motion to supplement the record is
DENIED. Opinion by: Lewis, J.; Clancy Smith,
P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Recuses.
Friday, January 8, 2016
S-2015-432 — State of Oklahoma, Appellant,
charged Appellee Shonda Bridge a/k/a Shonda Miller in the District Court of Pittsburg
County, Case No. CF-2014-589 with Solicitation
for Murder in the First Degree (Count one) and
Conspiracy to Commit Murder in the First
Degree (Count two). Bridge filed a motion to
The Oklahoma Bar Journal
Vol. 87 — No. 3 — 1/23/2016
quash Count One of the information for insufficient evidence. The District Court held a hearing on April 22, 2015, and sustained the motion.
The State of Oklahoma appeals that order. The
order of the District Court of Pittsburg County
quashing Count One for insufficient evidence
is REVERSED. The matter is REMANDED for
further proceedings consistent with this opinion. Opinion by: Lumpkin, V.P.J.; Smith, P.J.,
Concur; Johnson, J., Dissent; Lewis, J., Concur;
Hudson, J., Concur.
COURT OF CIVIL APPEALS
(Division No. 1)
Friday, January 8, 2016
113,504 — OmniAmerican Bank, a Federal
Savings Bank, Plaintiff/Appellant, vs. Donald
E. Fielden and Beckie D. Fielden, Defendants/
Appellees. Appeal from the District Court of
Osage County, Oklahoma. Honorable Bruce
David Gambill, Trial Judge. Plaintiff/Appellant, OmniAmerican Bank (Bank), seeks review
of the trial court’s order denying its motion for
deficiency judgment. We hold the trial court
failed to comply with 12 O.S. 2011 §686, and its
order is against the clear weight of the evidence. We reverse and remand with instructions to enter a deficiency judgment against
Defendant/Appellee, Donald E. Fielden, in the
amount of $91,223.85. REVERSED AND REMANDED. Opinion by Goree, J.; Buettner,
V.C.J., P.J., and Mitchell, J., concur.
113,537 — Teddy Ryder, Petitioner, vs. Argonaut Insurance Co. and The Workers’ Compensation Court of Existing Claims, Respondents.
Proceeding to Review an Order of a ThreeJudge Panel of The Workers’ Compensation
Court of Existing Claims. Petitioner (Claimant)
appeals from an order of a three-judge panel of
the Workers’ Compensation Court of Existing
Claims, modifying in part and vacating in part
an order of the trial court. Because Claimant
failed to properly preserve his propositions of
error on appeal for review, we sustain. SUSTAINED. Opinion by Mitchell, J.; Buettner,
V.C.J., P.J., and Goree, J., concur.
Vol. 87 — No. 3 — 1/23/2016
113,579 — In Re Estate of Mary Luise Robinson, deceased: Michael Irringer, Petitioner/
Appellant, vs. Kimberly B. Nisbett, Respondent/Appellee. Appeal from the District Court
of Comanche County, Oklahoma. Honorable C.
William Stratton, Judge. Petitioner/Appellant
Michael Irringer appeals from the trial court’s
order admitting the will of Mary Luise Robinson (Decedent) to probate and appointing
Respondent/Appellee Kimberly B. Nisbett as
Personal Representative of the Estate of Decedent. Irringer argues the trial court erred by
finding Decedent had testamentary capacity
and that the will was not tainted by undue
influence. We hold the judgment of the trial
court is not clearly contrary to the weight of the
evidence nor is it contrary to law. AFFIRMED.
Opinion by Buettner, V.C.J., P.J.; Mitchell, J.,
and Goree, J., concur.
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. Appeal from the District Court
of Oklahoma County, Oklahoma. Honorable
Bernard M. Jones, Judge. Brandon and Danielle
Andrew, individually and as Guardians of Briana Andrew, appeal from the trial court’s
denial of their motion to reconsider summary
judgment granted to Defendant/Appellee
Mercy Health Center, Inc. The Andrews sued
Mercy and the other Defendants for medical
negligence, alleging their daughter was injured
during her birth. The evidentiary materials
attached to the summary judgment pleadings
do not show a dispute of material fact as to
whether Mercy’s employees caused or contributed to the injury. Accordingly, Mercy was
entitled to judgment as a matter of law and we
find no abuse of discretion in the denial of the
motion to reconsider. We affirm. AFFIRMED.
Opinion by Buettner, V.C.J., P.J.; Mitchell, J.,
concurs, and Goree, J., dissents with opinion.
The Oklahoma Bar Journal
163
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conference room, kitchen, receptionist and phone. Call
405-239-2726.
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 [email protected].
POSITIONS AVAILABLE
FRANDEN, FARRIS, QUILLIN, GOODNIGHT &
ROBERTS a mid-size, Tulsa AV, primarily defense litigation firm seeks a lawyer with 1-5 years’ experience
WITH EMPHASIS ON RESEARCH AND WRITING. If
interested, please send, confidential resume, references
and writing samples to [email protected].
OKLAHOMA CITY AV RATED MEDICAL MALPRACTICE AND INSURANCE DEFENSE FIRM seeks
an associate attorney with zero to three years’ experience. Candidate must be highly motivated, possess the
ability, experience, and confidence to appear in court
for motion hearings and trial. Position requires strong
communication, research and writing skills. Competitive benefits and compensation package will be commensurate with experience. All replies are kept in strict
confidence. Applicants should submit résumé, cover
letter, and writing sample to: “Box C,” Oklahoma Bar
Association, PO Box 53036 Oklahoma City, 73152.
THE CROSTHWAIT LAW FIRM, A SMALL AV RATED
FIRM IN MIDWEST CITY, is seeking a highly motivated associate with a MINIMUM of 2 years’ experience
for its active practice in the areas of probate, estate
planning and guardianships and related litigation,
family law, personal injury, construction litigation,
general litigation and appellate practice. The successful
applicant must have a strong academic background,
excellent research and writing skills, strong computer
skills, good people skills and a clear interest in developing his or her own clients and practice for the long
run. Compensation will be based upon entering experience and performance. Please submit your resume and
writing sample to [email protected]. All inquiries will be held in strict confidence.
DOWNTOWN OKLAHOMA CITY LAW FIRM HAS
AN IMMEDIATE OPENING FOR AN EXPERIENCED
LEGAL SECRETARY. We are looking for a candidate
with at least 2 years’ experience, good time management, typing and computer skills. Must be able to
multitask in a busy work environment. Salary commensurate with experience. Benefits include health
insurance and retirement savings contributions and
paid covered parking. Please send your resume to
[email protected].
Vol. 87 — No. 3 — 1/23/2016
TRIAL BASED PRACTICE CENTERING AROUND
CRIMINAL AND DOMESTIC RELATIONS in NE
Oklahoma. Offices in Jay and Miami. Enjoy the lake environment with a competitive salary, bonus incentives,
benefits and multiple legal assistants to assist you.
Send resumes to Stockwell, Connor & Weedn PLLC,
462 W. Krause Street, P.O. Box 1227, Jay, OK 74346 or to
[email protected]; 918-253-6655 (fax).
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 [email protected].
FRANDEN, FARRIS, QUILLIN, GOODNIGHT AND
ROBERTS a mid-size, Tulsa AV, primarily defense litigation firm seeks a lawyer with 5-10 YEARS’ EXPERIENCE. If interested, please send confidential resume,
references and writing samples to kanderson@tulsa
lawyer.com.
DOWNTOWN OKC PLAINTIFF’S FIRM SEEKS TRIAL ATTORNEY FOR CIVIL LITIGATION. Must come
equipped with capable research and writing skills,
while other trial lawyer skills can be developed. Employment possible but association likely to be on a contract basis. We are going to build the strongest trial
team in the state to help people get their life back and
hold rule breakers accountable. Send writing sample
and resume, which will be kept confidential, to: “Box
J,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
AV RATED PERSONAL INJURY LAW FIRM SEEKING
1 OR 2 HIGHLY MOTIVATED ATTORNEYS to take on
his/her own caseload. Compensation is a percentage
of fees generated. Substantial compensation potential
for the hard working attorney. Send Resumes to Hard
[email protected].
The Oklahoma Bar Journal
165
POSITIONS AVAILABLE
POSITIONS AVAILABLE
APPLICANTS WANTED FOR A SENIOR PARALEGAL POSITION. T.D. Williamson is seeking to hire an
experienced, business-oriented paralegal to support
the Senior Legal Counsel & Global Compliance Director in the worldwide implementation, management
and administration of TDW’s Code of Conduct and
Business Ethics, its Anti-Corruption Manual, hotline
management and other internal investigations, global
ethics training programs, the review and retention of
agents, business partners, and representatives in foreign jurisdictions, audits of compliance-related activities, maintaining comprehensive records of compliance
and audit related activities and general administrative
duties. The ideal candidate will have some international anti-corruption compliance knowledge and training
experience, and superior oral and written communication skills. Good judgment and discretion are essential.
An eye for detail and a knack for effective organization
are also important qualifications, as are strong problem
solving skills with an ability to work independently in a
professional environment. A background in accounting,
fraud detection training, and foreign language proficiency a big plus. Some travel will be required. A bachelor’s
degree in business or a related field and a minimum of
five years of legal experience is required. Paralegal certification is strongly preferred. Please send resumes to Lisa
Stone at [email protected].
FRANDEN, FARRIS, QUILLIN, GOODNIGHT AND
ROBERTS a mid-size, Tulsa AV, primarily defense litigation firm seeks a lawyer with 1-5 YEARS’ EXPERIENCE.
If interested, please send confidential resume, references
and writing samples to [email protected].
MULTI-STATE LITIGATION FIRM IS SEEKING SENIOR ASSOCIATES OR FIRST LEVEL PARTNERS for
their Tulsa and/or Oklahoma City offices. Must be willing to work together as a team in a very active practice.
We handle a variety of interesting cases that challenge a
lawyer’s creativity. Experience in products liability,
trucking/transportation, catastrophic injury and premise liability necessary. Additional experience in insurance coverage and/or employment law is a bonus. We
hire and pay for the proven best and the brightest. The
pay is commensurate with salaries in the area, but the
bonuses are not. That is where the best and brightest
get their reward for a job well done. A firm where meritocracy truly rules. Only those up to the challenge
need apply. To apply, send resumes to “Box Q,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City,
OK 73152.
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.
SOCIAL SECURITY DISABILITY PRACTICE SEEKS
RESEARCH AND WRITING ATTORNEY to prepare
Federal District Court briefs and other filings on contract basis. Terms negotiable. Long term relationship
desired. Work independently and remotely encouraged. Send replies to “Box O,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.
CLASSIFIED INFORMATION
REGULAR CLASSIFIED ADS: $1.25 per word with $35 minimum per insertion. Additional $15 for blind box. Blind box
word count must include “Box ___,” Oklahoma Bar Association, PO Box 53036, Oklahoma City, OK 73152.”
DISPLAY CLASSIFIED ADS: Bold headline, centered, border
are $60 per inch of depth.
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:
[email protected], or
Mackenzie McDaniel, Oklahoma Bar Association,
PO Box 53036, Oklahoma City, OK 73152.
Publication and contents of any advertisement are not to be
deemed an endorsement of the views expressed therein, nor
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.
166
The Oklahoma Bar Journal
Vol. 87 — No. 3 — 1/23/2016
Vol. 87 — No. 3 — 1/23/2016
The Oklahoma Bar Journal
167
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Please remember the MCLE rules require
no more than 6 of the 12 CLE credits per
year can be earned by participating in
online, on-demand seminars. You may earn
unlimited hours for live programs, webcast
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To register go to: www.okbar.org/members/CLE/OnDemand