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The Oklahoma Bar Journal

Vol. 87 — No. 25 — 9/24/2016

THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2016 Oklahoma Bar Association. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication. Advertisers are solely responsible for the content of their ads, and the OBA reserves the right to edit or reject any advertising copy for any reason. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Information about submissions can be found at www.okbar.org. BAR Center Staff John Morris Williams, Executive Director; Gina L. Hendryx, General Counsel; Joe Balkenbush, Ethics Counsel; Jim Calloway, Director of Management Assistance Program; Craig D. Combs, Director of Administration; Susan Damron, Director of Educational Programs; Beverly Petry Lewis, Administrator MCLE Commission; Carol A. Manning, Director of Communications; Robbin Watson, Director of Information Technology; Loraine Dillinder Farabow, Tommy Humphries, Debbie Maddox, Katherine Ogden, Steve Sullins, Assistant General Counsels

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OFFICERS & BOARD OF GOVERNORS GARVIN A. ISAACS, President, Oklahoma City; PAUL D. BRUNTON, Vice President, Tulsa; LINDA S. THOMAS, President-Elect, Bartlesville; DAVID A. POARCH JR., Immediate Past President, Norman; JOHN W. COYLE III, Oklahoma City; JAMES R. GOTWALS, Tulsa; KALEB K. HENNIGH, Enid; JAMES R. HICKS, Tulsa; ALISSA HUTTER, Norman; JAMES L. KEE, Duncan; JOHN W. KINSLOW, Lawton; JAMES R. MARSHALL, Shawnee; SONJA R. PORTER, Oklahoma City; KEVIN T. SAIN, Idabel; ROY D. TUCKER, Muskogee; JOHN M. WEEDN, Miami; BRYON J. WILL, Oklahoma City, Chairperson, OBA Young Lawyers Division The Oklahoma Bar Journal (ISSN 0030-1655) is published three times a month in January, February, March, April, May, August, September, October November and December and bimonthly in June and July by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, Okla. Subscriptions $60 per year except for law students registered with the OBA who may subscribe for $30 and senior members who may subscribe for $25; all active members included in dues. Single copies: $3 Postmaster Send address changes to the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152-3036. The Oklahoma Bar Journal

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NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: District Judge Twenty-sixth Judicial District, Office 1 Canadian County This vacancy is due to the retirement of the Honorable Gary E. Miller, effective October 1, 2016. To be appointed to the office of District Judge one must be a registered voter of Canadian County 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 the link to Programs, then Judicial Nominating Commission, or by contacting Tammy Reaves, Administrative Office of the Courts, 2100 N. Lincoln, Suite 3, Oklahoma City, Oklahoma 73105, (405) 556-9862. Applications must be submitted to the Chairman of the Commission at the same address no later than 5:00 p.m., Friday, October 7, 2016. If applications are mailed, they must be postmarked by midnight, October 7, 2016. John H. Tucker, Chairman Oklahoma Judicial Nominating Commission

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Vol. 87 — No. 25 — 9/24/2016

Oklahoma Bar Association

table of

contents Sep. 24, 2016 • Vol. 87 • No. 25

page 1734 Index to Court Opinions 1735 Opinions of Supreme Court 1771 Board of Governors Vacancies

and Nominating Petitions

1774 Proposed Changes to the Oklahoma

Rules of Professional Conduct

1784 Opinions of Court of Civil Appeals 1787 Calendar of Events 1788 Disposition of Cases Other Than by Publication

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Index to Opinions of Supreme Court 2016 OK 88 IN THE MATTER OF M.H.C., Alleged Deprived Child, STATE OF OKLAHOMA, Petitioner/Appellant, v. DAWN REICH-CRABTREE (Natural Mother) and TRAVIS CRABTREE (Natural Father), Respondents/Appellees, and BRANDI HORN (Foster Mother), Appellant, and M.H.C. (Minor Child), Appellee, and CHEROKEE NATION, Intervenor/Appellee.) No. 114,552............................................................................... 1735 2016 OK 89 JONNIE YVONNE VASQUEZ, Plaintiff/Respondent, v. DILLARD’S, INC., QUALIFIED EMPLOYER, Defendant/Petitioner. No. 114,810................................................... 1741 2016 OK 90 IN RE: AMENDMENTS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS - CIVIL SCAD-16-73............................................................................................................. 1755

Index to Opinions of Court of Civil Appeals 2016 OK CIV APP 54 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE MORGAN STANLEY ABS CAPITAL 1 INC. TRUST 2006-NC5, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006 NC-5, Plaintiff/Appellee, vs. SHERRI D. MYERS AND CAREY MARK BACA, Defendants/Appellants, and John Doe; Jane Doe; Steven D. Lester; Karen Lester and New Century Mortgage Corporation, Additional Defendants. Case No. 112,832.................. 1784

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: District Judge Sixth Judicial District, Office 1 Caddo and Grady Counties This vacancy is due to the retirement of the Honorable Richard G. Van Dyck, effective October 1, 2016. To be appointed to the office of District Judge one must be a registered voter of Caddo or Grady County 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 the link to Programs, then Judicial Nominating Commission, or by contacting Tammy Reaves, Administrative Office of the Courts, 2100 N. Lincoln, Suite 3, Oklahoma City, Oklahoma 73105, (405) 556-9862. Applications must be submitted to the Chairman of the Commission at the same address no later than 5:00 p.m., Friday, October 7, 2016. If applications are mailed, they must be postmarked by midnight, October 7, 2016. John H. Tucker, Chairman Oklahoma Judicial Nominating Commission

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Opinions of Supreme Court Manner and Form of Opinions in the Appellate Courts; See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)

2016 OK 88 IN THE MATTER OF M.H.C., Alleged Deprived Child, STATE OF OKLAHOMA, Petitioner/Appellant, v. DAWN REICHCRABTREE (Natural Mother) and TRAVIS CRABTREE (Natural Father), Respondents/ Appellees, and BRANDI HORN (Foster Mother), Appellant, and M.H.C. (Minor Child), Appellee, and CHEROKEE NATION, Intervenor/Appellee.) No. 114,552. September 13, 2016 ON APPEAL FROM THE DISTRICT COURT OF ROGERS COUNTY, THE HONORABLE STEPHEN R. PAZZO, PRESIDING. ¶0 Cherokee Nation filed a motion to transfer the deprived case of M.H.C. to tribal court upon natural mother’s tribal enrollment. State of Oklahoma and foster mother objected. The district court granted the motion to transfer, finding State and foster mother failed to present clear-and-convincing evidence to overcome the presumption in favor of tribal court jurisdiction in cases concerning the Indian Child Welfare Act. 25 U.S.C. §§ 1901-1963 (1978). This Court retained the appeal for disposition. AFFIRMED. Zach Cabell, Assistant District Attorney Rogers County, Claremore, Oklahoma, for Appellant State of Oklahoma. Becki A. Murphy and Megan M. Decker, Murphy Francy, PLLC, Tulsa, Oklahoma, for Appellant Brandi Horn. Chrissi R. Nimmo, Assistant Attorney General, Cherokee Nation, Tahlequah, Oklahoma for Intervenor/Appellee Cherokee Nation. Allison Wade, Wade Law Firm, Tulsa, Oklahoma, for Appellee Dawn Reich-Crabtree. Kimberly Appleman, Rogers County Public Defender, Catoosa, OK, for Appellee M.H.C. Taylor, J.

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¶1 Section 1911(b) of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1968 (1978), controls a motion to transfer a child-custody proceeding from state court to tribal court where the child is an Indian child under the statutory definition. The questions presented to this Court are whether the district court erred when it (1) found ICWA applicable to a case where the child was not an Indian child when the case was filed and (2) found lack of good cause to keep the case in state court. As an aside, before this Court is also the question whether a finding of ICWA’s applicability must be applied retroactively to all prior proceedings in the case. We answer each question in the negative. I. FACTS AND PROCEEDINGS ¶2 M.H.C. (the child) was born in September of 2013. The Oklahoma Department of Human Services (DHS) placed the child in protective custody on November 5, 2013. In the initial petition filed on November 18, 2013, the State of Oklahoma1 (the State) declared ICWA’s provisions applicable. On November 21, 2013, the Cherokee Nation appeared at the initial appearance, and the natural mother informed the court that she had a Certificate of Degree of Indian Blood but was not currently a tribal member. ¶3 Thereafter, the Cherokee Nation received official notice from the State that it planned to adjudicate the child as deprived. The Cherokee Nation sent DHS a response notifying DHS that the child was eligible for enrollment in the tribe and enclosing a tribal-enrollment application for DHS to complete. The Cherokee Nation testified it could not complete the application without access to the child’s case file and birth certificate. After the Cherokee Nation’s initial attempt to have DHS complete the enrollment application, the Cherokee Nation sent DHS three additional enrollment applications. DHS employee Ms. Choate testified to seeing at least one application and acknowledged that a DHS employee can fill out a child’s enrollment application without natural mother’s assistance. Ms. Choate testified she had previously filled

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out a child’s application to help the child gain tribal membership. ¶4 On December 3, 2013, the district court ruled ICWA inapplicable. At the first family team meeting, the Cherokee Nation, the natural mother, and DHS were present. The natural mother was informed if she gained membership in the Cherokee Nation, ICWA would apply. The natural mother was also told if ICWA applied, the child would likely have to leave foster mother’s care because foster mother was a non-ICWA compliant placement. No party informed the natural mother of ICWA’s benefits and protections.2 The natural mother declined to enroll at the time. The district court subsequently found the State broke confidentiality by allowing the Cherokee Nation to attend a family team meeting in a non-ICWA case. ¶5 In September 2014, the State filed a motion to terminate the natural mother’s rights due to her absence in the pending court proceedings. The State served the natural mother by publication. On December 18, 2014, the court entered a Default Order of Termination of Parental Rights against the natural mother for failure to appear and defend her rights to her child. On February 5, 2015, the natural mother became an enrolled citizen of the Cherokee Nation. On February 19, 2015, the Cherokee Nation filed a motion to intervene and, on March 24, 2015, filed a motion to transfer to tribal court. In the spring of 2015, the district court vacated the order terminating the natural mother’s rights due to statutorily defective service. On June 9, 2015, the district court found natural mother’s rights were still intact and the permanency plan should be reunification. ¶6 On November 20, 2015, the district court granted the Cherokee Nation’s motion to transfer the case to tribal court, finding the State failed to provide clear-and-convincing evidence of good cause to deny the transfer. The State and foster mother (together Appellants) appealed. This Court retained the appeal for disposition. Neither DHS, nor the natural mother, nor the child through her attorney objects to the transfer to tribal court jurisdiction. Only the State and the foster mother object. II. STANDARD OF REVIEW AND BURDEN OF PROOF ¶7 ICWA’s applicability is a question of law. The standard of review for questions of law is de novo. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084. When ruling 1736

on a motion to transfer jurisdiction to tribal court, the party opposing transfer has to prove good cause to keep the case in state court by clear-and-convincing evidence. See In re M.S., 2010 OK 46, ¶ 19, 237 P.3d 161, 167. This Court has yet to establish the deference it will give to the district judge’s decision to grant a motion to transfer under ICWA or the Oklahoma Indian Child Welfare Act (OICWA). See id. We need not do so here because even under the least discretionary standard, the evidence supports the district court’s decision. III. 25 U.S.C. § 1911(b)’s APPLICATION ¶8 In 1978, the United States Congress passed ICWA in response to the alarming rate at which states were taking away tribal children from parents and tribes in child-custody proceedings. See 25 U.S.C. at § 1901(4). Congress’ stated policy for enacting ICWA was to establish minimum federal standards “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” during state child-custody proceedings. Id. § 1902. ¶9 The only provision of ICWA at issue here is Section 1911(b). Section 1911(b) provides: In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe . . . . Section 1911(b) of ICWA applies in (1) proceedings for foster care placement and termination of parental rights (2) involving an Indian child. Id. § 1903(1) & (4)(b); see Adoptive Couple v. Baby Girl, 133 S.Ct. 2552, 2557 n.1 (2013). ICWA defines an Indian child as “any unmarried person who is under eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. § 1903(4). No one contests that this is a proceeding that falls under Section 1911(b). Appellees urge that the Child meets the definition of Indian child and ICWA applies, while Appellants urge that Section 1911(b) and ICWA are inapplicable based on their perceived justifications.

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¶10 First, Appellants argue Congress’ intent when passing ICWA was to limit ICWA’s reach. Pointing the Court to Neilson v. Ketchum, 640 F.3d 1117, 1124 (10th Cir. 2011), Appellant’s position is that congressional intent to limit ICWA’s reach is found in its rejection of a proposed definition of “Indian” to include all persons eligible for membership in an Indian tribe within ICWA’s purview whether or not a parent was a tribal member. However, their argument fails to recognize that the current definition, as passed by Congress, includes the child as well. The child is an unmarried minor, and upon the natural mother’s membership in the Cherokee Nation, the child became “eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. §§ 1903(1) & 1903(4)(b); Baby Girl, 133 S.Ct. at 2557 n.1.

where the child is not in a parent’s custody at the time the child comes within ICWA’s definition of Indian child. Appellants rely on the language of Section 1912(e) and (f). These provisions require an initial determination that the “continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child” before a court can order a foster care placement or the termination of parental rights. 25 U.S.C. § 1912(e) & (f). These provisions grant extra protections before parental rights are impacted and do not address the issue before this Court as to whether the district court erred in transferring the proceeding to tribal court. Neither does their language impose a restriction on ICWA’s definition of Indian child to require parental custody at the time a child classifies as an Indian child. We reject Appellants’ contention.

¶11 Next, Appellants urge that OICWA, 10 O.S.2011 §§ 40-40.9, limits ICWA’s application to children who are Indian children prior to the proceedings’ initiation. OICWA applies ICWA “to all state voluntary and involuntary child custody court proceedings involving Indian children, regardless of whether or not the children involved are in the physical or legal custody of an Indian parent or Indian custodian at the time state proceedings are initiated.” Id. § 40.3 (emphasis added). Appellants argue that because the statute only mentions application at the time the proceedings initiate, OICWA impliedly limits application to children who fall within ICWA’s definition of Indian child when taken into protective custody.

¶14 Appellants next argument is at best confusing. Their initial premise is that the child was not removed from an Indian family because the mother was not enrolled at the time the State removed the child. Appellants assert that pursuant to Section 1902’s policy statement, ICWA applies only to “intact Indian families,” and no Indian family existed at the time of the child’s removal.

¶12 This Court settled this issue in In re Baby Boy L., 2004 OK 93, ¶ 18, 103 P.3d 1099, 1105-06. This Court found that, under the 1994 amendment to Section 40.3, [OICWA] controls regardless of whether the child or children involved in the proceeding are in the physical or legal custody of an Indian parent or Indian custodian when the state proceedings are initiated. Id. Rather than restricting the definition of Indian child only to those children that meet the definition at the proceeding’s initiation, as the State could not do, see id. ¶ 12, 103 P.3d at 1104, OICWA expands the reach in Oklahoma of ICWA’s protections by eliminating the need for an existing Indian custodian at the time the state proceedings are initiated. See id. ¶13 Similarly, Appellants argue ICWA’s plain language prohibits applying ICWA to a case Vol. 87 — No. 25 — 9/24/2016

¶15 We agree that Congress was concerned by the familial impact of wholesale removal of Indian children from their homes. But of equal concern was the impact on tribes’ stability and security. 25 U.S.C. § 1902; Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 49 (1989) (“[F]or Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves . . . .”). Tribal interest and protection are “at the core of the ICWA, which recognizes that the tribe has an interest in the child which is distinct from but on a parity with the interest of the parents.” Holyfield at 52. Two primary concerns in establishing ICWA were that the removal of Indian children from their tribes (1) is detrimental to the long-term survival of tribes, and (2) has “damaging social and psychological impact[s]” on the children. Id. at 50. Appellants have pointed only to the heightened protections before removal of children from parental custody and ignore other protections such as the right to transfer a proceeding to tribal court whether or not parents ever had custody. Baby Girl, 133 S.Ct. at 2561 n. 6 (agreeing with Justice Sotomayor’s dissent); see id. at 2574 (Sotomayor, J., dissenting).

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¶16 ICWA applies prospectively to a proceeding when the record establishes the child meets ICWA’s definition of an Indian child. Appellants argue the district court erred in finding ICWA applicable at a stage in the proceeding later than the proceeding’s commencement. Appellants then argue that making such a finding will force retroactive application of ICWA. We disagree. ¶17 We agree with the Supreme Court of Nebraska, “the provisions of ICWA . . . apply prospectively from the date Indian child status is established on the record.” In re Adoption of Kenton H., 725 N.W.2d 548, 555 (Neb. 2007). In support of their argument, Appellants rely on Baby Girl and Neilson; however, we find our ruling consistent with these cases as neither case applied ICWA retrospectively from the date the record established it was applicable. Baby Girl, 133 S.Ct. at 2565; Neilson 640 F.3d at 1122. Both Baby Girl and Neilson can be construed either as applying ICWA prospectively from the date the record showed it applied or as a waiver of a parent’s right to assert ICWA’s protections. Upon the date the record shows that ICWA is applicable, the proceedings must be ICWA compliant. In the present case, ICWA became applicable on February 5, 2015, when the natural mother gained membership in the Cherokee Nation, making the child an Indian child under ICWA. Retroactive application of ICWA is not applicable here to invalidate the district court’s prior orders. ¶18 Next, Appellants rely on Baby Girl to argue ICWA can only apply to “intact Indian families.” 133 S.Ct. at 2562-2563. In Baby Girl, the natural father attempted to withdraw his relinquishment of parental rights and consent to an adoption, claiming the termination of his parental rights and the adoption did not comply with ICWA. Id. at 2559. The Supreme Court found ICWA’s termination statute, Section 1912(f), provided heightened protection for “intact Indian families.” Id. at 2562-63. Here, the Cherokee Nation is seeking to transfer the proceeding to tribal court. Unlike Baby Girl, the natural mother sought to neither withdraw a relinquishment of her parental rights nor withdraw a consent to an adoption. The language in Section 1912(f) utilized by the Supreme Court of an “intact Indian family” is not found in Section 1911(b) addressing transfers to tribal courts. Appellants’ reliance on Baby Girl is misplaced; Baby Girl is factually distinguishable and addressed Section 1912(f) of ICWA, not 1738

Section 1911(b), making the U.S. Supreme Court’s holding on which Appellants rely irrelevant here. ¶19 Finally, Appellants rely on the United States Court of Appeals for the Tenth Circuit’s holding in Neilson v. Ketchum, 640 F.3d 1117, 1124 (10th Cir. 2011), to argue against ICWA applicability. In Neilson, the natural mother attempted to invalidate the termination of her parental rights at the proceeding’s adoption stage by urging ICWA applicable after she had relinquished parental rights and consented to the baby’s adoption. Id. at 1119. As in Baby Girl, the court was addressing the termination of parental rights, not the transfer of the proceedings to tribal court. For the same reasons that Appellants’ reliance on Baby Girl is misplaced, their reliance on Neilson is also misplaced. ¶20 The provisions of ICWA become effective in a state child custody proceeding on the date that the record supports a finding that ICWA applies. Section 1911(b) became applicable, with prospective application, when the child met the definition of an Indian child under ICWA. Appellants have failed to provide any authority which would require a different finding. The district court did not err in finding that it should consider whether good cause existed to deny the motion to transfer to tribal court. IV. 25 U.S.C. § 1911(b) MOTION TO TRANSFER ¶21 In a state court proceeding for foster care placement or termination of parental rights, ICWA directs a state court to transfer jurisdiction to tribal court. 25 U.S.C. § 1911(b). Section 1911(b) provides that the court, “in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe.” Id. Good cause is an exception to a transfer to tribal court. ICWA does not define “good cause,” and the Supreme Court has not articulated a definition. Appellants argue that if Section 1911(b) is applicable to these proceedings, the district court nonetheless erred in granting the motion to transfer to tribal court. It is undisputed that the State bore the burden of establishing good cause by clear-and-convincing evidence. See In re M.S., 2010 OK 46, ¶ 19, 237 P.3d 161, 167. The district court found the State did not meet their burden and granted the transfer to tribal court. ¶22 The Bureau of Indian Affairs (BIA) published the Guidelines for State Courts and Agen-

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cies in Indian Child Custody Proceedings in 1979 for state courts to use in proceedings when ICWA applies. 44 Fed. Reg. 67,584 (Nov. 28, 1979). The 1979 BIA Guidelines provided a non-exclusive list of what did not amount to good cause. (a) Good cause not to transfer the proceeding exists if the Indian child’s tribe does not have a tribal court as defined by the Act to which the case can be transferred. (b) Good cause not to transfer the proceeding may exist if any of the following circumstances exists: (i) The proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing. (ii) The Indian child is over twelve years of age and objects to the transfer. (iii) The evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses. (iv) The parents of a child over five years of age are not available and the child has had little or no contact with the child’s tribe or members of the child’s tribe. (c) Socio-economic conditions and the perceived adequacy of tribal or Bureau of Indian Affairs social services or judicial systems may not be considered in a determination that good cause exists. (d) The burden of establishing good cause to the contrary shall be on the party opposing the transfer. ¶23 While recognizing the non-exclusive list of what is not “good cause” under the 1979 BIA Guidelines in In re M.S., this Court analyzed the only three factors recognized as relevant by the In re M.S. district court. 2010 OK 46, ¶ 20, 237 P.3d at 168. These were (a) the length of time between the state court’s initial exercise of jurisdiction and the filing of the motion to transfer, (b) the relationships between the children and their foster parents, their attorney, DHS social workers, and medical providers, and (c) the location of the most relevant evidence. Id. After analyzing these factors, this Court found that the district court had erred in finding good cause not to transfer the case Vol. 87 — No. 25 — 9/24/2016

from the Oklahoma state court to the tribal court in the State of Washington. Id. ¶ 42, 237 P.3d at 172. ¶24 Effective December 12, 2016, the BIA amended the 1979 BIA Guidelines by enacting regulations that rewrote what the 1979 BIA Guidelines defined as “good cause” and that were more closely aligned with ICWA. Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg. 10,146 (Feb. 25, 2015) (to be codified at 25 C.F.R. 23.117 to 23.118). Subsection C.2 of the 2016 BIA Guidelines provides the new criteria: Upon receipt of a transfer petition from an Indian child’s parent, Indian custodian, or Tribe, the State court must transfer the child-custody proceeding unless the court determines that transfer is not appropriate because one or more of the following criteria are met: (a) Either parent objects to such transfer; (b) The Tribal court declines the transfer; or (c) Good cause exists for denying the transfer. Id. at 10,156. ¶25 The 2016 BIA Guidelines provides how good cause should be determined: (c) In determining whether good cause exists, the court may not consider whether the case is at an advanced stage or whether transfer would result in a change in the placement of the child because the Act created concurrent, but presumptively, tribal jurisdiction over proceedings involving children not residing or domiciled on the reservation, and seeks to protect, not only the rights of the Indian child as an Indian, but the rights of Indian communities and tribes in retaining Indian children. Thus, whenever a parent or tribe seeks to transfer the case it is presumptively in the best interest of the Indian child, consistent with the Act, to transfer the case to the jurisdiction of the Indian tribe. (d) In addition, in determining whether there is good cause to deny the transfer, the court may not consider: (1) The Indian child’s contacts with the tribe or reservation;

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(2) Socio-economic conditions or any perceived inadequacy of tribal or Bureau of Indian Affairs social services or judicial systems; or (3) The tribal court’s prospective placement for the Indian child. Id. The 2016 BIA Guidelines, like the 1979 BIA Guidelines, do not list the factors to be considered when determining what constitutes “good cause” to deny a transfer to tribal court, giving the district court wide discretion in determining relevant factors. Rather the 2016 Guidelines give specific criteria which may not be considered. ¶26 Here, the parties presented evidence only of the three factors analyzed by In re M.S. in support of their arguments: timeliness, best interest of the child, and location of the proceedings. Appellants did not present evidence of any other factors for the district court’s consideration. Therefore, we need only address the three In re M.S. factors put forth by the Appellants and not apply the 2016 BIA Guidelines or define “good cause.” We have rejected Appellants’ timeliness argument when addressing ICWA’s applicability. We examine Appellants’ other two In re M.S. factors in turn. ¶27 Appellants claim the best interests of the child support denial of the transfer to tribal court. The record does not support their argument. The goal of the district court’s permanency plan was reunification with the natural mother. Appellants failed to present any evidence which would show that transfer to tribal court would not promote this goal. Although Appellants introduced evidence of a bond with a half-sibling in the foster mother’s care, they introduced no evidence of a bond with the foster mother and failed to present any evidence of physical or emotional harm to the child if the proceedings were transferred to tribal court. Appellants’ evidence was that the child would suffer from a change in foster-care placementan issue not before the district court or this Court. ICWA’s placement preference are applicable to district court proceeding. And lastly, the best interests of the child can just as easily be determined by the tribal court. One argument Appellants strongly imply is that a tribal court could not make this determination. Appellants have not supported this implication, and we refuse to make such a finding. ¶28 The final In re M.S. factor put forth by Appellants is the change in location of the pro-

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ceedings — from Rogers County District Court to the Cherokee Nation tribal court. The natural mother resides in Tulsa County, and the foster mother resides in Creek County. In light of In re M.S., wherein this Court upheld a motion to transfer to a tribal court in the State of Washington from Oklahoma, 2010 OK 46, ¶ 42, 237 P.3d at 172, a change in location from Rogers County District Court to the Cherokee Nation tribal court is insignificant. Although the Cherokee Nation submitted the 2016 BIA Guidelines as supplemental authority, we need not address the change the 2016 BIA Guidelines have upon the In re M.S. factors. Because even if the In re M.S. factors relied on by Appellants are applicable in this proceeding, they have not established the current In re M.S. factors by clear-and-convincing evidence. We find that the district court did not err in granting the motion to transfer the proceedings to the Cherokee Nation tribal court. V. CONCLUSION ¶29 The district court did not err in finding ICWA applicable upon the natural mother’s enrollment in the Cherokee Nation. ICWA applies to the proceedings prospectively from the date the record supports its application. Appellants have failed to present clear-and-convincing evidence of “good cause” for the case to remain in the Rogers County District Court. Appellants’ unlearned understanding of what is binding case law and attempts to broaden holdings of this Court, the United States Supreme Court, and the Tenth Circuit Court of Appeals, and ICWA’s provisions dealing with termination of parental rights will not support a reversal of the district court’s order. Because the district court did not err in granting the motion to transfer to tribal court, we affirm the order granting the motion to transfer. DISTRICT COURT’S ORDER GRANTING MOTION TO TRANSFER AFFIRMED. ALL JUSTICES CONCUR. Taylor, J. 1. Throughout the proceedings the State was represented by the Rogers County District Attorney. 2. The Cherokee Nation argues that no one — not DHS, the court, the state through the assistant district attorney, or the mother’s attorney — informed the natural mother of ICWA’s protective provisions. However, the transcript shows a Cherokee Nation representative was also present at the family team meeting where ICWA was discussed with the natural mother. The tribe had equal opportunity to inform natural mother of ICWA’s protective provisions, yet did not do so.

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2016 OK 89 JONNIE YVONNE VASQUEZ, Plaintiff/ Respondent, v. DILLARD’S, INC., QUALIFIED EMPLOYER, Defendant/ Petitioner. No. 114,810. September 13, 2016 ON APPEAL FROM THE WORKERS’ COMPENSATION COMMISSION EN BANC ¶0 Defendant/petitioner, Dillard’s Inc. (Dillard’s/employer), seeks review of the Workers’ Compensation Commission’s (Commission) order finding the Employee Injury Benefit Act (Opt Out Act), 85A O.S. Supp. 2014 §§201-213 inoperable based upon multiple constitutional infirmities. The plaintiff/respondent, Jonnie Yvonne Vasquez (Vasquez/employee), urges affirmance of the Commission’s order finding the Opt Out Act unconstitutional. Having determined that we have authority to address the constitutional challenges presented, the Court addresses a single dispositive issue: whether the Opt Out Act is an unconstitutional special law. We hold that the Opt Out Act is an unconstitutional special law within the meaning of the Okla. Const. art. 5, §59 creating an impermissible select group of employees seeking compensation for work-related injuries for disparate treatment. ORDER OF THE WORKERS’ COMPENSATION COMMISSION EN BANC VACATED; CAUSE REMANDED. G. Calvin Sharpe, Catherine L. Campbell, Amy D. White, PHILLIPS MURRAH P.C., Oklahoma City, Oklahoma, for Defendant/Petitioner, Dillards, Inc. Jay M. Wallace (pro hac vice), Alana Ackels (pro hac vice), BELL NUNNALY & MARTIN LLP, Dallas, Texas, Rabindranath Ramana, CALVERT LAW FIRM, Oklahoma City, Oklahoma, for Plaintiff/Respondent, Jonnie Yvonne Vasquez Bob Burke, Oklahoma City, Oklahoma, Patrick R. Wyrick, Office of the Oklahoma Attorney General, Oklahoma City, Oklahoma, for the State of Oklahoma Brandon Burton, Oklahoma City, Oklahoma, Kathleen G. Sumner, Greensboro, NC, Amici Curiae for Academic Experts in support of Respondent Vasquez

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Brandon Burton, Oklahoma City, Oklahoma, Daniel M. Dalmat, Daniel M. Rosenthal, JAMES & HOFFMAN, P.C., Washington, D.C., Amici Curiae for National Employment Law Project Larry Derryberry, Douglas A. Rice, DERRYBERRY & NAIFEH, LLP, Oklahoma City, Oklahoma, Amici Curiae for AIA, PCI and NAMIC in support of Respondent Vasquez WATT, J: ¶1 With the constitutionality of the Oklahoma Employee Injury Benefit Act, 85A O.S. Supp. 2014 §§201-213, squarely before this Court in the instant cause, we determine that we have authority to address the special law issues presented pursuant to the legislative directive contained in 85A O.S. Supp. 2014 §213(A)1 and under Robinson v. Fairview Fellowship Home for Senior Citizens, Inc., 2016 OK 42, 371 P.3d 477. The core provision of the Opt Out Act, 85A O.S. Supp. 2015 §2032 creates impermissible, unequal, disparate treatment of a select group of injured workers. Therefore, we hold that the Oklahoma Employee Benefit Injury Act, 85A O.S. 2014 §§201-213, is an unconstitutional special law under the Oklahoma Constitution, art. 2, §59.3 PROCEDURAL POSTURE ¶2 Vasquez, Dillard’s employee, injured her neck and shoulder as she lifted shoe boxes while working on September 11, 2014.4 On that date and on September 24th, she filed claims for benefits under Dillard’s Opt-Out plan. Dillards denied the claims on October 3 and 10, 2014, respectively. The employee appealed to the Workers’ Compensation Commission, filing a Notice of Claim for Compensation on December 5, 2014. ¶3 The employer sought removal to federal court on August 6, 2015 on grounds that the federal court had exclusive jurisdiction under the Employee Retirement Income Security Act (ERISA). The United States District Court for the Western District disagreed and remanded the cause to the Commission on September 30, 2015. The Commission heard arguments in the cause in February, issuing an order in the cause on September 26, 2015. It found that the Opt Out Act: 1) constituted an unconstitutional special law;5 2) denied equal protection to Oklahoma’s injured workers;6 and 3) denied injured workers the constitutionally protected right of access to courts.7

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¶4 On March 17, 2016, Dillard’s filed a petition for review with this Court. Extensive briefing ensued by the parties, the Attorney General,8 and various amici curiae. The most recent filing in the cause, the employee’s Submission of Supplemental Authority, occurred on the afternoon of July 30th. We issue today’s opinion in conjunction with the Legislature’s directive that appeals alleging constitutional challenges to the Opt Out Act should be expedited9 and in recognition that multiple cases concerning challenges similar to the one presented here have currently been stayed by the Commission. DISCUSSION ¶5 a. Constitutional issues are properly before this Court pursuant to the legislative mandate of 85A O.S. Supp. 2014 §213(A) and Robinson v. Fairview Fellowship Home for Senior Citizens, Inc., 2016 OK 42, 371 P.3d 477. ¶6 Dillard’s assertions that this Court lacks jurisdiction to hear the instant cause are unconvincing. In §213(A) of the Opt Out Act,10 the Legislature directs that whenever the constitutionality of the Act is challenged, the Supreme Court shall11 retain the appeal. Furthermore, we are instructed to expedite review. ¶7 We have recently determined in Robinson v. Fairview Fellowship Home for Senior Citizens, Inc., 2016 OK 42, 371 P.3d 477, that the Commission has no authority to determine the facial constitutionality of the Opt Out Act as a special law. Therefore, the Commission’s determinations of constitutionality were not authorized as a blanket strike of the Opt Out Act. ¶8 The portion of Robinson important to these proceedings is found at ¶14. It provides that “this Court has a duty to review the constitutionality of a challenged legislative enactment when presented with a justiciable case or controversy. . . .” We are presented with such a cause here. ¶9 At issue is a challenge to the constitutionality of the Opt Out Act. Robinson confirms that it is this Court’s responsibility to address the issue currently before us. Furthermore, the Legislature has directed us to do so in a timely manner. Therefore, we determine that issues related to the constitutionality of the Opt Out Act are properly before this Court.12 ¶10 b. The Opt Out Act is an unconstitutional special law, creating an impermisible select group of employees 1742

seeking compensation for work-related injuries for disparate treatment, in violation of art. 5, §59 of the Oklahoma Constitution. ¶11 Before addressing the various arguments of the parties, it is helpful to understand the test for determining whether a law violates the special law prohibition of art. 5, §59. Its terms are that: “Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.” Statutes facing an art. 5, §59 challenge are considered pursuant to a three-part test to determine constitutonal muster. First, is the law special or general? Second, if the law is special in nature, does a general law apply? And, finally, if a general law is not applicable, is the statute a permissible special law?13 ¶12 The first prong requires us to identify the class. If the statute relates to all persons or things within the class, it is a general law. Where the law singles out less than an entire class of similarly affected persons or things for different treatment, it is a special law. Under the second prong, the question is whether the legislation is susceptible of general treatment or if some special situation makes treatment by a general law impossible. Third, it must be determined whether the special law is so substantially related to a valid legislative objective that it will survive the constitutional challenge.14 ¶13 The above analysis was posited by this Court in Reynolds v. Porter, 1988 OK 88, 760 P.2d 818. We consider the arguments of the parties, in which many of the concerns of the Attorney General are subsumed, in making our determination as to whether the Opt Out is general or special in nature. ¶14. 1) The defined class for special law analysis is made up of injured employees. ¶15 Dillard’s contends that there is no disparate treatment of the class at issue in the Opt Out Act. It does so by alleging that the relevant stautorily-created class is composed of “all employers” rather than injured employees. Vasquez insists that the class at issue is that of “injured employees.” We consider the employer’s argument unconvincing and agree with the employee. ¶16 The employer relies on Grimes v. City of Oklahoma City, 2002 OK 47, 49 P3d 719 for the

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proposition that the defined class should be considered to be employers rather than employees. Grimes upheld, against a special law attack, the municipality’s right to determine the manner in which to support economically the schools within its corporate limits. In so doing, we recognized that the members of the class were the municipalities, all of which were given the same option. ¶17 Grimes is distiguishable on its facts and provides no assistance to the employer’s arguments. It did not address any issue related to the workers’ compensation scheme or rights among injured employees. Rather, it concerned the authority of municipalities to manage tax revenues in support of select public schools. In determining that no special law was involved and in defining the class at issue, the Grimes court looked to the title of the legislative act, “Municipal support of public school systems.” It determined that the title of the act, referring to municipalities, indicated that the class at issue was made up of all municipalities of the state and was general in nature. ¶18 Here, the title of the Opt Out Act makes no mention of employers. Rather, the legisation is entitled as the “Employee Injury Benefit Act.” Furthermore, the title of the Administrative Act refers to “workers” rather than employers. Just as the title of the act was considered to encompass the identified class in Grimes, it also serves as legislative intent here that the identified class is that of “injured employees.”15 ¶19 2) The Opt Out Act does not guarantee members of the subject class, all employees, the same rights when a work related injury occurs. Rather, it provides employers the authority to single out their injured employees for inequitable treatment. ¶20 The employer makes the rather incredible argument that the Opt Out Act provides a baseline of Core Coverage requirement in §203(B) guaranteeing individual injured employees equal treatment. Vasquez relies on the same statutory provision for the proposition that inequitable treatment is specifically allowed. We are convinced by the very language of the statutory provision that the employee’s position is viable. ¶21 Title 85A O.S. Supp. 2015 §203(B) provides: The benefit plan shall provide for payment of the same forms of benefits included in Vol. 87 — No. 25 — 9/24/2016

the Administrative Workers’ Compensation Act for temporary total disability, disfigurement, amputation or permanent total loss of use of a scheduled member, death and medical benefits as a result of an occupational injury, on a no-fault basis, and with dollar, percentage and duration limits that are at least equal to or greater than the dollar, percentage, and duration limits contained in §§45, 46, and 47 of this title. For this purpose, the standards for determination of average weekly wage, death beneficiaries, and disability under the Administrative Workers’ Compensation Act shall apply under the Oklahoma Employee Injury Benefit Act, but no other provision of the Administrative Workers’ Compensation Act defining covered injuries, medical management, dispute resolution or other process, funding, notices or penalties shall apply or otherwise be controlling under the Oklahoma Employee Injury Benefit Act, unless expressly incorporated. [Emphasis supplied.] ¶22 Rather than providing employees of qualified plan employers equal rights with those of employees falling within the Workers’ Compensation Act, the clear, concise, unmistakeable, and mandatory language16 of the Opt Out Act provides that, absent the Act’s express incorporation of some standard, such employers are not bound by any provision of the Workers’ Compensation Act for the purpose of: defining covered injuries; medical management; dispute resolution or other process; funding; notices; or penalties. The statutory language itself demonstrates that injured workers under the Opt Out Act have no protection to the coverage, process, or procedure afforded their fellow employees falling under the Administrative Workers’ Compensation Act. There is little question that §203 specifically allows the employers creating their own plans to include conditions for recovery making it more difficult for the injured employee falling within to recover for a work-related injury than a counterpart covered by the Administrative Act. ¶23 Analysis under the first prong of the three part test in determining the nature of a law as general or special in nature is accomplished. The class being that of “all employees” rather than “all employers” coupled with the reality that “all employees” are not guaranteed the same rights when injuries occur, we determine that the Opt Out Act is a special law.

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¶24 3) The applicable general law is the Administrative Workers’ Compensation Act. ¶25 The second prong of the test requires a determination of whether a general law applies. Dillard’s contends that there is no generally applicable legislative provision. Vasquez insists the general law exists in the form of the Workers’ Compensation Act. We agree with the employee. ¶26 There is undoubtedly a general law covering the issue of compensation for individuals injured during the course of their employment. Absent the existence of the Opt Out Act, all injured employees, not specifically excluded from the Workers’ Compensation Act’s coverage, could proceed to seek redress for workrelated injuries. The Administrative Workers’ Compensation Act defines, with enumerated exceptions, an “employee” as “any person in the service of an employer under any contract of hire or apprenticeship.”17 Section 3 of 85A O.S. Supp. 2014 provides that “every employer” and “every employee” shall be bound by the Administrative Act absent exclusivity enumerated in the Act. “Every” ordinarily means “any” or “all” and suggests a broad, expansive meaning inclusive in nature.18 There is no question that its subject is “general” in nature and that all employees covered by its provisions may seek relief thereunder. ¶27 3) The Opt Out Act is not a constitutionally permissive special law. ¶28 Dillard’s final contention is that even if the Opt Out Act is a special law, it is constitutionally permissible because the Act is substantially and reasonably related to a legitimate government objective. Some of the identified underlying goals posited by the employer include: providing a more effective system of identifying and treating workplace injuries; improving access to medical treatment; improving worker health and safety; and encouraging job creation. Dillard’s argues that the Legislature intended to accomplish these goals by giving employers the freedom to manage and administer the provision of benefits to their injured employees. Vasquez points to the general law as the Administrative Workers’ Compensation Act and argues that there is no distinctive characteristic which warrants treating less than all injured employees similarly. We agree with the employee’s reasoning. ¶29 We remain convinced that the employerenumerated goals of the Opt Out Act cannot 1744

save it from the constitutional challenge presented. This Court has previously made it clear we will not accept the invitation of employers to find a discriminatory state statute constitutional by relying on the interests of employers in reducing compensation costs.19 ¶30 This Court recently visited an argument similar to the one presented here in Maxwell v. Sprint PCS, 2016 OK 41, 369 P.3d 1079. The Maxwell employer insisted that deferral of permanent partial disability benefits to a subclass of injured workers under the Administrative Workers’ Compensation Act was a constitutionally permmissive special law. ¶31 In Maxwell, we recognized the Legislature’s authority to exclude entire classes of employees from coverage under the workers’ compensation system generally. Nevertheless, the Court also acknowledged that the Legislature was without power to vary the effect of an award by excluding one group of claimants from benefits accorded other recipients. In so doing, we relied upon the following statement from Grant v. Goodyear Tire & Rubber Co., 2000 OK 41, ¶10, 5 P.3d 594, 598, wherein this Court wrote: For a special law to be permissible, there must be some distinctive characteristic warranting different treatment and that furnishes a practical and reasonable basis for discrimination.... If there is neither a distinctive characteristic upon which a different treatment may reasonably be founded nor one which furnishes a practical and real basis for discrimination between the two groups within the class, the distinction becomes arbitrary and without relation to the subject matter. (citations omitted.) ¶32 The class at issue here is composed of workers seeking compensation for their workrelated injuries. No distinctive characteristic exists for the disparate treatment of injured employees simply upon the basis that the employer has opted out of the general workers’ compensation system. ¶32 The heart of the Opt Out Act is §203. Simple excision of the offending provision would eviscerate the very foundation of the Oklahoma Employee Injury Benefit Act. ¶33 The Attorney General argues that the Compensation Commission and, presumably, this Court, should either read §203 to provide identical benefits as found within the confines

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of the Administrative Act, eliminating the disparate treatment of the class, or merely sever the unconstitutional portion of the statute. Although we recognize that the Opt Out Act contains a severance provision providing for severance of any offending provision,20 the suggestion that the Act can be saved by simply requiring that qualified employers treat their employees exactly as the Administrative Act requires, would effectively frustrate any rational reason for an employer to go to the trouble and expense of developing a plan required to mirror the surviving statutory scheme. Such employers would be liable to the same extent as an employer having complied with the Administrative Act. CONCLUSION ¶34 A general law encompasses all of a class. A special law is one that rests on a false or deficient classification.21 We do not correct the Legislature nor do we take upon ourselves the responsibility of legislating by judicial fiat. However, we are compelled to apply Oklahoma’s Constitution.22 ¶35 Since the passage of the dual workers’ compensation system, this Court has been asked to rule on a multitude of challenges to the new scheme’s constitutionality. In each of those causes, we have begun with the premise that such statutory provisions are presumed to be, and should be construed so as to be, constitutional whenever possible. Often over vigorous special writings, the Court decided the causes on the narrowest grounds possible. Nevertheless, this cause squarely presents the issue of whether the Opt Out Act is an unconstitutional special law demonstrated by the language of a statutory provision which is the heart of the Act’s premise. As we consider this issue dispositive, we have not reached other constitutional challenges to the Opt Out Act based on denials of equal protection, due process, and access to courts. ¶36 The constitutionality of the Oklahoma Employee Injury Benefit Act, 85A O.S. 2014 §§201-213 is squarely before this Court in the instant cause. Therefore, we determine that we have authority to address the special law issues presented pursuant to the legislative directive contained in 85 O.S. Supp. 2014 § 213(A)23 and under Robinson v. Fairview Fellowship Home for Senior Citizens, Inc., 2016 OK 42, 371 P.3d 477. The core provision of the Opt Out Act, 85A O.S. Supp. 2015 sec. 203,24 creVol. 87 — No. 25 — 9/24/2016

ates impermissible, unequal, and disparate treatment of a select group of injured workers. Therefore, we hold that the Oklahoma Employee Benefit Injury Act, 85A O.S. 2014 §§201-213, is an unconstitutional special law under the Oklahoma Constitution, art. 2, §59.25 ¶37 This action is a direct attack on constitutional grounds pursued because the employee believed her rights were denied under an unconstitutional statutory provision. Neither the United States nor the Oklahoma Constitution delineates the effective date of judicial opinions. We are cognizant that there are a number of causes currently pending in the Commission which have been stayed because they concerned issues similar to those presented here. Therefore, this decision is to be given effect in the immediate cause, in the causes currently being challenged before the Commission and in the appellate pipeline, and prospectively to all future cases after the issuance of mandate.26 ¶38 The cause is remanded for proceedings consistent with the provision of the Court’s opinion. ORDER OF THE WORKERS’ COMPENSATION COMMISSION EN BANC VACATED; CAUSE REMANDED. REIF, C.J., COMBS, V.C.J. (by separate writing), KAUGER, WATT, EDMONDSON, and COLBERT, JJ. - CONCUR GURICH, J. (by separate writing) - CONCURS SPECIALLY WINCHESTER (by separate writing), and TAYLOR, JJ. - DISSENT COMBS, V.C.J., concurring specially, with whom Kauger and Colbert, JJ., join: ¶1 I concur in the majority’s determination that the Employee Injury Benefit Act (Opt Out Act), 85A O.S. Supp. 2014 §§ 200-213 is an unconstitutional special law within the meaning of Okla. Const. art. 5, § 59. Determining the special law issue to be dispositive, the majority declines to address other constitutional infirmities present in the Opt Out Act. ¶2 I write separately to emphasize that I would expand on the majority’s special law analysis and address other areas in which the Opt Out Act is constitutionally deficient. Specifically, in addition to being an unconstitutional special law because it subjects injured workers to disparate court procedure and process, the Opt Out Act fails to provide adequate

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due process protections. My reasons remain the same as those I set out previously in my separate writing in Coates v. Fallin, 2013 OK 108, 316 P.3d 924. GURICH, J., with whom COLBERT, J., joins, concurring specially: ¶1 The bottom line in the case before us is this: The state of Oklahoma can either allow an employer to opt out1 of the state’s workers’ compensation system entirely and lose exclusive remedy protections; OR the state can require an employer to provide coverage for work-place injuries under the state’s workers’ compensation system and be given the protections of exclusive remedy. Because the system as it stands now seeks to allow an employer to both opt out of the workers’ compensation system and still be provided with exclusive remedy protections, I concur with the majority in concluding that the Oklahoma Employee Injury Benefit Act (OEIBA)2 is inoperable as a matter of law and must be found unconstitutional in its entirety. However, I write separately to explain several additional concerns. Texas Opt-Out System vs. Oklahoma Opt-Out System ¶2 Texas has, since the inception of its workers’ compensation system, allowed employers to opt out.3 Under the Texas Workers’ Compensation Act (TWCA),4 an employer can choose whether or not to “subscribe” to workers’ compensation insurance.5 If an employer subscribes to workers’ compensation insurance under the TWCA, an injured employee “may recover statutorily-prescribed benefits without regard to the employer’s fault or the employee’s negligence.”6 “In exchange, the employee may not bring common-law claims against the subscribing employer.”7 Additionally, under the Texas system employees also have the option of opting out — ”an injured employee may retain the right to assert common-law claims against a subscribing employer if the employee timely elected in writing to waive workers’ compensation insurance coverage.”8 When an employee timely waives workers’ compensation insurance coverage, “the employer may raise all common-law defenses.”9 Thus, under the Texas system, participation in the workers’ compensation system is “voluntary and elective as to both employer and employee.”10 ¶3 However, the Texas system also gives an employer the option to not subscribe to workers’ compensation insurance at all, i.e. opt out.11 1746

If an employer provides no benefits for an onthe-job injury, the “[n]onsubscribing employers’ employees retain the right to bring personalinjury claims against their employers” in the courts.12 In defending against such claims, however, a nonsubscribing employer loses all traditional common-law defenses, thus, “encourag[ing] employers to subscribe and penaliz[ing] those who do not.”13 ¶4 In addition, employers in Texas who opt out can also establish an alternative benefit plan to provide certain benefits for on-the-job injuries. Importantly, such plans are not required to provide the same benefits as provided for in the TWCA, and the plans are not regulated in any way by the TWCA. Thus, “[w] hile some plans provide adequate coverage, others do not primarily because the State does not regulate the adequacy of the benefits received under the plans. A nonsubscribing employer has the unfettered discretion in determining the amount of benefits it will provide employees under an alternative plan.”14 Such alternative benefit plans are, generally speaking, covered by the Employee Retirement Income Security Act (ERISA), and do not “guarantee substantive benefits.”15 In Texas, injured workers seeking to recover benefits under such alternative plans may end up in federal court as such claims are removable under ERISA’s civil enforcement provision.16 ¶5 Under Oklahoma’s newly created workers’ compensation system, enacted under Title 85A and effective February 1, 2014,17 employers may continue to provide coverage for workplace injuries under the traditional no-fault workers’ compensation system, now governed by the Administrative Workers’ Compensation Act (AWCA).18 Employers are provided immunity from civil liability, and “[t]he rights and remedies granted to an employee subject to the provisions of the [AWCA] [are] exclusive of all other rights and remedies of the employee . . . .”19 ¶6 Employers may also “opt out” of the AWCA and instead be governed by the OEIBA.20 The newly enacted system requires employers to choose whether to provide coverage under the AWCA or to maintain an employee benefit plan under the OEIBA.21 Thus, unlike in Texas, an employer in Oklahoma cannot opt out of the workers’ compensation system entirely. An employer in Oklahoma who elects to “opt out” not only remains subject to the mandates of the OEIBA,22 but is also subject to the jurisdiction of the Workers’ Com-

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pensation Commission23 and certain regulations of the Oklahoma Insurance Commissioner.24 In addition, an employer who “opts out” under the OEIBA maintains exclusive remedy protections, and the exclusive remedy protections are “as broad as the exclusive remedy protections of Section 5 of [the AWCA], and thus preclude a covered employee’s claim against a qualified employer, its employees, and insurer for negligence or other causes of action.”25 Neither the AWCA nor the OEIBA allows an injured worker to opt out by waiving his or her employer’s workers’ compensation insurance coverage and retaining the right to assert common-law claims in court.26 Oklahoma’s opt-out system is an opt-out system in name only. The Dillard’s Employee Benefit Plan is an ERISA Plan ¶7 ERISA was enacted by Congress in 1974 and “is a comprehensive statute designed to promote the interests of employees and their beneficiaries in employee benefit plans.” Shaw v. Delta Airlines, Inc., 463 U.S. 85, 90 (1983). ERISA “imposes participation, funding, and vesting requirements on pension plans,” and “sets various uniform standards, including rules concerning reporting, disclosure, and fiduciary responsibility, for both pension and welfare plans.” Id. at 91. However, “ERISA does not mandate that employers provide any particular benefits.” Id. “Congress’ goal in passing ERISA was to replace the patchwork of state laws governing this area with a uniform body of federal law,” and “[o]ne of the tools Congress placed into ERISA to accomplish this goal was a preemption provision.” Noyola v. Oasis Car Wash, Inc., 220 F.Supp.2d 638, 641 (E.D. Tex. 2002). ERISA preempts “’any and all State laws insofar as they may now or hereafter relate to any employee benefit plan’ covered by ERISA.” Shaw, 463 U.S. at 91 (emphasis added). ¶8 In the case before us, the Dillard’s employee benefit plan at issue is an ERISA plan. Dillard’s asserted before the Commission that its employee benefit plan is a plan governed by ERISA because it includes both occupational benefits, as required by the OEIBA, and nonoccupational death benefits for employees injured while off the job.27 The Commission specifically found that the Dillard’s plan is an ERISA plan.28 When Dillard’s removed this case to federal court, it argued that the plan is an ERISA plan and governed by such because it “is a multi-benefit plan providing for enVol. 87 — No. 25 — 9/24/2016

hanced benefits” citing ERISA § 4(b)(3) and 29 U.S.C. § 1003(b)(3).29 The Dillard’s plan falls under the definition of an “employee welfare benefit plan” because it is a plan established or maintained for the purpose of providing participants or beneficiaries medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, or death.30 In addition, Dillard’s is the sponsor, administrator, and fiduciary for the Dillard’s plan (all terms specifically defined by ERISA),31 and Dillard’s denial of Respondent Vasquez’s claim in this case was “in accordance with ERISA Claim Regulations” under 29 C.F.R. 2560.503-1.32 Finally, Respondent Vasquez filed her claim “’seeking to enforce her rights under the terms of the Dillard’s Plan, and to clarify her rights to future benefits under the terms of the Dillard’s Plan,’ which tracks the express language of ERISA’s civil enforcement provision.”33 ¶9 In addition, § 211(B)(5) of the OEIBA indicates the Legislature intended for all employee benefit plans to be ERISA plans in order to comply with the OEIBA. Section 211(B)(5) of the OEIBA directs that in an appeal from an adverse benefit determination, “[t]he Commission en banc shall act as the court of competent jurisdiction under 29 U.S.C.A. Section 1132(e) (1), and shall possess adjudicative authority to render decisions in individual proceedings by claimants to recover benefits due to the claimant under the terms of the claimant’s plan, to enforce the claimant’s rights under the terms of the plan, or to clarify the claimant’s rights to future benefits under the terms of the plan.”34 Section 1132(e)(1) of Title 29 of the United States Code, as referenced above in § 211(B)(5) of the OEIBA, is the civil enforcement provision of ERISA that allows a participant in an ERISA plan to “recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.”35 Under § 1132(e)(1), an action brought to recover benefits under an ERISA plan may only be brought in a federal district court or a state court of competent jurisdiction.36 The OEIBA is not Preempted by ERISA ¶10 Because the Dillard’s Plan is an ERISA plan, the OEIBA is subject to preemption by ERISA.37 If ERISA preempts the OEIBA,38 this Court does not have jurisdiction to decide the constitutional issues presented in this case because Respondent Vasquez’s only recourse to recover benefits due her under the terms of

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the Dillard’s plan was by filing an action in a federal district court or a state court of competent jurisdiction, not in the Commission.39 This Court would have jurisdiction to decide the issues in the case but only in a perfected appeal from a state district court.40 However, as I discuss below, the OEIBA is not preempted by ERISA, and the issues in this case can be reviewed by this Court in an appeal pursuant to 85A O.S. Supp. 2013 § 211(B)(7). I agree with the majority that the Commission only had the power to strike down the OEIBA as it was unconstitutionally applied to Respondent Vasquez in this case.41 ¶11 ERISA preempts “’any and all State laws insofar as they may now or hereafter relate to any employee benefit plan’ covered by ERISA.” Shaw, 463 U.S. at 91 (emphasis added). Thus, under ERISA, a benefit plan must be a “covered employee benefit plan” for preemption to apply. See Dist. of Columbia v. Greater Wash. Bd. of Trade, 506 U.S. 125, 129 (1992). “Congress [has] explicitly exempted state workers’ compensation schemes from ERISA’s purview, leaving intact the states’ traditional regulation and oversight of this specialized system of insurance.” Combined Mgmt. Inc. v. Superintendent of Bureau of Ins. of State of Me., 22 F.3d 1, 4 (1st Cir. 1994) (internal citations omitted). Thus, certain ERISA plans are exempt from ERISA coverage if the plans are “maintained solely for the purpose of complying with applicable workmen’s compensation laws or unemployment compensation or disability insurance laws.”42 ¶12 Federal courts in Texas are the only courts that have addressed whether an employee benefit plan written to allow an employer to “opt out” of the state’s workers’ compensation system is an employee benefit plan “covered by ERISA” or whether the employee benefit plan falls within the exception to preemption reserved for state workers’ compensation plans.43 In Hernandez v. Jobe Concrete Products, Inc., 282 F.3d 360 (5th Cir. 2002), an employee injured his back in the course and scope of his employment. After he returned to work he alleged he was required to perform difficult manual labor in contravention of his doctor’s instructions and was forced to quit as a result. He sued his former employer in state court for unlawful retaliation, negligence, breach of contract, breach of the covenant of good faith and fair dealing, and intentional infliction of emotional distress. Employer removed the case to federal court alleging that 1748

the employee’s state law claims were preempted by ERISA because his claims related to an employee benefit plan. The district court dismissed the case, and on appeal, the U.S. Court of Appeals for the Fifth Circuit found that under the Texas workers’ compensation system, the employer was a “nonsubscriber” because the employer had elected not to carry insurance coverage under the TWCA, and instead, had elected to adopt its own occupational injury plan to cover on-the-job injuries. The court concluded that because employers, under Texas law, were not required to carry workers’ compensation insurance of any kind, the employer’s decision to adopt its own plan was not a decision clearly required by Texas law. Id. at 364. The court held that “[b]ecause the exemption in [29 U.S.C.] § 1003(b) was designed to allow states to control their workers’ compensation schemes, it should not apply where a ‘state voluntarily cede[d] control over certain plans by allowing employers to exist outside of the workers’ compensation system.’”44 ¶13 Hernandez is clearly distinguishable because unlike in Texas, compliance with either the AWCA or the OEIBA in Oklahoma is mandatory.45 Employers in Oklahoma must provide workers’ compensation coverage through either the AWCA or through an employee benefit plan written to comply with the OEIBA. An employer, under Oklahoma law, cannot choose to exist completely outside of the workers’ compensation system by providing no coverage at all for work-place injuries as is the case in Texas. Thus, an employee benefit plan written to comply with the OEIBA is a plan that must necessarily be maintained in order to comply with Oklahoma workers’ compensation laws.46 ¶14 In addition, Oklahoma’s opt-out system does not relinquish control of work-place injury claims to the courts. Employers who opt out under the OEIBA continue to maintain exclusive remedy protections, and employees are specifically precluded from bringing negligence or other causes of action against their employers in the court system. In addition, the Commission, not the state or federal courts, continues to exercise jurisdiction over work-place injury claims. The inclusion of § 211(B)(5) of the OEIBA47 provides additional evidence that Oklahoma’s opt-out system is not a true optout system. The Legislature cannot declare in one portion of the OEIBA that employee benefit plans are ERISA plans subject to the civil enforcement provision of ERISA and ERISA

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preemption, yet in another portion of the OEIBA, dictate that employers must follow certain procedures in administering such plans and continuing to subject employers to the jurisdiction of the Commission. Thus, the OEIBA continues to reflect the type of workers’ compensation laws traditionally exempted from ERISA coverage. ¶15 Finally, the state of Oklahoma continues to exercise control over employers who adopt employee benefit plans pursuant to the OEIBA. Although § 203 of the OEIBA provides that no provision of the AWCA defining covered injuries or medical management shall apply, that same section also requires opt-out plans to include certain forms of benefits on a no-fault basis with “dollar, percentage, and duration limits that are at least equal to or greater than the dollar, percentage, and duration limits” found in the AWCA.48 Additionally, although § 202 of the OEIBA provides that “neither the Workers’ Compensation Commission, the courts of this state, or any state administrative agencies shall promulgate rules or any procedures related to design, documentation, implementation, administration or funding of a qualified employer’s benefit plan,” § 202 also requires qualified employers to register their employee benefit plans with the state Insurance Commissioner and to comply with any rules promulgated by the Commissioner regarding such registration compliance.49 Section 204 also requires a qualified employer to either “self-fund or insure benefits payable under the benefit plan,” and mandates an employer to “secure compensation to covered employees.”50 ¶16 “Congress’ intention in crafting the § 1003(b)(3) exemption was to allow states to keep control over their workers’ compensation systems.”51 Because the state of Oklahoma continues to exercise control over the workers’ compensation system and does not allow employers to exist completely outside of that system, the exemption from ERISA coverage continues to apply. The Dillard’s plan in this case was maintained solely for the purpose of complying with Oklahoma’s workers’ compensation laws under 29 U.S.C. § 1003(b)(3), and ERISA preemption does not apply. The OEIBA is Unconstitutional ¶17 “Article V, section 46 [of the Oklahoma Constitution] is an unequivocal mandate to the Legislature. Under no circumstances is the Legislature allowed to pass a special law Vol. 87 — No. 25 — 9/24/2016

regarding one of the subjects listed in section 46.” Lafalier v. Lead-Impacted Cmtys. Relocation Assistance Trust, 2010 OK 48, ¶ 26, 237 P.3d 181, 192. Included within the list of subjects is a prohibition against “[r]egulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts, justices of the peace, sheriffs, commissioners, arbitrators, or other tribunals, or providing or changing the methods for the collection of debts, or the enforcement of judgments or prescribing the effect of judicial sales of real estate.” Okla. Const. art. 5, § 46 (emphasis added). ¶18 “’In a § 46 attack, the only issue to be resolved is whether a statute upon a subject enumerated in that section targets for different treatment less than an entire class of similarly situated persons or things.’” Zeier v. Zimmer, 2006 OK 98, ¶ 11, 152 P.3d 861, 866 (citing Reynolds v. Porter, 1988 OK 88, 760 P.2d 816). “The terms of art. 5, § 46 command that court procedure be symmetrical and apply equally across the board for an entire class of similarly situated persons or things.” Id., ¶ 13, 152 P.3d at 867. “The test is whether the provision fits into the structured regime of established procedure as part of a symmetrical whole. If an enactment injects asymmetry, the § 46 interdiction of special law has been offended.” Id. ¶19 In the case before us, the class of similarly affected persons is injured workers, and the AWCA establishes generally applicable procedures for awarding benefits to such workers. An injured worker proceeding under the AWCA would be subject to the following procedures governing the adjudication of benefits. Under the AWCA, an employee must report an injury to his or her employer within 30 days.52 Claims for compensation are heard by an administrative law judge who “shall hold a hearing on application of any interested party, or on its own motion.” 85A O.S. Supp. 2013 § 71(B). At the hearing, “the claimant and the employer may each present evidence relating to the claim,” and the evidence may include verified medical reports which shall be accorded such weight as may be warranted when considering all evidence in the case.” 85A O.S. Supp. 2013 § 71(C)(1). The administrative law judge “shall determine, on the basis of the record as a whole, whether the party having the burden of proof on the issue has established it by a preponderance of the evidence.” 85A O.S. Supp. 2013 § 71(C)(1)(b)(2). An injured

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worker may appeal the decision of an administrative law judge to the Commission. After holding a hearing, the Commission “may reverse or modify the decision only if it determines that the decision was against the clear weight of the evidence or contrary to law.” 85A O.S. Supp. 2013 § 78(A). Although an injured employee and his or her employer may settle the case at any time, they must “file a joint petition for settlement with the Commission.” 85A O.S. Supp. § 87. Such joint petition must be “approved by the Workers’ Compensation Commission or an administrative law judge,” and “[a]n official record shall be made by an official Commission reporter of the testimony taken to effect the Joint Petition.” 85A O.S. Supp. 2013 § 115. ¶20 In stark contrast, an injured worker proceeding under the OEIBA, and the Dillard’s plan specifically, is subject to the following procedures governing the adjudication of benefits. Under the Dillard’s plan, an injured employee must report an injury by the end of his or her work day. Administrative Record at 181. All claims are initially decided by a company-designated claims administrator. No hearing of any kind is held by the claims administrator regardless of whether the injured worker seeks an “urgent or non-urgent” “preservice claim for medical benefits” or whether the injured worker seeks a “post-service medical benefit, disability benefit, disfigurement benefit, occupational death benefit or nonoccupational death benefit claim.” Administrative Record at 191-93. The claims administrator is only required to “provide a written or electronic notice to the claimant” notifying him or her of any adverse benefit determination.53 ¶21 An injured employee may appeal an adverse benefit determination by the claims administrator to an appeals committee, which is a committee comprised of individuals selected by the company. Administrative Record at 149; 166. The injured worker may “submit written comments, documents, records, and other information relating to the claim for benefits,” and may request “reasonable access to, and copies of, all documents, records, and other information that is [r]elevant to the claimant’s claim for benefits (as determined by the Appeals Committee).” Administrative Record at 195. But again, the appeals committee holds no hearing and is only required to “provide notice to the claimant . . . of the Plan’s benefit Determination . . . .”54 1750

¶22 The Dillard’s plan also provides that “[e] very interpretation, choice, determination, or other exercise by the Claims Administrator or Appeals Committee of any power or discretion . . . shall be given the maximum deference provided by law and shall be conclusive and binding upon all parties having or claiming to have an interest under the Plan . . . .” Administrative Record at 188. Finally the Dillard’s plan provides that the appeals committee shall have final authority regarding any decision made with respect to the administration of the plan and that “[t]here shall be no de novo review by any arbitrator or court of any decision rendered by the Appeals Committee and any review of such decision shall be limited to determining whether the decision was so arbitrary and capricious as to be any abuse of discretion.” Id. Although the OEIBA allows an injured worker to appeal an adverse benefit determination to the Commission, the Commission can only “rely on the record established by the internal appeal process” and “[a] ny award by the administrative law judge or Commission shall be limited to benefits payable under the terms of the benefit plan . . . .”55 ¶23 In addition, at any time during the claims process, the claims administrator can perform a claim evaluation and demand a final claim settlement which releases the company from “any further known and unknown benefit and all other injury-related claims.” Administrative Record at 187. If an injured worker refuses to accept the claims administrator’s demand and unilateral final claim evaluation, “no further benefits will be payable” and the worker has no further recourse. Id. ¶24 The OEIBA is an impermissible special law because the procedures governing the adjudication of benefits under the OEIBA differ significantly from the procedures governing the adjudication of benefits under the AWCA.56 And again, because employers are not truly allowed to opt out of the workers’ compensation system and remain subject to the jurisdiction of the Commission, such differential treatment cannot withstand the constitutional prohibitions of art. 5, § 46. The OEIBA is an unconstitutional special law.57 Severability ¶25 Dillard’s has requested that if the Court finds the OEIBA unconstitutional, any unconstitutionality be remedied by striking § 209(A), the exclusive remedy provision of the OEIBA.

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Dillard’s argues that striking exclusive remedy would allow employees, whose employers have opted out, to seek recourse for workplace injuries through private causes of action in the court system. But § 213 of the OEIBA — the Invalidity Clause — specifically provides that if “this act, or any part thereof, is declared unconstitutional or unenforceable, it is specifically intended that . . . [t]he rights and obligations of a qualified employer and its employees shall be subject to the exclusive remedy provisions of Section 5 of [the AWCA] . . . .”58 The Legislature has clearly expressed its intent to not allow workers’ compensation claims to be adjudicated in the courts if the OEIBA is found unconstitutional. In addition, we cannot presume the Legislature would have enacted the remaining provisions of the OEIBA were this Court to sever all of its invalid portions.59 Thus, the only remedy is to strike the OEIBA in its entirety.60 Injured employees are not left without a remedy because under § 213 employers who have “opted-out” must still provide workers’ compensation benefits to their employees to the extent the employer “would be liable to employees in compensation for such injuries under the [AWCA].”61 Conclusion ¶26 Workers’ compensation “is a mutual compromise in which the employee relinquishes his/her right to sue for damages sustained in job-related injuries[,] and the employer accepts no-fault liability for a statutorily prescribed measure of damages.” Evans & Assocs. Utility Srvcs. v. Espinoza, 2011 OK 81, ¶ 14, 264 P.3d 1190, 1195. “[W]orkers’ compensation statutes were designed to provide the exclusive remedy for accidental injuries sustained during the course and scope of a worker’s employment . . . .” Parret v. UNICCO Serv. Co., 2005 OK 54, ¶ 8, 127 P.3d 572, 575 (emphasis added). “[E] xclusivity is at the heart of the essential Grand Bargain between employers and employees . . . [and] is workers’ compensation.”62 ¶27 “[T]his Court has long recognized that the protection of employees from the hazards of their employment is a proper subject for legislative action . . . .” Coates v. Fallin, 2013 OK 108, ¶ 2, 316 P.3d 924, 925. The Legislature, in exercising such power, is free to eliminate the workers’ compensation system entirely, abolish exclusive remedy protections for employers, and leave work-place injury claims to the courts. However, the Legislature is not free to substantially reduce benefits for some Vol. 87 — No. 25 — 9/24/2016

injured workers under the guise of an “opt-out” system and force such injured workers to remain within the system through the use of exclusive remedy. I concur with the majority that the OEIBA is unconstitutional in its entirety. WINCHESTER, J., with whom Taylor, J., joins, dissenting: ¶1 I respectfully dissent. The majority opinion emphasizes that statutory provisions are presumed constitutional, that the Court’s function isn’t to correct the Legislature, and that the Court should rule on the narrowest grounds possible. Unfortunately, the majority’s result violates all three of these basic tenets. Neither the majority or concurring opinions, nor the Commission set forth or address the specific facts in this case, a simple undertaking which would allow the Court to make a narrow ruling that preserves the integrity of the Opt Out Act and avoids a resort back to the traditional system the Legislature sought to avoid. ¶2 At the heart of this case was whether Vasquez, the employee, should receive benefits for a preexisting condition. In September, 2014, Vasquez injured her shoulder/upper neck while at work for Dillard’s. Dillard’s provided coverage for most of her treatment under Dillard’s Plan. Vasquez submitted a claim for an MRI in September, 2015. Dillard’s sought the opinions of two doctors to review Vasquez’s medical files and they determined her injury was the result of a preexisting condition. Dillard’s denied the claim under the Plan and informed Vasquez of her right to appeal, which she did. The appeal went before Dillard’s Appeals Committee and an independent medical examination of her file was performed. That opinion also found Vasquez’s claim should be denied as her injury was both a preexisting condition and a degenerative injury. Vasquez then appealed to the Workers’ Compensation Commission. Rather than addressing the facts of the case, the Commission went straight to the heart of the Opt Out Act and ruled that it was facially unconstitutional. Dillard’s appealed to this Court but the majority, like the Commission, skirted the facts in its mission to find the entire Opt Out Act an unconstitutional, special law. ¶3 I would not strike the Opt Out Act but, instead, I would require the Commission to determine whether, under the facts presented, the employee was denied benefits under the Dillard’s plan that she otherwise would have

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received under the Administrative Workers’ Compensation Act. If the employee would not have been entitled to benefits under either system, as urged by Dillard’s, then this becomes a much more straightforward review of a denial of benefits. I have no trouble concluding that if specific sections of Dillard’s plan do not meet the requirements of the Opt Out Act then those provisions should be brought in line with the Act, as should any other plan that fails to meet such standards. However, the majority fails to narrowly tailor its ruling and instead, with a broad sweep of its brush, erases the entire Opt Out Act, leaving employees and their employers without a clear path to enforce their respective remedies or defenses. ¶4 The validity of Vasquez’s claim was never entertained. Because the Administrative Workers’ Compensation Act also prohibits recovery for preexisting and/or degenerative conditions, 85A O.S.2013 §§ 2(9)(b)(1), 2(9)(b)(6), 36, it appears that both Acts would have denied her claim. Instead of ruling on these narrow, factual grounds, the majority unnecessarily ventures into the constitutionality of the Opt Out Act and improperly strikes it down based upon hypothetical events. ¶5 As I have said in previous cases, legislation requires some compromise and with a system as complex and comprehensive as workers’ compensation, this Court should adopt a more deferential, case-by-case ap-proach. All new legislation needs fine-tuning, either by legislative amendment or court direction. Here, the Court has provided no guidance for employees, or their employers, as to where a cause of action should be pursued if the Opt Out Act ceases to exist. Further, other employers with plans under the Opt Out Act that have met or exceeded the Acts’ terms will never get the opportunity to have the validity of their plans tested. I would remand the matter for determination on the factual issues before resorting to wiping out the Opt Out Act. WATT, J: 1. Title 85A O.S. Supp.2014 §213(A), see note 8, infra. 2. Title 85A O.S. Supp. 2015 §203(B) provides “The benefit plan shall provide for payment of the same forms of benefits included in the Administrative Workers’ Compensation Act for temporary total disability, disfigurement, amputation or permanent total loss of use of a scheduled member, death and medical benefits as a result of an occupational injury, on a nofault basis, and with dollar, percentage and duration limits that are at least equal to or greater than the dollar, percentage, and duration limits contained in Sections 45, 46, and 47 of this title. For this purpose, the standards for determination of average weekly wage, death beneficiaries, and disability under the

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Administrative Workers’ Compensation Act shall apply under the Oklahoma Employee Injury Benefit Act, but no other provision of the Administrative Workers’ Compensation Act defining covered injuries, medical management, dispute resolution or other process, funding, notices or penalties shall apply or otherwise be controlling under the Oklahoma Employee Injury Benefit Act, unless expressly incorporated.” [Emphasis supplied.] 3. The Okla. Const. art. 5, §59 providing: “Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.” We do not address whether the Opt Out Act might violate another constitutional special laws provision. See, the Okla. Const. art. 5, §46 providing in pertinent part: The Legislaure shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing: . . . Regulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts . . .” 4. We express no opinion on the merits of the employee’s claim. Rather, the issue is left to the Commission on remand. In addition, our holding that the Opt Out Act is unconstitutional eliminates the necessity of enumerating the multiple ways in which Dillard’s plan and its coverage provisions are more restrictive or different from those included in the Administrative Act. 5. The Okla. Const. art. 5, §§59 and 46, see note 3, supra. 6. Fair School Finance Council v. State, 1987 OK 114, ¶ 54, 746 P.2d 1135, 1148; McKeever Drilling Co. v. Egbert, 1934 OK 763, ¶15, 40 P.2d 32, 35-36. The terms of §7 are: “No person shall be deprived of life, liberty, or property, without due process of law.” 7. The Okla. Const. art. 2, §6 providing in pertinent part: “The courts of this state . . . shall be open to every person and justice . . . shall be administered without sale. . . .” 8. Title 12 O.S. 2011 §1653 (c) 9. Title 85A O.S. Supp. 2014 §213(A) providing: “In any action brought to challenge, in whole or in part, the constitutionality of this act, any party to such action may take a direct appeal from the decision of any lower court to the Supreme Court and the Supreme Court shall retain the appeal. The Supreme Court on an expedited basis shall consider the appeal.” 10. Id. 11. Generally, the use of “shall” signifies a command. Zeier v. Zimmer, Inc. 2006 OK 98, fn. 13, 152 P.3d 861; Cox v. State ex rel. Oklahoma Dept. of Human Services, 2004 OK 17, ¶27, 87 P.3d 607, 618; United States through Farmers Home Admin. v. Hobbs, 1996 OK 77, ¶7, 921 P.2d 338. Nevertheless, there may be times when the term is permissive in nature. Cox v. State ex rel. Oklahoma Dept. of Human Services, this note, supra; Minie v. Hudson, 1997 OK 26, ¶27, 934 P.2d 1082; Texaco, Inc. v. City of Oklahoma City, 1980 OK 169, ¶9, 619 P.2d 869. 12. Initially, Dillard’s asserted that the Court lacked the authority to address the constitutional issues on grounds that the cause was governed by ERISA and that the federal law preempted the Workers Compensation Act. The employer sought removal which was denied by the United States District Court for the Western District of Oklahoma. Its order provides in pertinent part at page 3 (located at p. 122 of the record): “. . . The court concludes that the OIEBA (sic) is part of Oklahoma’s statutory scheme governing occupational injuries and workplace liability; in other words, the OIEBA (sic) is part of Oklahoma’s statutory scheme governing workmen’s compensation. The court further concludes that this action arises under the workmen’s compensation laws of Oklahoma. Accordingy, 28 U.S.C. §1445(c) makes this action nonremovable. The fact that the plan under which plaintiff claims may be (and is presumed to be, for present purposes) an ERISA plan, does not change these conclusions. . . .” To the extent that issues are not briefed, they are considered waived. Rouse v. Oklahoma Merit Protection Comm’n, 2015 OK 7, fn. 2, 345 P.3d 366; Johnson v. Ford Motor Co., 2002 OK 24, fn.2, 45 P.3d 86; Burrows v. Burrows, 1994 OK 129, ¶ 3, 886 P.2d 984. 13. Reynolds v. Porter, 1988 OK 88, ¶5, 760 P.2d 816. 14. Id. 15. Clearly, the class at issue under the Workers’ Compensation Act, is also defined as that of injured employees. Recently, in Torres v. Seaboard Foods, LLC, 2006 OK 20, ¶47, 373 P.3d 1057, we declined the employer’s invitation to adopt a distinction between the “class of employees” similarly injured under the Administrative Workers’ Compensation Act. 16. See, note 11, supra, and the cases cited therein.

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17. Title 85A O.S. Supp. 2013 § 2(8)(a). 18. Coffee v. Henry, 2010 OK 4, ¶3, 240 P.3d 1056. 19. Torres v. Seaboard Foods, Inc., see note 15, supra. 20. Title 85A O.S. Supp. 2014 §213(B)(1) providing in pertinent part: “. . . To the extent this act, or any part thereof, is declared to be unconstitutional or unenforceable, it is specifically intended that: 1. For partial invalidity of this act, where any part thereof, is declared to be unconstitutional or invalid, the same shall not affect the validity of the act as a whole, or any part thereof other than the part so decided to be unconstitutional or invalid . . .” 21. Zeier v. Zimmer, see note 11, supra; Jack v. State, 1937 OK 384 ¶8, 82 P.2d 1033; Barrett v. Board of Comm’rs of Tulsa County, 1939 OK 68, ¶ 0, 90 P.2d 442. 22. Zeier v. Zimmer, see note 11, supra; Hovat v. State ex rel. Dept. of Corrections, 2004 OK CIV APP 59, ¶10, 95 P.3d 190, cert. denied, 2004 OK 52, 94 P.3d 80, released for publication by order of the Supreme Court of the State of Oklahoma (2004). 23. Title 85A O.S. Supp.2014 sec. 213(A), see note 9, supra. 24. Title 85A O.S. Supp. 2015 sec. 203, see note 2, supra. 25. The Okla. Constitution art. 5, §59, see note 1, supra. 26. DuLaney v. Oklahoma State Dept. of Health, 1993 OK 113, ¶20, 868 P.2d 676, 685.

GURICH, J., with whom COLBERT, J., joins, concurring specially: 1. Texas and Oklahoma are the only states to date that have enacted “opt-out” systems. Several states, including Tennessee and South Carolina, have considered opt-out legislation in the past few years but to date, no other state has enacted an opt-out system. See Jennifer C. Jordan, Opt Outs to Workers’ Compensation: The Real Disconnect in What is Being Said and What is Being Implemented, LexisNexis Legal Newsroom Workers Compensation Law, Jan. 22, 2016. This same article notes that “[s]tates such as Arizona, Indiana, Georgia, Arkansas, Wisconsin and West Virginia were all mentioned . . . as potentially considering similar legislation.” Id. 2. See 85A O.S. Supp. 2013 §§ 200-213. The Legislature enacted the OEIBA in 2013, and the Act went into effect on February 1, 2014. Respondent Vasquez was injured on September 11, 2014, and thus, the parties agree that the 2013 Act applies in this case. See Petitioner Dillard’s, Inc.’s Brief-in-Chief at 8; Attorney General’s Brief on the Merits of the Constitutional Claims at n.2; Respondent’s Brief-in-Chief at n.2. 3. Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, 552 (Tex. 2001) (“[F] rom its inception, participation in the Act has been voluntary.”). See also Middleton v. Tex. Power & Light Co., 185 S.W. 556, 559 (Tex. 1916). 4. See Tex. Lab. Code § 401.001 et seq. 5. See Lawrence, 44 S.W.3d at 556 (Baker, J., dissenting). 6. Id. at 555 (citing Tex. Lab. Code §§ 406.031; 406.033 and Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000)). 7. Id. (citing James v. Vernon Calhoun Packing Co., 498 S.W.2d 160, 162 (Tex. 1973)). 8. Id. (citing Tex. Lab. Code § 406.034(b)). 9. Id. (citing Tex. Lab. Code § 406.034(d)). 10. Id. at 552 (majority op.) (citing Paradissis v. Royal Indem. Co., 507 S.W.2d 526, 529 (Tex. 1974)). 11. Id. at 555 (Baker, J., dissenting) (citing Tex. Lab. Code § 406.002). 12. Id. (citing Tex. Lab. Code § 406.033). 13. Id. (citing Tex. Lab. Code § 406.033(a) and Kroger Co., 23 S.W.3d at 349). 14. Phil Hardberger, Texas Workers’ Compensation: A Ten-Year Survey — Strengths, Weaknesses, and Recommendations, 32 St. Mary’s L.J. 1, 7 (2000). 15. Gobeille v. Liberty Mut. Ins. Co., 136 S.Ct. 936, 943 (2016). ERISA seeks only “to make the benefits promised by an employer more secure by mandating certain oversight systems and other standard procedures.” Id. 16. See 29 U.S.C. § 1132(e)(1). See also Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66-67 (1987). 17. Senate Bill 1062 was enacted during the 2013 legislative session and repealed the Workers’ Compensation Code. Enacted in its place in Title 85A was the Administrative Workers’ Compensation Act (§§ 1-125), the Oklahoma Employee Injury Benefit Act (§§ 200-213), and the Workers’ Compensation Arbitration Act (§§ 300-328). Section 400 dissolved the Workers’ Compensation Court. Terms used in the AWCA are referenced in the OEIBA, and § 201 of the OEIBA specifically directs that “[u]nless otherwise defined in this section, defined terms in the [AWCA] shall have the same meaning in this act.” 85A O.S. Supp. 2013 § 201(B). 18. See 85A O.S. Supp. 2013 §§ 1-125. 19. 85A O.S. Supp. 2013 § 5.

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20. 85A O.S. Supp. 2013 §§ 200-213. 21. See 85A O.S. Supp. 2013 § 210(B) (“An employer who is not a qualified employer shall comply with the provisions of the [AWCA].).” 22. See, e.g., 85A O.S. Supp. 2013 § 203(B) (“The benefit plan shall provide for payment of the same forms of benefits included in the [AWCA] for temporary total disability, temporary partial disability, permanent partial disability, vocational rehabilitation, permanent total disability, disfigurement, amputation or total loss of use of a scheduled member, death, and medical benefits as a result of an occupational injury on a no-fault basis, and with dollar, percentage, and duration limits that are at least equal to or greater than the dollar, percentage, and duration limits contained in [the AWCA]. . . .”). 23. As discussed in more detail below, the OEIBA allows the Commission to review an adverse benefit determination by an opt-out employer. 85A O.S. Supp. 2013 § 211. 24. The OEIBA requires a qualified employer to either “self-fund or insure benefits payable under the benefit plan,” but such employer must “secure compensation to covered employees.” 85A O.S. Supp. 2013 § 204(A-B). An employer who fails to fulfill such requirements “is not relieved of the obligation for compensation to a covered employee.” 85A O.S. Supp. 2013 § 204(D). In addition, “[a]n employer that has elected to become a qualified employer . . . shall notify the Insurance Commissioner in writing of the election and the date the election is to become effective . . . and [s]uch qualified employer shall pay the Commissioner an annual nonrefundable fee of [$1,500.00] on the date of filing written notice and every year thereafter.” 85A O.S. Supp. 2013 § 202(B). 25. 85A O.S. Supp. 2013 § 209. 26. I discuss the Texas opt-out system to emphasize the fact that employers who completely opt out of the state workers’ compensation system are subject to tort liability in a court system and no longer retain exclusive remedy protections. Whether a system similar to the Texas opt-out system is constitutional under the Oklahoma Constitution is an open question and not the question before the Court in this case. 27. Record on Appeal at 251. 28. Id. 29. Record on Appeal at 101. 30. Section 1002 of ERISA defines an “employee welfare benefit plan” broadly to include: [A]ny plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 186(c) of this title (other than pensions on retirement or death, and insurance to provide such pensions). 29 U.S.C. § 1002. 31. Record on Appeal at 104. 32. Record on Appeal at 105. 33. Record on Appeal at 101. 34. 85A O.S. Supp. 2013 § 211(B)(5). Section 211(B)(5) was amended in 2015 to provide: 5. If any part of an adverse benefit determination is upheld by the committee, the claimant may then file a petition for review with the Commission within one (1) year after the date the claimant receives notice that the adverse benefit determination, or part thereof, was upheld. The Commission shall appoint an administrative law judge to hear any appeal of an adverse benefit determination as a trial de novo. The Commission shall prescribe additional rules governing the authority and responsibility of the parties, the administrative law judge and the Commission during the appeal processes. The administrative law judge and Commission shall act as the court of competent jurisdiction under 29 U.S.C.A. Section 1132(e)(1), and shall possess adjudicative authority to render decisions in individual proceedings by claimants to recover benefits due to the claimant under the terms of the claimant’s plan, to enforce the claimant’s rights under the terms of the plan, or to clarify the claimant’s rights to future benefits under the terms of the plan[.] 85A O.S. Supp. 2015 § 211(B)(5). 35. 29 U.S.C. § 1132(a)(1)(B). 36. Section 1132(e)(1) provides in its entirety: (e) Jurisdiction

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(1) Except for actions under subsection (a)(1)(B) [to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan] of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, fiduciary, or any person referred to in section 1021(f)(1) of this title. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under paragraphs (1)(B) and (7) of subsection (a) of this section. 29 U.S.C. § 1132(e)(1). 37. The practical effects of ERISA preemption in this case cannot be understated. Amicus Curiae in this case summarizes such effects as follows: [O]nce a ‘qualified’ employer’s Benefit Plan is approved under §203 as an ERISA Benefit Plan, the State is completely preempted from exercising any authority over the design, documentation, implementation, administration, or funding of the ERISA Benefit Plan relating to on-the-job injuries sustained by Oklahoma citizens. . . . Thus, ERISA cannot be used to force Benefit Plans to provide injured workers the same benefits as mandated by the AWCA. .... Once an ERISA Benefit Plan satisfies § 203, state authority terminates. ERISA Benefit Plans would have unfettered ‘discretion’ to impose significant restrictions and limitations on claims. Disputes which are the subject of an ERISA Benefit Plan could be subject to federal court jurisdiction, as provided by ERISA, with a standard of review that is inferior to that for the claim of an injured worker whose employer has not opted-out. . . . AIA, PCI and NAMIC’s, Amicus Curiae Brief in Support of Respondent, Vasquez, and in Favor of Affirmance at 5; 8 (citing Nance v. Sun Life Assurance Co. of Canada, 294 F.3d 1263, 1269 (10th Cir. 2002)) (emphasis added). 38. Other scholarship explains the consequences of ERISA preemption as follows: Because ERISA itself does not contain any substantive requirements for benefit levels — it merely requires that plans deliver what they promise to deliver — ERISA preemption is substantively empty. Handling payment of benefits under an ERISA plan means that employers would in effect be released from complying with any state-mandated substantive level of workers’ compensation benefits. While an alternative plan might provide benefit levels that are substantively commensurate with state levels, it would not be required to do so as a matter of law. In effect, a previously mandatory benefit — one that was provided in exchange for relinquishment of tort rights — will have been converted to a discretionary benefit of the type ERISA was meant to regulate. Michael C. Duff, Are Workers’ Compensation “Alternative Benefit Plans” Authorized by State Opt-Out Schemes Covered by ERISA?, 45 Brief 22, 23 (Spring 2016) (emphasis added). The Commission concluded that the Dillard’s plan in this case is an ERISA plan, but because the plan “include[d] non-occupational death benefits, in addition to the benefits required under Section 203 of the Opt-Out Act, it does not fall within the ERISA exemption for plans ‘maintained solely for the purpose of complying with applicable . . . workmen’s compensation laws . . . .’” Record on Appeal at 251. The Commission’s order recently issued in In re Claim of: Alexis L. Foster, CM-2016-01539K, and filed as supplemental authority in this case, sheds further light on the Commission’s interpretation of ERISA as it applies in this case. In Foster, the Commission concluded that “[b]ecause a state cannot regulate an ERISA Plan, the Commission was not free to re-write Dillard’s Plan by removing the offending definitions, which were authorized by the unconstitutional provision of the Opt-Out Act. Nor could the Commission decide the case on the basis of its re-writing of the Plan.” Submission of Supplemental Authority, In re Claim of: Alexis L. Foster, CM-2016-01539K, Commission Order at 4. But the consequences of ERISA preemption are much more farreaching. If ERISA preempts the OEIBA, the Legislature cannot, among other mandates, require an alternative benefit plan to provide for payment of the same forms of benefits included in the AWCA. If ERISA preempts the OEIBA, the Legislature cannot provide exclusive remedy protections to employers who adopt such alternative benefit plans, and the Legislature cannot mandate that an opt-out employer provide minimum appeal rights, including an appeal to the Commission. In all likelihood, if ERISA preemption applies, the Legislature cannot

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require qualified employers to register their employee benefit plans with the state Insurance Commissioner or comply with any rules promulgated by the Commissioner regarding such registration compliance. 39. The Legislature’s attempt to make the Commission a “court of competent jurisdiction” under ERISA’s civil enforcement provision found in 29 U.S.C. § 1132(e)(e)(1) is invalid. In enacting the AWCA, the Legislature repealed Title 85 — the previous Workers’ Compensation Code, which created and authorized the Workers’ Compensation Court to function as a court of record. However, the Workers’ Compensation Court was never a court of general jurisdiction and only had jurisdiction to hear and decide cases involving work-related injuries. The Commission remains a body with limited jurisdiction. Administrative law judges appointed by the Commission replaced Article 7 judges serving on the Workers’ Compensation Court. See 85A O.S. Supp. 2013 §§ 19; 27; 400. The Commission and its administrative law judges have only quasi-judicial power consistent with any other administrative agency. More importantly, the expressed intent of the AWCA was to replace the Workers’ Compensation Court, a court of record, with an administrative system. Provisions throughout Title 85A make clear that the Commission is an executive branch agency for all purposes and is not a court (with the full power of the judiciary) under any circumstances. Section 19(A) of the AWCA creates the Workers’ Compensation Commission, which is “an executive agency of the State of Oklahoma. . . .” 85A O.S. Supp. 2013 § 19(A). Section 201 of the OEIBA specifically provides that the “’Commission’” when referred to in the OEIBA, “means the Workers’ Compensation Commission under the Administrative Workers’ Compensation Act.” 85A O.S. Supp. 2013 § 201(A)(2) (emphasis added). 40. The Commission is not an intermediate appellate court established by the Legislature under Art. 7, § 1 of the Oklahoma Constitution for any purpose. 41. The Commission did not have the power to declare the OEIBA facially unconstitutional in the case before us. See Robinson v. Fairview Fellowship Home for Senior Citizens, Inc., 2016 OK 42, ¶ 15, 371 P.3d 477, 484. 42. 29 U.S.C. § 1003(b)(3) (emphasis added). Section 1003 of Title 29, entitled “Coverage,” provides in part: (b) The provisions of this subchapter shall not apply to any employee benefit plan if — (1) such plan is a governmental plan (as defined in section 1002(32) of this title); (2) such plan is a church plan (as defined in section 1002(33) of this title) with respect to which no election has been made under section 410(d) of Title 26; (3) such plan is maintained solely for the purpose of complying with applicable workmen’s compensation laws or unemployment compensation or disability insurance laws; (4) such plan is maintained outside of the United States primarily for the benefit of persons substantially all of whom are nonresident aliens; or (5) such plan is an excess benefit plan (as defined in section 1002(36) of this title) and is unfunded. 29 U.S.C. § 1003(b) (emphasis added). 43. As discussed above, prior to Oklahoma, Texas is the only state to have enacted an opt-out system. As one scholar has noted, however, the cases decided by the federal courts in Texas arose in a period in which there was no sense that alternative plans might threaten to supplant traditional workers’ compensation systems. In effect, different questions were being answered than the one being asked now. Will alternative benefit plans systematically deprive injured workers of adequate benefits for work-related injuries, thereby creating the potential for federal involvement in an area that has historically been exclusively a matter of state regulation? Alternative plans create the potential for shifting costs through undercompensation of workplace injuries by less generous private plans to federal programs, and may additionally transfer disputes over the compensability of workplace injuries to federal courts. Duff, supra note 38, at 23-24. 44. Id. See also Rojas v. DAJ Enter. Inc., 2001 WL 682223, at *3 (W.D. Tex. 2001) (concluding that “[i]n constructing a workers’ compensation scheme that offers employers a choice between choosing to subscribe to workers’ compensation insurance and choosing not to do so, the Texas scheme foregoes the standard mandatory workers’ compensation system”); Guilbeaux v. 3927 Found. Inc., 177 F.R.D. 387, 393 (E.D. Tex. 1998) (concluding that “[i]f an employer is allowed to operate outside of the workers’ compensation system, as employers in Texas are allowed to do, claims against those employers are left to the courts,” and “[t]hus, the State of Texas has fashioned its workers’ com-

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pensation scheme in such a way as to forgo control over injury or disability claims lodged against non-subscribing employers”). 45. Section 210 of Title 85A provides that “[a]n employer who is not a qualified employer [under the OEIBA] shall comply with the provisions of the [AWCA].” 85A O.S. Supp. 2013 § 210 (emphasis added). 46. Two federal district courts in Texas have held that whether or not an employer opted into the TWCA, such choice was made solely to comply with the TWCA, and therefore, ERISA preemption did not apply, providing additional support for the conclusion that the OEIBA is not preempted by ERISA. See Walker v. Health Benefit Mgmt. Cost Containment, Inc., 860 F.Supp. 1163 (N.D. Tex. 1994); Foust v. City Ins. Co., 704 F.Supp. 752 (W.D. Tex. 1989). 47. Section 211(B) provides in relevant part: The benefit plan shall provide the following minimum appeal rights: 5. If any part of an adverse benefit determination is upheld by the committee, the claimant may then file a petition for review with the Commission within one (1) year after the date the claimant receives notice that the adverse benefit determination, or part thereof, was upheld. The Commission shall appoint an administrative law judge to hear any appeal of an adverse benefit determination as a trial de novo. The Commission shall prescribe additional rules governing the authority and responsibility of the parties, the administrative law judge and the Commission during the appeal processes. The administrative law judge and Commission shall act as the court of competent jurisdiction under 29 U.S.C.A. Section 1132(e)(1), and shall possess adjudicative authority to render decisions in individual proceedings by claimants to recover benefits due to the claimant under the terms of the claimant’s plan, to enforce the claimant’s rights under the terms of the plan, or to clarify the claimant’s rights to future benefits under the terms of the plan . . . . 85A O.S. Supp. 2013 § 211(B)(5). 48. 85A O.S. Supp. 2013 § 203. 49. 85A O.S. Supp. 2013 § 202. 50. 85A O.S. Supp. 2013 § 204. 51. Guilbeaux, 177 F.R.D. at 393-94. Congress also expressed its intent to keep federal courts out of state workers’ compensation systems by preventing removal of “[a] civil action in any State court arising under the workmen’s compensation laws of such State . . . .” 28 U.S.C. § 1445(c). In the case before us, Dillard’s attempted to remove this case to federal court. The federal court specifically relied on this provision in remanding this case to the Commission, finding that “the O[EI]BA is part of Oklahoma’s statutory scheme governing occupational injuries and workplace liability; in other words, the O[EI]BA is part of Oklahoma’s statutory scheme governing workmen’s compensation.” Record on Appeal at 122. 52. Form CC-Form-1A provides that “[u]nless oral or written notice is given to the employer within thirty (30) days, the claim for compensation may be forever barred.” Forms, Oklahoma Workers’ Compensation Commission, https://ok.gov/wcc/Forms/index.html (last visited Aug. 18, 2016). Section 69 of the AWCA provides that a claim for compensation must be filed with the Commission “within one (1) year from the date of injury.” 85A O.S. Supp. 2013 69(A)(1). 53. Administrative Record at 193. The notice of adverse benefit determination must include certain requirements including, among other requirements, “a description of the Plan’s review procedures,” and the “specific reason or reasons for the Adverse Benefit Determination.” Administrative Record at 194. 54. Administrative Record at 195. As discussed above, the OEIBA requires the Dillard’s Plan to provide such “minimum appeal rights.” See 85A O.S. Supp. 2013 § 211(A-B). 55. 85A O.S. Supp. 2013 § 211. Although § 211 was amended in 2015 to allow the Commission to “appoint an administrative law judge to hear any appeal of an adverse benefit determination as a trial de novo,” the Commission is still limited to relying on “the record established by the internal appeal process” and is “limited to benefits payable under the terms of the benefit plan . . . .” 85A O.S. Supp. 2015 § 211(A-B). If the Commission and the appointed ALJ are limited to relying on the record established by the internal appeal process, then the trial de novo is not actually a trial de novo. 56. Dillard’s specifically acknowledges that the purpose of the optout act was to provide employers with the freedom to create and manage workers’ compensation benefits and to allow employers to “set procedure for reviewing claims and provid[e] coverage that is tailor-made to an employer’s unique work environment.” Petitioner Dillard’s, Inc.’s Brief-in-Chief at 25 (emphasis added). 57. The above discussion refers only to the procedural differences between the AWCA and the Dillard’s plan. The difference in substantive benefits is also striking. See Respondent’s Brief-in-Chief at 6-8.

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58. 85A O.S. Supp. 2013 § 213(B). 59. See Douglas v. Cox Ret. Props., Inc., 2013 OK 37, ¶ 12, 302 P.3d 789, 794. 60. No changes were made to the OEIBA during either the 2014 or 2016 legislative sessions. In 2015, the Legislature amended §§ 203, 205, and 211 of the OEIBA. See 2015 Sess. Laws 1565-1570. The amendment to § 203, which concerns information submitted to the Insurance Commissioner as part of the application for approval as a qualified employer, does not affect the core provision of § 203. The amendment to § 205 appears only to have corrected a typo, and thus, is procedural. The amendment to § 211, which changed the appeal process and the standard of review, does not apply to Respondent Vasquez in this case because the standard of review applicable to workers’ compensation cases is that which is in effect when the claim accrues. Williams Cos. v. Dunkelgod, 2012 OK 96, ¶ 18, 295 P.3d 1007, 1113. However, the amendment to the appeal process and standard of review in § 211 does not cure the constitutional deficiencies found in the OEIBA. The core provisions of the OEIBA have remained substantively unchanged since its enactment in 2013. The OEIBA is unconstitutional in its entirety. Any amendment made to the statue in 2015 is likewise void. See Poafpybitty v. Skelly Oil Co., 1964 OK 162, 394 P.2d 515, 518 (“Amendments are to be construed together with the original act to which they relate as constituting one law, and also together with other statutes on the same subject as part of a coherent system of legislation.”). 61. See 85A O.S. Supp. 2013 § 213(B)(3) (“To the extent this act, or any part thereof, is declared to be unconstitutional . . . an employer that becomes a qualified employer under this act shall be liable for injury to employees only to the extent to which an employer that complied with the provisions of the [AWCA] would be liable to employees in compensation for such injuries under the [AWCA].”). See also 85A O.S. Supp. 2013 § 213(B)(4) of the OEIBA (allowing qualified employers 90 days “from any final decision declaring this act or any part thereof unconstitutional to secure compliance with the Administrative Workers’ Compensation Act” ). 62. Duff, supra note 38, at 24 (emphasis added).

2016 OK 90 IN RE: AMENDMENTS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS - CIVIL SCAD-16-73. September 12, 2016 ORDER ADOPTING AMENDMENTS AND NEW OKLAHOMA UNIFORM CIVIL JURY INSTRUCTIONS ¶1 The Court has reviewed the recommendations of the Oklahoma Supreme Court Committee for Uniform Civil Jury Instructions to adopt recommended amendments to existing instructions and proposed new instructions. The Court finds that the amendments and new instructions should be adopted. ¶2 It is therefore ordered, adjudged and decreed that the attached instructions shall be available for access via internet from the Court website at www.oscn.net. The Administrative Office of the Courts is directed to notify the Judges of the District Courts of the State of Oklahoma regarding our approval of the instructions set forth herein. Further, the District Courts of the State of Oklahoma are charged with the responsibility of implementing these instructions within thirty (30) days of this order. Notwithstanding, the district courts may implement these instructions immediately for any

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currently pending actions in which the judge determines the instructions are applicable. ¶3 It is therefore ordered that the proposed amendments to OUJI-CIV Nos. 1.0, 1.4, 3.11, 3.25, 4.1-4.3, 10.13, 11.10, 25.1-25.7, as set out and attached to this Order, are hereby approved. Additionally, it is ordered that the newly created instructions set out in OUJI-CIV Nos. 25.11, 25.12, 31.1-31.4, and 32.1-32.4, as set out and attached to this Order, are hereby adopted. ¶4 The Court declines to relinquish its constitutional and statutory authority to review the legal correctness of the above-referenced instructions or when it is called upon to afford corrective relief in any adjudicative context. ¶5 The amended OUJI-CIV instructions shall be effective thirty (30) days following entry of this Order. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THE 12th DAY OF September, 2016. /s/ Douglas Combs VICE CHIEF JUSTICE ¶6 ALL JUSTICES CONCUR Instruction No. 1.0 Use of Electronic Devices and Research Prohibited At this time, turn off all cell phones and other electronic devices. Do not use any electronic devices while court is in session in this case. Do not use any electronic device or media, such as the telephone, a cell or smart phone, camera, recording device, Blackberry, PDA, computer, the Internet, any Internet service, any text or instant messaging service, any Internet chat room, blog, or website such as Facebook, MySpace, YouTube, or Twitter, or any other way to find out any information about this case or the parties or attorneys. During this trial, do not text, post, tweet, blog or otherwise broadcast anything about this case or your service on this jury. This will help you avoid others pressuring you to discuss this trial. If you believe that another juror is violating this instruction, please notify me by immediately giving a note to the bailiff. It is very important that you abide by these instructions because it is essential that you keep your minds free and open at all times throughout this trial and that you not be influ1756

enced by anything except the evidence you hear and see in the courtroom. Failure to follow these instructions could result in the case having to be retried, and you will be in violation of your oath and the court’s order, which may result in your being fined or put in jail. Notes on Use This Instruction should be given as soon as the case is called in the presence of the jury. The trial judge may also distribute hard copies of this Instruction to the jurors. Instruction No. 1.4 Jury’s Duties — Cautionary Instruction — To Be Given After Jury Is Sworn Members of the Jury: I will now explain to you your duties as jurors. It is vital to the administration of justice that you fully understand and faithfully perform these duties. It is my duty to determine all of the law applicable to this case and to inform you of that law by these instructions and by the instructions that I will give you after all evidence has been received. It is your duty to accept and follow all of these instructions as a whole, not accepting one or more of these instructions and disregarding the others. It is your duty to determine the facts of this case from the evidence produced in open court. You should consider only the evidence introduced while the court is in session. It is then your duty to apply the law, as determined by the court, to the facts as determined by you, and thus render a verdict. You should not allow sympathy or prejudice to influence your decision. Your decision should be based upon probabilities, and not possibilities. It may not be based upon speculation or guesswork. The evidence which you are to consider consists of the testimony of the witnesses; the exhibits, if any, admitted into evidence; any facts admitted or agreed to by the attorneys; and any facts which I instruct you to accept as true. The term “witness” means anyone who testifies in person, by video, or by deposition, including the parties. In addition, you are permitted to draw such reasonable inferences from the testimony and exhibits as you feel are justified when considered with the aid of the knowledge which you each possess in common with other persons. You may make deductions and reach conclusions which reason and common sense lead

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you to draw from the facts which you find to have been established by the testimony and evidence in the case. The production of evidence in court is governed by rules of law. From time to time it may be the duty of the attorneys to object to the production of evidence and my duty to rule on these objections. If I say the objection is sustained, you must not consider the testimony or exhibit covered by the objection. If I say the objection is overruled, you may consider the testimony or exhibit covered by the objection. If I say the objection is sustained, you must not consider the testimony or exhibit covered by the objection, and you should not speculate on what the testimony or exhibit might have been. The attorney’s objections, and my rulings upon these objections, together with the reasons for these objections and rulings are not evidence and should not be considered by you. The statements, remarks and arguments of the attorneys are intended to help you in understanding the evidence and applying the law, but are not evidence. If any statement, remark or argument of an attorney has no basis in the evidence, then you should disregard it. You are the sole judges of the believability of each witness and the value to be given the testimony of each. You should take into consideration the witness’s means of knowledge, strength of memory and opportunities of observation. Also consider the reasonableness, consistency or inconsistency of the testimony. You should also consider the bias, prejudice or interest, if any, the witness may have in the outcome of the trial, the conduct of the witness upon the witness stand and all other facts and circumstances that affect the believability of the witness. My rulings and remarks made during the course of this trial are not intended to indicate my opinion as to the facts. During all recesses and adjournments, while this case is in progress, you must not discuss this case, or anything about this case, with anyone, and you must not allow anyone to discuss it with you. This rule applies not only to court employees, the attorneys, parties, or witnesses involved in this case, and others you may meet in the courthouse, but also to your husband and wife, other members of your family, your friends and anyone else you may meet. If during the trial anyone talks to you or tries to talk to you about this case, you must immediately report it Vol. 87 — No. 25 — 9/24/2016

to me, or the [(clerk of the court)/bailiff], who will report to me. Do not, before this case is finally submitted to you for a decision, talk to your fellow jurors about this case, or anything about this case, or form or express any opinion about it. Do not read newspaper reports or obtain information from the internet or any other source about this trial or the issues, parties or witnesses involved in this case, and do not watch or listen to television or radio reports about it. Do not attempt to visit the scene or investigate this case on your own. During this trial, do not text, post, tweet, blog or otherwise broadcast anything about this case or your service on this jury. This will help you avoid others pressuring you to discuss this trial. If you believe that another juror is violating this instruction, please notify me by immediately giving a note to the bailiff. The reasons for these rules are that it is essential that you should keep your minds free and open at all times throughout this trial and that you should not be influenced by anything except the evidence you hear and see in the courtroom. From now on, at the beginning of each recess or adjournment, I will refer to these instructions as “my instructions” or “my usual instructions,” but whether or not this is done, you will carefully observe these rules at all times. Notes on Use Before excusing the jurors for recesses and adjournments, the judge should remind them not to discuss the case. The following Instruction is suggested: At this time, let me remind you not to discuss this case, or anything about this case, with anyone [(during the recess)/ (while court is adjourned)], and do not allow anyone to discuss it with you. If anyone talks to you or tries to talk to you about this case, you are instructed to report it immediately either to me or to the [(clerk of the court)/bailiff]. Instruction No. 3.11 Inference from Failure to Produce Evidence or Witness NO INSTRUCTION SHOULD BE GIVEN

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Notes on Use In general, no instruction should be given for an inference from failure to produce evidence. However, in appropriate circumstances, an adverse inference instruction may be given as a sanction for spoliation of evidence. See Barnett v. Simmons, 2008 OK 100, ¶ 19, 197 P.3d 12, 19 (“This Court has also held that severe sanctions may be imposed for reasonably foreseeable destruction of evidence, even when there is no discovery order in place”); Harrill v. Penn, 1927 OK 492, ¶ 8, 273 P. 235, 237, 134 Okla. 259 (“The willful destruction, suppression, alteration or fabrication of documentary evidence properly gives rise to the presumption that the documents, if produced, would be injurious to the one who has thus hindered the investigation of the facts.”). Instruction No. 3.25

In fixing the amount you will award [him/ her] you may consider the following elements: A. [His/Her] physical pain and suffering, past and future; B [His/Her] mental pain and suffering, past and future; C. [His/Her] age; D. [His/Her] physical condition immediately before and after the accident; E. The nature and extent of [his/her] injuries; F. Whether the injuries are permanent; G. The physical impairment; H. The disfigurement; I. Loss of [earnings/time];

Direct and Indirect [Circumstantial] Evidence — Defined — Use

J. Impairment of earning capacity;

NO INSTRUCTION SHOULD BE GIVEN “Direct evidence” is the testimony of a person who asserts actual, personal knowledge of a fact, such as the testimony of an eyewitness. “Direct evidence” may also be an exhibit such as a photograph which demonstrates the existence of a fact. It is proof which points immediately to a question at issue and which proves the existence of a fact without inference or presumption. “Circumstantial evidence” is the proof of facts or circumstances which gives rise to a reasonable inference of other connected facts. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. You should consider circumstantial evidence together with all the other evidence in the case in arriving at your verdict. Comments This Instruction is based on OUJI-CR 9-2 to 9-4 of the Oklahoma Uniform Jury Instructions for Criminal Cases (2nd ed.). Instruction No. 4.1 PERSONAL INJURIES — ADULTS If you decide for [Plaintiff], you must then fix the amount of [his/her] damages. This is the amount of money that will reasonably and 1758

fairly compensate [him/her] for the injury injuries sustained as a result of the [negligence/ (wrongful conduct)] of [Defendant].

K. The reasonable expenses of the necessary medical care, treatment, and services, past and future. Notes on Use Any of the elements items of damage included above which are not supported by the evidence should be omitted. Include any element item allowed by law which is supported by the evidence and which is not listed above. “Wrongful conduct” should be replaced by an appropriate term such as “intentional misconduct.” Comments 23 O.S. 1991 2011 § 61; Shebester, Inc. v. Ford, 1961 OK 67, ¶¶ 11-14, 361 P.2d 200, 202-03 (Okla. 1961); Marathon Battery Co. v. Kilpatrick, 1965 OK 212 ¶¶ 65-66, 418 P.2d 900, 916 (Okla. 1965); St. John’s Hosp. & School of Nursing Inc. v. Chapman, 1967 OK 126, ¶¶ 50-53, 434 P.2d 160, 175-76 (Okla. 1967); King v. City of Guymon, 1974 OK CIV APP 64, ¶¶ 29-30, 523 P.2d 1154, 1159-60 (Okla. Ct. App. 1974). See also Complete Auto Transit, Inc. v. Reese, 1967 OK 73, ¶ 17, 425 P.2d 465, 469 (Okla. 1967) (damages for impairment of earning capacity). Instruction No. 4.2 PERSONAL INJURIES — MINOR CHILD

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If you decide for [Plaintiff], you must then fix the amount of [his/her] damages. This is the amount of money that will reasonably and fairly compensate [him/her] for the injury injuries sustained as a result of the [negligence/ (wrongful conduct)] of [Defendant]. In fixing the amount you will award [him/ her] you may consider the following elements: A. [His/Her] physical pain and suffering, past and future; B. [His/Her] mental pain and suffering, past and future; C. [His/Her] age; D. [His/Her] physical condition immediately before and after the accident; E. The nature and extent of [his/her] injuries; F. Whether the injuries are permanent; G. The physical impairment; H. The disfigurement; I. Impairment of earning capacity after reaching the age of eighteen years; J. The reasonable expenses of the necessary medical care, treatment, and services, past and future required after reaching the age of eighteen years. Notes on Use Any of the elements items of damage included above which are not supported by the evidence should be omitted. Include any element item allowed by law which is supported by the evidence and which is not listed above. If the parents have joined with the minor plaintiff to recover their damages, Instruction 4.3 should also be given with this instruction. “Wrongful conduct” should be replaced by an appropriate term such as “intentional misconduct.” Comments Atchison, T. & S.F.R.R. v. Coulson, 1962 OK 8, ¶¶ 34-35, 371 P.2d 914, 919 (Okla. 1962) (loss of earning capacity); Hembree v. Southard, 1959 OK 91, ¶¶ 29-34, 339 P.2d 771, 777-78 (Okla. 1959). Cf. Lone Star Gas Co. v. Parsons, 1932 OK 497, ¶ 26, 159 Okla. 52, 59, 14 P.2d 369, 376, 159 Okla. 52, 59 (1932) (no evidence of impairment of earning capacity). See generally 23 O.S. 1991 2011 § 61; 15 O.S. 1991 2011 § 27. Vol. 87 — No. 25 — 9/24/2016

Instruction No. 4.3 PERSONAL INJURIES — MINOR CHILD— MEASURE OF PARENT’S OR GUARDIAN’S DAMAGES If you decide for [name of plaintiff’s parent or guardian], you must then fix the amount of [his/her] damages. This is the amount of money that will reasonably and fairly compensate [him/her] for the injury injuries sustained as a result of the [negligence/(wrongful conduct)] of [Defendant]. In fixing the amount you will award [name of plaintiff’s parent or guardian], you may consider the following elements: A. The reasonable expenses of the necessary medical care, treatment and services [he/she] has incurred in behalf of [name of minor child] or will incur in the future from now until [name of minor child] reaches the age of eighteen years; B. Any loss of past earnings of [name of minor child]; C. Any future loss of earnings or impairment of earning capacity of [name of minor child] from now until [he/she] reaches the age of eighteen years; D. Any loss of past household and similar services which [name of minor child] would have given [name of plaintiff’s parent or guardian]; E. Any loss of household and similar services which [name of minor child] would have given [name of plaintiff’s parent or guardian] between now and the time [he/she] reaches the age of eighteen years. Notes on Use Any of the elements items of damage included above which are not supported by the evidence should be omitted. Include any element item allowed by law which is supported by the evidence and which is not listed above. “Wrongful conduct” should be replaced by an appropriate term such as “intentional misconduct.” Comments See Boyett v. Airline Lumber Co., 1954 OK 321, ¶¶ 15-17, 277 P.2d 676, 679-80 (Okla. 1954). With respect to the items, elements and measures of damages for the death of

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an unmarried, minor child, see 12 O.S. 1991 2011 § 1055. Instruction No. 10.13 Duty of Passenger A passenger has the duty to use ordinary care for [his/her] own safety. When, considering all circumstances, the exercise of such ordinary care requires that the passenger either caution the driver against the manner of the vehicle’s operation or warn the driver of a dangerous condition, [he/she] has a duty to do so. Comments The Oklahoma Supreme Court ruled that a jury instruction on a passenger’s duty of care was appropriate under the particular facts in Matchen v. McGahey, 1969 OK 48, ¶ 26, 455 P.2d 52, 58 (Okla. 1969). This instruction should not be given, however, unless there is evidence presented that would warrant making a passenger responsible for warning the driver or taking other action to prevent injury. See Snyder v. Dominguez, 2008 OK 53, 202 P.3d 135. Instruction No. 11.10 Duty to Invitee Mantain to Maintain Premises — Generally It is the duty of the [owner/occupant] to use ordinary care to keep [his/her/its] premises in a reasonably safe condition for the use of [his/ her/its] invitees. It is the duty of the [owner/ occupant] either to remove or warn the invitee of any hidden danger on the premises that the [owner/occupant] either actually knows about, or that [he/she/it] should know about in the exercise of reasonable care, or that was created by [him/her/it] [or any of [his/her/its] employees who were acting within the scope of their employment]. This duty extends to all portions of the premises to which an invitee may reasonably be expected to go. Notes on Use This instruction should generally be used with Instruction Nos. 11.11 and 11.12, dealing with the definition of a hidden danger and the defense that a danger is open and obvious, and with Instruction Nos. 9.1, 9.2, and 9.6, dealing with negligence and causation. The trial court is encouraged to modify this generally worded instruction to fit the facts of the particular case. For example, if the 1760

case arose out of a slip and fall on a banana peel in a grocery store, the instruction might read: A grocery store has a duty to keep its floor reasonably safe for its customers. A grocery store has a duty to either remove or warn its customers of any dangerous objects on the floor, such as banana peels, that store employees actually knew about, or should have known about in the exercise of reasonable care, that were put on the floor by a store employee. This duty covers all parts of the store where customers may reasonably be expected to go. Some cases may involve additional issues, such as whether the invitee went outside the area of his invitation or remained on the premises beyond the time of his invitation, and the general instruction will need to be modified for these cases. In addition, the general instruction may need to be modified for a case where a hidden danger resulted from an intervening action by another person that the defendant should have reasonably anticipated. An example is Lingerfelt v. Winn-Dixie Texas, Inc., 1982 OK 44, 645 P2d 485, where the Oklahoma Supreme Court held that a grocery store could be found liable to a customer on account of a hidden danger created by other customers that the grocery store should have reasonably anticipated. The Supreme Court reversed a defense verdict and ordered a new trial on account of the denial of a requested jury instruction on a dangerous condition created by the means the grocery store used to display its products. See also Cobb v. Skaggs Companies, Inc., 1982 OK CIV APP 46, ¶ 12, 661 P2d 73, 76 (“Merchandising methods that involve unassisted customer selection create problems with dropped or spilled merchandise. The courts have come to recognize that self-service marketing methods necessarily create the dangerous condition.”). Comments The following statement of a property owner’s duty to invitees is from Williams v. Safeway Stores, Inc., 515 P.2d 223, 225 (Okla. 1973): A storekeeper owes customers the duty to exercise ordinary care to keep aisles and other parts of the premises ordinari-

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ly used by customers in transacting business in a reasonably safe condition, and to warn customers of dangerous conditions upon the premises which are known, or which should reasonably be known to the storekeeper, but not to customers. [Citations omitted.]. Knowledge of the dangerous condition will be imputed to the storekeeper if he knew of the dangerous condition, or if it existed for such time it was his duty to know of it, or if the condition was created by him, or by his employees acting within the scope of the employment. [Citations omitted.]. CHAPTER TWENTY FIVE CONDEMNATION AND SURFACE DAMAGES ACT List of Contents

In this case, [Condemnor] is authorized by law to take [describe the property being condemned] for [state the purpose for the taking]. In your deliberations, you should not consider whether or not the taking was necessary, wise, or proper. That has already been decided, and it is not an issue in this case. As jurors, it will be your duty to determine the amount of just compensation to be paid by [Condemnor] to [Owner]. Notes on Use This Instruction provides a Statement of the Case and introduces the other Instructions for condemnation cases in this Chapter. Comments Okla. Const. Art. 2, § 24 provides in pertinent part: “Private property shall not be taken or damaged for public use without just compensation.”

Instruction No. 25.1 Condemnation — Introduction

Instruction No. 25.2

Instruction No. 25.2 Condemnation — Just Compensation — Full Taking

Condemnation — Just Compensation — Full Taking

Instruction No. 25.3 Condemnation —Just Compensation —- Partial Taking

The term “just compensation” means the payment to [Owner] for the taking of [his/her/ its] property by [Condemnor] of an amount of money that will make [Owner] whole. In this case this is the fair market value of the property on __________, the date of the taking. The property includes the land and any buildings or other things that are attached to the land.

Instruction No. 25.4 Condemnation — Just Compensation —- Easement Instruction No. 25.5 Condemnation — Fair Market Value —- Definition Instruction No. 25.6 Condemnation — Evidence of Comparable Sales

Notes on Use

Instruction No. 25.7 Condemnation — Verdict —- Single Sum Only Instruction No. 25.11 Surface Damages —Introduction Instruction No. 25.12 Surface Damages —Factors to Consider for Damages Instruction No. 25.1

This Instruction should be used only when all of a particular property is condemned so that there are no problems involving the effect of the taking on the valuation of any remaining property. It should be given along with Instruction No. 25.5, “Fair Market Value-Definition,” and other appropriate Instructions. Comments

Condemnation — Introduction The term “eminent domain” describes a special legal proceeding in which a [(government agency)/railroad/(public utility)] acquires private property for a public purpose. It is also called a condemnation proceeding. The Oklahoma Constitution allows private property to be taken for a public use if just compensation is paid to the owners of the property that is being condemned. Vol. 87 — No. 25 — 9/24/2016

The 1990 amendment to Okla. Const. Art. 2, § 24 provides in pertinent part: “Just compensation shall mean the value of the property taken . . . .” Oklahoma cases decided prior to this amendment used fair market value as the standard for just compensation. E.g., Grand Hydro v. Grand River Dam Auth., 1943 OK 158, ¶ 8, 139 P.2d 798, 800, 192 Okla. 693, 694, 139 P.2d 798, 800 (1943) (“The measure of compensation in [a

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condemnation proceeding] is the fair market or cash value of the land condemned.”). Instruction No. 25.3 Condemnation — Just Compensation — Partial Taking This is a case in which [Condemnor] is taking only a part of [Owner’s] property, and it is sometimes referred to as a “partial taking” case. In a partial taking case, the term “just compensation” means the payment to [Owner] for the taking of a part of [his/her/its] property by [Condemnor] of an amount of money that will make [Owner] whole. In this case this is the fair market value of the part of the property that was taken plus any injury to the property left remaining after the taking. The property that was taken is [describe the property that was taken], and the property left remaining after the taking is [describe the remaining property]. The property includes the land, any buildings or other things that are attached to the land, and any other interests connected with the use of the land, such as access to roads. Injury to the remaining property is the damage, if any, caused by: 1. The separation of the part taken from the remaining property; 2. The loss [or impairment] of a right of access to the [street/road/highway] that previously abutted [Owner’s] property; [and] 3. The construction [and/or] use of the [describe the project] on the property being taken. In determining the injury to the remaining property, you may subtract any increase in its value that will result from any features of the project that will benefit the remaining property. However, the increase in value to the remaining property can never exceed the damage to it. In other words, you may offset an increase in the value of the remaining property against any injury to the remaining property, but you may not offset an increase in the value of the remaining property against the value of the property that was taken. Notes on Use This Instruction should be used in cases involving a partial taking. It should be given along with Instruction No. 25.5, entitled “Fair Market Value-Definition,” and 1762

other appropriate Instructions. The trial judge should include items 1, 2, and/or 3 in the second paragraph, depending on the type of injury to the remaining property that is alleged. Comments The 1990 amendment to Okla. Const. Art. 2, § 24 provides in pertinent part: Just compensation shall mean the value of the property taken, and in addition, any injury to any part of the property not taken. Any special and direct benefits to the part of the property not taken may be offset only against any injury to the property not taken. In 1991, the Oklahoma Legislature added the following paragraphs in 66 O.S. 1991 § 53 (D), 69 O.S. 1991 §§ 1203 (h), 1708 (d): “Just compensation”, as used in [subsection C of] this section, shall mean the value of the property taken, and in addition, any injury to any part of the property not taken. Any special and direct benefits to the part of the property not taken may be offset only against any injury to the property not taken. If only a part of a tract is taken, just compensation shall be ascertained by determining the difference between the fair market value of the whole tract immediately before the taking and the fair market value of that portion left remaining immediately after the taking. The last sentence in these paragraphs that were added may be inconsistent with the preceding two sentences and with the portion of the 1990 amendment to Okla. Const. Art. 2, § 24 that is quoted above. Accordingly, the formula from the last sentence of these paragraphs is not included in the Instruction. The Oklahoma Supreme Court decided that this Instruction was “a correct statement of the law” in Williams Natural Gas Co. v. Perkins, 1997 OK 72, ¶ 13, 952 P.2d 483, 488, under Okla. Const. art. 2, § 24, despite conflicting language in Okla. Stat. tit. 66, § 53(D) (2011). Instruction No. 25.4 Condemnation — Just Compensation — Easement

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This is a case in which [Condemnor] is taking a kind of property called an “easement,” which is a right to control and use the property of another for specific purposes. The easement being taken by [Condemnor] is an easement for [describe purpose of easement], and it will continue [(until ______)/(until [Condemnor] has no further use for it)/forever]. During the existence of the easement [Owner] will have no use, control or possession of the property within the easement that is inconsistent with [describe the easement].

the past or what future use [Owner] may have intended for it].

In a taking of an easement case, the term “just compensation” means the payment to [Owner] for the taking of the easement by [Condemnor] of an amount of money that will make [Owner] whole. In this case this is the fair market value of the easement plus any injury to the property left remaining after the taking. The property includes the land, any buildings or other things that are attached to the land, and any other interests connected with the use of the land, such as access to roads.

Comments

In determining the injury to the remaining property, you may subtract any increase in its value that will result from any features of the easement that will benefit the remaining property. However, the increase in value to the remaining property can never exceed the damage to it. In other words, you may offset an increase in the value of the remaining property against any injury to the remaining property, but you may not offset an increase in the value of the remaining property against the value of the easement. Notes on Use This Instruction should be used in cases involving the acquisition of an easement. It should be given along with Instruction No. 25.5, entitled “Fair Market Value-Definition and other appropriate Instructions. Instruction No. 25.5 Condemnation — Fair Market Value — Definition The fair market value of a property is the amount of money which a buyer, who is willing but does not have to buy, would pay an owner, who is willing but does not have to sell, to buy the property. [The fair market value of a property should be determined according to the highest and best use for which it is suitable, regardless of what it may have been used for in Vol. 87 — No. 25 — 9/24/2016

Notes on Use The amount of just compensation is defined in terms of fair market value. Accordingly, this Instruction should be given along with the appropriate Instruction concerning just compensation. The last sentence should be given only if there is a possibility that the jury may base its valuation on other than the property’s highest and best use. In City of Tulsa v. Creekmore, 1934 OK 57, ¶¶ 11-12, 29 P.2d 101, 103-04, 167 Okla. 298, the Oklahoma Supreme Court adopted the following standards for fair market value from Nichols on Eminent Domain (2nd Ed.), vol. 1, §§ 217 and 219: By fair market value is meant the amount of money which a purchaser willing but not obliged to buy the property would pay to an owner willing but not obliged to sell it, taking into consideration all uses to which the land was adapted and might in reason be applied. **** In determining the market value of a piece of real estate for the purposes of a taking by eminent domain, it is not merely the value of the property for the use to which it has been applied by the owner that should be taken into consideration, but the possibility of its use for all purposes, present and prospective, for which it is adapted and to which it might in reason be applied, must be considered, and its value for the use to which men of prudence and wisdom and having adequate means would devote the property if owned by them must be taken as the ultimate test. In Oklahoma Turnpike Auth. v. Daniel, 1965 OK 7, ¶ 6, 398 P.2d 515, 517 (Okla. 1965), the Oklahoma Supreme Court stated: In this jurisdiction the rule is well settled that, where a part only of a tract of land is so condemned and damages are sought for the value of that taken, and damages to that not taken, the measure of damages is the difference between the fair market value of the whole property immedi-

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ately before the taking and the fair market value of the portion left immediately after the taking. This method of determining value of property in a condemnation proceeding has been referred to as the “before and after” method. This method has been widely used by appraisers as a basis for their opinions of value of property in condemnation proceedings. Instruction No. 25.6 Condemnation — Evidence of Comparable Sales To determine the fair market value of a property, you may consider evidence of comparable sales of other property. Generally, the more similar one property is to another, the closer their values are. In weighing evidence of a comparable sale, you should consider how similar the other property is to the property that was taken. The following are some of the many factors to consider: 1. How far away the other property is; 2. How similar the neighborhoods are in which the properties are located; 3. Any zoning or other restrictions on the uses to which the properties may be put; 4 . The size, condition, and shape of the properties; 5 . How close the date of the other sale was to the date of the taking; 6. The terms of the other sale; and 7 . Whether the other sale was a voluntary, arms length transaction. No two properties are identical, and you will need to make appropriate adjustments to account for differences between the properties. Notes on Use This Instruction should be given when, as is normally the case, there is evidence offered concerning comparable sales. Comments The use of comparable sales to establish fair market value was approved in Coogan v. Arkla Exploration Co., 1979 OK 6, ¶ 12, 589 P.2d 1061, 1063 (Okla. 1979) (“[T]he majority rule, adhered to in this State is that the value of land or interest in realty at a par1764

ticular time may as a general rule be proved by evidence of voluntary sales of similar property in the vicinity made at or about the same time.”); State ex rel. Department of Highways v. Aker, 1973 OK 21, ¶ 6, 507 P.2d 1227, 1228 (Okla. 1973) (“Oklahoma has followed what seems to be the general rule that evidence of comparable sales is admissible either as direct proof of value or in support of the opinion of an expert, [citation omitted].”). Instruction No. 25.7 Condemnation — Verdict — Single Sum Only You are instructed that your award in this case shall be for a single sum of money. Do not award separate sums of money for each portion of property taken or each item of damage that [Owner] suffered on account of the taking. [Also, do not award separate sums of money for each of the owners of the property being taken.]. Notes on Use Include the last sentence only if the property being taken has multiple owners. Instruction No. 25.11 Surface Damages — Introduction Owners of property are entitled to compensation for damages they sustain because of drilling or maintenance of oil or gas production on their property. As jurors, it will be your duty to determine the amount of the damages. Notes on Use This Instruction provides a Statement of the Case for actions under the Oklahoma Surface Damages Act, 52 O.S. 2011 & Supp. 2015, §§ 318.2-318.9. Comments The Oklahoma Surface Damages Act, 52 O.S. 2011 & Supp. 2015, §§ 318.2-318.9, balances the conflicting interests of the holders of a mineral interest and a surface owner of property by authorizing compensation to the surface owner whose property is taken for oil and gas exploration. “The Act modified the common law rule that an oil and gas lessee was not liable to the surface owner for damages unless such damages were caused by wanton or negligent operations or if the operations affected

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more than a reasonable area of the surface.” Ward Petroleum Corp. v. Stewart, 2003 OK 11, ¶ 5, 64 P.3d 1113, 1114. “Damages collected pursuant to [the Oklahoma Surface Damages Act] shall not preclude the surface owner from collecting any additional damages caused by the operator at a subsequent date.” 52 O.S. 2011, § 318.9. Instruction No. 25.12 Surface Damages — Measure of Damages The measure of damages is the change in the fair market value of the property owned by [Surface Owner] because of the drilling and maintenance operations of [Operator]. The factors you may consider in determining the change in the fair market value of the property caused by the oil and gas operations of [Operator], include, but are not limited to, the following, as shown by the greater weight of the evidence: 1. The location or site of the oil and gas operations. 2. The quality and value of the property used or disturbed by the oil and gas operations. 3. Incidental features resulting from the oil and gas operations which may affect the convenient use and further enjoyment by [Surface Owner]. 4. Inconvenience suffered by [Surface Owner] because of the use of the property by [Operator]. 5. Whether the damages, if any, are temporary or permanent.

amounts for each portion of the property affected or for each factor you consider in determining the change in the fair market value. Your award shall be for a single sum of money. Notes on Use This Instruction sets out possible factors the jury may consider in determining damages under the Surface Damages Act. Any factors that are not supported by the evidence should be omitted, and additional factors allowed by law and supported by the evidence should be included. Instruction No. 25.5 defines fair market value and should be included with these Instructions. Comments The compensation authorized is “the surface damages which the owner has sustained or will sustain by reason of entry upon the subject land and by reason of drilling or maintenance of oil or gas production on the subject tract of land.” 52 O.S. 2011, § 318.5(C). The Oklahoma Supreme Court has held that the Surface Damages “Act partakes of the nature of a condemnation action by virtue of 52 O.S. 2011, § 318.5(F)” and that “the damage standard intended by the Legislature under the Act is the diminution in the fair market value of the surface property resulting from the drilling and maintenance operations.” Ward Petroleum Corp. v. Stewart, 2003 OK 11, ¶ 6, 64 P.3d 1113, 1114.

9. The cost of restoring the property to its original condition.

In Davis Oil Co. v. Cloud, 1986 OK 73, ¶ 22, 766 P.2d 1347, 1352, the Oklahoma Supreme Court approved an instruction with the first eight factors for determining damages that are listed in this Instruction. See also Chesapeake Operating, Inc. v. Loomis, 2007 OK CIV APP 55, ¶ 17, 164 P.3d 254, 258 (approving use of Davis factors despite argument that they were irrelevant as a result of the decision in Williams Natural Gas Co. v. Perkins, 1997 OK 72, 952 P.2d 483, concerning partial takings).

You should not consider these factors as individual items of damages, but instead, you should consider them only as they may help you determine the change in the fair market value of the property because of the oil and gas operations in this case. Do not state separate

In Houck v. Hold Oil Corp., 1993 OK 166, 867 P.2d 451, the Oklahoma Supreme Court discussed the measure of damages for injury to a surface owner under both the common law and under the Surface Damages Act. It explained that the common law

6. Changes in the physical condition or shape of the property. 7. Changes in or denial of access to the property. 8. The destruction of native grasses or growing crops caused by the drilling operations.

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permitted recovery of all damages, temporary or permanent, caused by wanton or negligent oil and gas operations, or operations that affected more than a reasonable area of the surface. The Supreme Court explained that the measure of damages for temporary injury was the cost of restoring the land to its former condition, with compensation for loss of use of it, so long as this was less than the diminution in value of the land with the injuries left standing or unrestored. Id. at ¶ 33, 867 P.2d at 460. The Supreme Court continued that the measure of damages for permanent injuries was the difference between the reasonable market value of the land immediately before and after the injuries. Id. at ¶ 34, 867 P.2d at 461. The Supreme Court also stated that the jury instructions must make it clear that no double recovery is allowed for the same injury. Id. at ¶ 36, 867 P.2d at 461. Next the Supreme Court in Houck stated that the measure of damages intended by the Oklahoma Legislature under the Surface Damages Act was the diminution in value of the surface property resulting from the drilling operations. Id. at ¶ 39, 867 P.2d at 461-62. The Supreme Court did not address whether the surface owner was entitled to damages for temporary injury, such as loss of use and the cost of restoring the surface property to its former condition under the Surface Damages Act. However, the Supreme Court did include “inconvenience suffered in actual use of the land by OPERATOR” in the list of factors for the jury to consider in Davis Oil Co. v. Cloud, 1986 OK 73, ¶ 22, 766 P.2d 1347, 1352. Also, the list of factors in Davis Oil included a reference to temporary damages. The Committee decided to include the cost of restoring the surface property to its former condition as the ninth factor in this Instruction because the cost of restoration would be reflected in the determination of the diminution in value of the surface property resulting from the drilling operations, because the fair value of surface property would necessarily be reduced by costs of restoration. Moreover, the list of factors in Davis Oil was nonexclusive. In Chesapeake Operating, Inc. v. Kast Trust Farms, 2015 OK CIV APP 5, 352 P.3d 1231, the Oklahoma Court of Civil Appeals approved a jury instruction on temporary 1766

and permanent injuries, but it rejected a jury instruction on damages for stigma associated with the drilling operations because it was not listed as a factor in Davis. Id., ¶¶ 26-35, 352 P.3d at 1237-39. The Committee has determined that a separate jury instruction on temporary and permanent injuries is neither necessary nor helpful to the jury. The last paragraph of this Instruction is based on Instruction No. 25.7, supra. In some circumstances, the drilling operations may increase the value of one portion of the surface owner’s property while decreasing the value of another portion. For example, the drilling operations might include construction of a road that would provide access to the landowner’s property. If this occurs, the benefits to part of the property should not be offset against the injury to another part of the property. Okla. Const. Art. 2, § 24. An appropriately modified version of Instruction No. 25.3 should be used in such a case. CHAPTER THIRTY ONE CONTEMPT OF COURT List of Contents Instruction No. 31.1 Contempt of Court — Introduction Instruction No. 31.2 Contempt of Court — Definition of Willfully Instruction No. 31.3 Contempt of Court — Burden of Proof Instruction No. 31.4 Contempt of Court — Closing Instruction Instruction No. 31.1 Contempt of Court — Introduction The Oklahoma Statutes provide that it is contempt of court for anyone to: 1. Willfully disobey or resist 2. Any lawful order or process of a court. Committee Comments The Oklahoma Legislature has divided contempts of court into direct and indirect contempts. Direct contempt is an act committed in the presence of the court. Okla. Stat. tit. 21 § 565 (2011). Direct contempt may be punished summarily. Id. The court

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may punish direct contempt based on its own factual findings, and the right to jury trial does not attach to direct contempt. Hogg v. State, 2008 OK CR 8, ¶ 6, 181 P.3d 724, 725. “The power of a judge to impose significant punishment for direct contempt immediately and without the full panoply of due process rests upon the absolute necessity of maintaining a structured order in our courts.” Id. at ¶ 4, 181 P.3d at 724 (quoting Autry v. State, 2007 OK CR 41, ¶ 10, 172 P.3d 212, 214). Regardless whether the contempt is classified as direct or indirect, it is the duty of the judge (not the jury) to fix the punishment. Punishment for contempt — direct or indirect — is limited to a fine not exceeding Five Hundred Dollars ($500.00) or imprisonment in the county jail not exceeding six (6) months, or both, at the discretion of the court, unless otherwise provided by law. Okla. Stat. tit. 21, § 566 (2011). Indirect contempt “is the willful disobedience of any process or order lawfully issued or made by [the] court. . . .” Okla. Stat. tit. 21 § 565 (2011). There is a right to jury trial for indirect contempt. Okla. Const. Art. 2, § 25 (“[A]ny person accused of violating or disobeying, when not in the presence or hearing of the Court, or judge sitting as such, any order of injunction, or restraint, made or entered by any court or judge of the state shall, before penalty or punishment is imposed be entitled to a jury trial as to the guilt or innocence of the accused.); Okla. Stat. 21, § 567 (“In all cases of indirect contempt the party charged with contempt shall be notified in writing of the accusation and have reasonable time for defense; and the party so charged shall, upon demand, have a jury trial.”). Instruction No. 31.2 Contempt of Court — Definition of Willfully “Willfully” means with knowledge, intentionally, without lawful excuse, and therefore not accidentally. Committee Comments See In re Wallace Revocable Trust, 2009 OK 16, ¶ 21, 204 P.3d 80, 85 (“The trial court correctly instructed the jury that the words ‘willful’ and ‘willfully’ meant ‘with knowledge, intentionally, designedly, Vol. 87 — No. 25 — 9/24/2016

without lawful excuse, and therefore not accidentally.’”). Instruction No. 31.3 Contempt of Court — Burden of Proof In a contempt lawsuit, such as this one, the law provides which party must prove certain things to you. This is called “Burden of Proof.” [In this case [Plaintiff] has the burden of proving [Defendant] willfully disobeyed or resisted a lawful order or process of the court by clear and convincing evidence. By clear and convincing evidence, I mean that you must be persuaded, considering all the evidence in the case, that the propositions upon which the party has the burden of proof are highly probable and free from serious doubt.] OR [In this case [Plaintiff] has the burden of proving [Defendant] willfully disobeyed or resisted a lawful order or process of the court beyond a reasonable doubt.] Notes on Use The first bracketed paragraph should be used when the purpose of the indirect contempt sanction is coercive or remedial in nature and the defendant is capable of terminating the imprisonment at any time by compliance with, or by a promise to comply with the court order. The last bracketed paragraph should be used when the purpose of the indirect contempt sanction is penal in nature and the defendant cannot shorten the incarceration by compliance or promised compliance with the court order. Committee Comments The Oklahoma Supreme Court has held that the purpose of indirect contempt sanctions may serve one of two purposes: (1) remedial, or (2) penal. Henry v. Schmidt, 2004 OK 34, ¶ 13, 91 P.3d 651, 654. If the purpose of the punishment for indirect contempt is to coerce the defendant’s behavior, it is remedial and the defendant is capable of terminating the imprisonment at any time by compliance with, or by a promise to comply with the court order. However, if the purpose of the sanction is to punish the defendant and the incarceration is for a definite period of time and cannot be shortened by compliance with a court order, it is penal. Id.

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When the purpose of the indirect contempt proceeding is to impose remedial or coercive sanctions the burden of proof is by clear and convincing evidence. If the purpose of the indirect contempt proceeding is to impose penal sanctions the burden of proof is beyond a reasonable doubt. Id. at ¶¶ 20, 21, 91 P.3d at 656. The trial court should not attempt to define “reasonable doubt.” Young v. State, 1962 OK CR 70, ¶ 22, 373 P.2d 273, 278 (“We agree with our predecessors that the trial court should not undertake to define the terms “reasonable doubt, ....”); Moore v. State, 1950 OK CR, 214 P.2d 966, 968, 90 Okla. Crim. App. 415, 418 (“[S]uch an instruction has been condemned in this jurisdiction from territorial days to the present time.”). Instruction No. 31.4 Contempt of Court — Closing Instruction After you have retired to consider your verdict, select one of your number as foreperson and enter upon your deliberations. Your verdict does not need to be unanimous, and it can be based on an agreed verdict of five of you. If your verdict is unanimous, your foreperson alone will sign it. If your verdict is not unanimous, it must be signed by each juror who concurs in the verdict. After you have reached your verdict, you will as a body, return it in open court. Forms of verdict will be furnished. You will now listen to the argument of counsel which is a proper part of this trial. Committee Comments This Instruction is based on the instruction used in Watson v. State, 1997 OK CR 42, n.l, 943 P.2d 1087, 1088. The Oklahoma Court of Criminal Appeals held the jury was properly instructed that it could render a less than unanimous verdict for petty offenses punishable by imprisonment for six months or less. Id. ¶ 10, 943 P.2d at 1090. CHAPTER THIRTY TWO CIVIL FORFEITURE List of Contents

Instruction No. 32.3 Civil Forfeiture — Presumption that Money is Subject to Forfeiture Instruction No. 32.4 Civil Forfeiture — Innocent Owner Defense Instruction No. 32.1 Civil Forfeiture — Introduction This is a civil forfeiture action brought on behalf of the State of Oklahoma against [Specify Property]. This is not a criminal case brought against a criminal defendant. Rather, it is a civil action brought against certain property that the State of Oklahoma alleges was used unlawfully. In a civil forfeiture proceeding, property is taken from private ownership because the property was either connected with or related to criminal activity, or was intended to be connected with criminal activity. The basis of the forfeiture is misuse of the property rather than any crime that may have been committed by the owner or user. Forfeiture is intended to discourage the unlawful use of property and removes from circulation property that was used or was intended to be used to violate the law. Whether or not anyone was charged with a crime or acquitted of a crime is not relevant to whether forfeiture is appropriate in this case. Your duty is to decide whether [Specify Property] is subject to forfeiture. Notes on Use This Instruction provides a Statement of the Case for civil forfeiture actions under 63 O.S. Supp. 2015, § 2-506. Comments Civil forfeiture proceedings are authorized by 63 O.S. Supp. 2015, § 2-506. The property that is subject to forfeiture is specified in 63 O.S. Supp. 2015, § 2-503. Other statutory provisions for civil forfeiture include 21 O.S. 2011, § 1738 and 21 O.S. Supp. 2015, § 2002. The Oklahoma Court of Civil Appeals held in State ex rel. Dugger v. $12,000, 2007 OK CIV APP 20, ¶ 31, 155 P.3d 858, 866, that there is a right to jury trial under Okla. Const. Art. 2, § 19 in forfeiture proceedings of property that has a value of more than $1,500 and is not contraband per se. This Instruction is based on NJ-JIV 10.10 of the New Jersey Model Civil Charges.

Instruction No. 32.1 Civil Forfeiture — Introduction

Instruction No. 32.2

Instruction No. 32.2 Civil Forfeiture — Property Subject to Forfeiture

Civil Forfeiture — Property Subject to Forfeiture

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In order for the [Specify Property] to be subject to civil forfeiture, the State must show by the greater weight of the evidence that: The [Specify Property] is a vehicle and a person in the vehicle unlawfully possessed [Specify Controlled Dangerous Substance in Schedules I through V of 63 O.S. Supp. 2015, § 2-101 et seq.] with the intent to distribute the [Specify Controlled Dangerous Substance in Schedules I through V of 63 O.S. Supp. 2015, § 2-101 et seq.] OR The [Specify Property] is money/[Specify Other Thing of Value] that was used/(intended to be used) to purchase [Specify Controlled Dangerous Substance in Schedules I through V of 63 O.S. Supp. 2015, § 2-101 et seq.] in violation of the Uniform Controlled Dangerous Substances Act. OR The [Specify Property] is real property that was used, or intended to be used to commit or to facilitate the crime of [Specify Violation of the Uniform Controlled Dangerous Substances Act which is punishable by imprisonment for more than one year]. OR [Specify Property] is a weapon that was possessed, used, or available for use to facilitate the crime of [Specify Violation of the Uniform Controlled Dangerous Substances]. OR [Specify Other Ground for Civil Forfeiture in 63 O.S. Supp. 2015, § 2-503]. Comments The Oklahoma Court of Civil Appeals held in State v. 1983 Toyota Corolla, OK CIV APP 51, ¶¶ 24-26, 879 P.2d 830, 836, that civil forfeiture was not authorized for simple misdemeanor possession of controlled substances, as opposed to possession with the intent to distribute. In addition, a homestead is not subject to civil forfeiture. State ex rel. Means v. Ten (10) Acres of Land, 1994 OK 71, ¶ 18, 877 P.2d 597, 601. Instruction No. 32.3 Civil Forfeiture — Presumption that Money is Subject to Forfeiture Vol. 87 — No. 25 — 9/24/2016

Presumptions are rules based upon experience or public policy and are established in the law to assist a jury in discovering the truth. Presumptions take the place of evidence unless and until outweighed by evidence to the contrary. In this case, the law presumes that money found in close proximity to [Specify Controlled Dangerous Substance in Schedules I through V of 63 O.S. Supp. 2015, § 2-101 et seq.] was used/(intended to be used) to purchase the [Specify Controlled Dangerous Substance in Schedules I through V of 63 O.S. Supp. 2015, § 2-101 et seq.] in violation of the Uniform Controlled Dangerous Substances Act. If you find that the [Specify Property] was found in close proximity to [Specify Controlled Dangerous Substance in Schedules I through V of 63 O.S. Supp. 2015, § 2-101 et seq.], then the burden of proof is upon [Name of Defendant] to prove by the greater weight of the evidence that the [Specify Property] was not used/(intended to be used) to purchase the [Specify Controlled Dangerous Substance in Schedules I through V of 63 O.S. Supp. 2015, § 2-101 et seq.] in violation of the Uniform Controlled Dangerous Substances Act. Notes on Use This Instruction is based on OUJI No. 3.4 and sets out the presumption in 63 O.S. Supp. 2015, § 2-503(A)(7). Instruction No. 32.4 Civil Forfeiture — Innocent Owner Defense A vehicle is not subject to civil forfeiture if its owner neither knew of nor consented to the unlawful possession of [Specify Controlled Dangerous Substance in Schedules I through V of 63 O.S. Supp. 2015, § 2-101 et seq.] in the vehicle. To establish this defense, [Name of Owner] must show by the greater weight of the evidence that he/she had no knowledge of and did not consent to the unlawful possession of the [Specify Controlled Dangerous Substance in Schedules I through V of 63 O.S. Supp. 2015, § 2-101 et seq.] in the [Specify Property]. OR Real property is not subject to civil forfeiture if its owner neither knew of nor consented to the [Specify Violation of the Uniform Controlled Dangerous Substances Act]. To establish this defense, [Name of Owner] must show by the greater weight of the evidence that [he/

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she] had no knowledge of and did not consent to the [Specify Violation of the Uniform Controlled Dangerous Substances Act]. Comments The Oklahoma Supreme Court discussed the innocent owner defense in State ex rel. Harris v. 2011 Honda, 2015 OK 11, 345 P.3d 389. The Supreme Court concluded that the “the legislature did not intend for innocent owners to be deprived of their ownership rights by the actions of a guilty party in a vehicle forfeiture proceeding.” 2015 OK at ¶ 9, 345 P.3d at 391. See also State ex rel. Wood v. Gold/Blue 1988 Chevrolet Blazer, 1996 OK CIV APP 86, ¶ 5, 924 P.2d 792, 794 (declaring portion of 63 O.S. Supp. 2015, § 2-503(A)(4)(b) unconstitutional because it required a showing of unlawful possession of the vehicle in addition to the showing of lack of knowledge and consent for the innocent owner defense).

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OKCRPLA provides ten (10) one-hour CLE breakfast programs a year on real property related topics and annually recognizes OU and OCU law students for academic achievement in real property law. OKCRPLA invites OBA members to attend the October 2016 meeting free of charge. Seating is limited, so please make your reservation by Friday, October 7, 2016, b y contacting the OKCRPLA at [email protected]

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1-800-426-4563 405-232-6490 The Hightower Building 105 N. Hudson, Suite 100 Oklahoma City, OK 73102

Vol. 87 — No. 25 — 9/24/2016

BAR NEWS

2017 OBA Board of Governors Vacancies Nominating Petition deadline was 5 p.m. Friday, Sept. 2, 2016

OFFICERS

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: Linda S. Thomas, Bartlesville Ms. Thomas automatically becomes OBA president Jan. 1, 2017 (One-year term: 2017) Nominees: Kimberly Hays, Tulsa

BOARD OF GOVERNORS

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.

Supreme Court Judicial District Two Current: Kevin T. Sain, Idabel Atoka, Bryan, Choctaw, Haskell, Johnston, Latimer, LeFlore, McCurtain, McIntosh, Marshall, Pittsburg, Pushmataha and Sequoyah counties (Three-year term: 2017-2019) Nominee: Mark E. Fields, McAlester

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.

Supreme Court Judicial District Eight Current: James R. Marshall, Shawnee Coal, Hughes, Lincoln, Logan, Noble, Okfuskee, Payne, Pontotoc, Pottawatomie and Seminole counties (Three-year term: 2017-2019) Nominee: Jimmy D. Oliver, Stillwater

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.

Vice President Current: Paul D. Brunton, Tulsa (One-year term: 2017) Nominee: Jennifer Castillo, Oklahoma City

Supreme Court Judicial District Nine Current: John W. Kinslow, Lawton Caddo, Canadian, Comanche, Cotton, Greer, Harmon, Jackson, Kiowa and Tillman (Three-year term: 2017-2019) Nominee: Bryon J. Will, Yukon Member At Large Current: James R. Hicks, Tulsa (Three-year term: 2017-2019) Nominee: James R. Hicks, Tulsa

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. 4, during the Nov. 2-4 OBA Annual Meeting. Terms of the present OBA officers and governors will terminate Dec. 31, 2016. Nomination and resolution forms can be found at www.okbar.org/members/BOG/BOGvacancies.

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 Vol. 87 — No. 25 — 9/24/2016

NOTICE Pursuant to Rule 3 Section 3 of the Oklahoma Bar Association Bylaws, the above nominees have been deemed elected due to no other person filing for the position.

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BAR NEWS

OBA Nominating Petitions (See Article II and Article III of the OBA Bylaws)

OFFICERS President-Elect

Supreme Court Judicial District No. 8

Kimberly Hays, Tulsa Nominating Petitions have been filed nominating Kimberly Hays for election of President-Elect of the Oklahoma Bar Association Board of Governors for a one-year term beginning Jan. 1, 2017. Fifty of the names thereon are set forth below: William R. Grimm, Gary C. Clark, M. Joe Crosthwait Jr., Melissa DeLacerda, Deborah A. Reheard, James T. Stuart, Cathy Christensen, Renee DeMoss, Garvin A. Isaacs, Linda S. Thomas, Stephen D. Beam, M. Alan Souter, Susan Shields, James Hicks, Peggy Stockwell, Richard Stevens, R. Victor Kennemer, Bryon J. Will, Reta M. Strubhar, Glenn A. Devoll, Jack L. Brown, Kevin T. Sain, Jennifer Castillo, D. Faith Orlowski, Kaleb K. Hennigh, Joseph M. Vorndran, Deborah C. Shallcross, Matthew Farris, E. Zach Smith, O. Chris Meyers, Briana J. Ross, Bret A. Smith, Kevin R. Donelson, Patrick O’Hara Jr., Gary Farabough, Jeff Trevillion, William C. Kellough, Christy Caves, Tamera Childers, Aaron Bundy, T. Luke Barteaux, Amy Page, M. Shane Henry, Rees T. Evans, Christina M. Vaughn, Brad Heckenkemper, Michelle Smith, Ann Keele, Richard A. Wagner II and Alissa Hutter. A total of 155 signatures appear on the petitions.

Vice President Jennifer M. Castillo, Oklahoma City A total of 123 signatures appear on the petitions. Nominating Resolutions have been received from the following counties: Muskogee

BOARD OF GOVERNORS Supreme Court Judicial District No. 2 Mark E. Fields, McAlester A total of 69 signatures appear on the petitions. Nominating Resolutions have been received from the following counties: McCurtain

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Jimmy D. Oliver, Stillwater Nominating Petitions have been filed nominating Jimmy D. Oliver for election of Supreme Court Judicial District No. 8 of the Oklahoma Bar Association Board of Governors for a three-year term beginning Jan. 1, 2017. Twenty-five of the names thereon are set forth below: Melissa DeLacerda, Hal Ellis, Laura Austin Thomas, Charles A. Meyers, Tom Lee, Cory T. Williams, LeAnn D. Ellis, Frank Muret, Charles L. McBride, James V. Murray, Thomas Swafford, Lucas Stephens, Cheryl Ramsey, Luke Anthony, Lowell A. Barto, Travis Cagle, Brenda Nipp, Amanda Lilley, Lois Belden, Michael Kulling, Sarah J. Kennedy, Debra Vincent, Virginia Banks, Karen Dixon and Michael R. Coulson. A total of 42 signatures appear on the petitions.

Supreme Court Judicial District No. 9 Bryon J. Will, Yukon Nominating Petitions have been filed nominating Bryon J. Will for election of Supreme Court Judicial District No. 9 of the Oklahoma Bar Association Board of Governors for a three-year term beginning Jan. 1, 2017. Twenty-five of the names thereon are set forth below: John Kinslow, Fletcher Handley, Ashton Handley, Michael Denton, Dietmar Caudle, James Roger Rienhart, Grant Sheperd, Andy Bass, Joe Weaver, Nathan D. Richter, Robert L. Ross, Jeff Shaw, John N. Fleur, Neil Spencer West, Aimee Vardemar Berry, Robin Lee Rochelle, James R. Wills, M. Monty Hightower, A. Brad Cox, Dan L. Payton, Eddie Valdez, Art Mata, Taylor Stein, Stephen L. Greb and Kevin Cunningham. A total of 28 signatures appear on the petitions.

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Member At Large James R. Hicks, Tulsa Nominating Petitions have been filed nominating James R. Hicks for election of Member at Large of the Oklahoma Bar Association Board of Governors for a three-year term beginning Jan. 1, 2017. Fifty of the names thereon are set forth below: Susan Walker, Caitlin Murphy, Michael Smith, Chris Barrow, Vani Singhal, John E. Harper Jr., Gerald L. Hilsher, Thomas D. Robertson, Robert J. Joyce, Gerald G. Stamper, Bill Freudenrich, William R. Grimm, J. Craig Buchan, Timothy L. Rogers, Courtney Bru, Cori Powell, Kathy R. Neal, Joseph Allen, Anna C. Lukeman, Adam Marshall, Tyler Evans, Nicholas M.

Jones, Mary Quinn Cooper, David A. Johnson, Charles Greenough, Michael S. Forsman, Bill Leach, Bradley K. Beasley, Harold Zuckerman, Melissa H. Sartin, Jessica Dickerson, Robert Sartin, Alison Verret, Anne S. Maguire, Rachel Blue, Bruce Roach, N. Kilian Bryce, Christina M. Vaughn, Kayci B. Hughes, Allison E. Osborn, Stacy Schauvliege, Jeffrey T. Hills, Vic Morgan, Christopher Woods, Susan Huntsman, Malcolm E. Rosser, Alexandra Shipley, Benjamin Schiller, Christina Cupp, Mark Thetford, Adam Weintraub, Kendall Johnson, Mitchell O’Donnell, Terry O’Donnell, Thomas Affeldt, Stephen Clouser, Brad Heckenkemper, John Wolfe, David Sturdivant and William E. Farrior. A total of 60 signatures appear on the petitions.

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: District Judge Seventh Judicial District, Office 3 Oklahoma County This vacancy is due to the passing of the Honorable Donald Deason on July 28, 2016. To be appointed to the office of District Judge of Oklahoma County, Office 3, one must be a legal resident of Oklahoma County Electoral Division 2 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 the link to Programs, then Judicial Nominating Commission, or by contacting Tammy Reaves, Administrative Office of the Courts, 2100 N. Lincoln, Suite 3, Oklahoma City, Oklahoma 73105, (405) 556-9862. Applications must be submitted to the Chairman of the Commission at the same address no later than 5:00 p.m., Friday, October 7, 2016. If applications are mailed, they must be postmarked by midnight, October 7, 2016. John H. Tucker, Chairman Oklahoma Judicial Nominating Commission

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BAR NEWS

Proposed Changes to the Oklahoma Rules of Professional Conduct Member Comments Requested The following are proposed changes to the Oklahoma Rules of Professional Conduct as proposed by the OBA Rules of Professional Conduct Committee. These changes are currently under consideration by the OBA Board of Governors. Members of the OBA are encouraged to review the proposed changes and submit any comments by Oct. 28, 2016, 1) via email to ORPCRulecomments@ okbar.org or 2) mail hard copy comments to ORPC Proposed Rule Changes Comments, OBA, P.O. Box 53036, Oklahoma City, OK 73152. Oklahoma Rules of Professional Conduct Chapter 1, App. 3-A Client-Lawyer Relationship Rule 1.18. Duties To Prospective Client (a) A person who discusses consults with a lawyer about the possibility of forming a clientlawyer relationship with respect to a matter is a prospective client. (b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with learned information from a prospective client shall not use or reveal that information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client. (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).

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(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or: (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (ii) written notice is promptly given to the prospective client. Comment [1] Prospective clients, like clients, may disclose information to a lawyer, place documents or other property in the lawyer’s custody, or rely on the lawyer’s advice. A lawyer’s discussions consultations with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients. [2] Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer’s advertising in

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any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response. See also Comment [4]. In contrast, a consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest. A person who communicates Such a person communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, and is thus not a “prospective client.” within the meaning of paragraph (a). Moreover, a person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a “prospective client.” [3] It is often necessary for a prospective client to reveal information to the lawyer during an initial consultation prior to the decision about formation of a client-lawyer relationship. The lawyer often must learn such information to determine whether there is a conflict of interest with an existing client and whether the matter is one that the lawyer is willing to undertake. Paragraph (b) prohibits the lawyer from using or revealing that information, except as permitted by Rule 1.9, even if the client or lawyer decides not to proceed with the representation. The duty exists regardless of how brief the initial conference may be. [4] In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether or not to undertake a new matter should limit the initial interview the initial consultation to only such information as reasonably appears necessary for that purpose. Where the information indicates that a conflict of interest or other reason for non-representation exists, the lawyer should so inform the prospective client or decline the representation. If the prospective client wishes to retain the lawyer, and if consent is possible under Rule 1.7, then consent from all affected present or former clients must be obtained before accepting the representation. [5] A lawyer may condition conversations a consultation with a prospective client on the person’s informed consent that no information disclosed during the consultation will prohibit Vol. 87 — No. 25 — 9/24/2016

the lawyer from representing a different client in the matter. See Rule 1.0(e) for the definition of informed consent. If the agreement expressly so provides, the prospective client may also consent to the lawyer’s subsequent use of information received from the prospective client. [6] Even in the absence of an agreement, under paragraph (c), the lawyer is not prohibited from representing a client with interests adverse to those of the prospective client in the same or a substantially related matter unless the lawyer has received from the prospective client information that could be significantly harmful if used in the matter. [7] Under paragraph (c), the prohibition in this Rule is imputed to other lawyers as provided in Rule 1.10, but, under paragraph (d)(1), imputation may be avoided if the lawyer obtains the informed consent, confirmed in writing, of both the prospective and affected clients. In the alternative, imputation may be avoided if the conditions of paragraph (d)(2) are met and all disqualified lawyers are timely screened and written notice is promptly given to the prospective client. See Rule 1.0(k) (requirements for screening procedures). Paragraph (d)(2)(i) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified. [8] Notice, including a general description of the subject matter about which the lawyer was consulted, and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent. [9] For the duty of competence of a lawyer who gives assistance on the merits of a matter to a prospective client, see Rule 1.1. For a lawyer’s duties when a prospective client entrusts valuables or papers to the lawyer’s care, see Rule 1.15. Oklahoma Rules of Professional Conduct Chapter 1, App. 3-A Advocate Rule 3.8. Special Responsibilities of a Prosecutor The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

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(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information; (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule; (g) The lawyer upon whom a subpoena is served shall be afforded a reasonable time to file a motion to quash compulsory process of his/ her attendance. Whenever a subpoena is issued for a lawyer who then moves to quash it by invoking attorney/client privilege, the prosecutor may not press further in any proceeding for the subpoenaed lawyer’s appearance as a witness until an adversary in camera hearing has resulted in a judicial ruling which resolves all the challenges advanced in the lawyer’s motion to quash. 1776

(h)When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall within a reasonable time: (1) disclose that evidence to an appropriate court and prosecutorial authority in the jurisdiction where the conviction occurred, and (2) if the judgment of conviction was entered by a court in which the prosecutor exercises prosecutorial authority, (i) unless a court authorizes delay, make reasonable efforts to disclose that evidence to the defendant’s attorney or if the defendant is not represented by counsel to the defendant, and (ii) if the defendant is not represented by counsel, move the court in which the defendant was convicted to appoint counsel to assist the defendant concerning the evidence, and (iii) request an appropriate authority to investigate whether the defendant was convicted of an offense that the defendant did not commit. (i) When a prosecutor learns of clear and convincing evidence establishing that a defendant was convicted in a court in which the prosecutor exercises prosecutorial authority of an offense that the defendant did not commit, the prosecutor shall promptly notify the appropriate court and make reasonable efforts to notify the defendant’s counsel and the defendant. (j) A prosecutor’s judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (g) and (h) of this rule, though subsequently determined to have been erroneous, does not constitute a violation of this rule. AMENDMENTS TO OKLAHOMA RULE 3.8 COMMENT [1] [1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, and that guilt is decided upon the basis of sufficient evidence., and that special precautions are taken to prevent and to rectify the conviction of innocent persons. Precisely how far the prosecutor is required to

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go in this direction is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standard of Criminal Justice Relating to Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Applicable law may require other measures by the prosecutor, and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4. [2] In some jurisdictions, a defendant may waive a preliminary hearing and thereby lose a valuable opportunity to challenge probable cause. Accordingly, prosecutors should not seek to obtain waivers of preliminary hearings or other important pretrial rights from unrepresented accused persons. Paragraph (c) does not apply, however, to an accused appearing pro se with the approval of the tribunal. Nor does it forbid the lawful questioning of an uncharged suspect who has knowingly waived the rights to counsel and silence. [3] The exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or to the public interest. [4] Paragraphs (e) and (g) are intended to limit the issuance of lawyer subpoenas in grand jury and other criminal proceedings to those situations in which there is a genuine need to intrude into the client-lawyer relationship. It ensures that a subpoena caused to be issued by a prosecutor to the lawyer requesting evidence about a past or present client of a lawyer will be subject to judicial review upon a timely challenge by the subpoenaed lawyer. [5] Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. In the context of a criminal prosecution, a prosecutor’s extrajudicial statement can create the additional problem of increasing public condemnation of the accused. Although the announcement of an indictment, for example, will necessarily have severe consequences for the accused, a prosecutor can, and should, avoid comments which have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements Vol. 87 — No. 25 — 9/24/2016

which a prosecutor may make which comply with Rule 3.6(b) or 3.6(c). [6] Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which relate to responsibilities regarding lawyers and nonlawyers who work for or are associated with the lawyer’s office. Paragraph (f) reminds the prosecutor of the importance of these obligations in connection with the unique dangers of improper extrajudicial statements in a criminal case. In addition, under paragraph (f), a prosecutor has an affirmative duty to make reasonable efforts to prevent law enforcement personnel and others associated with or assisting the prosecution from making extrajudicial statements, even when such persons are not under the direct supervision of the prosecutor. AMENDMENTS TO ABA MODEL RULE 3.8 (h) COMMENT [7] [7] When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted person in a jurisdiction where the prosecutor does not exercise prosecutorial authority was convicted of a crime that the person did not commit, paragraph (h) requires, within a reasonable time, disclosure to an appropriate court and prosecutorial authority, such as the chief prosecutor of the jurisdiction where the conviction occurred. If the conviction was obtained in a jurisdiction where the prosecutor exercises prosecutorial authority, paragraph (h) requires the prosecutor also, in the absence of court-authorized delay, to, within a reasonable time, (1) disclose that evidence to the defendant’s attorney or if the defendant is not represented by counsel to the defendant, (2) move the court in which the defendant was convicted to appoint counsel for the defendant (if the defendant is not already represented by counsel), and (3) request an appropriate authority to investigate whether the defendant was convicted of an offense that the defendant did not commit. For purposes of paragraph (h), “knows” shall be interpreted to mean actual knowledge of the fact in question; indirect or implied knowledge does not trigger the duties set forth in paragraph (h), See Rule 1.0(f). PROPOSED COMMENT [7A] [7A] Good cause for delaying the notification required by paragraph (h)(2)(i) may include a reasonable concern that such notification would interfere with an ongoing investigation.

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PROPOSED COMMENT [7B] [7B] For purposes of this rule, “appropriate court” means the court in which the questioned conviction occurred or any other court with jurisdiction to render post-conviction relief in the matter. AMENDMENTS TO ABA MODEL RULE 3.8 (h) COMMENT [8] [8] When the requirements of paragraph (h) are met, the prosecutor should support the defendant’s efforts to seek a remedy consistent with justice, applicable law, and the circumstances of the case. Oklahoma Rules of Professional Conduct Chapter 1, App. 3-A Law Firms and Associations Rule 5.3. Responsibilities Regarding Nonlawyer Assistants With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. Comment [21] Paragraph (a) requires lawyers with managerial authority within a law firm to make rea1778

sonable efforts to establish internal policies and procedures designed to provide to ensure that the firm has in effect measures giving reasonable assurance that nonlawyers in the firm and nonlawyers outside the firm who work on firm matters will act in a way compatible with the professional obligations of the lawyer. with the Rules of Professional Conduct. See Comment [1] to Rule 5.1. Paragraph (b) applies to lawyers who have supervisory authority over the work of a nonlawyer. such nonlawyers within or outside the firm. Paragraph (c) specifies the circumstances in which a lawyer is responsible for the conduct of a nonlawyer such nonlawyers within or outside the firm that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer. Nonlawyers Within the Firm [12] Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services. A lawyer must assure that such assistants receive appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline. Nonlawyers Outside the Firm [3] A lawyer may use nonlawyers outside the firm to assist the lawyer in rendering legal services to the client. Examples include the retention of an investigative or paraprofessional service, hiring a document management company to create and maintain a database for complex litigation, sending client documents to a third party for printing or scanning, and using an Internet-based service to store client information. When using such services outside the firm, a lawyer must make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer’s professional obligations. The extent of this obligation will depend upon the circumstances, including the education, experience and reputation of the nonlawyer; the nature of the services involved; the terms of any arrangements concerning the protection of client information; and the legal and

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ethical environments of the jurisdictions in which the services will be performed, particularly with regard to confidentiality. See also Rules 1.1 (competence), 1.2 (allocation of authority), 1.4 (communication with client), 1.6 (confidentiality), 5.4(a) (professional independence of the lawyer), and 5.5(a) (unauthorized practice of law). When retaining or directing a nonlawyer outside the firm, a lawyer should communicate directions appropriate under the circumstances to give reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer. [4] Where the client directs the selection of a particular nonlawyer service provider outside the firm, the lawyer ordinarily should agree with the client concerning the allocation of responsibility for monitoring as between the client and the lawyer. See Rule 1.2. When making such an allocation in a matter pending before a tribunal, lawyers and parties may have additional obligations that are a matter of law beyond the scope of these Rules. Oklahoma Rules of Professional Conduct Chapter 1, App. 3-A Information About Legal Services Rule 7.1. Communications Concerning a Lawyer’s Services A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the communication considered as a whole not materially misleading. Comment [1] This Rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer’s services, statements about them must be truthful. [2] Truthful statements that are misleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.

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[3] An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case. Similarly, an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public. a prospective client. [4] See also Rule 8.4(e) for the prohibition against stating or implying an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct. Oklahoma Rules of Professional Conduct Chapter 1, App. 3-A Information About Legal Services Rule 7.2. Advertising (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. (b) A lawyer shall not give anything of value, directly or indirectly, to a person for recommending the lawyer’s services except that a lawyer may (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority: (3) pay for a law practice in accordance with Rule 1.17; and (4) without paying anything solely for the referral, refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if

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(i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement. (c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content. Comment [1] To assist the public in learning about and obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public’s need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching. [2] This Rule permits public dissemination of information concerning a lawyer’s name or firm name, address, email address, website, and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance. [3] Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions against television and other forms of advertising, against advertising going beyond specified facts about a lawyer, or against “undignified” advertising. Television, the Internet, and other forms of electronic communication are is now one of among the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television, Internet, and other forms of electronic advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Lim1780

iting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant. Similarly, electronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this Rule. But see Rule 7.3(a) for the prohibition against the a solicitation of a prospective client through a real-time electronic exchange initiated by the lawyer. that is not initiated by the prospective client. [4] Neither this Rule nor Rule 7.3 prohibits communications authorized by law, such as notice to members of a class in class action litigation. Paying Others to Recommend a Lawyer [5] Except as permitted under paragraphs (b) (1)-(b)(4), Llawyers are not permitted to pay others for channeling professional work recommending the lawyer’s services or for channeling professional work in a manner that violates Rule 7.3. A communication contains a recommendation if it endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities. Paragraph (b)(1), however, allows a lawyer to pay for advertising and communications permitted by this Rule, including the costs of print directory listings, online directory listings, newspaper ads, television and radio air time, domain-name registrations, sponsorship fees, banner ads, Internet-based advertisements, and group advertising. A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client-development services, such as publicists, public-relations personnel, business-development staff and website designers. Moreover, a lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator’s communications are consistent with Rule 7.1 (communications concerning a lawyer’s services). To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person’s legal problems when determining which lawyer should receive the referral. See also Rule 5.3 for the (duties of lawyers and law firms with respect to

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the conduct of nonlawyers); Rule 8.4(a) (duty to avoid violating the Rules through the acts of another). who prepare marketing materials for them. [6] A lawyer may pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A legal service plan is a prepaid or group legal service plan or a similar delivery system that assists people who seek prospective clients to secure legal representation. A lawyer referral service, on the other hand, is any organization that holds itself out to the public as a lawyer referral service. Such referral services are understood by laypersons the public to be consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this Rule only permits a lawyer to pay the usual charges of a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is one that is approved by an appropriate regulatory authority as affording adequate protections for the public. prospective clients. See, e.g., the American Bar Association’s Model Supreme Court Rules Governing Lawyer Referral Services and Model Lawyer Referral and Information Service Quality Assurance Act (requiring that organizations that are identified as lawyer referral services (i) permit the participation of all lawyers who are licensed and eligible to practice in the jurisdiction and who meet reasonable objective eligibility requirements as may be established by the referral service for the protection of the public prospective clients; (ii) require each participating lawyer to carry reasonably adequate malpractice insurance; (iii) act reasonably to assess client satisfaction and address client complaints; and (iv) do not make referrals prospective clients to lawyers who own, operate or are employed by the referral service.) [7] A lawyer who accepts assignments or referrals from a legal service plan or referrals from a lawyer referral service must act reasonably to assure that the activities of the plan or service are compatible with the lawyer’s professional obligations. See Rule 5.3. Legal service plans and lawyer referral services may communicate with prospective clients the public, but such communication must be in conformity with these Rules. Thus, advertising must not be false or misleading, as would be the case if the communications Vol. 87 — No. 25 — 9/24/2016

of a group advertising program or a group legal services plan would mislead the public prospective clients to think that it was a lawyer referral service sponsored by a state agency or bar association. Nor could the lawyer allow in-person, telephonic, or real-time contacts that would violate Rule 7.3. [8] A lawyer also may agree to refer clients to another lawyer or a nonlawyer professional, in return for the undertaking of that person to refer clients or customers to the lawyer. Such reciprocal referral agreements must not interfere with the lawyer’s professional judgment as to making referrals or as to providing substantive legal services. See Rules 2.1 and 5.4(c). Except as provided in Rule 1.5(e), a lawyer who receives referrals from a lawyer or nonlawyer professional must not pay anything solely for the referral, but the lawyer does not violate paragraph (b) of this Rule by agreeing to refer clients to the other lawyer or nonlawyer professional, so long as the reciprocal referral agreement is not exclusive and the client is informed of the referral agreement. For the purposes of Rule 7.2(b)(4), such reciprocal referral agreements do not constitute a prohibited thing of value. Conflicts of interest created by such agreements are governed by Rule 1.7. Reciprocal referral agreements should not be of indefinite duration and should be reviewed periodically to determine whether they comply with these Rules. This Rule does not restrict referrals or divisions of revenues or net income among lawyers within firms comprised of multiple entities. Oklahoma Modification The Oklahoma version of Rule 7.2(b)(4) adds language to the text and Comment to underscore that reciprocal referral agreements do not constitute a prohibited thing of value. The Oklahoma version retains the preexisting Oklahoma formulation extending the prohibition of Rule 7.2(b) to both direct and indirect things of value. Oklahoma Rules of Professional Conduct Chapter 1, App. 3-A Information About Legal Services Rule 7.3 Direct Contact With Prospective Solicitation of Clients (a) A lawyer shall not by in-person, live telephone or real-time electronic contact, solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:

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(1) is a lawyer, or (2) has a family, close personal, or prior professional relationship with the lawyer. (b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if: (1) the prospective client target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or (2) the solicitation involves coercion, duress or harassment. (c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from anyone a prospective client known to be in need of legal services in a particular matter shall include the words “Advertising Material” on the outside of the envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2). (d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan. Comment [1] A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. In contrast, a lawyer’s communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches. [12] There is a potential for abuse when a solicitation involves inherent in direct in-person, live telephone or real-time electronic contact by a lawyer with someone a prospective client known to need legal services. These 1782

forms of contact between a lawyer and a prospective client subject the layperson a person to the private importuning of the trained advocate in a direct interpersonal encounter. The person prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching. [23] This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation of prospective clients justifies its prohibition, particularly since lawyers have advertising and written and recorded communication permitted under Rule 7.2 offer alternative means of conveying necessary information to those who may be in need of legal services. Advertising and written and recorded In particular, communications, can which may be be mailed or autodialed or transmitted by email or other electronic means that do not involve real-time contact and do not violate other laws governing solicitations. These forms of communications and solicitations make it possible for the public a prospective client to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the prospective client the public to direct in-person, telephone or real-time electronic persuasion that may overwhelm the client’s a person’s judgment. [34] The use of general advertising and written, recorded or electronic communications to transmit information from lawyer to the public prospective client, rather than direct in-person, live telephone or real-time electronic contact, will help to assure that the information flows cleanly as well as freely. The contents of advertisements and communications permitted under Rule 7.2 can be permanently recorded so that they cannot be disputed and may be shared with others who know the lawyer. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications, in violation of Rule 7.1. The contents of direct inperson, live telephone or real-time electronic conversations between a lawyer and a prospective client contact can be disputed and may not be subject to third-party scrutiny. Consequently, they are much more likely to approach (and

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occasionally cross) the dividing line between accurate representations and those that are false and misleading. [45] There is far less likelihood that a lawyer would engage in abusive practices against an individual who is a former client, or a person with whom the lawyer has close personal or family relationship, or in situations in which the lawyer is motivated by considerations other than the lawyer’s pecuniary gain. Nor is there a serious potential for abuse when the person contacted is a lawyer. Consequently, the general prohibition in Rule 7.3(a) and the requirements of 7.3(c) are not applicable in those situations. Also, paragraph (a) is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legalservice organizations or bona fide political, social, civic, fraternal., employee or trade organizations whose purposes include providing or recommending legal services to its their members or beneficiaries. [56] But even permitted forms of solicitation can be abused. Thus, any solicitation which contains information which is false or misleading within the meaning of Rule 7.1, which involves coercion, duress or harassment within the meaning of Rule 7.3(c)(2), or which involves contact with a prospective client someone who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of Rule 7.3(b)(1) is prohibited. Moreover, if after sending a letter or other communication to a client as permitted by Rule 7.2 the lawyer receives no response, any further effort to communicate with the recipient of the communication prospective client may violate the provisions of Rule 7.3(b). [67] This Rule is not intended to prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which the lawyer or lawyer’s firm is willing to offer. This form of

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communication is not directed to people who are seeking legal services for themselves. a prospective client. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer. Under these circumstances, the activity which the lawyer undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under Rule 7.2. [78] The requirement in 7.3(c) that certain communications be marked “Advertising Material” does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors. General announcements by lawyers, including changes in personnel or office location, do not constitute communications soliciting professional employment from a client known to be in need of legal services within the meaning of this Rule. [89] Paragraph (d) of this Rule permits a lawyer to participate with an organization which uses personal contact to solicit members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any lawyer who would be a provider of legal services through the plan. The organization must not be owned by or directed (whether as manager or otherwise) by any lawyer or law firm that participates in the plan. For example, paragraph (d) would not permit a lawyer to create an organization controlled directly or indirectly by the lawyer and use the organization for the in-person or telephone solicitation of legal employment of the lawyer through memberships in the plan or otherwise. The communication permitted by these organizations also must not be directed to a person known to need legal services in a particular matter but is to be designed to inform potential plan members generally of another means of affordable legal services. Lawyers who participate in a legal service plan must reasonably assure that the plan sponsors are in compliance with Rules 7.1, 7.2 and 7.3(b). See 8.4(a).

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Court of Civil Appeals Opinions 2016 OK CIV APP 54 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE MORGAN STANLEY ABS CAPITAL 1 INC. TRUST 2006-NC5, MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 2006 NC-5, Plaintiff/Appellee, vs. SHERRI D. MYERS AND CAREY MARK BACA, Defendants/Appellants, and John Doe; Jane Doe; Steven D. Lester; Karen Lester and New Century Mortgage Corporation, Additional Defendants. Case No. 112,832. August 3, 2016 APPEAL FROM THE DISTRICT COURT OF ROGERS COUNTY, OKLAHOMA HONORABLE SHEILA A. CONDREN, TRIAL JUDGE AFFIRMED Amy Collins, Baer, Timberlake, Coulson & Cates, P.C., Tulsa, Oklahoma, and Adam C. Doverspike, David E. Keglovits, Gable Gotwals, Tulsa, Oklahoma, for Plaintiff/Appellee, Michael W. McCoy, McCoy Law Office, Broken Arrow, Oklahoma, for Defendants/Appellants. Wm. C. Hetherington, Jr., Judge: ¶1 Defendants Sherri D. Myers and Carey Mark Baca (Appellants) appeal an order which denied their motion to vacate a summary judgment entered in favor of Plaintiff Deutsche Bank National Trust Co., as Trustee for the Certificate Holders of the Morgan Stanley ABS Capitol 1 Inc. Trust 2006-NC5, Mortgage PassThrough Certificates, Series 2006 NC-5 (Bank). The finding of the trial court that a violation of Rogers County Local Court Rule 2.2 did not render the filed foreclosure journal entry of judgment void was neither an abuse of discretion nor contrary to law and we affirm. Case History ¶2 Appellants do not dispute there was a valid and enforceable Note and Mortgage that had been in default on and after May 1, 2010. The only appeal issue argued in Appellants’

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brief deals with trial court failure to follow local court rules: PROPOSITION NO. 1: THE LOCAL RULE 2.2 CONCERNING “JOURNAL ENTRY APPROVAL” IS A PROPER RULE DULY ADOPTED BY THE NORTHEAST JUDICIAL ADMINISTRATIVE DISTRICT OF OKLAHOMA AND ITS PROVISIONS ARE INTENDED TO BE APPLIED BY THE COURTS IN THE SAME WAY THAT OTHER VALID COURT RULES OR STATE STATUTES ARE TO BE APPLIED. SINCE APPELLEE IN THIS CASE FAILED TO FOLLOW THE CLEAR AND SIMPLE DEADLINES RELATING TO THE FILING OF THE SUBJECT JOURNAL ENTRY, SUCH JOURNAL ENTRY MUST BE ADJUDICATED TO BE “VOID” AS A MATTER OF LAW.1 A second related proposition argues in light of the failure to follow the court rule, the journal entry must be vacated as a void judgment. ¶3 Appellee’s motion for summary judgment was filed August 22, 2012 and the same was granted by Minute Order dated December 14, 2012. The record indicates Bank circulated a final journal entry but was unable to get a signed copy returned and filed a motion to settle journal entry January 25, 2013. This request to settle was heard and foreclosure judgment entered for Appellee February 20, 2013. Appellants filed their first motion to vacate on March 22, 2013, arguing lack of standing and attorney fee issues.2 The trial court granted the motion to vacate only as it related to the attorney fee and a subsequent appeal from that order by Appellants was later dismissed. Appellants’ second motion to vacate and a related request to stay execution was filed on October 10, 2013, arguing a void judgment in violation of Local Rule 2.2. This motion was not set for hearing. Appellants then filed on December 23, 2013 a request for the court to rule or set for hearing their second request to vacate. The trial court then entered a minute order on February 5, 2014 denying Appellants’ second motion to vacate and the final Order was entered on April 9, 2014. From denial of Appellants’ second motion to vacate the journal entry, this appeal follows.

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Standard of Review ¶4 The record is clear the final journal entry of judgment was not filed of record within thirty days of the trial court’s ruling. Therefore, the standard of review for a trial court’s ruling either vacating or refusing to vacate a judgment is abuse of discretion. Wells Fargo Bank, N.A. v. Heath, 2012 OK 54, ¶ 7, 280 P.3d 328, 332. A clear abuse-of-discretion standard includes appellate review of both fact and law issues. Id. An abuse of discretion occurs when a court bases its decision on an erroneous conclusion of law, or where there is no rational basis in evidence for the ruling. Id. Analysis ¶5 Rogers County Local Court Rule 2.2 reads in part: .... The Journal Entry must be submitted to the trial Judge and filed within thirty (30) days of the Judge’s ruling, or if counsel do not agree as to the form of Journal Entry, attach the proposed Journal Entry to a Motion to Settle also filed within the same thirty-day (30) period. The party not approving shall submit in writing his specific objections to the proposed Journal Entry prior to hearing on the settlement. ¶6 Appellants argue violation of a “mandatory term” proscribed in the rule when Bank did not file a final journal entry of judgment in foreclosure within thirty days of the judge’s ruling on December 14, 2012. Appellants cite to 57 C.J. 548 out of People v. O’Rourke, 124 Cal. App. 752, 13 P.2d 989 for their argument that: ... the term “shall” is a work of command, and one which has always, or which must be given a compulsory meaning; as denoting obligation. It has a peremptory meaning, and it is generally imperative or mandatory. It has the invariable significance of excluding the idea of discretion.... ¶7 Appellants argue for mandatory compliance and that Bank could have and should have joined in vacating the journal entry “... due to the obvious and admitted irregularities, under the provisions of 12 O.S. § 1031(3)” (3. For mistake, neglect, or omission of the clerk or irregularity in obtaining a judgment or order;) and § 1038 (Proceeding commencement requirements).

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¶8 Appellants’ Proposition II argues in summary, Rule 2.2 has the same effect as a legislatively adopted statute; therefore, because it was not filed within thirty days of the ruling, the journal entry must be vacated as void. ¶9 Appellants’ propositions fail to consider local court rules “shall not conflict with statutes of this state.” 20 O.S. 2011 § 91.8. Pursuant to 12 O.S. 2007 § 696.2(A), entitled “Preparation, service, and filing of judgments, decrees and appealable orders” the court “may direct counsel for any party to the action to prepare a draft for the signature of the court, in which event, the court may prescribe procedures for the preparation and timely filing of the judgment...including, but not limited to, the time within which it is to be submitted to the court.” Although a trial judge in Rogers County may certainly order counsel to prepare and submit a journal entry for its signature within the maximum thirty days set in Local Rule 2.2, § 696.2(A) grants the court discretion to prescribe submission and filing times for a journal entry beyond the Rule 2.2 thirty-day maximum. To the extent Local Rule 2.2 seeks to limit a court’s discretion over procedures for the preparation of a journal entry and the timing of its submission for the court’s signature and filing, we conclude it conflicts with § 696.2(A) and therefore find no § 1031(3) irregularity or abuse of discretion. ¶10 In Woods v. Computer Sciences Corp., 2011 OK CIV APP 17, 247 P.3d 1201, another division of the Court of Civil Appeals addressed the argument that failure to comply with Oklahoma County Local Rule 11, which requires approval of all attorneys on a journal entry memorializing the court’s ruling, made a dismissal order void. The Court considered 12 O.S. 2009 § 696.3 mandates filed judgments to include specific information3 and “any other matter approved by the court” but does not require the approval of counsel of record. Because the trial court either could follow Local Rule 11 and require signatures of the counsel of record or could waive such signatures as permitted by § 696.3(A)(4) and enter a judgment or order without validating the orders, the Woods Court found no basis for vacating the dismissal order which the court had accepted and entered without the plaintiff’s counsel’s approval. We agree with the Woods Court’s analysis.4

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¶11 The trial court’s denial of Appellants’ motion to vacate was neither an abuse of discretion nor contrary to law, and we AFFIRM. BELL, P.J., and JOPLIN, J., concur. Wm. C. Hetherington, Jr., Judge: 1. Appellants’ Petition In Error lists eight issues to be argued on appeal. Six of the eight deal with Local Court Rule 2.2 discussed in this opinion and the other two challenge standing. As the court rule issue is the only issue briefed by Appellants, we will not address the remaining six issues in this opinion. Okla. Sup. Ct. Rule 1.11(k)(1) (Issues raised in the Petition in Error but omitted from the brief may be deemed waived. Argument without supporting authority will not be considered.); 12 O.S. 2001, ch 15, app. 1; see also In re Wallace Revocable Trust, 2009 OK 16, ¶ 1, n. 2, 204 P.3d 80, 87.

2. We note Appellants called their request to vacate a “motion.” Bank did not challenge the fact that under 12 O.S. Supp. 1999 §1031.1, arguably the motion was filed more than thirty days after February 20, 2013 and was not referred to as a “Petition.” However, we also note the motion was drafted in the form of a Petition and conformed to 12 O.S. § 1033 and we determine this motion properly preserved the issues for trial court consideration. 3. Filed judgments must include a caption stating the name of the court, the names and designations of the parties, the case number and the title of the instrument, a statement of the disposition of the action, proceeding or motion, the signature of the court, and any other matter approved by the court. 4. The record reveals the trial court stated the following in its order denying the motion to vacate: The Court, after hearing oral argument, FINDS that, although the Journal Entry of Judgment was not filed within thirty (30) days from the date judgment was granted as required by Local Rule 2.2, there is no authority for the remedy requested by Defendants and the failure to comply with Local Rule 2.2 did not render the judgment void.

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Vol. 87 — No. 25 — 9/24/2016

CALENDAR OF EVENTS

September 28 29



30

OBA Financial Institutions and Commercial Law Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Eric L Johnson 405-602-3812 OBA Solo & Small Firm Conference Planning Committee meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Noel Tucker 405-348-1789 or Ronald Paul Lander 918-931-2681 OBA Professionalism Committee meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Patricia Podolec 405-760-3358

17

OBA Professional Responsibility Commission meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Gina Hendryx 405-416-7007

18

October 4 6 7 14

OBA Government and Administrative Law Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Michael Mannes 405-473-0352 OBA Lawyers Helping Lawyers Discussion Group; Office of Tom Cummings, 701 NW 13th St., Oklahoma City, OK 73012; Contact Jeanne M. Snider 405-366-5466 or Hugh E. Hood 918-747-4357 OBA Alternative Dispute Resolution Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with videoconference; Contact John H. Graves 405-684-6735



19 20

OBA Access to Justice Committee meeting; 11 a.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Michael Speck 405-205-5840



OBA Law-related Education Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Professor Paul Clark 405-208-6303 or Brady Henderson 405-524-8511



OBA Family Law Section meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City with videoconference; Contact Luke Barteaux 918-585-1107

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OBA Appellate Practice Section meeting; 11:30 a.m.; Oklahoma Bar Center, Oklahoma City with videoconference; Contact Mark Koss 405-720-6868 OBA Bench and Bar Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Judge David B. Lewis 405-556-9611 or David Swank 405-325-5254 OBA Women in Law Committee meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Ann E. Keele 918-592-1144 or Reign Grace Sikes 405-419-2657 OBA Indian Law Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Deborah Reed 918-728-2699 OBA Diversity Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Tiece Dempsey 405-609-5406 OBA High School Mock Trial Committee meeting; 5:30 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Judy Spencer 405-755-1066 OBA Board of Governors meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact John Morris Williams 405-416-7000 OBA Professionalism Committee meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Patricia Podolec 405-760-3358

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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS Monday, August 22, 2016 RE-2015-380 — On January 23, 2012, Appellant Donald Gene Widener III entered pleas of guilty in Kay County District Court Case No. CF-2011-441 to Count 1 - Assault and Battery with a Dangerous Weapon and Count 2 – Malicious Injury to property and in Case No. CF-2011-495 to Count 1 – Possession of Firearms After Conviction of a Felony. Appellant was convicted and the Honorable Phillip A. Ross, District Judge, sentenced Appellant pursuant to a plea agreement to ten years imprisonment, with all but five years suspended in each of the three counts. On August 1, 2014, the State filed an application to revoke Appellant’s suspended sentence. Judge Ross revoked Appellant’s remaining suspended sentence in full. Appellant appeals. The revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by: Johnson, J.; Smith, P.J.: Concur; Lumpkin, V.P.J.: Concur; Lewis, J.: Concur; Hudson, J.: Concur. Tuesday, August 23, 2016 C-2015-1141 — Petitioner, Carlos Deon Thomas, entered a blind plea of no contest to the offenses of, count one, robbery with a firearm in violation of 21 O.S.2001, § 801, after former conviction of one felony, and, count two, felonious possession of a firearm in violation of 21 O.S.Supp.2007, § 1283, in Tulsa County district court case number CF-20076028. The Honorable William C. Kellough, district judge, accepted the plea and sentenced Thomas to forty (40) years imprisonment on count one and ten (10) years imprisonment on count two, ordering that the sentences be served concurrently. Thomas entered his blind plea on May 20, 2009. He was sentenced on July 6, 2009. On July 16, 2009, Thomas filed a motion to withdraw his plea. The trial court denied the motion on July 28, but no appeal was perfected. The district court recommended and this Court granted an appeal out of time on November 13, 2015. Petitioner is now before this Court with his certiorari appeal from the denial of the motion to withdraw the plea. The trial court’s order denying Petitioner’s mo1788

tion to withdraw plea is AFFIRMED and the Application for Writ of Certiorari is DENIED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs in Results; Johnson, J., Concurs; Hudson, J., Concurs. F-2015-570 — Mark Joseph Lawler, Appellant, was tried by jury for the crime of First Degree Rape in Case No. CF-2010-85 in the District Court of Hughes County. The jury returned a verdict of guilty and recommended as punishment life imprisonment. The trial court sentenced accordingly. From this judgment and sentence Mark Joseph Lawler has perfected his appeal. AFFIRMED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., Concur in Result; Johnson, J., Concur; Lewis, J., Concur; Hudson, J., Concur. F-2015-619 — David Eugene Harris, Appellant, was tried by the court and found guilty of Count 1, distribution of a controlled dangerous substance, in violation of 63 O.S.Supp.2012, § 2-401(A)(1); Count 2, maintaining a place for keeping or selling a controlled dangerous substance, in violation of 63 O.S.2011, § 2-404(A)(6); Count 3, possession of a firearm after former conviction of a felony, in violation of 21 O.S.2011, § 1283; and Count 4, possession of a controlled dangerous substance, in violation of 63 O.S.2011, § 2-402(B)(1), in the District Court of Grady County, Case No. CF-2012-378. The Honorable Richard G. Van Dyck, District Judge, found Appellant guilty after former conviction of two (2) or more felonies, and sentenced him to concurrent terms of ten (10) years imprisonment in each count. The trial court sentenced accordingly. From this Judgment and Sentences, David Eugene has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs in Results; Johnson, J., Concurs; Hudson, J., Concurs. Wednesday, August 24, 2016 F-2015-676 — Richard T. Mitchell, Appellant, was tried by jury for the crime of Robbery with a Firearm After Two or More Felony Convictions (Count 1); Conspiracy to Commit a Felony, to wit: Robbery with a Firearm After Former Conviction of a Felony (Count 2); and Unauthor-

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ized use of a Motor Vehicle (Count 3) in Case No. CF-2014-317 in the District Court of Oklahoma County. The jury returned a verdict of guilty and recommended as punishment imprisonment for life in Count 1, ten (10) years in Count 2, and three (3) years in Count 3. The trial court sentenced accordingly. From this judgment and sentence Richard T. Mitchell has perfected his appeal. The Judgment and Sentences are AFFIRMED. Opinion by: Lumpkin, V.P.J.; Smith, P.J., Concur In Results; Johnson, J., Concur; Lewis, J., Concur; Hudson, J., Concur.

this case this day of sound mind.” On November 30, 2015, counsel filed an Application to Withdraw Guilty Plea. At a hearing held on December 18, 2015, where Petitioner was represented by counsel, the motion to withdraw was denied. It is that denial which is the subject of this appeal. The order of the district court denying Petitioner’s motion to withdraw guilty plea is AFFIRMED. Opinion by: Lumpkin, V.P.J.; Smith, P.J., Concur in Results; Johnson, J., Concur in Results; Lewis, J., Concur; Hudson, J., Concur.

Thursday, August 25, 2016

F-2015-845 — George Edmond Walker, Appellant, was tried by jury for two counts of Assault and Battery with a Dangerous Weapon, After Former Conviction of Three Felonies (Counts 1 and 2) in Case No. CF-2014-22 in the District Court of Pottawatomie County. The jury convicted Walker of Count 1, but acquitted him of Count 2 and set punishment at forty years imprisonment on Count 1. The trial court sentenced accordingly. From this judgment and sentence George Edmond Walker has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: Johnson, J.; Smith, P.J., concurs in results; Lumpkin, V.P.J., concurs; Lewis, J., concurs; Hudson, J., concurs.

F-2015-643 — Tucson Delayne Redd, Appellant, was tried by jury for the crimes of Robbery with a Dangerous Weapon (Count 1) and Using a Vehicle to Facilitate the Intentional Discharge of a Firearm (Count 2) in Case No. CF-2013-6039, and Robbery with a Firearm (Count 1), Conspiracy to Commit a Felony (Count 2), and Kidnapping (Count 3) in CF-2013-6212 in the District Court of Oklahoma County. The jury returned a verdict of guilty and recommended as punishment in Case No. CF-2013-6039 – thirty years imprisonment on each of Counts 1 and 2; and in Case No. CF-2013-6212 – fifteen years imprisonment on Count 1, five years and a fine of $2,500.00 on Count 2 and two years imprisonment on Count 3. The trial court sentenced accordingly and ordered the sentences to be served consecutively for a total of 82 years. From this judgment and sentence Tucson Delayne Redd 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. C-2016-8 — Sonya Kaye Cox, Petitioner, was charged for the crime of Possession of Controlled Drug with Intent to Distribute After Former Conviction of Two or More Felonies (Counts I and II), and Unlawful Possession of Drug Paraphernalia (misdemeanor) (Count III) in Case No. CF-2014-173 in the District Court of Pawnee County. On September 25, 2015, Petitioner entered blind pleas of guilty to Counts II and III before the Honorable Jefferson D. Sellers, District Judge. The pleas were accepted and on November 20, 2015, Petitioner was sentenced to imprisonment for six (6) years in Count II after former conviction of two or more felonies and a $500.00 fine in Count III. On November 25, 2015, Petitioner filed a handwritten letter stating “I Sonya Cox am withdrawing my plea and I am releasing my attorney from Vol. 87 — No. 25 — 9/24/2016

Wednesday, August 31, 2016 F-2015-715 — Kevin Judd Lemons, Appellant, was tried in a non-jury trial before the Honorable Dennis L. Gay, Associate District Judge, and convicted of the crime of Trafficking in Illegal Drugs, after Former Conviction of Two or More Felonies (Count 1), Transporting an Open Container of Liquor (Count 2), and Unlawful Possession of Drug Paraphernalia (Count 3) in Case No. CF-2014-3 in the District Court of Jefferson County. The Appellant was sentenced to twenty-five (25) years imprisonment in Count 1 and a $25,000.00 fine; six (6) months in the County Jail in Count 2, and one (1) year in Count 3, all sentences ordered to run concurrently with credit for time served. From this judgment and sentence Kevin Judd Lemons has perfected his appeal. The Judgment and Sentence is AFFIRMED, except the sentence in Count 1 is modified to Seventeen (17) years in prison and the fine in Count 1 is modified to $10,000.00. Opinion by: Lumpkin, V.P.J.; Smith, P.J., Concur; Johnson, J., Concur; Lewis, J., Concur; Hudson, J., Concur in Part/ Dissent in Part.

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Friday, September 2, 2016 F-2015-1127 — Carl Leon Mathis, Appellant, was tried by jury for the crimes of Count I Kidnapping, Count III - Assault and Battery with a Dangerous Weapon and Count V Assault with a Dangerous Weapon in Case No. CF-2014-124 in the District Court of Osage County. The jury returned a verdict of guilty and recommended as punishment 20 years imprisonment on Count I, and 10 years on each of Counts III and V. The trial court sentenced accordingly and ordered the sentences to run consecutively. From this judgment and sentence Carl Leon Mathis has perfected his appeal. AFFIRMED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., concur in result Johnson, J., concur; Lewis, J., concur; Hudson, J., concur. F-2015-443 — Oswaldo Frasquillo, Appellant, was convicted of first degree (heat of passion) manslaughter in violation of 21 O.S.2011, § 711, in the District Court of Oklahoma County, case number CF-2013-6964, before the Honorable Donald L. Deason, District Judge. The jury set punishment at twelve (12) years imprisonment, and Judge Deason sentenced Frasquillo accordingly. Frasquillo has perfected his appeal to this Court. AFFIRMED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs in Results; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Concurs. F-2015-590 — Appellant, Ronnie Dean Haskins, III, was convicted by jury of, count one, first degree malice murder in violation of 21 O.S.Supp.2012, § 701.7(B), and, count two, felonious possession of a firearm in violation of 21 O.S.Supp.2012, § 1283, both after former conviction of two or more felonies, in the District Court of Tulsa County, case number CF-2013-4272, before the Honorable William D. LaFortune, District Judge. The jury set punishment at life without the possibility of parole and a $10,000.00 fine on count one and life (with parole) and a $10,000.00 fine on count two. Judge LaFortune sentenced Haskins in accordance with the jury verdict ordering that the sentences be served consecutively. Haskins has perfected his appeal to this Court. AFFIRMED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs in Results; Hudson, J., Concurs.

COURT OF CIVIL APPEALS (Division No. 1) Friday, August 19, 2016 113,915 — Watie Choate, Plaintiff/Appellee, vs. Matt Brassfield and Old Guys Rule, L.L.C., Defendants/Appellants. Appeal from the District Court of Cherokee County, Oklahoma. Honorable Sandy Crosslin, Trial Judge. The trial court determined an oral contract existed between Plaintiff and Defendants to divide the profits of a construction contract and awarded Plaintiff judgment for one-half of the profits. There was sufficient competent evidence to support the judgment of the trial court that an oral contract existed between Plaintiff and Old Guys Rule for performance of the Farm Bureau contract wherein they agreed to split the profits. However, based on 12 O.S. 2011 §682(B)(D), the trial court erred in ordering judgment against Brassfield, individually. We AFFIRM IN PART, REVERSE IN PART and REMAND WITH INSTRUCTIONS to dismiss the judgment against Defendant Matt Brassfield, individually. Opinion by Goree, J.; Buettner, V.C.J., P.J., and Mitchell, J., concur. Friday, August 26, 2016 113,632 — Joint Technology Inc., d/b/a ReVert Systems, Plaintiff/Appellee/CounterAppellant, vs. Michael Corum, a/k/a Michael A. Corum, Defendant/Appellant/CounterAppellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Barbara Swinton, Judge. Defendant/Appellant/Counter-Appellee (Corum) appeals from a $7,996.50 judgment in favor of Plaintiff/ Appellee/Counter-Appellant (Joint) on Joint’s breach of contract claim. The court found the Agreement between the parties was void but found that Corum was liable under an Addendum to the Agreement. We find the court erred as a matter of law by severing the Addendum because the invalid contract was an essential part of the parties’ entire agreement. Further, the Addendum was void in its own right because it violated the Medicare Anti-Kickback Act, 42 U.S.C. §1320a-7b(b). Accordingly, we reverse the trial court’s judgment. Joint’s counter-appeal for prejudgment interest is moot. REVERSED. Opinion by Mitchell, J.; Buettner, V.C.J., P.J., and Goree, J., concur. 114,073 — In the Matter of the Estate of Bessie Ann Williams, Deceased: Otis W. Williams, Jr., Appellant, vs. Robyn Owens, Personal Representative, Appellee. Appeal from the District

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Court of Tulsa County, Oklahoma. Honorable Kurt G. Glassco, Judge. Appellant (Williams) seeks review of an Order Allowing Amended Final Account, Fixing and Allowing Fees, Ratification and Confirmation of Heirship and Decree of Distribution in the probate case for the Estate of Bessie Ann Williams (the Estate). Appellee (Owens) was appointed as Personal Representative of the Estate when Decedent’s surviving children, Williams and his brother Cornell, began to argue about the handling of the Estate. Most of the argument centered on two parcels of real property. The properties were eventually sold at public auction, and the sales were confirmed by the court. After almost four years of contention between the parties, the Amended Final Account was filed. Owens waived her statutory personal representative fee and instead was awarded $25,975.23 in attorney fees. Williams presents no argument or evidence to support his claim that the fees were unreasonable, and the record shows that his own conduct contributed to delaying the proceedings and, thus, to an increase in fees. Accordingly, we find the attorney fee award was not an abuse of discretion. Nor do we find any error in the public sale of the two parcels of property. AFFIRMED. Opinion by Mitchell, J.; Buettner, V.C.J., P.J., and Goree, J., concur. 114,689 — William Palmer, Plaintiff/Appellant, vs. David Assaleh, Defendant/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Bryan C. Dixon, Judge. Plaintiff/Appellant William Palmer appeals from the trial court’s order dismissing his negligence claim based on the statute of limitations. After de novo review, we hold the statute of limitations had expired when Palmer filed his amended petition, and the amended petition did not relate back to the original petition. We affirm. AFFIRMED. Opinion by Buettner, V.C.J., P.J.; Mitchell, J., and Goree, J., concur. Friday, September 2, 2016 114,092 — Monica Rachelle Nilles Tutt, Petitioner/Appellee, vs. William G. Nilles, Respondent/Appellee, State of Oklahoma, ex rel. Department of Human Services, Child Support Services Division, Necessary Party-Appellant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Stephen R. Clark, Judge. Appellant State of Oklahoma, ex rel., Department of Human Services Child Support Services Division (DHS) appeals the district court’s decision affirming an administrative finding that a child support arrearage judgVol. 87 — No. 25 — 9/24/2016

ment entered against Respondent/Appellee William G. Nilles (Father) prior to November 1, 1991, was dormant and unenforceable. We affirm. AFFIRMED. Opinion by Buettner, V.C.J., P.J.; Mitchell, J., concurs, and Goree, J., dissents with opinion. 114,097 — In Re Guardianship of G.M.G., a minor child. Fabian Guzman, Appellant, vs. Bonnie Scanlon, Appellee. Appeal From the District Court of Mayes County, Oklahoma. Honorable Shawn S. Taylor, Judge. Appellant Fabian Guzman (Father) appeals from the trial court’s denial of his application to terminate guardianship of his daughter and the standards and visitation schedule ordered by the trial court. We hold the trial court erred by refusing to terminate the guardianship. The matter is reversed and remanded for further proceedings. REVERSED AND REMANDED. Opinion by Buettner, V.C.J., P.J.; Mitchell, J., and Goree, J., concur. 114,112 — Timothy Marvin Bishop, Plaintiff/ Appellant, vs. State of Oklahoma, ex rel. Department of Human Services; Kristin Kyle-Moon; Robyn Singleton Szuba; Jane Doe #1, DHS Worker assigned to monitor Lewis foster home; Jane Doe #2, DHS Worker assigned to supervise monitor of Lewis foster home; Jane Doe #3, DHS Worker assigned to approve Lewis foster home; Jane Doe #4, DHS Worker assigned to supervise Treatment Worker Kyle Moon, Jane Doe #5, DHS Supervisor Assigned to Supervise Investigator Szuba, Defendants/Appellees, Defendants/Appellees. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Patricia G. Parrish, Judge. Plaintiff/Appellant Timothy Marvin Bishop appeals the District Court’s Journal Entry which denied Bishop’s Application for Leave to File Second Amended Petition and found it was without jurisdiction to proceed. Bishop sought leave to file an amended petition in the District Court (“state court”) after Defendants/ Appellees the State of Oklahoma, ex rel., Department of Human Services (DHS), Kristen Kyle-Moon, and Robyn Singleton Szuba removed this case to federal court. The state court correctly found it was without jurisdiction to proceed in this case after removal. We affirm. AFFIRMED. Opinion by Buettner, V.C.J., P.J.; Mitchell, J., and Goree, J., concur. 114,710 — In the Matter of C.C., a Child Under 18 Years of Age: Jesse Clintsman, Appellant, vs. State of Oklahoma, Appellee. Appeal from the District Court of Tulsa County, Okla-

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homa. Honorable Rodney Sparkman, Trial Judge. The single issue on appeal is whether the court’s order terminating parental rights should be reversed on grounds that DHS failed to use reasonable efforts to reunite the child with her father. We hold that Jesse Clintsman, Appellant/Father, was not denied due process of law and the order terminating his parental rights to C.C. is affirmed. AFFIRMED. Opinion by Goree, J.; Buettner, V.C.J., P.J., and Mitchell, J., concur. 114,890 — (Comp. w/114,891) David W. Rathbone, Plaintiff/Appellant, vs. State of Oklahoma ex rel., District Attorney, District 27; Brian Kuester, Individually; and, Jack Thorp, Individually, Defendants/Appellees. Appeal from the District Court of Wagoner County, Oklahoma. Honorable Douglas W. Golden, Trial Judge. Plaintiff/Appellant, David W. Rathbone, seeks review of the trial court’s order granting the motion to dismiss his petition for failure to state a claim upon which relief may be granted. We hold that Rathbone’s petition stated a claim for retaliatory discharge under the Workers’ Compensation Act, but did not state claims for tortious wrongful discharge in violation of public policy, negligent supervision, training, and retention, or for interference with contract and economic advantage. The trial court’s order is reversed to the extent it dismissed Rathbone’s cause of action for retaliatory discharge against office under the Workers’ Compensation Act. It is otherwise affirmed and this matter is remanded for further proceedings consistent with this opinion. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. Opinion by Goree, J.; Buettner, V.C.J., P.J., and Mitchell, J., concur. (Division No. 2) Wednesday, August 17, 2016 113,711 — Gerardo Ochoa-Pena, Defendant/ Appellant, v. State of Oklahoma ex rel. Oklahoma Horse Racing Commission, Plaintiff/ Appellee. Appeal from the District Court of Oklahoma County, Hon. Bill Graves, Trial Judge. Defendant seeks review of the district court’s order affirming the order of Plaintiff/ Appellee (OHRC). In the agency proceedings below, an evidentiary hearing was held before the three-member Board of Stewards of OHRC after Defendant’s horse tested positive for a prohibited substance and after Defendant’s horse placed first in a race at Remington Park. The Board of Stewards found against Defendant; in particular, the Board found that a one-year 1792

suspension and a $2,500 fine “is a sufficient penalty for [Defendant] … for a horse under his supervision testing positive for the drug Fluphenazine,” and the Board further ordered that Defendant’s horse be disqualified from the firstplace finish. On appeal to OHRC, OHRC affirmed the Board of Stewards’ order, and on appeal from OHRC’s order, the district court also affirmed. OHRC’s order is well-reasoned and is supported by the law and the facts. As to the factual issues raised by Defendant, although some dispute exists in the record, the findings of OHRC are clearly supported by substantial, competent evidence. Thus, this Court cannot substitute its judgment as to the weight of the evidence for that of the finder of fact, but must affirm those determinations. As to the remaining arguments made by Defendant, including his procedural due process arguments, we conclude these arguments are without merit for the same reasons stated by OHRC. We do not reach this conclusion lightly; rather, only after a thorough review of the facts and law pertaining to Defendant’s arguments do we conclude that the order of OHRC adequately explains the appropriate decision in this case. Therefore, we adopt OHRC’s findings and conclusions, and we affirm. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Goodman, C.J., and Thornbrugh, P.J., concur. Friday, August 19, 2016 114,549 — Dale DeWayne Watkins, Petitioner, v. Creek County Sheriff’s Office, CompSource of Oklahoma, and the Workers’ Compensation Court of Existing Claims, Respondents. Proceeding to review an Order of a three-judge panel of the Workers’ Compensation Court of Existing Claims, Hon. David P. Reid, Trial Judge. Petitioner (Claimant) seeks review of the panel’s Order affirming the trial court’s order denying Claimant’s request for permanent total disability (PTD) benefits. We conclude the trial court’s determinations that Claimant’s combination of impairments “do not preclude gainful employment” and that Claimant is not PTD as a result of his combined injuries are supported by competent evidence. The panel properly affirmed those determinations. In addition, we are not persuaded by Claimant’s argument regarding the alleged inconsistency of two trial court orders in the proceedings below. Because the panel’s Order is supported by competent evidence and is not contrary to law, we sustain. SUSTAINED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Thorn-

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brugh, P.J., and Fischer, J. (sitting by designation), concur. Monday, August 22, 2016 113,864 — In re the Marriage of: Michael E. Biehler, Petitioner/Appellee, v. Jodi L. Biehler, Respondent/Appellant. Appeal from an Order of the District Court of Oklahoma County, Hon. Howard Haralson, Trial Judge. The respondent, Jodi L. Biehler (Wife), appeals a Decree of Dissolution of Marriage entered in an action brought by the petitioner, Michael E. Biehler (Husband). The issues in this appeal involve child support calculation and credit, support alimony and the valuation of the husband’s horse training business. The trial court’s rulings regarding husband’s business valuation, support alimony, and the shared parenting credit are not against the clear weight of the evidence or contrary to law and these rulings are affirmed. The trial court imputed income to Wife and added the sum to her actual income. The statute authorizing the court to impute income for child support purposes directs that the trial court make findings that the parent is willfully underemployed or unemployed. The trial court did not make this finding regarding the statutory criteria for use of imputed income. Therefore, the trial court ruling calculating child support is reversed in part as it pertains to imputed income for Wife. The cause is remanded to the trial court to recalculate child support based upon Wife’s actual income. AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Rapp, J.; Thornbrugh, P.J., and Barnes, J., concur. Tuesday, August 23, 2016 113,924 — Jacob Bradley, Petitioner, v. Superior Fabrication Inc., Bitco General Insurance Co., and The Workers’ Compensation Commission, Respondent. Proceeding to Review an Order of The Workers’ Compensation Commission, Hon. Tara A. Inhofe, Trial Judge. Jacob Bradley (Claimant) appeals an order of the Workers’ Compensation Commission (Commission) affirming the decision of the Administrative Law Judge (ALJ) which denied the claim for worker’s compensation benefits against Superior Fabrication, Inc. (Employer) and its insurer. Claimant alleged that he injured his back at work while using a pipe wrench. The issue before the ALJ and Commission was whether the back injury was a preexisting Vol. 87 — No. 25 — 9/24/2016

injury and thus not work-related. The claim was denied based upon evidence showing that Claimant had a preexisting, chronic back injury unrelated to work. Here, the record contains evidence supporting the decisions of the ALJ and Commission that the Claimant’s injury is not work-related. The Claimant’s failure to prove a compensable, work-related injury by a preponderance of the evidence is clearly shown in view of the reliable, material, probative and substantial competent evidence revealed by the record as a whole. Claimant has not shown that the decisions are against the clear weight of the evidence or contrary to law. Therefore, the Decision of the Commission affirming the ALJ is sustained. SUSTAINED. Opinion from Court of Civil Appeals, Division II, by Rapp, J.; Thornbrugh, P.J., and Barnes, J., concur. Wednesday, August 24, 2016 114,472 — James W. Trenz, individual and Terraine Associates, Inc., Plaintiffs/Appellees, v. Glen Rupe, individual, Rupe Oil Company, Inc. and Peter Paul Petroleum Company, Defendants, and Brickell & Associates, Ted W. Haxel, Attorney-LienClaimants, and Mahaffey & Gore, P.C., Attorney-LienClaimant/Appellant. The law firm of Mahaffey and Gore, P.C. (MG) appeals a trial court Order setting the firm’s appeal-related attorney fees to be paid by the plaintiffs, James W. Trenz and Terrane Associates, Inc. (Trenz). This appeal is one of several decided over the past. Prior appeals involved the merits of issues between the parties, the right to attorney fees (including whether M&G was entitled to a fee award), attorney fees to obtain attorney fees, and disputes between Trenz’ former attorneys. Now, this appeal concerns the amount of M&G’s appeal-related attorney fees after being awarded those fees by the Oklahoma Supreme Court in appeal Cause captioned Trenz et al v, Rupe, et al, Cause 110, 944, decided September 19, 2014 (rehearing and certiorari denied). Here, on remand, M&G sought appeal-related fees of $32,236.50. In addition, M&G sought fees for participation in the appeal-related fee hearing of $2,420.00. The trial court reduced the first amount by one-half to $16,118.25 and did not award any fees for the second portion of the claim. At the close of the hearing the trial court provided an extensive explanation of the conclusions reached and the reasons for those conclusions resulting in the final fees award. Upon review, this Court finds no reversible error of law and that the findings of fact of the trial court are supported

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by sufficient competent evidence and the trial court has adequately explained its decision and did not abuse its discretion. Therefore, the Order of the trial court is affirmed under the provisions of Ok.Sup.Ct.Rule 1.202(b)(d) and (e), 12 O.S. 2011, Ch. 15, app. 1. AFFIRMED UNDER RULE 1.202(b)(d) AND (e). Opinion from Court of Civil Appeals, Division II, by Rapp, J.; Thornbrugh, P.J., and Barnes, J., concur. 114,753 — Jerry Sutton, Petitioner, v. Rite Way Construction, LLC, Compsource Mutual Insurance Company, and The Workers’ Compensation Court of Existing Claims, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court of Existing Claims, Hon. Carla Snipes, Trial Judge. Jerry Sutton (Claimant) appeals an adverse decision by the ThreeJudge Panel of the Workers’ Compensation Court of Existing Claims which reversed the trial court’s compensability Order and denied his claim against Rite Way Construction, LLC (Employer) and its insurer, Compsource Mutual Insurance Co. The Three-Judge Panel’s decision is not against the clear weight of the evidence or contrary to law. Therefore, that decision is sustained. SUSTAINED. Opinion from Court of Civil Appeals Division II, by Rapp, J.; Thornbrugh, P.J., and Barnes, J., concur. Thursday, August 25, 2016 114,470 — In the Matter of the Application of Meet Point Networks, LLC, Applicant/Appellant, v. Corporation Commission of Oklahoma, Respondent/Appellee, and The State of Oklahoma, and Cooperative Council for Oklahoma School Administration, Amicus Curiae, and Atlas Telephone Company, et al., Amicus Curiae. Proceeding to Review an Order of The Corporation Commission, Hon. Ben Jackson, Administrative Law Judge. The Applicant, Meet Point Networks, LLC (“Meet Point”), appeals an Order of the Oklahoma Corporation Commission (“OCC”). The case arises from a request by Meet Point under the provisions of the Oklahoma Telecommunications Act, 17 O.S.2011, §§ 139.101 (“OTA), and following, for payment of allowed monthly costs of providing internet access to a public school system facility. In light of the repeal of the statute involved in this appeal, and the enactment of a new statute, this Court finds that the Oklahoma Corporation Commission Order Approving Reimbursement From The Oklahoma Universal Service Fund For Keystone Public Schools, appealed here should be, and is here1794

by remanded to the Oklahoma Corporation Commission for further consideration in light of the repeal of Section 109 and enactment of Section 109.1. REMANDED TO THE OKLAHOMA CORPORATION COMMISSION FOR FURTHER CONSIDERATION IN LIGHT OF THE REPEAL OF 17 O.S.2011 § 139.109 AND ENACTMENT OF 17 O.S. SUPP. 2016, § 139.109.1. Opinion from Court of Civil Appeals, Division II, by Rapp, J.; Thornbrugh, P.J., and Barnes, J., concur. Friday, August 26, 2016 114,248 — Jeremy Brett, Petitioner/Appellee, v. Devin Brett, Respondent/Appellant. Appeal from an Order of the District Court of Garfield County, Hon. Dennis W. Hladik, Trial Judge. The trial court’s judgment terminating the joint custody plan, awarding sole custody to Father and making attendant visitation and child support provisions is not against the clear weight of the evidence or contrary to law. Mother has not demonstrated any error of law or abuse of discretion concerning the trial court’s procedural rulings. Therefore, the judgment is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Rapp, J.; Thornbrugh, P.J., and Barnes, J., concur. Monday, August 29, 2016 113,886 — Diana Joy Gaylord, Petitioner/ Appellant, v. Grant Ardyce Gaylord, Respondent/Appellee. Appeal from the District Court of Lincoln County, Hon. Sheila G. Kirk, Trial Judge. This appeal arises from the divorce proceedings of Petitioner/Appellant (Mother) and Respondent/Appellee (Father). Mother appeals from the parties’ divorce decree arguing the trial court failed to make proper calculations in its division of the marital property, and arguing the trial court erred in awarding primary physical custody of the parties’ minor children to Father during the school year. However, Mother has actually been awarded more than Father when the judgment in lieu of property division to her (and from Father) of $61,500 is taken into account. Therefore, we conclude the trial court did not abuse its discretion in this regard. In addition, Mother has failed to affirmatively show on appeal how the trial court’s determination regarding physical custody of the children is contrary to the best interests of the children, and we conclude the trial court, in determining the children should have a primary physical custodian during the school year, and that the primary physical cus-

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todian should be Father, did not abuse its discretion. Consequently, we affirm. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Thornbrugh, P.J., and Rapp, J., concur. 114,278 — In the Matter of the Estate of Charlotte V. McCartney, Deceased: Beverly Rainbolt Hickey, Donald Mize, Joan Walters, Jeanne Chambers, and Mary Morgan, Petitioners/Appellees, v. Martin Postic, Jr., as Personal Representative of the Estate of Charlotte V. McCartney, Respondent/Appellant, and Linda Melton, Individually and as Successor Trustee of the Helen G. Enox Revocable Trust Agreement, Respondent. Appeal from a Judgment of the District Court of Cleveland County, Hon. Leland W. Shilling, Trial Judge. In this probate proceeding, Appellant (the Estate) appeals from the Judgment of the trial court granting summary judgment to Appellees on their ancillary petition to construe a revocable trust agreement created by Helen G. Enox (Helen) and ordering they, along with Respondent, were the intended beneficiaries of the trust agreement and denying the Estate’s motion for summary judgment. Based on the unambiguous language in the trust agreement, Charlotte V. McCarney (Charlotte), Helen’s daughter, having survived Helen, was a vested remainder beneficiary of the “Family Trust” set forth in the trust agreement; Charlotte’s interest was subject to her father’s lifetime beneficial interest and distribution to her of the trust estate would occur only upon the death of her father; and no other provisions of the Trust Agreement evidence Helen’s intent to divest Charlotte of her beneficial interest if she predeceased her father. We, therefore, conclude the Estate is the beneficiary of the trust agreement estate and the trial court improperly awarded summary judgment to Petitioners. Accordingly, we reverse and remand for further proceedings concerning the probate of Charlotte’s will. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Thornbrugh, P.J., and Rapp, J., concur.

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Tuesday, August 30, 2016 113,878 (Companion to Case No. 114,400) — In re the Marriage of: Christine Harris, Petitioner/ Appellant, vs. Derrick Harris, Respondent/Appellee. Proceeding to review a judgment of the District Court of Garfield County, Hon. Norman L. Grey, Trial Judge. Christine Harris (Wife) appeals the district court’s determination in a divorce case that certain Kansas mineral interests were Husband’s separate property. Derrick Harris (Husband) appeals the court’s award of support alimony to Wife totaling $63,000, and its placement of a college savings account held for the minor child in Wife’s custody. The district court clearly found the account of Husband’s Father that he placed the minerals in a form of joint ownership only because of a mistaken belief that it was necessary to make the transaction “clear and convincing” pursuant to Larman v. Larman, 1999 OK 83, 991 P.2d 536, and Chastain v. Posey, 1983 OK 46, 665 P.2d 1179. We do not normally second-guess a trial court decision regarding the credibility of a witness when the testimony is not gainsaid by other evidence. The other evidence regarding the intent of the parties is equally thin. We find this decision to be within the discretion of the district court. Even allowing for the inevitable inflation of household budgets that is common in needs-based alimony calculations, the court’s total alimony award of $63,000 over thirty-six months is supported by the evidence. The college account is held in trust for the minor daughter’s college fund, and neither party has an immediate interest in its distribution. Essentially, Father argues that he would be a better “manager” of the college fund than Wife, i.e., that it would increase in value more rapidly under his supervision than that of Wife. Pursuant to the standard of review, we will reverse the district court’s decision only if it is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling. Given the difficulty in assessing management expertise or possible outcomes of a financial investment strategy, we cannot say that the court’s ruling was without a rational basis in evidence. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Thornbrugh, P.J.; Goodman, C.J., and Barnes, J., concur.

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CERTIFIED LEGAL NURSE CONSULTANT. One free case screening (up to 8 hours). Let me save you time and money on any cases involving medical or nursing issues (Malpractice, PI, Worker’s Comp, Medicare). Call or email for more information. Judith Whitmore RN, MSN, CLNC 580-540-9050 [email protected]. CONTRACT LEGAL SERVICES – Lawyer with highest rating and with 30+ years’ experience on both sides of the table is available for strategic planning, legal research and writing in all state and federal trial and appellate courts and administrative agencies. Admitted and practiced before the United States Supreme Court. Janice M. Dansby, 405-833-2813, [email protected].

OFFICE SPACE BUILDING FOR SALE. Perfect for 1-3 attorneys. Easy in and out. 3955 NW 23. Call Joe 405-942-8800 or 405-474-4800. 1796

LUXURY OFFICE SPACE - Two offices for lease, one at $670 and one at $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. STILLWATER OFFICE SPACE: Adjacent to Payne County Courthouse. Fully furnished/staffed front reception area, as well as private reception adjoining office; access to conference room, library and fully-furnished kitchen; phone, copier and fax machine access included. Referrals available. Contact [email protected].

POSITIONS AVAILABLE A MEDIUM SIZED AV RATED, WELL ESTABLISHED OKLAHOMA CITY LAW FIRM WITH A DIVERSIFIED PRACTICE IS SEEKING TO EXPAND. We are looking for an attorney with an established client base to join our law firm. Please send resumes to “Box X,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. THE OFFICE OF ATTORNEY GENERAL IS CURRENTLY SEEKING AN ASSISTANT ATTORNEY GENERAL for the Public Utility Unit. The Public Utility Unit represents and protects the interests of the state’s utility customers in rate-related proceedings, participates in rule making proceedings and performs other tasks related to public utility regulation. The successful candidate will be prepared to participate in proceedings before the Oklahoma Corporation Commission and in state and appellate courts. The successful candidate will have outstanding legal judgment and be able to effectively and professionally research, prepare, analyze, understand and communicate complex information and legal issues. Qualifications: An applicant must be a licensed attorney in the state of Oklahoma with zero to five years in the practice of law. Some travel is required. EOE. Writing sample must accompany resume to be considered. Resumes and writing samples for this position should be sent to [email protected]. DOWNTOWN LITIGATION FIRM SEEKING ATTORNEY WITH 3-7 YEARS EXPERIENCE. Excellent research and writing skills required. Salary competitive and commensurate with experience. Send resume, writing sample and references to Brown & Gould, 136 NW 10th, Ste. 200, Oklahoma City, OK 73103.

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POSITIONS AVAILABLE

POSITIONS AVAILABLE

NORMAN/TULSA 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 resume to [email protected]. DOWNTOWN OKLAHOMA CITY LAW FIRM HAS AN IMMEDIATE OPENING FOR AN EXPERIENCED LEGAL SECRETARY. We are looking for a candidate with at least 2 years’ experience, good time management, typing and computer skills. Must be able to multitask in a busy work environment. Salary commensurate with experience. Benefits include health insurance and retirement savings contributions and paid covered parking. Please send your resume to [email protected]. OKC AV RATED LAW FIRM SEEKING ASSOCIATE with excellent litigation, research and writing skills, 2-5 years’ experience for civil/commercial defense practice and health care law. Must have solid litigation experience for all stages of pretrial discovery and trial experience, with excellent research and writing skills. Submit a confidential resume with references, writing sample and salary requirements to “Box E,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. OKLAHOMA CITY LAW FIRM IS SEEKING AN ATTORNEY WITH 10 OR MORE YEARS OF EXPERIENCE working with the oil and gas division of the Oklahoma Corporation Commission. The compensation package is commensurate with level of experience and qualifications. Benefits include health, dental, vision, life insurance and profit sharing. Applications will be kept in confidence. Please submit resume and any supporting materials to “Box J,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. SOUTH TULSA LAW FIRM HAS AN OPENING FOR A PARALEGAL. We are looking for a candidate that has background experience in insurance defense; trucking experience would be a plus. The duties involve the management of all of the documents related to the defense of personal injury cases. The ability to request, organize and review medical records is a must. The duties also include preparing matters for significant events such as a deposition, mediation or trial. Candidate should have excellent organization skills. Please send your resume 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].

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Paralegal Excellent Pay and Benefits! W.C. Bradley Co., a 130+ year old International Consumer Products company seeks a qualified paralegal for its Tulsa, Oklahoma office. Reporting directly to the General Counsel, this position will perform critical legal functions on behalf of its family of world class companies who compete in the global marketplace. Requirements include a self-motivated team player with 5+ years’ experience; completion of an ABA-accredited paralegal program is preferred. Candidates must have strong legal research and writing skills. Excellent computer, organizational, attention-to-detail, project management, written/ verbal communication and prioritization skills are musts. The ability to meet deadlines is critical. Candidate should be flexible to work overtime, as needed, and have flexibility to travel. The General Counsel’s office is a fast paced environment that addresses many areas of the law including corporate governance, contracts (consumer product emphasis), merger and acquisitions, regulatory, intellectual property, risk management, litigation and international. Experience in any of these areas is a plus. Proficiency with Microsoft Word, Outlook, Excel, PowerPoint, Windowsbased software, Westlaw, and CTS is a plus. Your expertise will be rewarded with an attractive salary/benefits package along with a casual dress code environment. To apply, please send salary requirements, salary history and resume to: [email protected] Alternately, you may send via US mail to: Human Resources WCB/Zebco 6101 E Apache Street Tulsa, OK 74115 NO PHONE CALLS PLEASE The W.C. Bradley Co. is an Affirmative Action and Equal Opportunity Employer. The W.C. Bradley Co. uses E-Verify to confirm the employment eligibility of all new Team Members. To learn more about E-Verify, including your rights and responsibilities, please visit the U.S. Citizen and Immigration Service at www.uscis. gov/e-verify. E-Verify® is a registered trademark of the U.S. Department of Homeland Security. GROW WITH ONE OF OKLAHOMA’S MOST AMBITIOUS PI FIRMS. As our lead personal injury attorney you will set the pace of success. You bring talent and drive. We provide clientele and infrastructure. Send replies to “Box CC,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

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POSITIONS AVAILABLE

HOUSE FOR RENT

THE OKLAHOMA ATTORNEY GENERAL’S OFFICE IS SEEKING AN ATTORNEY with sound judgment and excellent research and writing skills to serve in the General Counsel Unit as an Assistant Attorney General. The ideal candidate will be a licensed Oklahoma attorney with 0-3 years of experience. A writing sample must accompany the resume to be considered. Send resume and a writing sample to [email protected]. The position will be open until filled. EOE.

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HELMERICH & PAYNE, INC. (H&P) IS CURRENTLY SEEKING A LITIGATION PARALEGAL. This position will primarily be responsible for assisting in-house and outside counsel with areas such as litigation and ediscovery. Qualifications include 10 years of litigation and trial experience, including e-discovery; claims management and contract experience a plus; excellent written, oral and interpersonal communication skills; thorough knowledge of legal policies and procedures; ability to maintain a very high level of confidentiality; excellent PC-based software application skills: Excel, Word, etc.; strong ability to analyze information; ability to organize and plan multiple activities which require close attention to detail; paralegal certification (preferred) and thorough understanding of ESI. Please apply online at www.hpinc.com to be considered for this opportunity. ATTORNEY (with 3 to 5 years experience) needed for general civil practice, 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) to “Box PP,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

FOR SALE ALL NEW. 1ST EDITION, 2016-17. Sentencing in Oklahoma by Bryan Dupler The practical guide for judges and attorneys. $25+shipping. Email orders to [email protected].

CLASSIFIED INFORMATION REGULAR CLASSIFIED ADS: $1.25 per word with $35 minimum per insertion. Additional $15 for blind box. Blind box word count must include “Box ___,” Oklahoma Bar Association, PO Box 53036, Oklahoma City, OK 73152.” DISPLAY CLASSIFIED ADS: Bold headline, centered, border are $60 per inch of depth. DEADLINE: See www.okbar.org/members/BarJournal/ advertising.aspx or call 405-416-7084 for deadlines. SEND AD (email preferred) stating number of times to be published to: [email protected], or Mackenzie McDaniel, Oklahoma Bar Association, PO Box 53036, Oklahoma City, OK 73152. Publication and contents of any advertisement are not to be deemed an endorsement of the views expressed therein, nor shall the publication of any advertisement be considered an endorsement of the procedure or service involved. All placement notices must be clearly nondiscriminatory. DO NOT STAPLE BLIND BOX APPLICATIONS.

A SMALL WELL ESTABLISHED DOWNTOWN OKLAHOMA CITY LAW FIRM with an active commercial and consumer litigation practice has an opening for an attorney with 3-5 years’ experience. The ideal candidate is someone with an entrepreneurial desire to grow their own practice while assisting the firm with its representation of institutional clients. Please send resumes to [email protected].

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AVAI LA

BL E

6/1

Program Planner/Moderators: Donna Jackson and Dawn Hallman TOPICS COVERED: - Decanting; - Advanced Estate Planning – Part I&II - IRA Trust: How to Create a Lasting Legacy - Incapacity: Recognizing and Responsibility (Ethics) - Recent Updates in Estate Planning and Probate

$150 for early-bird registrations with payment received at least four full business days prior to the seminar date; $175 for registrations with payment received within four full business days of the seminar date. To receive a $10 discount for the in-person program, register online at www.okbar.org/members/CLE . Registration for the live webcast is $200. Seniors may register for $50 on in-person programs and $75 for webcasts, and members licensed 2 years or less may register for $75 for in-person programs and $100 for webcasts.

For more information go to: www.okbar.org/members/CLE Vol. 87 — No. 25 — 9/24/2016

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AVAI LA

INSURANCE LAW

UPDATE 2016 October 6, 9 a.m. - 3:50 p.m. OSU-Tulsa, North Hall, Room 151 700 N. Greenwood Ave.

October 7, 9 a.m. - 3:50 p.m.

Oklahoma Bar Center, OKC - WEBCAST AVAILABLE

BL E

6.5/1

Program Planner/Moderator: Kevin D. Gordon, Pres. & CEO, Crowe & Dunlevy

TOPICS COVERED: • Annual Review of Important Oklahoma Insurance Cases • Legal Ethics in Insurance Law • Emerging Property & Casualty Insurance Issues including Earthquake Insurance • Emerging Health Insurance Issues • Insurance Bad Faith Litigation Developments

$150 for early-bird registrations with payment received at least four full business days prior to the seminar date; $175 for registrations with payment received within four full business days of the seminar date. To receive a $10 discount for the in-person program, register online at www.okbar.org/members/CLE . Registration for the live webcast on October 7th is $200. Seniors may register for $50 on in-person programs and $75 for webcasts, and members licensed 2 years or less may register for $75 for in-person programs and $100 for webcasts.

For more information go to: www.okbar.org/members/CLE