Volume 87 u No. 9 u March 26, 2016

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The Oklahoma Bar Journal

Vol. 87 — No. 9 — 3/26/2016

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 Krug, Director of Educational Programs; Beverly Petry Lewis, Administrator MCLE Commission; Carol A. Manning, Director of Communications; Robbin Watson, Director of Information Technology; Jane McConnell, Coordinator Law-related Education; Loraine Dillinder Farabow, Tommy Humphries, Debbie Maddox, Katherine Ogden, Steve Sullins, Assistant General Counsels

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Volume 87 u No. 9 u March 26, 2016

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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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Oklahoma Bar Association

table of

contents March 26, 2016 • Vol. 87 • No. 9

page 574

Index to Court Opinions

576  Opinions of Supreme Court 625  Opinions of Court of Criminal Appeals 643

Calendar of Events

644  Opinions of Court of Civil Appeals 662  Disposition of Cases Other Than by Publication

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Index to Opinions of Supreme Court 2016 OK 19 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. DEREK BRION SMITH, Respondent. O.B.A.D. No. 2056. S.C.B.D. No. 6306......................................................................................................................................................... 5 7 6 2016 OK 20 YAUMARY CONCEPCION TORRES, Petitioner, v. SEABOARD FOODS, LLC, AMERICAN ZURICH INS. CO., and THE WORKERS’ COMPENSATION COMMISSION, Respondents. No. 113,649...................................................................................... 5 8 3 2016 OK 21 RE: Suspension of Certificates of Certified Shorthand Reporters SCAD-2016-13.............6 0 0 2016 OK 22 RE: Suspension of Credentials of Registered Courtroom Interpreters SCAD2016-14.........................................................................................................................................................6 0 1 2016 OK 23 JENNIFER FLEMING, Plaintiff/Appellant, v. RACHEL WHITNEY HYDE, Defendant/Appellee. No. 113,844..................................................................................................... 6 0 1 2016 OK 24 REBEKKAH NEWLAND, Plaintiff/Appellant, v. LAURA TAYLOR, Defen dant/Appellee. No. 113,928 ............................................................................................................... 6 0 2 2016 OK 25 STATE OF OKLAHOMA ex rel. Oklahoma Bar Association, Complainant, v. JOHN BERNARD SULLIVAN, Respondent. Case Number: SCBD-6243; Consolidated w/SCBD-6244....................................................................................................................................... 6 0 3 2016 OK 26 State of Oklahoma ex rel. Oklahoma Bar Association, Complainant, v. L. Caroline Drummond, Respondent. SCBD No. 6368....................................................................... 6 0 8 2016 OK 27 In the Matter of the Reinstatement of Rhett Henry Wilburn to Membership in the Oklahoma Bar Association and to the Roll of Attorneys. SCBD No. 6275........................... 6 0 8 2016 OK 28 DONALD DEWAYNE MOORE, Plaintiff/Appellant, v. WARR ACRES NURSING CENTER, LLC., Defendant/Appellee. No. 113,098.................................................... 6 0 9 2016 OK 29 IN RE: AMENDMENT OF RULE 5 OF THE RULES GOVERNING ADMISSION TO THE PRACTICE OF LAW, 5 O.S. Supp. 2015, ch. 1, app. 5 SCBD 6349.................... 6 1 9 2016 OK 30 RE: ORDER VACATING SCAD-2013-11, BAR EXAM ALTERNATIVE SCORING AND GRADING METHODS SCAD-2016-18......................................................................... 6 2 1 2016 OK 31 State of Oklahoma ex rel. Oklahoma Bar Association, Complainant v. Fred Bennett Callicoat Respondent. SCBD-6359...................................................................................... 6 2 1

Index to Opinions of Court of Criminal Appeals 2016 OK CR 3 MICA ALEXANDER MARTINEZ, Appellant, v. THE STATE OF OKLAHOMA, Appellee. Case No. D-2013-673.......................................................................................... 6 2 5 2016 OK CR 4 WILLIAM TODD LEWALLEN, Appellant, v. THE STATE OF OKLAHOMA, Appellee. Case No. F-2014-1063................................................................................................ 6 3 7

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2016 OK CR 5 JERMAINE JACKSON, Appellant, v. THE STATE OF OKLAHOMA, Appellee. Case No. F-2014-627........................................................................................................... 6 4 0

Index to Opinions of Court of Civil Appeals 2016 OK CIV APP 11 THE JAYSON W. DAVISON TRUST OF 2010, U/T/A 7/8/10 and JAYSON W. DAVISON, TRUSTEE, Plaintiff/Appellant, vs. PAT BROCKHAUS, Defendant/Appellee, and DON WAYNE BROCKHAUS, Successor Trustee of the ARTHUR J. BROCKHAUS TRUST, U/T/A 4/1/1994, Defendant/Third Party Plaintiff/Appellee, vs. LOGAN COUNTY TREASURER, Third Party Defendant/Appellee. Case No. 113,175............................................................................................................................ 6 4 4 2016 OK CIV APP 12 T.L.I., a minor child, by and through his next friend, TRAVIS L. IRICK, Plaintiff/Appellant, vs. BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF POTTAWATOMIE, Defendant/Appellee. Case No. 113,687................................ 6 5 0 2016 OK CIV APP 13 IN RE THE MARRIAGE OF MICHAEL A. GRESS AND LINDA L. KUHN: MICHAEL A. GRESS, Petitioner/Appellee, vs. LINDA L. KUHN, Respondent/Appellant. Case No. 112,412.................................................................................................... 6 5 5 2016 OK CIV APP 14 LISA HILL, Plaintiff/Appellant, vs. STATE OF OKLAHOMA, ex. rel. BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA, Defendant/ Appellee. Case No. 113,718................................................................................................................. 6 5 8

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

2016 OK 19 STATE OF OKLAHOMA ex rel. OKLAHOMA BAR ASSOCIATION, Complainant, v. DEREK BRION SMITH, Respondent. O.B.A.D. No. 2056. S.C.B.D. No. 6306 March 1, 2016 PROFESSIONAL DISCIPLINARY PROCEEDING ¶0 The Oklahoma Bar Association filed a complaint in this Court alleging respondent, licensed to practice law in this State, committed specific acts of professional misconduct, including a failure to provide (1) competent representation, (2) diligent and prompt representation, and (3) prompt and reasonable communication with clients. The Bar also alleged respondent collected unreasonable fees for work not performed and violated rules of professional conduct. The alleged acts of misconduct were based upon facts alleged in seven grievances filed with the Bar Association by former clients of respondent. The Bar Association also alleged for purposes of enhancement of discipline a private reprimand the respondent received in 2013 for professional misconduct. The Bar also alleged respondent failed to timely respond to the Bar’s requests for information. Respondent did not file a response to the Complaint in this Court. Respondent did not appear at his scheduled trial panel hearing or file a posthearing brief in this Court. The trial panel recommended respondent be disbarred from the practice of law. This Court finds several violations of the lawyer’s duty of ethical conduct and imposes disbarment and costs. RESPONDENT DISBARRED; COSTS IMPOSED Stephen L. Sullins, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, for Complainant.

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Derek Brion Smith, Oklahoma City Oklahoma, No Appearance. EDMONDSON, J. ¶1 Respondent is licensed to practice law in this State. This Court finds several violations of the lawyer’s duty of ethical conduct by respondent, and imposes upon him disbarment and costs. ¶2 Seven of respondent’s former clients filed grievances against him with the Oklahoma Bar Association. Respondent did not respond to the clients’ grievances as requested by the Bar Association. The Oklahoma Bar Association filed a formal Complaint in this Court against Respondent alleging seven counts of professional misconduct relating to seven of his former clients. Respondent did not file a response to the Complaint in this Court. Respondent did not appear at his scheduled hearing before the trial panel of the Professional Responsibility Tribunal. Several witnesses testified at the trial panel hearing. The Bar Association filed a motion for the allegations of the Complaint to be deemed admitted by respondent, and the trial panel granted the motion. The trial panel’s report was filed in this Court, and the Oklahoma Bar Association filed its brief. The Bar Association filed an application for an order assessing its costs against respondent. Respondent filed no brief or any other filing in this Court. Count I - McCuddy’s Grievance ¶3 Queta McCuddy paid respondent a fee of $2,500 for representation in a child custody dispute. Respondent filed a motion to modify child custody for clarification of joint custody issues and he appeared at one hearing. Respondent failed to appear at a scheduled meeting of counsel and parties on the matter. McCuddy tried numerous times to contact respondent by text messages, emails, and phone calls. After a few months of these unsuccessful efforts she decided to hire a different lawyer and McCuddy’s father eventually obtained her file from respondent at respondent’s residence. McCuddy testified she was required to pay additional

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fees to her new lawyer and the child custody matter had been completed with new counsel. Count II - Patton’s Grievance ¶4 Patton paid respondent $1,500 as a retainer for respondent to file a paternity proceeding so Patton could obtain custody of children. Patton stated the matter was an “agreed paternity” between him and the mother for the purpose of obtaining a judicial order awarding child custody. Patton testified respondent took four to six months to serve process on the mother. He testified that he was informed that a temporary support order was entered and he wanted to meet with respondent to find out the provisions of the temporary order and what his obligations were, but “I could never get a return of a phone call or text message.” He testified he “never knew how much child support I was supposed to be paying.” He testified that after getting a copy of the temporary order the respondent would not return his phone calls or otherwise contact him. ¶5 Patton hired a new lawyer and paid him $1,500 to complete the legal matter. Patton sent respondent a text message requesting an invoice or an accounting for his work, but respondent never replied. Patton testified that respondent’s lack of timely communication concerning support obligations and the issue of unpaid support resulted in Patton being unnecessarily placed in a situation requiring unusual efforts on Patton’s part to meet past and current support obligations. He testified his new lawyer was able to conclude the legal matter with a “favorable outcome” for Patton. Count III - Haynes’ Grievance ¶6 Haynes alleged in her grievance that she paid a $1,500 fee for representation in a Grady County District Court proceeding involving child support and child daycare. She alleged her efforts were unsuccessful when trying to communicate with respondent concerning errors in a proposed court order. ¶7 The efforts of the Bar Association were unsuccessful to include telephonic testimony from Haynes during the hearing. The Bar Association filed a motion to have all allegations against respondent in all Counts of its Complaint be deemed admitted by respondent’s failure to file a response to the Complaint. The trial panel granted the motion.

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Count IV - Conley’s Grievance ¶8 Respondent represented Conley in his first divorce. Conley’s ex-wife filed an application concerning child support and Conley paid respondent $1,500 for legal representation. Conley testified he paid respondent “and then he never filed any papers or anything like that.” His ex-wife later informed Conley that “nobody ever filed anything” and he hired a different lawyer. ¶9 Conley explained he tried to contact respondent during the time he was seeking a new lawyer, but respondent “never replied back.” Conley testified respondent “never done anything for me on that or gave me my money back.” Conley asked his new lawyer to contact respondent and request a refund of his money. Respondent did not reply to the requests from Conley’s new lawyer. ¶10 An investigator for the Bar Association identified an exhibit of respondent’s bank accounts, including personal and trust accounts. They showed Conely’s $1,500 check was deposited into respondent’s personal joint account with his wife and not his trust account. Count V - Hyden’s Grievance ¶11 Hyden paid respondent a $2,000 retainer. Respondent did not have a written fee agreement with Hyden and told her he would inform her how much he was going to bill her as her child custody matter progressed. She testified that respondent appeared at two hearings. During the one hearing she and respondent both appeared, respondent made a disparaging comment about her to the judge. She said she had no idea why respondent made the comment to the judge, her motion was denied, and respondent did no further work on her case. She testified there were five hearings, and respondent did not appear at three of the hearings. ¶12 Hyden tried numerous times to contact respondent concerning her case and his failure to appear at hearings. She attempted to contact him by telephone, email, and faxes: “I tried everything I knew how. I could not get ahold of this man.” She hired another lawyer and paid him $3,000. She testified to her belief that respondent’s neglect hurt her case because it happened during the time of an investigation by the Department of Human Services when an active lawyer could have helped the family. She testified to her belief respondent did not earn the $2,000 she paid him.

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Count VI - Lenhart Grievance ¶13 Lenhart hired respondent to obtain judicial enforcement of Lenhart’s previously awarded right for child visitation, and for additional visitation. Lenhart paid $2,000 to respondent. Respondent informed Lenhart of difficulties in serving process on his ex-wife. Respondent filed a document in the District Court on behalf of Lenhart. ¶14 Lenhart testified concerning leaving voice messages on respondent’s phone with no return phone calls, and his numerous trips to respondent’s office and being told no time was available to meet with him. Neither respondent or Lenhart appeared at the scheduled hearing on the matter. The assigned judge ruled in favor of Lenhart’s ex-wife, and ruled she was entitled to an attorney’s fee against Lenhart. ¶15 Lenhart then hired two other lawyers who worked together as co-counsel. He paid them $25,000. He testified on the positive influence in the case caused by the appointed guardian ad litem. He testified he is able to have visitation with his child due to the efforts of his two new lawyers. He also testified he wrote a letter to respondent and pointed out respondent’s failure to appeal at a scheduled hearing, respondent had it rescheduled and again failed to appear, and respondent did not tell Lehnart to attend the hearing. He wrote to respondent requesting the return of $1,000, one-half of the amount previously paid. Respondent did not return any money or contact Lenhart. Count VII - Meade Grievance ¶16 Meade used respondent for legal services on three occasions. He testified that the first two times he hired respondent things “went well” except “it kind of got to the point where I would call him and he wouldn’t really call me back.” The third time he hired respondent for a custody/visitation matter involving Meade’s minor child. Meade paid respondent $1,500 for this matter. ¶17 After a hearing on the matter, respondent was directed to prepare an order for the judge’s signature. Meade testified concerning his numerous attempts to contact respondent, and his need to get a copy of the order because his child’s school needed a copy of the order showing Meade’s sole custody of the child. Meade eventually obtained a copy of the order directly from the judge, and respondent later 578

contacted Meade to provide him a copy. Meade hired a new lawyer after his difficulties with respondent. Additional Testimony ¶18 A person employed as a secretary in an office with respondent and another lawyer testified. She received and signed for certified mail sent to respondent, including mail from the Bar Association. She routinely placed respondent’s mail on his desk where respondent received the mail. She said she remembered the Bar Association mailings to respondent because they “were the big flat brown ones” with a confidentiality stamp and they were placed “in plain view on his desk where he could see them.” ¶19 An investigator for the Bar Association testified at the hearing. Since 2007 she has investigated professional grievances filed against respondent. She testified concerning many attempts to contact respondent. These attempts included regular mail, certified mail, telephone messages, and emails. The mail was sent to respondent’s address listed on the Oklahoma Bar Association roster. ¶20 Some mailings to respondent were returned to the Bar Association and respondent did not respond to them. Upon the investigator discovering respondent’s new business address, the Oklahoma Bar Association sent the mailings to this address in addition to simultaneously sending them to his roster address. Respondent moved to a new address in November 2014, but did not change his roster address until May 2015. Respondent did not respond to several mailings or emails, or voicemail. ¶21 In response to a strongly worded email from the investigator stating respondent’s need to contact the Bar, respondent replied by email and stated he had not received the mailings from the Bar and he would provide a response to a grievance. Respondent did not respond to the grievances. Respondent did not respond to telephone calls made to him by the Bar Association. The Bar Association subpoenaed respondent for a deposition and he appeared. ¶22 Respondent appeared at the Oklahoma Bar Center one day before the scheduled trial panel hearing and orally requested a continuance for his hearing. The reason given for the request was for him to have time to consider resigning from the Bar Association. Counsel for the Bar objected to a continuance and

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respondent’s request was denied by the trial panel upon noting his request was made less than twenty-four hours prior to the scheduled hearing and the absence of any extenuating circumstances that would justify delaying the hearing. ¶23 In a telephone conversation between respondent and counsel for the Bar on the morning of the trial panel hearing, respondent stated he had a hearing in the District Court of Oklahoma County involving a juvenile matter that was scheduled at the same time as the trial panel hearing, and he would try to appear at his trial panel hearing upon conclusion of the juvenile proceeding. Upon conclusion of testimony before the trial panel, the trial panel had a short adjournment for the Bar’s counsel to determine if any email or messages from respondent had been sent concerning his appearance before the trial panel. Upon reconvening the trial panel concluded the proceeding without any appearance from respondent. Rule 6.4 Admission ¶24 A hearing was held before a trial panel of the Oklahoma Professional Responsibility Tribunal and the trial panel members unanimously recommended disbarment for respondent’s professional discipline. ¶25 The Bar Association alleged respondent violated the same five Oklahoma Rules of Professional Conduct, 5 O.S.2011 Ch. 1, App. 3-A, (ORPC), in each of the seven grievances: Rules 1.1 (competent representation required),1 1.3 (diligent and prompt legal representation required),2 1.4 (prompt and reasonable communication with a client required),3 1.5 (collecting an unreasonable fee prohibited),4 and 8.4(a) (violate or attempt to violate a rule of professional conduct).5 The Bar Association alleges respondent’s repeated failure to respond to the Bar’s requests for responses to the client grievances shows multiple violations of Rule 5.2 of the Rules Governing Disciplinary Proceedings (RGDP).6 ¶26 Respondent did not file an Answer to the Bar’s Complaint, or seek additional time to file an Answer. The Bar filed a motion to deem the Complaint’s allegations admitted pursuant to Rule 6.4, RGDP,7 and the trial panel granted the motion. The person who signed the certified mail receipts for service on respondent for both the Complaint and Bar’s motion to deem allegations admitted testified she routinely signed for respondent’s certified mail and placed it on Vol. 87 — No. 9 — 3/26/2016

respondent’s desk. The Complaint and motion to deem its allegations admitted were both mailed by certified mail to respondent’s new roster address after respondent made the change to his roster address. The Bar’s evidence clearly shows service of the Complaint upon respondent as well as service of the Bar’s motion to have the Complaint’s allegations deemed admitted. ¶27 Disciplinary Rule 6.4 provides that if a respondent fails to answer the complaint, the charges shall be deemed admitted except that evidence shall be submitted for the purpose of determining the discipline to be imposed. We agree the charges are deemed admitted. However, we must note a difference between a Rule 6.4 admission of a Rule 8.4(a) violation based solely on the violation of another rule and violations based upon Rule 8.4(b), (c), and (d). ¶28 In State ex rel. Oklahoma Bar Ass’n v. Knight,8 we declined to accept a Rule 6.4 admission relating to Rule 8.4 of the ORPC when the record of the proceeding did not show unprofessional motive or a bad or evil intent for the unprofessional actions of the respondent.9 This Court has explained that a Rule 6.4 RGDP admission of various provisions of a Rule 8.4 ORPC violation is based upon a record showing respondent’s knowledge, intent, or motive concerning a respondent’s violation of professional ethical standards.10 We explained in Knight “while … his conduct appears to be an intentional ignorance of his ethical obligations, the evidence fails to show a bad or evil motive … .”11 ¶29 Separate provisions of Rule 8.4 rely on the lawyer’s knowledge or intent, but the Bar relies upon the first clause of 8.4(a) which does not focus on the lawyer’s knowledge or intent. “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; ….”12 This emphasized language is similar to former Disciplinary Rule, DR 1-102 (A)(1): “A lawyer shall not: (1) Violate a Disciplinary Rule.”13 When this Court applied former DR 1-102(A)(1) a violation of another disciplinary rule was also a violation of DR-102(A)(1).14 ¶30 In Knight, the Bar Association pled violations of “Rule 8.4 and 8.4(d)”15 and not a Rule 8.4(a) violation. In the present case, the Bar Association’s Complaint specifically pled a violation of Rule “8.4(A)” and no other provision of Rule 8.4, and the Complaint made no

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allegations concerning respondent’s conduct involving his knowingly assisting or inducing others to violate a disciplinary rule.16 We conclude no showing of evil intent or bad motive is necessary for the Rule 8.4(a) violation which is based solely upon a respondent’s violation of a different professional rule of conduct. We accept the Rule 6.4 admission without requiring a showing on the record concerning respondent’s intent. Enhancement ¶31 The record shows a private reprimand respondent received from the Professional Responsibility Commission on August 23, 2013. Exhibit No. 46, O.B.A.D. No. 1969. The private reprimand involves respondent’s professional misconduct relating to four clients. Respondent failed to respond to all four grievances as requested by the Bar. The misconduct included respondent’s neglect of legal proceedings and failure to timely communicate with clients. The Commission found violations of Rules, 1.1, 1.3, 1.4, 1.5, 3.1, 3.2, 8.1(b), 8.4(a) and (d) as the basis for the private reprimand. ¶32 The Complaint erroneously states that respondent received a private reprimand on November 28, 2011, in O.B.A.D. No. 1863. An oral motion by counsel for the Bar Association at the trial panel hearing was made to show a corrected date and docket number for the private reprimand on August 23, 2013, in O.B.A.D. No. 1969. The report of the trial panel accurately states O.B.A.D. No. 1969, but its Report erroneously states the corrected date of the reprimand as November 23, 2011.17 There is no evidence respondent was prejudiced by reference to the incorrect OBAD number and date that were corrected at the trial panel hearing. The Complaint alleges his prior private reprimand by the Professional Responsibility Commission, and respondent participated in that process and had notice of what the Bar was pleading in the present matter. This matter may be considered for enhancement purposes.18 ¶33 The trial panel’s report states a retainer check from Haynes in the amount of $450.00 was deposited into respondent’s personal account, and such should be used for the purpose of enhancement. The Complaint alleges Haynes paid respondent $1,500, but does not refer to a payment of $450. The investigator for the Bar testified that a $1,500 cashier’s check from Conley and a $450 check from Haynes were deposited into respondent’s personal 580

account instead of a trust account. Photocopies of the negotiated checks and respondent’s bank records were included in the exhibit. The Bar gave no notice to respondent that it would raise factual allegations or rules of professional conduct relating to mishandling19 clients’ funds. ¶34 A waiver is a relinquishment of a known right.20 A Rule 6.4 admission is an admission to the charges in the Bar’s complaint. There is no language in Rule 6.4 stating that an admission pursuant to that rule is also an admission of additional charges of misconduct brought for the first time during the trial panel hearing held in the absence of the respondent. The General Counsel may amend a Complaint to add allegations relating to professional misconduct.21 The known right that is waived pursuant to Rule 6.4 is the opportunity to object to the allegations in the complaint and amended complaints where notice of such have been given to a respondent with the result being a respondent’s admission to those charges. Raising new allegations of professional misconduct at a trial panel hearing without notice to a non-appearing respondent is similar to the disapproved trial-by-ambush procedure in civil proceedings, unless a respondent has, on the record of the proceeding, specifically waived any objection to the new charges of professional misconduct.22 ¶35 The Bar Association must give notice to a lawyer when that lawyer’s conduct is raised to show a breach of professional conduct23 or a need for enhanced professional discipline.24 A respondent must receive notice of the facts underlying the misconduct charges brought by the Bar Association, and when such notice is given this Court may consider those facts as discrete instances of misconduct or consider them as part of a larger set of circumstances.25 We have declined to use allegations of improper misconduct raised for the first time before the trial panel26 or in a post-hearing brief in this Court27 when we determined the appropriate discipline. We have explained when the Bar’s evidence strays from allegations made in a complaint or subsequent amended complaints, a respondent has a “burden to object to the Bar’s proffer of improper proof and to ask for a continuance to afford him time to meet that issue, and a failure to object operates to waive the error, if any, in admitting evidence that stood in fatal variance with the complaint’s allegations.”28 Respondent did not participate in the trial panel hearing, had no notice allegations relating to mishandling funds would be

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raised to enhance discipline, and made no Rule 6.4 admission that he mishandled funds. We decline to consider the allegations of mishandling funds for enhancement of discipline, but we do consider respondent’s previous private reprimand for enhancement purposes. Discipline and Costs ¶36 This Court possesses a nondelegable, original, and exclusive jurisdiction in a Bar disciplinary inquiry.29 The Court conducts a de novo review of the record30 and the professional discipline imposed is based upon the respondent’s conduct31 and any history of respondent’s professional misconduct,32 as well as “discipline imposed upon other lawyers for similar acts of professional misconduct.”33 In Oklahoma Bar Ass’n v. Parker,34 we noted the lawyer’s neglect of three clients’ legal matters, failure to communicate properly with clients, and a failure to return unearned fees. The respondent in Parker violated Rules 1.1, 1.3, 1.4, 1.5, 1.16 and 8.4(c), ORPC, and Rule 1.3 and 5.2, RGDP. In Parker, we noted for enhancement purposes a previous private reprimand for a violation of Rule 5.2, RGDP, where respondent did not timely respond to one grievance. We explained the proper discipline for respondent was to be disbarred from the practice of law, and compared the circumstances to State of Oklahoma, ex rel. Oklahoma Bar Association v. Passmore,35 and State ex rel. Oklahoma Bar Association v. McCoy.36 We noted the respondents had failed to respond to their clients’ needs and to the inquiries from the Bar during the investigations of their grievances.37 In Passmore the respondent violated Rules 1.1, 1.3, 1.4, 1.5(a) and 8.4(d) ORPC and Rules 1.3 and 5.2, RGDP,38 and the Court imposed disbarment as the proper discipline. In Parker, we noted the respondent was given sufficient notice of the grievance and he failed to provide any explanation to the Oklahoma Bar Association or this Court regarding his lack of communication or commitment to represent his clients.39 ¶37 In the present case, respondent’s former clients testified concerning their frustration with respondent not appearing at hearings, not filing required pleadings and motions, failure to return files, keeping unearned fees, not communicating with them, and their need to hire additional lawyers to fix situations caused by respondent’s neglect. Because of the nature of respondent’s professional misconduct, as enhanced by his previous discipline, as well as similarities of the present case with Parker and Vol. 87 — No. 9 — 3/26/2016

Passmore, the appropriate discipline for respondent’s conduct is disbarment. ¶38 The Bar Association filed an application for an order assessing its costs against respondent. The costs were incurred for postage, witnesses (fees and mileage), and a transcript of the trial panel hearing. The amount of these costs is $1,198.38. The Rules Governing Disciplinary Proceedings (Rule 6.16)40 provides the costs of the investigation, record and disciplinary proceedings shall be surcharged against the disciplined lawyer, unless remitted for good cause by this Court.41 Rule 6.16 requires the costs to be paid within ninety days of the Court’s opinion becoming final.42 Respondent has not provided any argument showing good cause to remit the costs in whole or in part. ¶39 The application of the Bar Association to assess costs against respondent in the amount of $1,198.38 is hereby granted. Conclusion ¶40 Respondent is disbarred from the practice of law and his name is stricken from the Roll of Attorneys.43 Respondent is directed to comply with Rule 9.1, RGDP,44 to notify his “clients having legal business then pending within twenty (20) days, by certified mail of the lawyer’s inability to represent them and the necessity for promptly retaining new counsel.” He must also file a formal withdrawal as counsel in any cases pending in any tribunal and must file an affidavit with the Professional Responsibility Commission and the Clerk of the Supreme Court stating his compliance with Rule 9.1. Respondent is further directed to pay the Bar its costs in this proceeding in the amount of $1,198.38, within ninety (90) days of the date of this opinion. He may seek reinstatement pursuant to Rule 11, RGDP, no earlier than five years from the date of this opinion.45 As a precondition to reinstatement, he will be required to demonstrate total compliance with Rule 11, including the satisfaction of any claims that may be made against the Client Security Fund, if applicable. 46 ¶41 ALL JUSTICES CONCUR. EDMONDSON, J. 1. 5 O.S.2011 Ch. 1, App. 3-A, ORPC, Rule 1.1 states: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” 2. 5 O.S.2011 Ch. 1, App. 3-A, ORPC, Rule 1.3 states: “A lawyer shall act with reasonable diligence and promptness in representing a client.”

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3. 5 O.S.2011 Ch. 1, App. 3-A, ORPC, Rule 1.4 states: (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 4. 5 O.S.2011 Ch. 1, App. 3-A, ORPC, Rule 1.5(a) states: (a) A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. 5. 5 O.S.2011 Ch. 1, App. 3-A, ORPC, Rule 8.4 (a) states: “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;. . . .” 6. 5 O.S.2011 Ch. 1, App. 1-A, Rule 5.2, states in part concerning a lawyer’s response to a grievance: “ . . . who shall thereafter make a written response which contains a full and fair disclosure of all the facts and circumstances pertaining to the respondent lawyer’s alleged misconduct . . . The failure of a lawyer to answer within twenty (20) days after service of the grievance (or recital of facts or allegations), or such further time as may be granted by the General Counsel, shall be grounds for discipline.” 7. 5 O.S.2011 Ch. 1, App. 1-A, Rule 6.4 states: “The respondent shall within twenty (20) days after the mailing of the complaint file an answer with the Chief Justice. The respondent may not challenge the complaint by demurrer or motion. In the event the respondent fails to answer, the charges shall be deemed admitted, except that evidence shall be submitted for the purpose of determining the discipline to be imposed.” 8. State ex rel. Oklahoma Bar Ass’n v. Knight, 2015 OK 59, 359 P.3d 1122. 9. State ex rel. Oklahoma Bar Ass’n v. Knight, 2015 OK 59, at ¶¶ 23-25, 359 P.3d at 1130-1131. 10. State ex rel. Oklahoma Bar Ass’n v. Knight, 2015 OK 59, at ¶ 23, 359 P.3d at 1130 (discussing Rule 8.4(b), (c), & (d)). 11. State ex rel. Oklahoma Bar Ass’n v. Knight, 2015 OK 59, ¶ 25, 359 P.3d at 1131. 12. 5 O.S.2011 Ch. 1, App. 3-A, ORPC, Rule 8.4 (a) at note 5 supra. 13. See 5 O.S.1991 Ch. 1, App. 2, ORPC, Rule 8.4, “Code Comparison,” and the comparison of Rule 8.4 with former DR 1-102(A) (1). This comparison was also distributed to members of the Oklahoma Bar in 1988 in a special edition of the Oklahoma Bar Journal on the Oklahoma Rules of Professional Conduct. 59 O. B. J. No. 26B (June 25, 1988) pp. 63-64. 14. See, e.g., State ex rel. Oklahoma Bar Ass’n v. Boettcher, 1990 OK 92, 798 P.2d 1077, 1078 (respondent’s stipulation that he violated DR 5-103(B) contained a stipulated conclusion that he thereby violated DR 1-102(A)(1)). 15. State ex rel. Oklahoma Bar Ass’n v. Knight, 2015 OK 59, ¶ 24, 359 P.3d at 1130. 16. Due process requires a respondent to receive notice of the allegations of misconduct. State ex rel. Oklahoma Bar Ass’n v. Bolusky, 2001 OK 26, ¶ 8, 23 P.3d 268, 273. See also State ex rel. Oklahoma Bar Ass’n v. Stow, 1998 OK 105, ¶ 21, 975 P.2d 869, 875 (“The Bar Association must allege facts sufficient to put the accused lawyer on notice of the

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charges and afford the respondent ample opportunity to defend against the allegations.”). 17. Report of the Trial Panel, at ¶ 3, p.2 & p. 6 (S.C.B.D. No. 6306, Dec. 14, 2015). 18. State ex rel. Oklahoma Bar Ass’n v. Minter, 1998 OK 59, ¶¶ 16-18, 22-23, 961 P.2d 208, 212, 213 (“ . . . failing to include in the complaint the allegations on which the private reprimands were based, there is no evidence that the Respondent was prejudiced by this omission. . . the complaint was sufficient to alert the Respondent that the two private reprimands could be used as enhancement of his discipline . . .the Respondent was fully informed of the consequences of agreeing to a private reprimand before the Commission . . . Respondent was informed that the two private reprimands before the Commission would be ‘preserved and ... considered in any future disciplinary proceeding against [him]’ . . . the Respondent’s due process rights are not violated by the use of his previous two private reprimands.”). 19. Mishandling a client’s funds or property is often analyzed using three different and well-known culpability standards: (1) commingling (a lawyer should keep separate the property of the client and the lawyer’s own property), simple conversion (a lawyer must apply a client’s money of property for the specific purpose entrusted to the lawyer), and (3) misappropriation (theft by conversion or otherwise of the client’s funds or property by the lawyer). State ex rel. Oklahoma Bar Ass’n v. Combs, 2007 OK 65, ¶¶ 14-16, 175 P.3d 340, 346-347; State ex rel. Oklahoma Bar Ass’n v. Johnston, 1993 OK 91, 863 P.2d 1136, 1144. 20. Shorter v. Tulsa Used Equipment and Industrial Engine Services, 2006 OK 72, n. 8, 148 P.3d 864, 868. See also Merrill on Notice, § 35 (1952), citing Federal Life Ins. Co. v. Whitehead, 1918 OK 324, 174 P. 784, 790, for the proposition that a waiver is the relinquishment of a known right and a notice is information of a condition affecting an existing right. 21. 5 O.S.2011 Ch. 1, App. 1-A, RGDP, Rule 6.5: After the complaint has been filed, the General Counsel may amend the complaint to add or delete allegations as permitted under the general rules of civil procedure, subject to the respondent’s right to file an answer within twenty (20) days after such amendment. 22. See State ex rel. Oklahoma Bar Ass’n v. Eakin, infra, at note 28, and accompanying text. An obvious similarity in civil procedure is that a default judgment may not be properly granted on causes of action beyond those framed by the pleadings. See, e.g., Reed v. Scott, 1991 OK 113, 820 P.2d 445, 447, 20 A.L.R. 5th 913, explaining La Bellman v. Gleason & Sanders, Inc., 1966 OK 183, 418 P.2d 949, 953-954 (“We found that the judgment roll, on its face, revealed that a portion of the default judgment was beyond the issues framed by the pleadings, and that the trial court lacked the power to render a part of the particular default judgment.”). While pleadings may be amended to conform to evidence, In re Guardianship of Stanfield, 2012 OK 8, n. 52, 276 P.3d 989, 1001, the Court has disapproved of a trial-by-ambush “in which a party is surprised and then not given a reasonable time to effectively defend itself.” Corman v. H-30 Drilling, Inc., 2001 OK 92, ¶ 13, 40 P.3d 1051, 1054. 23. State ex rel. Oklahoma Bar Ass’n v. Eakin, 1995 OK 106, 914 P.2d 644, 649 (“The fundamentals of due process are applicable in lawyer disciplinary proceedings.”). 24. State ex rel. Oklahoma Bar Ass’n v. Knight, 2015 OK 59, ¶ 32, 359 P.3d 1122, 1132 (“When the Bar seeks enhancement of discipline based upon former discipline it must allege the former discipline for the purpose of enhancement to give notice to the respondent. Pleading the prior discipline in the Complaint gives notice to a respondent that the prior discipline may be used for enhancement purposes.”). 25. State ex rel. Oklahoma Car Ass’n v. Minter, 2001 OK 69, ¶ 23, 37 P.3d 763, 773-774. 26. State ex rel. Oklahoma Bar Ass’n v. O’Neal, 1993 OK 61, 852 P.2d 713, 716 (testimony that respondent represented two clients while under a suspension of his Bar license, and “[t]hese two representations were not addressed in [the] complaint, and the respondent was not notified that he would be charged with any violation in conjunction with these representations . . . and because these rules were not followed [Rule 6.2(Complaint) and Rule 6.5 (Amended Complaint)], this Court declines to act on this allegation.”) 27. State ex rel. Oklahoma Bar Ass’n v. Combs, 2007 OK 65, n. 48, 175 P.3d 340, 350 ( “The Bar in its Reply Brief in Chief asserted violations of additional rules . . . ‘The fundamentals of due process are applicable in lawyer disciplinary proceedings. The Bar must allege facts sufficient to put the accused lawyer on notice of the charges and afford the respondent ample opportunity to defend against the allegations.’ . . . We find that Combs was not placed on notice of these charges and therefore refrain from ruling on the alleged violations.”). 28. State ex rel. Oklahoma Bar Ass’n v. Eakin, 1995 OK 106, 914 P.2d at 650. 29. State ex rel. Oklahoma Bar Ass’n v. Mothershed, 2011 OK 84, ¶ 33, 264 P.3d 1197, 1210.

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30. State ex rel. Oklahoma Bar Ass’n v. Clausing, 2009 OK 74, ¶ 4, 224 P.3d 1268, (the Court examines de novo the relevant facts to determine whether discipline is warranted and what sanction, if any, is to be imposed for a lawyer’s misconduct). 31. Our opinions “have consistently recognized that the facts and circumstances of each case will dictate its resolution.” State ex rel. Oklahoma Bar Ass’n v. Conrady, 2012 OK 29, ¶ 11, 275 P.3d 133, 138. 32. State ex rel. Oklahoma Bar Ass’n v. Bolton, 1994 OK 53, 880 P.2d 339, 345 (if respondent’s history “should reveal a pattern of misconduct, it will be a factor in tailoring the appropriate discipline.”). 33. State ex rel. Oklahoma Bar Ass’n v. Layton, 2014 OK 21, ¶ 30, 324 P.3d 1244, 1256. 34. 2015 OK 65, 359 P.3d 184. 35. Parker, 2015 OK 65, at ¶ 20, citing State of Oklahoma, ex rel. Oklahoma Bar Ass’n v. Passmore, 2011 OK 90, 264 P.3d 1238. 36. Parker, 2015 OK 65, at ¶ 20, citing State ex rel. Oklahoma Bar Ass’n v. McCoy, 1996 OK 27, 912 P.2d 856. 37. Parker, 2015 OK 65, at ¶ 20. 38. Passmore, 2011 OK 90, at ¶¶ 12-14, 264 P.3d at 1242-1243. 39. Parker, 2015 OK 65, at ¶ 19. 40. 5 O.S. 2011 Ch. 1, App. 1-A, RGDP, Rule 6.16, Rules Governing Disciplinary Proceedings: “The costs of investigation, the record, and disciplinary proceedings shall be advanced by the Oklahoma Bar Association (or the Professional Responsibility Commission, if provision therefor has been made in its budget). Where discipline results, the cost of the investigation, the record, and disciplinary proceedings shall be surcharged against the disciplined lawyer unless remitted in whole or in part by the Supreme Court for good cause shown. Failure of the disciplined lawyer to pay such costs within ninety (90) days after the Supreme Court’s order becomes effective shall result in automatic suspension from the practice of law until further order of the Court.” 41. State ex rel. Oklahoma Bar Ass’n v. Knight, 2015 OK 59, ¶ 37, 359 P.3d 1122, 1133; State ex rel. Oklahoma Bar Ass’n v. Demopolos, 2015 OK 50, ¶ 40, 352 P.3d 1210, 1222. 42. State ex rel. Oklahoma Bar Ass’n v. Knight, supra; State ex rel. Oklahoma Bar Ass’n v. Demopolos, supra. 43. 5 O.S.2011 Ch. 1, App. 5, Rules Governing Admission to the Practice of Law in the State of Oklahoma, Rule 1, “Qualifications to Practice Law in Oklahoma,” states in part: “To be admitted to the practice of law in the State of Oklahoma, the applicant: . . . shall have signed the Roll of Attorneys . . . .” 44. 5 O.S.2011 Ch. 1, App. 1-A, RGDP, Rule 9.1 states: When the action of the Supreme Court becomes final, a lawyer who is disbarred or suspended, or who has resigned membership pending disciplinary proceedings, must notify all of the lawyer’s clients having legal business then pending within twenty (20) days, by certified mail, of the lawyer’s inability to represent them and the necessity for promptly retaining new counsel. If such lawyer is a member of, or associated with, a law firm or professional corporation, such notice shall be given to all clients of the firm or professional corporation, which have legal business then pending with respect to which the disbarred, suspended or resigned lawyer had substantial responsibility. The lawyer shall also file a formal withdrawal as counsel in all cases pending in any tribunal. The lawyer must file, within twenty (20) days, an affidavit with the Commission and with the Clerk of the Supreme Court stating that the lawyer has complied with the provisions of this Rule, together with a list of the clients so notified and a list of all other State and Federal courts and administrative agencies before which the lawyer is admitted to practice. Proof of substantial compliance by the lawyer with this Rule 9.1 shall be a condition precedent to any petition for reinstatement. 45. 5 O.S.2011 Ch. 1, App. 1-A, RGDP, Rule 11.1 states in part: A person whose name has been stricken from the Roll of Attorneys for non-payment of dues, or who has been suspended from the practice of law for a period of longer than two (2) years or disbarred, or who has resigned membership in the Association, may be readmitted to the practice of law only through the following procedures: . . . (e) The applicant shall not be permitted to file an application for reinstatement, after disbarment or resignation pending investigation or disciplinary proceedings, within five (5) years of the effective date of the order of the Court disbarring the applicant or accepting the resignation, nor shall any applicant be permitted to file an application for reinstatement within one (1) year after the Supreme Court has denied an earlier application.” 46. 5 O.S.2011 Ch. 1, App. 1-A, RGDP, Rule 11.1(b) states: “A person whose name has been stricken from the Roll of Attorneys for non-payment of dues, or who has been suspended from the practice of law for a period of longer than two (2) years or disbarred, or who has resigned membership in the Association, may be readmitted to the practice of law only through the following procedures: . . . (b) If any funds of the Client’s Security Fund of the Oklahoma Bar

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Association have been expended on behalf of the applicant, the applicant must show the amount paid and that the same has been repaid to the Oklahoma Bar Association to reimburse such Fund.”

2016 OK 20 YAUMARY CONCEPCION TORRES, Petitioner, v. SEABOARD FOODS, LLC, AMERICAN ZURICH INS. CO., and THE WORKERS’ COMPENSATION COMMISSION, Respondents. No. 113,649. March 1, 2016 APPEAL FROM THE OKLAHOMA WORKERS’ COMPENSATION COMMISSION ¶0 Petitioner (employee) filed a workers’ compensation claim for a cumulative-trauma injury pursuant to the Administrative Workers’ Compensation Act, Oklahoma Statutes, Title 85A, Section 2(14). The administrative law judge, T. Shane Curtin, determined employee was barred from obtaining any workers’ compensation remedy because when she filed her claim she had not worked a continuous 180-day period for her employer. The administrative order was appealed to the Workers’ Compensation Commission, and the Commission affirmed the order of the administrative judge. Employee appealed the Commission’s order to the Supreme Court and the Court retained the appeal. We hold: 85A O.S. § 2(14) violates the Due Process Section of the Oklahoma Constitution, Art. 2 § 7, when applied to employee because the statute’s overinclusive and underinclusive classifications are not rationally related to legitimate State interests of (1) preventing workers’ compensation fraud and (2) decreasing employers’ costs. ORDER OF WORKERS’ COMPENSATION COMMISSION REVERSED; PROCEEDING REMANDED FOR FURTHER PROCEEDINGS Bob Burke, Oklahoma City, Oklahoma, for Petitioner. Juan Maldonado, Oklahoma City, Oklahoma, for Petitioner. Connie M. Wolfe, Connie M. Wolfe & Associates, P.L.L.C., Oklahoma City, Oklahoma, for Respondent, Seaboard Foods, L.L.C. V. Glenn Coffee and Denise K. Davick, Oklahoma City, Oklahoma, for Amicus Curiae, State Chamber of Oklahoma.

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II. Workers’ Compensation Statutes Raised by the Parties

EDMONDSON, J. I. Introduction ¶1 Petitioner, a former employee, filed a workers’ compensation claim and alleged she was injured on-the-job and needed surgery. Her former employer (employer) argued that she was barred from receiving workers’ compensation because she alleged a cumulativetrauma injury and she had not worked a continuous 180-day period for that employer. The administrative law judge denied her claim because she had not worked the 180-day period. The Workers’ Compensation Commission affirmed the order of the administrative judge. ¶2 Employer also argues on appeal petitioner has no right to file either a workers’ compensation claim or seek a common-law remedy in a District Court. Employer asserts petitioner has no legal right or remedy to receive any type of compensation or medical care from her employer in any form. Employer argues petitioner has no right to an opportunity to prove her claim of injury before any court or any administrative agency. Employee argues her employer is making an unconstitutional application of workers’ compensation statutes. ¶3 Because the employee challenged the constitutionality of 85A O.S. §§ 2(14) & 5, this Court issued an order providing the Oklahoma Attorney General, Speaker of the House of Representatives, and the President Pro Tempore an opportunity to intervene by filing entries of appearance herein and briefing issues. They did not intervene and file briefs. The amicus curiae, State Chamber, filed a brief in support of the constitutionality of the challenged statutes. ¶4 Several decades of court precedent from both the U.S. Supreme Court and the Oklahoma Supreme Court on the subject of how state and federal statutes interact with State and Federal Due Process constitutional provisions clearly show an unconstitutional application of a workers’ compensation statute by employer in the matter before the Court. We hold 85A O.S. § 2(14) violates the Due Process Section of the Oklahoma Constitution, Art. 2 § 7, when applied to employee because the statute’s overinclusive and underinclusive classifications are not rationally related to legitimate State interests of (1) preventing workers’ compensation fraud and (2) decreasing employers’ costs.

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¶5 Two workers’ compensation statutes are used by employer in support of its argument: 85A O. S. Supp. 2013 § 2(14) & § 5. The first defines cumulative trauma based upon repetitive physical activities and adds a condition requiring an employee to have completed one hundred eighty (180) days of continuous employment. 14. “Cumulative trauma” means an injury to an employee that is caused by the combined effect of repetitive physical activities extending over a period of time in the course and scope of employment. Cumulative trauma shall not mean fatigue, soreness or general aches and pain that may have been caused, aggravated, exacerbated or accelerated by the employee’s course and scope of employment. Cumulative trauma shall have resulted directly and independently of all other causes and the employee shall have completed at least one hundred eighty (180) days of continuous active employment with the employer; 85A O.S.Supp. 2013 § 2 (14). Employer argues that two reasons exist for an employee to work 180 continuous days as a condition to receive workers’ compensation. The first, “It is reasonable to conceive that a worker who has worked for a significant period of time is more likely to have sustained an injury, while a worker who works for a shorter period did not. . . [and the 180-day requirement] places reasonable qualifications on what a compensable injury is, and what it is not.”1 This argument may be reduced to the simple statement that the Legislature’s role includes determining what constitutes a compensable injury. ¶6 The second argument is that preventing fraud and controlling economic concerns are legitimate State interests, and the Legislature has a role in preventing fraud and advancing economic interests by decreasing employers’ costs. The brief of amicus curiae provides rankings from different states based upon costs for workers’ compensation insurance premiums, but it does so using a rule-prohibited Brandeis brief method.2 However, amicus curiae’s argument supporting a legislative decrease in employers’ costs as a legitimate State interest may be considered apart from the Brandeis brief facts. This is so because employer’s argument

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concerning employers’ costs is sufficiently broad to fairly include employers’ costs associated with workers’ compensation insurance. ¶7 Employer makes the following argument: This limitation bears a rational relationship to a legitimate State interest. Preventing fraud is a legitimate state interest. Placing a requirement that an employee work for a period of time before qualifying for a compensable injury ensures that frivolous claims and fraudulent allegations are controlled. Respondent’s Answer Brief, at pp. 5-6. Amicus curiae similarly argues that the 180-day period is a “durational requirement . . . necessary to define the bounds of the injury . . . [and the] exposure requirement merely serves to ferret out fraudulent claims and ensure that the injury claimed is fairly attributable to the period of employment.”3 ¶8 Employee recognizes that legitimate State interests include legislation to prevent fraud and advance economic interests. Employee also recognizes the Legislature’s role in creating workers’ compensation laws. Employee argues that § 2(14) class of employees who work less than 180 days is a statutory class that violates the Due Process section of the Oklahoma Constitution, Okla. Const. Art. 2 § 7.4 ¶9 Employer also argues that employee is barred from bringing a District Court action against her former employer. Employer relies upon 85A O.S. Supp. 2013 § 5.5 Paragraph “C” of § 5 states: “The immunity from civil liability described in subsection A of this section shall apply regardless of whether the injured employee is denied compensation or deemed ineligible to receive compensation under this act.” Employer argues that although employee is not eligible to bring a workers’ compensation claim because of the 180-day requirement of § 2, employee is also barred from bringing an action in a District Court. ¶10 Employee argues that when the workers’ compensation statutes were originally created in several States a grand bargain was created. This bargain consisted of an injured worker relinquishing a common-law right to bring an action in a District Court against the worker’s employer and the worker gained more certain statutory compensation but the compensation was less in amount. On the other hand, the employer relinquished certain common-law Vol. 87 — No. 9 — 3/26/2016

defenses in a District Court action and gained an economic liability that was less and fixed by statute.6 Employee argues that statutorily barring both a workers’ compensation remedy and a District Court remedy violates the grand bargain and the Oklahoma Constitution. She argues for a right to proceed against her employer by an action filed in a District Court. ¶11 This Court has a fundamental duty to ascertain and give effect to, or enforce, the Legislature’s intent expressed in any statute the Legislature creates.7 If the language of the statute is plain and unambiguous, the legislative intent is deemed to be expressed by the statutory language.8 Rules of construction are applied to determine legislative intent when the statutory language is ambiguous.9 We first examine § 2(14) and conclude its language is not ambiguous, and apply the meaning of § 2 prior to examining § 5. ¶12 The employee in this controversy alleges a cumulative trauma injury occurred, in fact, during less than 180 continuous days of employment. Respondent and amicus curiae do not assert that § 2 (14) is a legislative determination that a cumulative injury does not, or cannot, in fact occur during the first 180 days of a person’s employment. They agree that cumulative trauma is an injury “caused by the combined effect of repetitive physical activities extending over a period of time in the course and scope of employment.” The brief of amicus curiae emphasizes this language to show that cumulative injury occurs during a period of time. ¶13 Respondent and amicus curiae appear to agree that the statutory language would not prohibit an employee from filing a cumulative trauma claim on the 181st day of employment, where the claim would be based upon repetitive and cumulative trauma occurring for a period of time during the previous 180 days of employment. The language requiring 180 days of employment is thus not construed as defining the nature of an injury, but a condition required to file a claim against an employer in addition to the employee having suffered an injury. As explained by amicus curiae, “the Legislature . . . delineated a particular number of days that an individual must be employed prior to filing a claim for an injury that was sustained by ‘repetitive physical activities,’” or the “legislative state purpose” of the 180-day requirement is that “an individual be employed for a certain length of time prior to subjecting the employer to a claim for a repetitive injury.”

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¶14 Respondent and amicus curiae also characterize the 180-day employment language in § 2(14) as one element defining “cumulative trauma.” Construing the language as part of a definition for cumulative trauma versus viewing it as a condition for filing a claim does not help employer’s legal position. Regardless whether the language is part of the definition of a cumulative trauma or a condition for filing a claim in addition to defining trauma based upon repetitive injury, the statute is determining as a matter of law a class of employees who are prohibited from filing a workers’ compensation claim although they may have suffered, in fact, a repetitive injury arising out of the course and scope of employment.10 The language in § 2(14) cannot be read as creating an irrebutable presumption that no cumulative trauma repetitive injury can occur, as a matter of fact, during the 180-day period.11 ¶15 We agree with respondent that § 2 (14) does not define a cumulative trauma as an injury which has necessarily been repeated every day for 180 days. Section § 2(14) clearly imposes a duration-of-employment condition as a necessary predicate for filing a cumulative trauma workers’ compensation claim. ¶16 The language of § 2(14) creates two classes of employees alleging a cumulative trauma injury. The first class are those employees who allege, in fact, they have suffered a cumulative trauma compensable injury during the first 180 days of employment and who may file a claim for compensation on or after the 181st day of continuous employment. The second class are those employees who allege, in fact, they have suffered a cumulative trauma compensable injury during the first 180 days of employment and who are barred by § 2 (14) from filing a workers’ compensation claim because they have not completed 180 days of continuous employment. Employee alleges she is in this latter class of employees, and that the duration-of-employment predicate for filing a workers’ compensation claim in § 2(14) is unconstitutional because she is an injured worker innocent of the evil that § 2(14) was designed to address. III. Employee’s Burden to Show Unconstitutionality ¶17 A constitutional analysis begins with the well-known judicial recognition that the Oklahoma Legislature is constitutionally vested by Article 5 § 3612 of our Constitution with a 586

supreme legislative power extending to all rightful subjects,13 and the presumed constitutionality of a legislative enactment is rebutted only when either the State Constitution or federal law prohibits that enactment.14 When this Court examines a legislative enactment it tries to construe and apply it in a manner that avoids conflict with our Constitution and give the enactment the force of law.15 The burden to show the presence of a constitutional flaw in a statute is on the party who asserts its unconstitutionality.16 A court’s function, when the constitutionality of a statute is put at issue, is limited to a determination of the validity or invalidity of the statute17 with respect to a party in the controversy who is aggrieved by application of the challenged statute.18 IV. Employer’s Reliance on United States R.R. Retirement Bd. v. Fritz ¶18 Respondent and amicus curiae argue a legislative body need not state its reason for creating legislation and a legislative right or remedy is solely within the discretion of the legislative body. They conclude these principles make employee’s claims without merit. We address this argument first because if they are correct then their argument would be outcome determinative on the constitutional issues raised by the employee. However, as we explain, we conclude their argument is insufficient. ¶19 Employer relies upon the U.S. Supreme Court opinion in United States R.R. Retirement Bd. v. Fritz,19 for the principles that (1) a legislative body does not need to state its reasons for creating a statute, and (2) when the right involved is purely a statutory benefit such as a railroad retirement benefit, a benefit within the legislative grace of Congress, as in United States R.R. Retirement Bd., the proper decision-maker for drawing the line, or creating the classification is a legislative body. Employer expands upon this latter principle and argues that the Legislature has the power to determine what type of injury “qualifies as [a] compensable injury . . . The fact that an employee working 120 days falls on one side of the line and an employee working 180 days falls on the other side is not relevant.”20 ¶20 Amicus curiae makes a similar argument explaining that the Legislature has “the authority to prescribe rights and remedies for addressing occupational injuries,” and quotes Adams v. Iten Biscuit Co.,21 for the proposition that the creation of workers’ compensation statutes are

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within the police power of the Legislature. While this Court agrees with United States R.R. Retirement Bd., and its principles, our agreement does not lead to the conclusion of respondent and amicus curiae that the challenged statutes must necessarily be constitutional. ¶21 Addressing the first cited principle from United States R.R. Retirement Bd., we agree the Legislature is not required to explain its reasons for creating a statute or expressly state that it has a particular intent when crafting legislation. But this Court has a fundamental duty to ascertain and give effect to, or enforce, the Legislature’s intent expressed in any statute the Legislature creates.22 In cases not involving the constitutionality of a statute, a court is required to determine legislative intent and the meaning of the statutory language and then apply that meaning to the issues in controversy.23 While language indicating legislative intent informs and assists a court with determining what a legislature is attempting to accomplish by legislation, a court’s constitutional analysis must be based upon what the legislation actually accomplishes by that which is created by the statute, and not by what a legislature states it is accomplishing. Obvious examples include, whether a payment is a “tax” or a “license fee” is not determined by the name given it by legislation,24 a gift of public funds to a private entity for a nonpublic purpose may not be made constitutional by legislation stating that the transaction is something other than a prohibited gift,25 and legislation collecting funds from the public as part of a tax code are State funds although legislation states they are not funds belonging to the State.26 These examples are not novel and reflect the long-recognized principle that a court’s constitutional analysis of a statute is based upon what the statute actually accomplishes and not solely by a characterization given to the statute by a legislative body.27 Parties in a controversy advocate legal positions relating to the scope or application of legislation. A court’s function requires it to examine and adjudicate that issue regardless whether the Legislature has expressly articulated its reasons for creating a statute, and when the Legislature has stated its reasons the Court must examine them in relation to any constitutional provision raised by any party in the controversy. ¶22 Addressing the second cited principle from United States R.R. Retirement Bd., and as we explain more fully herein, an argument Vol. 87 — No. 9 — 3/26/2016

which relies on the power of a legislative body to create or abolish statutory rights and remedies as proof that a statutory classification is rational, is an argument that not only contains a fallacy28 or an insufficient generality,29 but is also historically-discredited insufficient legal reasoning, including in circumstances where a legislative police power has been exercised. We address this issue within the context of the employee’s due process claim. V. Employee’s Claim that the Due Process Section of the Oklahoma Constitution is Violated by Application of 85A O.S. Supp. 2013 § 2(14) & § 5 ¶23 Due process often has been explained by this Court in opinions discussing both the Fourteenth Amendment’s30 Due Process Clause and Oklahoma’s Due Process Section in the Oklahoma Constitution. The Oklahoma Due Process Section31 provides a bundle of rights and one or more of those rights may be in addition to a right provided by the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.32 However, because (1) the Oklahoma Due Process Section is coextensive with and protects, at a minimum, those rights which are also provided by the Fourteenth Amendment,33 and (2) we hold herein that the substantive due process minimum is violated by employer’s construction and application of the challenged statutes to the petitioner; we need not address whether the Oklahoma Due Process Section has a substantive due process component broader in scope than its federal counterpart in the Fourteenth Amendment.34 ¶24 One hundred years ago, the U.S. Supreme Court indicated that the Federal Due Process Clause “would likely bar states from abolishing entirely rights of action on behalf of employees suffering physical harm because of wrongs attributable to employers.”35 Some authors have argued that between approximately 1870 and 1920 the U.S. Supreme Court understood the Federal Due Process Clause as setting (1) a ceiling with limits for expanding a cause of action and creating additional liability for one party when a legislature attempted a naked redistribution of wealth and (2) a floor with constitutional limits on abolishing a cause of action when the legislature deprived an individual of an opportunity to vindicate a basic interest, such as a right to personal bodily integrity that traditionally has been enforceable against others who invade that right.36

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¶25 Then the High Court had a period where it developed a rational-basis review used for challenges to legislation that was characterized as social and economic in its application and not impacting a personal fundamental right.37 Consistent with this approach the Oklahoma Supreme Court has also stated and applied a rational-basis standard of review for due process challenges to enactments classified as “economic legislation.”38 However, while the High Court gave a more legislatively deferential constitutional review of legislation involving economic regulation, it also advanced a less deferential review of legislation which acted to restrict a person’s constitutionally protected liberty interests.39 For example, fifty years ago one author commented on the inaccuracy of a court using a rational-basis standard for economic legislation when such legislation also diminished a constitutionally protected personal right, and argued that such legislation received a judicial review that was less deferential than a legislatively deferential rationalbasis review.40 ¶26 One well-known principle is that a legislature’s authority to create or abolish a right or benefit does not mean that the legislature has the authority to create an unconstitutional condition related to that right or benefit.41 Other well-known and simple principles demonstrating our required analysis are: (1) a Legislature’s exercise of a police power has been historically recognized42 as subject to limits expressed by the Will of the People in provisions of the Oklahoma Constitution prohibiting unreasonable and arbitrary legislation, (2) constitutional limits on police power continue to this day,43 and (3) these limits are applicable to any exercise of governmental legislative power (including legislative power exercised by a municipality or quasilegislative power exercised in the form of an administrative rule).44 The legislation in this controversy does more than merely identify what employees are covered by workers’ compensation or define a statutory cause of action; and doing so in both overinclusive and underinclusive form makes the legislation unconstitutional. ¶27 When the Legislature exercises a police power, such exercise “is an attribute of state sovereignty . . . [and] an inherent power of the state legislature that extends to the whole system of internal regulation by which the state preserves public order, prevents offenses against the state, and insures to the people the enjoyment of rights and property reasonably 588

consistent with like enjoyment of rights and property by others.”45 Our more modern expressions of this historically recognized constitutional limitation on police power have explained that a court must examine whether legislation is rationally related to a legitimate government interest and if the challenged legislation reasonably advances that interest.46 This analysis requires an adjudication whether a legitimate State interest exists47 and whether it is rationally related to the legislation. ¶28 We recently noted the nature of this review when we quoted an opinion from 1977 which in turn quoted an opinion from 1930. It is well settled that the state, or its agents, in the exercise of its police power can extend this power only to such measures as are reasonable under all the circumstances. The means adopted must bear some real and substantial relation or be reasonably necessary for the accomplishment of a legitimate object falling within the scope of the police power, and the law or regulation must tend toward the preservation of public welfare, health, safety, or morals. Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, ¶ 52, 148 P.3d 842, 857 quoting Suntide Inn Operating Corp. v. State, 1977 OK 204, 571 P.2d 1207, 1210, quoting Gibbons v. Missouri, K. & T. R. Co., 1930 OK 108, 285 P. 1040. A court determines (1) if there is a legitimate government interest (a) articulated in the legislation or (b) championed by the parties or (c) expressed by a recognized public policy in support of the legislation, and (2) if that interest is reasonably advanced by the legislation. We have expressed often this two-part test in a negative form when explaining an unconstitutional exercise of the police power is an arbitrary and capricious exercise of power; i.e., the exercise of legislative power is unconstitutional when it was not reasonably devoted to a legitimate interest or end, or when the legitimate police-power interest was not regulated within reasonably necessary means for the identified State interests.48 ¶29 In due process jurisprudence involving whether a legitimate state interest exists, a court’s analysis will generally be less intrusive upon an exercise of legislative discretion when the legislation is economic in nature. For many, an unforgivable jurisprudential error of Lochner was the Court substituting its own judgment for that of a legislative body on an economic issue49

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with the Court deciding that the State’s interest was not a legitimate economic interest.50 There are, of course, some circumstances where courts examine the legitimacy of the state’s interest in economic legislation,51 but the High Court does not have a history of creating bright-line tests for defining legitimate state interests.52 Our Court frequently has been called upon by parties to make such a determination.53 ¶30 There is little doubt that a state legislature may alter private contractual rights of employers and employees when it properly exercises its police power in creating a particular workers’ compensation law,54 or that workers’ compensation laws, by themselves, have been considered by courts as a legitimate State interest since the compensation laws were first created.55 In our case today, we do not repeat Lochner’s error of improperly rejecting an articulated economic interest of the State. We accept for the purpose of the arguments made herein, respondent’s articulated State interest as legitimate in this case, i.e., the prevention of workers’ compensation fraud and the decrease in an employer’s costs as a result of legislative effort to prevent fraud.56 ¶31 The Due Process Section of the Oklahoma Constitution includes an equal protection element.57 Respondent and amicus curiae rely upon Gladstone v. Bartlesville Indep. School Dist. No. 30,58 and argue for the Court to use an equal protection rational-basis review of § 2(14) and § 5. Many substantive due process violations based upon impermissible underinclusive/ overinclusive classifications may also support an equal protection claim.59 ¶32 When a due process or equal protection challenge is made because a statute creates different classes of people with different legal rights, a legal analysis will often discuss whether the statute’s classification is underinclusive (statute includes too few people in its created class) or if the classification is overinclusive (too many people are included in the statutory class). Generally, the U.S. Supreme Court has upheld an underinclusive statute regulating solely an economic matter when only a portion of the identified evil has been regulated,60 but where the government is required to narrowly tailor its classification the concept of underinclusiveness may be used to show the lack of a compelling government interest sufficient to make the statutory classification constitutional.61 A mere overinclusiveness or underinclusiveness in statutory classification will not Vol. 87 — No. 9 — 3/26/2016

necessarily show a failure to satisfy a rationalbasis review.62 ¶33 If a police-power statute is overinclusive and prohibits both wrongful conduct by people and innocent conduct by others, then overinclusiveness by including the innocent may be used to show the arbitrary nature of the classification created by the statute. In the 1951 case of Board of Regents v. Updegraff,63 we explained that when the police power is used the acts of the Legislature are valid so long as they are not unreasonable, arbitrary, and capricious and do not violate any of the fundamental constitutional guaranties of the State and Federal Constitutions.64 When this opinion was reversed on a different ground by the U.S. Supreme Court in Wieman v. Updegraff, the High Court applied a similar test and held due process was violated by a loyalty-oath statute that arbitrarily failed to distinguish between persons whose membership activities in certain organizations were innocent and those whose activities were based upon knowledge of the organizations’ purposes.65 ¶34 The distinction made in Wieman is noteworthy because it has been applied by courts to legislation in the nature of business regulation, and both respondent and amicus curiae argue that the legislation should be treated as economic and business related. For example, in the 1951 opinion of Adwon v. Retail Grocers Ass’n, we noted our prior opinion in 194966 which held the1941 Unfair Sales Act unconstitutional for the reason that it violated the state and federal constitutions by punishing for a sale for less than cost regardless of any wrongful intent by an innocent party. The Legislature subsequently deleted the unconstitutional language and the amended Act was before the Court in Adwon. A party made a claim that the Unfair Sales Act violated due process of law and relied upon opinions from Pennsylvania and New Jersey, which the Court rejected and explained that those opinions, like the former Oklahoma Act, impermissibly made no distinction in the scope of the Act between innocent conduct by individuals and those individuals committing the improper conduct the Act was designed to address by the exercise of a police power.67 ¶35 We agree with respondent and amicus curiae that decisions concerning public policy in creating and abolishing causes of action are routinely within the judgment of the Legislature. This Court has a long history of recognizing the

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Legislature’s general police power to alter private personal rights in contexts of creating or abolishing a cause of action. For example, in Davis Oil Co. v. Cloud,68 while the members of the Court were not unanimous in characterizing the legal interests altered by the then recently enacted Oklahoma Surface Damages Act,69 the Justices joining the Court’s opinion and the four dissenting Justices all agreed that the Legislature has the power to change private property or rights of a person when the change is within a proper exercise of the Legislature’s police powers.70 However, the U.S. Supreme Court has recognized substantive due process limitations on state law arbitrarily increasing a person’s legal liability. In the 1996 case of BMW of North America, Inc. v. Gore,71 and the 2003 case of State Farm Mut. Auto. Ins. Co. v. Campbell,72 the High Court held that excessive damages violated the substantive component of the Due Process Clause, i.e., this constitutional provision provided a ceiling above which damages could not be awarded. In these cases the Court recognized the legitimate state interests in awarding punitive damages, but excessive damages were held to constitute an arbitrary deprivation of property.73 ¶36 In BMW, punitive damages were awarded to punish the defendant’s business practices, and the Court used a substantive component of due process in holding that the excessive nature of the damages were not “reasonably necessary to vindicate the State’s legitimate interests” in punishing the prohibited business practices.74 Although the Court’s opinions in BMW, supra, and State Farm Mut. Auto. Ins. Co., supra, have the effect of using substantive due process to establish a due process ceiling, the Court has not recently used substantive due process to state that the extinguishment of a cause of action violates a due process floor of minimum requirements. However, it is clear that a State’s legitimate interests in regulating business practices are not exempt from the requirements of substantive Due Process. The Court essentially held that the imposition of arbitrarily imposed economic liability violated due process. When the Legislature decreases workers’ compensation liability (and costs) for the class of employers by barring an injured employee from filing a claim, such legislation also increases potential economic liability to employees and increased economic risk allocation by a diminished duty owed to the employees. In other words, the creation of an arbitrarily designed employer immunity by shifting economic loss 590

to an innocent injured employee would also violate State and federal Due Process. ¶37 Is prohibiting injured workers from filing a claim for cumulative trauma during the first 180 days of employment reasonably necessary (or a nonarbitrary classification) to vindicate the State’s legitimate interest in preventing fraudulent workers’ compensation claims?75 In other words, is barring an injured employee from filing a cumulative trauma claim during the first 180 days of employment an arbitrary method to vindicate the State’s interest in preventing fraudulent claims? ¶38 In Jimenez v. Weinberger, the U.S. Supreme Court addressed the issue of a statute created for the purpose of avoiding or stopping Social Security Act “spurious claims” by creating two classes of claimants.76 In addition to denying one class of claimants eligibility for a benefit, the statute also “denies them any opportunity to prove dependency in order to establish their ‘claim’ to support and, hence, their right to eligibility.”77 In Jimenez, a statutory class of people was created for the purpose of stopping fraudulent claims and these people were denied the opportunity to show that their claims were legitimate and nonfraudulent. ¶39 Similar to Jimenez, § 2(14) creates two classes of employees with cumulative trauma injuries for the purpose of avoiding or stopping spurious (or fraudulent) workers’ compensation claims, one class is entitled to compensation and another class is not. Also similar to Jimenez, § 2(14) individuals are denied the opportunity to establish their claims and their right to receive compensation for injuries arising out of the course and scope of employment, i.e., one class may file a claim and one may not. ¶40 The High Court noted prevention of spurious claims is a legitimate governmental interest.78 The Court explained that “It does not follow, however, that the blanket and conclusive exclusion . . . [of one class to benefits] is reasonably related to the prevention of spurious claims.”79 The Court explained that assuming the class of individuals are, “in fact,” within the class of people who would be entitled to benefits but for the challenged statutory classification, then the statutory classification discriminates “without any basis for the distinction since the potential for spurious claims is exactly the same as to both subclasses.”80

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¶41 Two years after Jimenez, the U.S. Supreme Court explained its holding by stating that if a conclusive exclusion of one class to a statutory benefit is combined with a statutory prohibition for members of this class to show they would otherwise be entitled to the statutory benefit; then the purpose of providing a statutory benefit to those entitled is lost as to those individuals. Further, an articulated purpose of preventing spurious claims was constitutionally insufficient in Jimenez because “to conclusively deny one subclass benefits presumptively available to the other denies the former the equal protection of the laws guaranteed by the due process provision of the Fifth Amendment.”81 Different United States Courts of Appeals have observed that a rational basis form of review was used in Jimenez, and that this review has been used to invalidate legislation.82 ¶42 Language in Jimenez, refers to both the underinclusiveness and overinclusiveness of the challenged legislation.83 Similar issues are present in our case today. When considering the articulated purpose of preventing workers’ compensation fraud, a statute creating a class of employees who are injured, in fact, with a cumulative trauma injury during the first 180 days of employment with their then current employer, and then they are conclusively placed within a class of employees who file fraudulent claims, that statutory placement is overinclusive by lumping together the innocent with the guilty. On the other hand, if one of the purposes of workers’ compensation is to provide statutory compensation for employees actually suffering an injury arising out of the course and scope of employment;84 then the statute is underinclusive because it fails to include employees actually injured during the first 180 days of employment. ¶43 We also observe, like the U.S. Supreme Court in Jimenez, the prevention of spurious and fraudulent claims is a legitimate governmental interest. As noted by the High Court, it does not follow, however, that the blanket and conclusive exclusion of one class of injured employees to benefits is reasonably related to the prevention of spurious claims. Assuming that employees with less than 180 days of employment are, in fact, within the class of people who would be entitled for benefits but for the 180-day challenged statutory classification, then the statutory classification discriminates without any rational basis for the distinction since the potential for filing spurious claims is exactly the same for cumulativeVol. 87 — No. 9 — 3/26/2016

trauma employees before and after 180 days of continuous employment. ¶44 In Weber v. Aetna Casualty & Surety Co.,85 the Court held Louisiana’s workers’ compensation scheme violated the Fourteenth Amendment by distinguishing for different treatment the class of dependent unacknowledged illegitimate children and the class of dependent legitimate children, and observing “Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing.”86 Although we need not adopt this rationale of Weber as a necessary part of our due process analysis to adjudicate the present controversy,87 we note § 2(14) which prohibits an injured worker from filing a non-fraudulent claim prior to the 180-day period does not show a rational relationship between legally allocating individual responsibility with the wrongful conduct that the State interest seeks to prevent. ¶45 Employer also makes an argument that § 2(14) and § 5 work together so that employee has no right and no remedy for her alleged injury and this combination of the two statutes is constitutional. Paragraph “C” of § 5 states: “The immunity from civil liability described in subsection A of this section shall apply regardless of whether the injured employee is denied compensation or deemed ineligible to receive compensation under this act.” Respondent argues employee is prohibited from filing an action in the District Court against her employer although she has no workers’ compensation remedy. ¶46 The § 5 prohibition of filing in a District Court shows that the interest of the State behind the classification scheme cannot be solely the prevention of fraudulent claims filed with the Workers’ Compensation Commission.88 Generally, the act of classifying is grouping or segregating objects and that act assumes a purpose for the classification to accomplish a particular result that is something other than a mere purpose to classify.89 Respondent and amicus curiae state the two statutes are economic in nature. They state the purpose is a State interest in lowering costs to employers. A statute regulating economic affairs is not unconstitutional merely because an economic detriment or benefit is created by a statutory classification. The very nature of such statutes is to alter economic benefits with or without corresponding economic detriments. Again,

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for the purpose of our analysis we assume that lowering an employer’s costs is a legitimate State interest. ¶47 But their argument repeats a similar flaw. They argue a rational basis for legislation is shown if the purpose of a statute, as articulated by a legitimate State interest, is accomplished in any degree regardless of the irrationality of the classifications created by the statute. Their first argument is that a statute with a purpose to decrease workers’ compensation fraud is constitutional if workers’ compensation fraud is, or potentially will be, decreased in any degree by operation of the statute. Their second argument using the legitimate State interest in lowering costs to employers becomes: A statute with a purpose to lower an employer’s costs is constitutional if employer’s costs are, or potentially will be, decreased in any degree by operation of the statute. Just as their first argument fails to include concepts of overinclusive and underinclusive constitutional flaws in statutes receiving a rational basis review, so does their second argument. We decline their invitation to adopt their position that class distinctions between employees with similar injuries is rationally related to a legitimate State interest although principles of underinclusiveness and overinclusiveness show irrationality in the classification.

the current workers’ compensation scheme and argues that (1) workers’ compensation remedies are inadequate, (2) the grand bargain is violated, and (3) the order denying her workers’ compensation benefits should be reversed. ¶50 Two concepts are often raised as being important principles underlying workers’ compensation law, (1) the State’s interest in the economic welfare of injured workers, and (2) the grand bargain.91 At the time the workers’ compensation laws were created it was recognized that a worker’s common-law remedies in District Courts for on-the-job injuries were less than ideal. For example, in writing for the Yale Law Journal in 1911, then Oklahoma Supreme Court Justice Kane explained that the compensation laws then being enacted had a goal of compensating an injured employee so that family members economically relying on the worker should not be left “to the tender mercy of charity or a charge upon the State.”92 We noted this purpose in 1935 and more recently in 2005.93

VI. The Grand Bargain

¶51 Public policies adopted by our Legislature one hundred years ago that were foundational for establishing workers’ compensation laws, such as the historic Legislature’s views on the grand bargain and economic-welfare shifting, do not control or limit the current Legislature’s determination of public policy. It is a wellknown principle of statutory and constitutional construction that one Legislature cannot bind another, and this Court has followed this principle for several decades.94 Courts recognize that a legislature has the power to change the common law “to reflect a change of time and circumstances.”95 While the English common law may be a starting point for a legal analysis, statutory law may modify the common law.96 The old hand that was at the legislative helm a hundred years ago does not control the present Legislature’s view of good public policy.

¶49 Employee argues that when the workers’ compensation statutes were originally created in several States a grand bargain was created. This bargain consisted of an injured worker relinquishing a common-law right to bring an action in a District Court against the worker’s employer and the worker gained statutory compensation in a lesser amount. On the other hand, the employer relinquished certain common-law defenses in a District Court action and gained an economic liability that was both less in individual cases and fixed by statute. Employee cites to forty-two (42) provisions of

¶52 This discussion of the grand bargain shows that the concept is important to the extent it is a beginning for an analysis to inform a court what may, or may not, be current and legitimate State interests (or current public policies) for the purpose of a court’s statutory analysis in the context of addressing this employee’s constitutional claim. We have concluded herein that § 2(14) was unconstitutionally applied to employee, and reverse the order of Workers’ Compensation Commission for further administrative proceedings consistent with this opinion. Because we have determined

¶48 We conclude the overinclusive and underinclusive nature of § 2(14) as it relates to the legitimate State interest to prevent workers’ compensation fraud and its prohibition preventing an employee from filing a non-fraudulent workers’ compensation claim violates the Due Process Section of the Oklahoma Constitution, Art. 2 § 7. Adwon v. Retail Grocers Ass’n, supra, Suntide Inn Operating Corp. v. State, supra, Jacobs Ranch, L.L.C. v. Smith, supra, Wieman v. Updegraff, supra, and Jimenez v. Weinberger, supra.90

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§ 2(14) creates an irrational classification and violates Okla. Const. Art. 2 § 7 when applied to employee, it is not necessary to analyze employee’s claim that § 2(14) violates the grand bargain upon application of Art. 2 § 7, or if § 2 (14) is unconstitutional upon application of some other provision of our State Constitution.97 We also need not address whether § 2 (14) violates Okla. Const. Art. 2 § 6.98 ¶53 Employee’s invocation of a constitutionally deficient grand bargain in the current Oklahoma statutes is a hypothetical question whose judicial resolution in this appeal would not, under the present record on appeal, alter her rights on remand.99 Employee’s citation to forty-two provisions of the workers’ compensation statutes is not linked by legal argument to an aggrieved legal interest of employee that would be affected on remand, and showing her status as aggrieved is a record-driven necessity100 to adjudicate her claim of constitutionally insufficient statutes101 in the absence of nonHohfeldian standing.102 VII. Conclusion ¶54 We conclude 85A O.S.Supp. 2013 § 2(14) violates the Due Process Section of the Oklahoma Constitution, Art. 2 § 7, because its overinclusive and underinclusive classifications are not rationally related to legitimate State interests of (1) preventing workers’ compensation fraud and (2) decreasing employers’ costs. We do not adjudicate employee’s claims challenging the construction or constitutional sufficiency of other workers’ compensation statutes, or her Okla. Const. Art. 2 § 6 claim, or her assertion that the workers’ compensation grand bargain has been violated. ¶55 The order of the Workers’ Compensation Commission is reversed and the matter is remanded for further proceedings consistent with this opinion. ¶56 REIF, C. J., COMBS, V. C. J., WATT, EDMONDSON, and GURICH, JJ., concur. ¶57 COLBERT, J., concur specially. ¶58 KAUGER, WINCHESTER, and TAYLOR, JJ., concur in result. COLBERT, J., concurring specially with whom WATT, J., joins. ¶1 I concur in the majority’s result that the arbitrary 180-day limitation on cumulative trauma injuries is unconstitutional, but write Vol. 87 — No. 9 — 3/26/2016

separately to explain how the provision also violates Article 2, Section 6 of the Oklahoma Constitution. ¶2 The Oklahoma Constitution guarantees that all courts “shall be open to every person, and a speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.” Okla. Const. art. 2, § 6. The constitutional provision embodies three distinct constitutional guarantees: (1) access to the courts; (2) right-to-a-remedy for every wrong and every injury to person, property, or reputation; and (3) prohibition on the sale or denial of justice. ¶3 The majority and the Attorney General emphasize the Legislature’s police power and the Legislature’s right in crafting a workers’ compensation scheme. In intimating that the Legislature enjoys unfettered discretion in abolishing a claimant’s right or benefit, the majority postulates that such authority is only curtailed (1) when the Legislature creates an unconstitutional condition related to that right or benefit, (2) by the expressed Will of the People in the Oklahoma Constitution provisions prohibiting unreasonable and arbitrary legislation, and (3) other Oklahoma constitutional provisions addressing private rights and due process. See Op. at ¶ 26 & fns. 42-44. However, the majority’s analysis is incomplete. The Legislature’s police power is not absolute. In crafting a substitute remedy, the Legislature’s police power is also limited by Article 2, Section 6 of the Oklahoma Constitution. When the Legislature taketh away all of an employee’s work-related common law actions in tort and places such actions in the exclusive purview of the Administrative Act, that police power must also be curtailed by the industrial bargain’s delicate balance. ¶4 I must again emphasize that the foundation of the Oklahoma workers’ compensation scheme is the “Industrial Bargain” also known as the “Grand Bargain.” Yet, I am constrained to repeat ad nauseam the underlying policies and purposes behind it. That system, as explained in Parret v. Unicco Serv. Co., provides an expeditious, inexpensive means to compensate workers for injuries, disabilities, and deaths sustained in the course of their employment, without a determination of fault. See 2005 OK 54, 127 P.3d 572. The employee is afforded swift and certain payment of benefits

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sufficient to cure or relieve the effects of the injury, while giving up a myriad of potential damages available to him in tort. The employer, on the other hand, assumes liability for an employee’s injury or death, but benefits from the limited liability fixed to loss wages, medical, and vocational rehabilitation occasioned by the work-related injury or death. Clearly, the linchpin of this legislatively created bargain is that the employer assumes liability for work-related injuries and death; while the employee gives up any common law action sounding in tort. In essence, the system strikes a balance between the rights and duties of Oklahoma employers and employees. But with the enactment of the Administrative Workers’ Compensation Act (AWCA), the balance is now off kilter and has become one-sided to the benefit of the employer. ¶5 Following the enactment of the AWCA, this Court has begun to see an influx of constitutional challenges to the Act. Although each case presents a unique set of issues, a common theme exists — the systematic erosion of the Industrial or Grand Bargain. This Court, fully aware of the rapid demise of the Grand Bargain, assured Oklahoma workers that we would address the Act’s constitutionality, provision by provision, “as a case or controversy or a justiciable issue is presented to this Court.” Coates v. Fallin, 2013 OK 108, ¶ 3, 316 P.3d 924. We are forced by our jurisprudence to insure that claimants and employers in the workers’ compensation system have their day in court and receive a fair shake. ¶6 Simply put, the Administrative Act abrogates an injured employee’s bargained remedies, and at times, leaves the employee bereft of any legally cognizable recourse. COMBS, V.C.J., concurring specially, with whom WATT, J., joins: ¶1 While I agree with the majority that the 180-day limitation provision in 85A O.S. Supp. 2013 § 2(14) is unconstitutional as applied to Petitioner on substantive due process grounds, I write separately to emphasize that it also amounts to a denial of equal protection under the law to Petitioner and those similarly situated, in violation of Okla. Const., art. 2, §§ 6 & 7.1 ¶2 In Dean v. Multiple Injury Trust Fund, 2006 OK 78, ¶19-22, 145 P.3d 1097, this Court considered whether special treatment of the Multiple Injury Trust fund as compared to other workers’ compensation insurers violated, amongst 594

other provisions, Okla. Const., art. 2, §§ 6 & 7. This Court explained: [i]n testing the validity of a state statute that differentiates in its treatment of one group of individuals over other groups, a common test is applied when considering due process of law, equal protection of the laws, and special as distinguished from general laws: that is whether the classification forming the basis for the differentiation is arbitrary or capricious, and whether it bears a reasonable relation to the object to be considered. Dean, 2006 OK 78, ¶19. In that cause, because of its unique status and continuing problem with timely payment of awards due to lack of funds, this Court determined treating the Multiple Injury Trust Fund different from other workers compensation insurers satisfied the above-quoted standard. Dean, 2006 OK 78, ¶22. ¶3 In Gladstone v. Bartlesville Indep. School Dist. No. 30 (I-30), 2003 OK 30, 66 P.3d 442, this Court upheld a classification built into the Governmental Tort Claims Act (GTCA) that immunized the state and political subdivisions from liability for on-the-job injuries covered by worker’s compensation. Describing the challenged provision, the Court stated: “[i]n short, while the state and political subdivisions are not liable for injuries to tort claimants who stand covered by the workers’ compensation regime, they are legally accountable for the injuries to tort claimants not otherwise protected.” Gladstone, 2003 OK 30, ¶13. Describing the appellant’s argument, this Court noted: [t]he hardship Gladstone complains of is the arguable unfairness in treating governmental tort claimants who are covered by workers’ compensation differently from persons without that coverage. The latter class not only may sue in tort to recover damages for the negligent acts of governmental tortfeasors but is also accorded access to collateral indemnity sources without losing the right to press a public tort claim. The critical question here is whether the classification in question rests upon a difference which bears a reasonable relationship to the goals of the GTCA. Gladstone, 2003 OK 30, ¶14.

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In Gladstone, this court determined that excluding liability under the GTCA for injuries covered by workers’ compensation was rationally related to the legitimate state interest of protecting the public fisc by eliminating public liability for injuries where a collateral source of indemnity was available. 2003 OK 30, ¶18. The Court concluded: “[w]e cannot say that the challenged classification so lacks rationality as to amount to a denial of equal protection.” Gladstone, 2003 OK 30, ¶18. ¶4 The classification in the present cause, however, goes considerably further than the one this court analyzed in Gladstone. Title 85A O.S. Supp. 2013 § 2(14) provides: “Cumulative trauma” means an injury to an employee that is caused by the combined effect of repetitive physical activities extending over a period of time in the course and scope of employment. Cumulative trauma shall not mean fatigue, soreness or general aches and pain that may have been caused, aggravated, exacerbated or accelerated by the employee’s course and scope of employment. Cumulative trauma shall have resulted directly and independently of all other causes and the employee shall have completed at least one hundred eighty (180) days of continuous active employment with the employer; Section 2(14) defines “cumulative trauma” in a particular manner: as an injury to an employee that is caused by the combined effect of repetitive physical activities extending over a period of time in the course and scope of employment. It then, however, adds an arbitrary minimum employment period of 180 days. Two claimants may both have injuries caused by the combined effect of repetitive physical activities extending over a period of time in the course and scope of employment, but if one has 179 days of continuous active employment with the employer and the other has 180 days, the former does not have cumulative trauma. ¶5 Unlike in Gladstone, where the classification operated to bar public tort liability for individuals who had a collateral source of recovery, the exclusive remedy provision of the Administrative Workers’ Compensation Act (AWCA), 85A O.S. Supp. 2013 § 5 and the 180day cutoff in 85A O.S. Supp. 2013 § 2(14) create a classification that completely bars Petitioner and others in Petitioner’s position from recovering for their injuries at all. In this regard, the Vol. 87 — No. 9 — 3/26/2016

180-day line separating who may recover for potentially identical injuries on cumulative trauma grounds is not only arbitrary, but fundamentally unjust. ¶6 Under the provisions of the AWCA, specifically 85A O.S. Supp. 2013 §2(14) and §5, an entire class of injured employees that includes the Petitioner in this cause are left with no remedy at all. They are barred from recovering for cumulative trauma by 85A O.S. Supp. 2013 §2(14)’s imposition of an arbitrary 180-day cutoff that has no reasonable relation to the goals of the AWCA and they are barred from pursuing any tort claim by the exclusive remedy provision, 85A O.S. Supp. 2013 § 5. This complete bar to recovery implicates the equal protection aspect of Okla. Const., art. 2, § 6 because a subset of injured workers is being denied all access to the courts to attain a remedy available to other injured workers, but denied to them. Barring both a common law tort claim and a workers’ compensation claim, leaving claimants in Petitioner’s position without any way to recover for their injury, is not reasonably related to the State’s interest in preventing workers’ compensation fraud. ¶7 To facilitate workers’ compensation and its objectives, what has often been called the grand (or industrial) bargain was struck: the employee gave up the right to bring a common law negligence action against the employer and in return received automatic guaranteed benefits. The employer gave up the common law defenses and received reduced exposure to liability. See Parret v. UNICCO Service Co., 2005 OK 54, ¶20, 127 P.3d 572. The grand bargain is not merely the starting point for an analysis to inform the court of what may or may not be legitimate state interests, but the cornerstone of the entire workers’ compensation system’s legitimacy. By cutting off all recovery for an injured worker, excluding them from both workers’ compensation coverage and from filing a tort claim, the Legislature has violated the grand bargain and betrayed the fundamental principles of justice that gave rise to it in the first place. ¶8 I do not dispute that the State has a legitimate interest in preventing workers’ compensation fraud. I also agree with the majority’s substantive due process analysis. However, I feel it necessary to further emphasize the injustice that has occurred here. The complete roadblock to any recovery for Petitioner’s injury is

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impermissibly arbitrary and not reasonably related to the purposes of the AWCA. EDMONDSON, J. 1. Respondent’s Answer Brief, at p. 4. 2. The term Brandeis brief is used to describe a brief which emphasizes statistics and commission reports more than judicial precedents, and the origin of the appellation is a brief filed by Louis D. Brandeis when he appeared as counsel in Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908). See Allison Orr Larsen, The Trouble with Amicus Facts, 100 Va. L.Rev. 1757, 1769-1770 (2014); William H. Rehnquist, The Supreme Court, 209 (1987). In an appeal, the brief of an amicus curiae is limited to facts and issues raised by the parties that have not been “presented adequately” by the parties from the viewpoint of the amicus curiae. Okla. Sup. Ct. R. 1.12 (b)(1). This language does not allow an amicus curiae to expand the record on appeal via a Brandeis brief. The record on appeal is certified from the clerk of the lower tribunal. Chamberlin v. Chamberlin, 1986 OK 30, 720 P.2d 721, 723-724 (“This court may not consider as part of an appellate record any instrument or material which has not been incorporated into the assembled record by a certificate of the clerk of the trial court, nor may a deficient record be supplemented by material physically attached to a party’s appellate brief.”). An amicus curiae in an appeal may not raise new facts by an appellate brief. Similarly, in an original jurisdiction proceeding an amicus curiae may not put in issue a new fact, or file an appendix or exhibits. Id. Rule 1.12 (a)(2). 3. Brief of amicus curiae at p. 9. 4. Okla. Const. Art. 2 § 7: “No person shall be deprived of life, liberty, or property, without due process of law.” 5. 85A O. S. Supp. 2013 § 5: A. The rights and remedies granted to an employee subject to the provisions of the Administrative Workers’ Compensation Act shall be exclusive of all other rights and remedies of the employee, his legal representative, dependents, next of kin, or anyone else claiming rights to recovery on behalf of the employee against the employer, or any principal, officer, director, employee, stockholder, partner, or prime contractor of the employer on account of injury, illness, or death. Negligent acts of a co-employee may not be imputed to the employer. No role, capacity, or persona of any employer, principal, officer, director, employee, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this act, and the remedies and rights provided by this act shall be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have. For the purpose of extending the immunity of this section, any operator or owner of an oil or gas well or other operation for exploring for, drilling for, or producing oil or gas shall be deemed to be an intermediate or principal employer for services performed at a drill site or location with respect to injured or deceased workers whose immediate employer was hired by such operator or owner at the time of the injury or death. B. Exclusive remedy shall not apply if: 1. An employer fails to secure the payment of compensation due to the employee as required by this act. An injured employee, or his or her legal representative in case death results from the injury, may, at his or her option, elect to claim compensation under this act or to maintain a legal action in court for damages on account of the injury or death; or 2. The injury was caused by an intentional tort committed by the employer. An intentional tort shall exist only when the employee is injured as a result of willful, deliberate, specific intent of the employer to cause such injury. Allegations or proof that the employer had knowledge that the injury was substantially certain to result from the employer’s conduct shall not constitute an intentional tort. The employee shall plead facts that show it is at least as likely as it is not that the employer acted with the purpose of injuring the employee. The issue of whether an act is an intentional tort shall be a question of law. C. The immunity from civil liability described in subsection A of this section shall apply regardless of whether the injured employee is denied compensation or deemed ineligible to receive compensation under this act. D. If an employer has failed to secure the payment of compensation for his or her injured employee as provided for in this act, an injured employee, or his or her legal representative if death results from the injury, may maintain an action in the district court for damages on account of such injury. E. The immunity created by the provisions of this section shall not extend to action against another employer, or its employees, on the

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same job as the injured or deceased worker where such other employer does not stand in the position of an intermediate or principal employer to the immediate employer of the injured or deceased worker. F. The immunity created by the provisions of this section shall not extend to action against another employer, or its employees, on the same job as the injured or deceased worker even though such other employer may be considered as standing in the position of a special master of a loaned servant where such special master neither is the immediate employer of the injured or deceased worker nor stands in the position of an intermediate or principal employer to the immediate employer of the injured or deceased worker. G. This section shall not be construed to abrogate the loaned servant doctrine in any respect other than that described in subsection F of this section. Nothing in this act shall be construed to relieve the employer from any other penalty provided for in this act for failure to secure the payment of compensation under this act. H. For the purpose of extending the immunity of this section, any architect, professional engineer, or land surveyor shall be deemed an intermediate or principal employer for services performed at or on the site of a construction project, but this immunity shall not extend to the negligent preparation of design plans and specifications. I. If the employer has failed to secure the payment of compensation as provided in this act or in the case of an intentional tort, the injured employee or his or her legal representative may maintain an action either before the Commission or in the district court, but not both. 6. The Court has noted on more than one occasion the purpose of the workers’ compensation laws to abrogate the worker’s common law right of action with the substitution of an exclusive statutory remedy. See, e.g., Earnest, Inc. v. LeGrand, 1980 OK 180, 621 P.2d 1148, 1152 (“At the time of adoption of the first Workers’ Compensation law in the State of Oklahoma, benefits were provided for accidental personal injury, . . . [and] This was an abrogation of the employee’s common law right of action for personal injury against an employer.”) (material and citations omitted); Maryland Casualty Co. v. Hankins, 1975 OK 25, 532 P.2d 426, 429 (The act abrogated the common law right of action, for injury to an employee in a hazardous occupation, and substituted a statutory, exclusive remedy.”). 7. In re T. H., 2015 OK 26, ¶ 9, 348 P.3d 1089, 1092 (“The fundamental rule of statutory construction is to ascertain and give effect to legislative intent, and that intent is first sought in the language of a statute.”); Rogers v. Quiktrip Corp., 2010 OK 3, ¶ 11, 230 P.3d 853, 859 (“The fundamental rule of statutory construction is to ascertain and give effect to legislative intent.”); State ex rel. Oklahoma Dept. of Health v. Robertson, 2006 OK 99, ¶ 6, 152 P.3d 875, 877-878 (“Legislative intent governs statutory interpretation and this intent is generally ascertained from a statute’s plain language.”); In re Abrams’ Will, 1938 OK 162, 77 P.2d 101, 103 (the court has a duty to ascertain and enforce the legislative intent). 8. Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 9, 130 P.3d 213, 219. 9. Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 9, 130 P.3d at 219. 10. A “compensable injury” includes “cumulative trauma . . . arising out of the course and scope of employment.” 85A O.S. Supp. 2013 § 2 (9)(a). 11. The statutory language may not be deemed to create an irrebuttable presumption that no cumulative trauma repetitive injury can actually exist, in fact, during the 180-day period. For example, there is a fundamental difference between an irrebuttable presumption of total disability that is created upon a statutorily-required actual factual showing versus an irrebuttable presumption that no actual cumulative trauma can exist in fact, regardless of facts that might be marshaled by an injured worker to challenge the presumption. In Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 22-23, 96 S.Ct. 2882, 49 L.Ed.2d 752 (1976), the Court explained an “irrebuttable presumption” did not violate due process where a presumption of total disability was simply to establish entitlement in the case of a miner who is “clinically diagnosable as extremely ill with pneumoconiosis arising out of coal mine employment.” The presumption of disability was created by facts presented in the controversy. Id. The power to adjudicate questions of fact framed by a controversy is exclusively a judicial power, or in the case of administrative proceedings, a quasi-judicial power. Conaghan v. Riverfield Country Day School, 2007 OK 60, ¶ 20, 163 P.3d 557, 564, citing Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 13, 130 P.3d 213, 220. See also State ex rel. Blankenship v. Freeman, 1968 OK 54, 440 P.2d 744, 757 (“Facts to which the law is to be applied in the process of adjudication are called adjudicative facts. These are facts ‘about the parties’. They must be ascertained from formal proof and are to be distinguished from ‘legislative facts’, or those which are helpful to a court in determining the meaning, effect, content or validity of enactments.”).

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12. Okla. Const. Art. 5 § 36: “The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever.” 13. Movants to Quash Multicounty Grand Jury Subpoena v. Dixon, 2008 OK 36, ¶ 22, 184 P.3d 546, 553 (“The authority of the Legislature extends to all rightful subjects of legislation not withdrawn by the Constitution or in conflict therewith.”); In re Flynn’s Estate, 1951 OK 310, 237 P.2d 903, 905 (“The authority of the Legislature extends to all rightful subjects of legislation not withdrawn by the Constitution or in conflict therewith.”). 14. In re Detachment of Municipal Territory from City of Ada, Okla., 2015 OK 18, ¶ 7, 352 P.3d 1196, 1199 (“This Court does not examine the Constitution to decide whether the Legislature is permitted to act, . . . only whether it is prohibited from acting.”); Fair School Finance Council, Inc. v. State, 1987 OK 114, 746 P.2d 1135, 1149 (“our state Legislature generally may do, as to proper subjects of legislation, all but that which it is prohibited from doing.”) Williams Natural Gas Co. v. State Bd. of Equalization, 1994 OK 150, n. 12, 891 P.2d 1219 (“Testa v. Katt, 330 U.S. 386, 393, 67 S.Ct. 810, 814, 91 L.Ed. 967 (1947), teaches that the Supremacy Clause compels a state court to exercise jurisdiction over a federallaw claim.”); Nova Health Systems v. Pruitt, 2012 OK 103, ¶ 2, 292 P.3d 28 (“this Court is not free to impose its own view of the law...this Court is duty bound by the United States and the Oklahoma Constitutions to ‘follow the mandate of the United States Supreme Court on matters of federal constitutional law.’”); In re Initiative Petition No. 348, State Question No. 642, 1992 OK 122, 838 P.2d 1, 3, n. 2 (“When the United States Supreme Court speaks on matters of federal constitutional law, state courts are bound under the Fourteenth Amendment to follow its mandate. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961).”). 15. St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139, 782 P.2d 915, 918 (“Whenever an act of the legislature can be so construed and applied as to avoid conflict with the constitution, and give it the force of law, such construction will be adopted by the courts.”); Fent v. Oklahoma Capitol Imp. Authority, 1999 OK 64, ¶ 3, 984 P.2d 200, 204 (“A court is bound to accept an interpretation that avoids constitutional doubt as to the legality of a legislative enactment.”). 16. CDR Systems Corp. v. Oklahoma Tax Commission, 2014 OK 31, ¶ 10, 339 P.3d 848, 852, quoting Thomas v. Henry, 2011 OK 53, ¶ 8, 260 P.3d 1251, 1254. See also In re Initiative Petition No. 397, State Question No. 767, 2014 OK 23, ¶ 39, 326 P.3d 496, 512 (“A burden to present facts, claims and legal arguments falls on the party who asserts an entitlement to the judicial relief sought.”). 17. CDR Systems Corp. v. Oklahoma Tax Commission, 2014 OK 31, at ¶ 10, 339 P.3d at 853, quoting Fent v. Okla. Capitol Improvement Auth., 1999 OK 64, ¶ 3, 984 P.2d 200, 204. 18. Generally, a party challenging the constitutionality of a statute must have a legally cognizable interest which is threatened by application of that statute. Seal v. Corporation Commission, 1986 OK 34, 725 P.2d 728, 283, appeal dismissed sub. nom., Amerada Hess Corp. v. Corporation Commission, 479 U.S. 1073, 107 S.Ct. 1265, 94 L.Ed.2d 126 (1987) (standing to challenge constitutionality of statutes and administrative rules by Corporation Commission was shown by a causal connection between the party’s direct and pecuniary injury and application of the challenged statutes and rules); Herring v. State ex rel. Oklahoma Tax Commission, 1995 OK 28, 894 P.2d 1074, 1076 (summary judgment for defendants affirmed on appeal because plaintiff did not have standing where record failed to show any injury to plaintiff caused by application of the challenged statute). Cf. Tulsa Industrial Auth. v. City of Tulsa, 2011 OK 57, n. 21, 270 P.3d 113, 121, citing Tulsa Indus. Auth. v. State, 1983 OK 99, 672 P.2d 299, 301 (listing four elements of justiciability and explaining 12 O.S. § 1651 [declaratory judgment proceeding] invests District Courts with jurisdiction in cases of actual controversy to determine the construction or validity of any statute.). There are exceptions to this general rule. See, e.g., Gentges v. Oklahoma State Election Bd., 2014 OK 8, ¶ 7, 319 P.3d 674, 676, citing State ex rel. Howard v. Oklahoma Corporation Commission, 1980 OK 96, 614 P.2d 45, 51 (a private party may be granted standing to vindicate a public interest). The parties in the controversy before the Court do not discuss exceptions to the general rule. 19. 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980). 20. Respondent’s Answer Brief at p. 6. 21. 1917 OK 47, 162 P. 938 (quoting the Court’s Syllabus). 22. In re T. H., supra, and State ex rel. Oklahoma Dept. of Health v. Robertson, supra, at note 7 supra. 23. Multiple Injury Trust Fund v. Wade, 2008 OK 15, ¶ 23, 180 P.3d 1205, 1212 (the court applies the meaning of statutory language). 24. Red Slipper Club, Inc. v. City of Oklahoma City, 1979 OK 118, 599 P.2d 406, 408.

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25. Veterans of Foreign Wars v. Childers, 1946 OK 211, 171 P.2d 618. 26. State ex rel. Wright v. Oklahoma Corp. Com’n, 2007 OK 73, ¶¶ 18-28, & n. 14, 170 P.3d 1024, 1031- 1034. 27. See, e.g., Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 508, 57 S.Ct. 868, 81 L.Ed. 1245 (1937) (“. . . the particular name which a state court or legislature may give to a money payment commanded by its statute is not controlling here when its constitutionality is in question”). Cf. Van Orden v. Perry, 545 U.S. 677, 681, 691-692, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (Rehnquist, C.J., and joined by Scalia, Kennedy, and Thomas, JJ.) (although legislation stated a monument commemorated “people, ideals, and events that compose Texan identity,” First Amendment Establishment Clause constitutionality was not based upon legislative characterization of the monument, but upon facts showing the monument was physically placed with many secular historical monuments and it had a government significance as well as a religious one). 28. The general principle that a legislature may use a police power to create or destroy workers’ compensation rights and remedies may not be successfully used to necessarily show constitutionality of a particular workers’ compensation statute. The attribute of a constitutional exercise of police powers that is applied to a legislature creating workers’ compensation laws in general may not be applied as a necessary attribute to a specific workers’ compensation statute without such reasoning committing the fallacy of division. See State ex rel. Oklahoma Bar Ass’n v. Mothershed, 2011 OK 84, n. 91, 264 P.3d 1197, 1220. 29. Reliance upon a generality to decide a legal issue has been longrecognized as insufficient legal analysis when application of a legal principle requires a greater degree of specificity. For example, Judge Posner, in commenting on Justice Holmes’ dissent in Lochner v. New York, 198 U.S. 45, 76, 5 S.Ct. 539, 49 L.Ed 937 (1905), stated that “general propositions do not decide concrete cases,” and explained that while generality is necessary to provide guidance for future disputants and many often instinctively think of particulars as instantiations of generalities; a law may be grammatically overinclusive based upon its purpose and effect in relation to a particular application, and people usually recognize in daily life that overinclusiveness should be remedied with an interpretation that rationally relates the purpose of the law to the actual circumstances of its application, e.g., a sign “forbidding animals in a restaurant” should not be interpreted to ban humans. Richard A. Posner, Reflections on Judging, 120-121 (2013). 30. U.S. Const. Amendment 14, § 1 provides in pertinent part: “... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” 31. The Okla. Const. Article 2, § 7 provides: “No person shall be deprived of life, liberty, or property, without due process of law.” 32. See, e.g., Turner v. City of Lawton, 1986 OK 51, 733 P.2d 375, 378 (noted the exclusion of evidence acquired by an unconstitutional search or seizure was not merely a rule of procedure, but rather a fundamental right under the Oklahoma Constitution existing independent of either the Fourth or Fourteenth Amendments of the United States Constitution); PruneYard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (Court explained that its construction of the U.S. Constitution did not “limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.”). 33. Presley v. Board of County Commissioners of Oklahoma County, 1999 OK 45, ¶ 6, 981 P.2d 309, 312 (“Due process protections encompassed within the Okla. Const. art. 2, § 7 are coextensive with those of its federal counterpart.”). 34. See, e.g., In re Initiative Petition No. 348, State Question No. 642, 1992 OK 122, 838 P.2d 1, 12, n. 29 (after noting states which had recognized individual state constitutional rights additional to those granted by the Federal Constitution, the Court noted that it was not called upon to address whether such additional rights were present in the controversy before the Court.). 35. John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 Yale L.J. 524, 569-575 (2005), explaining New York Central Railroad Co. v. White, 243 U.S.188, 37 S.Ct. 247, 61 L.Ed. 667 (1917); Missouri Pacific Railway Co. v. Humes, 115 U.S. 512, 6 S.Ct. 110, 29 L.Ed. 463 (1885); Poindexter v. Greenhow,114 U.S. 270, 5 S.Ct. 903, 29 L.Ed. 185 (1885). Both Missouri Pacific Railway Co. and Poindexter predate the often-discredited Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed 937 (1905), which protected a liberty of contract using the Due Process Clause. Thomas Colby & Peter J. Smith, The Return of Lochner, 100 Cornell L. Rev. 527 (2015) (“For a very long time, it has been an article of faith among liberals and conservatives alike that Lochner v. New York was obviously and irre-

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deemably wrong.”); Richard A. Primus, Canon, Anti-Canon, and Judicial Dissent, 48 Duke L. J. 243, 245 (1998) (“The Supreme Court’s positions in Lochner and Plessy [v. Ferguson, 163 U.S.52-37 (1896)] are paradigmatic examples of what is not the law.”). See also Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 418-419 discussed at note 49, infra. 36. John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 Yale L.J. 524, 559-560 (2005). Another author characterizes the period of 1895 to 1936 as one where the U.S. Supreme Court “manipulated doctrines of constitutional law” against several then popular statutory reforms. Leonard W. Levy, Original Intent and the Framers’ Constitution, 369 (1988). See also David E. Bernstein, Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism, 92 Geo. L.J. 1, 11 (2003) (arguing that there was not one Lochner era, but three, 1897-1911, 19111923, and 1923 to the mid-1930s.) 37. U.S. v. Carolene Products, Co., 304 U.S. 144, 153, 58 S.Ct. 778, 82 L.Ed. 1234 (1938) (“regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.”); Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 Yale L.J. at 578 commenting on Carolene Products. In Carolene Products, the Court noted “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” 304 U.S. at 152 n.4. 38. Gladstone v. Bartlesville Indep. School Dist. No. 30 (I-30), 2003 OK 30, n. 54, 66 P.3d 442, citing Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 82-84, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978) and T.I.M. Co., Inc. v. Oklahoma Land Title Ass’n, 1984 OK 66, 698 P.2d 915, 920. 39. St. Joseph Abbey v. Castille, 712 F.3d 215, 221 (5th Cir.) cert. den., __ U.S. __, 134 S.Ct. 423 187 L.Ed.2d 281 (2013), (“Chief Justice Stone’s footnote 4 in United States v. Carolene Products, etched in the brains of several generations of law students, both described and prescribed a fundamental dichotomy of judicial review; it retreated from the aggressive review of state regulation of business in the Lochner period while proceeding in the opposite direction in matters of personal liberty.”). 40. Robert G. McCloskey, Economic Due Process and the Supreme Court: An Exhumation and Reburial, 1962 Sup.Ct.Rev. 34, 55 (“From the first the modern Court has been troubled by a recurring problem: how does the dichotomy stand up when economic matters and personal rights are involved in a single government action?”). 41. An assertion that a legislature has the power to create and abolish workers’ compensation actions as well as common-law actions generally, and that such power is sufficient to decide the issues in this controversy is the type of argument condemned more than fifty years ago by the U.S. Supreme Court as a “facile generalization” that obscures the issue to be decided. See the discussion herein of Wieman v. Updegraff, 344 U.S. 183, 191, 73 S.Ct. 215, 97 L.Ed.2d 216 (1952). This type of reasoning has been criticized by the U.S. Supreme Court in other cases as well. See, e.g., Koontz v. St. Johns River Water Management Dist., ___ U.S. ___, 133 S.Ct. 2586, 2596-2597, 186 L.Ed.2d 697 (2013) (Justice Alito’s opinion for the Court collecting U.S. Supreme Court cases on the issue that government’s authority to deny or withhold a right or benefit generally does not mean government has the authority to create an unconstitutional condition attached to the right or benefit created, and the opinion quotes the “facile generalization” language in Wieman.). 42. See, e.g., Daniel J. Crooks, III, Toward “Liberty”: How the Marriage of Substantive Due Process and Equal Protection in Lawrence and Windsor Sets the Stage for the Inevitable Loving of Our Time, 8 Charleston L. Rev. 223, 238 (Winter 2013-2014) citing Randy E. Barnett, The Proper Scope of the Police Power, 79 Notre Dame L. Rev. 429, 484 (2004), and Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union (1866) (“Following in the natural law tradition of John Locke and the vast majority of the framers of the Constitution and Bill of Rights, as well as the framers of the Fourteenth Amendment, Cooley understood the concept of ‘due process of law’ to entail a substantive component that existed to provide a check on the states’ police powers. To Cooley, this substantive nature safeguarded individuals’ natural rights from unwarranted intrusion by the state. . . . ‘Just as it is proper to prohibit wrongful or rights-violating conduct, proper police power regulations specify the manner in which persons may exercise their liberties so as to prevent them from accidentally interfering with the rights of others.’”). 43. Northeast Oklahoma Elec. Co-op., Inc. v. State ex rel. Corp. Com’n, 1989 OK 18, 768 P.2d 901, 904, quoting Oklahoma Natural Gas Co. v. Choctaw Gas Co., 1951 OK 224, 236 P.2d 970, 977 (the Court stated “we

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agree that “’the police power must at all times be exercised with scrupulous regard for private rights guaranteed by the Constitution.’”). Cf. Battaglia v. General Motors Corp., 169 F.2d 254, 257 (2d Cir. 1948), cert. denied, 335 U.S. 887, 69 S.Ct. 236, 93 L.Ed. 425 (1948) (“ . . . while Congress has the undoubted power to give, withhold, and restrict the jurisdiction of courts other than the Supreme Court, it must not so exercise that power as to deprive any person of life, liberty, or property without due process of law or to take private property without just compensation.”). 44. McConnell v. Town Clerk of Tipton, 1985 OK 61, 704 P.2d 479, 481, citing Keaton v. Oklahoma City, 1940 OK 215 102 P.2d 938 ( “Municipalities are authorized to enact zoning ordinances and when the legislative branch of the municipal government has acted in a particular case, its expressed judgment on the subject will not be overridden by the judiciary unless such judgment is unreasonable, arbitrary or constitutes an unequal exercise of police power.”); Mid-Continent Life Ins. Co. v. City of Oklahoma City, 1985 OK 41, n.4, 701 P.2d 412, 413 (Court collected opinions dating from 1979, 1976, 1972, 1967, two from 1966, in support of its statement that “Unless the zoning decisions of a municipality are found not to have a substantial relation to the public health, safety, morals or general welfare or to constitute an unreasonable, arbitrary exercise of police power, its judgments will not be overridden by the district court.”). For a discussion of the quasi-legislative function of an administrative rule see Waste Connections, Inc. v. Oklahoma Dept. of Environmental Quality, 2002 OK 94, ¶ 11, 61 P.3d 219, 224. It has been long-recognized that administrative actions are subject to the Due Process provisions of the State and U.S. Constitutions. See, e.g., State v. Parham, 1966 OK 9, 412 P.2d 142, 154 (“The due process clauses of the state and federal constitutions afford protection against arbitrary and unreasonable administrative action.”). 45. Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, ¶ 24, 148 P.3d 842, 849 (emphasis added). 46. Edmondson v. Pearce, 2004 OK 23, ¶ 35, 91 P.3d 605, 624 (courts may not annul legislation for being in violation of substantive due process unless it is clearly irrelevant to the policy the Legislature may adopt or is arbitrary, unreasonable or discriminatory.”), emphasis added and quoting Jack Lincoln Shops, Inc. v. State Dry Cleaners’ Board, 1943 OK 28, 135 P.2d 332, 333, appeal dismissed, 320 U.S. 208, 63 S.Ct. 1448, 87 L.Ed. 1847 (1943). 47. See, e.g., Timothy Sandefur, In Defense of Substantive Due Process, or the Promise of Lawful Rule, 35 Harv. J. L. & Pub. Pol’y 283, 323 (2012) (“To put this in modern parlance: So long as courts must decide whether a law is rationally related to a legitimate government interest, they cannot hope to avoid determining what is and is not a legitimate government interest.”). 48. See, e.g., Federal Land Bank of Wichita v. Story, 1988 OK 52, 756 P.2d 588, 593, quoting State ex rel. Roth v. Waterfield, 1933 OK 546, 29 P.2d 24 (Court explained that “Section 493 [62 O.S.Supp.1986 § 493] operates as ‘an arbitrary and capricious extension of time amounting to a taking of private property without ... compensation ... or protection of the rights of the mortgagee’ [and] Therefore, Section 493 is not a reasonable exercise of the police power devoted to a legitimate end...”). Cf. Amoco Production Co. v. Corporation Commission of State of Oklahoma, 1986 OK CIV APP 16, 751 P.2d 203 (modified on certiorari and adopted as opinion of the Supreme Court) (substantive due process required reversal because an order of the Commission had an unreasonable impact). 49. See, e.g., Ashira Pelman Ostrow, Judicial Review of Local Land Use Decisions: Lesson from RLUIPA, 31 Harv. J. L. & Pub. Pol’y 717, n. 56, 731 (2008) (“In the post-Lochner era, courts are particularly wary of substituting their judgment for that of the community’s elected representatives when examining economic legislation. The Lochner era refers to a period of time in which the Court invalidated regulatory economic legislation because it disagreed with its legislative purpose.”); Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 418-419 (2011) (The standard critique of Lochner is usually placed into two separate categories: (1) It is error for a court to second-guess legislative judgments identifying a State interest based on the Court’s own judgment reflecting its subjective moral or political preferences rather than using values authoritatively codified in the Constitution; and (2) A court should not second-guess legislative judgments and invalidate them on the basis of an “unenumerated” right.). 50. In Lochner, the Court initially recognized the State’s interest in protecting the health and safety of the public, but then the Court independently reviewed the State’s justification for the legislation (although majority denied that it was simply substituting its judgment for that of the legislature). Lochner v. New York, 198 U.S. at 57 (“There is no reasonable ground for interfering with the liberty of person or the right of free contract....”).

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51. See, e.g., Kimberly N. Brown, ‘’We the People,” Constitutional Accountability, and Outsourcing Government, 88 Ind. L. J. 1347, n. 210, 1376 (2013) (“The [Supreme] Court has required that an asserted government interest serves the public good, rather than merely private interests or biases, in order to qualify as ‘legitimate’ under the rational basis test.”), citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446-47, 105 S.Ct. 3249, 67 L.Ed.2d 313 (1985) (“The State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. . . Furthermore, some objectives-such as ‘a bare ... desire to harm a politically unpopular group, . . . are not legitimate state interests.’”); U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 534, 93 S.Ct. 2821, 37 L.Ed. 782 (1973) (“The challenged classification clearly cannot be sustained by reference to this congressional purpose. For if the constitutional conception of ‘equal protection of the laws’ means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.”). 52. Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 834, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987) ( In controversies involving land-use regulations and permits the High Court does not have a history of defining a legitimate state interest: “Our cases have not elaborated on the standards for determining what constitutes a ‘legitimate state interest’....”). 53. See, e.g., Jacobs Ranch, L.L.C. v. Smith, 2006 OK 34, ¶ 26, 148 P.3d 842, 850 (“For the health, welfare and safety of its citizens, the Legislature may regulate a landowner’s use and enjoyment of water resources to prevent waste and infringement on the rights of others.”). 54. Shepard v. Oklahoma Dept. of Corrections, 2015 OK 8, ¶ 18, 345 P.3d 377, 384. 55. Indian Territory Illuminating Oil v. Davis, 1932 OK 210, 9 P.2d 40, 42 (discussed constitutional challenges to workers’ compensation laws in other states and the constitutionality of Oklahoma’s version “under the doctrine of general police power.”). 56. The Oklahoma penal code states workers’ compensation fraud is punishable as a felony. 21 O.S. 2011 §§ 1, 2, 1663. Workers’ compensation fraud is prohibited by the Administrative Workers’ Compensation Act: “Any person or entity who makes any material false statement or representation, who willfully and knowingly omits or conceals any material information, or who employs any device, scheme, or artifice, or who aids and abets any person for the purpose of: (1) obtaining any benefit or payment, (2) increasing any claim for benefit or payment, or (3) obtaining workers’ compensation coverage under this act, shall be guilty of a felony punishable pursuant to Section 1663 of Title 21 of the Oklahoma Statutes.” 85A O.S.Supp. 2015 § 6 (A)(1). 57. The Due Process Section of the Oklahoma Constitution also has an equal protection component. Oklahoma Ass’n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, 901 P.2d 800, n. 29, 805, cert. denied, 516 U.S. 1029, 116 S.Ct. 674, 133 L.Ed.2d 523 (1995) (“The same equal protection component found in the fourteenth amendment of the United States Constitution is present in the due process clause of art. 2, § 7.”). The Due Process Clause of the Fifth Amendment to the U.S. Constitution also includes an equal protection element. See, e.g., Johnson v. Robison, 415 U.S. 361, 364 n. 4, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974) (“Although the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is ‘so unjustifiable as to be violative of due process.’ . . . Thus, if a classification would be invalid under the Equal Protection Clause of the Fourteenth Amendment, it is also inconsistent with the due process requirement of the Fifth Amendment.”) (citations omitted). 58. 2003 OK 30, ¶ 12, 66 P.3d 442. 59. See, e.g., Developments in the Law — The Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324, 1473 (1982) (“Almost any substantive due process claim may be translated into an equal protection claim merely by pointing to some other group not subject to the challenged regulation. If a regulation does not serve a legitimate purpose — and so violates substantive due process — applying it to one group and not to another violates the equal protection requirement that a legitimate state purpose support a given classification.”) (citations omitted). 60. Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981), quoting New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976), (a legislature may make imperfect classifications which only partially ameliorate a perceived evil and defer complete elimination of the evil to future legislation); Erznoznik v. City of Jacksonville, 422 U.S. 205, 215, 95 S.Ct. 2268, 2275, 45 L.Ed.2d 125 (1975), citing Williamson v. Lee Optical Co., 348 U.S. 483, 488-489, 75 S.Ct. 461, 464-465, 99 L.Ed. 563 (1955) (“This Court frequently has upheld underinclusive classifications on the sound theory that a legislature may deal with one part of a problem without addressing all of it.”). 61. An underinclusive statute may demonstrate the absence of a compelling state interest required for a state’s justification when

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restricting a fundamental right. See, e.g., Justice Kennedy’s opinion for the Court in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) and its reliance, in part, upon Justice Scalia’s opinion concurring in judgment in The Florida Star v. B. J. F., 491 U.S. 524, 540-541,109 S.Ct. 2603, 105 L.Ed.2d 443 (1989), for the concept that when a statute prohibits certain conduct, the articulated state interest given in justification of the prohibition is not a compelling state interest when the statute is underinclusive due to its failure to prohibit “other conduct producing substantial harm or alleged harm of the same sort.” Church of Lukumi Babalu Aye, Inc., 508 U.S. at 547 (Part III of the opinion for the Court). See also Smith v. Daily Mail Publishing Co., 443 U.S. 97, 104-105, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979) (A statute was insufficiently tailored [underinclusive] in protecting anonymity of juveniles where it restricted only newspapers, not the electronic media or other forms of publication, from identifying juvenile defendants, and even assuming the statute served a state interest in furthering such anonymity, the statute’s underinclusiveness failed to accomplish its purpose.). 62. Vance v. Bradley, 440 U.S. 93, 97,108, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979). 63. Board of Regents v. Updegraff, 1951 OK 270, 237 P.2d 131, reversed, Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed.2d 216 (1952). 64. Board of Regents v. Updegraff, 237 P.2d at 137. The Court relied on this language in Gilbert Cent. Corp. v. State, 1986 OK 6, 716 P.2d 654, 659. 65. Wieman v. Updegraff, 344 U.S. at 190, 191 (the Court concluded that “Indiscriminate classification of innocent with knowing activity must fall as an assertion of arbitrary power. The oath offends due process. . . We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.”) (material omitted). 66. Englebrecht v. Day, 1949 OK 154, 208 P.2d 538. 67. Adwon v. Retail Grocers Ass’n, 1951 OK 43, 228 P.2d 376, 378. For a short note on legal challenges to Oklahoma’s Unfair Sales Act, see So-Lo Oil Co., Inc. v. Total Petroleum, 1992 OK 71, n. 14, 832 P.2d 14, 17, commenting on Englebrecht v. Day, supra, Adwon, supra, Safeway Stores, Inc. v. Oklahoma Retail Grocers Ass’n, Okl., 1957 OK 336, 322 P.2d 179, aff’d 360 U.S. 334, 79 S.Ct. 1196, 3 L.Ed.2d 1280 (1959), and Glenn Smith Oil Co. v. Sheets, 1985 OK 56, 704 P.2d 474, 477. 68. Davis Oil Co. v. Cloud, 1986 OK 73, 766 P.2d 1347. 69. In Davis Oil Co., the majority opinion classified the Surface Damages Act (52 O.S.Supp.1982 §§ 318.2 through 318.9) as the removal of a common-law defense while the dissenting opinion viewed the Act as shifting a contractual property right from one contracting party to another when the Act was applied retroactively to a mineral lease that had been created prior to the effective date of the Act. Compare Davis Oil, 766 P.2d at 1350 (“The limitation on the operator’s liability in the exercise of that right is to be viewed as no more than a defense which has been provided to the operator by operation of the common law in actions for damages by the surface estate holder”) with 766 P.2d 13531357, at 1356 (“The implied covenant to reasonable use of the surface estate is thus “a part of the written lease as fully as if it had been expressly contained therein.”) (Summers, J., dissenting opinion on rehearing, joined by Opala, V.C.J., Hodges, and Simms, JJ.). 70. Davis Oil Co., 766 P.2d at 1351, quoting Anderson-Prichard Oil Corp. v. Corporation Commission, 1951 OK 234, 241 P.2d 363, appeal dismissed, 342 U.S. 938, 72 S.Ct. 562, 96 L.Ed. 698 (1952), and 766 P.2d at 1356, (Summers, J., dissenting), citing Anderson-Prichard Oil Corp. (“A state may in some cases exercise its police power and properly alter existing contractual obligations.”). 71. 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). 72. 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). 73. BMW of North America v. Gore, 517 U.S. at 568 (Court held that the Constitution imposed limits on procedures for awarding punitive damages and also explained that “Only when an award can fairly be categorized as ‘grossly excessive’ in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment.”); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. at 417 (“To the extent an award is grossly excessive, it furthers no legitimate purpose and constitutes an arbitrary deprivation of property. . . [and] they have a devastating potential for harm.”) 74. BMW of North America v. Gore, 517 U.S. at 568 (citing rule and explaining that a State’s legitimate intersts do not include a grossly excessive damages which are arbitrary). 75. BMW, supra, and State Farm Mut. Auto. Ins. Co., supra. See also Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960) (“...when we deal with a withholding of a noncontractual benefit under a social welfare program . . . Due Process Clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.”).

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76. Jimenez v. Weinberger, 417 U.S. 628, 94 S.Ct. 2496, 41 L.Ed.2d 363 (1974). 77. Jimenez, 417 U.S. at 635. 78. Jimenez, 417 U.S. at 636. 79. Jimenez, 417 U.S. at 636, material omitted and explanatory phrase added. 80. Jimenez, 417 U.S. at 636. 81. Mathews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976) quoting Jimenez v. Weinberger, 417 U.S. 628, 636, 637. 82. See, e.g., Murillo v. Bambrick, 681 F.2d 898, n. 15, 905 (3rd Cir. 1982) cert. denied, 459 U.S. 1017, 103 S.Ct. 378, 74 L.Ed.2d 511 (1982), (court observed that “judicial review under the rational relation standard has never been entirely ‘toothless.’”), citing Jimenez v. Weinberger, supra, and two additional Supreme Court opinions); Williams v. St. Clair, 610 F.2d 1244, 1249 (5th Cir. 1980) (reaffirming basic principles of rational basis review from Dandridge v. Williams, 397 U.S. 471 (1970), and noting Jimenez v. Weinberger, supra, for the concept that there was no rational basis for the classification scheme); Berger v. City of Mayfield Heights, 154 F.3d 621, 625 (6th Cir. 1998), (observing that while rational basis is “the least demanding test used by courts,” it is not “toothless”), citing Mathews v. Lucas, 427 U.S. 495, 510 (1976), and its reference to Jimenez v. Weinberger, supra); Kitchen v. Herbert, 755 F.3d 1193, 1221(10th Cir. 2014), citing Jimenez v. Weinberger, supra, as an example of an underinclusive statute which conclusively excluded a subclass of individuals who were, in fact, otherwise statutorily qualified to be in the class of recipients for the statutory benefit); Martin v. Bergland 639 F.2d 647, 650 (10th Cir. 1981) (citing Jimenez for the proposition “some plaintiffs have succeeded under the rational basis test in overcoming the presumption of validity generally accorded government action.”). 83. Jimenez v. Weinberger, 417 U.S. at 637. 84. See, e.g., 85A O.S.Supp. 2013 § 35 (A)(1): “Every employer shall secure compensation as provided under this act to its employees for compensable injuries without regard to fault.” 85. 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972). 86. Weber, 406 U.S. at 175. 87. Employer’s argument is that a legislative body may constitutionally prohibit one class of people from exercising a right (injured workers filing nonfraudulent claims) because another group of people abuse that right (workers filing fraudulent claims). Workers’ compensation fraud is punishable as a criminal felony in Oklahoma. 21 O.S.2011 § 1663. The issue of if, or when, a legislative body may constitutionally stop one group of people from exercising a right granted or recognized by law and prohibiting their innocent conduct because another group of people engage in criminal activity is an issue which arises frequently in various political debates involving issues beyond the scope of workers’ compensation jurisprudence. We need not decide the issue today. 88. In District Court common-law actions fraud is “never presumed, but must be affirmatively alleged and proven by the party who relies on it, and cannot be inferred from facts which may be consistent with honesty of purpose.” Albert & Harlow, Inc. v. Fitzgerald, 1964 OK 42, 389 P.2d 994, 996, citing Stafford v. McDougal, 1935 OK 251, 42 P.2d 520. In District Court, the issue of fraud is generally a question of fact that must be proved, even when it is inferred from facts and circumstances. Croslin v. Enerlex, Inc., 2013 OK 34, ¶ 12, 308 P.3d 1041, 1046, citing 15 O.S.2011 § 60; Bloch v. Morgan, 1926 OK 163, 244 P. 176; and Singleton v. LePak, 1967 OK 37, ¶ 13, 425 P.2d 974, 978. Prohibiting an employee from filing a District Court action against an employer has no relationship to preventing that person from filing a fraudulent claim before the Workers’ Compensation Commission, an administrative agency. 89. Jay M. Feinman, The Jurisprudence of Classification, 41 Stan. L. Rev. 661, 664 (1980). 90. We construe the reliance upon § 5 by respondent and amicus curiae as an effort to show the rationality of § 2(14). While we conclude an unconstitutional application of § 2 (14) occurred, we make no conclusion or holding on the constitutionality of § 5 due to our disposition of this appeal. See opinion part VI. The Grand Bargain, herein. 91. See the discussion of the grand bargain in note 6, supra, and its accompanying text. 92. Matthew J. Kane, The Need for Reform in Our Employers Liability Laws, 20 Yale L.J. 353, 356 (1911). 93. Parret v. UNICCO Service Co., 2005 OK 54, ¶ 19, 127 P.3d 572, 577-578 quoting Corbin v. Wilkinson, 1935 OK 977, 52 P.2d 45, 48 (“Workers’ compensation was designed to avoid destitution. It ‘was passed for the special benefit of injured work[ers]. The Legislature intended the benefits of the act shall flow to the injured work [ers] and their dependents, in order to afford them a living and prevent them from becoming public charges.’”). 94. See, e.g., State ex rel. Wright v. Oklahoma Corp. Com’n, 2007 OK 73, ¶ 28 & n. 17, 170 P.3d 1024, 1034 (stating principle and collecting some

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of our cases from 2007, 1997, 1937, 1935, and a 1912 opinion from the Court of Criminal Appeals). 95. St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139, 782 P.2d 915, 919. 96. This was recognized early in the history of our State, by R. L. 1910, § 4642 (12 O.S.2011 § 2): The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma, but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object. 97. For example, we need not address whether Okla. Const. Art. 2 § 7 protects unenumerated rights derived from the nature of liberty, or the proper analysis for determining the nature of State constitutional rights, or the nature and scope of a party’s burden to create a factual record sufficient to support such an inquiry, or any other legal issue involved with such inquiry. But see, generally, Joshua D. Hawley, The Intellectual Origins of (Modern) Substantive Due Process, 93 Tex. L. Rev. 275, 280 -281 (2014) (arguing that modern substantive due process should be conceptualized as a doctrine of unenumerated rights derived from the nature of liberty), and compare Draper v. State, 1980 OK 117, 621 P.2d 1142, 1145 (“The Constitution, the bulwark to which all statutes must yield, must be construed with reference to the fundamental principals which support it. Effect must be given to the intent of its framers and of the people adopting it.”). 98. Okla. Const. Art. 2 § 6: The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice. 99. Guardianship of Berry, 2014 OK 56, n. 43, 335 P.3d 779, 800 (the Court does not issue advisory opinions or answer hypothetical questions); Baby F. v. Oklahoma County Dist Ct., 2015 OK 24, ¶ 11, 348 P.3d 1080, 1084 (A hypothetical issue includes circumstances where adjudication of that issue will fail to grant effective legal relief). 100. A workers’ compensation proceeding is a statutory public-law proceeding (not a private dispute) and when resolving a public-law question therein the Court may sua sponte choose the dispositive public-law theory. Yeatman v. Northern Oklahoma Resopurce Center of Enid, 2004 OK 27, nn. 28, 29, ¶ 15, 89 P.3d 1095, 1101. However, a public-law theory may not be used by the Court when the record on appeal is insufficient to support that theory. Lincoln Farm, L.L.C. v. Oppliger, 2013 OK 85, n. 19, 315 P.3d 971, 977. 101. See note 18, supra, and the discussion explaining a party who challenges the constitutionality of a statute must have a legally cognizable interest which is threatened by application of that statute. 102. Non-Hohfeldian standing is when plaintiff sues to secure judicial relief that would benefit a public entity or the community as a whole, but Hohfeldian standing is when a plaintiff seeks to adjudicate his or her claimed right, privilege, immunity, or power with respect to another party. State ex rel. Oklahoma Bar Ass’n v. Mothershed, 2011 OK 84, n. 135, 264 P.3d 1197, 1228; State ex rel. Macy v. Bd. of County Comr’s of Oklahoma County, 1999 OK 53, n. 28, 986 P.2d at 1138.

COMBS, V.C.J., concurring specially, with whom WATT, J., joins: 1. As the majority correctly points out, many claims alleging violations of substantive due process also support an equal protection claim, because Okla. Const., art. 2, § 7 has an equal protection component. Oklahoma Ass’n for Equitable Taxation v. City of Oklahoma City, 1995 OK 62, ¶12, 901 P.2d 800, cert. denied, 516 U.S. 1029, 116 S.Ct. 674, 133 L.Ed.2d 523 (1995). Okla. Const., art. 2, §§ 6, also contains an equal protection component. See Thayer v. Phillips Petroleum Co., 1980 OK 95, ¶¶12-15, 613 P.2d 1041 (“The courts must be open to all on the same terms without prejudice.”).

2016 OK 21 RE: Suspension of Certificates of Certified Shorthand Reporters SCAD-2016-13. February 29, 2016 ORDER The Oklahoma Board of Examiners of Certified Shorthand Reporters has recommended to

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the Supreme Court of the State of Oklahoma the suspension of the certificate of each of the Oklahoma Certified Shorthand Court Reporters listed on the attached Exhibit for failure to comply with the continuing education requirements for calendar year 2015 and/or with the annual certificate renewal requirements for 2016.

The Oklahoma Board of Examiners of Certified Courtroom Interpreters has recommended to the Supreme Court of the State of Oklahoma the suspension of the credential of each of the Oklahoma Registered Courtroom Interpreters listed on the attached Exhibit for failure to comply with the annual certificate renewal requirements for 2016.

Pursuant to 20 O.S., Chapter 20, App. 1, Rule 20(c), failure to satisfy the annual renewal requirements on or before February 15 shall result in administrative suspension on that date. Pursuant to 20 O.S., Chapter 20, App. 1, Rule 23(d), failure to satisfy the continuing education reporting requirements on or before February 15 shall result in administrative suspension on that date.

Pursuant to 20 O.S., Chapter 23, App. II, Rule 20(c), failure to satisfy the annual renewal requirements on or before February 15 shall result in administrative suspension on that date. Pursuant to 20 O.S., Chapter 20, App. 1, Rule 23(d), failure to satisfy the continuing education reporting requirements on or before February 15 shall result in administrative suspension on that date.

IT IS THEREFORE ORDERED that the certificate of each of the court reporters named on the attached Exhibit is hereby suspended effective February 15, 2016.

IT IS THEREFORE ORDERED that the certificate of each of the interpreters named on the attached Exhibit is hereby suspended effective February 15, 2016.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 29th day of FEBRUARY, 2016.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 29th day of FEBRUARY, 2016.

/s/ John F. Reif CHIEF JUSTICE

/s/ John F. Reif CHIEF JUSTICE

ALL JUSTICES CONCUR.

ALL JUSTICES CONCUR.

Exhibit Name

CSR #

Exhibit Ariel Nuncio Alyssa Olvera

Reason

Lori Byrd 1981 Continuing Education/Renewal Christina Ogle 1088 Continuing Education/Renewal Norma Rico

1992 Renewal

Lisa Stockwell 1969 Continuing Education/Renewal Nikki Tate 1608 Continuing Education/Renewal Amy Taylor

1993 Renewal

JENNIFER FLEMING, Plaintiff/Appellant, v. RACHEL WHITNEY HYDE, Defendant/ Appellee. No. 113,844. March 1, 2016 ON APPEAL FROM THE DISTRICT COURT OF LOGAN COUNTY, THE HONORABLE LOUIS A. DUEL, PRESIDING ORDER OF SUMMARY DISPOSITION

Renetta Thompson 606 Continuing Education 2016 OK 22 RE: Suspension of Credentials of Registered Courtroom Interpreters SCAD-2016-14. February 29, 2016 ORDER

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2016 OK 23

¶1 Rule 1.201 of the Oklahoma Supreme Court Rules provides that “[i]n any case in which it appears that a prior controlling appellate decision is dispositive of the appeal, the court may summarily affirm or reverse, citing in its order of summary disposition this rule and the controlling decision.” Okla. S. Ct. Rule 1.201.

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¶2 After reviewing the record in this case, THE COURT FINDS that our recent decision in Ramey v. Sutton, 2015 OK 79, 362 P.3d 217, disposes of the issues in this case. ¶3 In Ramey, we made clear our intent “to recognize those unmarried same sex couples who, prior to Bishop [Bishop v. Smith, 760 F.3d 1070 (10th Cir.), cert. denied, 574 U.S. _____, 135 S.Ct. 271, 190 L.Ed.2d 139 (2014)] and Obergefell,[Obergefell v. Hodges, 576 U.S. ____, 135 S.Ct. 2584, 192 L.Ed2d 609, (2014)] entered into committed relationships, engaged in family planning with the intent to parent jointly and then shared in those responsibilities after the child was born.” Id. at ¶19. ¶4 Fleming made a proposal of marriage that was accepted by Hyde. The couple exchanged rings to signify their commitment to one another. They expressed interest in having a family and raising a child together. The couple made financial adjustments to prepare for becoming parents. Fleming and Hyde consulted with a fertilization physician to become pregnant. At the request of their physician, the couple met with a counselor for evaluation and a determination as to their fitness to become parents. ¶5 Fleming attended all pre-natal appointments. Fleming was present in the delivery room and participated in the delivery of their child. The couple prepared a baby book together. They both attended pediatrician appointments with their child. Fleming was listed as the other “mom” at the daycare. The couple held themselves out as a family to their friends, family and the public. ¶6 We find that the district court erred in granting the motion to dismiss, and that Fleming has standing to pursue a best interests of the child hearing. ¶7 IT IS THEREFORE ORDERED that the district court’s order of dismissal is vacated, and the cause remanded to the district court for further proceedings. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 29TH DAY OF FEBRUARY, 2016. /s/ John F. Reif CHIEF JUSTICE ALL JUSTICES CONCUR

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2016 OK 24 REBEKKAH NEWLAND, Plaintiff/ Appellant, v. LAURA TAYLOR, Defendant/ Appellee. No. 113,928. March 1, 2016 ON APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, THE HONORABLE LYNNE McGUIRE, PRESIDING ORDER OF SUMMARY DISPOSITION ¶1 Rule 1.201 of the Oklahoma Supreme Court Rules provides that “[i]n any case in which it appears that a prior controlling appellate decision is dispositive of the appeal, the court may summarily affirm or reverse, citing in its order of summary disposition this rule and the controlling decision.” Okla. S. Ct. Rule 1.201. ¶2 After reviewing the record in this case, THE COURT FINDS that our recent decision in Ramey v. Sutton, 2015 OK 79, 362 P.3d 217, disposes of the issues in this case. ¶3 In Ramey, we made clear our intent “to recognize those unmarried same sex couples who, prior to Bishop [Bishop v. Smith, 760 F.3d 1070 (10th Cir.), cert. denied, 574 U.S. _____, 135 S.Ct. 271, 190 L.Ed.2d 139 (2014)] and Obergefell,[Obergefell v. Hodges, 576 U.S. ____, 135 S.Ct. 2584, 192 L.Ed2d 609, (2014)] entered into committed relationships, engaged in family planning with the intent to parent jointly and then shared in those responsibilities after the child was born.” Id. at ¶19. ¶4 Newland and Taylor engaged in a two year same sex relationship before discussing having a family and raising a child together. The couple was not legally able to marry in Oklahoma in 2003. The couple made arrangements for Taylor’s artificial insemination. Taylor became pregnant. Newland was present at the delivery of their child. ¶5 The couple’s romantic relationship ended approximately six months after delivery of their child. Taylor and Newland shared custody since the birth of their child. They have both held themselves out to the public as the parents of the minor child. Taylor prepared a baby book reflecting Newland as the other parent. ¶6 We find that the district court erred in granting the motion to dismiss, and that Fleming has standing to pursue a best interests of the child hearing.

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¶7 IT IS THEREFORE ORDERED that the district court’s order of dismissal is vacated, and the cause remanded to the district court for further proceedings. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 29th DAY OF FEBRUARY, 2016. /s/ John F. Reif CHIEF JUSTICE ALL JUSTICES CONCUR 2016 OK 25 STATE OF OKLAHOMA ex rel. Oklahoma Bar Association, Complainant, v. JOHN BERNARD SULLIVAN, Respondent. Case Number: SCBD-6243; Consolidated w/SCBD-6244. March 1, 2016 BAR DISCIPLINARY PROCEEDING ¶0 The complainant, Oklahoma Bar Association, commenced disciplinary proceedings against the respondent, John Bernard Sullivan, pursuant to Rule 7 of the Rules Governing Disciplinary Proceedings. The respondent did not respond to the Bar Association’s correspondence requesting information, nor did the respondent respond to notices to him that the OBA had opened formal investigations regarding his suspensions from the practice of law by the United States Court of Appeals for the 10th Circuit for failure to comply with rules and orders of that court, and by the State of Kansas for criminal convictions in that state. RESPONDENT DISBARRED AND ASSESSED COSTS OF THESE PROCEEDINGS. Loraine Dillinder Farabow, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Complainant. WINCHESTER, J. ¶1 The complainant, Oklahoma Bar Association, brought Rule 71 summary disciplinary proceedings against the respondent, John Bernard Sullivan. The respondent practiced criminal defense law primarily in Kansas. The Bar Association opened an investigation culminating in filing the SCBD No. 6243 proceeding pursuant to information that the respondent had been temporarily suspended from the practice of law by the 10th Circuit Court of Appeals for neglect in handling a client’s appeal2 and his failure to comply with court rules. The Bar Association also opened an Vol. 87 — No. 9 — 3/26/2016

investigation culminating in the filing of SCBD No. 6244 pursuant to information that the respondent had pled guilty in two different cases to drug charges in Kansas, served time in jail and had multiple arrests while on probation. ¶2 This Court on March 30, 2015, ordered the temporary interim suspension of the respondent as a result of his criminal convictions. On June 15, 2015, this Court ordered the suspension of the respondent from membership in the Bar Association and prohibited his practice of law in this state for failure to comply with the Mandatory Continuing Legal Education Rules for the year 2014. The Bar Association has recommended that the respondent be disbarred and asks for the costs of the proceedings in the amounts of $64.06 in SCBD No. 6243, and $7.40 in SCBD No. 6244. I. FACTS AND PROCEDURE (A) Suspension from the practice of law by the 10th Circuit Court of Appeals ¶3 On December 5, 2012, the 10th Circuit Court of Appeals removed the respondent as counsel for a defendant in a criminal case when he failed to perfect his client’s appeal in a timely manner and failed to follow the rules of the court. The next day, that court issued an order seeking a response as to why further disciplinary action should not be taken against him. The response to the show cause order was due December 26, 2012. Having received no response, the 10th Circuit suspended the respondent from practice indefinitely on January 24, 2013, and ordered the suspension be for no less than six months. Although the respondent faxed a response document to that court on the same day, the Chief Deputy Clerk advised him in a January 24, 2013, letter that his response was deficient because the court does not accept FAX filings, and his response was not timely. ¶4 On February 1, 2013, the respondent filed a document explaining to the court his failure to pursue the appeal. The respondent stated that his client told him to file a notice of appeal but cease any other work on his case. He explained the difficulties he had with that client and as soon as he believed his duties were complete he “hit the door running and did not look back.” He added that he had missed the court’s email notices and then speculated as to

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how he may have missed them. In mitigation, he offered that he had tried fourteen jury trials in 2012, including three murder cases and his first federal trial. He also left his law firm and started a solo practice. In addition, he reported he had suffered from some mental health issues. These issues were diagnosed as bipolar disorder and attention deficit hyperactive disorder, which he did not take seriously, mostly ignored and that he had quit taking his medications. He added that the same week as his filed response, he had been to a psychologist and his doctor, and had all of his prescriptions filled. The 10th Circuit Court Clerk responded by letter dated February 4, 2013, that his filing was only a modified version of his earlier fax, was untimely, and would not be submitted to the disciplinary panel. The Clerk reminded him he was suspended and that no other action would be taken on his response. ¶5 On July 29, 2013, the respondent filed a Petition for Reinstatement. He advised the court that he had read the rules of the court and pledged to abide by them. He added that his failure to perfect his client’s appeal had resulted from his belief that he was no longer counsel for the client. His failure to respond to the court’s show cause order was from fear and the result of his overall life at the time. He included the information he previously reported to the court in his February response and information regarding the demise of a fiveyear relationship with his significant other. He also included that he had received injuries from a single car accident that hospitalized him and caused him to be out of his office for two months. He reported he was currently under psychological counseling and had been since April of 2013. He concluded that he had taken great pains to ensure that neither his personal nor professional life would become as hectic as it was at the end of 2012 and the beginning of 2013. ¶6 On August 13, 2013, the 10th Circuit denied the respondent’s petition for reinstatement without prejudice to renewal. The court allowed him to file a renewed petition for reinstatement without regard to the court’s one-year limitation rule on successive petitions for reinstatement. On August 21, 2013, the 10th Circuit denied his renewed petition without prejudice to renewal, but permitted the respondent to file a second renewed petition for reinstatement in 45 days. The court asked for specific assurances that the respondent understood the court’s pro604

cedural requirements for counsel to criminal defendants who appeal to that court. General assertions about reading and abiding by the rules would not suffice. (B) Suspension from the practice of law by the State of Kansas ¶7 In the early afternoon on December 11, 2013, Clark County Kansas deputies arrested the respondent for speeding, driving under suspension, failure to carry liability insurance, possession of marijuana, and possession of methamphetamine. The respondent reported to the deputy who stopped him that he had a hearing with a client in Guymon, Oklahoma. We presume that means Guymon was his destination before his arrest. The next day, the State of Kansas brought criminal charges consisting of six counts pursuant to that arrest. ¶8 Less than three weeks later, just two hours after the New Year, 2014, began, an Enforcement Agent for the Kansas Racing and Gaming Commission arrested the respondent at the Kansas Star Casino in Mulvane, Kansas, on a charge of methamphetamine possession. The Kansas Star Casino security supervisor notified Agents for the Commission that one of the casino’s security officers witnessed the respondent drop a clear plastic baggy containing a crystal-like substance onto the floor near the area entrance. After locating the respondent and detaining him, the respondent finally consented to a search. The agent found the baggy in the respondent’s coat pocket. On January 15, 2014, the State of Kansas brought two counts against the respondent consistent with the discovery at the casino that the respondent was in possession of methamphetamine and drug paraphernalia. ¶9 The next month, February 10, 2014, the respondent and the Kansas Disciplinary Administrator filed a joint motion for temporary suspension of his Kansas bar license. The Supreme Court of Kansas granted the joint motion and ordered the respondent’s immediate suspension during the pendency of his disciplinary proceedings. That court ordered him to comply with Kansas Supreme Court Rule 218,3 which required written notice within fourteen days of his suspension to clients and other jurisdictions in which he held licenses to practice law. Although the respondent notified the 10th Circuit, he did not notify the Oklahoma Bar Association.

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¶10 The respondent entered a guilty plea pursuant to a plea agreement on March 20, 2014, for Possession of Drug Paraphernalia in Sumner County District Court Case No. 14 CR 11, and fined $250.00 plus court costs, and sentenced to six months in the county jail. In lieu of his jail time, the court placed him on probation for one year, with the special condition that he successfully complete a drug treatment program. The court dismissed the charge of Possession of Methamphetamine. ¶11 In an amended Order of Probation, filed April 10, 2014, Sumner County District Court Case No. 14 CR 11, the court ordered the respondent to obey all federal and state laws, and all city and county ordinances. The court further ordered that if law enforcement officers questioned, detained or arrested him, he must notify his Court Service Officer within the next business day. The court specifically ordered him not to illegally possess, use or traffic in any controlled substance, narcotic or other drugs except as prescribed by a licensed practitioner. Within six days, April 16, 2014, Wichita, Kansas, police officers arrested the respondent at 10:41 p.m. for Possession of Methamphetamine, Possession of Drug Paraphernalia, Driving While Suspended, Failure to Signal, and Running a Stop Sign. ¶12 On July 30, 2014, the respondent pled guilty to an Amended Complaint. Pursuant to this plea agreement filed, in the Clark County District Court, Case No. 13-CR-40, the court found the respondent guilty of “Count I”: Possession of a Controlled Substance, and “Count II”: Possession of Drug Paraphernalia. The court sentenced him to 365 days in the county jail on the two counts, with all time suspended, and placed him on supervised probation for one year under Sumner County supervision, with standard conditions of probation including obeying all federal, state, and local laws, and attending AA/NA. The order of probation was filed August 28, 2014, adding the condition that the respondent must notify his Court Service Officer immediately of any law enforcement contact. ¶13 One month later, on September 30, 2014, the respondent was arrested in Sedgwick County for Trafficking Contraband in a Penal Institution. The arrest constituted a violation of the terms and conditions of his supervised probation in both the Clark County District Court Case No. 13-CR-40 and the Sumner County District Court Case No. 14 CR 11. Vol. 87 — No. 9 — 3/26/2016

¶14 The respondent did not report his September 30, 2014, arrest for Trafficking Contraband in a Penal Institution within the next business day and as a result, on October 3, 2014 at 3:45 p.m., when he reported to his Court Service Officer in Sumner County, Kansas, the officer reported in an Order to Arrest and Detain that the respondent had violated his conditions of probation. The respondent’s defense attorney in Case No. 14 CR 11 sent a letter dated October 29, 2014, to the Sumner County Attorney regarding the respondent’s future plans, which were to return to practice law in Oklahoma if he was reinstated. On November 13, 2014, at his hearing to revoke his probation, the court remanded the respondent to the custody of the Sheriff of Sumner County to serve the remainder of his sentence in Case No. 14 CR 11. The court reinstated his probation for a period of one year from the date of the hearing, under the same terms and conditions as before. ¶15 In a letter dated, April 10, 2015, the respondent’s Kansas attorney informed the First Assistant General Counsel of the Oklahoma Bar Association, Loraine Dillinder Farabow, that the respondent was not actively practicing law in Kansas or Oklahoma, and that he had entered into a voluntary agreed order of temporary suspension on February 10th, 2014, in the State of Kansas. The respondent’s attorney attached the Kansas order. II. DISCIPLINE ¶16 This Court on March 30, 2015, ordered the temporary interim suspension of the respondent as a result of his criminal convictions. On June 15, 2015, this Court ordered the suspension of the respondent from membership in the Oklahoma Bar Association and prohibited his practice of law in this state for failure to comply with the Mandatory Continuing Legal Education Rules for the year 2014. ¶17 The respondent did not notify the Office of the General Counsel of his suspension by the 10th Circuit. Rule 7.7(a) of the Rules Governing Disciplinary Proceedings, 5 O.S.2011, ch. 1, app. 1-A provides that “It is the duty of a lawyer licensed in Oklahoma to notify the General Counsel whenever discipline for lawyer misconduct has been imposed upon him/her in another jurisdiction, within twenty (20) days of the final order of discipline, and failure to report shall itself be grounds for discipline.”4

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Subsection (b) of that rule provides in pertinent part that: “When a lawyer has been adjudged guilty of misconduct in a disciplinary proceeding, except contempt proceedings, by the highest court of another State or by a Federal Court, the General Counsel of the Oklahoma Bar Association may cause to be transmitted to the Chief Justice a certified copy of such adjudication and the Chief Justice shall direct the lawyer to appear before the Supreme Court at a time certain, not less than ten (10) days after mailing of notice, and show cause, if any he/she has, why he/she should not be disciplined. The documents shall constitute the charge and shall be prima facie evidence the lawyer committed the acts therein described. The lawyer may submit a certified copy of transcript of the evidence taken in the trial tribunal of the other jurisdiction to support his/her claim that the finding therein was not supported by the evidence or that it does not furnish sufficient grounds for discipline in Oklahoma. The lawyer may also submit, in the interest of explaining his/her conduct or by way of mitigating the discipline which may be imposed upon him/her, a brief and/or any evidence tending to mitigate the severity of discipline. The General Counsel may respond by submission of a brief and/or any evidence supporting a recommendation of discipline.”5 ¶18 The Oklahoma Bar Association argues that the failure of the respondent to answer supports the assertion that he violated his professional duties under Rules 1.1,6 1.3,7 and 8.4(d)8 of the Oklahoma Rules of Professional Conduct, and Rule 1.39 of the Rules Governing Disciplinary Proceedings. The Bar Association asserts that the respondent’s neglect in handling his client’s appeal, his failure to notify the OBA of his suspension by the 10th Circuit court, his failure to respond to and cooperate with the OBA’s investigation, and his failure to respond to this Court’s Show Cause Order in SCBD No. 6243, warrants discipline. We agree and find that the respondent violated his professional duties pursuant to the rules cited. ¶19 Regarding the respondent’s criminal convictions, Rule 7.1 of the Rules Governing Disciplinary Proceedings provides: “A lawyer who has been convicted or has tendered a plea of guilty or nolo conten606

dere pursuant to a deferred sentence plea agreement in any jurisdiction of a crime which demonstrates such lawyer’s unfitness to practice law, regardless of whether the conviction resulted from a plea of guilty or nolo contendere or from a verdict after trial, shall be subject to discipline as herein provided, regardless of the pendency of an appeal.” 5 O.S. 2011, ch. 1, app. 1-A. ¶20 The Bar Association investigated these grievances without receiving any responses from the respondent. These investigations began on February 6, 2015, when the Oklahoma Bar Association Membership Department notified the OBA’s Office of the General Counsel that the respondent had written an insufficient check for his bar dues. Membership advised the General Counsel that it had attempted to contact the respondent at his official roster telephone number. The answering party related that the respondent had lost his license in Kansas because of his drug charges. The Office of the General Counsel found a newspaper article on the Internet reporting the respondent’s suspension from the practice of law in Kansas due to his felony arrest for possession of methamphetamine and misdemeanor possession of drug paraphernalia. ¶21 In a letter dated April 10, 2015, received by the Oklahoma Bar Association on April 17, 2015, the respondent’s counsel for his criminal cases in Kansas related that the respondent had not actively practiced law in Kansas or Oklahoma, pursuant to a voluntary order of temporary suspension to which he had agreed on February 10, 2014. The letter revealed that the respondent had active cases in Kansas and Oklahoma in which he served as the lawyer, and his counsel wrote “we had contacted one of the co-chairs for the Lawyers Helping Lawyers Assistance Program . . . to apprise them of this situation and they were able to get his cases covered in Oklahoma, and this back in January, 2014.” The letter continued that they believed proper notice had been given at that time to the State of Oklahoma. ¶22 Contacting Lawyers Helping Lawyers does not comprise proper notice. Pursuant to Rule 7.7(a) of the Rules Governing Disciplinary Proceedings, 5 O.S.2011, ch. 1, app. 1-A, proper notice requires that the respondent notify the General Counsel of the Oklahoma Bar Association.

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¶23 The regulation of licensure, ethics, and discipline of legal practitioners is a non-delegable, constitutional responsibility solely vested in this Court in the exercise of our exclusive jurisdiction. State ex rel. Oklahoma Bar Ass’n v. McArthur, 2013 OK 73, ¶ 4, 318 P.3d 1095, 1097. In these matters this Court has exclusive original jurisdiction. Rule 1.1, RGDP; State ex rel. Oklahoma Bar Ass’n v. Garrett, 2005 OK 91, ¶ 3, 127 P.3d 600, 602. Before this Court can impose discipline on an attorney, the charges must be proved by clear and convincing evidence, which is “proof which results in reasonable certainty of truth.” Rule 6.12, RGDP; State ex rel. Oklahoma Bar Ass’n v. Miller, 2013 OK 49, ¶ 10, 309 P.3d 108, 114; Black’s Law Dictionary 251 (6th ed. 1990) (defining “clear and convincing evidence”). We review such matters de novo. State ex rel. Oklahoma Bar Ass’n v. Farrant, 1994 OK 13, ¶ 7, 867 P.2d 1279, 1283-84. ¶24 Because the respondent did not respond to inquiries from the Oklahoma Bar Association, the Bar Association filed a brief that included exhibits to support its recommendation that the respondent be disbarred. We find by clear and convincing evidence that those exhibits are sufficient to support the OBA’s recommendation. In State ex rel. Oklahoma Bar Ass’n v. Whitebook, 2010 OK 72, ¶ 26, 242 P.3d 517, 523, this Court observed that when a lawyer places so little value on his license to practice law and shows no desire to protect that license, if he ever wishes to regain his license, he should be forced to appear before this Court pursuant to Rule 11 of the Rules Governing Disciplinary proceedings to show why he should be again licensed to practice law. ¶25 In State ex rel. Oklahoma Bar Ass’n v. Soderstrom, 2013 OK 101, 321 P.3d 159, the respondent, Soderstrom, pled guilty to the felony charge of unlawful possession of a controlled dangerous substance, and the court sentenced him to eight years with the Department of Corrections, but delayed commitment pending successful completion of the drug court program. After this Court issued an Order of Interim Suspension, Soderstrom filed a brief in this Court in support of mitigation of discipline and we assigned the matter to the Professional Responsibility Tribunal for a hearing. He later tested positive for methamphetamine after being accepted into the Lincoln County Drug Court. He appeared later at Drug Court under the influence of Percocet without a prescription. The Professional Responsibility Tribunal Vol. 87 — No. 9 — 3/26/2016

recommended that he be suspended from the practice of law for two years and one day, to safeguard the interest of the public and to preserve the public confidence in the legal professional and the entire judicial system. Soderstrom, 2013 OK 101, ¶ 8, 321 P.3d at 160. This Court followed the recommendation of the tribunal. ¶26 In State ex rel. Oklahoma Bar Ass’n v. McArthur, 2013 OK 73, 318 P.3d 1095, the facts reveal that the respondent, McArthur, was originally charged with felony trafficking in illegal drugs, felony possession of a firearm during the commission of a felony, and unlawful use of a communication device to facilitate a felony. Pursuant to a negotiated plea, McArthur was convicted of a felony, that is, unlawful possession of a controlled substance, cocaine, and sentenced to ten years in prison, two in a Department of Corrections facility and the balance suspended. The suspended sentence included twenty-four months of District Attorney supervision. McArthur had purchased the cocaine from a client he was representing in a criminal case. He was convicted in the county where he practiced law. The Court ruled that offenses involving violence, dishonesty, breach of trust or serious interference with the administration of justice facially demonstrates the lawyer’s unfitness to practice law for the purpose of a Rule 7 summary disciplinary proceeding. McArthur, 2013 OK 73, ¶ 5, 318 P.3d at 1098. The Court disbarred McArthur. ¶27 The respondent, Sullivan, has been suspended from the practice of law before the 10th Circuit and the Kansas Bar. He failed to notify this Court of his suspensions and did not obey the order of the Supreme Court of Kansas to notify other jurisdictions in which he was licensed of his suspension. He has had two convictions and subsequent arrests on drug charges. He was the sole attorney in the drug court in one Kansas County. Because he wrote a check for his Oklahoma Bar dues that was returned for insufficient funds, the Oklahoma Bar Association tried to find him and did not learn of his suspensions by the 10th Circuit and the Kansas Bar through the respondent, but through Kansas authorities. He did not respond to the Oklahoma Bar Association’s inquiries, nor did he file any briefs to mitigate damages. ¶28 We agree with the recommendation of the Oklahoma Bar Association that the respondent, John Bernard Sullivan be disbarred. Accordingly, Sullivan is disbarred and his name is stricken from the roll of attorneys,

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effective on the date this case is handed down. He is also assessed the costs of the proceedings in the amounts of $64.06 in SCBD No. 6243, and $7.40 in SCBD No. 6244. ¶29 On April 14, 2015, the OBA filed a motion to join SCBD No. 6243 and SCBD No. 6244. By order of May 12, 2015, that motion was deferred. We grant the motion. These two cases are consolidated under surviving SCBD No. 6243. RESPONDENT DISBARRED AND ASSESSED COSTS OF THESE PROCEEDINGS. ALL JUSTICES CONCUR. WINCHESTER, J. 1. Rules Governing Disciplinary Proceedings, 5 O.S.2011, ch. 1, app. 1-A. 2. In the respondent’s letter of January 24, 2013, he reported to the 10th Circuit that his client, whose appeal the respondent started, had accepted a plea agreement to one count of illegal use of a communication facility in facilitation of conspiracy to distribute cocaine, which carried a maximum sentence of four years in prison. 3. Kansas Supreme Court Rule 218(a)(5) provides: “(a) Attorney’s Duty. When the Supreme Court issues an order or opinion suspending or disbarring an attorney or striking the attorney’s name from the roll of attorneys, the attorney must, within 14 days of the order or opinion . . . “(5) notify each jurisdiction, in writing, where the attorney is or has been authorized to practice law that the attorney is suspended, disbarred, or is no longer authorized to practice law.” 4. The Rule was amended by order of the Supreme Court, 2014 OK 82, eff. September 30, 2014. The wording in subsection “a” was not affected by the amendment. 5. 5 OS. 2011, ch. 1, app. 1-A, Rule 7.7(b). The Rule was amended by order of the Supreme Court, 2014 OK 82, eff. September 30, 2014. 6. Rule 1.1 provides: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” Oklahoma Rules of Professional Conduct, 5 O.S.2011, ch.1, App. 3-A. 7. Rule 1.3 provides: “A lawyer shall act with reasonable diligence and promptness in representing a client.” Oklahoma Rules of Professional Conduct, 5 O.S.2011, ch. 1, App. 3-A. 8. Rule 8.4(d) provides: “It is professional misconduct for a lawyer to . . . (d) engage in conduct that is prejudicial to the administration of justice. . . .” Oklahoma Rules of Professional Conduct, 5 O.S.2011, ch. 1, App. 3-A. 9. Rule 1.3 “The commission by any lawyer of any act contrary to prescribed standards of conduct, whether in the course of his professional capacity, or otherwise, which act would reasonably be found to bring discredit upon the legal profession, shall be grounds for disciplinary action, whether or not the act is a felony or misdemeanor, or a crime at all. Conviction in a criminal proceeding is not a condition precedent to the imposition of discipline.” Rules Governing Disciplinary Proceedings, 5 O.S.2011, ch. 1, app. 1-A.

has forwarded to this Court certified copies of the Criminal Information and Plea, in which L. Caroline Drummond entered a plea of guilty to one felony count of Bringing/Possessing Contraband in Jail/Penal Institution, in violation of 57 O.S. 2011 §21(A), occurring on April 28, 2015. The OBA also forwarded a certified copy of the Deferred Sentence. ¶2 Rule 7.3 of the RGDP provides: “Upon receipt of the certified copies of Judgment and Sentence on a plea of guilty, order deferring judgment and sentence, indictment or information and the judgment and sentence, the Supreme Court shall by order immediately suspend the lawyer from the practice of law until further order of the Court.” Having received certified copies of these papers and orders, this Court orders that L. Caroline Drummond is immediately suspended from the practice of law. L. Caroline Drummond is directed to show cause, if any, no later than March 18, 2016, why this order of interim suspension should be set aside. See RGDP Rule 7.3. The OBA has until March 29, 2016, to respond. ¶3 Rule 7.2 of the RGDP provides that a certified copy of a plea of guilty, an order deferring judgment and sentence, or information and judgment and sentence of conviction “shall constitute the charge and be conclusive evidence of the commission of the crime upon which the judgment and sentence is based and shall suffice as the basis for discipline in accordance with these rules.” Pursuant to Rule 7.4 of the RGDP, L. Caroline Drummond has until April 14, 2016, to show cause in writing why a final order of discipline should not be imposed, to request a hearing, or to file a brief and any evidence tending to mitigate the severity of discipline. The OBA has until May 2, 2016, to respond. ¶4 DONE BY ORDER OF THE SUPREME COURT this 7th day of March, 2016. /s/ John F. Reif CHIEF JUSTICE

2016 OK 26 State of Oklahoma ex rel. Oklahoma Bar Association, Complainant, v. L. Caroline Drummond, Respondent. SCBD No. 6368. March 7, 2016 ORDER OF IMMEDIATE INTERIM SUSPENSION ¶1 The Oklahoma Bar Association (OBA), in compliance with Rules 7.1 and 7.2 of the Rules Governing Disciplinary Proceedings (RGDP), 608

ALL JUSTICES CONCUR 2016 OK 27 In the Matter of the Reinstatement of Rhett Henry Wilburn to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.

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ORDER The petitioner, Rhett Henry Willburn (Wilburn/attorney) was stricken from the roll of attorneys from the Oklahoma Bar Association on March 16, 2010, after he was suspended from the practice of law for two years and one day. On June 10, 2015, he petitioned this Court for reinstatement as a member of the Oklahoma Bar Association. On September 2, 2015, a hearing was held before the Trial Panel of the Professional Responsibility Tribunal and the tribunal recommended that the attorney be reinstated with conditions. Upon consideration of the matter, we find: 1) The attorney has met all the procedural requirements necessary for reinstatement in the Oklahoma Bar Association as set out in Rule 11, Rules Governing Disciplinary Proceedings, 5 O.S. 2011, ch.1, app. 1-A. 2) The attorney has established by clear and convincing evidence that he has not engaged in the unauthorized practice of law in the State of Oklahoma. 3) The attorney has established by clear and convincing evidence that he possesses the competency and learning in the law required for reinstatement to the Oklahoma Bar Association. 4) The attorney has established by clear and convincing evidence that he possesses the good moral character which would entitle him to be reinstated to the Oklahoma Bar Association. IT IS THEREFORE ORDERED that the petition of Rhett Henry Wilburn for reinstatement be granted with the following conditions applied for two years following reinstatement: refraining from the use of alcohol or any illegal substance; participation in the Lawyers Helping Lawyers Committee; continued attendance at Alcoholics Anonymous meetings at least once a week; and independent verification to be provided to Lawyers Helping Lawyers regarding his AA attendance. The costs associated with these proceedings, in the amount of $1839.80 shall be paid monthly at a rate of $153.00 beginning in the month of reinstatement until paid in full. DONE BY ORDER OF THE SUPREME COURT THIS 7TH DAY OF MARCH, 2016.

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/s/ John F. Reif CHIEF JUSTICE REIF, C.J., KAUGER, WATT, WINCHESTER, EDMONDSON, and COLBERT, JJ., concur. COMBS, V.C.J., TAYLOR, (by separate writing), GURICH, JJ., dissent. TAYLOR, J., with whom COMBS, V.C.J., joins, dissenting: The law requires that the Respondent prove by clear and convincing evidence that he has “stronger proof of qualifications than one seeking admission for the first time.” (Rule 11.4 RGDP) This Respondent’s application for reinstatement should be denied. His qualifications are not stronger than one seeking admission for the first time. 2016 OK 28 DONALD DEWAYNE MOORE, Plaintiff/ Appellant, v. WARR ACRES NURSING CENTER, LLC., Defendant/Appellee. No. 113,098. March 8, 2016 As Corrected March 9, 2016 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY Honorable Barbara G. Swinton, Trial Judge ¶0 The Warr Acres Nursing Center terminated the employment of the plaintiff, Donald Dewayne Moore, after he called in sick with influenza. The employee filed a complaint in the District Court of Oklahoma County, alleging that he had been fired in violation of public policy. The trial court granted summary judgment to the employer and we retained the appeal. We hold that terminating a licensed practical nurse for missing work in a nursing center while infected with influenza would violate public policy, but disputed facts exist as to the reason for termination which preclude summary judgment. TRIAL COURT REVERSED. Marilyn D. Thomson, Oklahoma City, Oklahoma, for Appellant. Daniel J. Hoehner, Oklahoma City, Oklahoma, for Appellee. KAUGER, J.:

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¶1 We retained this cause to address the dispositive issue of whether terminating a licensed practical nurse for missing work in a nursing center based on vomiting on the job and a doctor’s note admitting that he should not work for three days due to an infection with influenza would violate public policy.1 We hold that it would. The public policy behind precluding a nursing home employee from working while infected with influenza is manifested in the Oklahoma Constitution, the Oklahoma statutes, Oklahoma and Federal regulations and caselaw. To hold otherwise would exacerbate communicable disease and expose the most vulnerable people. However, the reason for termination of this employee may have had nothing to do with whether he missed work with the flu. ¶2 At-will employment is not in jeopardy or threatened under these facts. Under the alleged facts, this at-will employee could have been legally terminated by the employer. The employee’s disciplinary record at the nursing center shows he was written up at least five times for disregarding and failing to follow supervisor’s instructions, spreading rumors, failing to complete tasks, and rebellious behavior. One employee stated that he was belligerent when he found out he was not on the work schedule. The employee’s employment history appears to show a pattern of constantly moving from one job to another. This job appears to have been his seventh in seven years. These facts may reflect that the termination was neither pretextual, post hoc rationalization, nor a violation of public policy. Nevertheless, that issue is for the jury to decide. FACTS ¶3 The plaintiff/appellant, Donald Dewayne Moore (Moore/employee) worked for the defendant/appellee Warr Acres Nursing Center (employer/Nursing Center) as a licensed practical nurse. Moore began employment around January 17, 2008. Moore, became acutely ill with the influenza while working on November 25, 2008. The Nursing Center’s director of nursing overheard Moore vomiting at the Nursing Center. She stated that he did not look good and that he must have a virus or the flu and she told him to go home. After continuing to experience symptoms on the way home, he went directly to his physician at the Department of Veterans Affairs for treatment. His physician treated him and issued a written

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notice taking him off work for three days due to his illness.2 ¶4 According to Moore, he followed the Nursing Center’s handbook procedures3 and called the on-call scheduler and reported his illness and his doctor’s directive, even though he was not scheduled, he also offered to work the upcoming weekend providing that he had recovered. Otherwise, Moore informed the scheduler that he would report to work Monday, and that he would bring his doctor’s note. On November 26, 2008, the Nursing Center’s director of nursing called Moore and he repeated the information he had previously given the scheduler. ¶5 When the employee arrived at the Nursing Center on Sunday, November 30, 2008, to deliver his doctor’s note, he discovered that he had been crossed off of the work schedule for the week of December 1, 2008 and he was subsequently discharged on December 3, 3008. On April 15, 2010, the employee filed a lawsuit against the nursing center alleging that he was discharged for not being at work while suffering from influenza. He insisted that his discharge was unlawful and wrongful as against public policy and against the Workers Compensation Act (the Act).4 ¶6 On May 6, 2010, the employer filed a motion to dismiss the employee’s lawsuit. The employer sought dismissal for failure to state a claim under the Act for which relief could be granted and failure to articulate a clear public policy which the employer violated. After a hearing on June 18, 2010, the trial court granted the employer’s motion to dismiss for failure to state a claim upon which relief can be granted and the order of dismissal was filed on July 13, 2010. ¶7 The employee appealed, and the Court of Civil Appeals, in an unpublished opinion filed on December 8, 2010, reversed and remanded with instructions. It upheld the trial judge’s dismissal of the workers compensation claim. However, it stated that a number of statutes, Acts, and regulations of this State that may well articulate a public policy of prohibiting a health care worker from interacting with nursing home patients while having a communicable disease such as influenza. Nevertheless, the court noted that the employee had neglected to provide the specific legal authorities which would support such a public policy.

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¶8 The Court of Civil Appeals remanded the matter to the trial court, holding that the employee should have been given the opportunity to amend his petition and be afforded the opportunity to show with particularity the public policies upon which he relied and which he contended were violated by his termination. We denied certiorari in that appeal on February 14, 2011. The employee filed his first amended petition on March 13, 2011. ¶9 Pursuant to the Court of Civil Appeals instructions, the employee referenced Silver v. CPC-Sherwood Manor, Inc. 2004 OK 1, 84 P.3d, 728, 63 O.S. 2011 §§1-1900.1 et seq (the Nursing Care Act; 63 O.S. 2011 §§ 1-819 et seq. (The Residential Care Act); Infection Control Regulations from the Department of Health, 310:6757-17.1 as well as federal regulations 42 CFR Ch. V., Pt. 483, §483 (Infection Control) and §483.65, §483.75, and Oklahoma Regulations, 9 OK Reg 3163, 10 OK Reg 1639, 24 OK Reg. 2030, 25 OK Reg. 2382. ¶10 The employer, on March 23, 2011, again attempted to have the lawsuit dismissed and on April 18, 2011, the employee submitted 17 supplemental exhibits in opposition to the employer’s motion to dismiss. These exhibits included copies of specific statutes, state and federal regulations and guidelines as well as caselaw, all of which will be discussed herein.5 The exhibits were not merely broad references to whole acts, but rather were specific sections with the applicable provisions underlined, so that the trial court could easily identify them. The trial court again dismissed the case for failure to state a claim upon which relief could be granted on May 12, 2011. The employee again appealed. ¶11 The Court of Civil Appeals, in another unpublished opinion filed April 10, 2012, again reversed and remanded for further proceedings. It held that unquestionably, the employee shouldered the initial burden of proof by providing a well-pled cause of action sufficient to withstand a motion to dismiss. However, once he submitted evidentiary material to the trial court, the analysis should have proceeded as one for summary judgment, placing the burden on the employer to prove no material facts were in dispute and only a pure question of law remained. We denied certiorari on May 29, 2012. ¶12 By December 5, 2013, after various pleadings and discovery requests were filed, the employee filed a motion to set the case for a Vol. 87 — No. 9 — 3/26/2016

jury trial. Discovery and depositions continued until the employer filed a motion for summary judgment on April 10, 2014, arguing that there is no clear violation of a compelling public policy. For purposes of the summary judgment motion, the employer admitted all of the facts that the employee alleged and accepted them as true, but still insisted no cause of action existed. The trial court held a hearing on the motion for summary judgment on May 2, and June 13, 2014. At the June 13, 2014, hearing, the trial court said: All right. Given that we’ve had the discovery of the key witness that had the authority to develop policy for the defendant, and because the defendant, Warr Acres Nursing Center, no longer is a ongoing facility I’ll find that there is no public policy to prevent the termination of Mr. Moore, or a violation of public policy upon the termination of Mr. Moore and sustain the summary judgment. The journal entry reflecting the June 13, 2014, ruling was filed July 3, 2014. The employee appealed on August 1, 2014, and we retained the cause on October 2, 2014, addressing the public policy exception to at-will employment. (It should be noted that the fact that Warr Acres Nursing Center, L.L.C., is no longer in operation does not preclude the employee from seeking a remedy, although it may affect what Moore would be able to recover.6) I. BECAUSE THE RECORD REFLECTS DISPUTED FACTS EXIST AS TO THE REASONS FOR TERMINATION WHICH WERE NEITHER PRETEXTUAL, POST HOC RATIONALIZATIONS, NOR VIOLATIONS OF PUBLIC POLICY SUMMARY JUDGMENT WAS INAPPROPRIATE. ¶13 Pursuant to Rule 13, 12 O.S.2011, Ch. 2 App., Rules for the District Courts, a motion for summary judgment may be filed if the pleadings, depositions, interrogatories, affidavits, and other exhibits reflect that there is no substantial controversy pertaining to any material fact.7 A party opposing the motion may file a written statement showing that a genuine controversy exists. Affidavits and other evidentiary materials which are admissible at trial may be attached in support of these facts. Even when basic facts are undisputed, motions for summary judgment should be denied, if under

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the evidence, reasonable persons might reach different inferences or conclusions from the undisputed facts.8 Summary judgment is proper only when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.9 All conclusions drawn from the evidentiary material submitted to the trial court are viewed in the light most favorable to the party opposing the motion.10 ¶14 The alleged facts show that this at-will employee could certainly have been legally terminated by the employer. Given the employee’s disciplinary record at the nursing center, failure to follow supervisor’s instructions, spreading rumors, failure to complete tasks, and rebellious behavior, the termination likely was neither pretextual, post hoc rationalization, nor a violation of public policy. Oklahoma follows the at-will employment doctrine which allows an employer to discharge an employee for good cause, for no cause without being guilty of legal wrong.11 However, summary judgment was granted based on finding there was no violation of public policy not on the employee’s employment history or for no cause. Instead, for the purpose of summary judgment, the employer insisted that no cause of action existed. There are material questions of fact for the jury to decide. II. OKLAHOMA PUBLIC POLICY CLEARLY ARTICULATES THAT A NURSE CANNOT BE FIRED SOLELY FOR MISSING WORK DUE TO AN INFLUENZA INFECTION. ¶15 For summary judgment purposes, the employer admits and accepts the employee’s version of the facts. The Nursing Center argues, that as a matter of law, the employee has no claim against it because the employee was an at-will employee. The employee insists that he was fired solely for not working with the flu and that this is an exception to at-will employment as articulated by Burk v. K-Mart Corp., 1989 OK 22, ¶17, 770 P.2d 24 and its progeny. ¶16 Burk involved a federal certified question concerning an alleged “implied obligation of good faith and fair dealing” in reference to termination of any employment-at-will contract. The Burk employee sued her employer in contract and in tort, alleging that she was prevented from performing her job duties and 612

was, consequently, constructively discharged. She further asserted that her employer’s agent told her he would not recommend her for a promotion because of her sex. ¶17 Although the Court rejected the implication of a duty of good faith and fair dealing in every employment-at-will contract, Burk was the landmark case wherein the Court adopted a public policy exception to the at-will termination rule in a narrow class of cases in which the discharge of an employee is contrary to the clear mandate of public policy as articulated by constitutional, statutory, or decisional law. We recognized, for the first time, that the action was a tort. We also noted that because the term “public policy” was vague, the exception had to be tightly circumscribed.12 ¶18 In Clinton v. State of Oklahoma ex rel. Logan County Election Board, 2001 OK 52, ¶10, 29 P.3d 543, the Court also clarified the parameters of the Burk tort remedy, noting that: 1) the plaintiff must identify an Oklahoma public policy goal that is clear and compelling and is articulated in existing Oklahoma constitutional, statutory or jurisprudential law; 2) the existence of a federal statutory remedy or state statutory remedy which is sufficient to protect the identified Oklahoma public policy goal precludes a Burk tort; 3) the plaintiff must establish he or she is an at-will employee and the reason for discharge violates the identified Oklahoma public policy goal; 4) a discharge for purposes of the Burk tort may be either actual or constructive. ¶19 We again addressed the elements of a Burk tort in Vasek v. Board of County Commissioners, 2008 OK 35, ¶¶27-28, 186 P.3d 928. It involved a plaintiff who alleged wrongful termination for making a complaint to the Department of Labor (DOL) concerning mold at the courthouse. The plaintiff’s action was based on the fact that she alleged she was fired for reporting her employer’s violation of the law. We reiterated the elements of a Burk tort in such circumstances, stating: The elements of a claim for wrongful discharge of an at-will employee articulated in Burk and its progeny can be summarized. A viable Burk claim must allege (1) an actual or constructive discharge (2) of an at-

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will employee (3) in significant part for a reason that violates an Oklahoma public policy goal (4) that is found in Oklahoma’s constitutional, statutory, or decisional law or in a federal constitutional provision that prescribes a norm of conduct for Oklahoma and (5) no statutory remedy exists that is adequate to protect the Oklahoma policy goal. ¶20 In Vasek, we equated “adequacy” of remedies with “sufficiency,” in other words: Were the remedies available to the plaintiff sufficient to protect Oklahoma’s public policy goals? In this cause, the precise question of law is not the employee’s sufficiency of remedies, but rather whether Oklahoma’s constitutional, statutory, or decisional law or in a federal constitutional provision even prescribes a norm of conduct for Oklahoma that was violated. The answer is overwhelmingly and clearly yes. ¶21 In Silver v. CPC-Sherwood Manor, Inc., 2004 OK 1, 84 P.3d 728, we recognized that a cook for a nursing home who was fired for going to the emergency room with diarrhea and throwing up stated a cause of action by showing a public policy violation of the Oklahoma Administrative Code provisions of the Oklahoma State Department of Health. We noted that the public health codes “in a clear and compelling fashion,” articulate a welldefined, firmly established, state public policy prohibiting the holding, preparing, or delivering of food prepared under conditions whereby it may have been rendered diseased, unwholesome, or injurious to health. ¶22 The nursing home’s alleged failure to follow this policy stated a cause of action under Burk sufficient to survive a motion to dismiss for failure to state a claim. Yet, we expressed no opinion as to the sufficiency or quality of the plaintiff’s evidence, yet to be presented, concerning the nursing home’s reason for dismissing the cook. The dissenters in Silver, did not join the majority opinion because there was no doctor’s diagnosis of a communicable disease. There is such a note in the present case. ¶23 Similar public health codes in a clear and compelling fashion, also articulate a welldefined, firmly established, state public policy prohibiting a nurse from working while infected with the influenza. The Okla. Const. art. 5 §39 directs the legislature to create the Board of Health13 and art. 5 vests the Legislature the power to establish agencies such as the OklaVol. 87 — No. 9 — 3/26/2016

homa Health Department and to designate agency functions.14 The Legislature delegates rule making authority to facilitate administration of legislative policy and such delegation is intended to eliminate the necessity of establishing every administrative aspect of general public policy by legislation.15 Administrative agencies create rules which are binding similar to a statute and are only created within legislatively-granted authority and approval. Such rules are necessary in order to make a statutory scheme fully operative.16 ¶24 In Estes v. Conoco Phillips Co., 2008 OK 21, ¶10, 184 P.3d 518 we recognized that: 1) pursuant to the Administrative Procedures Act, 75 O.S. 2011 §§250-323, the Legislature may delegate rulemaking authority to agencies, boards, and commissions to facilitate the administration of legislative policy; and 2) Administrative rules are valid expressions of lawmaking powers having the force and effect of law. ¶25 The Oklahoma Department of Health Regulations §310:675-7-17-1, which were statutorily mandated17 to implement the Nursing Home Care Act,18 to cover infection control and require nursing home facilities to have an infection control policy to provide a safe and sanitary environment. This policy is required to include provisions excluding personnel and visitors with communicable infections19 as well as to ensure the health of its residents.20 A nurse’s license may be withdrawn for failing to follow minimum quality of care standards.21 ¶26 In addition to the Oklahoma statutory directives, Federal law regulates the states, including Oklahoma, when it comes to infectious disease control. For example, the regulation governing medicare & medicaid services requires facilities to control infectious diseases by prohibiting employees with communicable disease to come in direct contact with residents.22 Federal quality of care standards also require development of policy and procedures to ensure that residents in a nursing home are protected from influenza and pneumonia.23 Nursing facilities must comply with all Federal, State, and local laws regarding regulations and professional standards of care.24 ¶27 Clearly, it cannot be said the there are not constitutional, statutory or caselaw public policy manifestations which would prohibit a registered nurse from working with the flu. The present cause is just like Silver, supra. In

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Silver, a nursing home cook was fired for missing work because he suffered with a virus, even though statutes prohibited nursing home food to be prepared under conditions whereby it may have been unwholesome or injurious to health.25 Here, a nurse was fired for missing work because he suffered with a virus even though health codes prohibited nurses from working while infected with influenza. ¶28 Title 63 O.S. 2011 §1-1102 and §1-10926 prohibit the handling of food which may have been rendered diseased, unwholesome, or injurious to health. The Oklahoma Department of Health Regulations §310: 675-17-1 require the exclusion of personnel and visitors with communicable infections in nursing homes.27 The Nursing Center provided the employee’s job description in its motion for summary judgment. It required him to check foods brought into the facility, make sure they were appropriate according to order and allowances, report dietary changes, and assist in infection control to ensure that tasks in which there is a potential exposure were properly identified.28 The statutes, coupled with his job description, put this employee in a better position than Silver. The only difference between this cause and Silver is that in this cause, the employee suffered from a communicable disease diagnosed by a doctor. The reason for the dissenting opinion in Silver was because the employee was not diagnosed by a doctor as having a communicable disease. Stare decisis and consistent jurisprudence compel this conclusion. Otherwise, we must overrule Silver v. CPC-Sherwood Manor, Inc., 2004 OK 1, 84 P.3d 728. ¶29 There were over 100 people who died in Oklahoma from the flu last year. Obviously precautions must be taken to prevent the transfer of such a communicable and potentially deadly disease. A recap of Clinton v. State of Oklahoma ex rel. Logan County Election Board, 2001 OK 52, ¶10, 29 P.3d 543, which sets the parameters of the Burk tort remedy is compelling. It requires that: 1) the plaintiff must identify an Oklahoma public policy goal that is clear and compelling and is articulated in existing Oklahoma constitutional, statutory or jurisprudential law; [The employee furnished a plethora of legal authorities delineating public policy goals.]

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2) the existence of a federal statutory remedy or state statutory remedy which is sufficient to protect the identified Oklahoma public policy goal precludes a Burk tort; [There is no federal or state remedy. The public policy exception was recognized in Silver v. CPC-Sherwood Manor, Inc., 2004 OK 1, 84 P.3d 728.] 3) the plaintiff must establish he or she is an at-will employee and the reason for discharge violates the identified Oklahoma public policy goal; [The employee has established that he is an at-will employee. If, it were to be found by the trier of facts that his absence due to influenza was the reason for his termination, it would violate Oklahoma public policy.] 4) a discharge for purposes of the Burk tort may be either actual or constructive. [It was undisputed that he was discharged.] ¶30 Accordingly, based on the constitution, the statutes, the regulations approved by Congress and the Oklahoma Legislature, and the Nursing Center’s rules, regulations and handbook, a public policy exception exists which would prohibit a nurse from being fired solely for not working while infected with influenza. This is an exception to at-will employment as articulated by Burk v. K-Mart Corp., 1989 OK 22, ¶17, 770 P.2d and its progeny. This holding, however does not end the inquiry of this cause because disputed facts are alleged which show that the firing had nothing to do with not working with the flu. CONCLUSION ¶30 Summary judgment was inappropriate. Oklahoma as well as federal law clearly shows that a nurse in a nursing center cannot be fired for not working with the flu. However, the disputed facts show that this employee’s firing may have had very little to do with his threeday absence from work with the flu. TRIAL COURT REVERSED. REIF, C.J., COMBS, V.C.J., KAUGER, WATT, EDMONDSON, COLBERT, GURICH, JJ., concur. WINCHESTER, (by separate writing) and TAYLOR, JJ., dissent.

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Winchester, J., with whom Taylor, J., joins, dissenting: ¶1 I respectfully dissent. ¶2 This employer did not require the employee to work his schedule nor remain at work and do other duties not associated with direct patient care. While I understand the summary judgment aspect, the majority nevertheless acknowledged that the termination of this employee was likely the result of actual misconduct. The majority opinion clearly impacts and restricts employment-at-will. I do not take issue with a health department rule that protects patient exposure. But, the employer should be given the flexibility to evaluate his employee’s absence from work and also the flexibility to determine whether alternative duties are appropriate and consistent with the employment contract. The practical impact of this Court’s holding is to expand the public policy exception to employment-at-will, which will now be governed by administrative rules and regulations. After this case becomes law, an employer must consult those rules and regulations before exercising the decision to terminate an employee. ¶3 The rule of stare decisis does not support the majority opinion. My reading of the opinion is that public policy is now also found in “Oklahoma and Federal regulations.”1 The majority opinion cites the at-will employment rule as established by stare decisis. In ¶ 18 of that opinion the Court quotes: “1) the plaintiff must identify an Oklahoma public policy goal that is clear and compelling and is articulated in existing Oklahoma constitutional, statutory or jurisprudential law. . . .” The majority opinion in ¶ 20 poses the “precise question of law” as “whether Oklahoma’s constitutional, statutory, or decisional law or . . . a federal constitutional provision even prescribes a norm of conduct for Oklahoma that was violated.” The opinion then answers “overwhelmingly and clearly yes.” ¶4 The majority opinion cites Silver v. CPCSherwood Manor, Inc., 2004 OK 1, 84 P.3d 728, and pronounces a result not found in the Silver opinion: “In Silver . . . we recognized that a cook for a nursing home who was fired for going to the emergency room with diarrhea and throwing up stated a cause of action by showing a public policy violation of the Oklahoma Administrative Code provisions of the Vol. 87 — No. 9 — 3/26/2016

Oklahoma State Department of Health.” Majority Opinion, ¶ 21. Emphasis added. ¶5 The majority opinion continues in the same paragraph that the public health codes “’in a clear and compelling fashion’ articulate a well-defined, firmly established, state public policy prohibiting the holding, preparing, or delivering of food prepared under the conditions whereby it may have been rendered diseased, unwholesome, or injurious to health.” That holding is not found in Silver. ¶6 An examination of that opinion reflects that the Silver majority attempted to continue to restrict “public policy” to statutes, as opposed to administrative regulations. The Silver Court does not cite Administrative Code provisions as setting public policy. In fact, it specifically disclaims such a position: “This Court need not mire itself in the controversy which confronted the Court of Civil Appeals concerning whether certain agency rules promulgated by the Oklahoma Department of Health provide a permissible source of public policy in this matter.” Silver, 2004 OK 1, ¶ 6, 84 P.3d at 730. ¶7 The statutes cited in Silver were from title 63, and are now codified at 63 O.S.2011, §§ 1-1102, and 1-1109. The Silver Court held: “ Sections 1-1102(a), (c) and 1-1109(a)(4) articulate, in a clear and compelling fashion, a welldefined, firmly established, state public policy prohibiting the holding, preparing, or delivering of food prepared under conditions whereby it may have been rendered diseased, unwholesome, or injurious to health.” Silver, 2004 OK 1, ¶ 7, 84 P.3d at 730. ¶8 The new, and previously rejected rule, comes in ¶ 23 of the majority opinion of the case now before this Court: “Similar public health codes in a clear and compelling fashion, also articulate a well-defined, firmly established, state public policy prohibiting a nurse from working while infected with the influenza.” The Court attempts its support of this new rule by linking article 5, § 39 of Oklahoma’s Constitution, which vests legislative power to establish agencies, to the subsequent establishment of agencies. Then when administrative agencies promulgate rules, the majority opinion concludes that because administrative agencies create rules that are binding “similar to” statutes, and because those rules are authorized and approved by the Oklahoma Legisla-

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ture, then these are somehow equivalent to statutory law. That reasoning is faulty. ¶9 Public policy cannot be delegated to an administrative agency. Section 1 of article IV of the Oklahoma Constitution provides: “The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislative, Executive, and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others.” ¶10 Section 1 of article V of the Oklahoma Constitution requires that “The Legislative authority of the State shall be vested in a Legislature consisting of a Senate and House of Representatives. . . .” From these constitutional provisions comes the prohibition against the delegation of legislative power. ¶11 The Court in Democratic Party v. Estep, 1982 OK 106, ¶ 16, n. 23, 652 P.2d 271, 277 n. 23 (1982) observed that this prohibition against the delegation of legislative power “rests on the premise that the legislature must not abdicate its responsibility to resolve fundamental policy making by [1] delegating that function to others or [2] by failing to provide adequate directions for the implementation of its declared policy.” Declaring that a violation of the Oklahoma Administrative Code provisions of the Oklahoma State Department of Health is a violation of public policy and therefore fits within the exception to at-will employment articulated in Burk v. K-Mart Corp., 1989 OK 22, ¶ 17, 770 P.2d 24, 28, is not supported by our case law. ¶12 “The terminable-at-will employment doctrine allows an employer to discharge an employee for good cause, no cause, or even for a morally wrong cause without being liable for a legal wrong.” Reynolds v. Advance Alarms, Inc., 2009 OK 97, ¶ 5, 232 P.3d 907, 909. “The Burk tort does not even protect an employee from the employer’s poor business judgment, or corporate foolishness. Shero v. Grand Savings Bank, 2007 OK 24, ¶ 12, 161 P.3d 298, 302. In Darrow v. Integris Health, Inc. 2008 OK 1, ¶ 13, 176 P.3d 1204, 1211, that Court held that even a federal statute by itself cannot serve as an articulation of Oklahoma public policy absent a specific Oklahoma court decision, statute or constitutional provision. 616

¶13 If administrative rules are added to the list of sources for finding a violation of a clear mandate of public policy, I do not see how a Burk tort can be described as a “tightly circumscribed framework.” Shero, 2007 OK 24, ¶ 12, 161 P.3d at 303. Including administrative rules within the public policy exception greatly expands the Burk tort, placing a greater burden on employers who must search through those rules to determine whether termination of an employee will be against public policy. This new at-will employment rule forces employers to require that they terminate employees only if an articulable and provable good cause can be shown. The majority’s holding continues to erode the right of employers to manage their businesses on a day-to-day basis. ¶14 I would affirm the summary judgment of the trial court. KAUGER, J.: 1. In his Third Amended Petition in Error, the appellant attaches an exhibit listing 50 issues to be raised on appeal. Included in that exhibit are many arguments and authorities Appellant had not previously presented to the trial court in his motion to vacate the grant of summary judgment and the Appellee has moved to strike most of the exhibit, arguing it violates the rules of accelerated procedure for summary judgement. We agree. Okla. Sup. Ct. Rule 1.36, 12 O.S. 2011 App. 1. 2. The note is signed from Dr. Quang Van Pham, a Staff Physician at the Department of Veterans Affairs Medical Center in Oklahoma City, Oklahoma, dated November 25, 2008 and it provides: To Whom It May Concern: Mr. Moore may return to work in three days. Please contact me for further assistance. 3. The Warr Acres Nursing Center Handbook provides: Absenteeism All employees are expected to report to work as scheduled on time. It is the responsibility of the employee to notify her/his supervisor when illness or other circumstances prevent them from reporting to work. Please note that you must call your SUPERVISOR not a peer. Except in a life-threatening emergency, all employees must personally call their supervisor two (2) hours before his/ her inability to report to work. No Call No Show is a CRITICAL violation and may result in termination per policy. Upon your return to work, you will be asked for the reason of absence which will be documented and put into your personnel record. The facility reserves the right to request proof of the reason for absenteeism, ie. a written physician’s statement, death notice, etc. [It appears the employee underlined the most relevant portions in order for the trial court to easily identify them.] 4. Title 85 O.S. Supp. 2011 §§ 1 et. seq The current version is known as the Administrative Workers Compensation Act, 85A O.S. Supp. 2013 §§1 et seq. 5. The exhibit list includes: Oklahoma Department of Health Regulation §310: 675-7-17-1 governing infection control in nursing homes; 42 Code of Federal Regulation §483.65, governing facilities which provide medicare & medicaid services; 42 CFR §483.25(n), quality of care, 59 O.S. §567.8 (Nursing Practice Act) 42 CFR §483.75, compliance with local laws and standards; Silver v. CPC-Sherwood Manor, Inc, 2004 OK 1, 84 P.3d 728, Moore v. Warr Acres Nursing Center, LLC, No. 108,595, prior appeal; Warr Acres Nursing Center’s Employee Handbook, a Physician’s written statement taking the employee off work for three days; 42 CFR §§70.1(a)-(d) providing the definition of communicable diseases; 45 CFR §482.42 conditions of participation in Medicare/ Medicaid; Band v. Baptist Village Retirement Communities of Oklahoma, Inc., 2009 WL 5216927 (N.D. Okla. 12-30-2009); U.S. Govern-

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ment Operations Manual for all states to regulate compliance with long term care facilities. 6. The Nursing Center is a L.L.C. which is apparently no longer in business. Title 18 O.S. 2011 §2037(B) provides that: B. A limited liability company continues in existence after dissolution, regardless of whether articles of dissolution are filed, but may carry on only activities necessary to wind up its business or affairs and liquidate its assets under Sections 2039 and 2040 of this title. Title 18 O.S. 2011 §2039(A)(2) provides: 2. The persons winding up the business or affairs of the limited liability company may, in the name of, and for and on behalf of, the limited liability company: a. prosecute and defend suits, b. settle and close the business of the limited liability company, c. dispose of and transfer the property of the limited liability company, d. discharge the liabilities of the limited liability company, and e. distribute to the members any remaining assets of the limited liability company. 7. Rules for District Courts of Oklahoma, Rule 13 12 O.S. 2011, Ch. 2, App., provides in pertinent part: a. A party may move for either summary judgment or summary disposition of any issue on the merits on the ground that the evidentiary material filed with the motion or subsequently filed with leave of court show that there is no substantial controversy as to any material fact. The motion shall be accompanied by a concise written statement of the material facts as to which the movant contends no genuine issue exists and a statement of argument and authority demonstrating that summary judgment or summary disposition of any issues should be granted. Reference shall be made in the statement to the pages and paragraphs or lines of the evidentiary materials that are pertinent to the motion. Unless otherwise ordered by the court, a copy of the material relied on shall be attached to or filed with the statement. . . . c. The affidavits that are filed by either party shall be made on personal knowledge, shall show that the affiant is competent to testify as to the matters stated therein, and shall set forth matters that would be admissible in evidence at trial. The admissibility of other evidentiary material filed by either party shall be governed by the rules of evidence. If there is a dispute regarding the authenticity of a document or admissibility of any submitted evidentiary material, the court may rule on the admissibility of the challenged material before disposing of the motion for summary judgment or summary disposition. A party challenging the admissibility of any evidentiary material submitted by another party may raise the issue expressly by written objection or motion to strike such material. Evidentiary material that does not appear to be convertible to admissible evidence at trial shall be challenged by objection or motion to strike, or the objection shall be deemed waived for the purpose of the decision on the motion for summary judgment or summary disposition. If a trial of factual issues is required after proceedings on a motion for summary judgment or summary disposition, evidentiary rulings in the context of the summary procedure shall be treated as rulings in limine. . . . e. If it appears to the court that there is no substantial controversy as to the material facts and that one of the parties is entitled to judgment as a matter of law, the court shall render judgment for said party. . . . 8. Brown v. Oklahoma State Bank & Trust Company of Vinita, 1993 OK 117, ¶7, 860 P.2d 230. 9. Brown v. Oklahoma State Bank & Trust Company of Vinita, see note 8, supra. 10. Brown v. Oklahoma State Bank & Trust Company of Vinita, see note 8, supra. 11. City of Jenks v. Stone, 2014 OK 11, ¶13, 321 P.3d 179. 12. Three years after Burk, we promulgated Tate v. Browning Ferris, Inc, 1992 OK 72, 833 P.2d 1218. Tate involved the question of whether a Burk tort could be asserted for racial discrimination, to which we answered — yes. The history and evolution of the Burk tort is detailed in our opinion in Kruchowski v. Weyerhaeuser Company, 2008 OK 105, 202 P.3d 144. 13. The Okla. Const. art. 5 §39 provides: Boards of Health, Dentistry and Pharmacy - Pure Food Commission - Present practitioners. The Legislature shall create a Board of Health, Board of Dentistry, Board of Pharmacy, and Pure Food Commission, and prescribe the duties of each. All physicians, dentists and pharmacists now legally registered and practicing in Oklahoma

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and Indian Territory shall be eligible to registration in the State of Oklahoma without examination or cost. 14. Title 75 O.S. Supp. 2013 §250.2(A) provides: A. Article V of the Oklahoma Constitution vests in the Legislature the power to make laws, and thereby to establish agencies and to designate agency functions, budgets and purposes. Article VI of the Oklahoma Constitution charges the Executive Branch of Government with the responsibility to implement all measures enacted by the Legislature. 15. Title 75 O.S. Supp. 2013 §250.2(B) provides: B. In creating agencies and designating their functions and purposes, the Legislature may delegate rulemaking authority to executive branch agencies to facilitate administration of legislative policy. In so doing, however, the Legislature reserves to itself: 1. The right to retract any delegation of rulemaking authority unless otherwise precluded by the Oklahoma Constitution; 2. The right to establish any aspect of general policy by legislation, notwithstanding any delegation of rulemaking authority; 3. The right and responsibility to designate the method for rule promulgation, review and modification; 4. The right to approve or disapprove any adopted rule by joint resolution; and 5. The right to disapprove a proposed permanent, promulgated or emergency rule at any time if the Legislature determines such rule to be an imminent harm to the health, safety or welfare of the public or the state or if the Legislature determines that a rule is not consistent with legislative intent. 16. See, Estes v. Conoco Phillips Co., 2008 OK 21, ¶10, 184 P.3d 518 [Pursuant to the Administrative Procedures Act, 75 O.S. 2001 §§250323, the Legislature may delegate rulemaking authority to agencies, boards, and commissions to facilitate the administration of legislative policy. Administrative rules are valid expressions of lawmaking powers having the force and effect of law.]; See Chevron, U.S.A, Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.ED.2d 694 for discussion of the controlling weight given to an administrative agency and administrative agency’s power and necessity to formulate policy and fill any gaps left implicitly or explicitly by Congress; Been v. O.K Industries, Inc., 495 F.3d 1217, 1226 [Regulations promulgated by an agency exercising its congressionally granted rule-making authority are entitled to Chevron deference and have the ful force of law.] 17. In addition to specifically implementing the Nursing Home Care Act, required the State Board of Health to promulgate rules and establish procedures for nursing facilities. For example, 63 O.S. 2011 §1-1942 provides: The Department shall have the power to adopt rules and regulations in furtherance of the purpose of this act. Title 63 O.S. 2011 §1-1900.2 provides: A. It is the intent of the Legislature to foster the development of resident autonomy, individualization and culture change in nursing facilities licensed by the State Department of Health. B. The Commissioner of Health is authorized to waive any provision of the Nursing Home Care Act and any rules promulgated pursuant thereto, provided: 1. The waiver will not cause the State of Oklahoma to fail to comply with any applicable requirements established by the Centers for Medicare and Medicaid Services; 2. The waiver is granted to allow a nursing facility to satisfy the spirit of a statutory or administrative requirement by alternative means; 3. The waiver will not adversely affect the health, safety or welfare of any resident of a nursing facility; and 4. The waiver is in support of a deinstitutionalization model that restores individuals to a self-contained residence in the community that is designed like a private home and houses no more than twelve individuals. C. The State Board of Health shall promulgate rules and establish procedures necessary to implement the waiver process established by this section. Title 63 O.S. 2011 §1-836 provides in pertinent part: A. The State Board of Health shall promulgate rules to enforce the provisions of the Residential Care Act. Such rules shall regulate: 1. Location and construction of the home, including plumbing, heating, lighting, ventilation, and other physical conditions which shall ensure the health, safety, and comfort of residents and protection from fire hazards; 2. Number of all personnel, including management and supervisory personnel, having responsibility for any part of the care given to residents. The Department shall establish staffing ratios for homes which shall specify the number of staff hours

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of care per resident that are needed for care for various types of homes or areas within homes. Minimum personnel ratio requirements for all homes shall be based only on average daily census; 3. All sanitary conditions within the home and its surroundings, including water supply, sewage disposal, food handling, and general hygiene, which shall ensure the health and comfort of residents; . . . 18. Oklahoma Department of Health Regulation §310: 675-1-1 Purpose, provides: The purpose of this Chapter is to implement the ‘Nursing Home Care Act’ (63 O.S. 1991 §§ 1-1901 et seq.) And to establish the minimum criteria for the issuance or renewal of a nursing or specialized facility license. Title 63 O.S. 2011 §1-1900.1 was added in 2001 and it provides: A. This act shall be known and may be cited as the “Long-Term Care Reform and Accountability Act of 2001.” B. The purpose of the Long-Term Care Reform and Accountability Act of 2001 shall be to design, develop and implement policies and procedures that improve the quality of care provided in this state’s long-care delivery system for the elderly and disabled. The purpose of the Long-Term Care Reform and Accountability Act of 2001 shall be accomplished through a series of initiatives. The short title of the act is found in §1-1901 and it provides: This act shall be known and may be cited as the “Nursing Home Care Act.” 19. Oklahoma Department of Health Regulations §310: 675-17-1 provides in pertinent part: (a) The facility shall have an infection control policy and procedures to provide a safe and sanitary environment. The policy shall address the prevention and transmission of disease and infection. The facility, and its personnel, shall practice the universal precautions identified by the Centers for Disease Control. All personnel shall demonstrate their knowledge of universal precautions through performance of duties. (b) The facility shall maintain a sanitary environment and prevent the development and transmission of infection in the following areas. ... (7) Sources of air-borne infections. (8) Health status of all employees and residents. . . . (c) Infection control policies to prevent the transmission of infection shall include the following: (1) Excluding personnel and visitors with communicable infections. . . . Federal guidelines define communicable disease. Title 42 Code of Federal Regulations, §70.1(a-d), vol. 4, provides: As used in this part, terms shall have the following meaning: (a) Communicable diseases means illnesses due to infectious agents or their toxic products, which may be transmitted from a reservoir to a susceptible host either directly as from an infected person or animal or indirectly through the agency of an intermediate plant or animal host, vector, or the inanimate environment. (b) Communicable period means the period or periods during which the etiologic agent may be transferred directly or indirectly from the body of the infected person or animal to the body of another. (c) Conveyance means any land or air carrier, or any vessel as defined in paragraph (h) of this section. (d) Incubation period means the period between the implanting of disease organisms in a susceptible person and the appearance of clinical manifestation of the disease. 20. Title 63 O.S. 2011 §1-1925 provides in pertinent part: The State Department of Health shall prescribe minimum standards for facilities. These standards shall regulate: 1. Location and construction of the facility, including plumbing, heating, lighting, ventilation, and other physical conditions which shall ensure the health, safety and comfort of residents and protection from fire hazards; 2. Number and qualifications of all personnel, including management and nursing personnel, having responsibility for any part of the care given to residents; specifically, the Department shall establish staffing ratios for facilities which shall specify the number of staff hours per resident of care that are needed for professional nursing care for various types of facilities or areas within facilities; 3. All sanitary conditions within the facility and its surroundings, including water supply, sewage disposal, food handling,

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and general hygiene, which shall ensure the health and comfort of residents;. . . Title 63 O.S. 2011 §1-821 provides in pertinent part: A. The State Board of Health shall promulgate rules to enforce the provisions of the Residential Care Act which shall include, but not be limited to, provisions for temperature settings, lighting, ventilation, and other physical conditions that affect the health, safety and welfare of the residents in a home. Residential care homes that provide care for three or fewer residents shall be subject to the provisions of the Residential Care Act; provided, however, if such rules unduly restrict operation of the home, the Board shall be authorized and shall promulgate additional rules for residential care homes based upon the number of residents in a home. . . . 21. Title 59 O.S. 2011 §567.8 provides in pertinent part: B. The Board shall impose a disciplinary action against the person pursuant to the provisions of subsection A of this section upon proof of one or more of the following items. The person: . . . 3. Fails to adequately care for patients or to conform to the minimum standards of acceptable nursing or Advanced Unlicensed Assistant practice that, in the opinion of the Board, unnecessarily exposes a patient or other person to risk of harm; ... Title 63 O.S. 2011 §1-825 provides: Any person who violates any of the provisions of the Residential Care Act, the rules promulgated pursuant thereto by the State Board of Health, or any order or determination of the State Department of Health pursuant to the provisions of the Residential Care Act, or who fails to perform any duty imposed upon such person by the provisions of the Residential Care Act, shall be subject to any of the following penalties and liabilities as authorized by the provisions of the Residential Care Act: 1. License revocation, suspension, or nonrenewal; 2. Transfer of residents; 3. Temporary manager; 4. Injunctive proceedings; 5. Civil fines; and 6. Criminal penalties as provided in Section 1-832 of this title. 22. Title 42 Code of Federal Regulations, §483, vol. 4, Part 483 Requirements for States and Long Term Care Facilities, Sec. 483.65 provides: Infection control. The facility must establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of disease and infection. (a) Infection control program. The facility must establish an infection control program under which it— (1) Investigates, controls, and prevents infections in the facility; (2) Decides what procedures, such as isolation, should be applied to an individual resident; and (3) Maintains a record of incidents and corrective actions related to infections. (b) Preventing spread of infection. (1) When the infection control program determines that a resident needs isolation to prevent the spread of infection, the facility must isolate the resident. (2) The facility must prohibit employees with a communicable disease or infected skin lesions from direct contact with residents or their food, if direct contact will transmit the disease. (3) The facility must require staff to wash their hands after each direct resident contact for which handwashing is indicated by accepted professional practice. (c) Linens. Personnel must handle, store, process, and transport linens so as to prevent the spread of infection. Title 45 Code of Federal Regulations §482.42 provides: §482.42 Condition of participation: Infection control. The hospital must provide a sanitary environment to avoid sources and transmission of infections and communicable diseases. There must be an active program for the prevention, control, and investigation of infections and communicable diseases. (a) Standard: Organization and policies. A person or persons must be designated as infection control officer or officers to develop and implement policies governing control of infections and communicable diseases. The infection control officer or officers must develop a system for identifying, reporting, investigating, and controlling infections and communicable diseases of patients and personnel.

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(b) Standard: Responsibilities of chief executive officer, medical staff, and director of nursing services. The chief executive officer, the medical staff, and the director of nursing services must— (1) Ensure that the hospital-wide quality assessment and performance improvement (QAPI) program and training programs address problems identified by the infection control officer or officers; and (2) Be responsible for the implementation of successful corrective action plans in affected problem areas. 23. Title 42 Code of Federal Regulations, §483, vol. 4, (2008), Part 483 Requirements for States and Long Term Care Facilities, Sec. 483.25 provides in pertinent part: . . .(n) Influenza and pneumococcal immunizations— (1) Influenza. The facility must develop policies and procedures that ensure that— (i) Before offering the influenza immunization, each resident or the resident’s legal representative receives education regarding the benefits and potential side effects of the immunization; (ii) Each resident is offered an influenza immunization October 1 through March 31 annually, unless the immunization is medically contraindicated or the resident has already been immunized during this time period; (iii) The resident or the resident’s legal representative has the opportunity to refuse immunization; and (iv) The resident’s medical record includes documentation that indicates, at a minimum, the following: (A) That the resident or resident’s legal representative was provided education regarding the benefits and potential side effects of influenza immunization; and (B) That the resident either received the influenza immunization or did not receive the influenza immunization due to medical contraindications or refusal. . . . 24. Title 42 Code of Federal Regulations, §483, vol. 4, (2008), Part 483 Requirements for States and Long Term Care Facilities, Sec. 483.75 provides in pertinent part: A facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident. (a) Licensure. A facility must be licensed under applicable State and local law. (b) Compliance with Federal, State, and local laws and professional standards. The facility must operate and provide services in compliance with all applicable Federal, State, and local laws, regulations, and codes, and with accepted professional standards and principles that apply to professionals providing services in such a facility. . . . 25. Title 63 O.S. 2011 §1-1102(a), (c) provides in pertinent part: The following acts and the causing thereof within the State of Oklahoma are hereby prohibited: (a) the manufacture, sale, or delivery, holding or offering for sale of any food that is adulterated or misbranded. . . . (c) the receipt in commerce of any food that is adulterated or misbranded, and the delivery or proffered delivery thereof for pay or otherwise. Title 63 O.S. 2011 §1-1109(a)(4) provides: A food shall be deemed to be adulterated: (a) . .(4) if it has been produced, prepared, packed, or held under insanitary conditions whereby it may have been rendered diseased, unwholesome, or injurious to health; . . . 26. Title 63 O.S. 2001 §§1-1102 and 1-1109, see note 25, supra. 27. Oklahoma Department of Health Regulations §310: 675-17-1, see note 19, supra. See also, 63 O.S. 2011 §1-836, see note 17, supra; 42 Code of Federal Regulations, §70.1(a-d), vol. 4, see note 9, supra; 63 O.S. 2011 §1-1925 see note 10, supra; 63 O.S. 2011 §1-821 see note 10, supra; 42 C1ode of Federal Regulations, §483.65, see note 22, supra; 45 Code of Federal Regulations §482.42, see note 22, supra; 42 Code of Federal Regulations §483.25, see note 23, supra. 28. Moore’s job description was provided by the Nursing Center and it is found in the record at tab 33 attached as exhibit #2 to the Nursing Center’s motion for summary judgment and brief. A charge nurse’s duties state: Duties Responsibilities. . . *Report all discrepancies noted concerning physicians orders, diet change, charting errors, etc, to the Director. . . Nursing:. . . *Check foods brought into facility and make sure they are appropriate/according to order and allowances. Reports any problems to the DON and Dietary Supervisor. . .

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*Assist in infection control to ensure that tasks in which there is a potential exposure to blood/bodily fluids are properly identified. . . .

Winchester, J., with whom Taylor, J., joins, dissenting: 1. Majority Opinion, ¶ 1 proclaims: “The public policy behind precluding a nursing home employee from working while infected with influenza is manifested in the Oklahoma Constitution, the Oklahoma statutes, Oklahoma and Federal regulations and caselaw.” Emphasis added.

2016 OK 29 IN RE: AMENDMENT OF RULE 5 OF THE RULES GOVERNING ADMISSION TO THE PRACTICE OF LAW, 5 O.S. Supp. 2015, ch. 1, app. 5 SCBD 6349. March 7, 2016 ORDER Rule 5 of The Rules Governing Admission to the Practice of Law in the State of Oklahoma, attached hereto, is hereby amended, effective June 1, 2016. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 7th day of March, 2016. /s/ John F. Reif CHIEF JUSTICE ALL JUSTICES CONCUR Rules Governing Admission to the Practice of Law in the State of Oklahoma Chapter 1, App. 5 Rule 5. Examination. All applicants for admission by examination who shall have attained a grade of at least 75 in the subject of Oklahoma Rules of Professional Conduct and who shall attain an average grade of at least 75 on the examination given by the Board of Bar Examiners covering The Multistate Bar Examination (MBE) and combinations of the subjects hereinafter specified, and who are otherwise qualified under these Rules, shall be recommended by the Board of Bar Examiners for admission to the practice of law in this state. All applicants for admission by examination who: A) shall have attained a grade of at least 75% in the subject of Oklahoma Rules of Professional Conduct; B) shall have attained an average grade of at least 75% on the examination given by the

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Board of Bar Examiners covering combinations of the subjects hereinafter specified; The following examination shall cover combinations of the following subjects: 1. Oklahoma Rules of Professional Conduct 2. Commercial Law, which may include: (a) Contracts (b) Uniform Commercial Code (c) Consumer Law (d) Creditor’s rights, including bankruptcy 3. Property 4. Procedural Law, which may include: (a) Pleadings (b) Practice (c) Evidence (d) Remedies (damages, restitution and equity) 5. Criminal Law 6. Business Associations, which may include: (a) Agency (b) Partnerships (including joint ventures) (c) Corporations (d) Limited Liability Companies

on the subject Oklahoma Rules of Professional Conduct. Such re-examination shall be conducted by the Board at a time and place to be fixed by the Board and may be written or oral or both. If, upon such reexamination, the applicant receives a satisfactory grade in the subject Oklahoma Rules of Professional Conduct and is found by the Board to have otherwise qualified to be recommended for admission to the Bar, such applicant shall thereupon be so recommended. Any applicant who fails to receive a satisfactory grade upon such reexamination shall be required to reapply for permission to take a further examination concerning the Oklahoma Rules of Professional Conduct, which may be given at the discretion of the Board. The following examination shall cover combinations of the following subjects: 1. Oklahoma Rules of Professional Conduct 2. Commercial Law, which may include: (a) Contracts (b) Uniform Commercial Code (c) Consumer Law (d) Creditor’s rights, including bankruptcy 3. Property

7. Constitutional and Administrative Law

4. Procedural Law, which may include:

8. Torts

(a) Pleadings (b) Practice (c) Evidence (d) Remedies (damages, restitution and equity)

9. Intestate Succession, wills, trusts, estate planning, including federal estate and gift taxation 10. Conflicts of law

5. Criminal Law

11. Family law C) shall have attained a satisfactory score on The Multistate Bar Examination (MBE); and D) are otherwise qualified under these rules

6. Business Associations, which may include: (a) Agency (b) Partnerships (including joint ventures) (c) Corporations (d) Limited Liability Companies

shall be recommended by the Board of Bar Examiners for admission to the practice of law in this state.

7. Constitutional and Administrative Law

Any applicant who is otherwise qualified to be recommended for admission to the Bar except by reason of failure to pass satisfactorily the section of the Oklahoma Bar Examination concerning the Oklahoma Rules of Professional Conduct shall be eligible for re-examination

9. Intestate Succession, wills, trusts, estate planning, including federal estate and gift taxation

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8. Torts

10. Conflicts of law 11. Family law

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There shall be held two bar examinations each year, at dates, times, places and duration to be prescribed by the Board of Bar Examiners. 2016 OK 30 RE: ORDER VACATING SCAD-2013-11, BAR EXAM ALTERNATIVE SCORING AND GRADING METHODS

examination is not a reason to change the examination’s grading or scaling. The action taken today by the majority is a mistake. I dissent. 2016 OK 31

SCAD-2016-18. March 7, 2016

State of Oklahoma ex rel. Oklahoma Bar Association, Complainant v. Fred Bennett Callicoat Respondent.

ORDER

SCBD-6359. March 9, 2016

The order of April 9, 2013, SCAD-2013-11, implementing a new scoring model which scaled the Oklahoma raw total score to the equated Multistate Bar Exam (MBE) score for the Oklahoma Bar Examination, is hereby vacated effective June 1, 2016.

ORDER APPROVING RESIGNATION FROM OKLAHOMA BAR ASSOCIATION PENDING DISCIPLINARY PROCEEDINGS AND WAIVING COSTS

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 7th day of March, 2016. /s/ John F. Reif CHIEF JUSTICE CONCUR: REIF, C.J., COMBS, V.C.J., KAUGER, EDMONDSON, and GURICH, JJ. DISSENT: WATT, WINCHESTER, TAYLOR (by separate writing), and COLBERT, JJ. TAYLOR, J., joined by Watt, Winchester, and Colbert, JJ., dissenting: In a hearing before this Court on December 12, 2015, the Oklahoma Board of Bar Examiners (whose members are appointed by this Court) unanimously recommended that there be no change in the bar examination testing, composition, grading, or scaling. The Bar Examiners reported to this Court that our bar examination process is clearly in line with national standards. The Deans of all three Oklahoma law schools were present at this hearing, and all three made comments to this Court concerning the bar examination. The consensus was that the Court should await further experience with future bar examinations before taking action, rather than react to the results of one bar examination. The purpose of the bar examination is to screen applicants in such a way as to protect the public and to protect the reputation of the legal profession. The bar examination should not be easy. It should be a rigorous test of legal knowledge and ability. The fact that there was a greater failure rate on the most recent bar Vol. 87 — No. 9 — 3/26/2016

Upon consideration of Complainant Oklahoma Bar Association’s (Bar Association) application for an order approving the Resignation Pending Disciplinary Proceedings executed by Respondent, Fred Bennett Callicoat, the application reveals: (1) Respondent, Fred Bennett Calicoat, OBA #18519, was admitted to membership in the Oklahoma Bar Association on January 10, 2000. His official OBA roster address is 10203 S. Oswego Place, Tulsa, OK 74103. On February 25, 2015, Respondent executed a Diversion Program Agreement. On January 30, 2016, he submitted his affidavit regarding resignation from membership in the Bar Association pending investigation of disciplinary proceedings. (2) Respondent’s affidavit of resignation reflects that he desires to resign and: a) it is freely and voluntarily rendered; b) he is not subject to coercion or duress; c) he is fully aware of the consequences of submitting the resignation; and d) he is aware the resignation is subject to the approval of the Supreme Court. He also intends the effective date of the resignation to be the date and time of its execution and will conduct his affairs accordingly. (3) Respondent’s affidavit states he is aware the Oklahoma Bar Association has investigated specific allegations of professional misconduct to wit: Complaint 1 - Brians’ Grievance Kayce R. Brians alleges neglect of the client’s adversarial bankruptcy proceeding and a failure to earn the $1,500.00 fee paid to Respondent. Following investigation of this grievance, Respondent executed a Diversion Program Agreement.

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(4) While enrolled in the Diversion Program, complaints 2-15 were received by the Office of the General Counsel for the Oklahoma Bar Association and were under investigation. Complaint 2 - Lewis’ Grievance Brenda Lewis alleges that Respondent neglected her bankruptcy case and failed to communicate with her regularly. During the Bar Association’s investigation of this matter, Respondent failed to respond to its requests for information. The investigator and the process server could not locate Respondent until December 1, 2015. Complaint 3 - Johnson’s Grievance Rochelle Johnson alleges that Respondent neglected and abandoned her bankruptcy case, despite receiving a $1,500.00 fee, and failed to communicate with her regularly. During the Bar Association’s investigation of this matter, Respondent failed to respond to its requests for information. The investigator and the process server could not locate Respondent until December 1, 2015. Complaint 4 - Bennett’s Grievance Michael Bennett alleges that Respondent failed to prepare a contract for the sale of Bennett’s land, failed to earn his retainer, and failed to communicate with him. The investigator and the process server could not locate Respondent until December 1, 2015. Complaint 5 - Thornton’s Grievance Byrder Maye Thornton alleges that Respondent neglected and abandoned her bankruptcy case, despite receiving a $1,300.00 fee, and failed to communicate with her regularly. During the Bar Association’s investigation of this matter, Respondent failed to respond to its requests for information. The investigator and the process server could not locate Respondent until December 1, 2015. Complaint 6 - Goins’ Grievance Sean Goins alleges that Respondent neglected and abandoned his bankruptcy case, despite receiving a $1,500.00 fee, and failed to communicate with him regularly. During the Bar Association’s investigation of this matter, Respondent failed to respond to its requests for information. The investigator and the process server could not locate Respondent until December 1, 2015.

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Complaint 7 - Haddox’s Grievance Andrea Haddox alleges that Respondent neglected and abandoned her bankruptcy case, despite receiving a $1,500.00 fee, and failed to communicate with her regularly. During the Bar Association’s investigation of this matter, Respondent failed to respond to its requests for information. The investigator and the process server could not locate Respondent until December 1, 2015. Complaint 8 - Brown’s Grievance John Brown alleges that Respondent neglected and abandoned his civil matter, despite receiving a $1,200.00 fee, and failed to communicate with him regularly. During the Bar Association’s investigation of this matter, Respondent failed to respond to its requests for information. The investigator and the process server could not locate Respondent until December 1, 2015. Complaint 9 - Cooper’s Grievance Paul Cooper alleges that Respondent neglected and abandoned his bankruptcy case, despite receiving a $1,800.00 fee, and failed to communicate with him regularly. During the Bar Association’s investigation of this matter, Respondent failed to respond to its requests for information. The investigator and the process server could not locate Respondent until December 1, 2015. Complaint 10 - Capers’ Grievance Shaeina Capers alleges that Respondent neglected and abandoned her bankruptcy case, despite receiving a $635.00 fee, and failed to communicate with her regularly. During the Bar Association’s investigation of this matter, Respondent failed to respond to its requests for information. Complaint 11 - Barrett’s Grievance Jeanie Barrett alleges that Respondent neglected and abandoned her small claims case, despite receiving a $800.00 fee, and failed to communicate with her regularly. During the Bar Association’s investigation of this matter, Respondent failed to respond to its requests for information. Complaint 12 - Tran’s Grievance Son Tran alleges that Respondent neglected and abandoned the client’s bankruptcy case and appeal of the civil judgment, despite receiving a $4,900.00 fee, and failed to communicate with her regularly. The Bar Association has not completed its investigation of this matter.

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Complaint 13 - Czubkowski’s Grievance Ester Czubkowski alleges that Respondent neglected and abandoned her case, despite receiving a $1,500.00 fee, and failed to communicate with her regularly. The Bar Association has not completed its investigation of this matter. Complaint 14 - Martin’s Grievance Charles Martin alleges that Respondent neglected and abandoned his bankruptcy case, despite receiving a $1,800.00 fee, and failed to communicate with him regularly. The Bar Association has not completed its investigation of this matter. Complaint 15 - Williams’ Grievance Amie Williams alleges that Respondent neglected and abandoned her bankruptcy case, despite receiving a $1,600.00 fee, and failed to communicate with her regularly. The Bar Association has not completed its investigation of this matter. (5) Respondent is aware that the allegations against him would constitute violations of the Rules Governing Disciplinary Proceedings (RGDP), the Oklahoma Rules of Professional Conduct, and his oath as an attorney. (6) Respondent waives any and all rights to contest the allegations. (7) Respondent is aware that, pursuant to Rule 8.1, RGDP, either the approval or disapproval of his resignation is within the discretion of the Supreme Court of Oklahoma. (8) Respondent has agreed to comply with all provisions of Rule 9.1, RGDP, within twenty (20) days following the date of his resignation. (9) Respondent acknowledges and agrees that he may be reinstated to the practice of law only upon full compliance with the conditions and procedures prescribed by Rule 11, RGDP, and that he may make no application for reinstatement prior to the expiration of five years from the effective date of this Order Approving Resignation Pending Disciplinary Proceedings. (10) Respondent acknowledges that, as a result of his conduct, the Client Security Fund may receive claims from his former clients. He agrees that should the Oklahoma Bar Association approve and pay such Client Security

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Fund claims, he will reimburse the fund the principal amounts and the applicable statutory interest prior to the filing of any application for reinstatement. (11) Respondent has surrendered his Bar membership card to the Office of the General Counsel with his resignation. (12) Respondent acknowledges and agrees to cooperate with the Office of the General Counsel in the task of identifying any active client cases wherein documents and files need to be returned or forwarded to new counsel, and in any client case where fees or refunds are owed by Respondent. (13) Respondent acknowledges that the OBA has incurred minimal costs in its investigation of the disciplinary complaints and the OBA is not seeking the reimbursement of any costs at this time. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the name of Fred Bennett Callicoat be stricken from the roll of attorneys. Since resignation pending disciplinary proceedings is tantamount to disbarment, Respondent Callicoat may not make application for reinstatement prior to the expiration of five years from the effective date of this order. Pursuant to Rule 9.1, Respondent shall notify all of his clients having legal business pending with him of his inability to represent them and of the necessity for promptly retaining new counsel. Notification shall be given to these clients within twenty days by certified mail. Repayment to the Client Security Fund for any money expended because of the malfeasance or nonfeasance of the attorney shall be one of the conditions of reinstatement. IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the resignation pending disciplinary proceedings of Respondent Fred Bennett Calicoat is hereby approved. Costs of the proceeding are waived. DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE the 7th day of March, 2016. /s/John F. Reif Chief Justice ALL JUSTICES CONCUR.

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Court of Criminal Appeals Opinions 2016 OK CR 3 MICA ALEXANDER MARTINEZ, Appellant, v. THE STATE OF OKLAHOMA, Appellee. Case No. D-2013-673. March 8, 2016 OPINION LEWIS, JUDGE: ¶1 Mica Alexander Martinez, Appellant, was tried by jury and found guilty of Counts 1 and 2, murder in the first degree, in violation of 21 O.S.Supp.2009, § 701.7(A); and Count 3, assault and battery with a dangerous weapon, in violation of 21 O.S.Supp.2006, § 645, in Comanche County District Court, Case No. CF-2009-473. The jury found two statutory aggravating circumstances1 and sentenced Appellant to death in Counts 1 and 2, and ten (10) years imprisonment in Count 3. The Honorable Mark R. Smith, District Judge, pronounced judgment and sentence accordingly. Mr. Martinez appeals. FACTS ¶2 Carl and Martha “Faye” Miller lived five miles south of Cache, Oklahoma, on State Highway 115 and Woodlawn Road. Around 4:49 a.m. on Monday, October 12, 2009, Ms. Miller called 911 to report shots being fired from a vehicle parked near her residence. She could only describe the vehicle as having its lights on. Ms. Miller asked police to come quickly, saying that “We opened the garage door, and they saw me standing there with the telephone.” Two officers were dispatched to the scene. ¶3 A short time later, another motorist also called 911 to report an abandoned vehicle facing east in the westbound lane of Woodlawn Road at the intersection of Highway 115. The two deputies soon arrived and found the reported vehicle, with no one inside. The keys were still in the vehicle’s ignition and its cabin lights were on. After seeing loose rounds of high-powered ammunition inside, the deputies turned off their vehicle lights and got a shotgun, an assault rifle, and night vision equipment. ¶4 As the deputies scanned the area, they received a third dispatch, to a burglary in progVol. 87 — No. 9 — 3/26/2016

ress at a house just across Highway 115, a few hundred feet from the abandoned vehicle. As they approached the house, deputies heard a struggle. They knocked at the back door and demanded entry. Just before they broke in, Shawn Monk unlatched and opened the door. The deputies found Shawn Monk and the Appellant inside and quickly detained them. ¶5 The kitchen floor where the two men had been fighting was slick with a mixture of blood and water, which was pouring from a broken refrigerator line. Shawn Monk was badly injured with bleeding wounds to his head. Appellant repeatedly said “I’m sorry,” and eventually told the officers that Monk lived at the house. The officers also saw a Winchester .30-30 rifle lying on the kitchen floor. Monk told the deputies the rifle belonged to Appellant. Monk also told the deputies that his parents were injured and needed help. ¶6 Shawn Monk later testified at trial that he had spent Sunday night with his parents, Carl and Faye Miller, and slept in a guest bedroom. He awoke early the following morning to loud noises and voices. He first thought his father might have fallen asleep with the television on. He heard a loud, unfamiliar voice say “Where’s the money, bitch?” A short time later, he heard a voice say “You like my dick in your ass, don’t you?” Monk was now alarmed and got up. The lights in the hallway were turned on. He screamed down the hallway, “What the fuck is going on?” ¶7 Monk then saw a stranger step into the hallway from his parents’ bedroom and walk away from him toward the living room area. He followed the intruder, pausing at his parents’ bedroom long enough to see his mother lying on the bed, face down, her pants around her ankles, still breathing but obviously injured. Appellant was looking in the garage as Mr. Monk stepped into the living room. Appellant attacked him. As the Appellant and Monk fought, Monk pleaded with Appellant to let him get help for his parents. ¶8 Appellant eventually relented and sat down in the floor, saying “I fucked up, I’m sorry. My friends fucked him up,” referring to Carl Miller. Shawn Monk looked in the garage and saw his father lying on the floor, still

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breathing but also obviously injured. Monk also picked up the .30-30 lever action rifle he saw lying on the floor, determined it was unloaded, and called 911. Appellant sat in the floor for a few minutes, then got up and threw a barbell at Shawn Monk, striking the phone he was using to call 911. Appellant then wrestled the rifle from Mr. Monk and gashed his head with several blows from the butt of the rifle. Mr. Monk was still fighting with Appellant when he opened the door and deputies entered the home. ¶9 Emergency responders transported Carl and Faye Miller to local hospitals, where both later died of their injuries. Faye Miller suffered extensive bruising to her face and upper body, arms, inner thighs, and legs. Blunt force head trauma caused bleeding and bruising to her scalp, a subarachnoid hemorrhage, and a large subdural hematoma with midline shift of the brain. She also sustained traumatic injuries to her vagina and anus consistent with forcible sexual assault. Carl Miller’s wounds included blunt force head trauma with several scalp lacerations, a 7 cm skull fracture, subarachnoid hemorrhage, and contusion of the temporal lobe. Mr. Miller also suffered bruising and scraping of his arms. ¶10 Appellant’s father testified that Appellant borrowed his .30-30 Winchester rifle and a box of ammunition and left to go hog hunting early in the morning of October 12, 2009. He learned a few days later that Appellant had been arrested. When Appellant was searched at the crime scene, the deputies recovered Carl Miller’s wallet and a set of keys belonging to Shawn Monk. They also recovered Appellant’s sweatshirt and t-shirt in the Millers’ bedroom. Appellant’s jeans were stained with blood, which was eventually matched to all three victims by DNA comparisons. Carl Miller’s blood was found on Appellant’s shoe. ¶11 Appellant did not testify at trial. In his first written and taped statements to police on the morning of his arrest, he claimed that a friend named D.J. attacked the victims. Police later identified “D.J.” and confirmed his alibi for the morning of the crimes. In a second interview several days after the crimes, Appellant then told investigators the murders were committed by a hitchhiker. ¶12 At trial, defense counsel acknowledged that Appellant had killed the victims, but argued that the unplanned nature of the crimes and 626

Appellant’s intoxication created a reasonable doubt of the element of malice aforethought. Further facts will be discussed in connection with the propositions of error. ANALYSIS ¶13 In Proposition One, Appellant argues that the State’s failure to promptly obtain and test his blood sample for alcohol concentration and subsequent “exploitation” of that failure at trial violated due process. He argues that investigators acted in bad faith by “waiting” more than twelve hours after the crimes before drawing blood, depriving him of exculpatory evidence of voluntary intoxication. Appellant also argues that even absent bad faith, the combination of extreme negligence by investigators in collecting his blood, and its resulting prejudice to his defense, requires reversal. ¶14 Appellant failed to object on this ground at trial, and failed to object to the admission of other evidence of his blood alcohol concentration. We therefore review this claim only for plain error. Simpson v. State, 1994 OK CR 40, ¶ 2, 876 P.2d 690, 692-93. To obtain relief, Appellant must prove a plain or obvious error affected the outcome of the proceeding. Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. Even where plain error is shown, this Court will remedy the error only if it seriously affects the fairness, integrity, or public reputation of the proceedings or represents a miscarriage of justice. Murphy v. State, 2012 OK CR 8, ¶ 18, 281 P.3d 1283, 1290. ¶15 Trial evidence and testimony indicate that Appellant was a problem drinker, and had been drinking on the morning he committed these crimes. Around 3:30 a.m., Appellant had stopped by the home of two friends and asked them to go hog hunting. They testified that Appellant said he had a bottle of rum; that he smelled of alcohol, and was slurring his speech. After borrowing a spotlight, Appellant left their house. He called a third friend around 4:00 a.m., who later testified that Appellant sounded intoxicated on the phone. ¶16 The arresting officer noticed an odor of alcohol when he encountered Appellant at the crime scene. Another investigator confirmed that Appellant smelled of alcohol some two hours later during an interview. Appellant claimed to police that he had been drinking and briefly passed out in his truck before the crimes, but no empty bottles or cans of alcohol were recovered from the vehicle. Appellant

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also presented expert testimony of his alcoholism and his probable level of intoxication during the crimes, citing physical evidence that Appellant had defecated in his pants and attempted to clean himself off near the intersection across from the victims’ house. ¶17 When an investigator first requested that Appellant provide a blood sample, at around 10 a.m. on the morning of his arrest, Appellant refused. Police eventually obtained a warrant for the blood draw, which was executed around 6:35 p.m. The State presented testimony at trial that Appellant’s blood alcohol concentration from this sample showed no detectable alcohol, and that Appellant’s blood alcohol level at the time of the crimes was unknown. ¶18 The preliminary question on plain error review is whether error, an actual violation of law, has plainly or obviously occurred. Murphy, 2012 OK CR 8, ¶ 19, 281 P.3d at 1290. Under Oklahoma law, “[n]o act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition,” 21 O.S.2001, § 153; and “[h]omicide committed with a design to effect death is not the less murder because the perpetrator was in a state of anger or voluntary intoxication at the time.” 21 O.S.2001, § 704. Voluntary intoxication may reduce criminal homicide from first degree murder to second degree murder or first degree manslaughter; but only when the defendant is “so utterly intoxicated, that his mental powers are overcome, rendering it impossible for a defendant to form the specific criminal intent … element of the crime.” Grissom v. State, 2011 OK CR 3, ¶ 38 n.13, 253 P.3d 969, 983 n.13 (quoting McElmurry v. State, 2002 OK CR 40, ¶ 72, 60 P.3d 4, 23). ¶19 The Supreme Court has held that regardless of the good or bad faith of the State and its agents, the prosecution’s suppression or nondisclosure of material exculpatory evidence violates a defendant’s right to due process of law. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed.2d 215 (1963). Official destruction of evidence, when its exculpatory significance is apparent before destruction can also violate due process, when it leaves the defendant unable to “obtain comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984).

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¶20 In Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the Supreme Court held that a different rule would apply where the State destroys or fails to preserve evidence “of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” 488 U.S. at 57, 109 S.Ct. at 337. “Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” 488 U.S. at 58, 109 S.Ct. at 337. ¶21 The Supreme Court in Youngblood reversed a lower court ruling that the State violated the rights of a defendant convicted of child abduction and rape by its destruction or failure to preserve serological samples. 488 U.S. at 54-55, 109 S.Ct. at 335-36. Though the lost evidence might have excluded the appellant as the perpetrator, the Court found police had collected the samples according to usual practice, and the failure to preserve the samples and conduct prompt testing was, at worst, negligent. 488 U.S. at 58, 109 S.Ct. at 337-38. ¶22 In Illinois v. Fisher, 540 U.S. 544, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004), the Supreme Court again reversed a lower court ruling that the State’s destruction of potentially useful evidence violated due process. In Fisher, the defendant filed a discovery motion seeking access to alleged controlled drugs for independent testing. He then absconded and remained at large for ten years. Upon his arrest, he renewed his request for the evidence, which had been destroyed in the meantime according to standard procedure. 540 U.S. at 545-547, 124 S.Ct. at 1200-01. ¶23 At trial, the State presented evidence that four tests on the substance indicated the presence of controlled drugs, and Fisher was convicted. The state appellate court reversed, finding destruction of the remaining evidence violated due process under Youngblood. The state court held the appellant’s pending discovery request put the State on notice of appellant’s desire to access the evidence; and that Youngblood’s bad faith showing was unnecessary where a favorable test was the “only hope of exoneration” and “determinative of the outcome.” 540 U.S. at 548, 124 S.Ct. at 1202. The Supreme Court granted certiorari. ¶24 The Supreme Court held that neither the pending discovery request, nor the “centrality”

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of the evidence to the prosecution’s case or the defendant’s defense, vitiated the showing of bad faith required by Youngblood. The bad faith requirement rested instead on the distinction between material exculpatory (i.e., Brady/Trombetta) evidence and potentially useful (i.e., Youngblood) evidence. Fisher, 540 U.S. at 549, 124 S.Ct. at 1203. Police testing of the substance in Fisher had actually inculpated the defendant; the most he could hope was that another test would exonerate him. The loss of such “potentially useful evidence” was governed by Youngblood’s bad faith destruction rule, not Brady’s stricter suppression rule for material exculpatory evidence. 540 U.S. at 549, 124 S.Ct. at 1203. ¶25 This Court followed Youngblood in Hogan v. State, 1994 OK CR 41, 877 P.2d 1157, rejecting a capital defendant’s claim that the State’s destruction of vials of the victim’s blood violated due process. The defendant claimed testing would have supported his claim that he and the victim smoked marijuana laced with an unknown drug. The Court found that although the State had agreed to perform further testing, the vials previously available for testing had been inadvertently destroyed. Because the defendant in Hogan failed to show bad faith, the Court found no due process violation. Id., 1994 OK CR 41, ¶¶ 17-18, 877 P.2d at 1161. ¶26 In Gilson v. State, 2000 OK CR 14, 8 P.3d 883, the Court rejected a capital defendant’s claim that the State violated due process when it failed to videotape and preserve every interview with several child witnesses, allegedly depriving the defendant of evidence of suggestive interviewing techniques. Id., 2000 OK CR 14, ¶ 51, 8 P.3d at 905. The Court declined to hold that due process “mandate[d] that every interview conducted with a child victim be taped because it may potentially be exculpatory.” 2000 OK CR 14, ¶ 57, 8 P.3d at 906. The defense received either summaries or copies of the available interviews, and was able to explore allegedly suggestive interviewing through crossexamination of the interviewers. Because defendant had not shown that the State acted in bad faith by failing to tape and preserve all interviews, no due process violation occurred. Id. ¶27 Within the context of these controlling principles, we must determine whether the investigators’ failure to obtain and test Appellant’s blood sample for alcohol concentration, closer to the time of the crimes than they did, violated due process of law. Due process does 628

not impose on the State or its agents “an undifferentiated and absolute duty to retain and to preserve all material that might be of conceivable evidentiary significance in a particular prosecution.” Ochoa v. State, 1998 OK CR 41, ¶ 26, 963 P.2d 583, 595 (quoting Youngblood, 488 U.S. at 58, 109 S.Ct. at 337). We therefore reiterate that unless a defendant can show bad faith, the State’s destruction of potentially useful evidence does not constitute a due process violation. ¶28 Investigators here did not destroy blood samples like the officials in Hogan. They simply did not collect and preserve a blood sample within the time that Appellant now speculates could have been helpful. The facts are more comparable to Gilson, where we rejected the claim that police should have recorded and preserved interviews, but did not. Appellant effectively asks us to recognize a new “constitutional duty to collect and preserve” all potentially useful defense evidence. We find no justification for this broader obligation under current state or federal constitutional due process. Ochoa, 1998 OK CR 41, ¶ 26, 963 P.2d at 595 (rejecting a higher standard and finding case controlled by Hogan and Youngblood); United States v. Marrero, 904 F.2d 251, 261 (5th Cir. 1990) (Brady places no obligation on government to conduct defendant’s investigation or assist in the presentation of a defense) ¶29 We also find no evidence of bad faith by investigators, in the sense that collection of Appellant’s blood was “intentionally delayed to gain some tactical advantage” in the prosecution. Youngblood, 488 U.S. at 57, 109 S.Ct. at 337. Appellant himself created some delay when he refused to give a blood sample around 10 a.m. on the morning of his arrest. Even then, it was hardly evident that a test of Appellant’s blood alcohol concentration “would have enabled the defendant to exonerate himself” in these crimes. Id. at 56, 109 S.Ct. at 336. At most, such evidence was “an avenue of investigation that might have led in any number of directions.” Id. at 56 n.*, 109 S.Ct. at 366 n.*. These facts fall considerably short of the bad faith destruction of potentially useful evidence prohibited by Youngblood. ¶30 Finally, even assuming that the failure to promptly collect a blood sample was error, the error did not affect the outcome at trial. The State did not suppress or destroy evidence that Appellant consumed alcohol. Officers testified that Appellant smelled of alcohol that morning; other lay and expert testimony indicated

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that Appellant was an alcoholic who was possibly impaired at the time of the crimes. The countervailing evidence (including the sustained manner of the attacks; the severity and multiplicity of injuries to multiple victims; Appellant’s fabrications, attempts to implicate others, and ability to recall details about the crime scene) strongly indicated that Appellant’s mental powers were not so overcome by intoxication that he was unable to form malice aforethought. ¶31 The State did not deny Appellant had been drinking, but argued that anger, rather than alcoholic oblivion, was the major factor in the crimes. Appellant was able to argue that intoxication and other facts raised a reasonable doubt of malice aforethought; and that that the failure to preserve better intoxication evidence was incompetent or biased police work. “[B]ut the police do not have a constitutional duty to perform any particular tests.” Youngblood, 488 U.S. at 59, 109 S.Ct. at 338. Appellant has therefore failed to show that a plain or obvious error affected the outcome of the trial. Proposition One is denied. ¶32 In Proposition Two, Appellant claims the evidence is insufficient to support his convictions for first degree murder. He admits having unlawfully caused the victims’ deaths, but argues that the evidence fails to show the essential element of malice aforethought. On appeal, this Court reviews the evidence admitted at trial to determine whether, “in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt.” Young v. State, 2000 OK CR 17, ¶¶ 34-35, 12 P.3d 20, 35 (citing Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203). ¶33 Malice aforethought may be “manifested by external circumstances capable of proof.” 21 O.S.Supp.2009, § 701.7. The design to effect death or intent to kill may be inferred from the fact of killing itself, “unless the circumstances raise a reasonable doubt whether such design existed.” 21 O.S.2001, § 702. In the light most favorable to the prosecution, the evidence here shows an unprovoked, early morning attack on the victims in their rural home. Appellant carried his rifle across the road and entered through their garage, probably after seeing they had reported him for shooting nearby. ¶34 He apparently subdued Carl Miller in the garage with several blows, most likely with Vol. 87 — No. 9 — 3/26/2016

the rifle butt, causing large gashes to Miller’s head and internal trauma to his brain. He then followed Faye Miller into the home, beat her head and face severely with his hands or fists, and was sexually assaulting her when he heard Shawn Monk calling out. When he saw Shawn Monk, Appellant immediately attacked him, briefly relented, and eventually bludgeoned and beat Monk until officers arrived. Any rational trier of fact could find beyond a reasonable doubt that Appellant killed the victims with malice aforethought. Proposition Two is denied. ¶35 Proposition Three argues that the trial court committed plain error by admitting irrelevant and unduly prejudicial testimony about the chemical testing of Appellant’s blood. OSBI Criminalist Jerry Carter testified for the State that Appellant’s blood, drawn more than twelve hours after the crimes at 6:35 p.m., tested negative for the presence of drugs and alcohol. Carter also stated that Appellant’s blood might have been free of intoxicants at the time of the crime, but this could not be known from the testing. ¶36 Because Appellant failed to object to the testimony at trial, we again review for plain error, as discussed in Proposition One. Appellant argues that because the sample was obtained more than twelve hours after the crimes, it was not relevant to the issue of Appellant’s intoxication, or its relevance was substantially outweighed by the danger of unfair prejudice. We must first determine whether Appellant can establish a plain or obvious violation of controlling law; here, the rules of relevance in the Oklahoma Evidence Code. ¶37 Relevant evidence is evidence having any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. 12 O.S.2001, § 2401; Taylor v. State, 2011 OK CR 8, ¶ 40, 248 P.3d 362, 375-76. It need not conclusively or directly establish guilt if, when taken with other evidence in the case, it tends to establish a material fact in issue. Id. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or needless presentation of cumulative evidence. Relevancy and materiality of evidence are matters within the sound discretion of the trial court. Grissom, 2011 OK CR 3, ¶ 58, 253 P.3d at 989.

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¶38 Appellant sought to show his intoxication at the time of the crimes through a variety of evidence. He argues the chemical test result was irrelevant, misleading, and unduly prejudicial because its remoteness from the crimes made it impossible to infer his level of intoxication. We find that evidence of the blood test result was relevant to show the State’s overall collection of evidence and investigation which, along with other evidence, tended to establish guilt. Patton v. State, 1998 OK CR 66, ¶¶ 72-74, 973 P.2d 270, 293 (drawing of unknown shoe print obtained from luminol test properly admitted in murder trial to show thorough investigation). Although the test result was not highly probative of Appellant’s intoxication more than twelve hours earlier, this was an issue for cross-examination regarding the weight of the evidence. The evidence did not mislead the jury, and was not unduly prejudicial or cumulative. Appellant has not shown plain or obvious error in the admission of the test result. Proposition Three is denied. ¶39 Appellant argues in Proposition Four that the trial court erred in the admission of photographic evidence. Appellant’s objections to individual photographs at trial were overruled. The trial court’s admission or exclusion of evidence over a timely objection or offer of proof is ordinarily discretionary and will not be reversed on appeal unless clearly erroneous or manifestly unreasonable. Hancock v. State, 2007 OK CR 9, ¶ 72, 155 P.3d 796, 813. An abuse of discretion is a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. C.L.F. v. State, 1999 OK CR 12, ¶ 5, 989 P.2d 945, 946. ¶40 Appellant first argues the admission of a photograph of the homicide victims, taken together as a couple during their lives, was reversible error. He argues the statute authorizing such a photo in a homicide prosecution without balancing its relevance against the potential for unfair prejudice or other countervailing factors violates due process of law. He also argues that the prosecutor denied him a fair trial when he showed the photograph to jurors in opening statement; and that his death sentence must be vacated because this improper evidence was incorporated in the second stage of trial. ¶41 By a 2002 amendment, the Legislature made a live photograph relevant and admissible in a homicide trial when offered “to show the general appearance and condition of the 630

victim while alive.” 12 O.S.2011, § 2403; Stouffer v. State, 2006 OK CR 46, ¶ 101, 147 P.3d 245, 268. The photograph must be “appropriate;” and if its relevance is substantially outweighed by the danger of unfair prejudice or other section 2403 factors, the court may exclude it. Coddington v. State, 2006 OK CR 34, ¶ 56, 142 P.3d 437, 453. ¶42 We rejected almost identical constitutional challenges to section 2403’s photograph rule in Coddington, 2006 OK CR 34, ¶¶ 55-56, 142 P.3d at 452, ultimately finding the trial court’s admission of a photograph of the victim in life was appropriate to show his general appearance; and that the appellant “was not deprived of a fair trial or a fair sentencing proceeding as a result.” Id., 2006 OK CR 34, ¶ 58, 142 P.3d at 453. The photograph here was appropriate and properly admitted under the statute. No relief is warranted. ¶43 Appellant further complains that the prosecutor erroneously showed the challenged photograph to the jury in opening statement, before its identification and admission in evidence. This display apparently passed without objection, waiving all but plain error, as defined above. Without citing earlier authority, the Court disapproved the prosecutor showing items of potential evidence in opening statement in Cheatham v. State, 1995 OK CR 32, ¶ 31, 900 P.2d 414, 424, but did not reverse the conviction. ¶44 Citing Cheatham, the Court again found error in Bell v. State, 2007 OK CR 43, ¶ 13 172 P.3d 622, 627, where the prosecutor’s computer presentation in opening statement included photographs of potential evidence. The error in both cases was harmless, as the evidence was later admitted and its depiction in opening statement was consistent with its content at trial. Neither defendant could show any conceivable prejudice from the prosecutor’s display in opening statement of items later properly admitted in evidence. Cheatham, id.; Bell, id. ¶45 We reach the same conclusion here, because the photograph of the victims shown in opening statement was promptly identified and offered in evidence during trial; its prejudicial impact was negligible in light of the remaining evidence; and its depiction in opening statement was consistent with its content at trial. If the prosecutor’s use of this potential evidence in opening statement could even be termed an error, it is certainly not unfairly prejudicial, and requires no relief.

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¶46 Appellant’s remaining arguments challenge the trial court’s admission of pictures depicting the victims’ respective injuries. The trial court overruled Appellant’s objections to the exhibits, and we review these rulings for abuse of discretion. Photographs may be probative of the nature and location of wounds; may corroborate the testimony of witnesses, including the medical examiner; and may show the nature of the crime scene. Browning v. State, 2006 OK CR 8, ¶ 32, 134 P.3d 816, 837. Gruesome crimes make for gruesome photographs, but the issue is whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or needless presentation of cumulative evidence. Pavatt v. State, 2007 OK CR 19, ¶ 55, 159 P.3d 272, 290. 12 O.S.2001, §§ 2401-2403. ¶47 State’s Exhibit 6 depicted injuries to Shawn Monk’s head and face before it was cleaned, showing a large amount of blood. State’s Exhibits 84-86 depicted injuries to Carl Miller’s head. State’s Exhibit 89 depicts injuries to Faye Miller’s face, while State’s Exhibit 93 depicts injuries to her vagina. Appellant complains that this exhibit was unfairly prejudicial because the opening of the vaginal canal to permit an image of the injuries, and the inclusion of a ruler in the image, was unfairly prejudicial. ¶48 We find no abuse of discretion in the trial court’s admission of these exhibits. All were probative of the disputed issue of Appellant’s intent to kill the victims, corroborative of other lay and expert testimony, and germane to the issues of guilt and punishment. Proposition Four is denied. ¶49 In Proposition Five, Appellant challenges the trial court’s admission of certain testimony over hearsay objections by the defense. The State agrees that the statements in question were hearsay, but claims the testimony was admissible under a hearsay exception or did not rise to the level of plain or obvious error. Appellant first challenges statements attributed to Shawn Monk in the testimony of Deputy Miles. Miles testified that shortly after entering the crime scene and securing Appellant and Shawn Monk that morning, Shawn Monk told him how he was startled awake by loud voices, then heard someone say “Gimme your wallet!” and “You like that, bitch. You like it in the ass.” ¶50 Section 2803(2) of the Evidence Code provides that a statement “relating to a startling event or condition made while the declarVol. 87 — No. 9 — 3/26/2016

ant was under the stress of excitement caused by the startling event or condition” is not excluded by the hearsay rule. 12 O.S.2011, § 2803(2). An excited utterance must meet three foundational requirements: (1) a startling event or condition; (2) a statement relating to that startling event or condition; (3) made while the declarant is under the stress of excitement caused by the startling event or condition. Slaughter v. State, 1997 OK CR 78, ¶ 36, 950 P.2d 839, 852. ¶51 We examine both the timing of the statement and its spontaneity on a case-by-case basis. Marquez v. State, 1995 OK CR 17, ¶ 15, 890 P.2d 980, 984. “Whether a statement qualifies as an excited utterance depends not on a fixed time but on the facts and circumstances.” Williams v. State, 1996 OK CR 16, ¶ 17, 915 P.2d 371, 379. An excited utterance “need not be substantially contemporaneous with the startling event or condition . . . so long as the declarant is under the stress of excitement at the time the statement is made.” Rawlings v. State, 1987 OK CR 135, ¶ 74, 740 P.2d 153, 163. ¶52 Deputy Miles first encountered Shawn Monk when Monk opened the door to the home, and was still partially engaged in the struggle with the Appellant. The deputies entered and briefly secured both Appellant and Shawn Monk in handcuffs, while sweeping the house and trying to locate and assist the injured victims. After the house was secured, Monk was released from restraints. While Monk was still being treated for his head injuries by emergency personnel at the scene, Deputy Miles asked Mr. Monk what had happened, and received the responses related in trial testimony. Considering the timing and circumstances of Monk’s statements to Deputy Miles, made while Monk was still under the evident stress of these startling events, we find these excited utterances were properly admitted. Rawlings, 1987 OK CR 135, ¶ 75, 740 P.2d at 163. ¶53 Appellant also challenges the admission of the autopsy report during testimony from the medical examiner, and the report of a sexual assault nurse examiner concerning examination of Faye Miller. Defense counsel objected at trial that the reports were repetitive and vouching. Appellant waived any objection based on the hearsay rule, and we review only for plain error, as defined above. Myers v. State, 2006 OK CR 12, ¶ 27, 133 P.3d 312, 324 (when trial objection differs from argument on appeal, review is limited to plain error). The State contends that

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while these exhibits were not admissible under the hearsay rule, their admission was not plain error. ¶54 The medical examiner’s report was hearsay, and should not have been admitted absent a pertinent hearsay exception. Cooks v. State, 1985 OK CR 48, ¶ 28, 699 P.2d 653, 659 (1985). However, the report summarized the findings of the medical examiner, who testified at trial. Appellant does not dispute that he killed the victims or question the accuracy of the reports. The hearsay was thus cumulative to proper testimony and caused no prejudice. Appellant’s only argument that he was prejudiced by the sexual assault nurse examiner’s report is that it mentions a dark hair recovered from Faye Miller’s rectal area. Given the undisputed evidence that Appellant sexually assaulted Ms. Miller, this evidence could not have affected the outcome. Cooks, id. (admission of autopsy report was harmless error). Proposition Five requires no relief. ¶55 In Proposition Six, Appellant seeks reversal or modification of his convictions or sentences due to prosecutorial misconduct. Relief will be granted for prosecutorial misconduct only where it effectively deprives the defendant of a fair trial or sentencing. Cuesta-Rodriguez v. State, 2010 OK CR 23, ¶ 96, 241 P.3d 214, 243. We evaluate prosecutorial conduct within the context of the entire trial, considering not only the propriety of the prosecutor’s actions, but also the strength of the evidence and the corresponding arguments of defense counsel. Hanson v. State, 2009 OK CR 13, ¶ 18, 206 P.3d 1020, 1028. ¶56 Appellant first argues the prosecutor committed misconduct in presenting evidence and argument on the issue of intoxication. Appellant limited his objection at trial to the prosecutor’s use of records indicating Appellant’s childhood toileting problems as a possible explanation for Appellant having defecated on himself the morning of the crimes. In this context, we find no reversible error. The prosecutor is an advocate, and may properly seek to minimize evidence presented by the defense, especially on the critical disputed issues in the trial. Warner v. State, 2006 OK CR 40, ¶ 192, 144 P.3d 838, 891. Reviewing the remainder of the prosecutor’s presentation on the issue of intoxication for plain error, we find none. ¶57 Appellant also argues that the prosecutor committed misconduct in second stage by 632

commenting on Appellant’s decision to call his children as mitigation witnesses; saying that Appellant was a bouncer; and arguing Appellant had started bossing people around and bullying at a young age. Appellant failed to object to these comments, waiving all but plain error. Counsel are entitled to liberal freedom of speech in argument. Frederick v. State, 2001 OK CR 34, ¶ 150, 37 P.3d 908, 946. Reversal is required only where grossly improper and unwarranted argument affects a defendant’s rights. Howell v. State, 2006 OK CR 28, ¶ 11, 138 P.3d 549, 556. ¶58 The prosecutor’s comments regarding the position in which Appellant had placed his children by calling them as witnesses urged the jury to avoid a purely emotional reaction to the mitigation evidence, and did not exceed the bounds of proper argument. The remaining arguments were fair comments on the evidence and the appropriateness of the death sentence. Appellant has not shown any plain or obvious error that affected the outcome of the trial in the prosecutor’s conduct. Proposition Six is denied. ¶59 In Proposition Seven, Appellant argues that testimony about his use of racial epithets during a fight violated his constitutional right to freedom of speech and denied him a fair sentencing proceeding. In the sentencing phase of trial, Appellant’s former girlfriend testified that while she was with Appellant one night, he jumped from the car and got into a fight with two African American men. When he returned to the car, Appellant explained to her that “those two n***ers said they were going to rape you.” ¶60 After this testimony, defense counsel moved for a mistrial, noting that two African Americans were on the jury. The trial court overruled the motion and instead admonished the jury to disregard “any racial comments that were just made.” Appellant first argues that the racial comments were an evidentiary harpoon. We disagree. An evidentiary harpoon occurs when an experienced police officer makes a voluntary, willfully jabbed statement injecting other crimes, which is both calculated to prejudice, and actually prejudicial to, the rights of the defendant. Robinson v. State 1995 OK CR 25, ¶ 47, 900 P.2d 389, 402-3. The witness here was not a professional witness, and did not inject inadmissible evidence of other crimes. Most importantly, the trial court’s prompt admonition cured any error from this fleeting remark. Smith v. State, 2013 OK CR 14, ¶ 38, 306 P.3d

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557, 571 (absent contrary evidence, admonition cures evidentiary error). ¶61 Appellant next argues that this testimony violated his First and Fourteenth Amendment rights. He relies on Dawson v. Delaware, 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992), where the Supreme Court held the admission of capital sentencing evidence that defendant belonged to the Aryan Brotherhood, where such evidence had “no relevance to the issues being decided in the proceeding,” was constitutional error. 503 U.S. at 160, 112 S.Ct. at 1095. The evidence in Dawson, though not inadmissible per se, id. at 165, 112 S.Ct. at 1097, was irrelevant because the victim and defendant were both white; the evidence contained no link between gang membership and the crime; and it proved nothing more than the defendant’s abstract beliefs. Id. at 166-67, 112 S.Ct. at 1098. ¶62 We find no violation of Dawson. The Constitution erects no “per se barrier to the admission of evidence concerning one’s beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment.” 503 U.S. at 165, 112 S.Ct. at 1097. The Dawson Court acknowledged that such evidence “might serve a legitimate purpose in showing that a defendant represents a future danger to society,” because a belief or association “that endorses the killing of any identifiable group, for example, might be relevant to . . . whether the defendant will be dangerous in the future.” Id. at 166, 112 S.Ct. at 1098. The evidence challenged in Dawson was presented by a stipulation and, in the Supreme Court’s view, “employed simply because the jury would find . . . [it] morally reprehensible.” Id. at 167, 112 S.Ct. at 1098. ¶63 By contrast, Appellant’s use of racist language in this case was unexpectedly interjected by a lay witness, and the jury was immediately instructed to disregard it. The State maintained no link between this evidence and the murders or aggravating factors; it was not unconstitutionally “employed” at all. Though Appellant’s racially motivated violence was arguably relevant to the continuing threat aggravating circumstance, the jury rejected that circumstance. We find no violation of Appellant’s free speech rights under Dawson; and the evidentiary error, if any, was cured by the trial court’s instruction. Proposition Seven is therefore denied. Vol. 87 — No. 9 — 3/26/2016

¶64 Proposition Eight argues that the death sentences must be reversed or modified due to admission of improper victim impact evidence by the victims’ two daughters. He also argues that victim impact testimony generally operates as a unconstitutional “super aggravator.” Appellant’s failure to object to the testimony at trial on these grounds waived all but plain error. Simpson, 1994 OK CR 40, ¶ 2, 876 P.2d at 692-93. We therefore initially consider whether any plain or obvious violation of law occurred in the admission of this testimony. Murphy, 2012 OK CR 8, ¶ 18, 281 P.3d at 1290. ¶65 Evidence about the victim, physical effects of the crime, the circumstances surrounding the crime and the manner in which it was perpetrated, and the financial, emotional, psychological, and physical impact of the murder on the victims’ family is admissible in capital sentencing. 21 O.S.2001, § 701.10(C); 22 O.S.2001, § 984; Cuesta-Rodriguez, 2010 OK CR 23, ¶ 68, 241 P.3d at 236. Appellant complains that the victims’ testimony here improperly emphasized the crimes’ impact on their emotional lives, including evidence that the trauma had been responsible for weight gain, high blood pressure, diabetes, insomnia, and additional medications. ¶66 We rejected an almost identical challenge in Cuesta-Rodriguez, where the defendant contended that the victim impact testimony “focused exclusively on the emotional and psychological impact of the loss of their mother and was therefore too emotionally charged to be admissible.” 2010 OK CR 23at ¶ 66, 241 P.3d at 236. The victims in Cuesta-Rodriguez testified of nightmares reliving the scene of the murder; the difficulty of telling children about the crime; of facing holidays, pregnancy, and motherhood without their mother. We see no significant difference in either the scope or magnitude of the testimony given in that case and the type of evidence offered here. We have also previously rejected the broader claim that victim impact testimony is an impermissible super-aggravator, and do so again. CuestaRodriguez, 2010 OK CR 23, ¶ 71, 241 P.3d at 236 (citing cases). Appellant has not shown a plain or obvious violation of state or federal law in the admission of this evidence. Proposition Eight is denied. ¶67 We also reject Appellant’s claim, in Proposition Nine, that the especially heinous, atrocious, or cruel aggravating circumstance is unconstitutionally vague and overbroad. The

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current uniform instructions defining this aggravating circumstance are sufficient to meaningfully narrow the sentencing jury’s discretion. Cuesta-Rodriguez, 2010 OK CR 23, ¶ 80, 241 P.3d at 238-39. Appellant also challenges the sufficiency of the evidence to show the murders were especially heinous, atrocious, and cruel. This Court reviews the record to determine whether the evidence, considered in the light most favorable to the State, was sufficient for a rational trier of fact to find the aggravating circumstance beyond a reasonable doubt. Magnan v. State, 2009 OKCR 16, ¶ 29, 207 P.3d 397, 407. ¶68 To support this aggravating circumstance the State must prove beyond a reasonable doubt that the defendant inflicted either torture, including great physical anguish or extreme mental cruelty, or serious physical abuse, and that, for great physical anguish or serious physical abuse, the victim experienced conscious physical suffering before death. DeRosa v. State, 2004 OK CR 19, ¶ 96, 89 P.3d 1124, 1156. ¶69 Appellant carried out these fatal attacks over approximately forty minutes. Shortly after Faye Miller thought someone in the suspicious vehicle had seen her making the 911 call at 4:49 a.m., Appellant crossed the road carrying his rifle and trapped the Millers inside their garage. The presence of one of Carl Miller’s house slippers just outside the garage indicates that the victims sought to escape after Appellant surprised them. ¶70 The attack on Carl Miller involved repeated blows from the rifle butt, which lacerated and fractured his skull. He suffered bruises and scrapes consistent with conscious movement during the attack and attempts to defend himself. He struck his head at some point against the rear tire of a car in the garage, but was found lying against the garage door some distance away. Mr. Miller was still partially conscious when officers found him, but could not speak as a result of his injuries. He appeared to be in pain. ¶71 Appellant severely beat and sexually assaulted Faye Miller in her own bedroom. She was found with her legs on the floor, lying face down across the bed, unconscious but still breathing. In addition to massive head trauma, Faye Miller had injuries to her hands, arms, and legs, indicating she tried to resist the attack. Shawn Monk heard Appellant demand 634

money from Ms. Miller and sexually humiliate her. ¶72 The Millers endured a horrifying early morning invasion of their rural home before police officers could arrive to help them. The sustained manner of these attacks permits the inference that Appellant pursued the victims and viciously pounded them, one by one, into submission, and ultimately, death. Counsel for the Appellant in his brief concedes that “the Millers suffered unspeakably brutal and horrific deaths.” In the light most favorable to the State, the evidence is sufficient for any rational jury to find beyond a reasonable doubt that the victims endured torture and serious physical abuse before their deaths. Proposition Nine is therefore denied. ¶73 In Proposition Ten, Appellant argues that the trial court and the prosecutor diminished the burden of proof by defining the concept of reasonable doubt. As Appellant failed to object to either of the challenged comments, we review only for plain error. Simpson, 1994 OK CR 40, ¶ 2, 876 P.2d at 692-93. During voir dire examination, the trial court told jurors: You’ll watch a lot of TV shows where they want to talk to you about the state has to prove their case beyond a reasonable doubt. That’s not the burden of proof. It’s not beyond a shadow of a doubt; it’s beyond a reasonable doubt. And that burden of proof goes to the elements only. The prosecutor in voir dire also referenced what Appellant terms a “supposed distinction” between a shadow of a doubt and a reasonable doubt, and referred to the presumption of innocence as “one of those buzz words that you hear on TV shows.” ¶74 Our preliminary inquiry is whether these challenged comments were a plain or obvious violation of law. Murphy, 2012 OK CR 8, ¶ 18, 281 P.3d at 1290. The Court has long disapproved of attempts by the trial court or counsel to define reasonable doubt for the jury. Cuesta-Rodriguez, 2010 OK CR 23, ¶ 62, n.13, 241 P.3d at 234 n.13 (citing cases). However, distinguishing the applicable burden of proof from popular misconceptions is not an improper attempt to define or diminish the reasonable doubt standard. Taylor v. State, 2011 OK CR 8, ¶ 47, 248 P.3d 362, 377 (citing Myers v. State, 2006 OK CR 12, ¶ 57, 133 P.3d 312, 329)(comments contrasting “shadow of a doubt” and other phrases with applicable standard did not violate

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prohibition against defining reasonable doubt). The court and counsel may “attempt to dispel commonly held attitudes concerning the definition of reasonable doubt.” Id. Appellant has shown no plain or obvious error in the challenged comments. Proposition Ten is denied. ¶75 In Proposition Eleven, Appellant claims the deficient performance of his trial attorneys violated his right to the assistance of counsel under the Sixth and Fourteenth Amendments and Article II, section 20 of the Oklahoma Constitution. We address this proposition by applying the familiar test required by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To prevail, Appellant must show that counsel’s performance was deficient, and that the deficient performance deprived him of a fair trial with a reliable result. Fisher v. State, 2009 OK CR 12, ¶ 7, 206 P.3d 607, 609; Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003). ¶76 Counsel’s performance is measured by an objective standard of reasonableness under prevailing professional norms. Harris v. State, 2007 OK CR 28, ¶ 29, 164 P.3d 1103, 1114; Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360 (2005). We consider counsels’ choices from their perspective at the time, and give great deference to counsels’ decisions. Rompilla, 545 U.S. at 380-81, 125 S.Ct. at 2462; Wiggins, 539 U.S. at 523, 123 S.Ct. at 2536. We presume counsels’ conduct is professional and their actions are the product of a reasonable trial strategy. Harris, 2007 OK CR 28, ¶ 29, 164 P.3d at 1115. ¶77 Appellant must also show a reasonable probability that, but for counsel’s deficient performance, the outcome of the trial would have been different. Littlejohn v. State, 2008 OK CR 12, ¶ 27, 181 P.3d 736, 745. A reasonable probability is one sufficient to undermine confidence in the outcome. Fisher, 2009 OK CR 12, ¶ 7, 206 P.3d at 609. If a claim of ineffectiveness can be resolved on the ground of lack of sufficient prejudice, we will follow that course. Bland v. State, 2000 OK CR 11, ¶ 113, 4 P.3d 702, 731. ¶78 Appellant first contends that counsel rendered unreasonably deficient performance in waiving the voluntary intoxication instructions.2 The record reflects that counsels’ waiver of these instructions was a strategic decision, with which Appellant agreed after consultation. In declining the instruction, which counVol. 87 — No. 9 — 3/26/2016

sel assumed Appellant would be entitled to because of the evidence of his intoxication, trial counsel explained their concern that under the voluntary intoxication instruction: [I]f it hasn’t been proven to them by the defendant that he was incapable of forming, in this case, malice aforethought, then malice aforethought exists. ¶79 Counsel acknowledged that the instruction placed no burden on them to prove intoxication, but further stated that: In a case where we have what we believe is significant evidence of a lack of malice outside of the intoxication, we don’t want to run the risk that we can confuse the jury and essentially cause them to shift the burden to the defense side (emphasis added). In Grissom, supra, defense counsel opted to concede guilt on the charge of first degree murder and focus the entire defense on the penalty phase. There, the Court held that: [w]here the defendant makes admissions by counsel during trial that render every defense unavailable save one, he is deemed to have elected that defense; and may, by his election, foreclose the submission of instructions on other theories of defense or lesser-included offenses inconsistent with his defense. 2011 OK CR 3, ¶ 35, 253 P.3d at 982. ¶80 The decision to waive particular jury instructions is analogous to other “classic example[s] of strategic trial judgment for which Strickland requires that judicial scrutiny be highly deferential.” Malone v. State, 2013 OK CR 1, ¶ 18, 293 P.3d 198, 207 (waiver of jury in capital sentencing trial). To violate the Sixth Amendment guarantee, counsel’s tactical judgment or advice must have been completely unreasonable, not merely wrong, so that it bore “no relationship to a possible defense strategy.” Id. (quotations and citation omitted). Indeed, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. ¶81 Although appellate counsel argues that defense counsel “meticulously set up a defense of voluntary intoxication,” then unreasonably abandoned it by declining the relevant instructions, this argument mischaracterizes counsel’s trial strategy. On Appellant’s behalf, trial coun-

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sel acknowledged to the jury that Appellant had killed the Millers unlawfully and assaulted Shawn Monk with a dangerous weapon. Defense counsel, with Appellant’s express consent, sought convictions of second degree murder in the killings. Consistent with this strategy, counsel elicited evidence during the trial, and urged the jury in the first stage closing argument to consider, a range of facts indicating Appellant’s lack of premeditation.3 ¶82 Despite its marginal chances of success, defense counsel advanced a thoughtful argument for convicting Appellant of lesser included offenses, presenting jurors with reasons to doubt the element of malice aforethought that were not entirely dependent on the relatively weak intoxication evidence. Counsels’ tactical recommendation that Appellant decline the intoxication instructions was reasonable and bore a visible relationship to the overall defense strategy. This argument fails. ¶83 Appellant also argues that counsel were ineffective for failing to raise the due process challenge in Proposition One, failing to object to the chemical blood test results and related testimony, and failing to request a negative inference instruction regarding the lost evidence. Our resolution of the related propositions also forecloses these claims of ineffectiveness. In Proposition One, we found no due process violation in the State’s failure to collect and preserve an earlier blood sample for testing. Reviewing the admission of the blood test result and related testimony in Proposition Three, the Court found no plain or obvious error. Any objection to this evidence at trial would have been properly overruled, and a negative inference instruction would have been properly denied. Cuesta Rodriguez v. State, 2010 OK CR 23, ¶ 61, 241 P.3d at 234 (absent bad faith by police, negative inference instruction on destruction of evidence is improper). These omissions by counsel cannot satisfy either the deficient performance or prejudice standards of Strickland. Mitchell v. State, 2011 OK CR 26, ¶ 144, 270 P.3d 160, 191. We reach the same conclusion regarding trial counsel’s failure to preserve the alleged errors raised in other propositions. As Appellant has shown neither unreasonably deficient performance, nor that such performance creates a reasonable probability of a different outcome at trial, Proposition Eleven is denied. ¶84 Proposition Twelve argues the accumulation of errors in this case warrants reversal or 636

modification of the sentence. When numerous irregularities during the trial tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors is to deny the defendant a fair trial. Warner v. State, 2006 OK CR 40, ¶ 223, 144 P.3d 838, 896. However, such an argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Id. ¶85 The Court found minor errors in the prosecutor’s use of exhibits during opening statement, the admission of hearsay evidence from reports, and testimony concerning the racial remarks by the Appellant. Some of these errors were cured by the trial court’s instructions or by the admission of proper evidence, and none of the individual errors unfairly prejudiced the Appellant or contributed to an arbitrary or unreliable result in either stage of the trial. Considering the potential cumulative effect of these errors on the fairness of the proceedings and the reliability of the results, we find Proposition Twelve requires no relief. ¶86 This Court must determine in every capital case: (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and (2) whether the evidence supports the jury’s finding of the aggravating circumstances. 21 O.S.2001, § 701.13(C). The jury’s findings of the aggravating circumstances are factually supported. 21 O.S.2001, §§ 701.12(2), (4). Appellant presented substantial evidence of mitigating circumstances for the jury to weigh against the evidence of aggravation. The Court finds that the jury was not improperly influenced by passion, prejudice, or any other arbitrary factor in its determinations of guilt or sentence. The sentences of death are factually substantiated and appropriate. DECISION ¶87 The Judgment and Sentence of the District Court of Comanche County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon the delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF COMANCHE COUNTY THE HONORABLE MARK R. SMITH, DISTRICT JUDGE APPEARANCES AT TRIAL

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Craig Corgan, Perry Hudson, 1315 N. Shartel, Oklahoma City, OK 73103, Attorneys for Defendant Eddie Valdez, Mark Stoneman, Asst. District Attorneys, County Courthouse, Lawton, OK 73501, Attorneys for the State APPEARANCES ON APPEAL James H. Lockard, William H. Luker, P.O. Box 926, Norman, OK 73070-0926, Attorneys for Appellant E. Scott Pruitt, Attorney General, Jennifer L. Crabb, Asst. Attorney General, 313 N.E. 21st St., Oklahoma City, OK 73105, Attorneys for Appellee OPINION BY LEWIS, J. SMITH, P.J.: CONCURS LUMPKIN, V.P.J.: CONCURS IN RESULT JOHNSON, J.: CONCURS HUDSON, J.: CONCURS LEWIS, JUDGE: 1. The defendant knowingly created a great risk of death to more than one person; and the murders were especially heinous, atrocious, or cruel. 21 O.S.2001, §§ 701.12(2), (4). 2. The uniform jury instructions on voluntary intoxication include OUJI-CR(2d) Instructions Nos. 8-35 to 8-39. Instruction No. 8-36, as relevant here, provides that: A person is entitled to the defense of intoxication if that person was incapable of forming the specific criminal intent of malice aforethought because of his intoxication. Instruction No. 8-38, as relevant here, would read: It is the burden of the State to prove beyond a reasonable doubt that the defendant formed the specific criminal intent of malice aforethought. If you find that the State has failed to sustain that burden, by reason of the intoxication of [the Defendant], then [Defendant] must be found not guilty of first degree murder. You may find [Defendant] guilty of [second degree murder], if the State has proved beyond a reasonable doubt each element of the crime of [second degree murder]. Instruction No. 8-39 defines intoxication as a “state in which a person is under the influence of an intoxicating liquor/drug/substance to such an extent that his/her (passions are visibly excited)/ (judgment is impaired).” 3. Counsel elicited testimony and argued at trial that Appellant was drunk; he had drawn attention to himself by shooting his rifle from the road; his car was broken down and parked in the wrong lane; he had not loaded his rifle or shot the victims, though he could have; he had left the victims alive, and allowed Shawn Monk to call for help. Appellate counsel reiterated most of these themes in his challenge to the sufficiency of the evidence to prove malice aforethought.

2016 OK CR 4 WILLIAM TODD LEWALLEN, Appellant, v. THE STATE OF OKLAHOMA, Appellee. Case No. F-2014-1063. March 11, 2016 SUMMARY OPINION HUDSON, JUDGE: ¶1 Appellant William Todd Lewallen was tried by jury and convicted of Child Neglect, After Former Conviction of Two or More FeloVol. 87 — No. 9 — 3/26/2016

nies, in violation of 21 O.S.2011, § 843.5(C), in the District Court of Tulsa County, Case No. CF-2012-5174. The jury assessed punishment at twenty-three (23) years imprisonment. The Honorable Mark Barcus, District Judge, sentenced accordingly.1 Lewallen appeals, raising the following issues: (1)  whether the district court erroneously instructed the jury on the range of punishment for child neglect after former conviction of two or more felonies; (2)  whether the evidence was sufficient to support his conviction for child neglect; (3) whether improper expert opinion invaded the province of the jury and denied him a fair trial; (4) whether the district court erred in refusing defense counsel’s request for an instruction on the offense of child endangerment; and (5) whether he received the effective assistance of counsel. ¶2 After thorough consideration of these propositions, and the entire record before us on appeal, including the original record, transcripts, exhibits and briefs of the parties, we AFFIRM Lewallen’s conviction. However, finding merit with Lewallen’s first proposition of error, we VACATE the sentence and REMAND this matter for RESENTENCING. 1. ¶3 Lewallen contends the trial court erroneously instructed the jury on the range of punishment for child neglect after former conviction of two or more felonies. For the reasons set forth below, we agree. The jury was incorrectly instructed pursuant to 21 O.S.2011, § 51.1(B) that the range of punishment was 20 years to life imprisonment. Although Lewallen failed to timely object, this error constitutes plain error which requires Lewallen’s sentence be vacated and the case remanded for resentencing with proper instructions on the range of punishment. See Scott v. State, 1991 OK CR 31, ¶ 14, 808 P.2d 73, 77 (in a non-capital case where the Court has determined that a sentence is infirm due to trial error it may exercise one of three options: modify within the range of punishment, modify to the minimum punishment allowable by law, or remand to the trial court for resentencing); 22 O.S.2011, § 1066.

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¶4 When a defendant with two or more felony convictions is convicted of an offense enumerated in 57 O.S.2011, § 571, his punishment range is 20 years to life. 21 O.S.2011, § 51.1(B). If the conviction is for an offense not listed in § 571, and the offense does not carry a minimum sentence for a first offense, the range of punishment is 4 years to life. 21 O.S.2011, § 51.1(C). While child abuse is an enumerated offense under § 571,2 child neglect is not. The State asserts that the definition of child abuse includes neglect, and accordingly, the inclusion of child abuse in § 571 automatically encompasses child neglect. The Court’s resolution of this issue in unpublished cases has been inconsistent — both accepting and rejecting the State’s assertion.3 A definitive resolution of this issue is necessary to rectify the confusion created by these cases. ¶5 At the time of Lewallen’s offense, the definition of “child abuse” as provided within 21 O.S.2011, § 843.5(A) specifically referenced the definition of “abuse” set forth in 10A O.S.Supp.2012, §§ 1-1-105(2) of the Oklahoma Children’s Code. This definition contains the phrase “harm or threatened harm.” Id. “Harm” is defined in subsection 1-1-105(2)(a) and includes the term “neglect.” It is the inclusion of the word “neglect” within this definition that provides the basis for the State’s argument. ¶6 “[T]o ascertain the intention[s] of the Legislature . . . , we may look to each part of the statute, to other statutes upon the same or relative subjects, to the evils and mischiefs to be remedied, and to the natural or absurd consequences of any particular interpretation.” State ex rel. Mashburn v. Stice, 2012 OK CR 14, ¶ 11, 288 P.3d 247, 250 (citing Lozoya v. State, 1996 OK CR 55, ¶ 20, 932 P.2d 22, 28). “Each part of the various statutes must be given intelligent effect.” Id. ¶7 The relevant statutes which must be evaluated and balanced in this matter are 21 O.S.2011, § 843.5 and 57 O.S.2011, § 571. Pursuant to 21 O.S.2011, §§ 843.5(A) and (C), child abuse and child neglect are separate and distinct criminal offenses. Simply, each offense is defined differently. As previously noted, child abuse was defined by 10A O.S.Supp.2012, § 1-1-105(2)4 at the time of Lewallen’s offense. On the other hand, the crime of child neglect was defined by 10A O.S.Supp.2012, § 1-1-105(47).5 By definition both offenses include a failure to protect component. However, the protection component of child neglect is strictly limited to 638

protecting a child from exposure to drugs, illegal activities or sexual acts. 21 O.S.2011, § 843.5(C); 10A O.S.Supp.2012, § 1-1-105(47). Hence, while some instances of child neglect could amount to child abuse, not every case of neglect is encompassed within child abuse. Indeed, in light of the definitional restrictions set forth in § 1-1-105(47), it is a stretch to say that even a bare majority of the instances of child abuse would amount to child neglect or vice versa. Thus, the Legislature clearly intended to create two separate criminal offenses. Lumping the two offenses together with regard to § 571 ignores the distinct delineation between the two offenses. ¶8 Had the Legislature intended for both offenses to be designated as a “violent crime” pursuant to § 571, it would have specifically designated both offenses as such in § 571. To find otherwise fails to give “intelligent effect” to each part of the relevant statutes. See Stice, 2012 OK CR 14, ¶ 11, 288 P.3d at 250. Thus, finding the jury was incorrectly instructed pursuant to 21 O.S.2011, § 51.1(B), Lewallen’s sentence should be vacated and the case remanded for resentencing with proper instructions on the range of punishment — 4 years to life. 2. ¶9 After reviewing the evidence in the light most favorable to the State, we find that any rational trier of fact could find beyond a reasonable doubt that Lewallen was guilty of child neglect based on the evidence presented at trial. See Logsdon v. State, 2010 OK CR 7, ¶ 5, 231 P.3d 1156, 1161; Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-204. The evidence was sufficient to sustain Lewallen’s conviction. 3. ¶10 We reject Lewallen’s claim that he was denied a fair trial by admission of improper expert opinion from a pediatrician who examined the victims for abuse and neglect. The medical expert was qualified based on her training and experience to testify on the subject of child neglect. 12 O.S.Supp.2013, § 2702. Her testimony was helpful and admissible to assist the jury in its determination of the issues at trial. See Coddington v. State, 2006 OK CR 34, ¶ 41, 142 P.3d 437, 449 (“Any properly qualified expert testifying in accordance with the standards governing admissibility of expert testimony may offer an opinion on the ultimate issue if it would assist the trier of fact.”) (quot-

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ing Johnson v. State, 2004 OK CR 25, ¶ 16, 95 P.3d 1099, 1104). 4. ¶11 We find that the trial court did not abuse its discretion in denying Lewallen’s requested jury instruction on the offense of child endangerment because the evidence did not support this instruction. Jones v. State, 2006 OK CR 17, ¶ 6, 134 P.3d 150, 154; Shrum v. State, 1999 OK CR 41, ¶ 9, 991 P.2d 1032, 1036 (a lesser offense instruction should not be given unless the evidence would support a conviction for the lesser offense). 5. ¶12 Lewallen’s final claim of ineffective assistance of counsel has been rendered moot by this Court’s finding of error in proposition one, which dictates Lewallen’s sentence be vacated and the case remanded for resentencing. DECISION ¶13 The Judgment is AFFIRMED, but the Sentence is VACATED and the cause REMANDED to the District Court for RESENTENCING consistent with this Opinion. Lewallen’s request for oral argument is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015), the MANDATE is ORDERED issued upon delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE MARK BARCUS, DISTRICT JUDGE APPEARANCES AT TRIAL Charles Sullivan, Sara Garrett, Assistant Public Defenders, 423 S. Boulder, Suite 300, Tulsa, OK 74103, Attorneys for Defendant Kevin Gray, Assistant District Attorney, 500 S. Denver, Tulsa, OK 74103, Attorney for State APPEARANCES ON APPEAL Stuart W. Southerland, Assistant Public Defender, 423 S. Boulder, Suite 300, Tulsa, OK 74103, Attorney for Appellant E. Scott Pruitt, Oklahoma Attorney General, Matthew L. Warren, Assitant Attorney General, 313 N.E. 21st Street, Oklahoma City, OK 73105, Attorneys for Appellee OPINION BY: HUDSON, J.

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SMITH, P.J.: CONCURS IN PART/ DISSENTS IN PART LUMPKIN, V.P.J.: CONCURS JOHNSON, J.: CONCURS IN PART/ DISSENTS IN PART LEWIS, J.: CONCURS JOHNSON, J., CONCURRING IN PART AND DISSENTING IN PART: ¶1 The majority concludes, and I agree, that Lewallen’s Judgment should be affirmed. I cannot agree, however, with the majority’s conclusion that error raised in Proposition 1 requires the case be remanded for resentencing. I would reject Lewallen’s claim that the district court erroneously instructed the jury on the range of punishment for child neglect after former conviction of two or more felonies. When a defendant with two or more felony convictions is convicted of an offense enumerated in 57 O.S.2011, § 571, his punishment range is twenty years to life. 21 O.S.2011, § 51.1(B). Child abuse is an enumerated offense under § 571. 57 O.S.2011, § 571(2)(w). “Abuse” is defined, in pertinent part, as “harm or threatened harm or failure to protect from harm or threatened harm to the health, safety, or welfare of a child[.]” 10A O.S.Supp.2012, § 1-1105(2). “Harm or threatened harm to the health or safety of a child” is further defined as “any real or threatened physical, mental, or emotional injury or damage to the body or mind that is not accidental including but not limited to sexual abuse, sexual exploitation, neglect, or dependency.” Id. § 1-1-105(2)(a) (emphasis added). In other words, “neglect” is explicitly included in the definition of “harm or threatened harm to the health or safety of a child,” a phrase used to define “child abuse.” The inclusion of child abuse in § 571, therefore, automatically encompasses child neglect. The district court properly instructed the jury on the range of punishment under 21 O.S.2011, § 51.1(B). I would find, therefore, that because the jury instructions, as a whole, fairly and accurately stated the applicable law in effect at the time the crime was committed there was no abuse of discretion. See Hicks v. State, 2003 OK CR 10, ¶ 3, 70 P.3d 882, 883. ¶2 I am authorized to state that Judge Smith joins this opinion. 1. Under 21 O.S.2011, § 13.1, Lewallen must serve 85% of the sentence imposed before he is eligible for parole. 2. 57 O.S.2011, § 571(2)(w). 3. See Littleraven v. State, No. C-2014-0693 (Okl.Cr. July 9, 2015) (Unpublished) (Petitioner who entered guilty plea to child neglect after former conviction of two or more felonies was allowed to with-

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draw his guilty plea after being advised that the range of punishment was 20 years to life because child neglect is not a specifically enumerated crime under 57 O.S.2011, § 571); Cole v. State, No. F-2013-0813 (Okl. Cr. Oct. 29, 2014) (Unpublished) (inclusion of child abuse in § 571 encompasses child neglect); Jackson v. State, No. F-2013-0833 (Okl.Cr. Oct. 1, 2014) (Unpublished) (same). 4. Effective May 9, 2014, the Legislature amended Title 21, Section 843.5(A) wholly defining “child abuse” within the subsection and removing its reference to Title 10A, § 1-1-105(2) for the definition. Notably, “neglect” is not included within this definition. 5. The current version of Title 21, Section 843.5(C) — child neglect — still references § 1-1-105 for the definition of “child neglect.”

2016 OK CR 5 JERMAINE JACKSON, Appellant, v. THE STATE OF OKLAHOMA, Appellee. Case No. F-2014-627. March 15, 2016 OPINION HUDSON, JUDGE: ¶1 Appellant Jermaine Jackson was tried by jury in the District Court of Tulsa County, Case No. CF-2012-4007, and convicted of two counts of First Degree Malice Aforethought Murder, in violation of 21 O.S.2011, § 701.7(A).1 The jury assessed punishment at life imprisonment with the possibility of parole for both counts. The Honorable William Musseman, District Judge, pronounced judgment and sentence accordingly and ordered that the sentences be served consecutively.2 Jackson now appeals raising the following issues: I. THE TRIAL COURT COMMITTED PLAIN ERROR BY INCLUDING WITHIN THE DEFINITION AND EXPLANATION OF MALICE AFORETHOUGHT IN JURY INSTRUCTION NO. 31 THE LAST PARAGRAPH OF INSTRUCTION NO. 4-62, OUJI-CR(2d) WHICH INSTRUCTED ON TRANSFERRED INTENT; and II. THE APPELLANT WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL. ¶2 After thorough consideration of these propositions, and the entire record before us on appeal, including the original record, transcripts, exhibits and briefs of the parties, we AFFIRM the Judgment and Sentence. I. ¶3 Appellant contends the trial court committed plain error when it instructed the jury on the doctrine of transferred intent with regard to his Count II charge of malice murder. Appellant asserts the State failed to specify in the Information that Appellant’s intent to kill Mr. White could transfer to the killing of Mr. 640

Thorsson. As a result, Appellant argues he was unfairly convicted in Count II based on the “un-charged theory of transferred intent” without proper notice. ¶4 Appellant failed to object to either the sufficiency of the Information or the court’s instructions to the jury. Appellant has therefore waived on appeal all but plain error review. See Short v. State, 1999 OK CR 15, ¶ 48, 980 P.2d 1081, 1098 (instructional error claim reviewed for plain error only as no objection was raised at trial); Conover v. State, 1997 OK CR 6, ¶ 10, 933 P.2d 904, 909 (sufficiency of the Information challenge reviewed for plain error only as defendant failed to object to the Information at trial). “To be entitled to relief under the plain error doctrine, Appellant must prove: 1) the existence of an actual error (i.e., deviation from a legal rule); 2) that the error is plain or obvious; and 3) that the error affected his substantial rights, meaning the error affected the outcome of the proceeding.” Levering v. State, 2013 OK CR 19, ¶ 6, 315 P.3d 392, 395. “If these elements are met, this Court will correct plain error only if the error ‘seriously affect[s] the fairness, integrity or public reputation of the judicial proceedings’ or otherwise represents a ‘miscarriage of justice.’” Id. (quoting Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923). ¶5 The crux of Appellant’s allegation hinges on his contention that the transferred intent doctrine is an alternative theory of first degree murder that must be specifically charged. To assess the sufficiency of an Information the following two-pronged test is utilized: “(1) whether the defendant was in fact misled by it, and (2) whether conviction under it would expose the defendant to the possibility of being put in jeopardy a second time for the same offense.” Fields v. State, 1996 OK CR 35, ¶ 25, 923 P.2d 624, 629 (citing Lambert v. State, 1994 OK CR 79, ¶ 44, 888 P.2d 494, 504). An Information need not list every element of the charged offense. Fields, 1996 OK CR 35, ¶ 26, 923 P.2d at 629. The question is rather whether the Information provided the defendant with notice of the crimes charged and apprised him of what he must defend against at trial. Id.; Van White v. State, 1999 OK CR 10, ¶ 13, 990 P.2d 253, 261. ¶6 In support of his claim of insufficient notice, Appellant cites to Lambert v. State, 1994 OK CR 79, ¶¶ 44-45, 888 P.2d 494, 504, where this Court found reversible error occurred when the jury was instructed on felony murder despite the State’s failure to specifically charge

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Lambert in the alternative with felony murder. The case herein is distinguishable from Lambert, as transferred intent is not an alternative legal theory of guilt — such as first degree malice murder and felony murder as provided in 21 O.S.2011, § 701.7. The doctrine of transferred intent provides: [W]hen one person acts with intent to harm another person, but because of a bad aim he instead harms a third person who he did not intend to harm, the law considers him just as guilty as if he had actually harmed the intended victim. Short, 1999 OK CR 15, ¶ 44, 980 P.2d at 1098 (citing W. LaFave & A. Scott, Criminal Law, § 3.12(d) (2nd ed.1986)). The transferred intent doctrine directly relates to the relevant mens rea element of the charged offense. Application of the transferred intent doctrine does not create a new and different crime. Rather, the transferred intent doctrine provides an alternative factual theory with the same legal basis, i.e., Appellant either directly intended to kill Thorsson or his intent to kill White transferred to Thorsson. Cf. Slaughter v. State, 1997 OK CR 78, ¶ 63, 950 P.2d 839, 857 (aiding and abetting is an alternative factual theory versus a different legal theory of guilt); Rounds v. State, 1984 OK CR 49, ¶ 20, 679 P.2d 283, 287 (charging Information need not specifically allege that the defendant aided and abetted the offense). ¶7 In Bradshaw v. Richey, the United States Supreme Court found it doubtful that the principle of fair notice had any application to a case of transferred intent, “where the defendant’s contemplated conduct was exactly what the relevant statute forbade.” Bradshaw v. Richey, 546 U.S. 74, 76-77, 126 S.Ct. 602, 604, 163 L.Ed.2d 407 (2005) (emphasis in original). Looking to the relevant mens rea provision for the crime of aggravated murder in Ohio, the Court found Ohio’s law provided adequate notice of the applicability of transferred intent. Id. at 77, 126 S.Ct. at 604. The statutorily established mens rea provision for the offense required proof that the defendant “intended to cause the death of another.” Id. (emphasis in original). The Court found “[t]here was no reason to read ‘another’ (countertextually) as meaning only ‘the actual victim,’ since the doctrine of transferred intent was ‘firmly rooted in Ohio law.’” Id. Thus, the Court concluded the respondent in Bradshaw “could not plausibly claim unfair surprise that the doctrine applied in his case.” Id. Vol. 87 — No. 9 — 3/26/2016

¶8 The doctrine of transferred intent is likewise firmly rooted in Oklahoma case law. See Short, 1999 OK CR 15, ¶ 44, 980 P.2d at 1098. Moreover, similar to the mens rea provision examined in Bradshaw, the relevant mens rea provision of first degree malice murder in Oklahoma requires only that the State prove the accused had the deliberate intention of taking away the life of another “human being.”3 21 O.S.2011, § 701.7(A). Thus, the plain language of § 701.7(A) contemplates application of the doctrine of transferred intent as it requires the State prove only that the defendant was intending to cause the death of another human being. As determined in Bradshaw, there is no reason to read § 701.7(A) countertextually as restricting the relevant mens rea to “the actual victim.” Consequently, the Information as filed with regard to Count II in the present case was sufficient to notify Appellant of the crime charged and the applicability of the transferred intent doctrine. ¶9 Additionally, Appellant has failed to demonstrate he was in fact misled — to his detriment — by the Information. See Fields, 1996 OK CR 35, ¶ 25, 923 P.2d at 629; Lambert, 1994 OK CR 79, ¶ 44, 888 P.2d at 504. An audiotape of Appellant’s statement to police was properly admitted into evidence and played for the jury. Appellant’s subsequent testimony during trial mirrored his pretrial statement to Tulsa police. Under these circumstances, Appellant cannot claim prejudice resulted from his decision to testify. Moreover, testifying that he acted in self-defense is not an admission of the necessary mens rea element of malice murder, i.e., that he acted with the deliberate intention of “unlawfully” taking away the life of another human being. See 21 O.S.2011, § 701.7(A). Thus, unlike what occurred in Lambert, 1994 OK CR 79, ¶ 44, 888 P.2d at 504, Appellant’s testimony did not guarantee his conviction on Count II. ¶10 The record further demonstrates defense counsel was not surprised by the application of the transferred intent doctrine. Defense counsel’s lack of surprise is evidenced in a discussion had between the parties regarding which lesser included offense instructions should be provided in relation to Count 2. ¶11 In light of the foregoing, Appellant’s claim that he was unfairly convicted in Count II based on the “un-charged theory of transferred intent” without proper notice is without merit. The Information contained the essential elements of the crimes charged and was sufficient to bar future prosecution for those offenses.

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Application of the transferred intent doctrine directly related to the relevant mens rea element of Appellant’s Count 2 charge of malice murder. The application of the doctrine did not create a new and different crime. Moreover, Appellant has failed to demonstrate that he was misled — to his detriment — by the Information. Based on the circumstances of this case as well as the record, Appellant cannot “plausibly claim unfair surprise that the doctrine applied in his case.” Bradshaw, 546 U.S. at 77, 126 S.Ct. at 604. The trial court did not commit plain error by instructing the jury on the doctrine of transferred intent. ¶12 This proposition of error is denied. II. ¶13 Appellant argues that his trial counsel was ineffective for failing to object to the transferred intent instruction for the reasons set forth in his first proposition of error. To prevail on an ineffective assistance of counsel claim, the defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). As discussed in Proposition I, the transferred intent instruction was proper under the facts and circumstances of this case. Thus, trial counsel was not ineffective for failing to make a meritless objection. Logan v. State, 2013 OK CR 2, ¶ 11, 293 P.3d 969, 975 (“The omission of a meritless claim, i.e., a claim that was destined to lose, cannot constitute deficient performance; nor can it have been prejudicial.”) Thus, this proposition of error is denied. DECISION ¶14 The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal

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Appeals, Title 22, Ch. 18, App. (2016), the MANDATE is ORDERED issued upon delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY THE HONORABLE BILL MUSSEMAN, DISTRICT JUDGE APPEARANCES AT TRIAL David Phillips, Assistant Public Defender, 423 S. Boulder, Suite 300, Tulsa, OK 74103, Attorney for Defendant Julie Doss, Assistant District Attorney, 500 S. Boulder, Suite 900, Tulsa, OK 74103, Attorney for State APPEARANCES ON APPEAL Richard Couch, Assistant Public Defender, 423 S. Boulder, Suite 300, Tulsa, OK 74103, Attorney for Appellant E. Scott Pruitt, Oklahoma Attorney General, Jennifer B. Welch, Assistant Attorney General, 313 N.E. 21st Street, Oklahoma City, OK 73105, Attorneys for Appellee OPINION BY: HUDSON, J. SMITH, P.J.: CONCUR LUMPKIN, V.P.J.: CONCUR JOHNSON, J.: CONCUR LEWIS, J.: CONCUR 1. With regard to Count II, Appellant was charged with alternative theories of First Degree Murder — malice murder or felony murder in violation of 21 O.S.2011, § 701.7(A) & (B). In addition to malice and felony murder, the jury was also instructed on Manslaughter in the First Degree, Murder in the Second Degree by Imminently Dangerous Conduct and Felony Murder — Second Degree. 2. Appellant must serve at least 85% of his sentences before parole eligibility. 21 O.S.2011, § 13.1(1). 3. The definition of murder in the first degree refers to the “death of another human being”; the definition of malice uses the phrase “take away the life of a human being.” 21 O.S.2011, § 701.7(A). Whether “human being” or “another human being”, the interpretation of the relevant mens rea — malice — is the same.

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CALENDAR OF EVENTS

March 30 31

OBA Communications Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City; Contact David A. Poarch Jr. 405-329-6600 OBA Professionalism Committee meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Patricia Podolec 405-760-3358

April 1 5



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OBA Alternative Dispute Resolution Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with videoconference; Contact John H. Graves 405-684-6735 OBA Government and Administrative Law Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Michael Mannes 405-473-0352

20

21 22 26 7 8

OBA Lawyers Helping Lawyers Discussion Group; Office of Tom Cummings, 701 NW 13th St., Oklahoma City, OK 73012; Contact Jeanne M. Snider 405-366-5466 or Hugh E. Hood 918-747-4357 OBA Access to Justice Committee meeting; 11 a.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Michael Speck 405-205-5840 OBA Law-related Education Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Professor Paul Clark 405-208-6303 or Brady Henderson 405-524-8511

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OBA Family Law Section meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City with videoconference; Contact Luke Barteaux 918-585-1107 OBA Bench and Bar Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Judge David B. Lewis 405-556-9611 or David Swank 405-325-5254 OBA Women in Law Committee meeting; 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 Clients’ Security Fund Committee meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City with videoconference Contact Micheal Salem 405-366-1234 OBA Diversity Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with videoconference; Contact Tiece Dempsey 405-609-5406 OBA Board of Governors meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact John Morris Williams 405-416-7000 OBA Legal Intern Committee meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact H. Terrell Monks 405-733-8686 OBA Professionalism Committee meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Patricia Podolec 405-760-3358 OBA Professional Responsibility Commission meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Gina Hendryx 405-416-7007

May 3

OBA Government and Administrative Law Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Michael Mannes 405-473-0352

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Court of Civil Appeals Opinions 2016 OK CIV APP 11 THE JAYSON W. DAVISON TRUST OF 2010, U/T/A 7/8/10 and JAYSON W. DAVISON, TRUSTEE, Plaintiff/Appellant, vs. PAT BROCKHAUS, Defendant/Appellee, and DON WAYNE BROCKHAUS, Successor Trustee of the ARTHUR J. BROCKHAUS TRUST, U/T/A 4/1/1994, Defendant/Third Party Plaintiff/Appellee, vs. LOGAN COUNTY TREASURER, Third Party Defendant/Appellee. Case No. 113,175. August 26, 2015 APPEAL FROM THE DISTRICT COURT OF LOGAN COUNTY, OKLAHOMA HONORABLE PHILLIP CORLEY, TRIAL JUDGE AFFIRMED Paul Streck, STRECK & ASSOCIATES, Edmond, Oklahoma, for Plaintiff/Appellant Kraettli Q. Epperson, Sara K. Hawkins, MEE MEE HOGE & EPPERSON PLLP, Oklahoma City, Oklahoma, for Defendant/Appellee and Defendant/Third Party Plaintiff/Appellee JANE P. WISEMAN, JUDGE: ¶1 The Jayson W. Davison Trust of 2010, u/t/a 7/8/10, and Jayson W. Davison, Trustee, appeal the trial court’s order granting summary judgment in favor of Defendant and Third-Party Plaintiff, Don Wayne Brockhaus, Successor Trustee of the Arthur J. Brockhaus Trust, u/t/a 4/1/1994. The primary issue on appeal is whether Don Brockhaus, as successor trustee, received the required notice of the tax sale of certain real property in Guthrie, Oklahoma. This appeal was assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36, 12 O.S. Supp. 2014, ch. 15, app. 1, without appellate briefing. After review, we affirm. FACTS AND PROCEDURAL BACKGROUND ¶2 Jayson W. Davison, as trustee as of the Jayson W. Davison Trust of 2010, u/t/a 7/8/10 (Davison), filed an affidavit for forcible entry and detainer in small claims court in July 2012, alleging he is the owner of property at 708 Meadow Rock Trail, Guthrie, Oklahoma. Davi644

son obtained the property on June 11, 2012, through a County Treasurer’s resale deed, and placed the property in the Jayson W. Davison Trust of 2010 (Davison Trust) through a quit claim deed dated June 26, 2012. Pat Brockhaus was named as the defendant. Davison seeks possession of the property, alleging Brockhaus lives on the property and is wrongfully in possession of it. ¶3 Brockhaus asked that the case be dismissed because it was brought as an eviction proceeding and because he claims an ownership interest in the property, the proper action is one in ejectment. Brockhaus further alleged the Logan County Treasurer failed to obtain proper service and or to give proper notice of the tax resale of the property. The case was transferred from the small claims division to the civil division docket on October 25, 2012. ¶4 Davison filed a motion for summary judgment, and in his brief in support of the motion, he alleged as undisputed the facts summarized and quoted below. We have included Brockhaus’s response to each statement of undisputed fact. • The Davison Trust is the owner of the property located at 708 Meadow Rock Trail, Guthrie, Oklahoma (Property), pursuant to a County Treasurer’s Resale Deed, dated June 11, 2012, and a quit claim deed dated June 26, 2012, which placed the property in the Davison Trust. (Disputed. “Don Wayne Brockhaus, Trustee of the Arthur J. Brockhaus Trust, U/T/A 4/1/1994, is the owner of [Property]. Defendant, Pat Brockhaus, has an equitable interest in [Property].”) • Pat Brockhaus resides at the Property and his mailing address is 708 Meadow Rock Trail, Guthrie, Oklahoma. (Admitted.) • Pat Brockhaus is wrongfully in possession of Property. (Disputed.) • Davison Trust has legal title to Property and is entitled to possession. Davison Trust has made demand on Pat Brockhaus to vacate, but he has refused to do so. (“Disputed in Part. [Davison Trust] does not have legal title to the real property which is a subject of this case. Admitted in Part. Pat Brockhaus does refuse to leave the premises.”)

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• Pat Brockhaus does not currently have any ownership interest in Property and had no ownership interest when Property “was sold for delinquent taxes.” “Prior to the tax sale, title to the property was held by the Arthur Brockhaus Trust, u/t/a 4/01/1994.” Davison Trust now holds title to Property. (“Disputed. Pat Brockhaus has an equitable interest in the property, Don Wayne Brockhaus, Trustee of the Arthur J. Brockhaus Trust, U/T/A 4/1/1994 has legal title to [Property]. [Davison Trust] does not have legal title to [Property] which is a subject of this case.”) • “Pat Brockhaus was initially served with a Ten Day Notice to Quit on June 22, 2012.” Pat Brockhaus failed to vacate property and Davison Trust commenced a Forcible Entry and Detainer action. (Admitted.) • “Pat Brockhaus was served with a Forcible Entry and Detainer on August 20, 2012, setting forth a hearing date of August 24, 2012 at 1:30 P.M. The August 24, 2012 hearing was continued to September 6, 2012 at 9:00 A.M. At the hearing on September 6, 2012, following the arguments of counsel, the Court set forth a Briefing Schedule and continued the hearing to October 4, 2012, at 9:00 A.M. The October 4, 2012, hearing was then continued to October 11, 2012, at 9:00 A.M.” (Admitted.) • At the October 11th hearing, the trial court found that Davison Trust’s action should proceed as one in ejectment and the case should be transferred to the civil division. The trial court ordered Pat Brockhaus to file a verified answer within 10 days after the transfer of the case to the civil division. (Admitted.) • Pat Brockhaus failed to pay the filing fee to transfer the case and Davison Trust paid $85.70 to transfer the case. Pat Brockhaus reimbursed Davison Trust. (“Disputed in Part. Defendant, Pat Brockhaus, was not ordered to pay the necessary filing fees to transfer this case. Admitted. Defendant, Pat Brockhaus, has subsequently reimbursed the Plaintiff for the transfer fee.”) • Pat Brockhaus’s answer was due 10 days after the transfer, or by November 5, 2012. (Disputed. Pat Brockhaus filed a brief in support on September 17, 2012. Although the brief was not titled “Answer,” “one can Vol. 87 — No. 9 — 3/26/2016

easily conclude it contains each and every essential element of an answer.”) • Pat Brockhaus has failed to file a verified answer of any documentation to support his allegation he has an ownership interest in Property. (Disputed. Pat Brockhaus filed a brief in support on September 17, 2012. Although the brief was not titled “Answer,” “one can easily conclude it contains each and every essential element of an answer.”) • Pat Brockhaus remains in wrongful possession of Property. (Disputed.) ¶5 Pat Brockhaus filed a supplemental answer, which also contained counterclaims and a third-party petition. The filing added Don Wayne Brockhaus, Successor Trustee of the Arthur J. Brockhaus Trust, u/t/a 4/1/1994 (Brockhaus Trust), as a third-party plaintiff, and added the Logan County Treasurer (Treasurer) as a third-party defendant. Pat and Brockhaus Trust alleged Brockhaus Trust owns Property and that Treasurer conducted a tax sale at which Treasurer purported to sell Property. They asserted Brockhaus Trust was not served with proper notice before the tax sale. They alleged the document that was sent was directed to “’Brockhaus, Arthur J. Trust c/o Glyna Noe, 10312 Park Road, Edmond, OK 73034-000’ not Don Wayne Brockhaus at 10907 Magnolia Blvd., Suite 467, North Hollywood, CA 91601, who is the Trustee of the Trust.” Pat and Brockhaus Trust alleged Glyna Noe is not the trustee or successor trustee of this Trust. They further alleged the notice did not contain “the amount of all delinquent taxes, costs, penalties and interest accrued, due and unpaid as required by 68 O.S. § 3127.” The mail sent to the Edmond address was returned unclaimed. No notice was sent to Don Wayne Brockhaus as Successor Trustee or to Pat Brockhaus at Property. ¶6 Pat and Brockhaus Trust asserted affirmative defenses of negligence on the part of Davison Trust or Treasurer, that Davison Trust’s allegations are not well grounded in fact or law and are not warranted by existing law or by good faith extension of existing law, and that Davison Trust failed to state a claim on which relief could be granted. Pat and Brockhaus Trust alleged claims against Davison Trust for quiet title, trespass, and unjust enrichment. ¶7 The trial court overruled Davison Trust’s motion for summary judgment. Pat and Brockhaus Trust filed a “motion for leave of the court to amend their counterclaims and complaint of

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defendant and third party plaintiff and petition of third party plaintiff.” The supplemental counterclaims and third-party petition sought to add seven third-party defendants involved in the sale and purchase of 5 properties at the tax sale which are allegedly owned by Brockhaus Trust. Davison Trust objected to the motion for leave to amend. The trial court denied Pat’s and Brockhaus Trust’s motion for leave to amend and granted Davison Trust’s motion to enter on the non-jury docket. ¶8 Brockhaus Trust then filed a motion for summary judgment asserting the following as uncontroverted facts:

8. “During the time of the publication and mailed Resale Notice of the Tax Resale, Pat Brockhaus, brother of Don Wayne Brockhaus, Successor Trustee, resided on the Property. Pat Brockhaus never received or was delivered a Resale Notice of the Tax Resale.” The Treasurer did not send notice to Property.

1. Brockhaus Trust owned Property prior to June 11, 2012.

9. Don Brockhaus found out about the tax resale after Pat was served at Property with Davison’s forcible entry and detainer action. The action was transferred from the small claims division.

2. Brockhaus Trust obtained title to Property through a warranty deed dated April 1, 1994.

10. “Treasurer admits that no notices were served on [Don] Brockhaus prior to the Tax Resale.”

3. Don Wayne Brockhaus became successor trustee of the Brockhaus Trust after the death of Arthur J. Brockhaus, who was the original trustee.

11. “Davison filed his action on the underlying premise that the Davison deed is argued by Davison to be a valid instrument.”

4. Treasurer caused the purported notice of the resale of Property for delinquent taxes to be published on May 10, 2012, May 17, 2012, May 24, 2012, and May 31, 2012, but Brockhaus Trust did not receive notice. 5. “Treasurer caused purported Resale Notice of the Tax Resale to be mailed by certified mail on or about April 5, 2012 to a sister (Glyna Noe) of Don Wayne Brockhaus, Successor Trustee. . . . The certified mail was sent to the sister’s address and not the Property itself. The sister was not the Trustee nor was she listed as a Successor Trustee in the Memorandum of Trust filed in Book 1559, at Page 103 of the records of Logan County . . . . Said Memorandum was provided to the Treasurer through a Title Search Affidavit the Treasurer received from Logan County Abstract . . . .” 6. The notice was returned “unclaimed” and Brockhaus Trust never received the notice. “As a result of the Tax Resale Davison holds a County Treasurer’s Resale Deed (the “Resale Deed”) executed by Treasurer of Logan County on June 12, 2012.” 7. “During the time of the publication and mailed Resale Notice of the Tax Resale, 646

[Don] Brockhaus resided in North Hollywood, California and never received actual notice of the Tax Resale.”

¶9 Brockhaus Trust asserted that due process requires that it receive actual notice of the tax resale, the notice sent by certified mail that was returned unclaimed was constitutionally deficient, and actual notice to the record owner by certified mail was not met. It asserts the resale deed is void. ¶10 In its answer, Davison Trust admits in part and disputes in part Brockhaus Trust’s uncontroverted facts numbered 1 through 4. It admits Arthur J. Brockhaus placed Property in trust and that when he passed away, Don Brockhaus was named successor trustee by the memorandum of trust. Davison Trust states it has insufficient knowledge as to whether Don Brockhaus is acting as successor trustee of Brockhaus Trust and alleges Don Brockhaus never provided Logan County with any type of notification that he accepted the position as successor trustee. ¶11 Davison Trust also admits in part and disputes in part uncontroverted facts numbered 5 through 8. Davison Trust “admits that notice was mailed to Glyna Noe, that notice was not mailed to the property, and that Glyna Noe’s position as Trustee or Co-Trustee of the Arthur J. Brockhaus Trust is unknown.” It alleges, “If Glyna Noe is not a Trustee, then she or someone else had designated her as the person to whom notices for the Trust would be

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sent.” It claims Treasurer complied with the statutory notice provisions when the Treasurer mailed notice to Noe because “[t]he statute does not require that the notice be received.” It asserts, “Under these facts, if Ms. Noe is not a Trustee, then the publication notice should stand on it’s [sic] own as Don Wayne Brockhaus, has not registered his name and address with Logan County Assessor, the Logan County Clerk and/or the Logan County Treasurer.” ¶12 Regarding Brockhaus Trust’s fact number 9, Davison Trust claims it is without sufficient information to know when Brockhaus Trust received notice of the proceeding. It denied the fact in paragraph 10 and admitted the one in paragraph 11. ¶13 Davison Trust filed a supplement to its response in which it attaches the affidavit of County Treasurer Sherri Longnecker. It claims the affidavit shows Don Brockhaus has not registered his name with the Logan County Assessor, Logan County Clerk, and/or Logan County Treasurer, and the “Treasurer used due diligence in trying to ascertain the name and address, where tax notices should be sent, by having a title search conducted.” Although Don Brockhaus’s name appears on the memorandum of trust, his address is not listed. Because Noe’s address was listed with the County Assessor’s office, Treasurer sent notice to Noe. Treasurer claims Noe had actual notice of the tax sale, contacted Treasurer’s office before the sale, and stated she was going to pay the taxes.1 ¶14 The trial court found the tax sale was void and granted summary judgment to Don Brockhaus as Successor Trustee of the Brockhaus Trust, restoring ownership of Property to Brockhaus Trust. The court stated, “That because Don Wayne Brockhaus was the Successor Trustee of the [Brockhaus Trust] and he did not receive actual notice of the tax resale, that the tax sale was void.” ¶15 Davison Trust appeals from this summary judgment. STANDARD OF REVIEW ¶16 Summary judgment is properly granted “when the pleadings, affidavits, depositions, admissions or other evidentiary materials establish that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Davis v. Leitner, 1989 OK 146, ¶ 9, 782 P.2d 924. In Vol. 87 — No. 9 — 3/26/2016

reviewing a grant of summary judgment, we must view all conclusions and inferences to be drawn from the evidentiary materials in a light most favorable to the party who opposes the motion. Id. ¶17 An appeal from an order granting summary judgment is subject to de novo review. Shull v. Reid, 2011 OK 72, ¶ 3, 258 P.3d 521. “In its re-examination of the trial tribunal’s legal rulings an appellate court exercises plenary, independent and nondeferential authority.” Bronson Trailers & Trucks v. Newman, 2006 OK 46, ¶ 5, 139 P.3d 885. ANALYSIS ¶18 Davison Trust includes seven sections in its “Legal Issues to be Determined on Appeal.” The primary issue on appeal, however, is whether Treasurer provided constitutionally sufficient notice of the tax sale to Brockhaus Trust. We agree with the trial court that the notice given was deficient and the tax sale and resale tax deed are void. ¶19 The Oklahoma Supreme Court recently addressed the notice requirements in tax resale cases in Crownover v. Keel, 2015 OK 35, ___ P.3d ___, (petition for rehearing pending; not yet released for publication). This is the issue in Crownover: “[W]hether an owner of real property received constitutionally sufficient notice of the sale of his property for delinquent taxes when notice was provided only by publication and certified mail that was returned undelivered.” Id. ¶ 1. The Supreme Court held that the owner did not receive sufficient notice. Id. ¶20 After Crownover failed to pay taxes for several years on certain real property in McIntosh County, Oklahoma, McIntosh County offered the property for sale in 2010. Id. ¶ 3. The Court explained: It is undisputed that the notice provisions of 68 O.S.2011 § 3106, mandating notice by mail and publication, were complied with. Notice was sent by certified mail to Crownover at the address he provided when he purchased the property in McIntosh County, and was also published in a newspaper in McIntosh County. Unbeknownst to county treasurer’s office, Crownover no longer lived at the address to which notice was sent. Id. ¶ 3. Crownover did not become aware of the sale of the property at the tax resale until the

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purchaser contacted him about a boat and trailer on the property. Id. ¶ 4. Crownover brought a quiet title action against the McIntosh County Treasurer and Board of County Commissioners. Id. ¶ 5. Crownover asserted the tax deed was void because “he did not receive notice because while the notices of delinquent taxes and of the resale were sent to the address he provided to McIntosh County when he purchased the property, Crownover no longer lived at that address.” Id. Crownover argued “that the County should have sent notice to the address listed on the last check he wrote for taxes on January 1, 2006.” Id. ¶21 Both Crownover and McIntosh County moved for summary judgment. Id. ¶ 6. McIntosh County asserted “that it complied with all statutory notice requirements by: 1) mailing notice by certified mail to the address Crownover had originally provided; and 2) publishing notice of the resale in a publication in McIntosh County.” Id. Crownover claimed that McIntosh County sent the notice “to his old address via certified mail [and it] was returned to the County treasurer marked ‘Not Deliverable as Addressed Unable to Forward.’” Id. ¶ 7. The trial court granted summary judgment in favor of County. Id. The Court of Appeals affirmed the trial court’s decision. Id. ¶ 9. ¶22 Title 68 O.S.2011 § 3105(A) provides: The county treasurer shall in all cases, except those provided for in subsection B of this section, where taxes are a lien upon real property and have been unpaid for a period of three (3) years or more as of the date such taxes first became due and payable, advertise and sell such real estate for such taxes and all other delinquent taxes, special assessments and costs at the tax resale provided for in Section 3125 of this title, which shall be held on the second Monday of June each year in each county. The county treasurer shall not be bound before so doing to proceed to collect by sale all personal taxes on personal property which are by law made a lien on realty, but shall include such personal tax with that due on the realty, and shall sell the realty for all of the taxes and special assessments. ¶23 The Crownover Court stated: While 68 O.S.2011 § 3105 authorizes the sale of real property for delinquent taxes, the U.S. Const. amend. XIV, § 1 and Okla. Const. Art. 2, § 7 ensure that no person may 648

be deprived of life, liberty, or property without due process of law. At a minimum, due process requires notice and a meaningful opportunity to appear and be heard. Edwards v. City of Sallisaw, 2014 OK 86, ¶ 19, 339 P.3d 870; Daffin v. State ex rel. Okla. Dep’t of Mines, 2011 OK 22, ¶ 16, 251 P.3d 741. Accordingly, constitutionally sufficient notice must be given to real property owners before the property is sold for failure to pay taxes. Jones v. Flowers, 547 U.S. 220, 234, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006) (“[B] efore forcing a citizen to satisfy his debt by forfeiting his property, due process requires the government to provide adequate notice of the impending taking.”). See Southwestern Commercial Capital, Inc. v. Cornett Packing Co., 2000 OK 19, ¶ 16, 997 P.2d 849; Luster v. Bank of Chelsea, 1986 OK 74, ¶ 18, 730 P.2d 506. Crownover, 2015 OK 35, ¶¶ 14-15 (footnotes omitted). Title 68 O.S.2011 § 3106 addresses the notice requirements that must be met before a property may be sold for delinquent taxes.2 It provides, in relevant part: The county treasurer, according to the law, shall give notice of delinquent taxes and special assessments by publication once a week for two (2) consecutive weeks at any time after April 1, but prior to the end of September following the year the taxes were first due and payable, in some newspaper in the county to be designated by the county treasurer. Such notice shall contain a notification that all lands on which the taxes are delinquent and remain due and unpaid will be sold in accordance with Section 3105 of this title, a list of the lands to be sold, the name or names of the last record owner or owners as of the preceding December 31 or later as reflected by the records in the office of the county assessor, which records shall be updated based on real property conveyed after October 1 each year and the amount of taxes due and delinquent. . . . In addition to said published notice, the county treasurer shall give notice by mailing to the record owner of said real property as of the preceding December 31 or later as reflected by the records in the office of the county assessor, which records shall be updated based on real property conveyed after October 1 each year, a notice stating the amount of delinquent taxes owed and informing the owner that the subject real

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property will be sold as provided for in Section 3105 of this title if the delinquent taxes are not paid and showing the legal description of the property of the owner being sold. Failure to receive said notice shall not invalidate said sale. (Emphasis added.) ¶24 McIntosh County asserted that it complied with the due process requirements because it complied with § 3106 by publishing notice in a newspaper located in McIntosh County and sending notice by certified mail to the address originally provided by Crownover. Crownover, 2015 OK 35, ¶ 17. The Supreme Court rejected this argument finding “compliance with the notice provisions 68 O.S.2011 § 3106 is not in and of itself sufficient if the notice provided is constitutionally deficient.” Id. ¶ 18. The Court quoted Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S. Ct. 652, 94 L. Ed. 865 (1950) for the proposition that: when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected. Crownover, 2015 OK 35, ¶ 18. ¶25 The Crownover Court held, “The notice requirement of due process is not satisfied where, as here, notice sent via certified mail is returned undelivered and no further action is taken.” Id. ¶ 19. The Court stated: The decision of the United States Supreme Court in Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), is directly on point concerning notice required to satisfy the requirements of due process prior to sale of real property for delinquent taxation. In Jones, under similar facts to this cause, the Supreme Court of the United States determined that “when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so.” Jones, 547 U.S. at 225. The tax sale in Jones occurred after the State published notice in a newspaper and attemptVol. 87 — No. 9 — 3/26/2016

ed to notify the property owner — who no longer lived on the property — by certified mail twice, with the notice returned unclaimed both times. Jones, 547 U.S. at 223-224. Id. (emphasis added). The Court noted that the Jones Court also concluded “that the property owner’s failure to keep his address updated, which was required by statute, did not result in the owner somehow forfeiting his right to constitutionally sufficient notice.” Id. ¶ 20. The Court also recognized: While the Jones Court determined that the State should have taken other reasonable measures to reach the property owner, it stopped short of requiring the state to search elsewhere for an address for the property owner, noting that an open-ended search for a new address would unduly burden the State. 547 U.S. at 236. Rather, the Court suggested reasonable measures such as posting notice on the property door, or even sending notice by regular mail, which could at least have resulted in its delivery and presence on the property. Jones, 547 U.S. at 235. The Court noted that it was not its responsibility to redraft the State’s notice statute, but it was sufficient that the Court was confident additional reasonable steps were available for Arkansas to employ before taking the property. Jones, 547 U.S. at 238. Id. ¶ 21. ¶26 The Crownover Court held: It is undisputed that Crownover failed to timely pay taxes on the subject property. It is also undisputed that the County fulfilled the notice requirements of 68 O.S. 2011 § 3106 by publishing notice and by sending notice via certified mail to the address it had been given for Crownover. The County asserts this was sufficient notice, regardless of whether the notice was actually received by Crownover, and further cites Crownover’s own need to notify them of an address change and his presumed knowledge that he would owe taxes. However, the record contains undisputed evidence that the notice to Crownover sent via certified mail was never received by him, was in fact returned to the County marked as “not deliverable as addressed

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unable to forward.” The Court of Civil Appeals erred by declaring that this envelope was mentioned but not actually attached to the record. Pursuant to Jones, when confronted with the knowledge that its notice via certified mail was not delivered and therefore not seen by Crownover, the County was required to attempt some other reasonable method of supplying notice to Crownover. 547 U.S. at 225. The [p]rior decisions of this Court also indicate that simple compliance with the notice statute is not always enough to satisfy the requirements of due process. See Garcia, 2008 OK 90, ¶ 15; Ziegler, 1989 OK 113, ¶ 6. The County could have taken other reasonable steps to attempt to provide Crownover with notice, without necessarily being obligated to conduct a lengthy hunt for a correct address. See Jones, 547 U.S. at 235-36. Like the Supreme Court of the United States, we do not think that a person who actually desired to inform a real property owner of an impending tax sale of the real property would do nothing when a certified letter sent to the owner is returned unclaimed. Jones, 547 U.S. at 229. The return of the certified notice undelivered was a red flag that should have tipped off the County it needed to follow up. Ziegler, 1989 OK 113, ¶ 6. The County’s failure to make any further effort resulted in Crownover being denied constitutionally sufficient notice of the eminent3 sale of his property. The Jones decision also deals succinctly, from the standpoint of U.S. Const. amend. XIV, § 1, with the County’s claims concerning Crownover’s obligations. Crownover’s failure to timely pay taxes and his failure to provide an updated address to the County did not relieve it of its obligation to provide him with constitutionally adequate notice prior to selling his property. Jones, 547 U.S. at 229, 232. We agree. Id. ¶¶ 27-30 (emphasis added.) ¶27 Here, the certified mail, sent to a person unconnected to Property, was also returned unclaimed. Treasurer and Davison Trust admitted notice was not mailed to Property. Based on the reasoning in Crownover, which relied heavily on the United States Supreme Court’s decision in Jones, when Logan County learned that its certified mail notice was not delivered to Brockhaus Trust but returned unclaimed, and 650

was therefore not seen by the Trustee, Logan County was then “required to attempt some other reasonable method of supplying notice to [Brockhaus Trust].” Id. ¶ 28. Because Logan County did not take any other reasonable steps to provide notice, Brockhaus Trust was “denied constitutionally sufficient notice of the [im] minent sale of [its] property.” Id. ¶ 29. The subsequent sale and resulting tax deed based on this inadequate notice are void. CONCLUSION ¶28 Based on the undisputed facts presented in the summary judgment record, it is clear Brockhaus Trust was not provided with constitutionally adequate notice before Logan County sold Property for delinquent taxes. See id. ¶ 31. The trial court was correct in granting summary judgment in favor of Brockhaus Trust. The trial court’s decision is affirmed. ¶29 AFFIRMED. GOODMAN, V.C.J., and FISCHER, P.J., concur. JANE P. WISEMAN, JUDGE: 1. The trial court in its Order granting summary judgment to Brockhaus Trust stated that “Noe denied the allegations of the County Treasurer’s Affidavit.” 2. Brockhaus Trust in its Response to Davison Trust’s petition in error argues that 68 O.S.2011 § 3127 (“Notice of Resale”), not 68 O.S.2011 § 3106 (“Notice of Sale”), applies and requires that “the June Tax Resale Notice must be mailed by certified mail at least 30 days before the sale.” Its arguments regarding inadequate notice and the resulting deed being void remain the same. 3. We believe this is meant to be “imminent.”

2016 OK CIV APP 12 T.L.I., a minor child, by and through his next friend, TRAVIS L. IRICK, Plaintiff/ Appellant, vs. BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF POTTAWATOMIE, Defendant/Appellee. Case No. 113,687. August 11, 2015 APPEAL FROM THE DISTRICT COURT OF POTTAWATOMIE COUNTY, OKLAHOMA HONORABLE JOHN G. CANAVAN, JR., TRIAL JUDGE AFFIRMED Jack S. Dawson, Andrea R. Rust, Patrick H. Lane, MILLER DOLLARHIDE, Oklahoma City, Oklahoma, for Plaintiff/Appellant Jordan L. Miller, COLLINS, ZORN & WAGNER, P.C., Oklahoma City, Oklahoma, for Defendant/Appellee KEITH RAPP, PRESIDING JUDGE:

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¶1 The plaintiff, T.L.I. (T.L.I.) a minor, by and through his next friend Travis L. Irick (Plaintiff), appeals an Order denying his motion for new trial entered after the trial court granted summary judgment to the defendant, Board of County Commissioners of the County of Pottawatomie (Board). This appeal proceeds under the provisions of Okla.Sup.Ct.R. 1.36, 12 O.S. Supp. 2013, ch. 15, app. 1. BACKGROUND ¶2 Plaintiff’s lawsuit claimed injury in an automobile accident at night on December 27, 2010. T.L.I. was a passenger in an automobile driven by another teenager. He and the other passengers and driver were traveling from the Prague, Oklahoma, area to Shawnee, Oklahoma. ¶3 After an apparently mistaken turn, the group ended up on a county road named Crosslin Road. The road is a dead end road. ¶4 Board had erected a sign signifying that the road is a dead end road. On the date of the accident, the sign was down. The driver continued on the dead end road and crashed into an embankment. T.L.I. sustained injury. ¶5 After Board denied Plaintiff’s claim, he filed this action. In his amended petition, Plaintiff alleged that Board was negligent in maintaining the road and road signs. Board responded with several defenses, including immunity under provisions of the Governmental Tort Claims Act, specifically citing 51 O.S. Supp. 2013, §§ 155(5) and 155(15). Board then filed its motion for summary judgment.1 ¶6 Board maintained, and the trial court agreed, that it did not have actual or constructive notice that the dead end sign was down. Board presented the deposition testimony of County Commissioner Guinn, whose district covered the location of the accident. Commissioner Guinn stated that he was not aware of the dead end sign being down. ¶7 Commissioner Guinn stated that his telephone complaint logs did not show any complaint about the road or the sign. The summary judgment record contains the logs for the last half of the year 2010. These logs show a call on August 9, 2010, about litter; a call on August 18, 2010, about a need for right-of-way mowing; a call on December 3, 2010, about a drain (tinhorn); and a call on December 10, 2010, about holes on the dead end of Hickory HolVol. 87 — No. 9 — 3/26/2016

low of Crosslin Road. The logs have an “action taken” column which is blank for all of the foregoing except the last which contains the entry “done.” The Record does not indicate whether a response, if any, to the calls would have brought attention to the dead end sign. ¶8 T.L.I. did not have any personal knowledge of the dead end sign’s history prior to the accident. The car’s driver testified that he did not see a dead end sign, but he also had no personal knowledge about the sign’s history. ¶9 Plaintiff’s summary judgment response, as relates to this appeal, was that the County erected the dead end sign and did not maintain it. The dead end sign fell or was knocked down and thus failed to warn the driver of the car that he was on a dead end road. Plaintiff’s summary judgment response did not present any evidentiary materials that would show a dispute regarding whether Board had actual knowledge of the condition of the dead end sign on the date of the accident. ¶10 Plaintiff argued for application of constructive notice. Plaintiff’s response characterized the testimony of Commissioner Guinn to be that the County had no policy requiring its employees to report downed or damaged signs.2 He then maintained that Board’s ignorance of the knocked down sign was negligent or willful and therefore Board had constructive notice of the condition of the dead end sign. ¶11 The trial court ruled that Section 155(15) shielded Board from liability because there was no evidence showing a question of fact about whether Board had actual or constructive knowledge of the fact that the dead end sign was down. The trial court awarded summary judgment on the basis of this ruling and rejected the other grounds urged by Board. Board has not appealed. ¶12 Plaintiff then filed a motion for new trial.3 In this motion, Plaintiff conceded that Board had no actual notice of the fact that the dead end sign was down.4 Therefore, the trial court’s ruling regarding lack of actual notice to Board is affirmed. ¶13 In the motion for new trial, Plaintiff argued that Board had constructive notice of the downed dead end sign. He maintained that Board failed to have and implement any policy for its employees to report downed and damaged signs and that such policy would have

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provided the mechanism to notify Board of a downed or damaged sign. ¶14 In addition to his basic argument, Plaintiff added the allegation that Board’s employees worked on Crosslin Road at least fourteen times in the year preceding the wreck, with one of those instances occurring eight days prior to the wreck. He attached Board road grader employees’ work and time sheets to establish that presence. However, there is no indication where in the work and time sheets it appears that an employee was present on Crosslin Road and a downed dead end sign was noted.5 ¶15 Part of Board’s response to the motion for new trial was an objection to the added materials on the ground that the materials had not been made a part of the response to the motion for summary judgment. Without contradiction, Board represented that Plaintiff possessed the added materials when responding to the motion for summary judgment. Therefore, the added materials did not qualify as “new evidence” unavailable at the time of the summary judgment proceedings. ¶16 In its ruling denying the motion for new trial, the trial court agreed that the added materials did not qualify as new evidence.6 Nevertheless, the trial court further ruled that Plaintiff had not demonstrated a fact issue regarding constructive notice even considering the added materials. ¶17 Plaintiff appeals.7 STANDARD OF REVIEW ¶18 As a general rule, “a motion for new trial is addressed to the trial court’s sound discretion and, absent error as to a pure and unmixed question of law, or arbitrary and capricious action, every presumption should be indulged in favor of the trial court’s ruling on appeal.” Bennett v. Hall, 1967 OK 122, ¶ 5, 431 P.2d 339, 340-41. The standard of review when a summary judgment is followed by a ruling on a motion for new trial is set out in Reeds v. Walker, 2006 OK 43, ¶ 9, 157 P.3d 100, 106-07. Summary relief issues stand before us for de novo review. All facts and inferences must be viewed in the light most favorable to the non-movant. Appellate tribunals bear the same affirmative duty as is borne by nisi prius courts to test for legal sufficiency all evidentiary material received in summary process in support of the relief 652

sought by the movant. Only if the court should conclude there is no material fact (or inference) in dispute and the law favors the movant’s claim or liability-defeating defense is the moving party entitled to summary relief in its favor. A trial court’s denial of a motion for new trial is reviewed for abuse of discretion. Where, as here, our assessment of the trial court’s exercise of discretion in denying defendants a new trial rests on the propriety of the underlying grant of summary judgment, the abuseof-discretion question is settled by our de novo review of the summary adjudication’s correctness. Judicial discretion is abused when a trial court errs with respect to a pure, unmixed question of law. ¶19 The summary judgment standard of review is set out in Murray County v. Homesales, Inc., 2014 OK 52, ¶ 4, 330 P.3d 519, 523. The district court’s order granting summary judgment is reviewed de novo. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. That review requires examination of the pleadings and evidentiary materials submitted by the parties to determine whether there exists a genuine issue of material fact. Id. This Court bears “an affirmative duty to test all evidentiary material tendered in summary process for its legal sufficiency to support the relief sought by the movant.” Copeland v. The Lodge Enters., Inc., 2000 OK 36, ¶ 8, 4 P.3d 695, 699. ¶20 One who defends against a claim and who does not bear the burden of proof is not required to negate the plaintiff’s claims or theories in order to prevail on motion for summary judgment. When, as here, a defendant moves for summary judgment without relying upon an affirmative defense, the defendant must show that: 1) no substantial factual controversy exists as to at least one fact essential to plaintiff’s theory of the cause of action; and, 2) the fact is in defendant’s favor. Once a defendant has introduced evidentiary materials to establish these points, the plaintiff then has the burden of showing that evidence is available which justifies a trial of the issue. Akin v. Missouri Pacific Railroad Co., 1998 OK 102, ¶ 8, 977 P.2d 1040, 1044; Stephens v. Yamaha Motor Co., Ltd. Japan, 1981 OK 42, ¶ 11, 627 P.2d 439, 441; Runyon v. Reid, 1973 OK 25, ¶¶ 12-13, 510 P.2d 943, 946. On the other hand, when the defendant relies upon an affirmative defense then the defendant, as the party with the burden of

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proof, must meet the same standards as a plaintiff movant. Akin, 1998 OK 102 at ¶ 9, 977 P.2d at 1044. ¶21 The appellate court has the plenary, independent, and nondeferential authority to reexamine a trial court’s legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125 n.1, 932 P.2d 1100. ANALYSIS AND REVIEW ¶22 Plaintiff claims error by the trial court’s statement in the Order denying the motion: The Commissioner who represents the district where the accident occurred testified that his employees do call in downed signs when they are seen by the employees or notified by the public. ¶23 Plaintiff claims that no such testimony was given in those words and the trial court misstated the evidence. This Court does not view the language of the trial court here as a direct quotation. A review of the Commissioner’s testimony shows that the trial court reasonably summarized the Commissioner’s statements. Thus, the claim of error is rejected. ¶24 Plaintiff’s premises for his conclusion that Board has constructive knowledge of the downed dead end sign are: (1) Board did not have any policy or standard procedure to report downed signs, and (2) the absence of such policy or standard procedure constitutes willful ignorance of the problem. The argument concludes that constructive knowledge follows as a consequence, in the wake of willful ignorance or at least, that a question of fact is established requiring the jury to decide the ultimate conclusion of constructive notice. ¶25 In Cooper v. Flesner, 1909 OK 137, ¶ 8, 103 P. 1016, 1020, (quoting Williamson v. Brown, 15 N.Y. 354 (N.Y.)), the Court defined and explained actual and constructive notice. Notice is of two kinds — actual and constructive. Actual notice embraces all degrees and grades of evidence from the most direct and positive proof to the slightest circumstance from which a jury would be warranted in inferring notice. It is a mere question of fact, and is open to every species of legitimate evidence which may tend to strengthen or impair the conclusion. Constructive notice, on the other hand, is a legal inference from established facts, and, like other legal presumptions, does not admit of Vol. 87 — No. 9 — 3/26/2016

dispute. ‘Constructive notice,’ says Judge Story, ‘is in its nature no more than evidence of notice, the presumption of which is so violent that the court will not even allow of its being controverted.’ Story’s Eq. Juris. § 399. (Emphasis added.) Here, the final and conceded determination is that Board did not have actual notice. ¶26 The Oklahoma Statutes and current case law incorporate these definitions. 25 O.S.2011, §§ 10-13;8 Manokoune v. State Farm Mut. Auto. Ins. Co., 2006 OK 74, ¶ 18, 145 P.3d 1081, 108586; see State ex rel. Oklahoma Bar Ass’n v. Scroggs, 2003 OK 21, n.6, 70 P.3d 821. ¶27 Here, the component of “actual notice of circumstances sufficient to put a prudent [person] upon inquiry as to a particular fact” is missing from the Record. Thus, Plaintiff has failed to demonstrate that any fact question exists regarding “actual notice of circumstances.” In general, where constructive notice has been applied, there has been some circumstance, or circumstances, which should excite inquiry and that inquiry, if diligently pursued would lead to actual notice and knowledge of the facts. DeWeese v. Baker-Kemp Land Trust Corp., 1940 OK 184, ¶ 12, 102 P.2d 884 (actual notice of circumstances to excite attention). ¶28 In other words, constructive notice may be legally inferred from established facts. However, the Record shows no actual notice and an absence of actual notice of any facts to present to a jury on the issue of constructive notice. The cases and statutes call for “actual notice . . . sufficient to put a prudent [person] upon inquiry.” 25 O.S.2011, § 13; Ehret v. Prices, 1927 OK 19, 254 P. 748. “For constructive notice to be imputed as a matter of law, there must first be a finding that there are facts sufficient to ‘put a prudent [person] upon inquiry.’” Manokoune, 2006 OK 74 ¶ 18, 145 P.3d at 1085. The sufficiency of existing facts to put a person on inquiry is a question of fact. Id. ¶29 As explained in Cooper, constructive notice is a legal inference from established facts. An inference is a permissible deduction from evidence. Leo H. Whinery, Oklahoma Evidence, Commentary on the Law of Evidence § 9.10 (West Publishing Co. 1994). Here, there is no evidence from which to make an inference because, as argued by Plaintiff, Board had no policy or procedure in place to find out about downed signs. Thus, there are no “established facts” or fact established from which it may be

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inferred that Board had notice of the condition of the dead end sign.

did not establish that facts existed to place Board on inquiry.

¶30 Therefore, unless the doctrine of constructive notice is expanded to include cases such as this one, Plaintiff’s argument must fail. As a result, Plaintiff’s argument necessarily is an argument for expansion of the doctrine. Plaintiff maintains that the consequence of Board’s passivity, or nonfeasance, has the same constructive notice consequence as a case where Board had actual knowledge of circumstances such as to put it on inquiry. This Court concludes that expansion of the constructive notice doctrine cannot be made for the following reasons.

¶36 As a result, Plaintiff’s contention necessarily attempted to expand the doctrine of constructive notice beyond an inference of actual notice based upon existing facts putting a prudent person on inquiry. This expansion has not been recognized by the statute on constructive notice or by case law. Moreover, the Legislature is presumed to act with knowledge of existing law. When the Legislature enacted Section 155(15), it expressed its intent and nothing more. The Legislature did not expand the constructive notice rule in the context of Section 155(15).

¶31 First, the Supreme Court decisions and the statutes do not encompass the expansion. ¶32 Second, the Legislature presumptively acted with a view in mind of existing law when it enacted Section 155(15) and provided for “constructive notice.” Laws are presumed to be passed with full knowledge of all existing law on the same subject, here constructive notice. TXO Production Corp. v. Oklahoma Corp. Comm’n, 1992 OK 39, ¶ 10, 829 P.2d 964, 970 (enacting amendments); State v. Prairie Oil & Gas Co., 1917 OK 450, ¶ 7,167 P. 756, 757-58. If the Legislature had desired to expand the constructive notice doctrine it could have done so, but it did not. This Court presumes that the Legislature expressed its intent and nothing more when it enacted Section 155(15). U.S.I.F. Norman Corp. v. Oklahoma Tax Comm’n, 1974 OK 124, ¶ 10, 534 P.2d 1298, 1301. ¶33 The trial court’s judgment awarding summary judgment is affirmed. SUMMARY AND CONCLUSION ¶34 T.L.I. was involved in a motor vehicle accident on a dead end county road. A dead end warning sign was down. Plaintiff sought to impose liability under the provisions of 51 O.S. Supp. 2013, § 155(15). ¶35 Plaintiff conceded that Board did not have actual knowledge that the dead end sign was down. Therefore, Plaintiff maintained that Board had constructive notice because it did not have in place policy or procedure regarding reporting downed signs. However, constructive notice is an inference of notice of the ultimate fact based upon existing facts which put a prudent person on inquiry. Here, Plaintiff 654

¶37 Therefore, the judgment of the trial court is affirmed. ¶38 AFFIRMED. THORNBRUGH, J., and BARNES, J., concur. KEITH RAPP, PRESIDING JUDGE: 1. The trial court denied Board’s summary judgment motion as to Section 155(5) because Board had erected the dead end sign. The trial court also rejected Board’s proximate cause and open and obvious contentions. Board has not appealed, so the Section 155(5), proximate cause, and open and obvious issues are not before this Court. The Background and Analysis will omit information pertinent only to the Section 155(5) grounds rejected by the trial court. The trial court did grant summary judgment on the basis of Section 155(15). This Section has been unchanged by sundry amendments and reads: Absence, condition, location or malfunction of any traffic or road sign, signal or warning device unless the absence, condition, location or malfunction is not corrected by the state or political subdivision responsible within a reasonable time after actual or constructive notice or the removal or destruction of such signs, signals or warning devices by third parties, action of weather elements or as a result of traffic collision except on failure of the state or political subdivision to correct the same within a reasonable time after actual or constructive notice. Nothing herein shall give rise to liability arising from the failure of the state or any political subdivision to initially place any of the above signs, signals or warning devices. The signs, signals and warning devices referred to herein are those used in connection with hazards normally connected with the use of roadways or public ways and do not apply to the duty to warn of special defects such as excavations or roadway obstructions. 2. The cited Commissioner Guinn testimony was: Q. Is a dead end sign one that you would expect one of your employees to have told you had been knocked down? A. Not necessarily. .... Q. If they had noticed it would you expect them to report it to the road foreman? .... THE WITNESS: I don’t know that I would - not necessarily. 3. Appellate Record, Tab 13. 4. Id. at p. 4. 5. The time and work sheets do not reference “Crosslin Road.” There are references to “347” which is the same number as the “Crosslin” county road shown in the police report and listed in the motion for summary judgment. This Court notes that: (1) in his deposition taken by Plaintiff, Commissioner Guinn was specifically asked about employee work and time sheets; and, (2) in her deposition taken prior to the summary judgment proceedings, the successor County Commissioner referred to the road grader personnel in the area. 6. Plaintiff has not included this part of the trial court’s ruling in his appeal, so that specific ruling will not be further addressed.

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7. In the Appellate Record before this Court, the Order denying summary judgment and the Order denying the motion for new trial are not appended to the petition-in-error as required. Certified copies of both documents are contained in the Rule 1.36 materials. 8. “Notice is either actual or constructive.” 25 O.S.2011, § 10. “Actual notice consists in express information of a fact.” 25 O.S.2011, § 11. “Constructive notice is notice imputed by the law to a person not having actual notice.” 25 O.S.2011, § 12. “Every person who has actual notice of circumstances sufficient to put a prudent [person] upon inquiry as to a particular fact, and who omits to make such inquiry with reasonable diligence, is deemed to have constructive notice of the fact itself.” 25 O.S.2011, § 13.

2016 OK CIV APP 13 IN RE THE MARRIAGE OF MICHAEL A. GRESS AND LINDA L. KUHN: MICHAEL A. GRESS, Petitioner/Appellee, vs. LINDA L. KUHN, Respondent/Appellant. Case No. 112,412. December 18, 2015 APPEAL FROM THE DISTRICT COURT OF McCLAIN COUNTY, OKLAHOMA HONORABLE CHARLES GRAY, TRIAL JUDGE AFFIRMED IN PART, REVERSED IN PART AND REMANDED Dean Hart, Jr., HART & HART, Pauls Valley, Oklahoma, for Petitioner/Appellee. Robert T. Keel, Oklahoma City, Oklahoma, for Respondent/Appellant. Wm. C. Hetherington, Jr., Chief Judge: ¶1 Appellant Linda Kuhn (Wife) appeals the trial court’s decree of marital dissolution which, in pertinent part, finds the couple entered into a stipulated common law marriage in October of 2005, awards Appellee Michael Gress (Husband) the farm the couple purchased when they moved to Oklahoma in 2004, values the same on the date of trial held three years after their separation, deducts from that value a credit for Husband’s down payment from his separate funds, and awards Wife her share of the equity in the property subject to a lien. Based on our review of the record and applicable law, we reverse the trial court’s down payment credit awarded to Husband, affirm the remaining findings, and remand the case for entry of a new judgment in accordance with this opinion.

McClain County with a house and purchased it for $192,500.00. Husband paid the $38,500.00 down payment using funds from the sale of his separate property. The mortgage securing the promissory note included both parties’ names, and the warranty deed to the property, although noting each as “a single person,” conveyed the title to the parties as joint tenants with rights of survivorship. ¶3 Husband remained in Oklahoma but Wife returned to Pennsylvania for a few months, returning with the parties’ horses and mule. Husband worked as a truck driver and drove a hotshot rig. Wife started employment in Pauls Valley, sewing trailer and boat covers. It is undisputed Wife used approximately $20,000.00 of her separate funds to repair and remodel the house and for furniture. They obtained a $25,000.00 loan to buy farm equipment. ¶4 At Husband’s suggestion, Wife quit her job and operated a restaurant in Stratford, Oklahoma in July 2005. When home, Husband assisted at the restaurant. In early 2006, Husband was seriously injured in a multi-car pileup in New Mexico. Due to potential litigation in that state, the parties executed a deed in March 2006, which transferred without consideration the title to the farm to Wife and was filed of record in May 2006. During the same year, Wife had a stroke, requiring care by her mother, and they had to close the restaurant.

FACTS

¶5 Before Wife moved back to Pennsylvania in April 2009, she executed a warranty deed which transferred title to the property in her and Gress’ names. Husband filed a petition for dissolution of the marriage in August 2012, alleging the parties entered into a common law marriage in McClain County on or about 2004 and seeking dissolution of the marriage based on incompatibility and abandonment. Wife filed an Answer and Counterclaim, and after Husband moved to dismiss the same, she filed an amended answer and counterclaim, denying all of the petition’s allegations, specifically the alleged common law marriage. She also claimed they purchased the real property as tenants in common and requested the property be sold and the proceeds equally divided.

¶2 Wife and Husband met in Pennsylvania following divorces from their respective spouses, began living together, and decided they wanted to buy property in Oklahoma and raise livestock. In 2004, they found 150 acres in

¶6 The matter was tried on September 13, 2013, at the commencement of which the parties announced their stipulation to a common law marriage. The parties each testified in their respective cases, admitted several exhibits, and

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then rested. The trial court took the matter under advisement. ¶7 On November 14, 2013, the trial court filed a Decree of Dissolution of Marriage, finding the parties entered into a common law marriage on or about October 2005, since that time have been husband and wife, and no children were born or adopted. Following its jurisdictional and venue findings, the trial court granted dissolution of the marriage to “the parties” based on incompatibility and abandonment. Husband was awarded as his separate property the parties’ 150 acre property, subject to its indebtedness. Wife was awarded as her separate property, all household furniture, effects and personal property in her possession. Finding insufficient evidence of valuation of the real property upon the date of separation, he assigned the date of trial as the valuation date, which, based on Husband’s testimony, the court valued at $225,000.00, with $121,510.68 owed on the note. After giving Husband “credit for $38,500.00 he paid on the real property from his separate funds,” the trial court awarded alimony in lieu of property to Wife in the amount of “$32,494.66 as her share of the remaining equity in the real property. Said amount to be a lien in favor of [Wife] against said property until paid.” From this Decree, Wife filed her appeal. STANDARD OF REVIEW ¶8 Wife’s Brief in Chief challenges the trial court’s property division, date of valuation, and failure to order the sale of their property and divide the proceeds equally. A divorce suit is one of equitable cognizance in which the trial court has discretionary power to divide the marital estate. Colclasure v. Colclasure, 2012 OK 97, ¶ 18, 295 P.3d 1123, 1129. The trial court must follow the provisions of 43 O.S. 2006 § 121 which require a fair and equitable division of property acquired during the marriage by the joint industry of the husband and wife. Id. An appellate court will not disturb the trial court’s property division absent a finding of abuse of discretion or a finding that the decision is clearly contrary to the weight of the evidence. Id. Appellate review of a trial court’s valuation of marital assets is limited to determining if the court’s findings are clearly against the weight of the evidence. Thompson v. Thompson, 2005 OK CIV APP 2, ¶ 18, 105 P.3d 346, 353 (citing Bond v. Bond, 2004 OK CIV APP 3, ¶ 8, 916 P.2d 272, 274. We address the issues argued in Wife’s Brief in reverse order.1 656

ANALYSIS Decree-Ordered Lien ¶9 Wife alleges error with the trial court’s award of the farm to Husband subject to a lien of $32,494.66 without a provision for payments or a time period in which payment had to be paid, which she claims leaves her lien interest under Husband’s control and domination. As authority, Wife cites Blount v. Blount, 1967 OK 74, 425 P.2d 474 and Palmer v. Palmer, 1969 OK 182, 465 P.2d 156, in both of which the trial courts’ property divisions were reversed for failure to completely sever the common title in the property the spouses held as joint tenants. ¶10 Husband argues the trial court’s division complies with 43 O.S.Supp.2012 §121(B), which requires setting apart the title to the real property and its decree-ordered lien authorized by 43 O.S.Supp.2012 §134(A), “secures the payment of her $32,494.66 award of alimony in lieu of property division until said sum is paid in full.” He further argues “the court did not order the amount to be paid in installments, therefore the gross full amount was due and payable upon the entry of the Decree.” ¶11 Based on Wife’s authorities and subsequent precedent, we find no error. Unlike in Blount and Palmer, the trial court in this case completely severed the title to the farm property in favor of Husband. Further, according to one authority cited by the Blount Court, Lawson v. Lawson, 1956 OK 113, 295 P.2d 769, severance of title and a decree ordered lien is a property award free from the claims or domination of the other.2 More importantly, Oklahoma case law supports the validity of a lien entered without a specific due date. In Peters v. Peters, 1975 OK 114, ¶ 2, 539 P.2d 26, 27, the wife sought review of a decree ordered lien that provided “if said property is sold, [husband] is to receive $3,625.00 which represents his equity in said home. This shall create a lien against said property in favor of the [husband].” (Emphasis added.) Relying on Lawson, the Peters Court ultimately found no abuse of discretion based on its conclusion that: The title did not remain jointly in both parties as it did in Blount and Lawson. The husband was given a lien that reflected his equity in the property at the time of the divorce which would become due and payable only at such time as the wife should choose to sell the home. The husband was given no right to dominate the actions of the wife in

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relation to the sale or use of the property. (Emphasis added.) Peters, 1975 OK 114, ¶ 6. The trial court’s lien in this case, which has no order for periodic payments and no due date, permits Husband to pay Wife’s alimony in lieu of property division if and when he chooses, much like the lien in Peters. Based on Peters, we find no abuse of discretion with the trial court’s decree ordered lien. Valuation Amount and Date of Valuation ¶12 Wife also argues the trial court erred by accepting Husband’s valuation of $225,000 when she testified her research indicated the property was worth $300,000, the cash offer the parties received in 2009 and Husband rejected. Neither party presented expert testimony appraising the real property. Wife did not contradict Husband’s testimony about the poor economy and the drop of property prices in the county or the deteriorated condition of the real property. She also admitted both her absence from the area since April 2009 and failure to see the real property and its condition since that time. Her testimony of the value of the same was based on one day’s research of real estate prices in the county and her opinion if she were given 30 days to fix the home the property would again be worth $300,000.00, the cash amount both parties admit was offered 2-3 months after Wife left in 2009. ¶13 The trial court is vested with discretion in determining the cut-off time for the valuation of marital assets, and the date of valuation is to be determined by the trial court after due consideration of all the circumstances of the case. Colclasure v. Colclasure, 2012 OK 97, ¶ 18, 295 P.3d 1123, 1129. The trial court is entitled to choose which testimony to believe as the judge who observes the behavior and demeanor of the witnesses. Mueggenborg v. Walling, 1992 OK 121, ¶ 7, 836 P.2d 112, 114. In light of the above and the meager testimony presented by both parties, we find no legal error or abuse of the trial court’s discretion in setting the valuation amount and the trial date as the date for valuing the real property. Credit for Separate Funds ¶14 Citing Shackelton v. Sharrard, 1963 OK 193, 385 P.2d 898, Wife alleges the trial court erred by giving Husband a credit for his $38,500 down payment because the property was placed then in joint tenancy and a gift was presumed. Husband contends Wife’s cases are Vol. 87 — No. 9 — 3/26/2016

distinguishable because they deal with married parties acquiring property in joint tenancy and as a result, a gift of separate property was presumed. In July 2004, however, he argues the parties were not married, relying on the court’s finding their common-law marriage commenced in October 2005, and claims because said marriage did not arise until a year after the real property’s acquisition, the same presumption of a gift of separate property between husband and wife when property is placed in joint tenancy does not apply. Instead, Husband contends the applicable law is whether there was an inter vivos gift3 and that it is clear from evidence that he had no intention to give $38,500.00 to Wife. ¶15 Wife’s argument is supported by Shackelton, in which the Court held: ...where a man and woman have acquired property in joint tenancy while cohabiting as husband and wife, even under an illegal marriage, the same rule will be applied by analogy as would obtain under a valid marriage. Under such rule it is ordinarily immaterial how much money the wife or husband has actually contributed to the purchase of the property involved because a gift from one to the other is presumed. Absent any fraud or special agreement, where the wife or husband knowingly agrees and consents to the conveyance being made to themselves as joint tenants, either is estopped to deny the tenancy of the other. 1963 OK 193, ¶ 9, 385 P.2d at 900. Her argument is also supported by the clear weight of the evidence. Review of the trial transcript reveals Husband’s testimony is totally void of any reference to fraud or a special agreement between the parties when purchasing the property. He also admitted the parties lived together for a year and incurred debts together on his credit cards prior to moving to Oklahoma, and it is undisputed on the record that they continued to cohabit as man and wife after they moved to this state. Based on Shackelton, the parties’ unmarried status when purchasing the property in 2004 does not preclude application of the presumption of a gift to Husband’s $38,500.00 down payment from his separate funds. ¶16 In addition, Husband admitted as a trial exhibit the parties’ 2004 joint tenancy warranty deed, which expressly conveys the subject

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property to each party “as joint tenants and not as tenants in common with the full rights of survivorship, the whole estate to vest in the survivor in the event of death of either.” The same or similar language “demonstrates the conveying party’s intent,” the effect of which overcomes statutory or common law presumptions of tenancies in common. In the Matter of Estate of Metz, 2011 OK 26, ¶ 10, 256 P.3d 45, 49. “The party seeking to rebut that presumption must present clear and convincing evidence that no gift was intended.” Bartlett v. Bartlett, 2006 OK CIV APP 112, ¶ 7, 144 P.3d 173, 177 (citing Chastain v. Posey, 1983 OK 46, 665 P.2d 1179). “The Oklahoma Supreme Court has clarified this holding to require a party seeking to rebut the gift presumption to present clear and convincing evidence of a purpose for placing the property in joint tenancy which is collateral to intending a gift.” Id., (citing Larman v. Larman, 1999 OK 83, ¶ 9, 991 P.2d 536). Husband has failed to present clear and convincing evidence of a special agreement or of a purpose for using his separate funds and placing the subject property in joint tenancy with Wife other than as a gift to Wife. Consequently, we conclude the trial court erred in giving Husband a $38,500.00 credit and reverse that part of the decree. In all other respects, the trial court’s findings addressed herein are affirmed. However, because our ruling changes Wife’s share of equity in the property, the trial court’s decree must be reversed and the case remanded to the trial court with instructions to enter a new decree of dissolution in accordance with this opinion. AFFIRMED IN PART, REVERSED IN PART AND REMANDED MITCHELL, P.J., and JOPLIN, J., concur. Wm. C. Hetherington, Jr., Chief Judge: 1. Exhibit C attached to Wife’s Petition in Error basically lists seven issues, while her Brief in Chief contains simply three propositions of errors. “Issues raised in the Petition in Error but omitted from the brief may be deemed waived.” Okla.Sup.Ct.R. 1.11(k)(1). To the extent Wife has failed to address in her Brief issues she raised in the Petition in Error, they are deemed waived. 2. Interpreting 12 O.S.1951 § 1278, the predecessor of 43 O.S.Supp.2012 § 121, the Lawson Court held: To comply with the statute, the entire title with right of possession to part of the property should have been given to one and the entire title with right of possession to the remainder should have been given to the other. Neither should have been required to account to the other for what he or she did with the property or the income derived therefrom. If one party thereby was awarded property in excess of what the trial court thought he or she was equitably entitled to, a lien could be established thereon securing the payment of such sum as the court thought necessary to adjust the equities. In other words, the property awarded to each should be free from the claims or domination of the other.” Id., 1956 OK 113, ¶ 7.

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3. Husband cites Cummings v. Garris, 1961 OK 85, 362 P.2d 1106, for the following elements of a gift inter vivos: 1) intention to give; 2) complete delivery of the thing given; 3) acceptance by the donee. Even if we were to conclude Shackelton does not apply in this case, we would find Husband has failed to present evidence to overcome the intent expressed in the 2004 joint tenancy warranty deed of a gift of his separate funds.

2016 OK CIV APP 14 LISA HILL, Plaintiff/Appellant, vs. STATE OF OKLAHOMA, ex. rel. BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA, Defendant/Appellee. Case No. 113,718. December 18, 2015 APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE DON ANDREWS, JUDGE AFFIRMED Bryan G. Garrett, HOLLOWAY, DOBSON & BACHMAN, Oklahoma City, Oklahoma, for Plaintiff/Appellant, Eric A. Moen, Gus H. Buthman, Heidi J. Long, UNIVERSITY OF OKLAHOMA, OFFICE OF LEGAL COUNSEL, Norman, Oklahoma, for Defendant/Appellee. Bay Mitchell, Presiding Judge: ¶1 Plaintiff/Appellant Lisa Hill (“Plaintiff”) appeals the trial court’s dismissal of her negligence claim against Defendant/Appellee State of Oklahoma ex rel. Board of Regents of the University of Oklahoma (“Defendant”). The trial court determined Plaintiff’s notice of injury to Defendant did not comply with the notice requirements of the Governmental Tort Claims Act (“GTCA”), specifically 51 O.S. §156(C). Following our de novo review of the record and applicable law, we affirm the decision of the trial court. ¶2 According to the facts as alleged in Plaintiff’s Petition, on November 16, 2013 Plaintiff was present on the University of Oklahoma Health Sciences Center campus to attend a medical appointment with her son when campus police asked her to leave the facility for unknown reasons. When Plaintiff was outside of the facility but still on campus, the police attempted to restrain or handcuff her causing her to fall to the ground and sustain injuries. Plaintiff’s Petition also stated “Plaintiff has complied with the Governmental Tort Claims Ac[t], and this matter is timely filed.” The Petition contained no other factual assertions relat-

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ed to Plaintiff’s compliance with the notice requirements of 51 O.S. §156(C). ¶3 In response to Plaintiff’s Petition, Defendant filed a Motion to Dismiss arguing that Plaintiff’s Petition should be dismissed pursuant to 12 O.S. §2012(B)(1) or 12 O.S. §2012(B)(6) because Plaintiff did not comply with the notice requirements of 51 O.S. §156(C). Defendant provided an affidavit signed by the Director of Risk Management at the Oklahoma Office of Management and Enterprise Services who stated that he had access to all the files related to tort claims filed against the State of Oklahoma, including the Board of Regents of the University of Oklahoma, and that no claims had been filed by Plaintiff against the Board of Regents or any other state entity. Defendant argued compliance with the notice requirement is a jurisdictional prerequisite to maintaining a tort claim against the state and that failure to specifically plead factual allegations demonstrating compliance leaves a petition which is insufficient to state a claim upon which relief can be granted. ¶4 Plaintiff countered with her Response to Defendant’s Motion to Dismiss and argued that, pursuant to the Supreme Court’s decision in Reirdon v. Wilburton Board of Ed., 1980 OK 67, 611 P.2d 239, she “substantially complied” with the GTCA by providing notice to “The University of Oklahoma Health Science Center, The University of Oklahoma Health Science Center Police Department, OU Medical Center/The Children’s Hospital, and to Amanda Miller, the Directory (sic) of Property and Risk Management of the University of Oklahoma Health Science Center” (hereinafter the “OU entities.”) Plaintiff attached as an exhibit a copy of the letter sent by her counsel to the OU entities dated December 3, 2013 which set forth the details of Plaintiff’s claim of injury. Plaintiff also attached copies of the certified mail receipts showing delivery upon all of the OU entities except the University of Oklahoma Health Science Center Police Department, which received the notice via fax. STANDARD OF REVIEW ¶5 Defendant sought dismissal based on both 12 O.S. §2012(B)(1) (lack of subject matter jurisdiction) and §2012(B)(6) (failure to state a claim). Both Defendant and Plaintiff attached evidentiary materials to their respective filings. A court must convert a motion to dismiss into one for summary judgment if evidentiary Vol. 87 — No. 9 — 3/26/2016

materials are attached to a motion to dismiss for failure to state a claim under §2012(B)(6). E.g., Dyke v. Saint Francis Hospital, 1993 OK 114, ¶7, 861 P.2d 295. However, such conversion is not required for a motion seeking to dismiss for grounds other than failure to state a claim. When deciding a motion to dismiss for absence of jurisdictional prerequisites, courts may review evidentiary materials attached to the motion without converting it to one for summary judgment. Visteon Corp. v. Yazel, 2004 OK CIV APP 52, ¶21, 91 P.3d 690. ¶6 Here, the trial court’s order stated Plaintiff’s Petition was “dismissed for failure to comply with 51 O.S. §156(C).” Compliance with the notice requirement of 51 O.S. §156(C) is a “prerequisite[] to the state’s consent to be sued and to the exercise of judicial power to remedy the alleged tortious wrong by the government.” Shanbour v. Hollingsworth, 1996 OK 67, ¶7, 918 P.2d 73 (internal quotations and citations omitted). Accordingly, the trial court appropriately resolved the issue here under Defendant’s Motion to Dismiss. Regardless, our standard of review is de novo whether reviewing a motion to dismiss or a motion for summary judgment. Indiana Nat. Bank v. State Dept. of Human Services, 1994 OK 98 ¶2, 880 P.2d 371 (setting forth standard of review for a motion to dismiss); Manley v. Brown, 1999 OK 79, ¶22, 989 P.2d 448 (setting for the standard of review for summary judgment). ANALYSIS ¶7 The record shows and Plaintiff does not dispute that her tort claim against Defendant is subject to the GTCA.1 Section 156 provides the first step in bringing an authorized suit under the GTCA is notice. Valid notice of the claim must be given to the government within one year of the alleged tort injury. 51 O.S. §156(B). Section 156 provides in pertinent part: C.  A claim against the state shall be in writing and filed with the Office of the Risk Management Administrator of the Office of Management and Enterprise Services who shall immediately notify the Attorney General and the agency concerned and conduct a diligent investigation of the validity of the claim within the time specified for approval or denial of claims by Section 157 of this title. A claim may be filed by certified mail with return receipt requested. A Claim which is mailed shall be consid-

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ered filed upon receipt by the Office of the Risk Management Administrator. (Emphasis added.) ¶8 Plaintiff unquestionably failed to comply with the statutory notice requirements as she did not provide notice of her injury to the Office of Risk Management as provided in 51 O.S. §156(C). Instead, Plaintiff argues her notice to the OU entities meets the “substantial compliance” doctrine as set forth in Reirdon. We reject this argument. First, the tenets of statutory construction mandate that when “a statute is plain and unambiguous, it will not be subjected to judicial construction but will receive the effect its language dictates.” Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶9, 130 P.3d 213. Section 156 plainly sets forth how a claimant is to provide notice under the GTCA and leaves no discretion for how a claimant is to submit a notice of injury. See Keating v. Edmondson, 2001 OK 110, ¶13, 37 P.3d 882 (“Generally, when the Legislature uses the term ‘shall’, it signifies a mandatory directive or command.”) Here, Plaintiff failed to comply with the mandatory notice requirements of the GTCA.2 Accordingly, the trial court correctly dismissed her suit for such failure. ¶9 Second, the “substantial compliance” doctrine as initially set forth in Reirdon is inapplicable to the facts of this case. In Reirdon, the trial court granted the Wilburton School Board’s demurrer to the plaintiff’s petition which alleged the trial court did not have jurisdiction over the suit because the plaintiff filed her notice of injury with the president of the school board rather than the clerk of the school board as required by the predecessor to the GTCA.3 Reirdon, 1980 OK 67, ¶2. On appeal the plaintiff argued she had “substantially complied” with the statute by providing notice to the president of the school board and that the school was estopped from invoking the notice provisions of the act. In overturning the trial court’s grant of the demurrer the Supreme Court noted the record showed that the school board discussed the plaintiff’s claim at a meeting, hired an attorney, entered a general appearance in the lawsuit, and could not demonstrate any prejudice because the notice was presented to the president of the school board as opposed to the clerk. ¶10 Unlike in Reirdon, the trial court here was not faced with a government defendant who treated a claimant’s notice of injury as valid 660

only to reverse its position when suit was actually filed. There is no evidence in the record that Defendant responded in any manner to Plaintiff’s letter to the OU entities. Defendant maintained a consistent position that Plaintiff’s claim of injury did not comply with the notice requirements of the GTCA.4 ¶11 As in Reirdon, other cases which have applied the “substantial compliance” doctrine have done so in circumstances where the government entity being sued acted in a manner where it treated the allegedly invalid notice as acceptable or otherwise responded to such notice only to change position when a lawsuit was actually filed. For example, in Mansell v. City of Lawton, 1995 OK 81, ¶¶4-6, the claimant sent a letter to the city clerk giving details of his alleged injury. The city responded asking for additional information to which the claimant provided a preliminary response. Later, when the claimant filed suit but before he supplemented his response, the city argued the initial letter did not constitute valid notice for purposes of calculating the deadline for claimant to file suit after denial of his claim. The Supreme Court rejected the city’s argument finding that the information provided by the claimant in his initial letter fulfilled the notice requirements of the GTCA. Id. at ¶¶9-10. Cf. Juvenal v. Okeene Public Schools, 1994 OK 83, ¶¶8-10, 878 P.2d 1026 (public works authority could not claim that undisputably valid GTCA notice to city was insufficient to put it on notice when the city’s board of trustees oversaw the public works authority). ¶12 Additionally, the continued validity of the “substantial compliance” doctrine is, at best, questionable. Hathaway v. State ex rel. Medical Research & Technical Authority, 2002 OK 53, n. 25, 49 P.3d 740 (stating that Lucas v. Ind. Public School Dist. No. 35, 1983 OK 121, ¶7, 674 P.2d 1131 has been superseded by statute only to the extent that it stands for the proposition that notice provisions may be satisfied through substantial compliance) (relying on Minie v. Hudson, 1997 OK 26, ¶6, 934 P.2d 1082). All of the cases relied on by Plaintiff were decided prior to the Supreme Court’s decision in Minie v. Hudson. There, the claimant relied on early “substantial compliance” case law to argue that verbal communication to the governmental entity may “substantially comply” with the GTCA’s notice requirements. Minie, 1997 OK 26, ¶¶6-7. In rejecting this argument, the Supreme Court held that the 1985 amendments

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to the GTCA specifically required notice to political subdivisions to be in writing, which directly contravened many of the Court’s earlier decisions upholding substantial compliance. Id. (rejecting the earlier decision of Dusterhaus v. City of Edmond, 1981 OK 107, 634 P.2d 720, which held that verbal notice to a city’s insurer substantially complied with the applicable notice provisions). ¶13 As the Court of Civil Appeals, Div. 2 recently noted, while “Minie does not speak directly to the requirement for filing a claim with the [designated governmental recipient] .… , Minie [nonetheless] abrogated the doctrine of substantial compliance.” Duncan v. City of Stroud, 2015 OK CIV APP 28, ¶¶ 11-15, 346 P.3d 446 (finding unpersuasive a plaintiff’s argument that a letter which was not filed with the city clerk could constitute valid notice under the GTCA). Considering the undisputed fact that Plaintiff here did not provide notice to the Office of Risk Management as required by the GTCA along with the mandatory statutory language and the questionable validity of prior “substantial compliance” case law, we agree with the trial court’s dismissal of Plaintiff’s suit. See Slawson v. Board of County Comm’rs of Logan County, 2012 OK 87, ¶6, 288 P.3d 533 (“The limitations of the Tort Claims Act are narrowly structured, and a grant of substantial compliance under the general procedural regime is not allowed.”) (Emphasis added.) The decision of the trial court is AFFIRMED.

HETHERINGTON, C.J., and JOPLIN, J., concur. Bay Mitchell, Presiding Judge: 1. The GTCA provides that the State of Oklahoma has adopted the doctrine of sovereign immunity and that liability is waived only to the extent provided in the GTCA. 51 O.S. §152.1. Further, the GTCA defines “State” as “the State of Oklahoma or any office, department, agency, authority, commission, board, institution, hospital, college, university, public trust ... or other instrumentality thereof...” which undisputably includes Defendant here. Id. at §152(12). 2. Plaintiff’s Petition and Defendant’s Motion to Dismiss provide that this is Plaintiff’s second lawsuit against Defendant. Plaintiff filed her first suit on July 18, 2014 and voluntarily dismissed it without prejudice. Defendant’s Motion to Dismiss states that Plaintiff dismissed her first suit in response to Defendant’s motion to dismiss which also argued Plaintiff failed to comply with the notice requirements of the GTCA. 3. The Political Subdivision Tort Claims Act was renamed the Governmental Tort Claims Act in 1984. 1984 Okla. Sess. Laws, ch. 226, §1. Like the current version of the GTCA, the Political Subdivision Tort Claims Act required notice to a political subdivision (i.e., a school district) to be filed with the “clerk of the governing body of the political subdivision.” Compare 51 O.S.Supp. 2015 §156(D) with 51 O.S.Supp. 1978 §156(C). 4. Later case law further defined the “substantial compliance” doctrine and provided that “substantial compliance with the notice provisions of the Act is sufficient when the political subdivision is not prejudiced, and the provided information satisfies the purposes of the statutory notice requirement.” Mansell v. City of Lawton, 1995 OK 81, ¶9, 901 P.2d 826. One of the issues Plaintiff raised on appeal is whether Defendant “suffered any prejudice by the method the tort claim notice was sent.” First, we note that the continued validity of the “substantial compliance” doctrine is questionable as discussed below. Second, we find no support for Plaintiff’s implication that a governmental defendant bears the burden to demonstrate prejudice when a claimant admittedly fails to comply with the strict notice requirements of the GTCA, especially when, as here, the governmental defendant consistently treats the notice as invalid. This position is further supported by the substantial compliance cases decided prior to the Supreme Court’s decision in Minie v. Hudson, 1997 OK 26, 934 P.2d 1082. In these cases the governmental defendants treated the notices as acceptable only to change position when the claimants actually filed suit. Reirdon, Mansell, Juvenal, infra. Clearly, the defendants in those cases did not suffer prejudice as demonstrated by their responses to the claimants’ notices.

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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS Wednesday, February 24, 2016 F-2015-413 — Robert Wayne Collins, Appellant, was tried by jury for the crime of Assault and Battery with a Deadly Weapon in Case No. CF-2013-4004 in the District Court of Oklahoma County. The jury returned a verdict of guilty and recommended as punishment five years imprisonment. The trial court sentenced accordingly. From this judgment and sentence Robert Wayne Collins has perfected his appeal. AFFIRMED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., concur; A. Johnson, J., concur; Lewis, J., concur; Hudson, J., concur. F-2014-862 — Eddie James Thompson, Appellant, was tried by jury for the crimes of Count I - First Degree Murder (Malice Aforethought), Count II - Burglary in the First Degree, Count III - Kidnapping and Count IV - Kidnapping in Case No. CF-2012-1636 in the District Court of Cleveland County. The jury returned a verdict of guilty and recommended as punishment life imprisonment without the possibility of parole on Count I, and life imprisonment on each of Counts II, III and IV, to run consecutively. The trial court sentenced accordingly. From this judgment and sentence Eddie James Thompson has perfected his appeal. AFFIRMED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., concur in result; A. Johnson, J., concur; Lewis, J., concur; Hudson, J., concur. C-2015-599 — Petitioner Calet Israel Vernal was charged with Trafficking in Illegal Drugs (Methamphetamine) (Count I); Possession of a Controlled Dangerous Substance (Marijuana) with Intent to Distribute (Count II); Possession of Drug Proceeds Derived from a Violation of the Uniform Controlled Dangerous Substances Act (Count III); Possession of a Controlled Dangerous Substance (Marijuana) in the Presence of a Minor Under Twelve (Count IV); Possession of an Offensive Weapon while Committing a Felony (Count V); and Possession of a Firearm After Former Conviction of a Felony (Count VI) in the District Court of Oklahoma County, Case No. CF-2014-2032. On May 15, 2015, Petitioner entered a guilty plea to each of the above charges before the Honorable Glenn M. Jones, 662

District Judge. The pleas were accepted and Petitioner was sentenced to imprisonment for thirty (30) years in Count I and eighteen (18) years in each of Counts II – VI. All sentences were ordered to run concurrently. In a handwritten letter dated May 22, 2015, and filed with the District Court on May 27, 2015, Petitioner asked to withdraw his guilty pleas. The Court accepted the filing as a motion to Withdraw Guilty Plea and on June 19, 2015, held a hearing wherein Petitioner was represented by counsel. The District Court denied the application as not timely filed. It is that denial which is the subject of this appeal. The order of the District Court denying Petitioner’s motion to withdraw guilty plea is AFFIRMED. Opinion by: Lumpkin, V.P.J.; Smith, P.J., Concur; Johnson, J., Concur; Lewis, J., Concur; Hudson, J., Concur. Thursday, February 25, 2016 C-2015-170 — Tommy Montana Wheeler, Petitioner, was charged with one count of Robbery with a Firearm, in Case No. CF-2008-5609, in the District Court of Tulsa County. Petitioner entered a negotiated plea of guilty to this charge before the Honorable Tom C. Gillert, District Judge. Petitioner’s plea was accepted and the district court sentenced Petitioner to thirty years imprisonment, a $500.00 fine and a $250.00 Victim of Crime assessment. After being granted an appeal out of time by this Court — Petitioner filed a motion to withdraw his plea of guilty with Judge Gillert. A hearing was held and Judge Gillert denied Petitioner’s motion to withdraw. Wheeler now appeals the district court’s denial of his motion to withdraw his plea of guilty and seeks a Writ of Certiorari. The Petition for Writ of Certiorari is DENIED. Opinion by: Hudson, J.; Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs in Results; Johnson, J., Concurs; Lewis, J., Concurs. F-2014-1017 — John Paul Noland, Appellant, was tried by jury, in Case No. CF-2012-141, in the District Court of Oklahoma County, for the crime of two counts of Indecent or Lewd Acts with a Child Under Sixteen. Each count alleged different victims — S.E. (Count 1) and S.S. (Count 2). The jury acquitted Noland on Count

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1, however, convicted him on Count 2 and recommended a twenty-five year term of imprisonment. The Honorable Cindy H. Truong, District Judge, sentenced Noland in accordance with the jury’s verdict. From this judgment and sentence John Paul Noland has perfected his appeal. AFFIRMED. Opinion by: Hudson, J.; Smith, P.J., Concurs in Results; Lumpkin, V.P.J., Concurs in Results; A. Johnson, J., Concurs; Lewis, J., Concurs. Friday, February 26, 2016 RE-2014-1079 — Appellant, Emmett Leon Van, pled guilty May 27, 2009, to Knowingly Concealing Stolen Property, a felony, in Washington County District Court Case No. CF-2008201. He was given a ten year sentence with sixty days to serve in the County Jail, credit for time served, and the balance suspended with rules and conditions of probation. He was also fined $1,000.00. The State filed a motion to revoke Appellant’s suspended sentence on January 6, 2014. On November 25, 2014, Appellant stipulated to the grounds stated in the application to revoke. The Honorable Curtis DeLapp, District Judge, accepted Appellant’s stipulation and found Appellant violated the terms and conditions of his probation. At a sentencing hearing on December 9, 2014, Judge DeLapp revoked the remaining balance of Appellant’s suspended sentence. Appellant appeals the revocation of his suspended sentence. The revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by: Hudson, J.; Smith, P.J.: Concurs; Lumpkin, V.P.J.: Concurs; Johnson, J.: Concurs; Lewis, J.: Concurs. F-2014-1019 — Charles Leonard Bennett, III, Appellant, was tried in a bench trial before the Honorable Timothy R. Henderson for the crime of Assault and Battery with a Deadly Weapon in Case No. CF-2012-7254 in the District Court of Oklahoma County. Judge Henderson found Bennett guilty and sentenced him to fifteen years imprisonment. From this judgment and sentence Charles Leonard Bennett, III has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. The District Court’s restitution order is VACATED and the case is REMANDED to the District Court for a proper determination on the issue of loss in accordance with this opinion. Opinion by: Johnson, J.; Smith, P.J., concurs; Lumpkin, V.P.J., concurs in results; Lewis, J., concurs; Hudson, J., concurs.

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F-2014-939 — Ryan Lee Nixon, Appellant, was tried by jury for the crimes of Manufacturing a Controlled Dangerous Substance (Count 1) and Possession of a Controlled Dangerous Substance (Count 2), in Case No. CF-2013-407, in the District Court of Washington County. The jury returned a verdict of guilty and recommended Nixon serve fifteen years imprisonment and pay a fifty thousand dollar ($50,000.00) fine on Count 1, and two years imprisonment and pay a five thousand dollar ($5,000.00) fine on Count 2. The Honorable Russell Vaclaw, Associate District Judge, sentenced Nixon in accordance with the jury’s verdict, but suspended the fine imposed on Count 2. Judge Vaclaw also ordered Nixon’s sentences be run concurrently and directed that Nixon be given credit for time served. From this judgment and sentence Ryan Lee Nixon has perfected his appeal. The Judgment and Sentence for Manufacturing a Controlled Dangerous Substance is AFFIRMED. The Judgment and Sentence for Possession of a Controlled Dangerous Substance is REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS. Opinion by: Hudson, J.; Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; A. Johnson, J., Concurs; Lewis, J., Concurs. Tuesday, March 1, 2016 RE-2015-84 — Nicholas James Hosley, Appellant, appeals from his termination from drug court and revocation of his ten year suspended sentence in Case No. CF-2011-221 the District Court of Wagoner County, by the Honorable Darrell G. Shepherd, District Judge. AFFIRMED. Opinion by: Hudson, J.; Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Lewis, J., Concurs. F-2014-1005 — Appellant, Harvey Randall Wilson, was tried by jury and found guilty of Count 1, conspiracy to commit a felony (burglary and/or first degree murder), in violation of 21 O.S.2011, § 421; Count 2, murder in the first degree, in violation of 21 O.S.2011, § 701.7(A); and Count 3, burglary in the second degree, in violation of 21 O.S.2011, § 1435; in the District Court of Cleveland County, Case No. CF-2013-576. The jury sentenced Appellant to ten (10) years imprisonment and a $5,000 fine in Count 1, life imprisonment without the possibility of parole and a $10,000 fine in Count 2, and seven (7) years imprisonment and a $10,000 fine in Count 3. The Honorable Lori Walkley, District Judge, pronounced judgment and ordered the terms of imprisonment

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served consecutively, but declined to impose the fines assessed by the jury. The trial court sentenced accordingly. AFFIRMED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Concurs. F-2014-944 — Thomas Craig Levering, Appellant, was tried by jury and found guilty of first degree murder, in violation of 21 O.S.Supp.1973, § 701.1, in the District Court of Oklahoma County, Case No. CF-2013-675. The jury sentenced Appellant to life imprisonment. The Honorable Ray C. Elliott, District Judge, pronounced judgment and ordered the sentence served consecutively to six (6) life sentences in Case No. CF-2011-729. The trial court sentenced accordingly. From this Judgment and Sentence, Appellant has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Concurs. Wednesday, March 2, 2016 C-2015-664 — Trent Gene Veasey, Petitioner, entered unnegotiated guilty pleas to the crimes of Count 1 - Possession of Methamphetamine, After Conviction of Two or More Felonies, and Count 2 - Possession of Drug Paraphernalia in Case No. CF-2014-137 in the District Court of Kay County. He was sentenced to 15 years imprisonment with the last five suspended on Count 1 and one year in the county jail on Count 2, to be served concurrently. Petitioner filed a Motion to Withdraw Pleas and at a June 20, 2015, hearing, the district court denied his request. Trent Gene Veasey has perfected his certiorari appeal. CERTIORARI DENIED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., Concur in Result; A. Johnson, J., Concur; Lewis, J., Concur; Hudson, J., Concur. F-2015-281 — John Simpson, Appellant, was tried by jury for the crime of Assault with a Dangerous Weapon, After Conviction of Two or More Felonies in Case No. CF-2014-5149 in the District Court of Oklahoma County. The jury returned a verdict of guilty and recommended as punishment 20 years imprisonment. The trial court sentenced accordingly. From this judgment and sentence John Simpson has perfected his appeal. AFFIRMED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., Concur; A. Johnson, J., Concur; Lewis, J., Concur; Hudson, J., Concur. C-2015-421 — Brandon Shane Christian, Petitioner, entered a blind plea of nolo contendere 664

to the crime of Second Degree Murder, after former conviction in Case No. CF-2013-191 in the District Court of Garvin County. Before formal sentencing, Christian moved to withdraw his plea. After a hearing, the motion to withdraw plea was denied. On March 30, 2015, Christian was sentenced to life imprisonment. Christian filed a second motion to withdraw plea, and after a hearing, the motion was denied. Brandon Shane Christian has perfected his certiorari appeal. PETITION FOR CERTIORARI DENIED; APPLICATION FOR EVIDENTIARY HEARING DENIED. Opinion by: Smith, P.J.; Lumpkin, V.P.J., Concur in Result; A. Johnson, J., Concur; Lewis, J., Concur; Hudson, J., Concur. Tuesday, March 8, 2016 F-2014-574 — On October 29, 2010, Appellant Eric Lee Houston stipulated to the second amended application to revoke Appellant’s suspended sentence in Garfield County Case No. CF-2008-125. On March 15, 2012, Appellant entered pleas of guilty in Garfield County Case Nos. CF-2009-658 and CF-2010-194. Sentencing was delayed in all three cases pending completion of Garfield County Adult Sobriety Court. On December 4, 2013, the State filed a motion to terminate Appellant’s participation in drug court. Following a hearing on the application, the Honorable Paul K. Woodward, District Judge, sustained the State’s application to terminate Appellant’s participation in drug court and sentenced Appellant pursuant to his drug court plea agreement. Appellant appeals. The termination of Appellant’s participation in drug court is AFFIRMED. Opinion by: Johnson, J.; Smith, P.J.: Concur; Lumpkin, V.P.J.: Concur; Lewis, J.: Concur; Hudson, J.: Concur RE-2015-180 — In the District Court of Oklahoma County, Case No. CF-2013-6027, Appellant, Decarlos Marquis Latham, while represented by counsel, entered pleas of guilty to two counts of Rape in the First Degree. In accordance with a plea agreement, the Honorable Cindy H. Truong, District Judge, on September 10, 2013, imposed a sentence of twelve (12) years imprisonment on each count, ordered those sentences to be served concurrently, and suspended their execution conditioned on Appellant’s compliance with written rules of probation. On February 18, 2015, Judge Truong found Appellant had violated his probation and revoked the suspension order in full. Appellant appeals this final order of revocation. REVERSED AND REMANDED. Opinion

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by: Hudson, J.; Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Lewis, J., Concurs.

Lewis, J.; Smith, P.J.: Specially Concurs; Lumpkin, V.P.J.: Concurs; Johnson, J: Concurs; Hudson, J.: Concurs.

C-2015-517 — Petitioner, Lawrence Raymond Tucker, entered a no contest plea to, counts one and two, first degree rape in violation of 21 O.S.2011, § 1114(A)(1), and count three, lewd or indecent acts with a child under 12 years of age, in violation of 21 O.S.2011, § 1123(A)(2), in Pontotoc County District Court case number CF-2014-84 before the Honorable Steven Kessinger, District Judge. Judge Kessinger accepted the pleas on February 6, 2015, and ordered a presentence investigation. On the same day, Tucker filed a motion to withdraw his plea. The trial court did not hold a hearing on the motion until after sentencing. At the sentencing hearing, the trial court sentenced Tucker to thirty (30) years imprisonment on each count, ordering that the sentences be served concurrently. A hearing on the motion to withdraw, which had been amended by new counsel, was held on May 21, 2015. After the hearing, the trial court denied the motion. Petitioner has perfected his appeal. The trial court’s decision to deny Tucker’s motion to withdraw plea is AFFIRMED and the Application for Writ of Certiorari is DENIED. Opinion by: Lewis, J.; Clancy Smith, P.J., Concurs; Lumpkin, V.P.J., Concurs; Johnson, J., Concurs; Hudson, J., Concurs.

Wednesday, March 9, 2016

F-2014-0783 — Appellant, Stuart Chance Jones (date of birth May 16, 1991), pled guilty September 12, 2008, as a Youthful Offender to Burglary - First Degree in Tulsa County District Court Case No. CF-2008-2232. He was sentenced to seven years as a Youthful Offender with the term to be served under the custody of OJA. He was also fined $500.00. Appellant was bridged to the Department of Corrections on January 4, 2010, and was given a deferred sentence for a period of five years, until February 9, 2015, with rules and conditions of probation. The State filed an application to accelerate Appellant’s deferred sentence on May 27, 2014. Following an acceleration hearing on August 25, 2014, the Honorable Mark Barcus, District Judge, found the State had met its burden, by the preponderance of the evidence, and sustained the State’s application. Judgment and Sentence was entered and Appellant was sentenced to seven years imprisonment. Appellant appeals from the acceleration of his deferred sentence. The acceleration of Appellant’s deferred sentence is AFFIRMED. Opinion by:

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F-2015-287 — Steven John Keeto, Appellant, was tried by jury for the crime of Assault and Battery with a Dangerous Weapon in Case No. CF-2014-363 in the District Court of Custer County. The jury returned a verdict of guilty and recommended as punishment imprisonment for twenty (20) years. The trial court sentenced accordingly. From this judgment and sentence Steven John Keeto has perfected his appeal. The Judgment and Sentence is hereby AFFIRMED. Opinion by: Lumpkin, V.P.J.; Smith, P.J., Concur in Results; Johnson, J., Concur in Results; Lewis, J., Concur; Hudson, J., Concur. F-2015-156 — Danny Mack West, Appellant, was tried by jury for the crime of First Degree Robbery, After Former Conviction of Two or More Felonies in Case No. CF-2014-3204 in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment twenty years imprisonment and a $36.00 fine. The trial court sentenced accordingly. From this judgment and sentence Danny Mack West has perfected his appeal. The Judgment and Sentence of the District Court is AFFIRMED. Request for oral argument is DENIED. Opinion by: A. Johnson, J.; Smith, P.J., concurs; Lumpkin, V.P.J., concurs; Lewis, J., concurs; Hudson, J., concurs. Thursday, March 10, 2016 RE-2015-5 — In the District Court of Payne County, Case No. CF-2013-504, David Arlen Williams, Appellant, while represented by counsel, entered a plea of guilty to Domestic Assault and Battery in Presence of a Child, a Second or Subsequent Offense. On December 27, 2013, the Honorable Phillip C. Corley, District Judge, sentenced Appellant in accordance with a plea agreement to four (4) years imprisonment, with all but the first 120 days of that term suspended under written conditions of probation. On December 18, 2014, Judge Corley found Appellant violated his probation and revoked the suspension order in full. Appellant appeals the final order of revocation. AFFIRMED. Opinion by: Johnson, J.; Smith, P.J., concurs; Lumpkin, V.P.J., concurs; Lewis, J., concurs; Hudson, J., concurs.

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Friday, March 11, 2016 F-2015-569 — The State charged Appellant Derek Anthony Williams with Injuring or Burning a Public Building, After Former Conviction of Two or More Felonies (Count 1) and Attempted Escape from County Jail while Being Held for Felony Offenses, After Former Conviction of Two or More Felonies (Count 2) in Case No. CF-2014-26 in the District Court of Roger Mills County. Williams entered a guilty plea to Count 1 prior to trial and does not appeal that conviction. The Honorable Jill Weedon, Associate District Judge, found Williams guilty of Count 2 in a non-jury trial and sentenced him to twenty years imprisonment on Count 2 and twenty years imprisonment resulting from his plea to Count 1. The sentences were ordered to be served concurrently with each other and concurrently with the sentences imposed in Case No. CF-2014-23. Williams appeals his judgment and sentence in Count 2. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: Johnson, J.; Smith, P.J., concurs; Lumpkin, V.P.J., concurs; Lewis, J., concurs; Hudson, J., concurs. COURT OF CIVIL APPEALS (Division No. 1) Friday, February 19, 2016 112,940 — Virginia Gamble, Plaintiff/Appellant, vs. Stephen L. Waldrup and Patricia Waldrup, Defendants/Appellees. Appeal from the District Court of Atoka County, Oklahoma. Honorable Preston Harbuck, Judge. Plaintiff/ Appellant Virginia Gamble (“Plaintiff”) seeks review of a judgment entered in favor of Defendants/Appellees Stephen L. Waldrup and Patricia Waldrup (collectively, “Defendants.”) Plaintiff filed an action against Defendants seeking to quiet title to approximately 9.2 acres in Atoka County (the “Subject Property”) which she claimed through adverse possession. Plaintiff also sought monetary damages incurred when Plaintiff had to build a temporary fence after Defendants removed a fence on the Subject Property and for her loss in income due to a reduction in the size of her cattle herd caused by the loss of access to the Subject Property. Defendants denied Plaintiff met the elements of adverse possession and filed a counterclaim wherein they sought to quiet title to the Subject Property in their names because they were the record title holders. Following a bench trial, the trial court entered judgment in favor Defendants and, upon the Defendants’ motion, ordered Plaintiff to 666

pay $1,059.49 in attorney fees and costs. On appeal, Plaintiff argues the judgment is against the clear weight of the evidence and that Plaintiff has no right to recover attorney fees or costs in this case. Plaintiff’s evidence falls short of a clear and specific case for adverse possession especially considering Defendants presented evidence directly contradicting Plaintiff’s assertions. Plaintiff did not present clear and positive evidence demonstrating her use of the Subject Property by grazing cattle on it was adverse, hostile, exclusive or continuous. That portion of the trial court’s order is affirmed. Regarding attorney fees, we conclude Plaintiff made a claim for physical injury to property, and Defendants, as the prevailing parties, are entitled to attorney fees. We cannot say the trial court abused its discretion in how it apportioned the attorney fees pursuant to 12 O.S. §940. However, the court failed to identify the recoverable costs pursuant to 12 O.S. §942. Defendants may not have been entitled to recover all of the costs which the court lumped in with the award of attorney fees. On remand, the court is instructed to identify which costs are recoverable pursuant to §942 before apportioning the same. AFFIRMED IN PART; VACATED IN PART; REMANDED WITH INSTRUCTIONS. Opinion by Mitchell, J.; Buettner, V.C.J., P.J., and Goree, J., concur. 113,163 — In Re the Marriage of Jeanett Lupton Leibold and William Leibold: Jeanett Lupton Leibold, Petitioner/Appellant, vs. William Leibold, Respondent/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Don Andrews, Trial Judge. Wife and Husband were married approximately five years. In their Decree of Dissolution, among other things, the trial court equally divided the parties’ joint bank accounts, awarded each of them their separate retirement accounts, awarded Wife the marital home subject to the mortgage, and awarded Husband $144,544.94 as alimony in lieu of property division. We affirm the trial court’s decision. AFFIRMED. Opinion by Goree, J.; Buettner, V.C.J., P.J., and Mitchell, J., concur. 113,328 — Kambre Deshon Smith, S.F., and K.F., Petitioners/Appellants, vs. Peter Xiaouhua Fu, Respondent/Appellee. Appeal from the District Court of Caddo County, Oklahoma. Honorable David A. Stephens, Judge. Petitioners/Appellants Kambre Deshon Smith (Mother), S.F., and K.F., minor children, appeal from the trial court’s orders denying Mother’s

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motion to reconsider its order transferring her petition for a victim’s protection order on behalf of her and her children to a court in the state of Washington and awarding Respondent/Appellee Peter Xiaouhua Fu (Father) attorney fees and costs. We hold that according to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) Washington has exclusive and continuing jurisdiction over child custody proceedings, including this proceeding for protection from domestic violence and, therefore, the trial court properly transferred the case to Washington. After de novo review, we hold that Father is not entitled to attorney fees and costs under the Protection from Domestic Abuse Act. AFFIRMED IN PART AND REVERSED IN PART. Opinion by Buettner, V.C.J., P.J.; Mitchell, J., and Goree, J., concur. 113,404 — Miranda Long, Petitioner/ Appellee, vs. Charles Long, III, Respondent/ Appellant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Howard R. Haralson, Judge. Respondent/Appellant Charles Long, III (Father) appeals the denial of his motion to disqualify the trial judge and the trial court’s order modifying the decree of dissolution of marriage by terminating joint custody and awarding sole custody to Petitioner/Appellee Miranda Long. We hold denying Father’s motion to disqualify was not an abuse of discretion and evidence supports the trial court’s order terminating joint custody. AFFIRMED. Opinion by Buettner, V.C.J., P.J.; Mitchell, J., and Goree, J., concur. 113,497 — Lucia Jasso, Petitioner, vs. Taco Bueno Restaurants, Inc., and American Zurich Insurance Co., Insurance Carrier, Respondents. Proceeding to Review an Order of a ThreeJudge Panel of The Workers’ Compensation Court of Existing Claims. Petitioner/Appellant, Lucia Jasso (Claimant), seeks review of an order of a three-judge panel of the Workers’ Compensation Court of Existing Claims denying Claimant’s request for surgery. We sustain the panel’s order because it is neither contrary to law nor against the clear weight of the evidence. SUSTAINED. Opinion by Goree, J.; Buettner, V.C.J., P.J., and Mitchell, J., concur. 113,901 — Oklahoma Department of Health, Petitioner, vs. Eli Franco, and The Workers’ Compensation Court of Existing Claims, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court of Existing Claims. Petitioner Vol. 87 — No. 9 — 3/26/2016

(Employer) seeks review of an order of a Three-Judge Panel of the Workers’ Compensation Court of Existing Claims which vacated the decision of the trial court and ordered Employer to provide treatment in the form of a total knee replacement for Respondent (Claimant). Claimant suffered an undisputably compensable injury in July 2005. At the time of injury, this Court employed an “any competent evidence” standard of review for factual determination. Claimant’s treating physician opined that, while Claimant needed a total left knee replacement, the reason for such treatment was not the work-related injury but rather degenerative joint disease, while the independent medical examiner opined the work-related injury was the cause of the need for a total left knee replacement. Once the trial court made a finding, which was also admitted by Employer, that Claimant’s injury was work-related, such a finding necessarily included a finding on major cause. Once compensability has been determined, an employer cannot challenge a “particular type of treatment for the undisputably compensable injury” based on the argument that the employment was not the “major cause” of the need for the particular type of treatment. The necessity of the total knee replacement was supported by competent evidence in the form of both physicians’ opinions. The order of the three-judge panel is SUSTAINED. Opinion by Mitchell, J.; Buettner, V.C.J., P.J., and Goree, J., concur. (Division No. 2) Friday, February 19, 2016 114,435 — Jason Cole, Plaintiff/Appellant, vs. Robert Feather and Jennifer Feather, Defendants/Appellees. Appeal from an Order of the District Court of Osage County, Hon. Bruce David Gambill, Trial Judge. The plaintiff, James Cole (Cole), appeals an Order granting the defendants, Robert Feather and Jennifer Feather (Feather), summary judgment. On July 1, 2014, Feather filed a forcible entry and detainer (FED) case in small claims court. The FED action asked for possession and past due rent in the sum of $900.00. Cole appeared at the trial pro se. On July, 10, 2014, the small claims judge entered a small claims court “minute and/or judgment.” On January 20, 2015, Cole filed an amended suit in the District Court for Creek County, Oklahoma claiming damages “in excess of the amount required for diversity jurisdiction” for his injuries that he claimed occurred at the rental property. Feather argued

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first that Cole’s claim was a compulsory counterclaim in the FED action pursuant to 12 O.S.2011, § 2013(A). Feather maintained that the doctrine of “res judicata” barred Cole’s action because Cole’s action was a compulsory counterclaim and, not having been asserted, it is now barred by the prior FED judgment. Statutory authority for a forcible entry and detainer action to be adjudicated in a proceeding in a small claims court is found in that portion of Title 12 on forcible entry and detainer and not in that portion involving small claims procedure. A forcible entry and detainer action is governed by 12 O.S.2011, §§ 1148.1-1148.16, and is discrete from a small claims action that is governed by 12 O.S.2011, §§ 1751-1773. The forcible entry and detainer statutes limit the type of defenses and counterclaims that may be presented and Cole’s claim here is not one of those. Therefore, the trial court erred by granting summary judgment on the premise that, having failed to assert a compulsory counter claim, Cole’s lawsuit here is barred. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Rapp, J.; Thornbrugh, P.J., and Barnes, J., concur. Monday, February 22, 2016 113,973 — Oklahoma Association of Broadcasters, Inc., Plaintiff/Appellant, v. City of Norman, Norman Police Department, District Attorney Office for the Twenty First Judicial District, Defendants/Appellees. Appeal from the District Court of Cleveland County, Hon. Thad Balkman, Trial Judge. Plaintiff/Appellant (OAB) appeals from a “Journal Entry” (Order) of the district court granting a motion to dismiss made by Defendants/Appellees dismissing OAB’s petition for declaratory, injunctive and mandamus relief under the Open Records Act, 51 O.S. 2011 §§ 24A.1-24A.30, because OAB alleged it was denied access to a public record, a certain video surveillance recording. Among the issues OAB asserts on appeal is whether the surveillance video that captured a criminal act and was the basis for a probable cause affidavit for an arrest warrant shows the facts of an arrest or cause for an arrest referenced in 51 O.S. 2011 § 24A.8(A), and whether “arrest” includes a defendant’s voluntary submission to the custody of a court after an affidavit of probable cause has been filed and an information has been filed. Based on the record and applicable facts, we conclude the trial court did not err in determining no 668

arrest occurred; thus, OAB had no right to access the public record pursuant to the provisions of § 24A.8(A). However, we further conclude the trial court erred in dismissing OAB’s petition for injunctive and declaratory relief because OAB has alleged a cognizable legal theory for access to the surveillance video pursuant to 51 O.S. 2011 § 24A.8(B) and no determination was made by the trial court that the reasons for denial of access (whatever they may be) outweigh the public’s interest to access the surveillance video, a public record. Accordingly, we reverse the Order and remand for further proceedings. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Thornbrugh, P.J., and Rapp, J., concur. 112,760 — In re the Marriage of: Margaret L. Kannard, Petitioner/Appellant, vs. John L. Kannard, Respondent/Appellee. Proceeding to review a judgment of the District Court of Oklahoma County, Hon. Lisa K. Hammond, Trial Judge. Margaret Kannard (Mother) appeals the amount of a fee award in her favor following John Kannard’s (Father) attempt to change custody of the couple’s minor children. Mother sought $98,283 in fees, but the court awarded Mother only $50,000. Mother argues that she was entitled to a mandatory full-fee award pursuant to 43 O.S. § 112(D)(2), rather than discretionary fees pursuant to 43 O.S. § 110(D), because Father’s litigation conduct was “contrary to the best interests of the children.” We find that Mother has not shown the court’s decision on this question to be an abuse of discretion. Mother next alleges that the district court’s fee award is invalid because the court made no findings pursuant to State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659. Although certain Burk factors may be applicable to, or overlap the general criteria for fees pursuant to § 110(D), we find no directive by the Supreme Court that the entire Burk procedure is mandatory in these cases, or that a court awarding fees pursuant to § 110(D) is required to make Burk findings. Mother finally argues that Father’s overall pattern of seeking a custody change, false testimony, and refusal to observe the court’s orders, renders any award of fees less than the total amount billed by counsel an abuse of discretion. The record shows that the trial court, which had the benefit of observing the behavior of the parties through five years of litigation and over 400 docket sheet entries, fully understood the

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nature of Father’s behavior, and yet decided that equity required only a partial fee. If a trial court awarding fees pursuant to § 110(D) has discretion to award partial fees based on the court’s evaluation of the equities, it is difficult to say that the court was “without a reasonable basis in the evidence” given its superior knowledge in this matter. AFFIRMED. Opinion from Court of Civil Appeals, Division II by Thornbrugh, P.J.; Rapp, J., and Barnes, J. concur. Wednesday, February 24, 2016 113,135 — State of Oklahoma, ex rel., Department of Transportation, Plaintiff/Appellee, vs. Cedars Group, L.L.C., an Oklahoma Limited Liability Company, Centoma, an Oklahoma Limited Partnership, Bush, LTD., d/b/a Deer Creek Texaco and A. Sam Courty, an individual, Defendants/Appellants, and Oklahoma County Treasurer, Dollar General Stores, Dolgencorp, Inc., NBANC Commercial Federal Bank, Spiritbank and First United Bank and Trust Co., Defendants. The trial court defendants, Cedars Group, L.L.C., an Oklahoma limited liability company; Centoma, an Oklahoma limited partnership; A. Sam Coury; and, Bush, Ltd. d/b/a Deer Creek Texaco, (collectively, Coury Defendants) appeal an Order which denied attorney fees and costs in a condemnation action brought by the State of Oklahoma ex rel. Department of Transportation (ODOT). ODOT brought a condemnation action. After return of the Commissioners’ report, the Coury Defendants requested a jury trial. The jury returned a verdict which exceeded the Commissioners’ report by ten percent, thereby triggering the attorney fee statutes. The trial court entered judgment on April 18, 2011. Thereafter, the Coury Defendants applied for attorney fees, expert witness fees and costs. The Coury Defendants and counsel had an oral contract absolving the Coury Defendants of any responsibility for fees, costs, or expenses (except the appraiser’s fee which the trial court reimbursed to them). Thus, the request for attorney fees, expenses and costs fails because such were not actually incurred as required by the statutory authority for the award. This failure includes the appeal related fees in the prior appeal of this action. Therefore, the judgment of the trial court is affirmed. AFFIRMED. Memorandum Opinion from Court of Civil Appeals, Division II by Rapp, J.; Thornbrugh, P.J., and Barnes, J., concur.

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Thursday, February 25, 2016 113,658 — M’Liss Thigpen, Plaintiff/Appellant vs. Charlie Don Thigpen, Defendant/ Appellee. Appeal from an Order of the District Court of Oklahoma County, Hon. Lisa K. Hammond, Trial Judge. The plaintiff, M’Liss Thigpen, appeals a judgment in favor of the defendant, Charlie Don Thigpen, which denied plaintiff’s motion to dismiss and granted defendant’s motion for an order nunc pro tunc. After de novo review this Court holds that the judgment of the trial court is not against the facts or contrary to law. The judgment is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Rapp, J.; Thornbrugh, P.J., and Barnes, J., concur. Monday, February 29, 2016 114,232 — In the Paternity of: Couper Edwards, Petitioner/Appellant, vs. Susan Whiteneck, Respondent/Appellee, and Honorable Tammy Bruce, Judge of the District Court of Tulsa County, 14th Judicial District, Appellee. Appeal from Order of the District Court of Tulsa County, Hon. Tammy Bruce, Trial Judge. Appellant (Father) appeals the trial court’s order denying Father’s motion to reconsider the court’s prior order finding that Oklahoma is an inconvenient forum in which to determine child custody pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act. On review of the factors set forth in 43 O.S.2011 § 551-207(A), the record reflects that the trial court did not abuse its discretion in its decision. We further reject Father’s argument that the trial court erred because it was undisputed that Oklahoma is the home state of the parties’ child and that the Oklahoma court has jurisdiction of the matter; the argument ignores the fact that Mother acknowledged throughout the proceedings that Oklahoma is Child’s “home state,” and that this was precisely the reason Mother filed her motion regarding inconvenient forum. Father’s other arguments similarly furnish no basis on which to set aside the trial court’s determination. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Thornbrugh, P.J.; Rapp, J., and Barnes, J., concur. 113,957 — Multiple Injury Trust Fund, Petitioner, vs. Danny Ray Daniel and The Workers’ Compensation Court of Existing Claims. Proceeding to Review an Order of a Three-Judge Panel of the Workers’ Compensation Court of Existing Claims, Hon. L. Brad Taylor, Trial

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Judge. Multiple Injury Trust Fund (MITF) seeks review of an award of permanent total disability benefits to Claimant. Independent review of the record reveals that Claimant established the jurisdictional fact that he meets the definition of a “physically impaired person” by virtue of obvious and apparent “loss of the use or partial loss of the use” of his left arm and both knees. MITF also asserts that Claimant may not be found PTD without having completed vocational retraining benefits awarded in the trial tribunal. As to the necessity for such retraining, MITF may not change its legal theory on appeal in order to assert an argument not presented to the lower court. Even so, we find the workers’ compensation panel’s decision finding that Claimant is PTD is supported by competent evidence and the law. According, the panel’s decision is sustained. SUSTAINED. Opinion from Court of Civil Appeals, Division II, by Thornbrugh, P.J.; Rapp, J., and Barnes, J., concur. 113,590 — Linda C. McGlaun, Plaintiff/Appellee, vs. Gary Dale Gregg and Clayton Alan Gregg, individually and as Co-Trustees of the Bobbie Leon Gregg Testamentary Trust, Defendants/Appellants. Proceeding to review a judgment of the District Court of Beaver County, Hon. Jon Parsley, Trial Judge. Gary Dale Gregg and Clayton Alan Gregg, individually and as Co-Trustees of the Bobbie Leon Gregg Testamentary Trust, appeal the decisions of the district court removing them as Trustees and awarding money damages to beneficiary Linda McGlaun. As part of his will, settlor Bobbie Leon Gregg created the Bobbie Trust. McGlaun, a lifetime income beneficiary of the Trust, alleged that the trustees used their authority to direct current and future trust income into purchases and loans benefitting trustees Gary and Clayton Gregg, rather than distributing it to the income beneficiaries. The district court made comprehensive and substantial findings on all material elements of fact and law in this case. We agree that the major challenged transactions appeared to have little or no business justification, and functioned primarily to divert the benefits of trust income away from Linda McGlaun; toward supporting a business owned by Clayton Gregg; and toward another family trust in which Gary and Clayton Gregg had an interest but McGlaun did not. We further find no error in the court’s reduction of the trustee fees claimed. Trustees further argue that the court erred in removing them because the evi-

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dence did not show they were personally hostile to McGlaun. We find that, when a trustee’s actions show clear hostility to the interests of the beneficiaries, a court need not find personal hostility in order to remove a trustee. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Thornbrugh, P.J.; Barnes, J., and Rapp, J. concur. Thursday, March 3, 2016 113,516 — Proctor Community Church Incorporated, Plaintiff/Appellee, v. Proctor-Sanders Community Cemetery, Inc., Defendant/Appellant. Appeal from an Order of the District Court of Adair County, Hon. Elizabeth L. Brown, Trial Judge. The defendant, ProctorSanders Community Cemetery, Inc. (ProctorSanders Cemetery) appeals an Order denying its motion for new trial entered after judgment for the plaintiff, Proctor Community Church, Incorporated (Proctor-Church) in the quiet title action brought by Proctor Church. Proctor Church counter-appeals that part of the original judgment conditioning its decreed title “for as long as it is used for church purposes” and for further providing that Proctor-Sanders Cemetery “shall be permitted to park in the church parking area as needed for funerals, Decoration Day and Memorial Day.” The trial court heard evidence regarding the open, notorious, hostile and exclusive elements of a quiet title action. The requisite time period is not disputed. This Court has examined the entire record and weighed the evidence in accord with the standard of review and concludes that the judgment of the trial court is not clearly against the weight of the evidence. Therefore, the judgment quieting title in Proctor Church is affirmed. The trial court’s finding limiting Proctor Church’s title for as long as the property is used for church purposes is not supported by evidence and is contrary to law. The judgment journal entry is modified to vacate and strike that provision. The trial court’s finding imposing an easement for parking on church property at certain times is not supported by the evidence and is contrary to law. The judgment journal entry is modified to vacate and strike that provision. AFFIRMED IN PART, VACATED AND MODIFED IN PART. Opinion from Court of Civil Appeals, Division II, by Rapp J.; Thornbrugh, P.J., and Barnes, J., concur.

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(Division No. 3) Friday, February 12, 2016 113,173 — Ward Lee & Coats, P.L.C., Plaintiff/Appellant, vs. City of Claremore; Sarah Sharp, City Clerk, Defendants/Appellees. Appeal from the District Court of Rogers County, Oklahoma. Honorable Sheila Condren, Judge. Appellant (Law Firm) appeals from the trial court’s order denying the firm’s petition for declaratory relief brought pursuant to the Oklahoma Open Records Act, 51 O.S. 2011 §24A.1 et seq. (Act). All parties to the present case agree that Law Firm is entitled to the records it sought from Appellees (City) under the Open Records Act. At issue is whether the records given to Law Firm satisfied the Act’s mandate. We hold that they did not. The financial records of the City of Claremore have never been produced in this litigation as requested by Law Firm in their two Open Records Act requests. Law Firm was never provided with evidence of what City actually spent defending the underlying suit; Law Firm requested “all expenditures” and “copies of all checks, vouchers, or other form of payment to any and all law firms or attorneys . . . .” The amount of those expenditures might equal the billing statements supplied, but we do not know because the official records of City were never compared with the documents delivered. The judgment of the trial court is reversed and this matter is remanded for further proceedings. Law Firm’s request for reasonable attorney fees for prosecuting this action and appeal is granted. The trial court is directed to determine the same on remand. REVERSED AND REMANDED. Opinion by Bell, P.J.; Joplin, J., and Hetherington, J., concur. 113,672 — Riza Johnson and Brent Johnson, Plaintiffs/Appellees, vs. Angelo Cuzalina, M.D., D.D.S., a/k/a Lawrence A. Cuzalina, Tulsa Surgical Arts, P.C., Tulsa Cosmetic Surgery Center, P.C., Defendants/Appellants. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Mary F. Fitzgerald, Judge. Appeal of the trial court’s denial of a motion to compel arbitration and for appointment of a substitute arbitrator. The trial court found four documents containing the same provisions were confusing, invalid, unenforceable, and unconscionable as being retroactive. HELD: The existence of an agreement to arbitrate presents a gateway question of law for review de novo under Oklahoma contract law. After conducting such a review of the record and applying Vol. 87 — No. 9 — 3/26/2016

Oklahoma law, we conclude there was no enforceable agreement for arbitration of the parties’ disputes. The first document purporting to form an arbitration agreement was ineffective to form such a contract and the later documents were unenforceable because they were unconscionable under the circumstances of the case. In addition, the designation of the arbitral forum and its code was integral to the formation of an agreement. The unavailability of that named arbitral forum caused a failure of the agreement. Further, factors cited as evidencing interstate commerce which implicated the Federal Arbitration Act were expressly rejected in Bruner v. Timberlane Manor Limited Partnership, 2006 OK 90, ¶¶31, 42-44, 155 P.3d 16, and, as in that case, we conclude the events were local in nature. Due to the unenforceable nature of the alleged contracts for arbitration, discussion of choice of law is unnecessary. The trial court’s denial of the motion to compel arbitration and for appointment of a substitute arbitrator is AFFIRMED. Opinion by Hetherington, J.; Bell, P.J., and Joplin, J., concur. 114,181 — Tulsa 912 Project, Inc., Plaintiff/ Appellant, vs. Oklahoma Department of Environmental Quality, Defendant/Appellee. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Jefferson D. Sellers, Judge. Plaintiff/Appellant Tulsa 912 Project, Inc. (TPI), seeks review of the trial court’s order granting the motion to dismiss of Defendant/ Appellee Oklahoma Department of Environmental Quality (ODEQ), on TPI’s claim asserting the invalidity of action by ODEQ as “rulemaking” adopted in violation of the Oklahoma Administrative Procedures Act, (OAPA) 75 O.S. §§250, et seq. In this appeal, TPI argues the trial court erred as a matter of law and fact in dismissing its action. The Revised Regional Haze Implementation Plan, adopted by agreement between, inter alia, ODEQ and PSO as operator of the Northeastern Plant Units 3 and 4, does not constitute a “rule” of general application subject to the “rule” making requirements of the OAPA. The EPA identified only the Northeastern Plant Units 3 and 4 as contributors to regional haze, not any other electrical generating plants in the state. The Revised Regional Haze SIP, adopted by agreement between, inter alia, ODEQ and PSO as operator of the Northeastern Plant Units 3 and 4, deals specifically only with those two coal-fired electrical generating plants, not to any other electrical generating plants in the state. PSO was not made a party to this action and, when faced with a

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choice between closure of Northeastern Plant Units 3 and 4 and retrofitting Northeastern Plant Units 3 and 4 to ameliorate the sulfur dioxide emissions contributing to regional haze, PSO chose closure as the preferable approach by agreeing to the Revised Regional Haze SIP, and we will not second-guess its business judgment. Beyond ODEQ’s agreement to consider retrofit technology if other sulfur dioxide contributors to regional haze were identified, it cannot be said that the decision to close Northeastern Plant Units 3 and 4, embodied in the agreed-to Revised Regional Haze SIP, will compel the closure of any other coal-fired electrical generating facilities as to constitute a statement of generally applicable policy. The fact that the Oklahoma Clean Air Act, 27A O.S. §§2-5-101, et seq., §2-5-107(6)(c), permits, but does not require, the ODEQ Air Quality Council to conduct public hearings for the purpose of receiving public comment on the fulfillment of federal SIP requirements, in our estimation, clearly evinces our legislature’s intent to treat SIP compliance as a matter outside the ruling making requirements of the OAPA. AFFIRMED. Opinion by Joplin, J.; Bell, P.J., and Hetherington, J., concur. Friday, February 19, 2016 113,173 — John William Phillips, Plaintiff/ Claimant/Appellant, vs. Daniel Gene Witham and UVEST Financial Services Group, Inc., Defendants/Respondents/Appellees. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Barbara G. Swinton, Judge. Appellant (Phillips) appeals from the district court’s order and judgment confirming an arbitration award (Award) in favor of Appellees (Witham and UVEST), and denying Phillips’ motion to vacate the Award. Phillips contends the district court should have vacated the infirm Award because he was denied his rights to a full and fair hearing under the Oklahoma Uniform Arbitration Act (Act), 12 O.S. 2011 §1851 et seq., and the Federal Arbitration Act (FAA), 9 U.S.C. §1 et seq. While Phillips’ petition in error stated three assignments of error, these arguments may be summarized as one issue: Did the district court commit reversible error by failing to follow the “shall” language of 12 O.S. 2011 §1874(A) and vacate the award. Witham and UVEST contend the district court properly denied Phillips’ attempt to vacate the Award because his pleadings were untimely and defective under the Act and the FAA and Phillips failed to state any basis under Okla672

homa law or the FAA to disturb the Award. The record belies Phillips’ contention that he was denied the right to a full hearing. The arbitrators held hearings and considered the evidence presented at trial, and the motions filed in the arbitration proceeding and Oklahoma substantive law before determining that Phillips’ claims were barred by the applicable statute of limitations, issue and claim preclusion, and res judicata. Regarding the testimony of witnesses, the panel did not allow this evidence because Phillips intended to use these witnesses to testify about ownership, invasion and improper use of client files and solicitation of clients to file NASD complaints. Because the statute of limitations dates were fixed by Phillips’ own testimony and would not be changed by further witness testimony, the panel decided to exclude this evidence. We cannot find the panel’s decision to exclude this evidence was misconduct or prejudicial. Phillips sought this arbitration and now seeks to avoid the unfavorable result and expenses. Considering the law applicable to this proceeding and Phillips’ failure to present clear evidence supporting the specific grounds he alleged for vacation of the Award, we cannot find the district court erred. AFFIRMED. Opinion by Bell, P.J.; Joplin, J., and Hetherington, J., concur. (Division No. 4) Wednesday, February 10, 2016 113,701 — Larry C. Ruppel, Petitioner, vs. Band of Brothers Recycling, LLC, No Insurance, and The Workers’ Compensation Court of Existing Claims, Respondents. Proceeding to review an order of a three-judge panel of the Workers’ Compensation Court of Existing Claims, Hon. Carla Snipes, Trial Judge, which modified a trial court order awarding temporary total disability (TTD) benefits. The panel modified the trial court’s order by denying TTD for a specific period because Claimant filed for unemployment benefits. Claimant argues the panel’s modification of the trial court’s TTD award was against the clear weight of the evidence, in excess of its powers, and contrary to law. Claimant contends the panel’s reduction of his TTD award because he had been approved for unemployment benefits by the Oklahoma Employment Security Commission was in error. Title 85 O.S.2011 § 332(P) provides that an employee cannot receive TTD benefits during the time period he receives unemployment benefits. Because he never received unemployment benefits and, in fact,

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declined them on advice of counsel, Claimant is not precluded from receiving TTD benefits during that time period. The record does not support the panel’s reason for modifying the TTD award. We therefore vacate its decision and remand with directions to enter an order affirming paragraph 5 of the trial court’s order. VACATED IN PART AND REMANDED WITH DIRECTIONS. Opinion from the Court of Civil Appeals, Division IV, by Wiseman, P.J.; Goodman, C.J., and Fischer, J., concur. 113,530 — Multiple Injury Trust Fund, Petitioner, vs. Stephen McBane, and The Workers’ Compensation Court of Existing Claims, Respondents. Proceeding to review an order of a three-judge panel of the Workers’ Compensation Court of Existing Claims, Hon. David P. Reid, Trial Judge, affirming in part and modifying in part a trial court order awarding Stephen McBane (Claimant) permanent total disability (PTD) benefits from MITF. The principal issue before us is whether the Workers’ Compensation Court erroneously found that at the time of his latest compensable injury, Claimant was a previously impaired person and thus entitled to PTD benefits from MITF. There was indeed competent evidence in the form of lay witness testimony that Claimant had an obvious and apparent disability to his left leg, which by definition is a major member. Accordingly, the decision that Claimant was a physically impaired person at the time of his latest injury is supported by competent evidence. We further conclude that based on the holding of Multiple Injury Trust Fund v. Sugg, 2015 OK 78, 362 P.3d 222, we see no error by the trial court in including Crumby findings in deciding the PTD issue. The evidence also supports the trial court’s decision that Claimant was entitled to MITF benefits, despite the fact that he did not complete vocational rehabilitation. The decision is sustained. SUSTAINED. Opinion from the Court of Civil Appeals, Division IV, by Wisaman, P.J.; Goodman, C.J., and Fischer, J., concur. Tuesday, February 16, 2016 113,388 — In the Matter of the Adoption of M.F.M.E., a minor child: Jonathan and Jaime Swim, Appellants, vs. State of Oklahoma, ex rel., Department of Human Services, Melissa and Michael McClain, Appellees. Appeal from the District Court of Oklahoma County, Oklahoma. Hon. Lisa Tipping Davis, Trial Judge. Appellants Jonathan and Jaime Swim appeal the final decree granting adoption to Appellees Melissa and Michael McClain in a competing Vol. 87 — No. 9 — 3/26/2016

adoption case. We affirm the district court’s order, finding that the court fully complied with 10 O.S.2011 § 7505-1.4 in docketing and conducting the trial on the Swims’ petition to adopt. We further find no violation of the Swims’ right to due process. The district court did not abuse its discretion in determining that the McClains were suitable adoptive parents and that the child’s best interests were served by granting the adoption. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV by Fischer, J.; Goodman, C.J, concurs, and Wiseman, P.J., concurs in result. Thursday, February 25, 2016 113,539 — Donald E. Fry, Plaintiff/Appellant, vs. Wausau Business Insurance Company, Defendant/Appellee, and Karen S. Inman, Defendant. Appeal from the District Court of Tulsa County, Oklahoma. Hon. Mary Fitzgerald, Trial Judge. Donald Fry appeals the district court’s grant of summary judgment in favor of Wausau Business Insurance Company on his claim for underinsured motorist benefits. The dispute over coverage involves interpretation of policy language defining the term “occupying.” The term is defined in the policy endorsement as “in, getting in, on, out or off.” We find the material facts regarding whether Fry was “getting in” his vehicle are not disputed and, therefore, show that Fry was “occupying” the vehicle at the time of the accident as that term is defined in the policy. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Division IV by Fischer, J.; Goodman, C.J., and Wiseman, P.J., concur. 113,483 — Bharat Mittal, Plaintiff/Appellant vs. Bluestem Emergency Medical P.L.L.C., a professional limited liability company, and Thomas W. Britt, Roger J. Cotner, Holly B. Fouts, Ronald L. Hay, and Ruth M. Thompson, Defendants/Appellees. Appeal from the District Court of Washington County, Oklahoma. Hon. Russell C. Vaclaw, Trial Judge. Appellant Bharat Mittal appeals the district court’s order awarding attorney fees to Defendants/Appellants. Having reviewed the record and applicable law, we conclude that the district court’s award was improper because it failed to specify the statutory basis for the award and calculation for its determination that the fee awarded was reasonable. Because we find it necessary to vacate the district court’s order and remand the matter, we do not determine whether any of the Defendants’ asserted grounds for awarding

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fees was proper. VACATED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Division IV by Fischer, J.; Goodman, C.J., and Wiseman, P.J., concur. Wednesday, March 2, 2016 113,047 — The Bank of New York Mellon f/k/a The Bank of New York, Not in its Individual Capacity but Solely as Trustee for the Benefit of the Certificate-Holders of the CWABS Inc., Asset-Backed Certificates, Series 2005BC5, Plaintiff/ Appellee, vs. William L. Howard a/k/a William Lee Howard, Defendant/ Appellant. Appeal from an order of the District Court of Tulsa County, Hon. Mark Barcus, Trial Judge, denying Howard’s motion to strike and objection to a sheriff’s sale in this foreclosure action. We are asked to address whether the trial court properly confirmed a sheriff’s sale in which Howard claims he did not receive proper notice of the sale or the motion to confirm the sale. We see no abuse of the trial court’s discretion when it granted Bank’s motion to confirm the sale despite Howard’s assertions he did not receive proper notice. The record shows Bank mailed to all parties of record the notice of sale, the motion to confirm the second alias sheriff’s sale, and the notice of hearing to confirm the sale. Although Howard and his attorney claim they never received the notices, they filed a motion to strike before the hearing on the motion to confirm the sale, and the trial court moved the hearing giving Howard three additional weeks to prepare. We conclude Howard’s due process rights were not violated, and affirm the trial court’s decision. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Wiseman, P.J.; Goodman, C.J., and Fischer, J., concur. ORDERS DENYING REHEARING (Oklahoma City Divisions) Thursday, February 25, 2016 113,517 — In Re the Marriage of Kevin Hefley and Kathy Hefley: Kevin Hefley, Petitioner/Appellee, vs. Kathy Hefley, Respondent/Appellant. Respondent/Appellant Kathy Hefley’s Petition for Rehearing the Order Dismissing Appeal filed on January 11, 2016 is DENIED as being filed out of time. (Division No. 1) Wednesday, February 24, 2016

Securities Corp., Home Equity Asset Trust 2006-4, Home Equity Pass-Through Certificates, Series 2006-4, Plaintiff/Appellee, vs. James B. Hobi, Defendant/Appellant, and Spouse, if any, of James B. Hobi; John Doe, Occupant; Jane Doe, Occupant; Mortgage Electronic Registration Systems, Inc., as Nominee for Southstar Funding, LLC; Hefner Village Homeowners’ Association, Inc; Saxon Mortgage, Inc.; Citibank Federal Savings Bank; Isabel Chancellor, Trustee of the Ingenuity, Inc. 401K Plan F/B/O Isabel Chancellor; John D. Meyer; and Affordable Property and Construction, LLC, Defendants. Defendant/Appellant’s Motion for Rehearing filed February 11, 2016 is DENIED. 114,082 — Brandon and Danielle Andrew, as Guardians of Briana Andrew, a minor child, and individually, as her parents, Plaintiffs/ Appellants, vs. Elisa Depani-Sparkes, D.O., The Physician Group, PLLC, a/k/a OCCO Healthcare Network, and Integris Ambulatory Care Corporation d/b/a Integris Family Care Edmond, Defendants, and Mercy Health Center, Inc., d/b/a Mercy Health Center, Defendant/ Appellee. Plaintiffs/Appellants’ Petition for Rehearing filed January 28, 2016 is DENIED. Tuesday, March 1, 2016 113,262 — In the Matter of the Estate of Stanley R. Littleton, Deceased: Lucille Kathryn Littleton, Petitioner/Appellant, vs. Michael David Littleton, Respondent/Appellee. Petitioner/ Appellant’s Petition for Rehearing filed February 2, 2016 is DENIED. Thursday, March 3, 2016 113,571 — City of Tulsa and Own Risk #10435, Petitioners, vs. Jennifer Jean Hodge and The Workers’ Compensation Court of Existing Claims, Respondents. Respondent’s Petition for Rehearing filed February 24, 2016 is DENIED. (Division No. 2) Wednesday, February 10, 2016 112,958 — State of Oklahoma, ex rel. Oklahoma Board of Medical Licensure and Supervision, Plaintiff/Appellee, vs. Jarret G. Gregory, MD License No. 13611, Defendant/Appellant. Appellant’s Petition for Rehearing is hereby DENIED.

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Monday, February 22, 2016 113,339 — ONB Bank and Trust Company, Plaintiff/Counter-Defendant, vs. Timothy S. Blackburn a/k/a Timothy Scott Blackburn, Defendant/Cross-Defendant, and Occupants of the Premises (Marcus Adolfo Diaz and Dannette L. Diaz, Husband and Wife), Defendants/ Cross-Plaintiffs/Appellees, and Ferguson Enterprises, Inc.; Double Eagle Property Group, LLC, an Oklahoma Limited Liability Company; Dennis Semler, Tulsa County Treasurer, and Board of County Commissioners of Tulsa County, Defendants, and Mary Monica Blen-dowski, Intervenor/Appellee, and Ferguson Enterprises, Inc., Plaintiff, vs. Timothy S. Blackburn, an Individual; Central Plumbing Company, Inc. a/k/a Central Plumbing and Heating Company; Oklahoma National Bank; and Double Eagle Property Group, LLC, Defendants, and Mary Monica Blendowski, Intervenor/Appellee, and Tulsa County Treasurer Office, 500 S. Denver, 3rd Floor, Tulsa, Oklahoma 74103-3840, Garnishee. Appellant’s Petition for Rehearing is DENIED. Friday, March 4, 2016 113,830 — In the Matter of Jm.G. and Ja.G., Jr., Adjudicated Deprived Children, Chantal Y. Moore and Jamar A. Gatlin, Appellants, vs. State of Oklahoma, Appellee. Appellants’ petition for rehearing is DENIED. (Division No. 3) Tuesday, March 1, 2016 113,672 — Riza Johnson and Brent Johnson, Plaintiffs/Appellees, vs. Angelo Cuzalina, M.D., D.D.S., a/k/a Lawrence A. Cuzalina, Tulsa Surgical Arts, P.C., Tulsa Cosmetic Surgery Center, P.C., Defendants/Appellants. Appellants’ Petition for Rehearing, filed February 24, 2016, is DENIED. 112,520 — Deborah Jean Rowe, Personal Representative of the Estate of Robert L. Hutchins, Deceased, Plaintiff/Appellant, vs. Lawton Novelty Company, Defendant/Appellee. Appellant’s Petition for Rehearing and Brief in Support, filed December 23, 2015, is DENIED.

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SERVICES

OF COUNSEL LEGAL RESOURCES — SINCE 1992 — Exclusive research & writing. Highest quality: trial and appellate, state and federal, admitted and practiced U.S. Supreme Court. Over 20 published opinions with numerous reversals on certiorari. MaryGaye LeBoeuf 405-728-9925, [email protected].

BUSINESS VALUATIONS: Marital Dissolution * Estate, Gift and Income Tax * Family Limited Partnerships * Buy-Sell Agreements * Mergers, Acquisitions, Reorganization and Bankruptcy * SBA/Bank required. Dual Certified by NACVA and IBA, experienced, reliable, established in 1982. Travel engagements accepted. Connally & Associates PC 918-743-8181 or bconnally@ connallypc.com. Appeals and litigation support Expert research and writing by a veteran generalist who thrives on variety. Virtually any subject or any type of project, large or small. NANCY K. ANDERSON, 405-682-9554, [email protected]. Creative. Clear. Concise. INTERESTED IN PURCHASING PRODUCING & NONPRODUCING Minerals; ORRI; O & G Interests. Please contact: Patrick Cowan, CPL, CSW Corporation, P.O. Box 21655, Oklahoma City, OK 73156-1655; 405755-7200; Fax 405-755-5555; email: [email protected]. HANDWRITING IDENTIFICATION POLYGRAPH EXAMINATION

Board Certified Diplomate — ABFE Life Fellow — ACFEI Arthur D. Linville

Court Qualified Former OSBI Agent FBI National Academy 405-736-1925

EXPERT WITNESS – ENERGY. EnEx Energy Advisors is a team of seasoned energy professionals (engineers and lawyers) possessing broad experience in all aspects of power generation and asset management and oil & gas (production, mid-stream and transportation). Our team has prior expert witness experience and is capable of assisting with many different aspects of litigation and due diligence. Visit our website at www.enexadvisors.com, email us at [email protected] or call 844-281-ENEX (3639). BRIEF WRITING, APPEALS, RESEARCH AND DISCOVERY SUPPORT. Eighteen years experience in civil litigation. Backed by established firm. Neil D. Van Dalsem, Taylor, Ryan, Minton, Van Dalsem & Williams PC, 918-749-5566, [email protected].

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OIL AND GAS LITIGATION, BANKRUPTCY, LENDING and TRANSACTION SUPPORT SERVICES. DUE DILIGENCE for reserve valuations and borrowing base redeterminations. Custom research, analysis, reporting and due diligence databases to handle complex projects for litigation, acquisition, divestitures, hedges, mortgages workout, restructure and bankruptcy. Contact DEAN HIGGANBOTHAM 405-627-1266, dean@higganbotham. com, www.gld7.com. Want To Purchase Minerals AND OTHER OIL/GAS INTERESTS. Send details to: P.O. Box 13557, Denver, CO 80201.

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 LUXURY OFFICE SPACE - Three offices for lease, one at $670 and two 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. OFFICE AVAILABLE FOR SOLE PRACTITIONER. Includes office space and overhead costs such as phone, copier, fax, conference room use and receptionist services. This can be paid for by handling limited court appearances for the law firm. Some paid legal research and writing work may also be available. Some case referrals are also a possibility. If interested, contact Michael Arnett at 405-767-0522. FOR SALE/ LEASE LUXURY LAW OFFICE BUILDING 6,531 sq. ft. 2417 E. Skelly Drive in the heart of Tulsa, OK, available for immediate occupancy. Fully furnished, conference room, reception area and secretary cubicles. Newer color and collating copier also stays. $595,000. Contact John Thetford at 918-633-2259 or [email protected].

OFFICE SHARE UNIQUE OFFICE EXPERIENCE. CLASS A SHARED SPACE. Attorneys only. Fully furnished. Access to Clio consultant and practice mgmt assistance. Top technology and virtual tools. Incredibly unique offering starting at $750. Contact [email protected] for more information.

The Oklahoma Bar Journal

Vol. 87 — No. 9 — 3/26/2016

POSITIONS AVAILABLE

POSITIONS AVAILABLE

HARTZOG CONGER CASON & NEVILLE is seeking a 2-6 year attorney to work in the firm’s litigation group. Applicants should have a strong academic background with experience in complex litigation matters. Applicants should submit a resume and cover letter to: “Box W,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. Applications will be kept in strict confidence. MID-SIZED 50 PENN PLACE LAW FIRM seeks Legal Assistant. Estate Planning and/or Real Estate background helpful. [email protected]. FORT WORTH REGIONAL OFFICE OF THE U.S. SECURITIES AND EXCHANGE COMMISSION SEEKS ONE OR MORE ENFORCEMENT ATTORNEYS. Enforcement attorneys investigate potential violations of the federal securities laws and, when necessary, litigate resulting civil and administrative cases. Candidates should have excellent academic credentials and a minimum of three years of experience working as a lawyer. Substantive securities law or litigation experience is greatly preferred. Salary range: $101,819 - $167,443 depending on experience and qualifications. Interested individuals should email resume and cover letter to [email protected] no later than April 1, 2016. If you are unable to email materials, they may be faxed to 817-978-2700. Equal Opportunity Employer.

FULL SERVICE, AV-RATED, DOWNTOWN TULSA LAW FIRM seeks associate attorney with 3 - 6 years’ commercial litigation experience. Solid deposition and trial experience is a must. Our firm offers a competitive salary and benefits, with bonus opportunity. Submit résumé and references to “Box P,” Oklahoma Bar Association; PO Box 53036; Oklahoma City, OK 73152.

COLLECTIONS ATTORNEY - “COMPSOURCE MUTUAL INSURANCE COMPANY is seeking a highly motivated and detail-oriented professional for the position of collections attorney. This position will examine collection accounts and take necessary steps to effect collection of delinquent premium. We are a great company that offers paid health benefits for employees, paid time off and a Retirement Savings Plan with employer matching. For complete details/salary info and to apply, please visit https://rew21.ultipro.com/ COM1048/JobBoard/ListJobs.aspx or email roberts@ compsourcemutual.com with any questions. ASSOCIATE NEEDED. AV RATED LAWYER in medium sized NE Oklahoma town. Practice consists primarily of criminal defense, domestic relations and estate planning. 2-5 years’ experience in court appearances and research. Must have strong interpersonal/ communications skills and work independently. Competitive salary and benefits. Unique opportunity for the right lawyer. Send resume with references to: “Box D,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. ASSISTANT DISTRICT ATTORNEY POSITIONS AVAILABLE. 8th District Attorney Brian T. Hermanson is taking applications for an assistant district attorney in Kay County. The position will include prosecuting a wide range of criminal cases with a focus on general misdemeanor and felony cases, and requires a focus on a desire to work closely with victims. Strong writing and researching skills are required. This is a salaried position with full state benefits. Time is of the essence. Please forward resume, a writing sample references and a cover letter to Brian T. Hermanson at 201 South Main, Newkirk, OK 74647, or by e-mail at [email protected]. Vol. 87 — No. 9 — 3/26/2016

THE OKLAHOMA BAR ASSOCIATION HEROES program is looking for several volunteer attorneys. The need for FAMILY LAW ATTORNEYS is critical, but attorneys from all practice areas are needed. All ages, all counties. Gain invaluable experience, or mentor a young attorney, while helping someone in need. For more information or to sign up, contact Gisele Perryman, 405-416-7086 or [email protected]. ASSISTANT D.A. NEEDED FOR SOLO OFFICE IN PUSHMATAHA COUNTY to perform legal services related to county government operations; prosecute any/all criminal offenses; assist in any/all juvenile cases; other duties as assigned. Duties vary based on experience. Requires J.D. from accredited law school, legal experience in criminal and civil law preferred. Prior courtroom experience preferred. Admitted to the Oklahoma Bar and in good standing. Salary commensurate with experience. Submit resume with supporting documentation to District Attorney Mark Matloff, 108 N Central, Suite 1; Idabel, OK 74728; 580-286-7611 or email résumé to [email protected]. THE IOWA TRIBE OF OKLAHOMA IS SEEKING AN ESTABLISHED JUDGE AND ATTORNEY for their tribal court. The ideal candidates will be able to meet all necessary qualifications to practice before the Judicial Courts of the Iowa Tribe of Oklahoma and have adequate background knowledge of the unique jurisdictional issues where Indian Country is concerned. Please submit your resume to [email protected] for consideration. OKLAHOMA CITY LAW FIRM IS SEEKING AN ESTABLISHED ATTORNEY with significant experience with property and casualty insurance matters, including coverage litigation in state and federal court. Writing samples required. Send resume and writing samples to “Box X,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. HENSLEY LEGAL SERVICES, PLLC IN DOWNTOWN TULSA, OK SEEKS AN ASSOCIATE ATTORNEY with 1-4 years of family law experience. Excellent writing and communication skills are a must. Client service is a priority. Candidate must be highly motivated, possess the ability, experience and confidence to appear in court. The salary will be commensurate with experience. Please submit a confidential cover letter, resume, references and writing samples to [email protected]. Law firm seeks attorney with experience handling BILINGUAL SPANISH/ENGLISH IMMIGRATION MATTERS. Send résumé to “Box Z,” Oklahoma Bar Association; P.O. Box 53036; Oklahoma City, OK 73152.

The Oklahoma Bar Journal

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POSITIONS AVAILABLE

POSITIONS AVAILABLE

THE MUSCOGEE (CREEK) NATION NATIONAL COUNCIL IS SEEKING A LAW FIRM OR AN INDIVIDUAL ATTORNEY TO PROVIDE LEGAL COUNSEL SERVICES ON A CONTRACT BASIS. Law firms and attorneys are invited to submit qualifications and proposals for the provision of these services. In order to be considered, proposals must address each of the concerns requested in this document, including rates and fees. Legal Counsel will be required to provide general governmental counsel, basic legal services, and advice on special projects. The National Council requests accessibility to and a timely response from the selected law firm or attorney. Basic legal services include: reviewing/drafting ordinances and resolutions; providing guidance regarding government operations, open meetings, open records, routine matters, and personnel matters; reviewing agendas, materials and preparing legal advice/opinions for Committee and Full Council Sessions; attending Committee (upon request) and monthly Council Sessions of the National Council. Minimum qualifications include a Juris Doctorate from an accredited law school, a license to practice in the State of Oklahoma, a member in good standing of the Oklahoma Bar, 5+ years of legal experience, and be a member or become a member in good standing of the Muscogee (Creek) Nation Bar. Experience with a Tribal government and familiarity with Muscogee (Creek) Nation law is preferable. Interested parties please provide the following information: Firm or Individual name and contact information, including e-mail and website addresses and the year organized; Summary of qualifications, specializations, experience, professional affiliation, special training, availability, and contact information for key personnel and proposed lead and back-up attorneys; Information on any previous experience or services provided, including Tribal experience, such as Tribal attorney services, Tribal court cases, litigation experience and a list of past or present Tribal clients; List of clients that you currently represent that could cause a conflict of interest with your responsibilities of Legal Counsel of the National Council. Describe how you would be willing to resolve these or any future conflicts of interest; Other factors or special considerations you feel would influence your selection; List of three references and contact information; Proposed rates for the attorney assigned to the National Council or any alternative fee structure that you propose. The National Council retains the right to reject any or all responses and reserves the right to waive any variances from the original RFP specifications in cases where the variances are considered to be, in the sole discretion of the National Council, in the best interest of the National Council. A contract for the accepted proposal will be drafted based upon the factors described in this RFP. Please provide three unbound copies of the proposal, including one original with the signature of the authorized individual on a typed letter of submittal. Proposals shall be submitted in a sealed envelope, clearly marked on the outside of the envelope, “Legal Counsel – Muscogee (Creek) Nation National Council” and addressed to: Lucian Tiger III Speaker, Muscogee (Creek) Nation National Council, P.O. Box 158, Okmulgee, OK 74447; Facsimile: (918) 7566812. All proposals must be received no later than 4:00 pm on Tuesday, April 12, 2016.

OKC AV RATED LAW FIRM seeking associate with excellent litigation, research, and writing skills, 1-5 years’ experience for general civil/commercial defense practice, health care law. Must have solid litigation experience for all phases of Pretrial discovery and Trial experience with excellent research and writing skills. Submit a confidential résumé with references, writing sample and salary requirements to “Box E,” OBA PO Box 53036, OKC 73152.

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AV-RATED NW OKC FIRM SEEKING TO EXPAND ITS LITIGATION PRACTICE. We are looking for commercial litigator(s) with existing client base and 5 to 10 years substantive commercial or oil and gas litigation experience. Applicants should be motivated, self-starters, with strong work ethic, excellent communication and organizational skills. We are looking for persons with sound judgment and who work well with others. Send resume to “Box H,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. AV-RATED TULSA INSURANCE DEFENSE FIRM SEEKS AN ATTORNEY with a minimum of 3 years civil litigation experience. Insurance defense or bad faith litigation practice preferred. Send law school transcript, writing sample and 3 references to: aphillips@ richardsconnor.com. NORMAN LAW FIRM IS SEEKING sharp, motivated attorneys for fast-paced transactional work. Members of our growing firm enjoy a team atmosphere and an energetic environment. Attorneys will be part of a creative process in solving tax cases, handle an assigned caseload, and will be assisted by an experienced support staff. Our firm offers health insurance benefits, paid vacation, paid personal days, and a 401K matching program. Applicants need to be admitted to practice law in Oklahoma. No tax experience necessary. Submit cover letter and résumé to [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.

The Oklahoma Bar Journal

Vol. 87 — No. 9 — 3/26/2016

WHAT IS GOOD PARENTING? Exploring Parental Competency in a legal context

April 8, 2016, 9-3 p.m. AVAI LA

OKLAHOMA BAR CENTER, OKC

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Program Planner/Moderators: Robert Danaher, Psy. D. Alden Clinical Evaluation Services LLC Laura McConnell-Corbyn J.D. American Academy of Matrimonial Lawyers TOPICS INCLUDED: Parental Competency from a Legal Perspective What is a Good Parent? Parental Competency vs. Best Interests of Child Major Issues in Assessment Deconstructing Child Custody Evaluations $150 for early-bird registrations received with payment at least four, full business days prior to the first seminar date; $175 for registrations received with payment within four, full business days of the seminar. $200 for walk-ins. To receive a $10 discount for the live onsite program, register online http://www.okbar.org/members/CLE. Continental breakfast and networking lunch included in registration. You may also register for the live webcast (pricing varies).

For more information go to: www.okbar.org/members/CLE Vol. 87 — No. 9 — 3/26/2016

The Oklahoma Bar Journal

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Zephyr Teachout

Associate Professor of Law, Fordham University

CITIZENS UNITED: ARE AMERICA’S DEMOCRATIC TRADITIONS AT RISK OF CORRUPTION?

A panel discussion moderated by OBA President Garvin Isaacs

Including: Zephyr Teachout, Professor, Fordham Law School, Live via Skype The Honorable Keith Rapp, Court of Civil Appeals The Honorable Roger Stuart, Oklahoma County District Court Renee DeMoss, GableGotwals, former OBA President, Tulsa Andrew C. Spiropoulos, Professor, Oklahoma City University School of Law Rick Tepker, Professor, University of Oklahoma School of Law

APRIL 1, 2016, 9 A.M. - NOON Oklahoma City University School of Law, OKC

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$120 for early-bird registrations received with payment at least four, full business days prior to the first seminar date; $135 (one day) for registrations received with payment within four, full business days of the first seminar date. Walk-in registration $150. To receive a $10 discount for the live onsite program, register online http://www.okbar.org/members/CLE. Continental breakfast is included with registration.

Registrants will also receive a copy of Zephyr Teachout’s book, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United.

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