Volume 86 u No. 22 u Aug. 29, 2015

Transcription

Volume 86 u No. 22 u Aug. 29, 2015
1714
The Oklahoma Bar Journal
Vol. 86 — No. 22 — 8/29/2015
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Vol. 86 — No. 22 — 8/29/2015
Oklahoma Bar Association
table of
contents
Aug. 29, 2015 • Vol. 86 • No. 22
page
1718 Index to Court Opinions
1719Supreme Court Opinions
1740Changes Proposed to the Rules
Governing Disciplinary Proceedings
1742Court of Civil Appeals Opinions
1753Board of Governors 2016 Vacancies
1755 Calendar of Events
1756Disposition of Cases Other Than by Publication
Vol. 86 — No. 22 — 8/29/2015
1717
Index to Opinions of Supreme Court
2015 OK 54 DR. BRUCE PRESCOTT, JAMES HUFF, and CHERYL FRANKLIN, Plaintiffs/Appellants, DONALD CHABOT, Plaintiff, v. OKLAHOMA CAPITOL PRESERVATION COMMISSION, Defendant/Appellee. No. 113,332..................................................... 1719
2015 OK 57 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. ROBERT JOHN NICHOLS, Respondent. SCBD 6293 Rule 6.2A........................... 1738
Index to Opinions of Court of Civil Appeals
2015 OK CIV APP 64 IN THE MATTER OF THE ESTATE OF RALPH DEAN KENWORTHY AND FLORITA KENWORTHY, BOTH DECEASED: KRISTINE KENWORTHY
RIDDER, PERSONAL REPRESENTATIVE OF THE ESTATES OF RALPH DEAN
KENWORTHY AND FLORITA KENWORTHY, Plaintiff/Appellee, vs. LYNNE ROBERTS, AN INDIVIDUAL, Defendant/Appellant. Case No. 113,817......................................... 1742
2015 OK CIV APP 65 HOBBY LOBBY and TWIN CITY FIRE INSURANCE, Petitioners,
vs. NEIL ROBERTS and THE WORKERS’ COMPENSATION COURT OF EXISTING
CLAIMS, Respondents. Case No. 113,371...................................................................................... 1744
2015 OK CIV APP 66 GREGORY M. EGLESTON, Plaintiff/Appellant, vs. CHESAPEAKE
ENERGY CORPORATION, Defendant/Appellee. Case No. 112,925........................................ 1747
NOTICE OF JUDICIAL VACANCY
The Judicial Nominating Commission seeks applicants to fill the following judicial office:
District Judge
Seventh Judicial District, Office 9
Oklahoma County, Oklahoma
This vacancy is due to the resignation of the Honorable Bernard M. Jones effective July 30, 2015.
To be appointed to the office of District Judge, Office 9, Seventh Judicial District, one
must be a registered voter of Oklahoma County Electoral Division One at the time (s)
he takes the oath of office and assumes the duties of office. Additionally, prior to
appointment, such appointee shall have had a minimum of four years experience as a
licensed practicing attorney, or as a judge of a court of record, or both, within the State
of Oklahoma.
Application forms can be obtained on line at www.oscn.net under Programs and the link
to Judicial Nominating Commission, or by contacting Tammy Reaves at (405) 556-9862, and
must be submitted to the Chairman of the Commission at the same address no later than
5 p.m., Friday, Sept. 11, 2015. If applications are mailed, they must be postmarked by midnight, Sept. 11, 2015.
Stephen Beam, Chairman
Oklahoma Judicial Nominating Commission
1718
Vol. 86 — No. 22 — 8/29/2015
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)
2015 OK 54
DR. BRUCE PRESCOTT, JAMES HUFF, and
CHERYL FRANKLIN, Plaintiffs/Appellants,
DONALD CHABOT, Plaintiff, v.
OKLAHOMA CAPITOL PRESERVATION
COMMISSION, Defendant/Appellee.
No. 113,332. July 27, 2015
ORDER DENYING REHEARING
¶1 The Oklahoma Capitol Preservation Commission (Commission) filed for rehearing from
this Court’s opinion filed on June 30, 2015.
“Generally, rehearing is granted: (1) to correct
an error or omission; (2) to address an unresolved jurisdictional issue; or (3) to clarify the
opinion.” Tomahawk Res., Inc. v. Craven, 2005
OK 82, supp. opinion on reh’g, ¶ 1 (internal citations omitted). We carefully consider the arguments of the Commission and find no merit
warranting a grant of rehearing. The petition
for rehearing of Appellee, Oklahoma Capitol
Preservation Commission, is denied.
DONE BY ORDER OF THE SUPREME
COURT IN CONFERENCE THIS 27th day of
July 2015.
/s/ John F. Reif
CHIEF JUSTICE
Concur: Reif, C.J. (by separate writing), and
Kauger, Watt, Winchester, Edmondson (by separate writing), Taylor (by separate writing with
whom Gurich, J. joins), and Gurich (by separate writing), J.J.
Dissent: Combs, V.C.J. (by separate writing),
and Colbert, J.
REIF, C.J., concurring specially to the denial
of rehearing,
¶1 For the most part, I concur to the denial of
Appellee’s petition for rehearing. Several reasons support such action.
¶2 First, the per curiam opinion contains no
misstatement of fact or law. Furthermore, the
per curiam opinion sets forth settled law that
is dispositive of the issue presented and correctly applies such law in deciding the issue.
More particularly, the per curiam opinion
properly seeks the intent of Article 2, Section
Vol. 86 — No. 22 — 8/29/2015
5 in its text and the plain meaning of its language. Because this intrinsic analysis revealed
no ambiguity, resort to extrinsic aids is improper and unnecessary.
¶3 As this Court has recently observed,
“Absent an ambiguity, the intent of the framers
and electorate is settled by the language of the
provision itself and courts are not at liberty to
search for its meaning beyond the provision.”
Fent v. Fallin, 2014 OK 105, ¶ 10, 345 P.3d 1113,
1116. The reason for this rule is simple: “Constitutional provisions are not made for parsing
by lawyers, but for the instruction of the people and the representatives of government, so
that they may read and understand their rights
and duties.” Id., ¶ 12, 345 P.3d at 1117.
¶4 Interestingly, the Legislature has likewise
shown that it considers the language in Article
2, Section 5, to provide clear and unambiguous
instruction for public officials. In 1981, the Legislature enacted 53 O.S. § 20.10, now 53 O.S.
2011, § 1.18. This statute governs the expenditure of funds by the Oklahoma Historical Society and provides, in pertinent part, that “Funds
shall not be applied, donated or used directly
or indirectly for the use, benefit or support of
any sect, church, denomination or system of
religion, or for the use, benefit or support of any
priest, preacher, minister, or other religious
teacher or dignitary, or sectarian institution as
such.” This statutory language is virtually identical to the text of Article 2, Section 5.
¶5 Finally, the narrow scope of the per curiam opinion is also consistent with the principle
of judicial restraint. This principle dictates that
if resolution of an issue effectively disposes of
a case, a court should resolve the case on that
basis without reaching any other issues that
might be presented. Manning v. Upjohn Co., 862
F.2d 545, 547 (5th Cir. 1984).
¶6 Even though these considerations support the denial of rehearing, I would grant
rehearing for the limited purpose of addressing the case of Meyer v. Oklahoma City, 1972 OK
46, 496 P.2d 789. Although clearly distinguishable from the case at hand, the Meyer case nonetheless provides helpful guidance in deciding
whether a particular use of public property is for
the benefit of a system of religion.
1719
¶7 In Meyer, the taxpayer-plaintiff sought
removal of a 50’ Latin Cross from City property
located at the Oklahoma City Fair Grounds.
This Court affirmed the trial court’s dismissal
of the taxpayer’s petition, observing: “The
alleged commercial setting in which the cross
now stands . . . obscures whatever suggestions
may emanate from its silent form [and]
vitiate[s] any use, benefit or support for any
sect, church, denomination, system of religion
or sectarian institution as such.” Id., ¶ 11, 496
P.2d at 792-3.
¶8 This conclusion was grounded on two factors. First, this Court noted that “The cross is in
a distinctly secular environment in the midst of
persons in pursuit of distinctly secular entertainment.” Id., 496 P.2d at 792. Secondly, this
Court stressed that the cross did not “display,
articulate or portray . . . any ideas that are
alleged to pertain to any of the sectarian institutions or systems named in Article 2, § 5.” Id.
¶9 The circumstances of the case at hand fail
this test. First, the State Capitol, unlike the Oklahoma City Fair Grounds, is not a “commercial
setting” nor “a distinctly secular environment”
where persons are seeking “distinctively secular
entertainment.” The State Capitol is the Seat of
State Government where the business of the
people is debated and transacted.
¶10 Secondly, the Ten Commandments monument at issue in this case is nothing like the
plain simple cross whose “symbolic message”
was said to be “evanescent” or fleeting within
the “commercial setting” of the fair grounds.
The Ten Commandments monument in this
case does explicitly “display” and “articulate”
ideas that directly pertain to the Judeo-Christian system of religion.
laration “I AM the LORD thy GOD.” This declaration is followed by four directions for the
worship of God. In addition, the “historical”
commandments are immediately preceded by
a divine promise of long life for honoring one’s
parents. They are immediately followed by
divinely ordained proscriptions against coveting things belonging to one’s neighbor; a matter of conscience, not general social order. This
dominance of the explicit religious message
renders the monument “operative in an effective way” for the benefit of the of the JudeoChristian system of religion. Meyer, ¶ 11, 496
P.2d at 792. As such, the monument’s display
on public property is properly enjoined. Id.
Edmondson, J., Concurring in denial of
rehearing.
¶1 The Attorney General’s historical argument is incorrect. The origin of Okla. Const.
Art. 2 § 5 is with Thomas Jefferson and the
example set by the People of Virginia and not
the 1876 Blaine Amendment. See Connell v.
Gray, 1912 OK 607, 127 P. 417, 420, where the
Court discussed the connection between Art. 2
§ 5 and a 1786 Virginia statute. See also R. L.
Williams, The Constitution of Oklahoma and
Enabling Act: Annotated with References to the
Constitution, Statutes and Decisions, 1941, 2d ed.,
Art. 2 § 5, citing in the annotation the opinion
Pfeiffer v. Board of Education of the City of Detroit,
118 Mich. 560, 77 N. W. 250, 251-252 (1898) and
its explanation of an 1835 provision of that
state’s constitution which was in turn based
upon the Virginia Constitution of 1830.
¶11 The text of the Ten Commandments displayed on the monument is an edited version
of the text of the Ten Commandments appearing in the King James Version of the Bible.
Exodus 20:1-17 and Deuteronomy 5:6-21
(Authorized King James Version, Thomas Nelson Inc., 1999). While four of the commandments displayed on the monument do have
counterparts in Oklahoma statutory law (proscriptions against killing, stealing, adultery
and bearing false witness), these commandments are subsumed in a distinctly religious
context that obscures whatever historical suggestions may emanate from them.
¶2 Further, unlike the one at hand a monument on public property communicating religious speech must also be capable of being
reasonably construed to communicate a secular or nonreligious meaning as determined by
its language and the setting it is placed. Compare McCreary County v. American Civil Liberties
Union of Ky., 545 U.S. 844, 125 S.Ct. 2722, 162
L.Ed.2d 729 (2005) (under contextual facts, Ten
Commandments monument must be removed)
with Van Orden v. Perry, 545 U.S. 677, 125 S.Ct.
2854, 162 L.Ed.2d 607 (2005) (under contextual
facts, the Ten Commandments monument may
stay). Cf. Meyer v. City of Oklahoma City, 1972
OK 45, 496 P.2d 789, 792 (no violation, considering the “silent” and “evanescent” (ephemeral, vanishing, transitory) nature of the fairgrounds cross).
¶12 The text of the Ten Commandments displayed on the monument begins with the dec-
¶3 Federal law is similar by allowing monuments with religious speech when the monu-
1720
Vol. 86 — No. 22 — 8/29/2015
ment also portrays a secular meaning. The
United States Court of Appeals for the Tenth
Circuit has recognized that “The Ten Commandments have a secular significance that
government may acknowledge . . . [and] we are
unwilling to presume that the text of the Ten
Commandments here could not be constitutionally integrated into a governmental display
that highlights its secular significance.” Green
v. Haskell County Board of Commissioners, 568
F.3d 784, 798 (10th Cir. 2009), cert. denied sub
nom, Haskell County Bd. of Com’rs v. Green, 559
U.S. 970, 130 S.Ct. 1687, 176 L.Ed.2d 180 (2010).
1929 OK 116, ¶ 30, 278 P. 311, 315 (quoting Lake
Cnty. v. Rollins, 130 U.S. 662 (1889)). When a
challenge is limited to the Oklahoma Constitution, we look first to its language, which if
unambiguous, binds this Court; and we “are
not at liberty to search for its meaning beyond
the instrument.” Id. ¶ 0, 278 P. at 311 (Syllabus
by the Court No. 5); Gurney v. Ferguson, 1941
OK 397, ¶ 12, 122 P.2d 1002, 1004 (quoting Judd
v. Bd. of Educ., 15 N.E.2d 576, 584 (N.Y. 1938)
(We cannot “’circumvent [the constitution]
because of private notions of justice or because
of personal inclinations.’”)).1
¶4 We have no embracing historical and secular context here. This isolated monument stating religious principles with religious symbols,
without any other statements of secular historical relevance, and no proximate presentation with a common secular theme, compels
my conclusion that it violates the Oklahoma
Constitution, Article 2 § 5.
¶3 Article II, Section 5 of the Oklahoma Constitution, titled “Public money or property —
Use for sectarian purposes,” states:
¶5 I concur in the denial of the petition for
rehearing.
Taylor, J., with whom Gurich, J. joins, concurring in the denial of the petition for rehearing:
¶1 I concur in the Court’s order denying
rehearing. I write separately to address issues
raised in the Oklahoma Capitol Preservation
Commission’s petition for rehearing, filed by
the Oklahoma Attorney General, and issues
which were not directly confronted in this
Court’s opinion. The Commission urges that
(1) this Court’s jurisprudence permits items
which benefit a system of religion to be placed
on state property, (2) an analysis of the U.S.
Constitution’s Establishment Clause is relevant
here and should be considered in this case, and
(3) the Ten Commandments have historical,
legal, and secular significance which override
any religious benefit. Finally, the Commission
has concern about the effect of this Court’s
decision on artworks housed in the State Capitol and on its grounds. I find nothing in the
Commission’s petition that convinces me that
this Court should grant rehearing.
I. Oklahoma’s Jurisprudence
¶2 As to the first of the Commission’s arguments, this Court’s jurisprudence is based first
and foremost on the United States and Oklahoma constitutions. Okla. Const. art. I, § 1. The
objective of construing the Oklahoma Constitution is to give effect to the framers’ intent, as
well as the people adopting it. Shaw v. Grumbine,
Vol. 86 — No. 22 — 8/29/2015
No public money or property shall ever
be appropriated, applied, donated, or used,
directly or indirectly, for the use, benefit, or
support of any sect, church, denomination,
or system of religion, or for the use, benefit,
or support of any priest, preacher, minister,
or other religious teacher or dignitary, or
sectarian institution as such.
Because Article II, Section 5 is unambiguous as
discussed in this Court’s opinion, it was not
error for this Court to rely solely on the Oklahoma Constitution as the basis for its decision.
This provision unequivocally bars the state
from allowing its property to be used for a religious benefit. Okla. Const. art. II, § 5. Article II,
Section 5 is a clear limitation on state government spending and use of public property. It is
a limitation on the state’s reach into its citizens’
private lives.
¶4 Although we need not search for extraneous support for our construction of Article II,
Section 5’s meaning, it is reassuring that this
Court’s construction is consistent with the
framers’ intent. Albert H. Ellis, the Second Vice
President of the Constitutional Convention,
explained that Article II, Section 5 was intended to be “one of the safest of our safeguards.”
Albert H. Ellis, A History of the Constitutional
Convention of the State of Oklahoma 134 (1923).
Mr. Ellis clarified that the Convention wrote
Article II, Section 5 “knowing the history of the
union of Church and State in Europe and in
New England in Colonial days,” and utilized
the lessons learned in those situations. Id.
¶5 Mr. Ellis further explained that Article II,
Section 5
1721
not only guards the citizens right to be free
from taxation for the support of the church,
but protects the rights of all denominations, however few the number of their
respective adherents, by with-holding any
incentive that might prompt any ecclesiastical body to participate in political struggles and by reason of their numbers exert
an undue influence and become beneficiaries at the expense of the public and a menace to weaker denominations and ultimately destructive of rel[i]gious liberty.
Id. It is also important to note that in his very
complete discussion of Article II, Section 5, Mr.
Ellis never mentions the Blaine Amendment.
¶6 The Oklahoma Constitutional Convention
members started their proceedings with a
prayer and the invocation of God’s guidance
and prefaced the Oklahoma Constitution by
invoking God’s guidance, all this showing that
they were religious men who believed in God.
Okla. Const. pmbl. However, they were also
men who advocated for the toleration of all religious beliefs and complete separation of church
and state by going further than the federal constitution. Closely following the preamble is
Article I, Section 2 of the Oklahoma Constitution, which is entitled “Religious liberty —
Polygamous or plural marriages.” Section 2
secures “[p]erfect toleration of religious sentiment” and provides “no inhabitant of the State
shall ever be molested in person or property on
account of his or her mode of religious worship
. . . .” Okla. Const. Art. I, § 2. Then only three
sections later, the Constitutional Convention
provided for public schools “free from sectarian control.” Okla. Const. art. I, § 5. Seven sections later, they prohibited the use of state
property, directly or indirectly, for the use,
benefit, or support of religious group. Okla.
Const. art. II, § 5. While the constitutional
framers may have been men of faith, they recognized the necessity of a complete separation
of church and state and sought to prevent the
ills that would befall a state if they failed to
provide for this complete separation in the
Oklahoma Constitution.2
¶7 Applying Article II, Section 5, there is no
question that the monument is on state property. The Appellee set it on the plaza directly
north of the Oklahoma Capitol, which is part of
the state capitol complex. The monument proclaims: “ I AM the LORD thy God. Thou shalt
have no other gods before me.” See Appendix.
The first part of the Ten Commandments con1722
cerns the religious duties of believers: worshipping the Lord God alone, avoiding graven
images, not using the Lord’s name in vain, and
observing the Sabbath Day.” Stone v. Graham,
449 U.S. 39, 41 (1980). Many Christians and
Jews believe these to be the direct words of
God. ACLU of Ky. v. McCreary Cnty., 96
F.SupP.2d 679, 686 (E.D. Ky. 2000). The Ten
Commandments are inseparable from religion,
which has always been their primary purpose.
The placement of the Ten Commandments
monument on state property benefits the
Judeo-Christian system of religion. The monument’s placement on state property, proclaiming bedrock principles of the Judeo-Christian
religious system, supports and benefits a system of religion in violation of Article II, Section
5; it must be removed.
¶8 The Commission’s petition for rehearing,
filed on behalf of the defendant, argues that
this Court ignored the teachings of Meyer v.
Oklahoma City, 1972 OK 45, 496 P.2d 789; Town
of Pryor v. Williamson, 1959 OK 207, 347 P.2d
204; Murrow Indian Orphans Home v. Childers,
1946 OK 187, 171 P.2d 600; and Connell v. Gray,
1912 OK 607, 127 P. 417. However, none of
these cases change Article II, Section 5’s plain
language or our construction of it.
¶9 This Court first addressed Section 5 in
Connell v. Gray, 1912 OK 607, 127 P. 417. A college student was denied admission into a public university because she refused to pay a
five-dollar term fee, half of which was put in
trust to cover broken equipment and the other
half going to, among other things, support of
student-sectarian organizations like the Young
Men’s Christian Association (YMCA) and the
Young Women’s Christian Association
(YWCA). Id. ¶ 1, 127 P. at 417. The Court held
that it is impermissible for the legislature or a
state-run organization to fund or require payment for the YMCA and the YWCA because
they promulgate sectarian principles. Id. Just as
Article II, Section 5 bans the state from forcing
its citizens to fund a religious organization, it
bars the state from subjecting its citizens to an
assault of religion in which they do not adhere.
¶10 Although the Commission ignores this
Court’s decision in Gurney v. Furguson, 1941
OK 397, 122 P.2d 1002, the next in this line of
cases, any survey of our jurisprudence on the
issue before us requires its consideration. The
Court ruled legislation unconstitutional which
compelled school district officials to use public
school buses to pick up and transport students
Vol. 86 — No. 22 — 8/29/2015
who attended private or parochial schools. Id.
¶ 16, 122 P.2d at 1005. The Court concluded
that the legislation authorized the use of public
school funds to support sectarian schools. Id. ¶
9, 122 P.2d at 1004. The Court ruled that any
“legislative enactment which has the effect of
authorizing or requiring the use of public
property or the expenditure of public school
funds in transporting pupils of a sectarian
school to and from such school is violative of
section 5, article 2 of the Constitution of Oklahoma.” Id. ¶ 0, 122 P.2d at 1002 (Syllabus by the
Court No. 3).
¶11 In Murrow Indian Orphans Home v.
Childers, 1946 OK 187, 171 P.2d 600, this Court
again analyzed Article II, Section 5. A Baptistaffiliated home for Native American orphans
contracted with the state to provide care to
children in exchange for payment. Id. ¶ 2, 171
P.2d at 601. The Court analyzed this issue by
contrasting the public money paid to the organization affiliated with a sectarian institution
against the consideration the state received by
the organization housing Native American
orphans. Id. ¶ 5, 171 P.2d at 603. The Court
ruled that the state received sufficient consideration in exchange for the public money given
to the organization and that the state was not
using public money “for the use, benefit, or
support of any sect, church, denomination, or
system of religion.” Id. ¶ 10, 171 P.2d at 603.
¶12 Childers has no application here. First, it
is in a line of cases dealing with the expenditure of money to a sectarian organization. Second, there is not even a hint in this case that
Oklahoma received any benefit for allowing
the use of state property for this monument.
¶13 The Commission’s reliance on State ex
rel. Town of Pryor v. Williamson, 1959 OK 207,
347 P.2d 204, is misplaced. This Court was confronted with the issue of whether Article II,
Section 5 barred the use of public funds for the
construction of a non-sectarian, non-denominational chapel built at a state-owned orphans
home. As the plaintiffs point out in their
response to the petition to rehearing, Pryor is
distinguishable because the chapel was eliminating a barrier to the exercise of religion.
¶14 In Meyer v. Oklahoma City, 1972 OK 45,
496 P.2d 789, a taxpayer challenged a fifty-foot
high Latin cross, which had been erected at the
state fairgrounds on public property but paid
for with private money. The City of Oklahoma
City paid to landscape the property and for
Vol. 86 — No. 22 — 8/29/2015
lighting the cross. Id. ¶ 1, 496 P.2d at 790. The
Court noted that Article II, Section 5 was
“designed to prevent sectarian bodies from
making raids upon the public treasury or from
subjecting public property to unauthorized
sectarian uses.” Id. ¶ 6, 496 P.2d at 791. Central
to the Court’s analysis was the location of the
cross, public property in a commercial setting
— a “distinctly secular environment in the
midst of persons in pursuit of distinctly secular
entertainment.” Id. ¶ 11, 496 P.2d at 792.
Improperly applying the federal Establishment
Clause’s analysis to Article II, Section 5, and
presuming the cross to be secular, the Court
examined the cross in light of the location, ruling
that it “cannot be said to display, articulate or
portray, except in a most evanescent form, any
ideas that are alleged to pertain to any of the
sectarian institutions or systems named in Art. 2,
§ 5.” Id.
¶15 I find the Meyer opinion to be lacking in
value. First, it relied in part on Williamson, 1959
OK 207, 347 P.2d 204, which is discredited. Second, it is absent of analysis on and misstates
the actual nature of the cross itself. Id. Third, by
improperly applying the federal analysis to the
Oklahoma Constitution, it created an unprecedented distinction in Article II, Section 5 by
examining the nature of the public property
(commercial, residential, or governmental).
This distinction is nonexistent in and repugnant to the plain language of the constitutional
provision. See id. Meyer is an anomaly in our
jurisprudence, and no other case adopts the
distinction of the property’s nature. This Court
should place no weight on its holding or analysis, and I would explicitly overrule it.3
¶16 None of the cases cited by the Commission or other cases where this Court has undertaken an analysis under Article II, Section 5 of
the Oklahoma Constitution changes this
Court’s construction of the provision or holding that the Ten Commandments Monument
on the state capitol complex violates Article II,
Section 5 of the Oklahoma Constitution.
Blaine Amendments
¶17 Any reliance on Article II, Section 5 as a
Blaine Amendment is misplaced. It is apparent
from a comparison of the Oklahoma Constitution and the Blaine Amendment that Article II,
Section 5 is not taken from the Blaine Amendment. The Blaine Amendment was proposed
by Congressman James Blaine as an amendment to the federal constitution in the late
1723
1870’s in an attempt to boost his bid for the
presidency. Steven K. Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38, 38
(1992) [hereinafter The Blaine Amendment]. At
the time the Catholics wanted funding for their
schools and, when denied, sought to ban the
practice of daily readings of the protestant
King James Verison of the Bible in schools. Id.
at 41, 44.
¶18 The Blaine Amendment provides:
1. No State shall make any law respecting
an establishment of religion, or prohibiting
the free exercise thereof; and no religious
test shall ever be required as qualification
to any office or public trust under any
State. No public property and no public
revenue of, nor any loan of credit by or
under the authority of, the United States,
or any State, Territory, District, or municipal corporation, shall be appropriated to or
made or used for the support of any school,
educational or other institution under the
control of any religious or anti-religious
sect, organization, or denomination, or
wherein the particular creed or tenets of
any religious or anti-religious sect, organization, or denomination, shall be taught.
And no such particular creed or tenets
shall be read or taught in any school or
institution supported in whole or in part
by such revenue or loan of credit; and no
such appropriation or loan of credit shall
be made to any religious or anti-religious
sect, organization, or denomination, or to
promote its interests or tenets. This article
shall not be construed to prohibit the reading of the Bible in any school or institution;
and it shall not have the effect to impair
rights of property already vested.
Sec. 2. Congress shall have power, by
appropriate legislation, to provide for the
prevention and punishment of violations
of this article.
4 Cong. Rec. 5453 (1876).
¶19 The first sentence of the Blaine Amendment imposed the Establishment Clause’s
restrictions on states, as it was believed to only
apply to the federal government at the time. The
Blaine Amendment, at 50-51. Oklahoma’s establishment clause restriction is found at Article I,
Section 2 of the Oklahoma Constitution.
Perfect toleration of religious sentiment
shall be secured, and no inhabitant of the
1724
State shall ever be molested in person or
property on account of his or her mode of
religious worship; and no religious test
shall be required for the exercise of civil or
political rights. . . .
Okla. Const. art. I, § 2.4 Aside from imposing
the federal Establishment Clause’s restriction
on states, the Blaine Amendment deals only
with appropriations to benefit sectarian educational institutions. Oklahoma’s provision dealing with appropriations for the benefit of sectarian schools is found at Article I, Section 5,
which provides:
Provisions shall be made for the establishment and maintenance of a system of
public schools, which shall be open to all
the children of the state and free from sectarian control . . . .
Unlike Article II, Section 5 of the Oklahoma
Constitution, the Blaine Amendment does not,
except for educational institutions, address the
use of state property for the direct or indirect
benefit of a religion or system of religion.
Because the Blaine Amendment does not contain a general prohibition on the use of state
property to benefit religion, Article II, Section 5
of the Oklahoma Constitution cannot be seen
as a Blaine Amendment.
¶20 Article II, Section 5 makes no mention of
schools, the Catholic Church, or the Blaine
Amendment. Article II, Section 5 is a very
simple, straight-forward statement of our
founders that no public money or public property shall be used to support religious activity.
Article II, Section 5’s simple, very clear statement applies to everyone’s religion equally.
Our founders considered it good public policy.
II. Federal Establishment Clause
¶21 Although the issues are limited to the
Oklahoma Constitution, I address the federal
Establishment Clause only because the Commission argues that it is appropriate. Oklahoma’s establishment clause compared with the
federal Establishment Clause is far more specific in its limitations on state action. The federal Establishment Clause provides, in part:
“Congress shall make no law respecting an
establishment of religion, or prohibiting the
free exercise thereof . . . .” U.S. Const. amend. I.
It is evident from the difference in language
used in Article II, Section 5 of Oklahoma Constitution and the federal Establishment Clause
that they require different analyses.
Vol. 86 — No. 22 — 8/29/2015
¶22 While a violation of Article II, Section 5
of the Oklahoma Constitution may also violate
the federal Establishment Clause, a state can
always restrict its government’s powers
beyond the limits imposed on state action by
the federal constitution. Alva State Bank & Trust
Co. v. Dayton, 1988 OK 44, ¶ 7, 755 P.2d 635, 638;
cf. Kelo v. City of New London, 545 U.S. 469, 489
(2005) (“We emphasize that nothing in our
opinion precludes any State from placing further restrictions on its exercise of the takings
power.”). The Commission fails to explain and
fails to support its position with any authority
to the contrary.
¶23 Interestingly, and wrongly in my opinion, the defendant and the Legislature heavily
relied on Van Orden v. Perry, 545 U.S. 677
(2005), for the constitutionality of and framework for erecting the monument in the present
case. On June 27, 2005, the United States Supreme
Court decided Van Orden, a plurality opinion,5
and McCreary County, Kentucky v. American Civil
Liberties Union of Kentucky, 545 U.S. 844 (2005), in
which five Justices concurred in the Supreme
Court’s opinion. In my opinion, McCreary is
analogous to the present case, whereas Van
Orden is not. These two United States Supreme
Court cases, like the case presently before us,
involve placement of the Ten Commandments
on government property.
¶24 There are several similarities between
the monument on the Oklahoma state capitol
complex and the Ten Commandments display
in McCreary. Both originally stood segregated
from any other historically significant monuments or displays. Both displays were initiated
by the governing legislative body with a stated
purpose of the display being of historical value
but lacking any context to indicate an object
beyond the religious nature of the text. Both
were displayed only shortly before the legal
attack seeking their removal and neither were
long-installed displays. The monument on the
Oklahoma state capitol complex is more religious in nature than the Ten Commandments
display in McCreary because the Oklahoma
monument has the additional language, “I AM
the LORD thy God,” which was not present in
McCreary. 545 U.S. at 852, 855, 869. In contrast,
the monument upheld as constitutional in Van
Orden was in place forty years before it was
legally challenged.
¶25 Concurring in judgment, Justice Breyer
cast the deciding vote in Van Orden. While the
deciding factor for the four concurring Justices
Vol. 86 — No. 22 — 8/29/2015
was the monument’s purpose, the deciding
factor for Justice Breyer was the length of time
the Texas monument had been in place before
being challenged. Justice Breyer found Van
Orden to be a borderline case. My reading of
Justice Breyer’s opinion concurring in result
leads me to the conclusion that had the longevity factor been absent, as it is here and in McCreary, the Texas monument would not have passed
constitutional scrutiny under the Establishment
Clause. Further, while the Texas monument was
identical in wording to the monument here, the
less sectarian language on the Kentucky display
that was unconstitutional shows that wording
alone is not the determining factor.
¶26 If a federal analysis is needed in the
future, this case is without question much
more analogous to McCreary than Van Orden.
Under a proper federal analysis, this monument would likely be held unconstitutional
under the First Amendment.
III. Ten Commandments’ Historical
Significance
¶27 While agreeing that the Ten Commandments has historical significance, it is above all
a religious symbol, and there is no basis to
determine that the monument is primarily historical. Article II, Section 5 does not provide an
exception for a religious monument that may
be of some historical value. Article II, Section 5
is clear; legislative intent, the nature of the
placement of a religious monument, its historical value, and whether a reasonable person
would be offended are irrelevant; and any reliance on these factors in applying Article II,
Section 5 is misplaced. The only question here
is whether the monument benefits a system of
religion. The Ten Commandments is an iconic
symbol of the Christian religion and is inherently religious. Further, with the initial inscription being “I AM the LORD thy God,” the
monument needs no external references to
know that it is primarily and foremostly religious. It is honored in the Judeo-Christian system of religion for its religious significance.
Twenty-five years ago in a case prompted
by posting the Ten Commandments in
Kentucky’s public schools, this Court recognized that the Commandments “are
undeniably a sacred text in the Jewish and
Christian faiths” and held that their display in public classrooms violated the First
Amendment’s bar against establishment of
religion. Stone found a predominantly reli-
1725
gious purpose in the government’s posting
of the Commandments, given their prominence as “’an instrument of religion . . . .’”
APPENDIX
McCreary, 545 U.S. at 859 (internal citations
omitted). Simply, the monument’s placement on
state property supports and benefits a system of
religion in violation of Article II, Section 5.
¶28 Nonetheless, I would note that the historical value of the Ten Commandments is a
recognition of the role they played in religion.6
The Ten Commandments are an iconic historic
religious text from the Old Testament. However, the Ten Commandments are not mentioned in the Federalist Papers, the Declaration
of Independence, the United States Constitution, or the Bill of Rights. Paul Finkelman, Ten
Commandments Monuments and the First Amendment, 22 Okla. Bar J. 1749 (Aug. 13, 2005), available at http://www.okbar.org/members/Bar
Journal/archive2005/Augarchive05/
obj7622ten.aspx. There was no mention of the
Ten Commandments in the debates at 1787
Philadelphia Constitutional Convention. Id.
The United States Supreme Court has never
cited the Ten Commandments as a source of
law. Id. One cannot ignore the paramount religious nature of the Ten Commandments.
VI. CONCLUSION
¶29 The plaintiffs brought their challenge to
the Ten Commandments monument’s placement on state property and the Capitol Preservation Commission’s actions under Article II,
Section 5 of the Oklahoma Constitution. The
monument is an icon of the Judeo-Christian
system of religion and is now situated on state
property. Its placement on state property benefits the Judeo-Christian system of religion in
violation of Article II, Section 5 of the Oklahoma Constitution. The questions of whether
artworks housed in the State Capitol or other
alarmist extraneous issues raised violate Article II, Section 5 are not before this Court. Article
II, Section 5 applies to all religions equally by
preventing the use of public funds or property
for any religious benefit. A conservative, strict
construction of the law leads to the conclusion
that the Ten Commandments monument’s
location on state property is a clear violation of
a straightforward, unambigious provision of
the Oklahoma Constitution.
1726
Ten Commandments Monuments on the North
Plaza of the Oklahoma State Capitol
Gurich, J., concurring in the denial of
rehearing:
¶1 I fully join in the order denying rehearing
in this case and in Justice Taylor’s concurring
opinion, but write separately to emphasize a
few additional points. In his Petition for
Rehearing, the Attorney General reargues
issues previously presented and already fully
considered by this Court. No grounds exist for
rehearing this case. See Tomahawk Res., Inc. v.
Craven, 2005 OK 82, ¶ 1, 130 P.3d 222, 225-26
(Supp. Op. on Rhg.).
¶2 Despite the fact that this Court decided
the case solely on the basis of Art. II, § 5 of the
Oklahoma Constitution,1 on rehearing, the
Attorney General continues to rely on Van
Orden v. Perry, 545 U.S. 677 (2005), arguing
that the U.S. Supreme Court upheld the constitutionality of a nearly identical Ten Command-
Vol. 86 — No. 22 — 8/29/2015
ments monument at the Texas State Capitol
under the Establishment Clause of the First
Amendment to the U.S. Constitution.2 While
the words and symbols on the monument at
the Oklahoma State Capitol are the same as the
Texas monument, the similarities between the
two cases stop there. The Attorney General
fails to mention that the Ten Commandments
monument at the Texas State Capitol has been
in place since 1961 and was donated to the
state as “one of over a hundred largely identical monoliths, and of over a thousand paper
replicas, distributed to state and local governments throughout the Nation over the course
of several decades” by the Fraternal Order of
Eagles.3 Additionally, the Ten Commandments
monument at the Texas State Capitol “sits in a
large park containing 17 monuments and 21
historical markers . . . [in a] setting [that] does
not readily lend itself to meditation or any
other religious activity.”4 In contrast, the Ten
Commandments monument at the Oklahoma
State Capitol was not erected as part of the
Fraternal Order of Eagles program of the 1950s
and 1960s, but was installed in November of
2012 as a result of the passage of the Ten Commandments Monument Display Act by the
Oklahoma Legislature and subsequent donations by private parties. The monument at the
Oklahoma State Capitol sits alone on the north
side of the Capitol, a location specifically selected as a “serene, reflective setting” and “one
which supports the reflective purpose for the
individual” in relation to the monument.5 The
monument at the Texas State Capitol went
unchallenged for more than forty years; the
monument at the Oklahoma State Capitol was
challenged less than a year after it was installed.
¶3 And although the Attorney General asks
us to rely on the Van Orden case, he does not
mention McCreary County v. American Civil
Liberties Union of Kentucky, 545 U.S. 844
(2005), which was decided the same day as Van
Orden, wherein the U.S. Supreme Court struck
down a Ten Commandments display at a Kentucky courthouse.6 In McCreary, the Ten Commandments display at the Kentucky courthouse
was first installed in the summer of 1999 and
was challenged almost immediately in November of 1999. Distinguishing the Texas case from
the Kentucky case, Justice Breyer wrote:
This case also differs from McCreary County, where the short (and stormy) history of
the courthouse Commandments’ displays
demonstrates the substantially religious
Vol. 86 — No. 22 — 8/29/2015
objectives of those who mounted them,
and the effect of this readily apparent
objective upon those who view them. That
history there indicates a governmental
effort substantially to promote religion, not
simply an effort primarily to reflect, historically, the secular impact of a religiously
inspired document. And, in today’s world,
in a Nation of so many different religious
and comparable nonreligious fundamental
beliefs, a more contemporary state effort
to focus attention upon a religious text is
certainly likely to prove divisive in a way
that this longstanding, pre-existing monument [in Texas] has not.7
The same can be said in the case before us —
almost immediately after the monument’s
installation at the Oklahoma State Capitol, the
storm began. Not only was a lawsuit filed
within months of the installation of the monument, but the Oklahoma Capitol Preservation
Commission was forced to put a moratorium
on monument requests because numerous
groups either applied to have their own symbols erected or threatened litigation.8
¶4 Whether or not the Ten Commandments
monument at the Oklahoma State Capitol
passes constitutional muster under the Establishment Clause of the First Amendment to the
U.S. Constitution is not before this Court. But a
host of federal courts have struck down similar
Ten Commandments displays under the Establishment Clause. In Books v. City of Elkhart,
Indiana, 235 F.3d 292 (7th Cir. 2000), for example, the U.S. Court of Appeals for the Seventh
Circuit held that a Ten Commandments monument at the municipal building in the City of
Elkhart erected in 1958 by the Fraternal Order
of Eagles was unconstitutional under the Establishment Clause. More recently, the U.S. Court
of Appeals for the Tenth Circuit held that a Ten
Commandments monument erected in 2005 at
the Haskell County courthouse in Stigler, Oklahoma, was unconstitutional under the Establishment Clause. Green v. Haskell County
Board of Com’rs, 568 F.3d 784 (10th Cir. 2009).9
¶5 It should also be noted that in this case the
Legislature completely ignored the role the
Oklahoma Capitol Preservation Commission is
supposed to play in selecting works of art to be
displayed at the Oklahoma State Capitol and
the Governor’s Mansion. See 74 O.S. § 4102.
Section 4104 of Title 74 provides that the Commission shall “[e]stablish standards for the
acquisition and display of works of art for pub-
1727
lic display in the Capitol and the Governor’s
Mansion and select such works. Such works of
art shall be directly related to the history and
culture of the State of Oklahoma.” Additionally, section 115:10-1-2 of the Oklahoma Administrative Code provides: “Any foundation,
group or individual interested in financing and
donating an appropriate work of art to the
State for use in the Capitol or the Governor’s
Mansion shall submit a written request for
approval of a permanent display to the Commission.”10 At no point was a written request
submitted to the Commission for approval, nor
did the Commission affirmatively vote to
authorize the placement of the Ten Commandments monument.11 The Commission had no
input with regard to the design of the monument,12 and the only vote taken by the Commission with regard to the monument was its location on the Capitol grounds.13
¶6 Instead, the Legislature passed the Ten
Commandments Monument Display Act,
which was signed into law in May of 2009, and
provides in part:
¶7 As this Court held in its Per Curiam opinion, the plain language of Art. II, § 5 of the
Oklahoma Constitution mandates the removal
of the monument:
§ 5. Public money or property - Use for
sectarian purposes.
No public money or property shall ever be
appropriated, applied, donated, or used,
sectarian institution as such.18
Our Per Curiam opinion issued in this case, in
my view, implicitly overruled Meyer v. Oklahoma City, 1972 OK 45, 496 P.2d 789, where this
Court upheld the displaying of a fifty-foot cross
at the state fairgrounds. I would explicitly overrule Meyer as that case was wrongly decided.19
Regardless, Meyer is clearly distinguishable
from this case. In Meyer, the Court said:
The State Capitol Preservation Commission or designee is hereby authorized to
permit and arrange for the placement on
the State Capitol grounds of a suitable
monument displaying the Ten Commandments. The Ten Commandments monument shall use the same words used on the
monument at issue in Van Orden v. Perry,
that the United States Supreme Court ruled
constitutional. This monument shall be
designed, constructed, and placed on Capitol grounds by private entities at no expense
to the State of Oklahoma. The State Capitol
Preservation Commission or designee is
authorized to assist private entities in selecting a location for the monument and arranging a suitable time for its placement.14
The cross is in a distinctly secular environment in the midst of persons in pursuit of
distinctly secular entertainment. Notwithstanding the alleged sectarian conceptions
of the individuals who sponsored the
installation of this cross, it cannot be said to
display, articulate or portray, except in a
most evanescent form, any ideas that are
alleged to pertain to any of the sectarian
institutions or systems named in Art. 2, § 5.
The alleged commercial setting in which
the cross now stands and the commercial
atmosphere that obscures whatever suggestions may emanate from its silent form,
stultify its symbolism and vitiate any use,
benefit or support for any sect, church,
denomination, system of religion or sectarian institution as such.20
The Act was sponsored by State Representative
Mike Ritze of Broken Arrow, who is an “[o]
rdained Southern Baptist Deacon and Sunday
School teacher.”15 Representative Ritze not only
voted to approve the Act, but after the passage
of the Act, Representative Ritze personally
contracted with SI Memorials for the creation
of the monument.16 All work done on the monument itself was financed by Representative
Ritze through private funds, and the monument specifically, and prominently, states that
it was “presented to the people of Oklahoma
by Dr. Mike and Connie Ritze and children
Amity, Heidi and Jamey.”17
¶8 In this case, the Ten Commandments
monument is permanently placed on the
grounds of our State Capitol — the heart of
our state government and “the civic home of
every one of the State’s citizens.”21 The fact
that the “monument ‘is installed on public
property implies official recognition and reinforcement of its message. That implication is
especially strong when the sign stands in front
of the seat of government itself.’”22 In fact, “the
seat of government ‘is so plainly under government ownership and control’ that every display on its property is marked implicitly with
governmental approval.”23
1728
Vol. 86 — No. 22 — 8/29/2015
¶9 And the monument itself is not silent,
but displays the following message:
the Ten Commandments
I AM the LORD thy God.
Thou shalt have no other gods before me.
Thou shalt not make to thyself any graven
images.
Thou shalt not take the Name of the Lord
thy God in vain.
Remember the Sabbath day, to keep it holy.
Honor thy father and thy mother that thy
days may be long upon the land which the
Lord thy God giveth thee.
Thou shalt not kill.
Thou shalt not commit adultery.
Thou shalt not steal.
Thou shalt not bear false witness against
thy neighbor.
Thou shalt not covet thy neighbor’s house.
Thou shalt not covet thy neighbor’s wife,
nor his manservant, nor his maidservant,
nor his cattle, nor anything that is thy
neighbors.24
¶10 The legislative findings included in the
Ten Commandments Display Act state that the
“Ten Commandments are an important component of the foundation of the laws and legal
system of the United States of America and of
the State of Oklahoma.”25 But a self-serving
declaration within the statute stating that the
purpose of the monument is secular is of no
meaning. Stone, 449 U.S. at 41.
¶11 “Attempts to secularize what is unquestionably a sacred text defy credibility and
disserve people of faith.”26 The Ten Commandments are “plainly religious in nature,”
and are “undeniably a sacred text in the Jewish
and Christian faiths.”27 “For many followers,
the Commandments represent the literal word
of God as spoken to Moses and repeated to his
followers after descending from Mount Sinai.”28
The monument focuses “not only on subjects
that are the legitimate concern of civil authorities, but also subjects that are beyond the ken of
any government and that address directly the
relationship of the individual human being
and God.”29 “[T]he first part of the Commandments concerns the religious duties of believVol. 86 — No. 22 — 8/29/2015
ers: worshipping the Lord God alone, avoiding
idolatry, not using the Lord’s name in vain, and
observing the Sabbath Day.”30
¶12 But even the “universally accepted prohibitions (as against murder, theft, and the
like)” rest on “the sanction of the divinity proclaimed at the beginning of the text.”31 As the
Court stated in McCreary County: “This is not
to deny that the Commandments have had
influence on civil or secular law; a major text of
a majority religion is bound to be felt. The
point is simply that the original text viewed in
its entirety is unmistakably religious statement
dealing with religious obligations and with
morality subject to religious sanction.”32 Stripping the Ten Commandments of their religious
significance and characterizing them as secular
and a component of the foundation of the laws
of this State trivializes the sacred nature of the
text and degrades those individuals who truly
believe the Ten Commandments are a covenant
between God and His people.
¶13 The legislative authorization eschewing
a religious meaning also includes Section C of
the Ten Commandments Display Act, which
simply cannot be ignored:
In the event that the legality or the constitutionality of the Ten Commandments
monument is challenged in a court of law,
the Oklahoma Attorney General or Liberty
Legal Institute is hereby authorized to prepare and present a legal defense of the
monument.33
Not only is the Liberty Legal Institute named
specifically in the Act, but an attorney for the
Liberty Legal Institute entered an appearance
on behalf of the Commission in the District
Court shortly after the Attorney General filed
his Answer in the case, and that same attorney
also entered an appearance in this case on
appeal on behalf of the Commission. The Liberty Legal Institute34 is based out of Plano,
Texas, with its stated mission to “defend and
restore religious liberty across America — in
our schools, for our churches, inside the military, and throughout the public arena.”35 The
“Liberty Institute fights to restore religious
liberty pursuant to the principles of America’s
founders — that religious freedom does not
mean confining religious expression to church
or home, but that true religious liberty consists
of recognizing individuals’ God-given right to
follow their conscience and to live and act
according to their faith in every area of life.”36
1729
With regard to the Ten Commandments monuments, the Liberty Institute website states:
tution but also “invariably places the State at
the center of a serious sectarian dispute[.]”43
Liberty Institute is committed to enforcing
the law that allows Ten Commandments
displays in every state across the nation.
But we can’t do this alone. When you give
your donation below, you help continue
the work of enforcing the law that allows
appropriate Ten Commandments monuments — like the Ten Commandments
monument on the Oklahoma capitol
grounds. So thank you for giving today!37
¶15 The monument at the State Capitol also
includes two Stars of David and the “Greek letters Chi and Rho as the familiar monogram of
Christ,”44 representing respectively Judaism
and Christianity and confining its approval
only to the Judeo-Christian faiths. The eagle
clutching the American flag at the top of the
monument then specifically links “these two
religions, and civil government.”45 “When the
government associates one set of religious
beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual’s decision about whether and how to
worship.”46
On its website, under the tab “Pray,” the Liberty Institute lists “prayer requests,” including
the case of “Prescott v. Oklahoma Capitol Preservation Commission”: “Please pray for the
Oklahoma Supreme Court justices as they consider the motion for rehearing.”38 Although the
Legislature’s stated secular purpose should
generally receive deference, it is clear the secular purpose stated by the Legislature in the Ten
Commandments Display Act is a “sham secular purpose,” coming secondary to its obvious
religious objective. McCreary, 545 U.S. at 864;
See also Stone, 449 U.S. at 41.
¶14 The Act also states that “[t]he placement
of this monument shall not be construed to
mean that the State of Oklahoma favors any
particular religion or denomination thereof
over others.”39 This particular version of the
Ten Commandments, which is identical to the
versions donated by the Fraternal Order of
Eagles in the 1950s and 1960s, was developed
by “representatives of Judaism, Protestantism,
and Catholicism” who purportedly “believed
[it] to be a nonsectarian version of the Ten
Commandments because it could not be identified with any one religious group.”40 But as
Justice Stevens noted in the Van Orden case:
“There are many distinctive versions of the
Decalogue, ascribed to by different religions and
even different denominations within a particular
faith; to a pious and learned observer, these differences may be of enormous religious significance.”41 He continued: “[I]n the Jewish version
of the Sixth Commandment God commands:
‘You shall not murder’; whereas, the King James
interpretation of the same command is: ‘Thou
shalt not kill.’ The difference between the two
versions is not merely semantic; rather, it is but
one example of a deep theological dispute.”42
Displaying this particular version of the Ten
Commandments on the grounds of the State
Capitol not only violates the Oklahoma Consti1730
¶16 Finally, in spite of the court filings in this
case, which conclude that Art. II, § 5, of the
Oklahoma Constitution is a Blaine Amendment,47 nothing in the recorded history of the
Oklahoma Constitutional Convention, this
Court’s case law, or any other historical evidence supports this conclusion. In fact, all evidence is to the contrary. In 1875, Republican
presidential candidate and Congressman James
Blaine proposed an amendment to the U.S.
Constitution, specifically targeting the funding
of religious schools with public money.48 “The
Amendment came about at a time of heightened controversy over the religious character
of American public education and the public
funding of private religious schooling, primarily Catholic parochial schools.”49
¶17 After failing to secure the Republican
nomination for President, Congressman Blaine
abandoned the cause and did not vote on the
amendment or take part in any of the debates
surrounding the amendment.50 The amendment passed the House of Representatives, but
failed to receive the necessary approval from
the Senate.51 Congressman Blaine’s quick abandonment of the amendment has led some
scholars to conclude that the “modern-day
emphasis placed on the Blaine Amendment is
misplaced,”52 and that the attempted passage
of the Blaine Amendment shows “our nation’s
continual willingness to use religious issues for
political ends.”53
¶18 Regardless, in 1889, a Republican-controlled Congress resurrected remnants of the
failed Blaine Amendment in the Enabling Act
of 1889, mandating that “four new states —
Washington, Montana, North and South Dakota — include[] no-funding provisions in their
Vol. 86 — No. 22 — 8/29/2015
constitutions” to become states.54 From there, a
no-funding provision was added to Oklahoma’s Enabling Act in 1906, mandating “[t]hat
provisions shall be made for the establishment
and maintenance of a system of public schools,
which shall be open to all the children of said
State and free from sectarian control . . . .”55
¶19 The Oklahoma Constitutional Convention adopted the language of the Enabling Act
verbatim into our Constitution in Article I, § 5
of the Oklahoma Constitution entitled “Public
schools,” which states: “Provisions shall be
made for the establishment and maintenance
of a system of public schools, which shall be
open to all children of the state and free from
sectarian control . . . .”56 Although the adoption
of such language by the Oklahoma Constitutional Convention could have been based on
the unabashedly biased attitude toward Catholic parochial schools found in the failed Blaine
Amendment, my review of the debates and
proceedings of the Convention does not reflect
such attitudes.57 Nevertheless, what is clear is
that the broader mandates of Art. II, § 5 cannot be found in the Enabling Act and concluding that Art. II, § 5 was the corollary to
such language in the Enabling Act is error.58
¶20 As noted by R.L. Williams, a former
Chief Justice of this Court and a delegate to the
Oklahoma Constitutional Convention, Art. II, §
5 of the Oklahoma Constitution traces its origins to the Massachusetts Bill of Rights of 1780
passed ninety-five years before the Blaine
Amendment, the Michigan Constitution of
1835 passed some forty years before the Blaine
Amendment, the Missouri Constitution of 1820
passed more than fifty years before the Blaine
Amendment, and the New Jersey Constitution
of 1776 passed almost 100 years before the
Blaine Amendment.59
¶21 In Connell v. Gray, 1912 OK 607, 127 P.
417, the Oklahoma Supreme Court, which
included three justices who participated in the
Oklahoma Constitutional Convention60 and
which was decided just five years after the
ratification of our Constitution, similarly traced
the origins of Art. II, § 5 to the Missouri Constitution and the Michigan Constitution, which
were “prototype[s]” of “[t]he first legislative
act passed toward the separation of church and
state . . . by Virginia in 1786, entitled ‘An act for
establishing religious freedom,’” and “brought
about by Thomas Jefferson.”61 The Virginia Act
was later embodied in the Virginia ConstituVol. 86 — No. 22 — 8/29/2015
tion of 1830, which predates the proposed
Blaine Amendment by forty-five years.
¶22 Albert Ellis, the second Vice-President of
the Oklahoma Constitutional Convention,
wrote about Art. II, § 5 shortly after the ratification of the Oklahoma Constitution:
This section not only guards the citizens
right to be free from taxation for the support of the church, but protects the rights of
all denominations, however few the number of their respective adherents, by withholding any incentive that might prompt
any ecclesiastical body to participate in
political struggles and by reason of their
numbers exert an undue influence and
become beneficiaries at the expense of the
public and a menace to weaker denominations and ultimately destructive of religious liberty.62
¶23 More recent annotations also make no
mention of the failed Blaine Amendment in
their discussions of Art. II, § 5: “This provision
relating to the church-state issue is much more
explicit than that found in the U.S. Constitution.”63 A study of the Oklahoma Constitution by
the League of Women Voters provides: “The
Oklahoma Bill of Rights further details the separation of church and state by denying the use of
state money or property for the benefit of any
particular religious sect or denomination.”64
¶24 A comparison of the text of the failed
Blaine Amendment and the text of Art. II, § 5
also reveals that Art. II, § 5 is broader than the
Blaine Amendment and does not limit its
application only to schools. Art. II, § 5 states:
No public money or property shall ever be
appropriated, applied, donated, or used,
sectarian institution as such.65
Whereas the failed Blaine Amendment provided:
No State shall make any law respecting an
establishment of religion or prohibiting the
free exercise thereof; and no money raised
by taxation in any State for the support of
public schools, or derived from any public
fund therefore, nor any public lands devoted thereto, shall ever be under the control
1731
of any religious sect, nor shall any money
so raised or lands so devoted be divided
between religious sects or denominations.66
Characterizing Art. II, § 5 of the Oklahoma
Constitution as a Blaine Amendment completely ignores the intent of the founders of the
Oklahoma Constitution who purposely sought
to ensure future generations of Oklahomans
would be free to practice religious freedom
without fear of governmental intervention.67
¶25 Justice O’Connor wrote in the McCreary
County case:
At a time when we see around the world
the violent consequences of the assumption of religious authority by government,
Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails,
while allowing private religious exercise to
flourish. The well-known statement that
‘[w]e are a religious people,’ has proved
true. . . . Those who would renegotiate the
boundaries between church and state must
therefore answer a difficult question: Why
would we trade a system that has served
us so well for one that has served others so
poorly?68
The constitutional guarantees of separation of
church and state in many state constitutions
“reflect their origin in specific disputes about
the relationship between church and state . . .
and represent considered constitutional judgments about contentious church-state issues.”69
Art. II, § 5 in our Constitution is no different.
Mr. Ellis wrote: “The Convention, knowing the
history of the union of Church and State in
Europe and in New England in Colonial days,
profited by the lessons of the past and made it
impossible to appropriate or give to any church
denomination or ecclesiastical servant or any
religious institution, as such; the money or
property of the public.”70
¶26 Mr. Ellis went on to state that Art. II, § 5
“is one of the wisest provisions of our organic
law. If there should ever be a demand by any
ecclesiastical body that any part or portion of
the public funds or any public property, be
diverted to the use or benefit of any church or
denomination or any of its servants, or for the
support of any religious institution, as such;
this section will be found to be one of the safest
of our safeguards.”71
1732
¶27 This generation has the same obligation
today as the Founders did in 1907 to protect the
Constitution of our State, lest future generations review it in a casual way. As one member
of the clergy wrote in 1923: “The People of this
State should see to it well that [Art. II, § 5] in
the bill of rights is never emasculated or nullified by any future convention, by one jot or
title, but left intact as one of the imperishable
provisions of the organic law protecting the
people in their right against any encroachment
by any ecclesiastical organization.”72
COMBS, V.C.J., dissenting to denial of
rehearing.
¶1 I dissent to the denial of rehearing in the
above styled matter.1 The Appellee requested a
rehearing to clarify2 the Per Curiam opinion in
light of our previous decisions wherein we
upheld the constitutionality of various acts
under an Okla. Const. art. 2, § 5 challenge. The
Per Curiam opinion’s strict reading of Okla.
Const. art. 2, § 5 ignores the context-based
analysis we used in Meyer v. Oklahoma City,
1972 OK 45, 496 P.2d 789, and does not overrule
that opinion. The Appellee’s need for clarification is apparent.
¶2 The framers of the Oklahoma Constitution, although having strong views behind the
creation of Okla. Const. art. 2, § 5 did not
believe its provisions prohibited government
acknowledgement of religion. Indeed, the first
words of the Preamble to the Oklahoma Constitution state “[i]nvoking the guidance of
Almighty God, in order to secure and perpetuate the blessing of liberty.” This Court has previously determined, “[i]t is not the exposure to
religious influence that is to be avoided; it is
the adoption of sectarian principles or the
monetary support of one or several or all sects
that the state must not do.” Murrow Indian
Orphans Home v. Childers, 1946 OK 187, ¶7, 171
P.2d 600. I do not believe the intent or effect
behind this Ten Commandments Monument
(“Monument”) was for the adoption of sectarian principles. My belief is based not only on
our context-based analysis in Meyer3 but also
on the standard the district court and the parties agreed was proper to use in this analysis;
one based on federal jurisprudence in Establishment Clause cases.
¶3 In its petition for rehearing, the Appellee
asserts federal Establishment Clause precedent is relevant to this case.4 I agree. The long
and evolved federal jurisprudence concerning
Vol. 86 — No. 22 — 8/29/2015
alleged unconstitutional monuments and displays is informative and persuasive in determining the meaning of “support” a “system of
religion” in our own constitution.5
¶4 At the hearing on summary judgment the
district court used an “objective standard” in
finding the Monument did not violate Okla.
Const. art. 2, § 5.6 The attorney for the Appellant
believed at the hearing that this was the proper
standard; however, he appears to have interpreted the standard differently than the court.7
This objective standard evaluates whether or not
a reasonable observer, aware of the history and
context of the community in which the conduct
occurs, would view the government action as
having a principle or primary effect of advancing or endorsing religion, or as here, government support of a system(s) of religion. See
Bauchman for Bauchman v. West High School, 132
F.3d 542, 551-52, 555 (10th Cir. 1997). This reasonable observer is an informed reasonable
observer whose knowledge of the context surrounding the alleged offending display goes
outside just observing the display itself.8 It is a
legal standard akin to the reasonable person
standard in tort law9 and does not require a
court to review endless testimony of opinion
from actual observers.10
¶5 In religious symbols cases, context is the
touchstone. Glassroth v. Moore, 335 F.3d 1282,
1284 (11th Cir. 2003). This is the case not only in
federal Establishment Clause jurisprudence
but also in our own jurisprudence. In Meyer v.
Oklahoma City, 1972 OK 45, ¶11, 496 P.2d 789, a
50-foot Latin Cross which was placed on city
property and whose lighting was provided by
the city was challenged for violating Okla.
Const. art. 2, § 5. This Court determined the
cross did not violate Okla. Const. art. 2, § 5
because the commercial setting and atmosphere of the Fair Grounds obscured any suggestions that might emanate from the cross’
silent form and further “stultify its symbolism
and vitiate any use, benefit or support for any
sect, church, denomination, system of religion
or sectarian institution . . . .” Our holding in
Meyer can best be interpreted as holding in
Okla. Const. art. 2, § 5 cases the predominant
context surrounding the challenged government action is dispositive. This is similar to the
approach used in 2005 by Justice Breyer in
determining the predominant context surrounding the Ten Commandments monument
in Van Orden v. Perry, 545 U.S. 677 (2005).
Vol. 86 — No. 22 — 8/29/2015
¶6 In Van Orden, the constitutionality of a Ten
Commandments monument on the Texas Capitol grounds was challenged as violating the
Establishment Clause of the United States Constitution. Justice Breyer wrote the controlling
opinion for the Court.11 Justice Breyer believed
that even though the Ten Commandments had
an undeniable religious message, focusing on
its text alone could not conclusively resolve the
case. Id. at 701. He determined in order to
resolve what the text of the message conveyed,
the proper inquiry required the Court to
“examine how the text is used” by considering
the context of the display. Id. He found the text
of the Ten Commandments can also be used in
a secular way to convey a general moral message about proper social conduct or in a historical way to show a relation between its standards
and the law. The latter he believed is why so
many courthouses throughout the Nation,
including the Supreme Court, displayed the tablets in some form. He determined the circumstances surrounding the monument’s placement
at the Texas Capitol and its physical setting suggested the State intended its secular message to
predominate. Id.
¶7 Title 74 O.S. 2011, § 4110 (HB 1330) proclaimed the Monument was not meant to be
construed to favor any particular religion or
denomination over others and it was essentially just another monument on the Capitol
grounds.12 In federal jurisprudence, the courts
have deferred to the professed government
purpose unless the secular purpose is a sham
or secondary to a religious purpose.13 Where a
“plausible secular purpose” has been demonstrated, the courts will give deference to the
government’s motives.14 The record is also
silent as to any contravening sectarian purpose
behind the Monument’s placement.
¶8 The Appellants expressly stated they were
not challenging the constitutionality of HB
1330. The Appellants are challenging the
actions of the Appellee. Under federal jurisprudence, “whether the government has endorsed
a particular religious display depends in large
part on the display’s particular physical setting.” O’Connor v. Washburn University, 416
F.3d 1216, 1228 (10th Cir. 2005) (citing Lynch v.
Donnelly, 465 U.S. 668, 671, 681-82, 685 (1984)).
The Appellants asserted the Appellee’s placement and positioning of the Monument puts it
in a prominent position leading one to conclude it represents State support of a system(s)
of religion. The question being, regardless of
1733
purpose or intent, was the placement and positioning of the Monument done in such a way
that an informed reasonable observer would
conclude it represents State support of a
system(s) of religion? It appears from the
record that the Monument was placed in possibly the most inconvenient and low-trafficked
part of the Capitol grounds imaginable. Its
placement on the northeast side of the Capitol
Building makes it impossible to view from the
main parking lot or any entrance to the building. The main parking lot and main entrance
are on the south side of the Capitol Building
with the other two working entrances being on
the east and west sides. Because of this placement, a person inside the Capitol Building
should only be able to see the Monument
through some of the windows on the east side
of the north wing and the north side of the east
wing. Next to the Monument is a short stairway that leads to the north entrance of the
Capitol and is the only entrance on that side of
the building. However, this nearby north
entrance has been closed for many years. The
Monument sits at the top and to the east of the
stairway. The closest route from the Capitol
Building to the Monument requires one to
leave the east or west side doors and walk a
quarter of the way around the large building.
Nor does its placement provide accommodation for meditation or other religious activity. I
do not believe an informed reasonable observer seeing the Monument would find that its
placement or positioning rises to the level of
being sacred or is in any way more unique than
the placement of any of the many other monuments on the Capitol grounds including the
few that reside on the north side.
¶9 Nor do I believe that the Monument’s
content leads an informed reasonable observer
to conclude it supports a system(s) of religion
as asserted by the Appellants. The message on
the Monument’s face is not the full story. What
a reasonable observer is aware of “is not limited to the ‘information gleaned simply from
viewing the challenged display.’” O’Connor v.
Washburn University, 416 F.3d 1216, 1228 (citing
Wells v. City & County of Denver, 257 F.3d 1132,
1142-43 (10th Cir. 2001)). I agree with the reasoning of Justice Breyer in Van Orden, who
found that the text of the Ten Commandments
was religious “invoking, indeed emphasizing,
the Deity,” yet he determined that fact alone
was not dispositive. Van Orden v. Perry, 545
U.S. 677, 700-701 (Breyer, J., concurring). One
must review the surrounding context. Here,
1734
the surrounding context also takes into account
the plausible secular historical/legal purpose
of the Legislature. In addition, the Monument
includes an inscription showing it was privately donated. Such message further distances the State from the Monument in the mind of
a reasonable observer. See Card v. City of Everett,
520 F.3d 1009, 1020 (9th Cir. 2008).
¶10 The Appellants also asserted the fact that
the Monument was not made part of a larger
display or coordinated series of monuments
only adds to the effect that the State was adopting sectarian principles. I disagree. I do not
find the spacing or density of monuments is
indicative here of an adoption of sectarian
principles. The monuments spread throughout
the Oklahoma Capitol Complex appear not to
be part of any particular spacing scheme or
planned density. As the court in Card v. City of
Everett, 520 F.3d 1009, 1020 (9th Cir. 2008)
determined in its context analysis, there is no
“quota system for monuments or a requirement for a particular density of monuments in
a given area.” It should be noted that in Meyer
there was only one monument and it was
found to be constitutional by this Court.
¶11 Although initially raised on appeal in the
Appellee’s answer brief, on rehearing the parties did not brief the issue of whether Okla.
Const. art. 2, § 5 is a state Blaine Amendment;
however, other Justices of this Court have
addressed this issue. The Blaine Amendment
was a failed 1870’s proposed amendment to
the United States Constitution to bar aid to
sectarian institutions. Mitchell v. Helms, 530
U.S. 793, 828 (2000). The proposed amendment
“arose at a time of pervasive hostility to the
Catholic Church … and it was an open secret
that ‘sectarian’ was code for ‘Catholic’. Mitchell, 530 U.S. at 828. This amendment would
have applied almost exclusively to Catholic
parochial schools. Id. at 829. The Appellee had
previously cited a 2003 law review article written by Mark E. DeForrest, for the purpose of
demonstrating, after the Blaine Amendment’s
failure, states adopted similar provisions in
their own constitutions.15
¶12 The parties have not cited any decision
of this Court where we have referred to Okla.
Const. art. 2, § 5 as an Oklahoma version of the
Blaine Amendment or construed it so narrowly
to only apply to sectarian institutions, or in
other words, parochial schools. On this issue I
would agree with the other Justices of this
Court that Okla. Const. art. 2, § 5 is not Okla-
Vol. 86 — No. 22 — 8/29/2015
homa’s version of a Blaine Amendment. The
breadth and scope of Okla. Const. art. 2, § 5
differ significantly from the failed Blaine
Amendment.
¶13 In conclusion, I disagree with the Per
Curiam opinion’s overly narrow interpretation
of the language in Okla. Const. art. 2, § 5. Since
statehood this Court has interpreted our Constitution. I do not adopt the strict approach
taken by other members of this Court in determining the meaning behind “support” of a
“system of religion.” Additionally, I would
limit findings to the record before the court on
issues presented by the parties. I find the
appropriate analysis of Okla. Const. art. 2 § 5 is
a context-based analysis like that used by this
Court in Meyer and found in federal jurisprudence. We should not lightly attribute unconstitutional motives to the government where
we can discern a plausible secular purpose. I
am of the opinion the facts of this case have
more similarities to Van Orden than not. However, as Justice Breyer believed in Van Orden, I
believe this case is a borderline case. A slight
change in its facts could have tipped my view
concerning the effect the Monument conveyed
upon a reasonable observer. Today our State is
composed of many different religious beliefs
and many persons of no religion. Wisdom, prudence and caution should be at the forefront
when considering the placement of displays on
government property. However, for the foregoing reasons, I dissent to the denial of the petition for rehearing.
Taylor, J., with whom Gurich, J. joins, concurring in the denial of the petition for rehearing:
1. This axiom was expressed by Justice Scalia when he stated:
“Words have meaning. And their meaning doesn’t change. I mean, the
notion that the Constitution should simply, by decree of the Court,
mean something that it didn’t mean when the people voted for it . . . .”
Jennifer Senior, In Conversation: Antonin Scalia, New York (Oct. 6, 2013),
http://nymag.com/news/features/antonin-scalia-2013-10/.
2. This analysis is supported by the prominent Oklahoma historian
and scholar, Dr. Bob L. Blackburn, Oklahoma Historical Society’s
executive director. Dr. Blackburn stated that even though the founders
started their 1906 and 1907 proceedings with a prayer, they were
against state support of any particular church. Dr. Blackburn noted
that the Baptists “’would have been the biggest advocate of separation
(of church and state)’” and that the Baptist church “’had been persecuted by mainline churches for well over a century.’” Barbara
Hoberock, Oklahoma Supreme Court Not Likely to Change Position on Ten
Commandments, ACLU Attorney Says, Tulsa World (July 3, 2015),
http://www.tulsaworld.com/news/capitol_report/oklahomasupreme-court-not-likely-to-change-position-on-ten/article_59f599e0f7d3-563d-ad40-e17daaf12f49.html.
3. It is noteworthy that the Meyer’s cross was removed from the
fairgrounds in 2003. The city manager of Oklahoma City at the time of
its removal believed it to be unconstitutional and ordered its removal
with the support of the city counsel. Steve Lackmeyer, Residents Protest
Removal of Fair Cross, NewsOK (Feb. 28, 2003), http://newsok.com/
residents-protest-removal-of-fair-cross/article/1917528. As evidence
of its religious significance, the cross was placed on the property of two
Vol. 86 — No. 22 — 8/29/2015
Oklahoma City churches. Jerry Pierce, Baptist Church, Church of Christ
to Share Banned Okla. Cross, Baptist Press (June 10, 2003), http://www.
bpnews.net/16059/baptist-church-church-of-christ-to-share-bannedokla-cross.-to-share-banned-okla-cross.
4. This wording is a direct quote of requirements to be provided for
in the Oklahoma Constitution in order to be admitted as a State. Oklahoma Enabling Act of June 16, 1906, ch. 3335, 34 Stat. 267.
5. A plurality opinion is one in which no opinion receives a majority
of the votes, but receives more votes than any other opinion, and the
result receives five votes. Opinion, Black’s Law Dictionary (10th ed. 2014).
6. The U.S. Supreme Court has the Ten Commandments displayed
in their Courtroom in several locations, but their display is limited to
representations of tablets with only roman numerals or, where written
out, limited to a portion of the later secularly phrased commandments
written in Hebrew and placed in the midst of 17 other historical lawgivers, religious and secular, also carrying representations of the law of
their society or religion. McCreary Cnty., 545 U.S. at 874.
Gurich, J., concurring in the denial of rehearing:
1. Michigan v. Long, 463 U.S. 1032, 1040-41 (1983).
2. I first note that Van Orden was a plurality decision with seven
separate opinions. No opinion garnered a majority of the Court. The
splintered decisions from the U.S. Supreme Court “provide[] a justification for a state court to look to its state constitution for guidance.
Certainly the Supreme Court, by its inconsistent decisions in establishment clause cases, has forfeited the deference often given to its rulings.” G. Alan Tarr, Church and State in the States, 64 Wash. L. Rev. 73,
at 109 (1989).
3. Van Orden, 545 U.S. at 713 (Stevens, J., dissenting). The project
began in Minnesota in 1943 and was inspired by a Minnesota juvenile
court judge’s experience with a juvenile offender who had never heard
of the Ten Commandments. Id. The Minnesota chapter of the Fraternal
Order of Eagles, of which the judge was a member, began distributing
paper copies of the Ten Commandments to courthouses nationwide.
Id. “When Cecil B. DeMille, who at that time was filming the movie
The Ten Commandments, heard of the . . . endeavor, he teamed up
with the Eagles to produce the type of granite monolith . . . displayed
in front of the Texas Capitol and at courthouse squares, city halls, and
public parks throughout the Nation.” Id.
4. Id. at 702 (Breyer, J., concurring in judgment).
5. Record on Accelerated Appeal, Ex. 4. The monument sits
approximately nine feet from the Capitol building on a slightly raised
elevation and sits approximately 250-300 feet away from the Flag
Plaza.
6. Until the decisions in McCreary County and Van Orden, the only
other U.S. Supreme Court case to address a Ten Commandments display was Stone v. Graham, 449 U.S. 39 (1980), where the Court struck
down a Kentucky statute requiring the Ten Commandments to be
displayed on the walls of public school classrooms in the state.
7. Van Orden, 545 U.S. at 703 (Breyer, J., concurring in the judgment) (internal citations omitted) (emphasis added). Justice Breyer
provided the decisive fifth vote in upholding the monument at the
Texas State Capitol but voted with the majority in striking down the
Kentucky display.
8. One such request was from the Satanic Temple, who requested
“a monument to Baphomet, which is a form of Satan, to be placed on
the Capitol grounds.” Record on Accelerated Appeal Ex. 4 (Deposition
of Trait Thompson at 30). On December 19, 2013, the Commission
minutes reflect Commission Chair, Trait Thompson, moved to put a
moratorium on monument requests:
Earlier this year the ACLU brought a law suit against the Capitol
Preservation Commission regarding the placement of the Ten
Commandments Monument on the north lawn of the Capitol.
Since that time the CPC has received numerous requests from
individuals and groups seeking to place additional monuments
on the grounds. At this time, I believe action by the CPC on any
of these requests would be premature given that the lawsuit has
yet to be decided. Therefore, I move the CPC place a moratorium
on consideration of all monument requests for the State Capitol
and its grounds until the lawsuit has been adjudicated.
Mr. Thompson’s motion carried unanimously, and the moratorium
remains in place.
9. See also Freedom from Religion Found., Inc. v. New KensingtonArnold Sch. Dist., 919 F. SupP.2d 648 (W.D. Pa. 2013) (denying school’s
motion to dismiss because plaintiffs stated a facially plausible claim
that a Ten Commandments monument in front of a high school that
had been in place for decades violated the Establishment Clause);
1735
ACLU of Ohio Found., Inc. v. DeWeese, 633 F.3d 424 (6th Cir. 2011)
(holding that poster hung in courtroom in 2006 including the Ten Commandments and stating that law is based upon morality violated the
Establishment Clause and was not protected religious speech); Stanley
v. Harris Cnty., Texas, 461 F.3d 504, 509-515 (5th Cir. 2006) (holding that
a monument in place since 1956 in front of a courthouse prominently
displaying an open bible in a glass display case, under the circumstances, violated the Establishment Clause), rehearing en banc, 485
F.3d 305 (2007) (appeal dismissed as moot on rehearing after the
monument was removed to storage due to renovations at courthouse);
Am. Civil Liberties Union of Ohio Found., Inc. v. Ashbrook, 375 F.3d
484 (6th Cir. 2004) (striking down a Ten Commandments display hung
in a county courtroom in 2000); Glassroth v. Moore, 335 F.3d 1282 (11th
Cir. 2003) (striking down Ten Commandments monument placed in
the rotunda of the Alabama State Judicial Building in 2001); Adland v.
Russ, 307 F.3d 471 (6th Cir. 2002) (striking down Ten Commandments
monument donated by Fraternal Order of Eagles in 1971, which had
been removed in 1980 and put in storage, but which the Kentucky
Legislature attempted to reinstall on capitol grounds in 2000); Am.
Civil Liberties Union of Tenn. v. Hamilton, Cnty., 202 F.Supp.2d 757
(E.D. Tenn. 2002) (striking down Ten Commandments display put up
in 2001 on the wall of county courthouse); Ind. Civil Liberties Union v.
O’Bannon, 259 F.3d 766 (7th Cir. 2001) (enjoining Ten Commandments
monument at the Indiana State Capitol that was planned to be erected
in 2000); Kimbley v. Lawrence Cnty., Ind., 119 F.Supp.2d 856 (S.D. Ind.
2000) (enjoining Ten Commandments monument sought to be erected
on lawn of county courthouse in 2000).
10. Section 115:1-1-4(c)(3)(D) of the Administrative Code provides
that the Architecture and Grounds Committee of the Commission is
specifically responsible for “[a]pproval and placement of all monuments and sculptures surrounding the buildings[.]”
11. Record on Accelerated Appeal, Ex. 4 (Deposition of Duane
Mass at 67).
Mass at 49). Section 115:10-1-2(a) also provides that “[o]nly art and art
objects of highest museum quality, consistent with legislative directives and approved by the Commission shall be permitted for permanent display in public areas of the Capitol.” Duane Mass, Capitol
Architect and member of the Commission, testified he “did not see the
monument physically until it was installed.” Record on Accelerated
Appeal, Ex. 4 (Deposition of Duane Mass at 49).
Mass at 67). The location of the monument was approved by a vote of
seven to four, but the record indicates the actual location of the monument was not even the location approved by the Commission,
although both locations are on the north side of the Capitol. Record on
Accelerated Appeal, Ex. 4; Record on Accelerate Appeal, Ex.12 at 7.
14. 74 O.S. § 4110. The Act went into effect November 1, 2009.
15. About Mike, Re-Elect Dr. Mike Ritze, http://www.mikeritze.
com/aboutmike.html (last visited July 20, 2015).
16. SI Memorials employees then traveled to Austin, Texas, and
made rubbings of the Ten Commandments monument located at the
Texas State Capitol. Work on the Monument began based on those rubbings. Record on Accelerated Appeal, Ex. 4.
17. Art. V, § 24 of the Oklahoma Constitution provides: “A member
of the Legislature, who has a personal or private interest in any measure or bill, proposed or pending before the Legislature, shall disclose
the fact to the House of which he is a member, and shall not vote
thereon.” (emphasis added).
18. Okla. Const. art. II, § 5.
19. I see no reason for this Court to rely on the Lemon Test, as
articulated in U.S. Supreme Court case law interpreting the Establishment Clause. Nowhere does Art. II, § 5 mention whether or not “a
reasonable observer, aware of the history and context of the community in which the conduct occurs, would view the practice as communicating a message of government endorsement or disapproval.”
Green, 568 F.3d at 799.
The text of Art. II, § 5 of the Oklahoma Constitution plainly provides more protection to the citizens of this State than does the Establishment Clause of the U.S. Constitution, which provides: “Congress
shall make no law respecting an establishment of religion. . . .”
20. Meyer, 1972 OK 45, ¶ 11, 496 P.2d at 792-93. The Meyer Court
said the cross was in a “state of disrepair,” suggesting the cross had
been at the fairgrounds a number of years before being challenged.
21. Van Orden, 545 U.S. at 745 (Souter, J., dissenting) (emphasis
added).
22. Id. at 721 (Stevens, J., dissenting).
23. Books, 235 F.3d at 306 (citing Am. Jewish Cong. v. City of Chicago, 827 F.2d 120, 128 (7th Cir. 1987)).
1736
24. After the installation of the monument, spelling errors were
discovered on the monument. Shortly after the discovery of such mistakes, the misspelling of “Sabbeth” was corrected to “Sabbath,” and
the misspelling of “maidseruant” was corrected to “maidservant.”
Misspellings Mark Ten Commandments Monument At Oklahoma
State Capitol, Newson6, http://www.newson6.com/story/20116587/
misspellings-mark-ten-commandments-monument-at-oklahomastate-capitol (last visited July 20, 2015).
The last sentence of this particular version of the Ten Commandments is repugnant to existing laws as women are no longer considered property and slavery was abolished before Oklahoma statehood.
25. 2009 Okla. Sess. Laws Ch. 204. The legislative findings in Section A were not codified in 74 O.S. § 4110, nor would anyone observing
the monument at the Capitol be alerted to the alleged link between the
Ten Commandments and the laws of the State of Oklahoma.
26. Van Orden, 545 U.S. at 717 (Stevens, J. dissenting) (emphasis
added).
27. Stone, 449 U.S. at 41.
28. Van Orden, 545 U.S. at 716 (Stevens, J. dissenting).
29. Books, 235 F.3d at 303.
30. Stone, 449 U.S. at 42.
31. McCreary County, 545 U.S. at 868.
32. Id. at 869.
33. 74 O.S. § 4110(C).
34. Numerous courts have held that “[it] is not uncommon for
courts to take judicial notice of factual information found on the world
wide web.” O’Toole v. Northrop Grunman Corp., 499 F.3d 1218, 122425 (10th Cir. 2007). See also Jeandron v. Bd. of Regents of the Univ. of
Md., 510 F’Appx. 223, 227 (4th Cir. 2013); City of Monroe Emps. Ret.
Sys. v. Bridgestone Corp., 399 F.3d 651, 655 n.1 (6th Cir. 2005). Additionally, 12 O.S. § 2202 provides that a court may take judicial notice of
facts “whether requested or not” and when the facts are “capable of
accurate and ready determination by resort to sources whose accuracy
cannot be reasonably questioned.”
35. About Liberty Institute, Liberty Institute, https://www.liberty
institute.org/about (last visited July 20, 2015).
36. Id.
37. Help Continue the Work to Enforce the Law That Allows
Ten Commandments Displays, Liberty Institute, https://
www.libertyinstitute.org/pages/take-action/2014-okc-10commandments-donation-page? (last visited July 20, 2015).
38. Pray, Liberty Institute, https://www.libertyinstitute.org/
take-action/pray (last visited July 20, 2015).
39. 74 O.S. § 4110(D).
40. Books, 235 F.3d at 294.
41. Van Orden, 545 U.S. at 717-18 (Stevens, J., dissenting) (emphasis
added).
42. Id. at 718 n.16 (internal citation omitted).
43. Id. at 718-19.
44. Van Orden, 545 U.S. at 739 (Souter, J., dissenting).
45. Books, 235 F.3d at 307.
46. McCreary, 545 U.S. at 883 (O’Connor, concurring).
47. See Brief of Amicus Curiae in Support of Defendant-Appellee by
Professor Mark E. DeForrest. Professor DeForrest’s interest in a case
about a Ten Commandments monument at the Oklahoma State Capitol is curious. Professor DeForrest’s scholarship on the Blaine Amendment focuses primarily on the effect of state Blaine Amendments on
school voucher programs. See Mark Edward DeForrest, Locke v.
Davey: The Connection Between the Federal Blaine Amendment and
Article I, § 11 of the Washington State Constitution, 40 Tulsa L. Rev. 295
(2004); Mark Edward DeForrest, An Overview and Evaluation of State
Blaine Amendments: Origins, Scope and First Amendment Concerns,
26 Harv. J.L. & Pub. Pol’y 551 (2003).
48. Steven K. Green, Blaine Amendment Reconsidered, 36 Am. J.
Legal Hist. 38, 38 (1992).
49. Steven K. Green, The Insignificance of the Blaine Amendment,
2008 B.Y.U. L. Rev. 295, 295 (2008).
50. Green, supra note 48, at 54.
53. Id. On that same note, one local commentator observed that
although one could make a good case that the monument on the
Capitol grounds is unconstitutional, “a shrewd district judge facing an
upcoming election would give the benefit of the doubt to the position
supported by the substantial majority of Oklahomans.” Andrew C.
Spiropoulos, Right Thinking: Faith Grows Amid Opposition, The Journal Record, Sept. 24, 2014. The rule of law requires us to uphold the
Constitution of this State regardless of what is popular or politically
expedient.
Vol. 86 — No. 22 — 8/29/2015
54. Steven K. Green, The Bible, the School, and the Constitution 232
(2012).
55. Act of June 16, 1906, Pub L. No. 234, ch. 3335, 34 Stat. 267 (1906).
56. Okla. Const. art. I, § 5.
57. Unlike the Republican-controlled Congress, the Oklahoma
Constitutional Convention delegates were overwhelmingly Democrat.
See Albert H. Ellis, A History of the Constitutional Convention of the
State of Oklahoma 49 (1923).
58. In Locke v. Davey, 540 U.S. 712, 723 n.7 (2004), the U.S. Supreme
Court, in discussing the Washington State Constitution, said:
The enabling Act of 1889, which authorized the drafting of the
Washington Constitution, required the state constitution to
include a provision ‘for the establishment and maintenance of
systems of public schools, which shall be . . . free from sectarian
control.’ This provision was included in Article IX, § 4, of the
Washington Constitution (‘All schools maintained or supported
wholly or in part by the public funds shall be forever free from
sectarian control or influence’), and is not at issue in this case.
Neither Davey nor amici have established a credible connection
between the Blaine Amendment and Article I, § 11, the relevant
constitutional provision (internal citation omitted).
Article I, § 11 of the Washington Constitution is similar to Art. II, §
5 of the Oklahoma Constitution in that it provides in part that “[n]o
public money or property shall be appropriated for or applied to any
religious worship, exercise or instruction, or the support of any religious establishment.” Id. at 719 n.2.
59. R.L. Williams, The Constitution and Enabling Act of the State of
Oklahoma Annotated 10 (1st ed. 1912). This Court has relied upon
Justice Williams’ annotations for identifying the sources for various
sections of the Oklahoma Constitution. City of Enid v. Pub. Emps.
Relations Bd., 2006 OK 16, n.4, 133 P.3d 281, 291 n.4. Additional
sources, as discussed herein, further substantiate the sources cited by
Justice Williams in identifying the origins of Art. II, § 5.
60. Justice R.L. Williams, Justice Samuel Hayes, and Justice Matthew Kane. Proceedings of the Constitutional Convention of the Proposed State of Okla. Held at Guthrie, Oklahoma Nov. 20, 1906 — Nov.
16, 1907 at 26, 36, 70.
61. Id. at 421. Thomas Jefferson first used the term “a wall of
separation between Church & State” in an 1802 letter to the Danbury
Baptist Association of Connecticut. Jefferson’s Letter to the Danbury
Baptists, Library of Congress, http://www.loc.gov/loc/lcib/9806/
danpre.html (last visited July 20, 2015).
62. Ellis, supra note 57, at 133-135.
63. Danny M. Adkison and Lisa McNair Palmer, The Oklahoma
State Constitution: A Reference Guide 30 (2001).
64. League of Women Voters, Study of the State Constitution 15
(1966).
65. Okla. Const. art. II, § 5.
66. 4 Cong. Rec. 205 (1875). This is the version originally proposed
by Congressman Blaine. The Amendment underwent significant
changes while in the Senate. See 4 Cong. Rec. 5453 (1876).
67. “Despite their claims to the contrary, opponents of the nofunding principle have generally failed to demonstrate a connection
between the Blaine Amendment and the various provisions from legislative histories, convention records, or other historical sources.”
Green, supra note 49, at 298.
68. McCreary County, 545 U.S. at 882 (O’Connor, J., concurring).
69. See Tarr, supra note 2, at 95.
70. Ellis, supra note 57, at 133-135.
71. Id.
72. Id. at 135 (quoting The Rev. J.M. Tressenriter).
COMBS, V.C.J., dissenting to denial of rehearing.
1. I would also restyle the case and set out Donald Chabot as a
plaintiff only and not as an appellant. According to the Brief of Plaintiffs/Appellants, filed March 16, 2015, Mr. Chabot died prior to the
district court’s ruling and is not an appellant in this case.
2. Tomahawk Resources, Inc. v. Craven, 2005 OK 82, supp. op. ¶1, 130
P.3d 222.
Generally, rehearing is granted: (1) to correct an error or omission, see Sooner Federal Savings and Loan Ass’n v. Mobley, 1981 OK
124, supp. op. ¶¶ 1-11, 645 P.2d 1000, 1003-04; Davis v. Fieker, 1997
OK 156, supp. op. ¶ 1, 952 P.2d 505, 516-17; Sharp v. Tulsa, 1994
OK 104, supp. op. ¶ 3, 890 P.2d 836, 846; I.C. Gas Amcana, Inc. v.
Hood, 1992 OK 119, supp. op. ¶2, 855 P.2d 597, 601; (2) to address
an unresolved jurisdictional issue, see Sholer v. State ex rel. Dept.
of Pub. Safety, 1995 OK 152, supp. op. ¶ 3, 945 P.2d 469, 478; or (3)
to clarify the opinion, see City of Oklahoma City v. State ex rel. Okla.
Vol. 86 — No. 22 — 8/29/2015
Dept. of Labor, 1995 OK 107, supp. op. ¶ 1, 918 P.2d 26, 31. Rehearing is not for rearguing a question which has been previously
presented and fully considered by this Court. See Draper v. State,
1980 OK 117, supp. op. ¶¶ 1-2, 621 P.2d 1142, 1147. Likewise, it is
not for presenting points which the losing party overlooked,
misapprehended, or failed to fully address.
3. In Meyer v. Oklahoma City, 1972 OK 45, 496 P.2d 789, this Court
upheld the constitutionality of a 50-foot cross on city property which
was lit by electricity funded by the city and whose facts are arguably
more offensive to the provisions of Okla. Const. art. 2, §5, than the facts
presented in this case
4. The Establishment Clause of the United States Constitution (U.S.
Const. amend. I), provides in pertinent part: “[c]ongress shall make no
law respecting an establishment of religion.”
5. The Plaintiffs/Appellants allege the Monument supports a system
of religion in violation of Okla. Const. art. 2, § 5. This section provides:
No public money or property shall ever be appropriated,
applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of
religion, or for the use, benefit, or support of any priest, preacher,
minister, or other religious teacher or dignitary, or sectarian
institution as such.
6. ROA, Doc. 15, p. 7-8 (Transcript of Proceedings held on September 19, 2014). The transcript provides that when the district judge
asked plaintiffs’ attorney, Mr. Henderson, whether the plaintiff s’ position is the court should use an objective standard, Mr. Henderson
replied, “I believe so, Your Honor, but I think it’s also an objective
standard that’s informed by the observations of those people directly
observing the monument.”
7. Id.
8. What a reasonable observer is aware of “is not limited to the
‘information gleaned simply from viewing the challenged display.’”
O’Connor v. Washburn University, 416 F.3d 1216, 1228 (10th Cir. 2005)
(quoting Wells v. City & County of Denver, 257 F.3d 1132, 1142-43 (10th
Cir. 2001)).
9. Gaylor v. U.S., 74 F.3d 214, 217 (10th Cir. 1996).
10. In Gaylor, the Court found the application of the reasonable
observer standard explained why it was rejecting the appellants’ insistence on further fact-finding at the trial court level. It determined:
We need not engage in such empirical investigation because ‘we
do not ask whether there is any person who could find an
endorsement of religion, whether some people may be offended
by the display, or whether some reasonable person might think
[the State] endorses religion. [T]he endorsement inquiry is not
about the perceptions of particular individuals or saving isolated
non-adherents from the discomfort of viewing symbols of faith
to which they do not subscribe.’ It is instead an objective inquiry
that this court is fully equipped to conduct with the facts at hand.
Gaylor, 74 F.3d at 217. (Internal citations omitted).
11. In Green v. Haskell County Board of Comm’rs, 568 F.3d 784, 807
n.17 (10th Cir. 2009), the Court noted:
Given that Van Orden was decided by a plurality, the separate
opinion of Justice Breyer, who supplied the “decisive fifth vote,”
Heideman v. S. Salt Lake City, 348 F.3d 1182, 1198 (10th Cir.2003), is
controlling under the rule of Marks v. United States, 430 U.S. 188,
193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (“When a fragmented
Court decides a case and no single rationale explaining the result
enjoys the assent of five Justices, the holding of the Court may be
viewed as that position taken by those Members who concurred
in the judgments on the narrowest grounds.”).
12. Subsection D of Section 2 of House Bill 1330 provided:
The placement of this monument shall not be construed to mean
the State of Oklahoma favors any particular religion or denomination thereof over others, but rather will be placed on the Capitol grounds where there are numerous other monuments.
2009 Okla. Sess. Laws ch. 204, §2.
13. Weinbaum v. City of Las Cruces, N.M., 541 F.3d 1017, 1031 (10th
Cir. 2008).
14. Id. (citing Bauchman for Bauchman v. West High School, 132 F.3d
542, 554 (10th Cir. 1997)).
15. Mark E. DeForrest, An Overview and Evaluation of State Blaine
Amendments Origins, Scope, And First Amendment Concerns, 26
Harv. J.L. & Pub. Pol’y 551 (2003). Mr. DeForrest also presented an
Amicus Curiae Brief to both this Court and the district court in the
present case discussing the Blaine Amendment and the alleged state
adoption of such provisions.
1737
2015 OK 57
SCBD 6293 Rule 6.2A. July 29, 2015
pended. The Tribunal concluded that Complainant had presented sufficient evidence to
demonstrate that Respondent had committed
conduct in violation of the Oklahoma Rules of
Professional Conduct and that his conduct
posed an immediate threat of substantial and
irreparable public harm.
ORDER OF IMMEDIATE INTERIM
SUSPENSION
¶4 On July 23, 2015, Respondent withdrew his
objection to the requested interim suspension.
¶1 On June 16, 2015, the complainant, Oklahoma Bar Association (OBA), filed a verified
complaint against the respondent, Robert John
Nichols, pursuant to Rule 6 of the Rules Governing Disciplinary Proceedings (RGDP), 5
O.S.2011, ch. 1, app. 1-A, and an application for
emergency immediate interim suspension pursuant to Rule 6.2A of the RGDP. The OBA
alleged instances of Respondent settling matters
without client knowledge or approval and converting client funds to his personal use, and
noted that Respondent continues to appear in
district court on several condemnation cases
where large Commissioner’s awards and/or
damage settlements are anticipated. The OBA
also requested an Order prohibiting Respondent
from withdrawing funds from his client trust
account(s) until an audit may be performed.
¶5 Upon consideration of the OBA’s Rule 6.2
verified complaint and application for an order
of immediate interim suspension, the evidence
presented, and the Trial Panel’s Report and
Recommendation, the Court finds that Respondent’s conduct poses an immediate threat of
substantial and irreparable public harm.
STATE OF OKLAHOMA ex rel.
OKLAHOMA BAR ASSOCIATION,
Complainant, v. ROBERT JOHN NICHOLS,
Respondent.
¶2 On June 17, 2015, this Court ordered
Respondent to show cause no later than June
29, 2015, why an order of immediate interim
suspension should not be entered. Respondent
filed a Response to the Order to Show Cause
on June 29, 2015, requesting that the motion for
interim suspension be denied. Respondent
asserted that in his pending cases, a pre trial
conference, a hearing setting appeal bond, and
an answer brief in an appeal would be delayed,
and that his practice is entirely condemnation
litigation making substitute counsel more difficult to locate.
¶3 On July 2, 2015, this Court assigned the
matter to the Professional Responsibility Tribunal for a hearing and recommendation as to
whether an Order of Immediate interim Suspension should be entered. A hearing was held
on July 15, 2015. The Trial Panel filed its Report
and Recommendation on July 23, 2015, recommending that the Complainant’s application
for an immediate interim suspension pursuant
to Rule 6.2A be granted. The Tribunal noted
that Respondent is no longer objecting to the
application, that he filed no Answer to the
Complaint, and that he had failed to show
cause why he should not be immediately sus1738
¶6 IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Robert John
Nichols is immediately suspended from the
practice of law, pursuant to Rule 6.2A of the
RGDP.
¶7 It is further ordered that Respondent is
prohibited from withdrawing funds from his
client trust account(s) until an audit may be
performed.
DONE BY ORDER OF THE SUPREME
COURT this 29th day of July, 2015.
/s/ Douglas Combs
VICE CHIEF JUSTICE
Combs, V.C.J., Kauger, Watt, Edmondson, Taylor, Colbert and Gurich, JJ., concur
Winchester, J., not voting
Reif, C.J., disqualified
ORDER FOR RECEIVERSHIP
AND NOTICE
¶1 In its Trial Panel Report and Recommendation filed on July 23, 2015, the panel recommended the appointment of a third-party
receiver to marshal the assets of the law practice of Respondent, Robert John Nichols. The
panel also recommended that Respondent be
required to notify opposing counsel of these
proceedings.
¶2 In order to protect the interests of Respondent’s clients and to implement the Order of
immediate interim suspension, this Court
directs the Complainant to seek, in Tulsa County, the appointment of a Receiver over Respondent’s law practice, assets, and accounts as
soon as practicable.
Vol. 86 — No. 22 — 8/29/2015
¶3 This Court orders Respondent to notify
opposing counsel, on all of Respondent’s pending legal business, of these proceedings and of
his immediate interim suspension within
twenty (20) days from the date of this Order by
certified mail. The notice shall include a copy
of the Order of Interim Suspension and this
Order for Notice and Receivership. The notice
shall further advise opposing counsel that the
Oklahoma Bar Association will be seeking a
receivership in Tulsa County and that any
funds payable to Respondents and his clients
should be held and paid to the Receiver upon
appointment. The notice shall also advise
opposing counsel to notify the Complainant of
any settlement or commissioner’s award proceeds in any of Respondent’s cases from the
date of this Order.
¶4 The Court further orders Respondent to
notify all of his clients having legal business
then pending within twenty (20) days from the
date of this Order, by certified mail, of Respondent’s immediate interim suspension and the
Respondent’s inability to represent them and
Vol. 86 — No. 22 — 8/29/2015
the necessity for promptly retaining new counsel. The notice shall include a copy of the Order
of Interim Suspension and this Order for Notice
and Receivership. Respondent shall also file a
formal withdrawal as counsel in all cases
pending in any tribunal. Respondent must file,
within twenty (20) days from the date of this
Order, an affidavit with the Commission and
with the Clerk of the Supreme Court stating
that the Respondent has complied with this
Order, together with a list of the clients so notified and a list of all other State and Federal
courts and administrative agencies before
which the lawyer is admitted to practice. If
Respondent receives any funds pertaining to
pending legal business after the date of this
Order, the funds shall be held in the Respondent’s trust account to be turned over to the
Receiver upon appointment.
¶5 DONE BY ORDER OF THE SUPREME
COURT THIS JULY 29, 2015.
/s/ Douglas Combs
VICE CHIEF JUSTICE
1739
BAR NEWS
Changes Proposed to the Rules
Governing Disciplinary Proceedings
Member Comments Requested
The following are proposed changes to the Rules
Governing Disciplinary Proceedings as proposed by
the Professional Responsibility Commission. These
changes are currently under consideration by the
OBA Board of Governors. The proposed changes
would give the Commission more discretion in the
action it might take.
Members of the OBA are encouraged to review the
proposed changes and submit any comments by
Oct. 23, 2015, 1) via email to RGDPRule3.3comments@
okbar.org or 2) mail hard copy comments to RGDP
Rule 3.3 Comments, OBA, P.O. Box 53036, Oklahoma City, OK 73152.
Rules Governing Disciplinary Proceedings.
Chapter 1, App. 1-A
Rule 3. General Counsel.
§3.3. Grievances Against the General Counsel of the Association.
(a) Whenever a grievance is filed, or information is received by the Commission which
could lead to the filing of a formal complaint
against the General Counsel of the Association, the members of the Commission, and the
President and the Executive Director of the
Association shall immediately be notified.
(b) If a disciplinary grievance is made against:
(1) The General Counsel or member of
General Counsel’s staff alleging grounds
for the imposition of discipline pursuant to
these Rules, the Professional Responsibility
Commission (PRC) shall consider the matter on the basis of the grievance. After
1740
review and consideration, the PRC may
take any of the following actions or any
combination thereof: (1) Require the General Counsel to make a response; (2)
Appoint an Investigator; (3) Appoint a special counsel to investigate and present the
case; or (4) Take such other steps as are
necessary to facilitate the prompt resolution of the grievance. the Professional
Responsibility Commission shall appoint a
special counsel to investigate and present
the case;
(2) A member of the Professional Responsibility Commission, the President of the
Oklahoma Bar Association with concurrence of the Board of Governors, shall
appoint a special three (3) member Commission to act on the grievance in conformance with these Rules;
(3) A member of the Professional Responsibility Tribunal, all procedures mandated by
these Rules shall be followed, except the
Supreme Court shall appoint a special Tribunal Panel to hear the case in the event
formal charges are filed.
(4) A member of the Supreme Court, the
matter shall be referred to the Oklahoma
Council on Judicial Complaints.
(c) The President and the Executive Director
of the Association shall be kept fully informed
of all action taken by the Commission in the
matter.
Vol. 86 — No. 22 — 8/29/2015
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Vol. 86 — No. 22 — 8/29/2015
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1741
Court of Civil Appeals Opinions
2015 OK CIV APP 64
IN THE MATTER OF THE ESTATE OF
RALPH DEAN KENWORTHY AND
FLORITA KENWORTHY, BOTH
DECEASED: KRISTINE KENWORTHY
RIDDER, PERSONAL REPRESENTATIVE
OF THE ESTATES OF RALPH DEAN
KENWORTHY AND FLORITA
KENWORTHY, Plaintiff/Appellee, vs.
LYNNE ROBERTS, AN INDIVIDUAL,
Defendant/Appellant.
Case No. 113,817. July 9, 2015
APPEAL FROM THE DISTRICT COURT OF
HASKELL COUNTY, OKLAHOMA
HONORABLE BRIAN HENDERSON,
TRIAL JUDGE
AFFIRMED
James W. Smith, Stigler, Oklahoma, for Plaintiff/Appellee,
Jody R. Nathan, STAUFFER & NATHAN,
Tulsa, Oklahoma, for Defendant/Appellant.
BRIAN JACK GOREE, PRESIDING JUDGE:
¶1 Kristine Kenworthy Ridder (Kristine),
personal representative and beneficiary of the
Kenworthy estate, brought action against her
aunt, Lynne Roberts (Lynne), to quiet title to
the contents of a safe deposit box on behalf of
the probate estate. This safe deposit box was
initially accessible by Ralph Kenworthy (Ralph)
and Florita Kenworthy (Florita), but in 2006,
Florita allowed Lynne to be added as a joint
lessee on the account. Both parties moved for
summary judgment. The trial court granted
summary judgment in favor of Kristine, and
denied Lynne’s motion. Consequently, the
court ordered that the contents of the safe
deposit box, including $288,000 in United
States Savings Bonds, be returned to the estate
of Ralph and Florita Kenworthy. It is from that
order that Lynne appeals. We affirm the judgment in favor of Kristine.
FACTS
¶2 Ralph and Florita Kenworthy were the
lessees of a safe deposit box containing several
assets including United States Savings Bonds
made out to Ralph and Florita Kenworthy.
1742
Ralph passed away, and in May 2006, Florita
added her sister Lynne Roberts as a joint lessee
to the safe deposit box. Upon Florita’s death,
Lynne, as a lessee of the box, retrieved the
bonds. Kristine Kenworthy Ridder, daughter,
beneficiary, and representative of Ralph and
Florita’s estate, brought this action to quiet title
to the bonds and return them to the estate.1
¶3 Lynne objected, claiming that Florita had
made an inter vivos gift to her of the contents of
the safe deposit box, and subsequently the Savings Bonds should belong to her rather than
Florita’s and Ralph’s estates.
¶4 Kristine replied by petitioning the court
for an order directing Lynne to return the
bonds. Kristine also alleged Lynne was liable
for double the value of the property pursuant
to 58 O.S. 2011 §292. Lynne admitted she was
in possession of the bonds but denied that they
were property of the estate. Lynne also asserted as affirmative defenses that the petition
failed to state a cause of action, that the funds
were not property of the estate, and that the
bonds were an inter vivos gift from Florita. Further, Lynne filed a counter-claim alleging Kristine had wrongfully taken possession of other
contents of the safe deposit box, which Lynne
believed were gifted to her.
¶5 Kristine answered Lynne’s counter-claim
by denying there was any inter vivos gift made
to Lynne and denying that Lynne was entitled
to possession of the contents of the box. Both
parties moved for summary judgment, and the
trial court decided the legal issues in favor of
Kristine. Lynne appealed.
STANDARD OF REVIEW
¶6 In cases stemming procedurally from
summary judgment orders, we will examine
the matter de novo. Scott v. Archon Grp., L.P.,
2008 OK 45, ¶8, 191 P.3d 1207, 1210, as corrected (May 14, 2008). Summary judgment is
only appropriate where there are no questions
of substantial or material fact in dispute, allowing the court to issue a decision as a matter of
pure law. Beatty v. Dixon, 1965 OK 169, ¶7, 408
P.2d 339, 342. This strict standard of review
limits this court from considering extraneous
information; the review shall be confined to
only evidentiary materials submitted to the
Vol. 86 — No. 22 — 8/29/2015
trial court, which must be viewed in the light
most favorable to the non-movant. Hargrave v.
Canadian Valley Electric Cooperative, Inc., 1990
OK 43, ¶14, 792 P.2d 50, 55. There are no disputed material facts in the present case which
would require trial.
there was no actual delivery or abnegation of
the alleged gift. It is not enough that Lynne
claims Florita made a declaration of her intent
to gift the bonds without actual delivery of the
gift. Matter of Estate of Hoyle, 1993 OK CIV APP
183, 866 P.2d 451, 453.
I.
¶10 Lynne cites Cluck v. Ford, 2007 OK CIV
APP 3, 152 P.3d 279, and argues the element of
delivery was satisfied when Florita arranged
for her to sign the safe deposit box contract.
However, Lynne’s affidavit is directed toward
a claim of access to the box and not delivery of
its contents: “Florita advised me that it was her
intention to provide me with full and unlimited access to the contents of the safe deposit
box.” (emphasis added). Furthermore, it appears from her brief that Lynne abandoned her
inter vivos gift argument in favor of a claim of
ownership based upon joint tenancy with right
of survivorship.
Inter Vivos Gift
¶7 The requisite elements of an inter vivos gift
have been firmly established in case law:
To constitute a valid gift inter vivos there
must be a donor competent to make it; freedom of will on his part; an intention on his
part to make it; a donee capable of taking
the gift; the gift must be complete, and
nothing left undone; the property must be
delivered by the donor, and accepted by
the donee; the gift must go into immediate
and absolute effect; the gift must be gratuitous; the gift must be irrevocable.
Harmon v. Kerns, 1934 OK 535, ¶6, 36 P.2d 898,
899-900.
¶8 Lynne contends that the trial court erred
when it required an inter vivos transfer on joint
tenancy property. We do not find this position
persuasive. Lynne initially asserted that during
a telephone conversation, Florita informed her
that she would have “full and unlimited access
to the contents of the safe deposit box.” Lynne
apparently believed that Florita was gifting to
her the contents of the box. While the record
presented to us on review does not give explanation as to whether all the above mentioned
elements of an inter vivos gift were met, it is
sufficient to say that there was no gift, based on
the lack of delivery and the failure of the gift to
take immediate and absolute effect. Id. The savings bonds remained where they had always
been in the deposit box. They remained in Florita’s name and were never reissued to Lynne.
In that sense, Florita never fully relinquished
control of the property. The only change in
dynamic was Lynne’s newfound ability to
access the contents. This is at odds with In re
Estate of Estes, which states in pertinent part
that a gift must “go into immediate and absolute effect with the donor relinquishing all
control.” In re Estate of Estes, 1999 OK 59, ¶29,
983 P.2d 438, 445.
¶9 While nothing else in the record is present
to reflect Florita’s intent or motivation in allowing Lynne to be a joint lessee, it is apparent that
Vol. 86 — No. 22 — 8/29/2015
II.
Joint Tenancy
¶11 In 1947, the legislature enumerated what
was necessary to form a joint tenancy. A joint
tenancy is one wherein two or more individuals have equal and concurrent claim to an interest. 60 O.S. 2011 § 74. To be recognized as a joint
interest, parties must expressly agree to the
shared interest in writing. Id. Where a joint
tenancy is valid, the death of one tenant vests
the surviving tenant with ownership of the
property in its entirety, thereby excluding it
from the decedent’s estate. In re Estate of Metz,
2011 OK 26, ¶ 8, 256 P.3d 45, 49. However, joint
lease of a safe deposit box does not result in
joint tenancy of the box’s contents without an
express agreement. Matter of Estate of Stinchcomb, 1983 OK 120, ¶5, 674 P.2d 26, 29.
¶12 To establish the covenant of joint tenancy, a writing must be signed and express “clear
and unequivocal intent...to make [a] donee a
joint owner and [contain] a survivorship
clause.” Flesher v. Flesher, 1953 OK 392, ¶24, 258
P.2d 899, 904. In the present case, we do not
agree that there was an express contractual
agreement establishing the “clear and unequivocal intent” of the parties to form a joint tenancy. Id.
¶13 The purpose of the bank agreement was
to add Lynne as a joint lessee on the account
with the right to access the contents of the safe
deposit box. Paragraph 16 of the safe deposit
contract states in pertinent part that the lessees,
1743
shall have access to the box without...
authority from the other...[and]...have the
power to deputize...any third party to have
access to the box... They lease said box and
shall hold and use the same as joint tenants
and not as tenants in common, and that in
the event of the death of either of any said
joint tenants, the survivor...shall have the
exclusive and continuing right of access...
and may remove and take any part or all
the contents...
¶14 Lynne thus had the right, as a joint lessee, to access the contents and have full control
of them, including the right to remove the contents. Access and ability to legally remove
property is not synonymous with ownership of
the property. While there are similarities
between the two, ownership of property is a
more significant right than mere possession.
The signed bank contract is therefore distinguishable from a joint tenancy with right of
survivorship for possession of the contents of
the safe deposit box.
¶15 Additionally, Lynne contends the trial
court erred in not following the precedent set
forth in Alexander v. Alexander which states that
where a joint tenancy exists, ownership of the
property need not be supported by an inter
vivos gift. Alexander v. Alexander, 1975 OK 101,
¶8, 538 P.2d 200, 202. This argument carries no
force as there is not a valid joint tenancy with
right of survivorship in place. For that reason
we cannot say, as Lynne contends, that the trial
court erred in finding that the savings bonds
were not joint tenancy property by reason of
the express agreement of the parties. Moreover,
given the current context, the trial court did not
misapply Alexander or Cluck. We therefore
affirm the trial court’s findings on these issues.
tions explicitly controls all matters relating to
United States savings bonds. Title 31 C.F.R. §
315.70(b)(2) states that if both co-owners of a
savings bond are deceased, the bond passes to
the estate. Further, “savings bonds are not
transferable and are payable only to the owners named on the bonds...” 31 C.F.R. § 315.15.
Additionally, for a successful transfer of saving
bonds to occur, the bonds must be reissued into
the transferee’s name thereby divesting the
original owner of any interest in the bonds.
United States v. Chandler, 410 U.S. 257, 258, 93 S.
Ct. 880, 881, 35 L.Ed.2d 247 (1973).
¶18 From the relevant statutes and case law,
it is clear that even if there had been a valid gift
or joint tenancy agreement, without reissuing
the bonds into Lynne’s name, her claims would
fail. Moreover, even once the bonds are
returned to the estate, Lynne cannot have claim
to them. As set forth by the Chandler court,
“where [a] bond owner made physical delivery
of bonds inter vivos but failed to reissue the
bonds, she failed to divest herself of interest in
the bonds. Thus upon her death they become
part of her estate.” Id. Regardless of Lynne’s
theory of recovery, her claim to the bonds cannot prevail under the controlling federal law.
CONCLUSION
¶19 For the foregoing reasons, the trial court’s
summary judgment in favor of the Plaintiff,
Kristine Kenworthy Ridder, is AFFIRMED.
BUETTNER, J., and BELL, J., concur.
1. Lynne attempted to invoke the jurisdiction of a federal court by
filing a notice of removal. The Eastern District concluded the probate
issue was not subject to removal and Lynne was not entitled to summary judgment because she failed to submit sufficient evidence of the
elements of inter vivos gift or an intent to create a joint tenancy. Kenworthy-Riddle v. Roberts, No. CIV-14-054-RAW, 2014.
¶16 Even if we were to agree that Lynne has
presented a question of fact concerning Florita’s intent to make a gift or create a joint
tenancy, the summary judgment must nevertheless be affirmed because United States savings bonds may not be transferred by either
of those methods.
HOBBY LOBBY and TWIN CITY FIRE
INSURANCE, Petitioners, vs. NEIL
ROBERTS and THE WORKERS’
COMPENSATION COURT OF EXISTING
CLAIMS, Respondents.
III.
Case No. 113,371. June 30, 2015
United States Savings Bonds
PROCEEDING TO REVIEW AN ORDER OF
A THREE-JUDGE PANEL OF THE WORKERS’ COMPENSATION COURT OF EXISTING CLAIMS
¶17 Title 31 U.S.C. § 3105(c)(3) creates a Congressional grant allocating the United States
Treasury the right to regulate certain aspects
associated with savings bonds. More specifically, Title 31 of the Code of Federal Regula1744
2015 OK CIV APP 65
HONORABLE WILLIAM R. FOSTER,
TRIAL JUDGE
Vol. 86 — No. 22 — 8/29/2015
VACATED AND REMANDED WITH
INSTRUCTIONS
James C. Ferguson, Thomas G. Ferguson, Bruce
V. Winston, WALKER, FERGUSON & FERGUSON, Oklahoma City, Oklahoma, for Petitioner
Hobby Lobby
Jami Rhoades Antonisse, Brad Miller, MILLER
& JOHNSON, PLLC, Oklahoma City, Oklahoma, for Petitioner Twin City Fire Insurance
Alexander K. Forbes, FORBES & FORBES,
Midwest City, Oklahoma, for Respondent
P. THOMAS THORNBRUGH, JUDGE:
¶1 Petitioners, Hobby Lobby (Employer) and
its workers’ compensation insurance carrier,
Twin City Fire Insurance (Insurer), seek review
of a Workers’ Compensation Court of Existing
Claims panel decision affirming as modified a
trial court decision that found Petitioners violated the privacy rights of Claimant, Neil Roberts. For the reasons set forth below, we vacate
that part of the panel’s decision for which
review is sought, and remand with instructions
to comply with the procedural requirements of
Workers’ Compensation Court Rule 64. Insurer’s motion for oral argument, filed May 22,
2015, is denied.
BACKGROUND
¶2 This dispute concerns the lower court’s
order following a hearing on Claimant’s pretrial motion to revoke “[Employer’s] selfinsured status and/or [Insurer’s] permit to do
business” in Oklahoma, based on a private
investigator’s alleged attempt to attach a GPS
tracking device to Claimant’s car when it was
parked on private property.1 At trial in April
2014, the trial court considered Claimant’s
motion over Employer and Insurer’s objection
that Workers’ Compensation Court Rule 64
required such a motion to first be presented to
the Workers’ Compensation Court Administrator. The trial court judge stated that the court
currently did not have an administrator with
clear authority to hear the motion,2 and that the
trial judge therefore would proceed and take
evidence on the motion. In an order that also
found that Claimant is permanently and totally
disabled (PTD) due to a work-related injury,3
the trial court included a separate paragraph
finding as follows:
Vol. 86 — No. 22 — 8/29/2015
-1THAT respondent through it’s agent,
PaKpoom Nillpraphan “Paul,” knowingly,
willfully and intentionally violated the
claimant’s privacy by entering private
property to place a GPS tracking device on
claimant’s car. As a result of intentional
misconduct, the Court has been asked to
revoke respondent, Hobby Lobby’s selfinsured status and/or their insurance company’s permit to do business in the State of
Oklahoma. This Court finds that it is without authority to do so pursuant to the
Workers’ Compensation Court Rule 64. As
a result, this Court refers this matter to the
Court Administrator.
¶3 Employer and Insurer appealed to a
three-judge panel, challenging only the paragraph quoted above (Paragraph 1) and asserting, inter alia, that the court lacked authority to
address revocation because the court had not
followed the required procedures of Rule 64.
The panel affirmed, but modified the next-tolast sentence in Paragraph 1 by deleting the
reference to “Hobby Lobby’s self-insured status.”4 Employer and Insurer seek review here.
They challenge the lower court’s authority to
consider Claimant’s motion, as well as the
court’s factual findings concerning invasion of
privacy and the private investigator’s status as
an agent of either party. Insurer also has
requested oral argument before this Court.
STANDARD OF REVIEW
¶4 As a general rule, the law applicable to a
workers’ compensation case — including the
appellate standard of review — is that which
was in effect at the time of an employee’s injury. See King Mfg. v. Meadows, 2005 OK 78, ¶ 11,
127 P.3d 584; Williams Cos. v. Dunkelgod, 2012
OK 96, ¶ 18, 295 P.3d 1107. Effective at the time
of Claimant’s January 2011 injury was 85 O.S.
Supp. 2010 § 3.6(C)(repealed effective Aug. 26,
2011), which provides that this Court may
modify, reverse, remand for rehearing, or set
aside the lower court’s order on any of the following grounds:
1. The Court acted without or in excess of
its powers;
2. The order or award was contrary to law;
3. The order or award was procured by
fraud; or
1745
4. The order or award was against the clear
weight of the evidence.
¶5 Statutory construction and questions concerning jurisdictional matters in the workers’
compensation court present issues of law. Hogg
v. Okla. Cnty. Juvenile Bureau, 2012 OK 107, ¶ 7,
292 P.3d 29; Stidham v. Special Indem. Fund, 2000
OK 33, ¶ 10, 10 P.3d 880. “Questions of law are
reviewed by a de novo standard under which
this Court has plenary, non-deferential and
independent authority to determine whether
lower courts have erred in their legal rulings.”
Graham Pub. Sch. v. Priddy, 2014 OK 30, ¶ 8, 328
P.3d 1190 (citation omitted).
ANALYSIS
¶6 At the time of Claimant’s injury, Rule 64,
85 O.S. Supp. 2010 ch. 4, app., stated:
Rule 64. Motion to Revoke Insurance
License
Motions to revoke or suspend the insurance license of any carrier, pursuant to 85
O.S., Section 42(B), shall first be presented
to the Court Administrator for disposition.
The Administrator may refer the matter to
a regularly assigned judge of the Court for
fact finding and determination. Appeals
from the decision of the trial judge, or the
Administrator shall conform to Rule 60
[governing appeals to a three-judge panel].
If it is determined that an insurer’s license
should be suspended or revoked, a recommendation shall be made to the Insurance
Commissioner.
Though the rule was amended in 2012 to
incorporate statutory changes, the version in
effect at the time of the April 2014 hearing was
substantially the same. The version of § 42(B)
in effect in January 2011, at 85 O.S. Supp. 2010,
stated:
B. If any insurance carrier intentionally,
knowingly, or willfully violates any of the
provisions of the Workers’ Compensation
Act or any published rules or regulations
promulgated thereunder, the Insurance Commissioner, on the request of a judge of the
Court or the Administrator of workers’ compensation, shall suspend or revoke the
license or authority of such insurance carrier
to do a compensation business in this state.5
¶7 While § 42(B) contemplates that a judge or
the Court Administrator may ultimately request
or recommend further action by the Insurance
1746
Commissioner, Rule 64 unambiguously requires that a motion to revoke go first to the
Administrator before it is presented to a judge.
Indeed, the trial judge himself recognized this
requirement as reflected by his comments at
the April 2014 hearing. See note 2, supra. Further, both the trial court and the panel implicitly recognized the impropriety to entertain the
motion at that point in the proceedings by virtue of the fact that they referred the matter to
the Administrator pursuant to the rule. “The
Workers’ Compensation Court is a court of
record with authority to adopt reasonable rules
and regulations within its respective areas of
responsibility which, when approved by the
Supreme Court, ‘if not inconsistent with law,
shall be binding in the administration of the
Workers’ Compensation Act,’” and have the
force and effect of law. See Texas Okla. Exp. v.
Sorenson, 1982 OK 113, ¶¶ 2-3, 652 P.2d 285
(quoting 85 O.S. Supp. 1977 § 1.2 (E)). Here, the
lower court’s attempt to conduct its own “factfinding” prior to receiving an administrative
referral of the matter, pursuant to the court’s own
rule, was unauthorized, and thus was ineffective to produce a decision free of doubt as to its
validity concerning the matter addressed in
violation of the rule, in Paragraph 1.
¶8 Claimant appears to argue that compliance with Rule 64 was not required due to the
uncertain status of the Court Administrator at
the time of the hearing. He cites no authority to
support this rationale for ignoring the established rules and procedures of the court, and
we are aware of none. We therefore reject the
argument.
¶9 Claimant also contends that the lower
court was correct in proceeding with the matter under its general authority to supervise
“the discovery tactics” of Employer and Insurer. Claimant did not make this argument in the
trial court, and we will not consider it for the
first time on appeal. See Johnson v. City of Woodward, 2001 OK 85, ¶ 21, 38 P.3d 218 (citing
Northwest Datsun v. Okla. Motor Vehicle Comm’n,
1987 OK 31, ¶ 16, 736 P.2d 516). Further, the
argument ignores the fact that Claimant did
not request or invoke sanctions under the
court’s general powers, but chose instead to
proceed under Rule 64 with a motion to revoke.
The only authority Claimant cites in support of
his contention in this regard is Rule 23(C) of the
Rules of the Court on the Judiciary, Trial Division, 5 O.S.2011 ch. 1, app. 7. While a workers’
compensation trial tribunal may well have the
Vol. 86 — No. 22 — 8/29/2015
authority to sanction counsel or a party for
egregious or improper conduct in its court or
in discovery practices, this was not the issue
that was before the workers’ compensation
court in this matter. Claimant’s attempt to raise
it here is misplaced, as well.
¶10 Because the lower court failed to follow
the clear directives of Workers’ Compensation
Court Rule 64, it lacked authority to consider
Claimant’s motion to revoke pursuant to that
Rule and make the findings as set forth in Paragraph 1 of its order. Accordingly, Paragraph 1
of the order is vacated in its entirety. This matter is remanded to the Court of Existing Claims
with instructions to comply with the procedural requirements of Workers’ Compensation
Court Rule 64 that Claimant’s motion first be
presented to the Workers’ Compensation Court
Administrator.
CONCLUSION
¶11 The lower court committed an error of
law by failing to follow the unambiguous
requirements of Workers’ Compensation Court
Rule 64 in its handling of Claimant’s motion to
revoke. Therefore, Paragraph 1 of the court’s
order is vacated in its entirety. This matter is
remanded with instructions to comply with the
procedural requirements of Rule 64 that Claimant’s motion first be presented to the Court
Administrator. Insurer’s motion for oral argument is denied.
¶12 VACATED AND REMANDED WITH
INSTRUCTIONS.
RAPP, P.J., and BARNES, J., concur.
1. Prior to trial in April 2014, Claimant filed a Form 9 motion in the
WC Court seeking:
Suspension of Respondent Hobby Lobby’s self-insured status and/or their insurance company’s permit to do business in
the State of Oklahoma . . . based on respondent’s willful and
intentional conduct towards its employee, the claimant herein.
Evidence will show that respondent, Hobby Lobby’s adjusters,
and agent attempted to attach a tracking device to claimant’s
personal property. Claimant asserts this action violates protection offered to every citizen, including claimant, under the U.S.
Constitution and the Constitution of the State of Oklahoma.
2. The trial in this case occurred during a time of transition in
Oklahoma workers’ compensation legislation. At the April 2014 hearing, the trial judge noted that WC Court Judge Harkey was “acting
kind of” in the capacity of Court Administrator, but that “he has technically not been appointed” and “since we are all here, and all the
witnesses are here, I’ll just hear all the testimony on it.” He stated, “[I]
f I decide I cannot rule on it, I’ll put that in the order. If I decide I can
rule on it, then I’ll put that in the order.”
3. The trial court’s June 2014 order found Claimant PTD as a result
of injuries sustained while he unloaded a truck in the course of his
employment on January 2, 2011. Employer and Insurer admit the
injury and do not seek review of the PTD determination.
4. The full sentence as modified by the panel reads as follows: “As
a result of intentional misconduct, the Court has been asked to revoke
respondent, Hobby Lobby’s insurance company’s permit to do business in the State of Oklahoma.”
Vol. 86 — No. 22 — 8/29/2015
5. A substantially similar provision appears at 85 O.S.2011 § 346(B)
(effective Aug. 26, 2011, through Feb. 1, 2014). A provision similar to
subsection (B) does not appear in Title 85A.
2015 OK CIV APP 66
GREGORY M. EGLESTON, Plaintiff/
Appellant, vs. CHESAPEAKE ENERGY
CORPORATION, Defendant/Appellee.
Case No. 112,925. June 30, 2015
APPEAL FROM THE DISTRICT COURT OF
OKLAHOMA COUNTY, OKLAHOMA
HONORABLE ROGER STUART,
TRIAL JUDGE
AFFIRMED
Mark A. Waller, J. David Jorgenson, SNEED
LANG PC, Tulsa, Oklahoma, for Plaintiff/
Appellant
Spencer F. Smith, MCAFEE & TAFT, A Professional Corporation, Oklahoma City, Oklahoma,
and Robert P. Varian, Pro Hac Vice, M. Todd
Scott, Pro Hac Vice, Alex K. Talarides, Pro Hac
Vice, ORRICK, HERRINGTON & SUTCLIFFE
LLP, San Francisco, California, for Defendant/
Appellee
DEBORAH B. BARNES, JUDGE:
¶1 Plaintiff/Appellant Gregory M. Egleston
(Egleston) appeals the trial court’s Order granting the motion to dismiss of Defendant/Appellee Chesapeake Energy Corporation (Chesapeake).1 Egleston previously made a demand
on Chesapeake that it take certain actions
related to alleged corporate waste and mismanagement. On appeal in that prior case, a
separate division of this Court concluded that
Chesapeake’s action constituted a rejection of
Egleston’s demand, and that the rejection was
a reasonable exercise of business judgment. We
now determine that, based on that prior determination, which became final, Egleston may
not pursue an action under 18 O.S. 2011 § 1065
to compel inspection of corporate records to
further investigate events related to his prior
demand. Therefore, we affirm the Order.
BACKGROUND
¶2 In September, 2013, Egleston filed a petition to compel an inspection of certain books
and records of Chesapeake.2 Egleston, a shareholder of Chesapeake, seeks
two distinct sets of materials: (1) the Audit
Committee Report . . . that served as the
basis for the Company’s Board of Directors
1747
. . . exonerating Mr. Aubrey McClendon …,
the Company’s former Chief Executive
Officer . . . and Chairman; and (2) materials
related to the Board’s determination that
Mr. McClendon was entitled to excessive
and unusual severance terms and benefits
despite Mr. McClendon’s repeated, selfinterested conduct that caused the Company extensive harm and resulted in his
removal from the Company.
¶3 Egleston alleges that during McClendon’s
tenure as CEO,
Mr. McClendon engaged in self-dealing
practices on multiple occasions that caused
material harm to the Company. Despite
ample evidence of this malfeasance, the
Company’s Audit Committee . . . submitted a report (the “Audit Committee Report”) to the Company’s Board of Directors
finding no intentional misconduct on Mr.
McClendon’s part. Relying on this report,
the Board of Directors exonerated Mr. McClendon of all wrongdoing. Later, Mr.
McClendon would receive a lucrative severance package upon his resignation and then
subsequently, receive altered favorable
terms that would allow him continued use
of Company assets and the ability to engage
in direct competition with Chesapeake.
¶4 Egleston also alleges that during McClendon’s tenure as CEO, Chesapeake engaged in
“pervasive, illegal conduct,” and that
Mr. McClendon was primarily responsible
for overseeing the Company and making
certain that the proper internal controls
were available and functioning to prevent
any illicit conduct. Mr. McClendon either
knowingly or recklessly disregarded such
responsibilities and as a result, the Company has suffered and will suffer harm.
Despite disregarding his oversight responsibilities, the Board has still provided Mr.
McClendon with lucrative and favorable
severance terms.
¶5 Egleston further alleges that “McClendon’s malfeasance” caused “weakness and
instability,” including sharp drops in market
capitalization and the “need for Chesapeake to
desperately secure financing on the most unfavorable of terms and sell assets below market
value . . . .”
¶6 In August, 2012, a little over a year prior
to filing the petition in this case, Egleston sent
1748
what he describes as “well-pleaded factual
allegations” to Chesapeake requesting, among
other things, that its Board of Directors
assert corporate governance and legal
action against Mr. McClendon and the
directors that permitted his malfeasance.
Specifically, the Egleston Demand requested legal action against Mr. McClendon for
abdicating his fiduciary duties and causing
the Company substantial harm by concurrently negotiating with financial lenders on
his behalf and on behalf of the Company,
while securing favorable terms for himself
to Chesapeake’s detriment.
Egleston asserts he also “requested that Mr.
McClendon be terminated from his position as
CEO, removed from the Chesapeake Board of
Directors[,] and [Egleston] sought the claw
back of any salary, compensation or bonuses
accumulated between November 2011 and the
present.”
¶7 The Chesapeake Board of Directors denied
Egleston’s demand, and Egleston filed a petition in November, 2012, alleging that the
Board’s denial did not satisfy the business
judgment rule. The prior case culminated in
the issuance of an opinion by a separate division of this Court: Egleston ex rel. Chesapeake
Energy Corp. v. McClendon, 2014 OK CIV APP
11, 318 P.3d 210. In that opinion, the Court confirmed that, prior to filing the November 2012
petition, Egleston made a demand on the
Chesapeake Board of Directors that it “take
immediate legal action against McClendon and
former members of the Board of Directors to
recover damages for breach of fiduciary duty,
to enforce the rules of corporate governance,
and to remove McClendon as CEO,” id. ¶ 3,
and that this demand was denied by the
Board.3 Egleston filed the November 2012 petition alleging, as stated, that the Board’s denial
did not satisfy the business judgment rule. The
trial court dismissed the November 2012 petition with prejudice. On appeal, in affirming the
trial court’s dismissal, the Court found the
denial of Egleston’s demand by the Board constituted a reasonable exercise of business judgment. Id. ¶ 18.4
¶8 Following the filing of the petition in the
present case to compel an inspection of certain
books and records of Chesapeake, Chesapeake
filed a motion to dismiss, Egleston filed a
response, and Chesapeake filed a reply. Both
parties attached evidentiary materials to their
Vol. 86 — No. 22 — 8/29/2015
filings which were not excluded by the trial
court. From the trial court’s Order filed in May,
2014, granting Chesapeake’s motion, Egleston
appeals.
a. the shareholder is a shareholder,
b.the shareholder has complied with the
provisions of this section respecting
the form and manner of making
demand for inspection of the documents, and
c.the inspection the shareholder seeks is
for a proper purpose.7
STANDARD OF REVIEW
¶9 Although Chesapeake titled its motion a
“Motion to Dismiss,” it attached matters outside the pleading that were not excluded by the
trial court; consequently, we will treat the
motion as one for summary judgment.5 An
order that grants summary relief disposes
solely of legal questions and is reviewable by a
de novo standard. Residential Funding Real Estate
Holdings, LLC v. Adams, 2012 OK 49, ¶ 17, 279
P.3d 788.6
ANALYSIS
¶10 Chesapeake argues that Egleston “cannot use a Section 1065 action to obtain documents related to allegations in a lawsuit that
has been dismissed with prejudice.” Chesapeake argues:
Having already received three voluminous productions of Chesapeake’s confidential materials and filing a failed lawsuit
on that basis, [Egleston] insists he is entitled to yet more documents related to that
suit. But as a matter of law, [Egleston] cannot use the inspection rights afforded by
Section 1065 to gather discovery that bears
directly on a dismissed case[.]
¶11 The Oklahoma Supreme Court has stated:
Our statutes clearly recognize that a
“shareholder of record” may seek certain
corporate records. 18 O.S. 1991 § 1065(A)….
If access is denied after the statutory procedure for access has been followed a shareholder of record may apply to the District
Court for an order to compel inspection.
Ramco Operating Co. v. Gassett, 1995 OK 8, ¶ 7,
890 P.2d 941. Title 18 O.S. 2011 § 1065 provides,
in part, as follows:
C. 1. If the corporation or an officer or
agent thereof refuses to permit an inspection sought by a shareholder . . . the shareholder may apply to the district court for
an order to compel an inspection. . . .
2. Where the shareholder seeks to inspect
the corporation’s books and records, other
than its stock ledger or list of shareholders,
the shareholder shall first establish that:
Vol. 86 — No. 22 — 8/29/2015
¶12 There is no dispute that Chesapeake has
refused to permit access to certain records
sought by Egleston. Moreover, this appears to
be Egleston’s first § 1065 action; consequently,
he is not barred by a prior application made to
the district court to compel inspection under
the same circumstances. See, e.g., Sec. First Corp.
v. U.S. Die Casting & Dev. Co., 687 A.2d 563, 57071 (Del. 1997) (“Neither the doctrine of res judicata nor the principle of the law of the case has
any application to a subsequent demand . . . to
inspect” so long as “there has been a material
change of circumstances” from the time of a
previous demand to inspect.).8 Furthermore, the
Delaware Supreme Court has rejected as “overbroad,” and “unsupported by the text of, and the
policy underlying, Section 220” (the counterpart
of which, in Oklahoma, is § 1065), a rule that
“would automatically bar a stockholder-plaintiff
from bringing a Section 220 action solely because
that plaintiff previously filed a plenary derivative suit[.]” King v. VeriFone Holdings, Inc., 12
A.3d 1140, 1151 (Del. 2011).9
¶13 Even with this in mind, however, the
nature of the prior action was not a “plenary
derivative suit” but, rather, a demand, by Egleston, that Chesapeake’s Board take certain
actions with regard to alleged mismanagement
and waste. Moreover, the Board’s decision to
deny Egleston’s demand was specifically found
in the prior appeal to “constitute[] a reasonable
exercise of business judgment,” McClendon, ¶
18, and this decision became final. Egleston
now seeks to pursue a § 1065 action to investigate the same corporate mismanagement about
which he complained in the prior demand
action — a demand which Chesapeake properly denied as concluded in the prior case.
¶14 Egleston argues that, in this case, he is
seeking to investigate certain further acts of
corporate wrongdoing about which he did not
complain in the prior action. Egleston admits
“the background information [in the present
action], specifically Mr. McClendon’s malfeasance, contains much of the same facts [as in
the prior action] . . . .” However, he argues that,
1749
in this action, he is now also complaining
about (1) the “exoneration” of McClendon by
the Board based on a certain Audit Committee
Report, and (2) the severance package provided to McClendon. Based on Egleston’s own
allegations, however, both of these acts occurred during the proceedings before the trial
court in the prior action. The “exoneration”
was announced in February of 2013, well in
advance of the April 2013 hearing.10 Egleston
also admits that the announcement of the severance package occurred on April 19, 2013,
after the hearing but prior to the date the trial
court’s order was filed — May 2, 2013.
¶15 While the announcement of the severance package occurred after the hearing in the
prior action (but before the date the trial court’s
order was filed), Egleston admits that in his
demand in the prior action, he “sought the
claw back of any [of McClendon’s] salary, compensation or bonuses accumulated between
November 2011 and the present.” Thus, it is
clear that the general issue regarding the
appropriate compensation and benefits to be
awarded to McClendon, given McClendon’s
alleged malfeasance, was placed squarely
before the Board in the prior demand.
¶16 Finally, because the underlying, or “background” facts, are the same in both actions - i.e.,
the extensive allegations regarding wrongdoing,
mismanagement, and waste by McClendon —
any impropriety by the Board as alleged in this
action rests on the same acts (the malfeasance of
McClendon) alleged in the prior action.
¶17 Oklahoma has adopted a statute - 12 O.S.
2011 § 2023.111 — “modeled after” Delaware
Chancery Rule 23.1, and “[i]t is a settled rule
that when one state adopts a statute from
another, it is presumed to adopt the construction placed upon the statute by the highest
court of the other state.” Kurtz v. Clark, 2012 OK
CIV APP 103, ¶ 19, 290 P.3d 779 (citations omitted). The Delaware Supreme Court stated:
A stockholder filing a derivative suit
must allege either that the board rejected
his pre-suit demand that the board assert
the corporation’s claim[,] or allege with
particularity why the stockholder was justified in not having made the effort to
obtain board action [i.e., demand futility].
This is a “basic principle of corporate governance” and is a matter of substantive law
embodied in the procedural requirements
of Chancery Rule 23.1.
1750
Grimes v. Donald, 673 A.2d 1207, 1216 (Del.
1996) (overruled on other grounds by Brehm v.
Eisner, 746 A.2d 244 (Del. 2000)). Regarding
situations, such as the one in the present action,
in which a board has rejected a demand to
assert a claim, the United States Supreme
Court, citing Delaware law, has stated that “the
demand requirement implements the basic
principle of corporate governance that the
decisions of a corporation — including the
decision to initiate litigation — should be made
by the board of directors or the majority of
shareholders,” and a board’s decision to reject
a demand “is subject only to the deferential
business judgment rule standard of review[.]”
Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90,
101 (1991) (internal quotation marks omitted)
(citations omitted).
¶18 In addition, the Oklahoma Supreme
Court has noted that § 2023.1 “is identical” to
Rule 23.1 of the Federal Rules of Civil Procedure. A-Plus Janitorial & Carpet Cleaning v.
Employers’ Workers’ Comp. Ass’n, 1997 OK 37, ¶
12 n.18, 936 P.2d 916.12 The requirement codified in Rule 23.1 that a plaintiff make demand
upon the corporation’s directors “is not merely
a technical pleading hurdle; it is based on a
fundamental tenet of American corporate law
that places the responsibility for making decisions in the hands of the board of directors.”
Johnson v. Hui, 752 F. Supp. 909, 911 (N.D. Cal.
1990). “The demand requirement is . . . primarily addressed to the question of who will pursue the claim — the corporation through its
directors or the shareholder in a derivative
suit.” Evangelist v. Fid. Mgmt. & Research Co.,
554 F. Supp. 87, 90 (D. Mass. 1982) (citation
omitted).
The business judgment rule . . . may permanently cut off the plaintiff. It determines
the extent to which the directors’ response
to a demand should be binding on the
court. The rule originated as a means of
limiting liability of corporate officers and
directors for mere mistakes or judgment
errors so as to give them the latitude they
need to run a corporation; courts will not
second-guess their decisions if made honestly, in good faith and in pursuit of legitimate corporate purposes.
Id. at 90-91 (citation omitted). See also Laufer v.
Olla Indus., Inc., 96 F.R.D. 230, 233 (S.D.N.Y.
1982) aff’d, 729 F.2d 1444 (2d Cir. 1983) (“A salutary purpose of the demand requirement is to
protect corporate directors from harassment by
Vol. 86 — No. 22 — 8/29/2015
litigious dissidents.”). See generally Westmoreland Cnty. Employee Ret. Sys. v. Parkinson, 727
F.3d 719 (7th Cir. 2013).
¶19 Egleston has already made a demand on
Chesapeake’s Board that it undertake action
regarding the mismanagement complaints.
Chesapeake properly rejected that demand in compliance with the business judgment rule as determined in McClendon, 2014 OK CIV APP 11.
Consequently, Egleston cannot satisfy the
requirements of § 2023.1. In particular, Egleston,
as a matter of law, cannot now (1) allege that a
demand against Chesapeake would be futile
(that is, demand futility is inapplicable), or (2)
allege that Chesapeake’s rejection was unreasonable and in violation of the business judgment
rule.13 Therefore, Egleston cannot pursue further
action with regard to the same underlying circumstances, and the trial court properly granted
summary judgment in favor of Chesapeake.
¶20 In this regard, we note that the doctrine
of claim preclusion in Oklahoma further supports our decision,14 and our determination is
consistent with the various purposes of that
doctrine.15 Egleston entrusted the Board with
his claims related to McClendon’s misconduct,
and a determination (now final) was made by
a separate division of this Court that the
Board’s denial “constituted a reasonable exercise of business judgment.” Further investigation of these same and related events by
Egleston would constitute needless relitigation, and would subvert the basic principles of
corporate governance discussed herein.
CONCLUSION
¶21 Under the particular circumstances presented, Egleston may not pursue a § 1065
action to compel inspection of corporate
records related to a prior demand. Consequently, we affirm the trial court’s Order.
¶22 AFFIRMED.
RAPP, P.J., and THORNBRUGH, J., concur.
1. Matters outside the petition were presented to (and not excluded
by) the trial court. “If, on a motion . . . to dismiss for failure of the
pleading to state a claim upon which relief can be granted, matters
outside the pleading are presented to and not excluded by the court,
the motion shall be treated as one for summary judgment . . . .” 12 O.S.
2011 § 2012(B). In addition, the Oklahoma Supreme Court ordered that
this appeal “shall proceed as a summary disposition case pursuant to
Rule 1.36 of the Oklahoma Supreme Court Rules.”
2. Egleston’s petition is entitled “Verified Complaint Pursuant to 18
O.S. § 1065 to Compel Inspection of Books and Records.”
3. We note there was some dispute in the prior action as to whether the Board’s response to Egleston’s demand constituted a denial. On
appeal, the Court concluded the Board’s action “constituted a denial of
Plaintiff’s demand.” Id. ¶ 18 (citation omitted).
Vol. 86 — No. 22 — 8/29/2015
4. In particular, the prior appeal arose from the trial court’s order
granting defendants’ motion to dismiss. The trial court dismissed the
prior petition “with prejudice.” On appeal, the Court affirmed, stating:
In the present case, the Petition and Board’s response to
Plaintiff’s demand demonstrate that Board appreciated the substance of Plaintiff’s complaints. The Petition and Board’s response also demonstrate that Board was sufficiently informed to
conclude the substance of Plaintiff’s complaints were the subject
of its own investigation, other shareholder derivative suits, and
investigations by the Department of Justice, the Securities and
Exchange Commission, and the Michigan Attorney General. The
record does not demonstrate that Board acted otherwise than
adequately informed of the substance of Plaintiff’s complaints.
Id. ¶ 13. The Court concluded that the “Board’s decision to defer action
on Plaintiff’s derivative petition constituted a denial of Plaintiff’s
demand,” and that this denial “constituted a reasonable exercise of
business judgment.” Id. ¶ 18 (citation omitted). Following issuance of
the opinion, neither party petitioned for certiorari, and mandate issued
in February, 2014.
5. See n.1, supra.
6. That is, “[a]lthough a trial court in making a decision on whether summary judgment is appropriate considers factual matters, the
ultimate decision turns on purely legal determinations, i.e. whether
one party is entitled to judgment as a matter of law because there are
no material disputed factual questions.” Carmichael v. Beller, 1996 OK
48, ¶ 2, 914 P.2d 1051.
7. See generally Jonathan D. Horton, Oklahoma Shareholder and Director Inspection Rights: Useful Discovery Tools?, 56 Okla. L. Rev. 105 (2003).
8. “Oklahoma law in this area is not well-developed. This being so,
and our law patterned on that of the state of Delaware, we may look to
the decisions of the Delaware courts for instruction.” McClendon, 2014
OK CIV APP 11, ¶ 10.
9. We note, however, that as observed by the court in South v. Baker,
62 A.3d 1, 20 (Del. Ch. 2012), the Delaware Supreme Court in King did
suggest “three non-preclusive remedies” for the lower court to consider.
10. McClendon’s “exoneration” was announced on February 20,
2013, and the hearing before the trial court in the prior case occurred
on April 5, 2013. Egleston also admits that “the announcement of the
McClendon exoneration was proffered as evidence” at the April 5, 2013
hearing, but for a different purpose.
11. Section 2023.1 provides:
In a derivative action brought by one or more shareholders
or members to enforce a right of a corporation or of an unincorporated association, the corporation or association having failed
to enforce a right which may properly be asserted by it, the petition shall be verified and shall allege that the plaintiff was a
shareholder or member at the time of the transaction of which he
complains or that his share or membership thereafter devolved
on him by operation of law. The petition shall also allege with
particularity the efforts, if any, made by the plaintiff to obtain the
action he desires from the directors or comparable authority and,
if necessary, from the shareholders or members, and the reasons
for his failure to obtain the action or for not making the effort.
The derivative action may not be maintained if it appears that
the plaintiff does not fairly and adequately represent the interests of the shareholders or members similarly situated in enforcing the right of the corporation or association. The action shall
not be dismissed or compromised without the approval of the
court, and notice of the proposed dismissal or compromise shall
be given to shareholders or members in such manner as the court
directs.
12. In addition, because the language is identical (or, to be precise,
identical “except for a deleted provision that pertains to practice in
federal courts”), federal jurisprudence on the subject is instructive. See
A-Plus, ¶ 21; Gay v. Akin, 1988 OK 150, ¶ 8, 766 P.2d 985.
13. Clearly, demand futility cannot be met because Egleston
entrusted his claims with Chesapeake and, in the prior action, Chesapeake’s rejection was found to constitute a proper exercise of business
judgment. It is also clear that Egleston cannot show the Board rejected
his demand in violation of the business judgment rule because the
contrary determination was made in the prior appeal, and that determination became final. “[A] final judgment on the merits of an action
precludes the parties from relitigating not only the adjudicated claim,
but also any theories or issues that were actually decided, or could
have been decided in that action[.]” Ingram v. Knippers, 2003 OK 58, ¶
18, 72 P.3d 17 (internal quotation marks omitted) (citation omitted).
14 See Mobbs v. City of Lehigh, 1982 OK 149, ¶ 7 n.5, 655 P.2d 547
(“[The doctrine of claim preclusion] operates to bar all theories and all
issues of fact or law which were litigated or which could have been
litigated.”). See also n.13, supra.
1751
15 “The doctrine of claim preclusion is designed to prevent piecemeal litigation through the splitting of a single [cause of action] into
separate lawsuits.” Miller v. Miller, 1998 OK 24, ¶ 23, 956 P.2d 887. See
also McDaneld v. Lynn Hickey Dodge, Inc., 1999 OK 30, ¶ 8, 979 P.2d 252
(The purpose of the doctrine of claim preclusion “is to prevent multiplicity of litigation” over the same event or related events); Dearing v.
State ex rel. Comm’rs of Land Office, 1991 OK 6, ¶ 7, 808 P.2d 661 (“The
most often stated rationale for the doctrine is that public policy
requires there be an end to litigation.”) (footnote omitted). The doctrine is “based largely on a policy of conserving judicial resources by
avoiding needless relitigation of closely related issues. Judicial economy and efficiency in the system are promoted when all issues related
to the same transaction (or occurrence) can be resolved in the same
case.” McDaneld, ¶ 8.
The purposes of res judicata/claim preclusion . . . [is] to
relieve the parties of the cost and vexation of multiple lawsuits,
conserve the resources of the judiciary, and by preventing inconsistent decisions, encourage reliance on adjudication. . . . In
essence, preclusion doctrine fosters the important goal of affording finality to litigation where the same parties or their privies
have once had a full and fair opportunity to litigate their claims.
Feightner v. Bank of Okla., N.A., 2003 OK 20, ¶ 15, 65 P.3d 624 (citations
omitted) (footnote omitted).
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1752
Vol. 86 — No. 22 — 8/29/2015
BAR NEWS
2016 OBA Board of Governors Vacancies
Nominating Petition deadline: 5 p.m. Friday, Sept. 4, 2015
OFFICERS
Summary of Nominations Rules
Not less than 60 days prior to the annual meeting,
25 or more voting members of the OBA within the
Supreme Court Judicial District from which the
member of the Board of Governors is to be elected
that year, shall file with the executive director, a
signed petition (which may be in parts) nominating
a candidate for the office of member of the Board of
Governors for and from such judicial district, or one
or more county bar associations within the judicial
district may file a nominating resolution nominating
such a candidate.
President Elect
Current: Garvin Isaacs Jr., Oklahoma City
Mr. Isaacs automatically becomes
OBA president Jan. 1, 2016
(One-year term: 2016)
Nominees: Vacant
Vice President
Current: Glenn A. Devoll, Enid
(One-year term: 2016)
Nominee: Vacant
BOARD OF GOVERNORS
Supreme Court Judicial District Three
Current: Robert D. Gifford II, Oklahoma City
Oklahoma County
(Three-year term: 2016-2018)
Nominee: Vacant
Supreme Court Judicial District Four
Current: Douglas L. Jackson, Enid
Alfalfa, Beaver, Beckham, Blaine, Cimarron, Custer,
Dewey, Ellis, Garfield, Harper, Kingfisher, Major,
Roger Mills, Texas, Washita, Woods and Woodward
Nominee: Vacant
Supreme Court Judicial District Five
Current: Rickey Joe Knighton II, Norman
Carter, Cleveland, Garvin, Grady, Jefferson, Love,
McClain, Murray and Stephens counties
Nominee: Vacant
Member At Large
Current: Richard Stevens, Norman
Nominee: Vacant
Not less than 60 days prior to the annual meeting,
50 or more voting members of the OBA from any
or all judicial districts shall file with the executive
director, a signed petition nominating a candidate
to the office of member at-large on the Board of
Governors, or three or more county bars may file
appropriate resolutions nominating a candidate for
this office.
Not less than 60 days before the opening of the
annual meeting, 50 or more voting members of the
association may file with the executive director a
signed petition nominating a candidate for the office
of president-elect or vice president or three or more
county bar associations may file appropriate resolutions nominating a candidate for the office.
If no one has filed for one of the vacancies, nominations to any of the above offices shall be received
from the House of Delegates on a petition signed by
not less than 30 delegates certified to and in attendance at the session at which the election is held.
See Article II and Article III of OBA Bylaws for
complete information regarding offices, positions,
nominations and election procedure.
Elections for contested positions will be held at
the House of Delegates meeting Nov. 6, during
the Nov. 4-6 OBA Annual Meeting. Terms of the
present OBA officers and governors will terminate
Dec. 31, 2015.
Nomination and resolution forms can be found at
www.okbar.org/members/BOG/BOGvacancies.
Vol. 86 — No. 22 — 8/29/2015
1753
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1754
Vol. 86 — No. 22 — 8/29/2015
CALENDAR OF EVENTS
September
1
3
4
7
OBA Government and Administrative Law
Section meeting; 4 p.m.; Oklahoma Bar Center,
Oklahoma City; Contact John E. Miley 405-557-7146
Lawyers Helping Lawyers discussion group;
6 p.m.; 701 NW 13th St., Office of Tom Cummings,
Oklahoma City; Contact Jeanne Snider 405-366-5423
OBA Alternative Dispute Resolution Section
meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma
City with teleconference; Contact Ken Morgan Stoner
405-705-2910
15
16
OBA Closed — Labor Day observed
18
19
8
9
10
11
OBA Diversity Committee meeting; 12 p.m.;
Oklahoma Bar Center, Oklahoma City; Contact
Tiece I. Dempsey 405-524-6395
OBA Licensed Legal Intern Committee meeting;
3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact
Candace G. Blalock 405-238-0143
23
OBA Women in Law Committee meeting;
Kimberly Hays 918-592-2800
24
OBA Awards Committee meeting; 12 p.m.;
Oklahoma Car Center, Oklahoma City; Contact
Jennifer Castillo 405-553-2854
25
OBA Law-related Education Committee meeting;
12 p.m.; Oklahoma Bar Center, Oklahoma City with
teleconference; Contact Suzanne Heggy 405-556-9615
Vol. 86 — No. 22 — 8/29/2015
OBA Family Law Section meeting; 3 p.m.;
Oklahoma Bar Center, Oklahoma City with teleconference; Contact Michelle K. Smith 405-759-2333
OBA Bench and Bar Committee meeting; 12 p.m.;
Oklahoma Bar Center, Oklahoma City with teleconference; Contact David B. Lewis 405-556-9611
OBA Diversity Committee meeting; 12 p.m.;
Tiece I. Dempsey 405-524-6395
OBA Indian Law Section meeting; 12 p.m.;
Oklahoma Bar Center, Oklahoma City with teleconference; Contact Trisha Archer 918-619-9191
OBA Professional Responsibility Commission
meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma
City; Contact Gina Hendryx 405-416-7007
OBA Board of Editors meeting; 9:30 a.m.;
Melissa DeLacerda 405-624-8383
OBA Real Property Law Section meeting;
9:30 a.m.; Tulsa County Bar Center, Tulsa; Contact
Lucas J. Munson 405-513-7707
OBA Financial Institutions and Commercial Law
Section meeting; 12 p.m.; Oklahoma Bar Center,
Oklahoma City; Contact Eric L. Johnson 405-602-3812
OBA Solo and Small Firm Committee meeting;
3 p.m.; Oklahoma Bar City, Oklahoma City; Contact
Ronald Paul Lander 918-931-2681
OBA Professionalism Committee meeting;
Patricia Podolec 405-760-3358
OBA Board of Governors meeting; 10 a.m.;
Norman; Contact John Morris Williams 405-416-7000
OBA Lawyers Helping Lawyers Committee
meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma
City; Contact Jeanne Snider 405-366-5423
1755
Disposition of Cases
Other Than by Published Opinion
COURT OF CRIMINAL APPEALS
Tuesday, July 28, 2015
F-2014-1016 — Appellant, Tyler Jamal Lewis,
entered pleas of guilty on June 5, 2013, in
Okfuskee County District Court Case Nos.
CF-2013-9 and CF-2013-49. In CF-2013-9 Lewis
pled guilty to Burglary in the Second Degree.
In CF-2013-49 Lewis pled guilty to Count 1 –
Unlawful Possession of Controlled Drug With
Intent to Distribute, a felony, and Count 2 –
Driving Without a Driver’s License, a misdemeanor. Pursuant to a plea agreement, sentencing was deferred until Lewis successfully
completed the Regimented Inmate Discipline
(RID) program with the Department of Corrections. On April 30, 2014, Lewis was sentenced
to two years deferred in each case, to run concurrently. The State filed a motion to accelerate
Lewis’ deferred sentences on May 19, 2014.
Lewis stipulated to the State’s allegations at an
acceleration hearing on June 11, 2014, and it
was agreed that Lewis would enter the Okfuskee County Drug Court Program. The cases
would be dismissed if Lewis successfully completed the Drug Court program; if not, Lewis
would be sentenced to eight years imprisonment in each case. The State filed an application to terminate Lewis from Drug Court on
October 1, 2014. At a hearing before the Honorable Lawrence W. Parish, District Judge, on
October 22, 2014, Lewis stipulated to the violations alleged in the State’s application and pled
guilty. He was terminated from the Drug Court
Program. Lewis was sentenced to seven years
imprisonment in Case No. CF-2013-9 and eight
years imprisonment in Case No. CF-2013-49.
The sentences were ordered to run concurrently. Lewis appeals from his termination
from Drug Court. The order of the District
Court terminating Lewis from the Okfuskee
Drug Court Program in Case Nos. CF-2013-9
and CF-2013-49 is AFFIRMED. Opinion by:
Johnson, J.; Smith, P.J.: Concur; Lumpkin, V.P.J.:
Concur; Lewis, J.: Concur; Hudson, J.: Concur.
F-2014-580 — Appellant Christopher M.
Turner was tried by jury and convicted of Indecent or Lewd Acts with a Child under Sixteen
(Counts I-IV) in the District Court of Stephens
County Case, No. CF-2012-157. The jury rec1756
ommended punishment of five (5) years imprisonment on Counts I and II and four (4)
years imprisonment in Counts III and IV. The
trial court sentenced accordingly, ordering the
sentences to run consecutively. From this judgment and sentence Appellant has perfected this
appeal. The Judgments and Sentences are
AFFIRMED, except for the imposition of the
Crime Victims Compensation assessment which
is VACATED AND REMANDED to the trial
court with instructions to conduct a full hearing pursuant to 21 O.S.2011, § 142.18(A). Opinion by: Lumpkin, V.P.J.; Smith, P.J., concur;
Johnson, J., concur; Lewis, J., concur; Hudson,
J., concur.
F-2014-312 — Harry Garcia, Appellant, was
tried by jury for the crime of Murder in the
First Degree in Case No. CF-2013-2987 in the
District Court of Oklahoma County. The jury
returned a verdict of guilty and set punishment
at life imprisonment with the possibility of
parole. The trial court sentenced accordingly.
From this judgment and sentence Harry Garcia
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, July 29, 2015
F-2014-0321 — Appellant, Tanner Levi Rutledge, pled guilty in Choctaw County District
Court Case No. CF-2009-63 on March 2, 2010,
to Assault and Battery with a Dangerous
Weapon. He was sentenced to ten years with
all but the first three years suspended, with
rules and conditions of probation. On August
9, 2012, Appellant was charged with Unauthorized Use of a Vehicle, after former conviction of two or more felonies, in Choctaw
County District Court Case No. CF-2012-180.
He was charged with Burglary in the Second
Degree, after former conviction of two or more
felonies, on August 28, 2012, in Choctaw County District Court Case No. CF-2012-293. And,
on September 28, 2012, Appellant was charged
with Count 1 – Unauthorized Use of a Vehicle,
Count 2 – Eluding/Attempting to Elude Police
Officer, and Count 3 – Driving with License
Vol. 86 — No. 22 — 8/29/2015
Cancelled/Suspended/Revoked, after conviction of two or more felonies, in Choctaw County District Court Case No. CF-2012-205. The
State filed a motion to revoke Appellant’s suspended sentence in Case No. CF-2009-63 on
August 9, 2012. On February 7, 2013, Appellant
stipulated to the violations of the rules of probation, waived the right to a revocation hearing in Case No. CF-2009-63, entered pleas of
guilty in Case Nos. CF-2012-180, CF-2012-193,
and CF-2012-205, and entered the Choctaw
County Drug Court Program. Appellant agreed
that if he successfully completed Drug Court
the cases would be dismissed, but that if he
failed Drug Court he would be sentenced to
twenty years imprisonment. The State filed an
application to revoke Appellant from Drug
Court on January 10, 2014. Following a hearing
on April 1, 2014, the Honorable Gary L. Brock,
Special Judge, found Appellant violated the
Drug Court terms. In Case No. CF-2009-63 Appellant was sentenced to seven years imprisonment. Appellant was sentenced to twenty years
imprisonment in Case Nos. CF-2012-180, CF2012-193 and CF-2012-205. These sentences
were enhanced with six prior felony convictions. The sentences were all ordered to run
concurrently, with credit for six months served
in a rehabilitation facility and credit for time
served from January 13, 2014. Appellant
appeals from his termination from Drug Court.
Appellant’s termination from Drug Court is
AFFIRMED. Opinion by: Lumpkin, V.P.J.;
Smith, P.J. Concur; Johnson, J.: Concur; Lewis,
J.: Concur; Hudson, J.: Concur
Friday, July 31, 2015
C-2014-879 — Petitioner Vernon Ray Brown
entered a plea of guilty to the crimes of Count
1: Burglary in the Second Degree, After Former
Conviction of Two or More Felonies, and
Count 2: Unlawful Possession of Drug Paraphernalia, in Tulsa County District Court, Case
No. CF-2014-2567. The Honorable Tom C. Gillert, District Judge, accepted his plea and,
based on his plea agreement sentenced Petitioner to seven (7) years imprisonment plus a
$600.00 fine on Count 1 and one (1) year in the
county jail plus a $300.00 fine on Count 2. The
sentences on both counts were ordered to run
concurrent each with the other and concurrent
with Petitioner’s six (6) year sentence in Tulsa
County Case No. CF-2013-1466. Petitioner filed
timely a motion to withdraw his plea. Upon
completion of the prescribed hearing the
motion was denied. Petitioner appeals the
court’s order denying his motion and requests
Vol. 86 — No. 22 — 8/29/2015
a Writ of Certiorari allowing him to withdraw
his plea and proceed to trial. The Petition for
Writ of Certiorari is DENIED and the Judgment and Sentence is AFFIRMED. Opinion by:
Hudson, J.; Smith, P.J., Concurs; Lumpkin,
V.P.J., Concurs; A. Johnson, J., Concurs; Lewis,
J., Concurs.
C-2014-614 — Petitioner, Darryl Gene Toler
a.k.a. Gregory Kunis was charged with Count
1: Lewd or Indecent Proposals to a Child Under 16 and Count 2: Lewd Molestation, in
Beckham County District Court, Case No.
CF-2013-72. After a jury trial on these charges,
Petitioner entered a blind plea of guilty to
Count 1 before the Honorable Doug Haught,
District Judge. The State dismissed Count 2.
Petitioner’s guilty plea was accepted and sentencing was set for April 23, 2014. After two
continuances, Petitioner was sentenced to
twenty-five (25) years imprisonment. Petitioner filed a motion to withdraw his plea. Following a hearing, the district court denied the
motion to withdraw but modified Petitioner’s
sentence to twenty-five (25) years imprisonment with all but the first ten (10) years suspended. It is from this ruling Petitioner appeals
to this court. The Petition for Writ of Certiorari
is DENIED. The Judgment and Sentence of the
district court is AFFIRMED. Opinion by: Hudson, J.; Smith, P.J., Concurs in Results; Lumpkin, V.P.J., Concurs; A. Johnson, J., Concurs in
Results; Lewis, J., Concurs.
S-2014-759 — State of Oklahoma, Appellant,
charged Appellee Chad Allan Lunsford in the
District Court of Blaine County, Case No.
CF-2014-22, with Trafficking in Illegal Drugs,
After Former Conviction of Two or More Felonies and Unlawful Possession of Drug Paraphernalia (Misdemeanor). Lunsford filed a
Motion to Quash the Information alleging the
State failed to produce sufficient evidence of
his dominion and control of the drugs and
drug paraphernalia at preliminary hearing.
The district court held a hearing on August 22,
2015, granted Lunsford’s motion, and dismissed the case. The State of Oklahoma appeals
that order. The Order of the District Court sustaining Chad Allan Lunsford’s Motion to
Quash the Information and dismissing the case
is AFFIRMED. Opinion by: A. Johnson, J.;
Smith, P.J., concurs; Lumpkin, V.P.J., dissents;
Lewis, J., concurs; Hudson, J., dissents.
Monday, August 3, 2015
RE-2014-263 — Jahmond Cavell Harley,
Appellant, appeals from an order entered by
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the Honorable Thad Balkman, District Judge,
revoking his five year suspended sentence in
Case No. CF-2011-1889 in the District Court of
Cleveland County. On February 29, 2012, Appellant entered a plea of no contest to the offense of
Burglary in the Second Degree, and was placed
in the Regimented Inmate Discipline program.
Appellant was subsequently sentenced to a term
of five years, with the sentence suspended pursuant to rules and conditions of probation. On
June 27, 2013, the State filed a motion to revoke
Appellant’s suspended sentence alleging he
violated probation by having charges filed
against him for the offenses of (1) Robbery By
Force or Fear in Cleveland County District
Court Case No. CF-2013-414; (2) Burglary in
the First Degree in Cleveland County District
Court Case No. CF-2013-457; (3) Embezzlement in Cleveland County District Court Case
No. CF-2013-635; (4) Robbery With a Dangerous Weapon in Oklahoma County District
Court Case No. CF-2013-2426; and (5) Robbery
in the First Degree in Oklahoma County District Court Case No. CF-2013-2436. On February 5, 2014, the State filed an amended motion
to revoke, which dismissed the alleged violations arising from Cleveland County District
Court Case No. CF-2013-414 and Oklahoma
County District Court Case No. CF-2013-2436.
The revocation hearing was held on February
24, 2014, and March 24, 2014. Judge Balkman
found Appellant violated probation and revoked his five year suspended sentence in full,
with credit for time served. AFFIRMED. Opinion by: Johnson, J.; Smith, P.J., concurs; Lumpkin, V.P.J., concurs; Lewis, J., concurs; Hudson,
J., concurs.
Tuesday, August 4, 2015
RE-2014-0536 — Appellant, Matthew Carl
Eddings, pled guilty June 15, 2007, in Ottawa
County District Court Case No. CF-2006-404 to
Count 1 – Possession of Controlled Substance–
Oxycodone, a felony, and Count 2 – Driving a
Motor Vehicle While Under the Influence of
Drugs, a misdemeanor. On Count 1 he received
a five year deferred sentence except for ten days
to be served in the Ottawa County Jail, with
rules and conditions of probation, a $1,000.00
fine, costs and assessments. On Count 2 he received a one year suspended sentence to run
concurrent with Count 1, a $500.00 fine, costs
and assessments. On May 22, 2008, the State
filed a motion to accelerate Appellant’s deferred
sentence on Count 1 and a motion to revoke
Appellant’s suspended sentence on Count 2.
The court granted the State’s motion to with1758
draw the motion to revoke suspended sentence
on Count 2 on December 5, 2008, and Appellant stipulated to the State’s motion to accelerate on Count 1. Appellant was sentenced to ten
years on Count 1, all suspended, with all of the
previously ordered fines, costs and restitution
and with rules and conditions of probation. On
April 26, 2010, the State filed a motion to
revoke Appellant’s suspended sentence. Appellant stipulated to the State’s motion to
revoke on June 10, 2010, and pursuant to plea
negotiations, five years of Appellant’s suspended sentence was revoked on Count 1 with
the balance to remain suspended. The State
filed a motion to revoke Appellant’s remaining
suspended sentence on March 6, 2014. Following a revocation hearing on June 18, 2014, the
Honorable William Culver, Special Judge,
found Appellant violated the rules and conditions of probation and revoked Appellant’s
suspended sentence in full on Count 1 with
credit for time served. Appellant appeals the
revocation of his suspended sentence. The revocation of Appellant’s suspended sentence is
AFFIRMED but the matter is REMANDED to
the District Court to modify the Judgment
and Sentence to exclude any requirement for
post-imprisonment supervision. Opinion by:
Hudson, J. Smith, P.J.: Concurs; Lumpkin,
V.P.J.: Concurs; Johnson, J.: Concurs; Lewis, J.:
Concurs.
Wednesday, August 5, 2015
F-2014-477 — John Eldridge Cone, Jr., Appellant, was tried by jury for the crimes of Murder
in the First Degree (Count 1) and Assault and
Battery with a Deadly Weapon (Count 2) in
Muskogee County. The jury returned a verdict
of guilty and assessed punishment at life
imprisonment on Count 1 and five years
imprisonment on Count 2. The trial court sentenced accordingly. From this judgment and
sentence John Eldridge Cone, Jr. has perfected
his appeal. The Judgment and Sentence of the
District Court is AFFIRMED. Opinion by: A.
Johnson, J.; Smith, P.J., concurs; Lumpkin,
V.P.J., concurs in results; Lewis, J., concurs;
Thursday, August 6, 2015
F-2014-473 — Robert Gerald Hodgens, Appellant, appeals from an order, entered by the
Honorable Tracy Schumacher, District Judge,
terminating him from the Drug Court Program
and sentencing him in accordance with the plea
agreement and Drug Court contract to five years
Vol. 86 — No. 22 — 8/29/2015
imprisonment in Case Nos. CF-2012-1289 and
DC-2013-21 in the District Court of Cleveland
County. On April 18, 2013, Appellant entered a
plea of guilty to the offense of Aggravated Driving a Motor Vehicle While Under the Influence
of Alcohol. Appellant’s plea was pursuant to an
agreement that sentencing would be delayed
until completion of or termination from the
Drug Court program. On April 10, 2014, the
State filed a motion to terminate Appellant
from Drug Court alleging that sanctions had
been insufficient to gain his compliance and
that he violated his contract by drinking on
March 31, 2014; by missing urinalysis tests on
March 31, 2014 and April 2, 2014; by missing a
group session on April 3, 2014; by missing an
appointment with his probation officer on
April 5, 2014; and by showing up to inpatient
treatment intoxicated. A hearing on the application to terminate was held before Judge
Schumacher on May 16, 2014. After hearing the
evidence and arguments, Judge Schumacher
found the evidence sufficient to terminate
Appellant from Drug Court, and to impose the
agreed five year term of imprisonment. AFFIRMED. Opinion by: Lewis, J.; Smith, P.J.,
Concurs; Lumpkin, V.P.J., Concurs; Johnson, J.,
Concurs; Hudson, J., Concurs.
RE-2014-616 — In the District Court of Oklahoma County, Case No. CF-2003-3145, Loyce
Earl Henderson, III, Appellant, entered a plea
of guilty to Assault with a Dangerous Weapon.
On February 1, 2006, pursuant to a plea agreement, the Honorable Ray C. Elliott, District
Judge, sentenced Appellant to ten (10) years
imprisonment, with execution of all but the
first two (2) years of that term conditionally
suspended under written rules of probation.
On July 8, 2014, Judge Elliott found Appellant
had violated his 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; Johnson, J, Concurs; Hudson, J.,
Concurs.
S-2014-812 — Appellee Adam Clayton Zilm
was charged in the District Court of Tulsa
County with Sexual Abuse of A Minor (21
O.S.2011, § 843.5F), Case No. CF-2012-3037.
After a Preliminary Hearing held on November 6, 2013, and in preparation for trial, the
Honorable Kurt Glassco, District Judge, scheduled a hearing on the Reliability of the Out-ofCourt Statements of a Child under the Age of
12 years pursuant to 12 O.S.2011, § 2803.1. This
Vol. 86 — No. 22 — 8/29/2015
Reliability Hearing was conducted on September 9 & 12, 2014. The court ruled that the hearsay statements made by the child victim K.A.
to forensic interviewer Amy Howard and to
neighbor Katherine Sanford lacked sufficient
indicia of reliability and would be suppressed.
The State announced its intent to appeal in
open court and brings this appeal pursuant to
22 O.S.2011, §§ 1053(4) & 1053(5). The ruling of
the District Court granting the motion to suppress is AFFIRMED. Opinion by: Lumpkin,
V.P.J.; Smith, P.J., concur; Johnson, J., concur;
Lewis, J., dissent; Hudson, J., concur.
C-2014-584 — Gilbert Paz, Petitioner, entered
negotiated guilty pleas to the crimes of Count
1 - First Degree Felony Murder, Count 2 Shooting with Intent to Kill, Count 3 - Conspiracy, Count 4 - Attempted Robbery with a
Firearm and Count 5 - Possession of a Firearm
AFC in Case No. CF-2012-2150 in the District
Court of Cleveland County. Petitioner sought
to withdraw his plea and at a June 23, 2014
hearing, the court denied his pro se request to
withdraw plea and sentenced him in accordance with his plea agreement: life imprisonment, with all but 38 years suspended, on
Counts 1 through 4, and ten years imprisonment on Count 5, with all terms running concurrently. Petitioner has perfected his certiorari
appeal of the denial of his motion to withdraw
guilty plea. Motion to Withdraw Plea VACATED, case REMANDED. Opinion by: Smith, P.J.;
Lumpkin, V.P.J., concur; A. Johnson, J., concur;
Lewis, J., concur; Hudson, J., concur.
F-2014-615 — Leander William Prince II,
Appellant, was tried by jury for the crime of
Attempted False Personation, After Conviction
of Two or More Felonies in Case No. CF-2013343 in the District Court of Ottawa County. The
jury returned a verdict of guilty and recommended as punishment four years imprisonment and a $1000.00 fine. The trial court sentenced accordingly. From this judgment and
sentence Leander William Prince II has perfected
his appeal. AFFIRMED. Opinion by: Smith, P.J.;
Lumpkin, V.P.J., concur in part/dissent in part;
A. Johnson, J., concur; Lewis, J., concur in part/
dissent in part; Hudson, J., concur.
F-2014-212 — Timothy J. Hill, Appellant, was
tried by jury for the crimes of Count I - Child
Abuse (Failure to Protect) and Count II - Child
Neglect, both after two previous convictions in
Pontotoc County. The jury returned a verdict of
guilty and recommended as punishment 35
1759
years imprisonment on each count. The trial
court sentenced accordingly and ordered the
sentences to run consecutively. From this judgment and sentence Timothy J. Hill has perfected his appeal. AFFIRMED. Opinion by: Smith,
P.J.; Lumpkin, V.P.J., concur; A. Johnson, J.,
concur; Lewis, J., concur; Hudson, J., concur.
F-2014-394 — Jarren Virgil John, Appellant,
in Case No. CF-2012-3430 in the District Court
of Oklahoma County, was tried by jury for the
following crimes: Counts I and II - First Degree
Burglary, Count III - Second Degree Burglary,
Count IV - Larceny of an Automobile, Counts
V and VI - Larceny from a House, Count VII Possession of Stolen Vehicle, and Count VIII Second Degree Burglary. The jury returned a
verdict of guilty and recommended as punishment 35 years imprisonment for each of Counts
I and II, six years on Count III, 12 years on
Count IV, 10 years on each of Counts V and VI,
5 years on Count VII and six years on VIII. The
trial court sentenced accordingly and ordered
the sentences to be served concurrently. From
this judgment and sentence Jarren Virgil John
has perfected his appeal. AFFIRMED. Opinion
by: Smith, P.J.; Lumpkin, V.P.J., concur; A. Johnson, J., concur; Lewis, J., concur; Hudson, J.,
concur.
F-2014-751 — Dontae Shalon Daniels, Appellant, was tried by jury for the crime of Failure
to Comply with the Sex Offender Registration
Act, After Conviction of Two Felonies in Case
No. CF-2011-4522 in the District Court of Oklahoma County. The jury returned a verdict of
guilty and recommended as punishment eight
years imprisonment. The trial court sentenced
accordingly. From this judgment and sentence
Dontae Shalon Daniels has perfected his
appeal. AFFIRMED. Opinion by: Smith, P.J.;
Lumpkin, V.P.J., concur; A. Johnson, J., concur;
Lewis, J., concur; Hudson, J., concur.
RE-2014-0484 — Appellant, David Eugene
Harris, pled guilty August 26, 2010, in Grady
Count 1 – Possession of Controlled Substance,
a felony, and Count 2 – Actual Physical Control
of Vehicle While Intoxicated, a misdemeanor,
After Former Conviction of Two or More Felonies. He was sentenced to five years on Count
1 and one year on Count 2, all suspended with
rules and conditions of probation. He was also
fined $500.00 on each count. The State filed a
motion to revoke Appellant’s suspended sentences on June 6, 2011, and amended the
motion to revoke on September 6, 2011, and
1760
again on August 20, 2012. Following a revocation hearing on May 20, 2014, the Honorable
Richard G. Van Dyck, District Judge, revoked
Appellant’s suspended sentence in full, with
revocation of his suspended sentence. The
revocation of Appellant’s suspended sentence
is AFFIRMED. Opinion by: Smith, P.J. Lumpkin, V.P.J.: concur; Johnson, J.: concur; Lewis, J.:
concur; Hudson, J.: concur.
F-2014-620 — On September 11, 2013, Appellant Floyd Franklin Manning, II, represented
by counsel Robert Keith, entered a plea of no
contest in Case No. CF- 2013-18. Sentencing
was deferred for four years, subject to terms
and conditions of probation. On March 26,
2014, the State filed an Application to Accelerate. Following an acceleration hearing on July
2, 2014, the Honorable Pat Versteeg, Associate
District Judge, accelerated Appellant’s deferred
sentence. Judge Versteeg sentenced Appellant
to four years imprisonment with all but the
first one hundred and eighty days suspended.
Appellant appeals. The acceleration of Appellant’s deferred sentencing is AFFIRMED.
Opinion by: Lewis, J.; Smith, P.J.: Concurs;
Lumpkin, V.P.J.: Concurs; Johnson, J.: Concurs; Hudson, J.: Concurs.
M-2014-0171 — Appellant Billy Dewayne
Walker was charged with Count 1 – Interfering
With Firefighter, 21 O.S. § 1198, a misdemeanor, and Count 2 – Obstructing an Officer, 21
O.S. § 540, in the District Court of Tulsa County, Case No. CM-2013-3953. Following a jury
trial February 10th and 11th, 2014, Appellant
was found not guilty of Count 1 and guilty of
Count 2. On Count 2 the Honorable Deborah
Ludi-Leitch, Special Judge, sentenced Appellant to twenty-one days in the Tulsa County
Jail and a fine of $500.00. From this Judgment
and Sentence Appellant appeals. Judgment
and Sentence is AFFIRMED. Opinion by:
Lewis, J.; Smith, P.J.: Concurs; Lumpkin, V.P.J.:
Concurs in Results; Johnson, J.: Concurs; Hudson, J.: Dissents
Friday, August 7, 2015
F-2014-265 — On June 19, 2012, Appellant
Christopher Paul Delair pled guilty in Grady
Possession of a Controlled Dangerous Substance. Appellant’s sentencing was deferred
for five years. The State filed an Amended
Application to Accelerate Appellant’s Case No.
CF-2011-459 deferred sentence. On August 8,
Vol. 86 — No. 22 — 8/29/2015
2013, Appellant pled guilty in Grady County
District Court to Count 1, Possession of a Controlled Dangerous Substance (misdemeanor)
and Count 2, Unlawful Possession of Drug
Paraphernalia in Grady County District Court
Case No. CM-2012-1157; and stipulated to an
application to accelerate filed in Case No.
CF-2011-459. Appellant was admitted to the
Grady County Drug Court Program. On
December 26, 2013, the State filed an Application to Terminate Appellant from Drug Court.
Following a March 18, 2014 hearing on the
application to terminate, the Honorable Richard G. Van Dyck, District Judge, terminated
Appellant’s participation in Drug Court and
sentenced Appellant pursuant to his drug court
plea agreement. Appellant appeals the termination of his Drug Court participation. The
termination of Appellant’s participation in
Drug Court in Grady County District Court
Case Nos. CF-2011-459 and CM-2012-1157 is
AFFIRMED. Opinion by: Lewis, J.; Smith, P.J.:
Concurs; Lumpkin, V.P.J.: Concurs; Johnson, J.:
Concurs; Hudson, J.: Concurs.
F-2014-322 — Appellant, Darvin Wayne Gray,
was tried by jury and convicted of First Degree
Rape by Instrumentation (Count I), After Former
Conviction of Two or More Felonies; Forcible
Oral Sodomy (Count II), and Lewd Molestation
(Count III), After Former Conviction of Lewd
Molestation, in the District Court of Muskogee
County, Case Number CF-2011-951. The jury
recommended as punishment imprisonment
for fifty (50) years in Count I, Life Without the
Possibility of Parole in Count II and Life Without the Possibility of Parole and a $250.00 fine
in Count III. The trial court sentenced accordingly and ordered the sentences to run concurrently. It is from this judgment and sentence
that Appellant appeals. AFFIRMED. Opinion
by: Lumpkin, V.P.J.; Smith P.J., concur; Johnson,
J., concur in results; Lewis, J., concur in results;
Hudson, J., concur;.
F-2014-573 — Megan Nicole Hammers, Appellant, was tried by jury for the crime of Child
Abuse in Case No. CF-2012-578 in the District
Court of Oklahoma County. The jury returned
a verdict of guilty and recommended as punishment 18 years imprisonment. The trial court
sentenced accordingly. From this judgment
and sentence Megan Nicole Hammers has perfected her appeal. AFFIRMED. Opinion by:
Smith, P.J.; Lumpkin, V.P.J., concur; A. Johnson,
J., concur; Lewis, J., concur; Hudson, J., concur.
Vol. 86 — No. 22 — 8/29/2015
F-2014-747 — Kenna Lee Morrison, Appellant, was tried by jury for the crime of Solicitation of Murder in the First Degree, in Case No.
CF-2013-772, in the District Court of Muskogee
County. The jury returned a verdict of guilty.
The trial court sentenced Appellant to twenty
(20) years imprisonment - ten (10) years to be
served in the custody of the Department of
Corrections and ten (10) years suspended.
From this judgment and sentence Kenna Lee
Morrison has perfected her appeal. AFFIRMED.
Opinion by: Hudson, J.; Smith, P.J., Concurs;
Lumpkin, V.P.J., Concurs; A. Johnson, J., Concurs; Lewis, J., Concurs.
RE-2014-589 — Brandyn Christopher Pierce,
Appellant, appeals from an order entered by
the Honorable Phillip Corley, District Judge,
revoking in full his suspended sentences in
Case Nos. CF-2005-458, CM-2005-988, CF-2006224, CF-2006-276, CF-2006-277, and CF-2010-19
in the District Court of Payne County. On April
8, 2011, Appellant entered pleas of guilty and
was convicted and sentenced in all of the cases.
On August 11, 2011, the State filed motions to
revoke Appellant’s suspended sentences alleging he violated probation by failing to pay
court costs, and also by failing to pay restitution in Case Nos. CF-2005-458, CM-2005-988
and CF-2006-224 and being $160.00 delinquent
in Supervision Fees in Case No. CF-2010-19.
On October 18, 2012, the revocation hearing
was held and Appellant announced that he
confessed the motions to revoke pursuant to an
agreement with the State. The revocation hearing was continued several times to allow
Appellant to get back into compliance. On
August 9, 2013, Appellant failed to appear. On
June 5, 2014, the revocation hearing resumed
for purposes of sentencing and Judge Corley
revoked the balance of Appellant’s suspended
sentence in all of the cases. AFFIRMED. Opinion by: Johnson, J.; Smith, P.J., concurs; Lumpkin, V.P.J., concurs; Lewis, J., concurs; Hudson,
J., recuses.
JS-2015-371 — The State of Oklahoma,
Appellant, appealed to this Court from an
order entered by the Honorable Kenny D. Harris, Special Judge, granting the motion for certification as a child/juvenile filed by B.A.D. Jr.,
Defendant/Appellee, in Case No. CF-2014-322
in the District Court of Comanche County.
REVERSED and REMANDED to the District
Court to bind the Defendant/Appellee over for
trial as a youthful offender. Opinion by: Smith,
1761
P.J.; Lumpkin, V.P.J., concurs; Johnson, J., concurs; Lewis, J., concurs; Hudson, J., concurs.
Thursday, August 13, 2015
RE-2014-0777 — Appellant, Rogelio Solis, Jr.,
pled guilty December 20, 2011, to Count 1 Domestic Abuse – Assault and Battery, a felony.
He was sentenced to five years in the Department of Corrections, suspended except for
three months, with credit for time served and a
$1,000.00 fine. Count 2 – Robbery First Degree,
a felony, Count 3 – Threaten to Perform Act of
Violence, a misdemeanor, and Count 4 – Interference With Emergency Telephone Call, a
misdemeanor, were dismissed. On March 5,
2015, the State filed a motion to revoke Appellant’s suspended sentence. Following a revocation hearing on August 29, 2014, the Honorable
Rebecca J. Gore, Special Judge, found Appellant violated the rules and conditions of probation and revoked Appellant’s suspended sentence in full, four years and nine months, with
revocation of his suspended sentence. The
revocation of Appellant’s suspended sentence
is AFFIRMED but the matter is REMANDED
to the District Court to modify the Judgment
and Sentence to exclude any requirement for
post-imprisonment supervision. Opinion by:
Lumpkin, V.P.J.; Smith, P.J.: Concur in Result;
Johnson, J.: Concur; Lewis, J.: Concur; Hudson,
J.: Concur.
F-2014-433 — Appellant, Roger Dale Ladd,
was tried by jury and convicted of Indecent or
Lewd Acts with a Child Under Sixteen (Counts
1 & 3) (21 O.S.Supp.2010, § 1123(A)) in the District Court of Oklahoma County, Case Number
CF-2012-3198. The jury recommended as punishment imprisonment for twenty-five (25)
years in each count. The trial court sentenced
accordingly and ran the sentences consecutively. It is from this judgment and sentence
that Appellant appeals. AFFIRMED. Opinion
by: Lumpkin, V.P.J.; Smith, P.J.: concur in result;
Johnson, J.: concur in result; Lewis, J.: concur;
Hudson, J.: concur.
F-2014-489 — Reuben Julius Ingram, III,
Appellant, was tried by jury for the crime of
Trafficking in Illegal Drugs (Cocaine Base),
After Former Conviction of Two or More Felonies in Case No. CF-2010-3949 in the District
Court of Oklahoma County. The jury returned
a verdict of guilty and set punishment at thirty
years imprisonment and a $25,000.00 fine. The
trial court sentenced accordingly. From this
1762
judgment and sentence Reuben Julius Ingram,
III has perfected his appeal. The Judgment and
Opinion by: Johnson, J.; Smith, P.J., concurs;
Friday, August 14, 2015
J-2015-440 — In the District Court of Comanche County, Case No. CF-2014-246, Appellant,
J.J.W., was charged as a youthful offender with
Count 1: Shooting with Intent to Kill, Count 2:
Burglary in the First Degree, Count 3: Possession of a Firearm During the Commission of a
Felony, and Count 4: Possession of a Firearm
After Delinquent Adjudication. On April 22,
2015, the Honorable Lisa Shaw, Associate District Judge, granted a motion by the State for
imposition of adult sentences should Appellant be convicted. Appellant appeals that final
order. AFFIRMED. Opinion by: Lumpkin,
V.P.J.; Smith, P.J.: Concurs; Johnson, J.: Concurs;
Lewis, J.: Concurs; Hudson, J.: Concurs.
F-2014-568 — Bobby Wayne Maness, Appellant, was tried in a non-jury for the crime of
Second Degree Rape by Instrumentation in
Jefferson County. The Honorable Joe Enos found
Maness guilty and set punishment at fifteen
years imprisonment and a $2,500.00 fine. From
this judgment and sentence Bobby Wayne Maness has perfected his appeal. The Judgment and
Opinion by: A. Johnson, J.; Smith, P.J., concurs;
F-2014-427 — William Buck Rodgers, Appellant, was tried by jury for the crime of First
Degree Murder (Malice Aforethought) in Case
No. CF-2012-396 in the District Court of Creek
County. The jury returned a verdict of guilty
and assessed punishment at life imprisonment
with the possibility of parole. The trial court
sentenced accordingly. From this judgment
and sentence William Buck Rodgers 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 in results; Lewis, J., concurs;
Vol. 86 — No. 22 — 8/29/2015
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405-728-9925, [email protected].
OFFICE SPACE
OFFICE SPACE FOR LEASE IN ESTABLISHED FIRM.
Space located in Boulder Towers at 1437 S. Boulder
Ave, Suite 1080, Tulsa, OK. Space includes two conference rooms, kitchen, reception area, security and free
parking. $1,000 per month. Contact Robert Williams at
918-749-5566 or [email protected].
LUXURY OFFICE SPACE - Three offices for lease, $670,
$690 furnished and $870 in the Esperanza Office Park
near NW 150th and May in OKC. Lease includes: Fully
furnished reception area; receptionist; conference
room; complete kitchen; fax; high-speed internet;
building security; and, free parking. Please contact
Gregg Renegar at 405-285-8118.
PERIMETER CENTER OFFICE COMPLEX, located at
39th and Tulsa currently has available offices ranging
in size from 802 – 3,500 square feet. Executive Suites:
Single unfurnished offices offered on a month-tomonth lease term. Offices vary in size, ranging in price
from $200 to $650 per month. Please call 405-943-3001
M-F from 8 a.m. to 5 p.m. for appointment.
Office space – midtown law center
Space available - Easy walk to multiple Midtown
restaurants. Turn-key arrangement includes phone
and LD, Internet, nearby parking, kitchen, storage, 2
conference rooms and receptionist. Share space with
7 attorneys, some referrals.
405-229-1476 or 405-204-0404
1763
OFFICE SPACE
POSITIONS AVAILABLE
OFFICE SPACE FOR LEASE: Space located at 222 NW
13th Street, OKC (NW 13th & N. Harvey), just one (1)
mile from Oklahoma County Courthouse. Includes
kitchen, conference room and free parking. For additional information, please contact Robert Goldman
405-524-3403.
LUXURY OFFICE SPACE – Large office space available
for lease in the Esperanza Office Park near NW 150th
and May in OKC. Fully furnished reception area, receptionist available, large conference room, complete
kitchen, building security, free parking, $700 month.
Call John Shears 405-200-1911.
POSITIONS AVAILABLE
Oklahoma City plaintiff’s firm
seeks attorney with at least 5 years experience
in personal injury. Must be able to bring case load
and client base. Great atmosphere with experienced
support staff, great location in South OKC with
fantastic offices and facilities. Submit résumé to
“Box AB,” Oklahoma Bar Association, PO Box 53036,
Oklahoma City, OK 73152
EDMOND LAW FIRM seeks associate attorney for civil
litigation. Self-starter with strong work ethic, research
and writing skills, interpersonal skills, ability to work in
a team environment and manage a diverse caseload. Prefer 5-10 years of relevant experience. Benefits offered.
Compensation based on experience and existing business. Please submit salary requirements, résumé and
writing sample to [email protected].
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].
RESPECTED NORTHEAST OKLAHOMA LAW FIRM
has an immediate opening for a Legal Assistant with
3+ years of litigation experience. This position requires
attention to detail, ability to work independently as
well as on the team, and excellent communication/interpersonal skills. Knowledge of computer programs
and systems a plus. Competitive salary depending on
experience. Please submit résumé along with references to [email protected]. All inquiries will remain confidential.
COFFEY, SENGER & MCDANIEL, PLLC seeks a research and writing attorney with 4 to 7 years of experience. Will also hire on a contract basis. Please submit résumé and writing sample to [email protected].
1764
Contract & Negotiation
Specialist Counsel
We are seeking a professional individual to join
our Corporate Law Team. The successful candidate
will have a Juris Doctorate in Law, and 3-5 years of
contract negotiation and preparation. Additional
requirements include knowledge of health and life
insurance law and administrative and agency law,
along with analytical and problem-solving skills,
legal research and writing skills, and ability to
meet deadlines and work effectively with corporate and non-corporate clients.
All qualified candidates are ask to submit a résumé
to:
Attn: Talent Management
P.O. Box 25523
Oklahoma City, OK 73125
EOE
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 “U,”
Oklahoma Bar Association, PO Box 53036, Oklahoma
City, OK 73152.
TULSA FIRM SEEKING ATTORNEY WITH 0-5
YEARS’ EXPERIENCE. Recent graduates who are
awaiting bar exam results are also encouraged to apply.
Position will commence in late August to early September. Compensation based on experience. Firm practices
in the area of estate planning, probate, guardianship,
adoption, family law, civil and business litigation, and
criminal defense. New associate would be expected to
work with attorneys in all areas of practice but would
primarily be responsible over time for family law cases.
Firm members are willing to train and mentor but expect a self-starter with solid writing skills and problem
solving abilities that include knowing when to ask
questions and/or for help. Firm members are also ideally searching for someone who has a strong work ethic and interpersonal skills. We are a smaller firm with a
wonderful staff of paralegals. Please submit cover letter, résumé, and one to three writing samples to “Box
JJ,” Oklahoma Bar Association, PO Box 53036, Oklahoma City, OK 73152.
ESTABLISHED LAW OFFICE AND CPA FIRM in
South Central Oklahoma, looking for an experienced
legal assistant or newly admitted attorney with tax
background. Compensation and benefits negotiable
based upon experience. Please email résumé to: cindy@
cajohnsonenterprises.com.
Vol. 86 — No. 22 — 8/29/2015
POSITIONS AVAILABLE
POSITIONS AVAILABLE
ATTORNEY (WITH 3 TO 5 YEARS EXPERIENCE)
needed for general civil practice to include Workers
Comp experience, by AV-rated Tulsa insurance and
transportation defense firm. Very busy, fast-paced office offering competitive salary commensurate with
experience, health/life insurance, 401k, etc. Candidates
with strong academic background and practical litigation experience, please send a résumé and writing sample (10 pg. max) in confidence via email to office@
gabmh.com.
PLAINTIFF’S CIVIL LITIGATION FIRM seeks associate with 0-5 years’ experience. Located one hour west
of OKC in the small and friendly town of Hinton. Fast
growing firm that respects your opinion, input, creativity and work-life balance. Competitive compensation
package and exceptional work environment that will
make you love your career. If you want the opportunity
to enjoy your practice and have a significant and positive impact on the lives of others, email résumé to
[email protected]. Martindale Hubble Rated AV; Million Dollar Advocates Forum; Super Lawyer
Rated; AVVO Client’s Choice Award.
THE DEPARTMENT OF HUMAN SERVICES, Legal
Services, is seeking qualified and experienced applicants for a senior Assistant General Counsel position
housed in Oklahoma City. The successful applicant
will provide legal representation, advice, and training
in matters affecting adult protective services and developmental disabilities services throughout the state.
This position will also oversee, as needed, the sale of
real and personal property belonging to adult wards of
DHS. The ideal candidate should have at least five
years of relevant experience and strong communication skills to interact on a daily basis with judges, prosecutors, and DHS staff at all levels of the Department.
Salary is based on qualifications and experience. Excellent state benefits. Send résumé, references and recent
writing samples to Retta Hudson, Office Manager, Legal Services, Dept. of Human Services, PO Box 25352,
Oklahoma City, OK 73125.
AV RATED DOWNTOWN OKC LAW FIRM SEEKS
ATTORNEY with two or more years of experience with
estate planning. Compensation based on experience
and origination. Parking/Health/Dental paid. Send
résumé to Box “T,” Oklahoma Bar Association, PO Box
53036, Oklahoma City, OK 73152.
HARTZOG CONGER CASON & NEVILLE is seeking
a 2-6 year attorney to work in the firm’s business and
corporate group. Applicants should have a strong academic background with experience in complex business transactions. Applicants should submit a résumé
and cover letter to: “Box KK,” Oklahoma Bar Association, P.O. Box 53506, Oklahoma City, OK 73152. Applications will be kept in strict confidence.
DURBIN, LARIMORE & BIALICK, P.C., A MIDTOWN
OKC AV-RATED FIRM, SEEKS 5-15 years of experience in oil and gas law, including drilling, pipeline
and pollution litigation. Salary commensurate with
experience. Please submit cover letter and résumé to
[email protected].
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].
Vol. 86 — No. 22 — 8/29/2015
HARTZOG CONGER CASON & NEVILLE is seeking
a 2-6 year attorney to work in the firm’s estate planning
group. Applicants should have a strong academic
background. Applicants should submit a résumé and
cover letter to: “Box W,” Oklahoma Bar Association,
P.O. Box 53506, Oklahoma City, OK 73152. Applications will be kept in strict confidence.
AV RATED, INSURANCE DEFENSE LAW FIRM, located in Norman, Oklahoma, with emphasis on Commercial Trucking Litigation, seeks associate attorney
with 3-5 years of litigation experience and excellent
writing skills. Compensation package is commensurate with level of experience. Please send résumé in
confidence via email to [email protected].
FAMILY LAW FIRM SEEKS ATTORNEY with minimum one year’s experience. Résumé; writing sample
and two references required. Mail to “Box CD,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City,
OK 73152.
NORMAN FIRM SEEKS ASSOCIATE ATTORNEY
with 0-3 years’ experience. Looking for a candidate
with a strong work ethic and who is self-motivated. Experience and/or interest in immigration law a plus.
Bilingual candidates a plus. Please submit cover letter,
résumés, and salary requirements to normanoklaw
[email protected].
AV RATED TULSA LAW FIRM is seeking an attorney
with a minimum of 8 years of business and civil litigation experience. The ideal candidate will have solid
litigation experience, excellent communication skills
and be well-organized. Candidates seeking a firm with
a team approach to litigation and a firm that emphasizes a collegial environment will be interested in this
unique opportunity. The compensation package is
commensurate with level of experience and qualifications. An exceptional benefit package includes bonus
opportunity, health insurance, life insurance, and 401K
with match. Applications will be kept in strict confidence. Please send résumé to “Box EF,” Oklahoma Bar
Association, P.O. Box 53036, Oklahoma City, OK 73152.
1765
POSITIONS AVAILABLE
FOR SALE
HELP-IN-CRISIS, INC. is seeking staff attorney to address emergency and non-emergency legal needs of
domestic violence and sexual assault victims as related
to their victimization; legal assistance may include simple legal advice to full legal representation within
Adair, Cherokee, Sequoyah and Wagoner Counties.
EOE. Send cover letter, résumé and transcript to: attn:
ED, 205 N. College Ave., Tahlequah OK 74464.
OKLAHOMA STATUTES ANNOTATED - Full Set, Excellent condition, with 2012 Pocket Parts, $250. Call
627-6490, leave message.
THE OKLAHOMA CORPORATION COMMISSION
has an opening for an attorney position in the Office of
General Counsel in the Public Utility section. This is an
unclassified position with a salary of $52,907-$57,000
annually. Applicants must be admitted to the Oklahoma bar and have at least 2 years of practice in any of the
following areas: administrative law, business law, corporate law, or public utility regulation. Some litigation experience is preferred. Send résumé and writing sample
to: Oklahoma Corporation Commission, Human Resources Division, P.O. Box 52000, Oklahoma City, 731522000, or by email to [email protected]. Deadline for
submission of all materials is September 8, 2015.
OKLAHOMA BASED, MULTI-STATE FIRM seeks associates for Oklahoma office, Northeast Oklahoma
area. Emphasis on Family Law, Child Support Enforcement, and Native American law. Strong work ethic and
self motivation skills required. All replies considered
confidential. Send résumé and salary requirements to:
“Box B,” Oklahoma Bar Association, P.O. Box 53036,
HUNTING RANCH 400AC MOL MIXED TIMBER/
PASTURE. Deer, turkey, ducks and trophy bass. Morton type building w/living quarters/equipment storage. Located between Tulsa/Stillwater off Hwy51. Call/
text/email [email protected] 918-855-9758.
CLASSIFIED INFORMATION
REGULAR CLASSIFIED ADS: $1 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 $50 per inch of depth.
DEADLINE: See www.okbar.org/members/BarJournal/
advertising.aspx or call 405-416-7018 for deadlines.
SEND AD (email preferred) stating number of times to be
published to:
[email protected], or
Emily Buchanan, Oklahoma Bar Association, PO Box 53036,
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 non-discriminatory.
DO NOT STAPLE BLIND BOX APPLICATIONS.
INVESTIGATOR
OFFICE OF THE GENERAL COUNSEL
OKLAHOMA BAR ASSOCIATION
Applications are now being accepted for an experienced Investigator for the Office of the
General Counsel, Oklahoma Bar Association. Investigators review allegations against
members of the bar which may involve violations of the rules of professional conduct.
Duties include interviewing witnesses, reviewing legal documents and financial statements, preparing reports, and testifying at disciplinary and reinstatement hearings before
the Professional Responsibility Tribunal. Applicants should have a degree from an accredited university or comparable work experience, possess excellent writing skills, and be
able to work independently. Some travel may be required. Law enforcement, accounting,
legal, or financial crimes investigation experience strongly preferred. Salary negotiable,
depending upon credentials and experience. Excellent benefits including retirement,
health, and life insurance. Résumés and cover letters should be submitted by September 4, 2015 to Gina L. Hendryx, General Counsel, Oklahoma Bar Association, P.O. Box
53036, Oklahoma City, OK 73152 or electronically to [email protected].
THE OKLAHOMA BAR ASSOCIATION IS AN EQUAL OPPORTUNITY EMPLOYER
1766
Vol. 86 — No. 22 — 8/29/2015
This course will provide non-tax lawyers with
clear, non-technical explanations of:
Tax choice of entity - i.e., the process of choosing
the best federal income tax regimen for single-member and multi-member LLCs.
The tremendous economic advantages potentially
available to LLCs under Internal Revenue Code
Subchapters K (partnership taxation) and S (S
corporation taxation).
How to draft basic federal tax provisions in LLC
operating agreements.
Seminar materials will include LLC model operating agreements implementing the above explanations.
CATCH ALL OF OUR WEBCASTS ON YOUR
COMPUTER, TABLET OR SMART PHONE
LLC Tax for
Non-Tax Lawyers:
A Plain English
Explanation
SEPTEMBER 16, 23 & 30 2015
Oklahoma Bar Center
1901 N. Lincoln Blvd.
Oklahoma City, OK
PROGRAMS BEGIN AT NOON
AND ADJOURN AT 2:00 P.M.
SEPT. 16
Introduction to the LLC law and Quick Review of
Federal Income Taxation and Tax Tasks in Forming
LLCs
Check-the-Box Regulations: The Foundation of
LLC Tax
SEPT. 23
How to Choose the Best Federal Income Tax Regimen for an LLC for Federal Income Tax Purposes
How to Choose the Best Federal Income Tax Regimen for an LLC for Social Security Tax Purposes
Important Tax Provisions in Operating Agreements
SEPT. 30
Tax Provisions in Operating Agreements (cont’d)
Statutory Conversions of Corporations to LLCs Overview of Oklahoma Business
Program Planners/Moderators: John M. Cunningham
John M. Cunningham is of counsel to the northern New En
l
gland law
firm of McLane, Graf, Raulerson & Middleton, P.A.
His practice is focused on LLC formations and on business
entity restructuring. He is the author of Drafting Limited Liability Company Operating Agreements, the leading U.S.
LLC formbook and practice manual, published by Wolters
Kluwer Law & Business. He has taught numerous OBA LLC
seminars, all of which have received high attendee evaluations.
Organization and Federal and State Tax Law
Ethical Issues in Handling Tax Issues in LLC Formations
This course has been approved by the Oklahoma Bar Association Mandatory Continuing Legal Education Commission for 2
hour of mandatory CLE Credit, including .50 hours of ethics for
the September 30th webcast. Registration for all 3 events is
recommended but not required. Questions? Call (405)
416-7029.
TUITION: $250 for all three dates or $100 each. No discounts.
Register online at: www.okbar.org/members/cle
REGISTER ONLINE AT WWW.OKBAR.ORG/MEMBERS/CLE
Vol. 86 — No. 22 — 8/29/2015
1767
MISS THE ORIGINAL
BROADCAST?
REGISTER FOR THESE TO
RECEIVE “LIVE” CLE CREDIT
Sept. 9, 2015
Selected Topics Relating to
Fiduciary Litigation
Sept. 10, 2015
The Basics and the
Not so Basics of Family Law
Sept. 11, 2015
Workers Compensation:
Old Law vs. New Law
Sept. 16, 2015
LLC Tax for Non-Tax Lawyers:
A Plain English Explanation
Sept. 17, 2015
The Basics of Bankruptcy and
How to File a Chapter 13 Case
Sept. 23, 2015
Sept. 25, 2015
Doing Your Job as a Trial Lawyer:
Experts and Trial Tactics
Sept. 30, 2015
To register go to: http://bit.ly/1GpkHvh

Volume 86 u No. 22 u Aug. 29, 2015

Transcription

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