May 27 Merged

Volume 77 N No. 16 N May 27, 2006

Court Material 1578 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006

OFFICERS & BOARD OF GOVERNORS William R. Grimm, President, Tulsa EVENTS CALENDAR Stephen D. Beam, President-Elect, Weatherford Jerome A. Holmes, Vice President, Oklahoma City Julie E. Bates, Oklahoma City MAY Dietmar K. Caudle, Lawton 29 Memorial Day (State Holiday) Cathy M. Christensen, Oklahoma City Robert S. Farris, Tulsa Brian T. Hermanson, Ponca City JUNE Michael W. Hogan, McAlester R. Victor Kennemer III, Wewoka 1 OBA Legal Intern Committee Meeting; 3:30 p.m.; Oklahoma Bar Mike Mordy, Ardmore Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Jon K. Parsley, Guymon Contact: H. Terrell Monks (405) 733-8686 Deborah A. Reheard, Eufaula Robert B. Sartin, Tulsa 5 OBA Member Services Committee Meeting; 2 p.m.; Oklahoma Alan Souter, Bristow Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Keri G. Williams, Stillwater, Contact: Jody Nathan (918) 592-7070 Chairperson, OBA/Young Lawyers Division 6 OBA Civil Procedure Committee Meeting; 3 p.m.; Oklahoma Bar BAR CENTER STAFF Center, Oklahoma City and Tulsa County Bar Center, Tulsa; John Morris Williams, Executive Director; Contact: James Milton (918) 591-5229 Dan Murdock, General Counsel; Donita Bourns 7 OBA Professionalism Committee Meeting; 4 p.m.; Oklahoma Bar Douglas, Director of Educational Programs; Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Carol A. Manning, Director of Public Information; Craig D. Combs, Director of Administration; Contact: Sharisse O’Carroll (918) 584-4192 Gina L. Hendryx, Ethics Counsel; Jim Calloway, 8 OBA Bench and Bar Committee Meeting; 2 p.m.; Oklahoma Bar Director of Management Assistance Program; Rick Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Loomis, Director of Information Systems; Beverly S. Contact: Jack Brown (918) 581-8211 Petry, Administrator MCLE Commission; Loraine Dillinder Farabow, Janis Hubbard, Nathan Lockhart 9 OBF Trustees Meeting; 1 p.m.; Oklahoma Bar Center, Oklahoma and Mike Speegle, Assistant General Counsels; City; Contact: Nancy Norsworthy (405) 416-7070 Robert D. Hanks, Senior Investigator; Sharon Orth and Ray Page, Investigators OBA Family Law Section Meeting; 3 p.m.; Oklahoma Bar Center, Nina Anderson, Manni Arzola, Jenn Barrett, Jo Oklahoma City and OSU Tulsa; Contact: Rick Henthorn Beall, Cheryl Beatty, Melissa Brown, Brenda Card, (405) 354-6800 Sandy Cowden, Chaz Davis, Sharon Dotson, 12 OBA Alternative Dispute Resolution Section Meeting; 3 p.m.; Johnny Marie Floyd, Matt Gayle, Susan Hall, Suzi Hendrix, Misty Hill, Heidi McComb, Jeanne Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Minson, Wanda Reece-Murray, Sandy Neal, Tim Tulsa; Contact: Larry Yadon (918) 595-6607 or Barry Davis Priebe, Lori Rasmussen, Mark Schneidewent, Dana (405) 607-8757 Shelburne & Roberta Yarbrough 13 OBA Law-related Education Committee Meeting; 4 p.m.; EDITORIAL BOARD Oklahoma Bar Center, Oklahoma City; Contact: Chip Clark Editor in Chief, John Morris Williams (405) 232-4271 News & Layout Editor, Carol A. Manning 14 OBA Bar Center Facilities Committee Meeting; 9 a.m.; Oklahoma Editor, Melissa DeLacerda, Stillwater Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Associate Editors: Steve Barnes, Poteau; Martha Rupp Carter, Tulsa; Mark Curnutte, Vinita; Contact: Bill Conger (405) 521-5845 Luke Gaither, Henryetta; D. Renee Hildebrant, OBA Clients’ Security Fund Committee Meeting; 2 p.m.; Oklahoma City; John Munkacsy, Lawton; Julia Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Rieman, Enid; James Stuart, Shawnee and Tulsa; Contact: Micheal Salem (405) 366-1234 Judge Lori M. Walkley, Norman NOTICE of change of address (which must be in writing and signed by the OBA member), undeliv- erable copies, orders for subscriptions or ads, news The Oklahoma Bar Association’s official Web site: www.okbar.org stories, articles and all mail items should be sent to THE OKLAHOMA BAR JOURNAL the Oklahoma Bar Association, P.O. Box 53036, is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2006 Oklahoma Bar Association. Oklahoma City, OK 73152-3036. The design of the scales and the “Oklahoma Bar Association” encircling the Oklahoma Bar Association (405) 416-7000 scales are trademarks of the Oklahoma Bar Association. Legal articles carried Toll Free (800) 522-8065 in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. FAX (405) 416-7001 THE OKLAHOMA BAR JOURNAL (ISSN 0030-1655) IS PUBLISHED FOUR TIMES A Continuing Legal Education (405) 416-7006 MONTH IN JANUARY, THREE TIMES A MONTH IN FEBRUARY, MARCH, APRIL, Ethics Counsel (405) 416-7083 MAY, AUGUST, SEPTEMBER, OCTOBER, NOVEMBER AND DECEMBER AND General Counsel (405) 416-7007 BIMONTHLY IN JUNE AND JULY EFFECTIVE JAN. 1, 2003. BY THE OKLAHOMA BAR Law-related Education (405) 416-7005 ASSOCIATION, 1901 N. LINCOLN BOULEVARD, OKLAHOMA CITY, OKLAHOMA Lawyers Helping Lawyers (800) 364-7886 73105. PERIODICALS POSTAGE PAID AT OKLAHOMA CITY, OK. POSTMASTER: Mgmt. Assistance Program (405) 416-7008 SEND ADDRESS CHANGES TO THE OKLAHOMA BAR ASSOCIATION, P.O. BOX Mandatory CLE (405) 416-7009 53036, OKLAHOMA CITY, OK 73152-3036. SUBSCRIPTIONS ARE $55 PER YEAR OBJ & Public Information (405) 416-7004 EXCEPT FOR LAW STUDENTS REGISTERED WITH THE OKLAHOMA BAR ASSOCI- Board of Bar Examiners (405) 416-7075 ATION, WHO MAY SUBSCRIBE FOR $25. ACTIVE MEMBER SUBSCRIPTIONS ARE Oklahoma Bar Foundation (405) 416-7070 INCLUDED AS A PORTION OF ANNUAL DUES. ANY OPINION EXPRESSED HEREIN IS THAT OF THE AUTHOR AND NOT NECESSARILY THAT OF THE OKLAHOMA BAR ASSOCIATION, OR THE OKLAHOMA BAR JOURNAL BOARD OF EDITORS.

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1579 1580 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 OKLAHOMA BAR ASSOCIATION

table of contents May 27, 2006 • Vol. 77 • No. 16 page

1579 EVENTS CALENDAR

1582 INDEX TO COURT OPINIONS

1584 BAR NEWS OKLAHOMA JUDICIAL RECOGNITION BANQUET

1585 SUPREME COURT OPINIONS

1637 COURT OF CRIMINAL APPEALS

1671 COURTOFCIVIL APPEALS OPINIONS

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1581 Index To Opinions Of Supreme Court

2006 OK 24 LORI HARVELL, Individually and on behalf of herself and all others similarly situated, Plaintiff/Appellee, v. THE GOODYEAR TIRE & RUBBER COMPANY, Defendant/Appellant. No. 102,128...... 1585 2006 OK 27 MILLER DOLLARHIDE, P.C., Plaintiff/Appellee, v. MOSHE TAL, Defendant/Appellant. No. 100,179 ...... 1585 2006 OK 29 BROADWAY CLINIC, Plaintiff/Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Defendant/Appellee. No. 101,572...... 1585 2006 OK 30 LORA GAIL RAY, Plaintiff-Appellee, v. KENNETH ALLEN RAY, Defendant-Appellant. No. 101,392 ...... 1594 2006 OK 31 THE BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY, Plaintiff/Appellee, v. EDWARD L. LOWERY and MARY L. LOWERY, Husband and Wife, Defendants/Appellants and RURAL WATER DISTRICT NO. 5, and THE MUSKOGEE COUNTY TREASURER, Defendants. THE BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY, Plaintiff/Appellee, v. JACK E. WHITTEN and DORIS M. WHITTEN, Husband and Wife, Defendants/Appellants and RURAL WATER DISTRICT NO. 5, and THE MUSKOGEE COUNTY TREASURER, Defendants. THE BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY, Plaintiff/Appellee, v. RICHARD HYSLOPE Defendant/Appellant and THE FARM CREDIT BANK OF WICHITA RURAL WATER DISTRICT NO. 5, and THE MUSKOGEE COUNTY TREASURER, Defen- dants. THE BOARD OF COUNTY COMMISSIONERS OF MUSKOGEE COUNTY, Plaintiff/Appellee, v. PAUL HOBBS and DIANN HOBBS, Husband and Wife, Defen- dants/Appellants and MARY MURL BARRETT, BANK OF CHEROKEE COUNTY, RURAL WATER DISTRICT NO. 5, and THE MUSKOGEE COUNTY TREASURER, Defendants. No. 98,361. (Companion with Case Numbers 98,362; 98,363; 98,531) ...... 1597 2006 OK 32 YDF, INC., an Oklahoma corporation, Plaintiff/Petitioner, v. SCHLUMAR, INC, d/b/a SEMCO HOMES, Defendant/Respondent. No. 102,628 ...... 1610 2006 OK 33 In the Matter of the Reinstatement of Kathy Lynne Jones, to Membership in the Oklahoma Bar Association and the Roll of Attorneys. SCBD # 4961 ...... 1613 2006 OK 34 JACOBS RANCH, L.L.C., an Oklahoma limited liability company, ROOS RANCH, INC., an Oklahoma corporation, and ROOS RESOURCES, INC., an Okla- homa corporation, Plaintiffs/Appellants, v. DUANE A. SMITH, as Executive Direc- tor, and the OKLAHOMA WATER RESOURCES BOARD, an agency of the STATE OF OKLAHOMA, Defendants/Appellees, and ARBUCKLE MASTER CONSER- VANCY DISTRICT, THE CITY OF ARDMORE, THE CITY OF DAVIS, THE CITY OF DURANT, THE CITY OF SULPHUR, THE CITY OF TISHOMINGO, THE CITY OF WYNNEWOOD, THE CITY OF ADA, and GARY GREEN, EARL BREWER, JOHN BRUNO, and REGINALD EASTERLING, as members of the CITIZENS FOR THE PRESERVATION OF THE ARBUCKLE-SIMPSON AQUIFER, Intervenors/ Appellees. No. 101,727 ...... 1615 2006 OK 35 DENSI HAWORTH, Special Administratrix of the Estate of BRETT DEWAYNE HAWORTH, Deceased, Plaintiff/Appellee, v. Theodore Jantzen, individually, and as partner in Jantzen Farm and Ranch Enterprises; Mrs. Theodore Jantzen, individually and as partner in Jantzen Farm and Ranch Enterprises; and All- state Insurance Company, Defendants, and OKLAHOMA FARM BUREAU MUTU- AL INSURANCE COMPANY, Policy No. 421565031, Policy No. 42165015, Garnishee/Appellant. No. 101,726...... 1631

1582 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 Index To Opinions Of Court Of Criminal Appeals

2006 OK CR 18 R.M.J, Appellant, v. STATE OF OKLAHOMA, Appellee. No. J-2005-216...... 1637 2006 OK CR 19 KENNETH EUGENE HOGAN, Appellant, vs. STATE OF OKLAHOMA, Appellee. No. D-2003-610 ...... 1641

Index To Opinions Of Court Of Civil Appeals

CASES ASSIGNED TO DIVISIONS 1 AND 3 OF THE COURT OF CIVIL APPEALS ...... 1671 CASES ASSIGNED TO DIVISIONS 2 AND 4 OF THE COURT OF CIVIL APPEALS ...... 1671 2006 OK CIV APP 16 STATE OF OKLAHOMA, ex rel., DEPARTMENT OF HUMAN SERVICES CHILD SUPPORT ENFORCEMENT, Plaintiff/Appellee, vs. DUSTIN LOYAL BLESSUM, Defendant/Appellant. No. 99,958 ...... 1672 2006 OK CIV APP 48 CATERPILLAR INC., and CATERPILLAR PAVING PRODUCTS INC., Plaintiffs/ Appellees/Counter-Appellants, v. TRINITY INDUSTRIES, INC., Defendant/Appellant/Counter-Appellee. Case No. 100,258 ...... 1672 2006 OK CIV APP 49 L. ENVIRONMENTAL SERVICE, INC., Plaintiff/Appellant, v. UNITED MOTORS, INC., an Oklahoma corporation, Defendant/Appellee. Case No. 101,232...... 1679 2006 OK CIV APP 50 IN RE: THE MARRIAGE OF TEDDIE LEE NIBARGER, Petitioner/Appellant, v. JUDITH L. NIBARGER, Respondent/Appellee. No. 102,326 ...... 1681 2006 OK CIV APP 51 DANNY and JUDY MAINKA, husband and wife; and, MICHAEL and SHEILA MAINKA, husband and wife, Plaintiffs/Appellants, v. GAYLON L. MITCHUSSON and BEVERLY J. MITCHUSSON, husband and wife; CHARLES Y. MITCHUSSON, SR. and EVA G. MITCHUSSON, Trustees of the Charles Y. Mitchusson, Sr. Revocable Trust dated August 5, 2004; CHARLES Y. MITCHUSSON, SR. and EVA G. MITCHUSSON, Trustees of the Eva G. Mitchusson Revocable Trust dated August 5, 2004; CHARLES Y. MITCHUSSON, JR. and MARCIA J. MITCHUSSON; RONALD G. MITCHUSSON and JUDITH MITCHUSSON; ROY L. SPARKS, as Trustee of the Roy L. Sparks Revocable Trust dated May 1, 1998 and LEDA K. SPARKS, as Trustee of the Leda K. Sparks Revocable Trust dated May 1, 1998, Defendants/Appellees. No. 102,424 ...... 1683

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1583 PHOTO HIGHLIGHTS

Oklahoma Judicial Recognition Banquet

Friday, May 12 at the Oklahoma Historical Center L Su preme Court Jus tice Steven W. Taylor and his staff lawyer Do nna Embry, who provided the c enterpieces.

ists played for the Justice Rudolph and L The Rebecca Oathout Suzuki Violin bbott (front row, Madeline Hargrave reception. The group includes Eric A .S. District Judge lead the dancing at second from left), the grandson of U (middle) and the new Oklahoma Ralph Thompson; and Jay Scambler from left), the Historical Center. Winston Scambler (front row, third Yvonne Kauger. grandsons of Supreme Court Justice

ief Supreme Court Ch t Justice Joseph Wat recognizes Justice r’s Robert E. Lavende to 40 years of service mer, the court. This sum ill Justice Lavender w nver surpass Justice De of Davidson’s record 41 years. L Judge Thomas S. Walker and Marilyn Walker celebra 30 y te his ears of service.

L Justice Ralph and Janelle Hodges L sha, celeb ter of Chicka rate his an Winches ate Rep. Sus f the Courts 47 years of St tive Office o Administra Justice service. (center) and chael Evans ng. irector Mi oy the eveni D nchester enj James R. Wi

1584 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 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)

2006 OK 24 is replaced with the phrase “The merits of granting or LORI HARVELL, Individually and on denying mandamus are often behalf of herself and all others similarly different than”. situated, Plaintiff/Appellee, v. THE GOODYEAR TIRE & RUBBER COMPANY, In all other respects, the opinion of May 2, Defendant/Appellant. 2006, shall remain unaffected by this correction order. No. 102,128. May 9, 2006 DONE BY ORDER OF THE SUPREME ORDER COURT THIS 9th DAY OF MAY, 2006. It is hereby ordered that the typewritten opinion in the above styled and numbered cause /s/ Joseph M. Watt on April 25, 2006, is hereby corrected as follows: JOSEPH M. WATT, CHIEF JUSTICE pg. 1 William K. Orendorff, is stricken as one of the attorneys for 2006 OK 29 the Appellee and added, along BROADWAY CLINIC, Plaintiff/Appellant, v. with Sallisaw, Oklahoma, as LIBERTY MUTUAL INSURANCE one of the attorneys for the COMPANY, Defendant/Appellee. appellant. No. 101,572. May 9, 2006 In all other respects, the opinion of April 25, 2006, shall remain unaffected by this correction ON APPEAL FROM THE DISTRICT order. COURT, OKLAHOMA COUNTY DONE BY ORDER OF THE SUPREME ¶0 Plaintiff brought a small-claim proceed- COURT THIS 9th DAY OF MAY, 2006. ing for a declaration that its statutory physician’s lien attached to the proceeds of its /s/ Joseph M. Watt patient’s uninsured motorist coverage and to JOSEPH M. WATT, enforce the lien against defendant, the CHIEF JUSTICE patient’s uninsured motorist carrier. The dis- 2006 OK 27 trict court, Roma M. McElwee, trial judge, concluded that a statutory physician’s lien is not MILLER DOLLARHIDE, P.C., enforceable against the proceeds of uninsured Plaintiff/Appellee, v. MOSHE TAL, motorist coverage and gave judgment to Defendant/Appellant. defendant. Plaintiff brought this appeal, which No. 100,179. May 9, 2006 stands retained for this court’s disposition. ORDER THE TRIAL COURT’S JUDGMENT IS REVERSED AND THE CAUSE IS It is hereby ordered that the typewritten REMANDED WITH DIRECTIONS TO opinion in the above styled and numbered cause PROCEED IN A MANNER CONSISTENT on May 2, 2006, is hereby corrected as follows: WITH TODAY’S PRONOUNCEMENT. pg. 8, ¶11 The phrase “[then that of full Timothy A. Heefner and Jennifer A. Bruner, argument and opinion]” is GOOLSBY, OLSON & PROCTOR, P.C., Okla- replaced with the phrase homa City, for plaintiff/appellant. “[than that of full argument and opinion].” Albert L. Tait, Jr. and J. Mark McAlester, FEN- TON, FENTON, SMITH, RENEAU & MOON, pg. 10, ¶17 The phrase “The merits of Oklahoma City, for defendant/appellee.1 granting or denying mandamus are often different then” OPALA, J.

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1585 ¶1 The dispositive issue presented in this manner consistent with today’s pronounce- appeal is whether a statutory physician’s lien ment. attaches to the proceeds of a patient’s unin- II sured motorist coverage. We answer in the affirmative. STANDARD OF REVIEW I ¶6 The facts relevant to this appeal are THE ANATOMY OF LITIGATION undisputed, having been submitted to the trial court by stipulation. The issue before us is one ¶2 Tijuana Johnson (Johnson) was injured in of law in which we must determine whether a an automobile accident in September 2001. statutory physician’s lien is enforceable After providing Johnson with accident-related against UM indemnity. Contested issues of law medical treatment, the Broadway Clinic (Clin- stand before us for de novo review.4 When ic or plaintiff) filed (in the office of the Okla- examining a trial court’s legal rulings, an homa County Clerk) a 42 O.S. 2001 §46 lien2 appellate court exercises plenary independent [called a §46 physician’s lien] against any pay- and non-deferential authority.5 ment Johnson might receive for her injuries from the tortfeasor or from an insurer.3 Johnson III asserted a claim against her automobile insur- THE PARTIES’ CONTENTIONS er, Liberty Mutual Insurance Company (Liber- ty Mutual or defendant) to recover benefits ¶7 Defendant urges us to sustain the trial under both the medical payments coverage court’s construction of §46(B) to exclude a and the uninsured/underinsured motorist patient’s UM carrier. Defendant contends that (UM) coverage of her policy. §46(A) creates a class of persons — tortfeasors — which controls and limits the persons to ¶3 In April 2002, Liberty Mutual paid the whom both §46(A) and §46(B) apply. Read in Clinic $1,000.00 under Johnson’s medical pay- conjunction with §46(A), defendant asserts, it ments coverage, leaving an outstanding bal- is clear that the legislature intended §46(B) to ance for medical services rendered to Johnson apply only to the tortfeasor’s insurer, not to of $902.00. Later that same month, Liberty insurance purchased by the patient. Mutual issued a check to Johnson alone in the amount of $4,200.00, representing proceeds ¶8 Defendant also argues that Oklahoma from Johnson’s UM coverage. In July 2002, Lib- jurisprudence involving other types of statuto- erty Mutual informed the Clinic that it had set- ry liens has consistently denied the lienholder tled Johnson’s UM claim and had disbursed access to the proceeds of UM coverage. In sup- the funds to her. port of this contention, defendant cites this court’s decision in Kratz v. Kratz,6 which held ¶4 The Clinic filed a small-claim proceeding that a 42 O.S. 2001 §43 hospital lien does not against Liberty Mutual seeking a declaration attach to UM indemnity, as well as two deci- that its lien attached to Johnson’s UM benefits sions of our intermediate appellate courts and to enforce the lien. At a hearing on 20 holding that an employer’s or workers com- August 2004, the parties stipulated to the facts pensation carrier’s statutory right to subroga- and presented their opposing legal arguments tion does not extend to UM benefits.7 to Roma M. McElwee, trial judge, on the question of whether a §46(B) physician’s lien is ¶9 Defendant further argues that to construe enforceable against UM indemnity. The trial the words “an insurer” in §46(B) to include judge ruled in the negative and pronounced insurers generally and not just the tortfeasor’s judgment for defendant. Plaintiff brought this insurer would lead to the absurd result that appeal, which stands retained for this court’s any insurance available to the patient would disposition. become fair game for a physician’s lien, including such other first-party insurance as collision ¶5 We now hold that the provisions of 42 coverage. This would impair the contract of O.S. 2001 §46(B), which authorize a lien in insurance between the insurer and its insured, favor of a physician upon proceeds payable by which contemplates payment of benefits to the an insurer, include within their ambit the pro- insured only. ceeds of a patient’s UM coverage. We hence reverse the trial court’s judgment and direct ¶10 Finally, defendant contends that the the trial judge to proceed, upon remand, in a exemption from attachment and execution cre-

1586 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 ated by the provisions of 31 O.S. 2001 §1.A.21 attaches, the statute’s enforcement provisions for a person’s interest in “a claim for personal are to be accorded a liberal construction.11 bodily injury” in an amount not to exceed ¶15 In the absence of ambiguity or conflict $50,000.00 places Johnson’s UM benefits out of with another enactment, our task is limited to the reach of the Clinic’s lien. applying a statute according to the plain mean- ¶11 Plaintiff contends that the trial court ing of the words chosen by the legislature, erred in construing §46(B) to exclude the which presumptively express that body’s patient’s UM carrier. The terms of §46(B), intent.12 The provisions of §46(B) are neither plaintiff urges, are clear and unambiguous and ambiguous nor in conflict with another enact- devoid of any language suggesting that the ment. While we agree with defendant that legislature intended to confine §46(B) to the §46(B)’s express terms do not clearly define the tortfeasor’s insurer. In the absence of such lim- outer boundaries of the physician’s lien right,13 iting language or any other textual indication the enactment’s plain language leaves no that the legislature intended to restrict §46(B) doubt that the insurance coverage at issue in in the way defendant advocates, plaintiff this case — the patient’s UM benefits — falls argues the statute must be construed as written squarely within the statute’s intended domain. — to apply to any insurer, including a patient’s The legislature enacted §46 to encourage own UM carrier. physicians to provide medical treatment to accident victims with insufficient funds or ¶12 Plaintiff further argues that defendant’s insurance to pay for their treatment at the time restrictive approach to the meaning of §46(B) is of delivery.14 It is designed to ensure that inconsistent with the legislature’s intent in physicians are paid for their services once their enacting the statute. The purpose of the lien is patients are compensated for their injuries.15 to encourage physicians to provide medical treatment to injured persons without regard to ¶16 The purpose of UM coverage in a policy their ability to pay at the time the services are of automobile insurance is to protect the rendered. Plaintiff argues that removing UM insured from the effects of personal injury proceeds as a source of payment would thwart resulting from an accident with another the statute’s purpose. motorist who carries no insurance or is underinsured.16 It is a carrier’s direct promise to the ¶13 Plaintiff also asserts that defendant’s insured to pay indemnity for a specified loss.17 reliance on Kratz is misplaced. Plaintiff points One of the effects of personal injury from an out that statutory hospital liens are governed accident is the loss a patient may suffer as a by the provisions of 42 O.S. 2001 §43, while the result of the obligation to pay accident-related lien it asserts falls under the provisions of medical expenses. UM coverage is not sup- §46(B). Plaintiff argues that critical differences posed to be a windfall to the injured party. To between the language used in §43 and §46(B) place it off-limits to the §46(B) lien would treat preclude application of the reasoning in Kratz UM coverage as something other than the to a lien that comes within the terms of §46(B). insured’s receipt of indemnity for loss. It IV would thwart the legislature’s intent to make insurance that compensates the patient for THE PROCEEDS OF UM COVERAGE ARE injury available to compensate the physician SUBJECT TO A §46(B) PHYSICIAN’S LIEN for services rendered. Had the legislature ¶14 A statutory lien such as that accorded by wanted to confine §46(B) to the tortfeasor’s §46 to a physician stands in derogation of the insurer, it could easily have included the limi- common law.8 As a remedial device that owes tation in the text of the statute. It did not. its existence to a legislative enactment, the text Where a word or phrase is absent from a statute, we must presume that its absence is of the physician’s lien statute is the measure of intentional.18 both the right and the remedy it creates.9 A statutory lien must be strictly confined within ¶17 Defendant’s argument that §46(A) the ambit of legislation giving it birth.10 Hence, restricts the application of §46(B) to the tortfea- the funds upon which a physician’s lien may sor’s insurer has no textual support in the be impressed are only those that come within enactment. The plain language of §46(B),which the express terms of the statute. Once it begins with the words, “In addition to the lien becomes clearly established that the lien right provided in [§46(A)]” and proceeds to use the

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1587 unqualified phrase “claim against an insurer” essary for the application of the doctrine. There indicates that the two provisions operate is in §46 no enumeration or list of specific independently. things, no class created by such an enumeration, and no general catchall reference. There is ¶18 The dissenter finds ambiguity in §46(B) simply nothing in the statute upon which the and would employ the canons of statutory doctrine of ejusdem generis can operate.22 construction known as noscitur a sociis and ejusdem generis to restrict its reach to the tort- ¶21 In evaluating whether the legislature feasor’s insurer. Neither doctrine is applicable. intended for §46(A) to restrict the meaning of Noscitur a sociis asserts that the meaning of an §46(B), it is important to recall that an injured unclear or ambiguous word or phrase “should party cannot “assert or maintain a claim be determined by the words immediately sur- against” the tortfeasor’s liability insurer.23 The rounding it.”19 Even if there were some degree dissenter’s application of the noscitur a sociis of ambiguity in the meaning of the words “an and ejusdem generis maxims to restrict §46(B) to insurer,” which we deny, noscitur a sociis does the tortfeasor’s insurer would have the absurd not provide a way to resolve the question. result of the legislature having enacted a lien While §46(A) and §46(B) are neighbors, their that can never actually exist. respective language, set apart in independent ¶22 Defendant urges us to extend to this case subsections, does not derive any meaning from our holding in Kratz (that a statutory hospital that association. The language of the former lien does not attach to UM benefits). Because does not form the context of the latter. There is the relevant statutes are dissimilar, we decline simply no indication in the statutory language to do so. Hospital liens are governed by the of either subsection that the words used to cre- terms of 42 O.S. 2001 §43, which expressly limit ate one lien are intended to have a limiting the scope of a hospital lien to proceeds that effect on the other. result from a “claim against another for dam- ¶19 Ejusdem generis is equally inapplicable. ages.”24 Because UM benefits do not result We have held that the doctrine of ejusdem from a claim against another for damages, we generis applies when (1) a statute contains a held in Kratz that they do not fall within the specific enumeration; (2) the members of the ambit of the hospital lien statute. While that enumeration suggest a class; (3) the class is not reasoning may be relevant to a lien arising exhausted by the enumeration; (4) a general under the provisions of §46(A), which is virtu- reference supplementing the enumeration is ally identical to §43, it has no relevance to a made, usually following the enumeration; and §46(B) lien, which grants a lien right to a physi- (5) there is not clearly manifested an intent that cian against proceeds derived from a patient’s the general term be given a broader meaning “claim against an insurer.”25 With all due than the doctrine requires.20 In other words, the respect to the dissenter’s contention that §43 statute must display a syntactical relationship and §46 are “virtually identical,” we note the of the specific to the general, with a series of following not insignificant difference: §43 does specific words defining a class followed (or not contain any language, let alone a separate sometimes preceded) by a catchall referent that subsection, that authorizes a lien against the determines “how extensively the act . . . [is] proceeds of money recovered by an injured intended or should reasonably be understood person from an insurer against whom the to apply.”21 injured party has asserted or maintained a claim. ¶20 The dissenter would have us treat the words in §46(A) referring to the tortfeasor as ¶23 Defendant’s remaining contention is that creating a class into which §46(B)’s words “an the exemption from attachment and execution insurer” fall. Applying ejusdem generis, the dis- provided by 31 O.S. 2001 §1.A.21 for personal senter would then define the words “an insur- injury recoveries up to $50,000.00 negates the er” by reference to the “class of tortfeasor” Clinic’s lien against the proceeds of Johnson’s resulting in the words “an insurer” becoming UM recovery. We disagree. It is not unprece- “the tortfeasor’s insurer.” We liken this to an dented for us to hold that a lien is enforceable attempt to fit a square peg into a round hole. against exempt property. We have held that a The statute at issue does not lend itself to con- statutory exemption from attachment or exe- struction through ejusdem generis because it cution does not apply to certain consensual lacks most if not all of the characteristics nec- liens such as mortgages and security inter-

1588 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 ests.26 We have also enforced a laborer’s lien required by §46(C)(1) and (2). Compliance created under the provisions of 42 O.S. 1951 with the statutory requirements for perfection §141 against homestead property.27 of the lien at issue was not raised in the trial ¶24 Because we are dealing here with a court and was not the basis for the trial court’s statutory lien’s relationship to a statutory decision. It is not the function of this court to exemption, our task is to ascertain how the leg- make first-instance determinations of fact or islature intended for the two statutes to oper- legal questions which have been neither raised ate together. We start with the presumption nor assessed at nisi prius.36 The matter of the that the legislature would not enact legislation lien’s perfection is not before us today. Unlike that is incapable of functioning usefully. We the dissent, we consider it highly improper to hence decline to construe the exemption express any opinion on a question which is not statute as defendant advocates because that before us for consideration. construction effectively renders the lien statute ¶27 The facts pertinent to this appeal are not a nullity. Instead, we construe the lien and in dispute. The Clinic provided medical treat- exemption statutes to give effect to both. We therefore hold that the 31 O.S. 2001 §1.A.21 ment to Johnson after she was injured in an exemption notwithstanding, a statutory physi- automobile accident. Johnson asserted a claim cian’s lien is enforceable against personal against her UM carrier, Liberty Mutual, in con- injury proceeds of less than $50,000.00; the nection with the accident. The Clinic filed a §46 statutory exemption remains as a bar to attach- physician’s lien against any proceeds payable ment or execution by all other creditors.28 to Johnson by “an insurer.” Because we hold today that UM indemnity stands subject to a ¶25 The dissent would have us sua sponte §46(B) physician’s lien, we reverse the trial assert that the small claims division lacks sub- court’s judgment that placed Johnson’s UM ject matter jurisdiction over this proceeding to benefits beyond reach of the Clinic’s lien and enforce a lien and would have us declare the remand the cause with directions to proceed trial court’s judgment a nullity. While an in a manner consistent with today’s appellate court is duty-bound to inquire sua pronouncement.37 sponte into its own jurisdiction over any pending matter as well as that of the lower court V whence the case came by appeal or on certiorari,29 the enforcement of a lien in small claims SUMMARY presents a matter of internal allocation of case- ¶28 The provisions of §46(B) clearly and load rather than one of jurisdiction. Under unambiguously authorize a physician to place 30 the State’s constitution, the district court — a lien on proceeds to which a patient is entitled in all of its divisions — constitutes an from a claim against an insurer. We have noted omni-competent, single-level, first-instance that “seeking hidden meaning at variance with tribunal31 with “unlimited original jurisdiction 32 the language used [in a statute] is a perilous over all justiciable matters. . . .” While the undertaking which is quite as apt to lead to an business of the district court is divided into amendment of a law by judicial construction as separate dockets or compartments,33 its consti- it is to arrive at the actual thought in the leg- tutionally-conferred jurisdictional sweep is islative mind.”38 Where statutory language is indivisible.34 The correct method for challenging the power of the small claims division to plain and the legislative purpose evident, we enforce a lien is by motion to transfer the cause will not interject into the statute a word or to the proper division of the district court, not phrase that alters the choice the legislature has by dismissal for lack of subject matter jurisdic- made. Such is the case here where the statute tion.35 All judges of the district court have a plainly authorizes a lien against proceeds constitutionally invested power to transfer derived from a claim against an insurer. The cases to another division of the district court trial court erred in deciding otherwise. on any tenable legal or equitable ground ¶29 THE TRIAL COURT’S JUDGMENT IS shown at any point in litigation. REVERSED AND THE CAUSE IS ¶26 The dissent also contends that the physi- REMANDED WITH DIRECTIONS TO PRO- cian’s lien at issue here is invalid and hence CEED IN A MANNER CONSISTENT WITH unenforceable because it was not perfected as TODAY’S PRONOUNCEMENT.

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1589 ¶30 WINCHESTER, V.C.J., and LAVEN- has expressed its intent in a statute and that it intended what it so expressed”). DER, HARGRAVE, OPALA, and TAYLOR, 19. BLACK’S LAW DICTIONARY 1087 (8th ed. 2004); U.S. v. One TRW, JJ., CONCUR. Model M14, 7.62 Caliber Rifle, 441 F.3d 416, 422 (6th Cir. 2006). See also RONALD BENTON BROWN AND SHARON JACOBS BROWN, STATUTORY INTER- ¶31 KAUGER, J., CONCURS IN PART PRETATION: THE SEARCH FOR LEGISLATIVE INTENt (2002) 77 (“Noscitur a sociis means that a word is known by its associates or by what sur- AND DISSENTS IN PART. rounds it (or by the company it keeps). . . . For example, if the word “complaint” appeared in a statute concerning civil litigation, it was ¶32 WATT, C.J., and EDMONDSON and probably intended to have the meaning to which lawyers involved in civil litigation could relate (i.e., a formal document commencing a COLBERT, JJ., DISSENT. legal action), rather than as an expression of discontent — what it means to most non-lawyers.”). 1. Identified herein are those counsel for the parties whose names 20. White v. Wint, 1981 OK 154, ¶9, 638 P.2d 1109, 1113-14. appear on the briefs filed in this court. 21. 2A SUTHERLAND, STATUTORY CONSTRUCTION (6th ed.) §47:18. See 2. The provisions of 42 O.S. 2001 §46 state in pertinent part: also BROWN AND BROWN, supra note 19 at 74 (“Ejusdem generis meaning A. Every physician who performs medical services for any per- ‘of the same class,’ is a canon invoked when a listing of items (i.e., son injured as a result of the negligence or act of another, shall, ‘limes, grapefruits, oranges . . .’) is ended or completed by the use of a if the injured person asserts or maintains a claim against such general term (‘. . . and others’). This canon provides that the general other person for damages on account of such injuries, have a lien term at the end (‘. . . and others’) is to be limited to the class of specif- for the amount due for such medical services upon that part ic items preceding it (‘limes, grapefruits, and oranges’). It might be going or belonging to the injured person of any recovery or sum explained by reasoning that the drafter working down the list would had or collected or to be collected by the injured person, or by his keep this in mind when writing the general term at the end. It can be heirs, personal representative, or next of kin in the event of his deduced that the ending term was probably intended to be limited to death, whether by judgment, settlement, or compromise. Such the terms in the list by the legislature.”). lien shall be inferior to any lien or claim of any attorney handling 22. 2A SUTHERLAND supra note 21 at §47.20 (“Where a general term the claim for or on behalf of the injured person. The lien shall not appears with no enumeration, with other general terms, or with spe- be applied or considered valid against any claim for amounts cific terms not suggesting a class, the rule of ejusdem generis does not due pursuant to the provisions of Title 85 of the Oklahoma apply.”). Statutes. 23. Daigle v. Hamilton, 1989 OK 137, ¶18, 782 P.2d 1379, 1383. B. In addition to the lien provided for in subsection A of this section, 24. The provisions of 42 O.S. 2001 §43 contain an express limitation every physician who performs medical services for any person injured with respect to accidents covered by the Workers Compensation Act. as a result of the negligence or act of another, shall have, if the injured In Thomas v. Okla. Orthopedic & Arthritis Foundation Inc., 1995 OK person asserts or maintains a claim against an insurer, a lien for the 47, 903 P.2d 279, the court held that a hospital is not entitled to a §43 amount due for such medical services upon any monies payable by the lien on the proceeds of an injured worker’s settlement of a suit against insurer to the injured person. the third-party tortfeasor where: 1) the worker has filed a claim in the 3. The dissent asserts that the lien at issue was not properly per- Workers’ Compensation Court and 2) the Workers Compensation fected and is therefore invalid and unenforceable. For the reasons Court has assumed jurisdiction and made an award for medical expressed infra, we decline to opine upon plaintiff’s compliance with expenses against the employer before the worker settled with the the statutory requirements for perfection of a §46(B) lien and confine third-party. Under these circumstances, the Workers Compensation today’s pronouncement to the ground of decision upon which the dis- Act provides the exclusive remedy in the Workers’ Compensation trict court’s judgment rests. Court for the hospital to recover for services rendered to the injured worker. Id. at ¶16, at 287. 4. Booth v. McKnight, 2003 OK 49, ¶12, 70 P.3d 855, 860. 25. See Richard v. OU Physicians, 2005 OK CIV APP 108, ¶6, 127 5. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d P.3d 618, 620, cert. denied. 1081, 1084 (“[i]ssues of law are reviewable by a de novo standard and 26. Keist v. Cross, 1926 OK 354, ¶4, 247 P. 85, 86. an appellate court claims for itself plenary independent and non-def- 27. Conrad v. Marlar, 1961 OK 270, ¶18, 366 P.2d 463, 465. erential authority to reexamine a trial court’s legal rulings”); Salve 28. Accord, In re Innis, 181 B. R. 548, 551 (Bkrtcy. N.D. Okla. 1995). Regina College v. Russell, 499 U.S. 225, 231, 111 S. Ct. 1217, 1221, 113 L. 29. Stites v. DUIT Const. Co., Inc., 1995 OK 69, ¶8, n.10, 903 P.2d Ed.2d 190 (1991). 293, 297, n.10; Lincoln Bank and Trust Co. v. Okla. Tax Comm’n, 1992 6. 1995 OK 63, 905 P.2d 753. OK 22, ¶6, 827 P.2d 1314, 1318; Cate v. Archon Oil Co., Inc., 1985 OK 7. Wise v. Wollery, 1995 OK CIV APP 69, 904 P.2d 151, cert. denied; 15, ¶10, n.12, 695 P.2d 1352, 1356, n. 12; Pointer v. Hill, 1975 OK 73, ¶14, Dennis v. Harding Glass Co., 1996 OK CIV APP 105, 929 P.2d 301, cert. 536 P.2d 358, 361. denied. 30. The pertinent terms of Art. 7 § 7(a), Okla. Const., are: 8. Republic Bank & Trust Co. v. Bohmar Minerals, Inc., 1983 OK 29, “ * * * The District Court shall have unlimited original jurisdiction of ¶5, 661 P.2d 521, 523; Riffe Petroleum Co. v. Great Nat. Corp., Inc., 1980 all justiciable matters, except as otherwise provided in this Arti- OK 112, ¶5, 614 P.2d 576, 579. cle, . . .” (emphasis added) 9. Riffe Petroleum, supra note 8. Since 1969 district courts exercise unlimited original jurisdiction of all 10. Id. justiciable matters, except as otherwise provided by the Constitution. 11. Id. Art. 7 § 7, Okla. Const. (eff. 13 Jan. 1969); State ex rel. Southwestern Bell 12. Only where the legislative intent cannot be ascertained from Tel. Co. v. Brown, 1974 OK 19, ¶21, 519 P.2d 491, 495. the language of the enactment’s text — as in instances of ambiguity or 31. Eskridge v. Ladd, 1991 OK 3, ¶25, n. 7, 811 P.2d 587, 592-3, n. 7 conflict with other enactments — are rules of statutory construction to (Opala, C.J., concurring); Matter of B.C., 1988 OK 4, ¶3, 749 P.2d 542, be utilized. George E. Failing Co. v. Watkins, 2000 OK 76, ¶7, 14 P.3d 548 (Opala, J., concurring in part and dissenting in part); Lee v. Hester, 52, 56; Cox v. Dawson, 1996 OK 11, ¶6, 911 P.2d 272, 276 (noting that 1982 OK 30, ¶6, 642 P.2d 243, 246; Interstate Brands Corp. v. Stephens, “[u]nder our case law, we hesitate to construe any statute that appears 1980 OK 121, ¶2, 615 P.2d 297, 299 (Opala, J., concurring). clear and unambiguous”). 32. Art. 7 § 7(a), Okl. Const., supra note 30. 13. Defendant contends that if we hold that §46(B) applies to UM 33. The division of the district court’s business into separate dock- benefits, there will be no limit to the type of coverage that comes with- ets is authorized by the provisions of 20 O.S. 2001 §91.2, which stand in the statute’s operation, including coverages having nothing to do vitalized by this court’s administrative directives (SCAD No. 99-87 (16 with the patient’s personal injuries. Today’s pronouncement authoriz- December 1999), 92-06 (24 December 1992), 89-7 (12 September 1989), es the application of §46(B) to UM coverage. It does not address the 89-1 (31 January 1989), 68-1 (23 December 1968)). reach of §46(B) beyond the facts presented in the case before us. 34. Lee v. Hester, supra note 31 at ¶6, at 246 ( stating that “[t]he cur- 14. Balfour v. Nelson, 1994 OK 149, ¶11, 890 P.2d 916, 919. rent sweep of district court’s power no longer can be said to hinge on 15. Id. the presence of some specifically tailored legislative grant). 16.Uptegraft v. Home Ins. Co., 1983 OK 41, ¶6, 662 P.2d 681, 683- 35. Eskridge v. Ladd, supra note 31 at ¶ 22, at 591-92 (Opala, C.J., 84. concurring). 17. Id. at ¶7, at 684. 36. Evers v. FSF Overlake Associates, 2003 OK 53, ¶18, 77 P.3d 581, 18. TXO Production Corp. v. Okla. Corp. Comm’n, 1992 OK 39, ¶7, 587; Salazar v. City of Okla. City, 1999 OK 20, ¶15, 976 P.2d 1056, 1062; 829 P.2d 964, 969 (recognizing the presumption “that the legislature Bivins v. State ex rel. Okla. Memorial Hosp., 1996 OK 5, ¶19, 917 P.2d

1590 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 456, 464; Dyke v. St. Francis Hosp., Inc., 1993 OK 114, ¶11, 861 P.2d 295, including subrogation claims, but 300; Davis v. Gwaltney, 1955 OK 362, ¶13, 291 P.2d 820, 824. 37. To the extent the Court of Civil Appeals’ decision in Fugate v. excluding libel or slander, in which the Mooney, 1998 OK CIV APP 48, 958 P.2d 818, could be construed to pre- amount sought to be recovered, exclu- clude enforcement of a physician’s lien against the proceeds of UM coverage, it is expressly overruled. sive of attorneys fees and other court 38. Seventeen Hundred Peoria, Inc. v. City of Tulsa, 1966 OK 155, costs, does not exceed Four Thousand ¶14, 422 P.2d 840, 843-44. Five Hundred Dollars ($4,500.00); EDMONDSON, J., Dissenting and joined by 2. Actions to replevy personal WATT, C.J. and COLBERT, J. property the value of which does not ¶1 I disagree with the majority’s conclusion exceed Four Thousand Five Hundred that our statutory physician’s lien is enforce- Dollars ($4,500.00). If the claims for able against UM coverage and would dissent possession of personal property and to solely for that reason, but this case has more recover money are pled in the alterna- basic and fundamental flaws which also must tive, the joinder of claims is permissi- be addressed: the small claims court did not ble if neither the value of the property have subject matter jurisdiction to hear and nor the total amount of money sought determine this action to enforce a lien, and the to be recovered, exclusive of attorneys purported lien was not perfected according to fees and other costs, does exceed Four statute. Thousand Five Hundred Dollars ($4,500.00); and ¶2 The question of subject matter jurisdiction is primary and fundamental in every case 3. Actions in the nature of and it is the duty of this Court to inquire into interpleader, as provided for in Section its own jurisdiction and that of the trial court 2022 of this title, in which the value of whether or not such question is raised by the the money which is the subject of such parties. Collins v. Mid-Continent Pipeline Co., action does not exceed Four Thousand 1999 OK 56, 6 P.3d 1050, 1051, fn. 2; Dickson v. Five Hundred Dollars ($4,500.00); and Dickson. 1981 OK 142, 637 P.2d 110, 112, fn. 2; Hayhurst v. Hayhurst, 1966 OK 238, 421 P.2d B. No action may be brought under the 257, 260. Subject matter jurisdiction cannot be small claims procedure by any collection conferred by consent or waiver of the parties, agency, collection agent, or assignee of a and it may be raised at any time. Shaffer v. Jef- claim, except that an action may be ferey, 1996 OK 47, 915 P.2d 910, 913. Jurisdiction brought against an insurer or third-party is the authority by which courts and judicial administrator by a health care provider as officers take cognizance of and decide cases. that term is defined in Section 6552 of Title Turk v. Coryell, 1966 OK 194, 419 P.2d 555, 558. 36 of the Oklahoma Statutes, who is an It is the power of judicial officers and courts to assignee of benefits available under an hear and determine the subject in controversy accident and health insurance policy, trust, and to exercise judicial power over every plan, or contract. aspect of the cause and the power to render the C. In those cases which are uncontest- particular judgment entered. Lowry v. Semke, ed, the amount of attorneys fees allowed 1977 OK 220, 571 P.2d 858, 861; In re Harkness’ shall not exceed ten percent (10%) of the Estate., 1921 OK 329, 204 P. 911, 917. judgment. ¶3 The small claims division of the district D. No action may be brought under the court is created by the Small Claims Procedure small claims procedure for any alleged Act, 12 O.S. Supp.2003,§§1751-1753, which lim- claim against any city, county, or state its its jurisdictional power. Maximum values agency, or employee of a city county or and amounts were increased to $6,000.00 effec- state agency, if the claim alleges matters tive November 1, 2004; that aside, the Act pro- arising from incarceration, probation, vided as follows at the times pertinent to this parole or community supervision. case: E. No action by a plaintiff who is cur- A. The following suits may be brought rently incarcerated in any jail or person in under the small claims procedure: the state may be brought against any per- 1. Actions for the recovery of son or entity under the small claims proce- money based on contract or tort, dure.

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1591 ¶4 Broadway Clinic brought this suit to insurer of the tortfeasor or other third party at enforce its claimed statutory physician’s lien.1 fault for his injury. It is not an action based on contract, tort, ¶8 It is axiomatic that the cardinal rule of replevin or assignment of benefits, and it is statutory interpretation is to ascertain and, if therefore not authorized by §1751 as a matter possible, to give effect to the Legislature’s which may be heard and decided in small intention and purpose as it is expressed in the claims court.2 A case that is brought in a court statute’s provisions. When the language of a which has no jurisdiction to settle the contro- statute is not plain or unambiguous, it is the versy is said to be “coram non judice” and court’s job to determine the meaning of the such a decision is legally invalid. Collins v. Mid- statute in a way that produces a reasonable Continent Pipeline Co., 6 P.2d at 1053, fn.8. That result which will promote the general purpose being the situation here, I would hold the trial for which the statute was enacted. See AMF court’s purported judgment a nullity. Tubescope Company v. Hatchel, 1976 OK 14, 547 ¶5 Since the majority of this Court does not P.2d 374, 379-80. agree that this action to enforce a lien exceeded ¶9 Appellee correctly argues that the doc- the subject matter jurisdiction limitations of trine of statutory interpretation, ejusdem the small claims court, I must additionally dis- generis, applies here and precludes the major- sent from its construction and application of 42 ity’s finding that the statutory lien may be OS 2001 §46. enforced against uninsured motorist benefits ¶6 Contrary to the majority’s position, §46(B) paid to the insured patient by his own insurer. is uncertain and ambiguous regarding who is Under that rule, where general words follow meant to be included as “an insurer.” To reach particular words, the general words do not its result, the majority reads the phrase in the explain or amplify particular words preceding abstract. It is not a phrase which stands alone them, but are themselves restricted and without qualifications on its meaning, howev- explained by the particular terms. Oklahoma er. It is a part of the entire statute, and a statute Tax Commission v. Fortinberry Co., 1949 OK 75, must be construed as a whole in light of its 207 P.2d 301, 305. Nucholls v. Board of Adjust- general purpose and objective. The words, ment of the City of Tulsa, 1977 OK 3, 560 P.2d 556, phrases and sentences of a statute are to be 558-559 . Where general words follow particu- understood as they are used, not in an abstract lar words the general words will be considered sense, and words which are used in one part of as applicable only to things of the same gener- a statute must be interpreted in light of their al character, kind, nature or class enumerated, context and understood in that sense which and cannot include wholly different things best harmonizes with the other parts of the Nucholls v. Board of Adjustment of the City of statute. Matter of Estate of Little Bear, 1995 OK Tulsa, supra; White v. Wint, 1981 OK 154, 638 134, 909 P.2d 42, 50. The majority’s recognition P.2d 1109, 1114. This maxim is an application of that the statute does not define the outer the broader maxim, noscitur a sociis, which boundaries of the lien only highlights the means that general and specific words are statute’s ambiguity. Thus, the reach of the lien associated with and take color from each other, into the property rights of injured patients is to restricting general words to sense analogous to be determined by the judiciary instead of the less general. Application of Central Airlines, Inc. legislature. 1947 OK 312, 185 P.2d 919, 923-924. In Central Airlines we observed that the rule is based on ¶7 Subsections A and B do not operate inde- the obvious reason that “if lawmakers had pendently of each other. Subsection A creates a intended the general words to be used in their physician’s lien for medical services and limits unrestricted sense they would have made no its applicability to specific funds obtained in a mention of the particular classes.” Id. at 924. specific way by a specific population of patients: the sums an injured patient recovers ¶10 Application of these doctrines of statuto- from his claim against a “person, “ the tortfea- ry construction requires a finding that the sor or other third party at fault for his injury. meaning of “an insurer’ in subsection B is Subsection B’s creation of a lien “[i]n addition restricted to the insurer of the tortfeasor or the to the lien” in subsection A, is limited by the party who caused the injury, and an injured particular terms of subsection A to mean the party’s own insurer is not intended to be sums that the injured patient recovers from the included. There is no clearly manifested leg-

1592 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 islative intent that the language should be being a recovery for the patient and the hospi- given a broader meaning. tal, and rests on the fact that for lawyers a con- tingent fee is the ‘customary arrangement in ¶11 In Kratz v. Kratz, 1995OK 63 , 905 P.2d negligence cases.’ “ Kratz, 905 P.2d at 756-757. 753, we found 42 O.S.1999, § 43, the statutory hospital lien, was ambiguous and we deter- ¶13 Given the consistency of the two statuto- mined that it did not apply to uninsured ry liens, it seems very unlikely that the legisla- motorist benefits paid by the patient’s own ture intended hospital liens to apply only to insurer. We recognized that uninsured third-party coverage but intended physician’s motorist insurance is “first-party” coverage, liens to apply to first-party coverage as well as like collision, comprehensive or medical pay- third-party coverage . ments, not “third-party” coverage, like public ¶14 In Kratz, we recognized that there is no liability insurance, as it is a carrier’s direct basis for a hospital lien in the absence of promise to its insured to pay insured for the statute, and that while the hospital lien serves loss, rather than a promise to insured to pay a a worthy public purpose, we are not free to third party. UM coverage is a benefit of read in the inclusion of funds which are not insured’s private contractual arrangement fairly embraced by the terms of the statute: with his or her carrier based on the terms of the policy. Updegraft v. Home Ins. Co. 1983 OK 41, This Court must strictly construe 662 P.2d 681. Uninsured motorist insurance is statutes creating liens. Liens are property not a “windfall.” It is intended to compensate rights and it is not the function of the an insured for his loss, while public liability courts to create them from a sense of justice coverage furnishes him protection from credi- in a particular case. Young v. J.A. Young tors, not compensation for his loss. See Upde- Mach. & Supply Co., 224 P.2d 971 graft v. Home Ins. Co., 662 P2d at 684. (Okl.1950). Liens can be created either by contract or by law. 42 O.S.1991 § 6. A statu- ¶12 While it is true that §46, the physician’s tory lien such as the hospital lien at issue lien statute before us today, is not an exact stands in derogation of the common law copy of §43, the hospital lien statute, the two and must be strictly construed. A lien that are virtually identical in all relevant respects. is not provided by the clear language of the The majority’s view that §46 is so dissimilar as statute cannot be created by judicial fiat, to require a different result from the holding in for the words of the statute are the measure Kratz is unconvincing. Both are intended to of the right and the remedy. A court cannot assure payment for medical treatment provid- create a lien out of a sense of fairness if the ed for injured patients who might otherwise be terms of the statute are found too narrow non-paying. Both clearly create a lien on the and have not been met. Riffe Petroleum C. v. money the injured patient recovers from the Great Nat. Corp., Inc., 614 P.2d 576 person who caused the injury and money (Okl.1980); Harriss v. Parks, 77 Okl. 197, 187 recovered from a tortfeasor’s insurer. Both are P. 470 (1920); Interurban Construction Co. v. unclear about the lien’s application to the Central State Bank of Kiefer, 76 Okl. 281, 184 injured patient’s own insurance. The notice, P. 905 (1909). Kratz, 905 P.2d at 756. perfection and enforcement procedures for both liens are quite similar. Significantly, both ¶15 Appellee correctly contends that if the liens also provide for the superiority of the physician’s lien statute can be enforced against patient’s attorney’s lien. See § 46(C) and § 43. UM benefits, all first-party coverages will now We noted in Kratz that this established superi- be included within its reach, including those ority results from the Legislature’s recognition which are unrelated to the patient’s injuries that without the attorney’s representation of and were not intended for that purpose. In my the injured person against the tortfeasor and opinion,”an insurer” in the language of a the tortfeasor’s insurer, there would be no statute means the insurer of the tortfeasor or money to impress a lien upon. Considering other party at fault. The majority, by judicial this factor in our construction of the statute to fiat, creates a physician’s lien on first-party exclude UM coverage in Kratz, we stated: “The coverage and, in doing so, also removes the court noted in Vinzant v. Hillcrest Med. Center protection afforded UM and other first-party . . . that superiority was legislative recognition coverage provided by the Legislature’s exemp- that it is the skill and effort of the lawyer in a tion from attachment, execution or other personal injury case which results in there forced sale, of a “person’s interest in a claim for

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1593 personal bodily injury, death or worker’s com- CONCLUSION pensation claim, for a net amount not in excess ¶18 Because (1)small claims courts do not of Fifty Thousand Dollars($50,000.00), but not have jurisdiction of physician’s lien enforce- including any claim for exemplary or punitive ment actions, (2) physicians do not have a damages.” 31 O.S. 2001, §1(21). statutory lien against their patients’ UM cover- ¶16 As a final and additional point, I submit age, and (3) Broadway Clinic’s purported lien the physician’s lien at issue here is invalid failed to comply with the requirements neces- because it was not perfected as required by sary for perfection and was therefore unen- statute. It does not contain an itemized state- forceable, I respectfully dissent. ment of the amount claimed, but only asserts 1. The physician’s lien statute, 42 O.S. 2001, 46 provides: “D. The the total amount claimed. Title 42 O.S., Section liens provided for in this section may be enforced by civil action in the 46, (C)(1) and (2), set forth the requirements for district court of the county where the lien was filed. Such an action shall be brought within one (1) year after the physician becomes aware perfection of a physician’s lien, and provide it of final judgment, settlement or compromise of the claim asserted or must be in writing and contain:(1) an itemized maintained by or on behalf of the injured person. The practice, pleading, and proceedings in the action shall conform to the rules pre- statement of the amount claimed; (2) an identi- scribed by the Oklahoma Pleading Code [12 O.S. 2001 §§2001, et seq.] fication of the insurance policy against which to the extent applicable.” 2. For decisions recognizing subject matter jurisdiction limitations the lien is asserted; (3) the name and address of of the small claims court docket based on §1751restrictions, see Patter- the physician; (4) the name and address of the son v. Beal, 2000 OK 92, 19 P.3d 839(small claims court limited by injured person; and (5) the name of the person, statute as to types of cases and cap on damages); Thayer v. Phillips Petroleum Co., 1980 OK 95, 613 P.2d 1041 (cap on claim is jurisdictional firm, or corporation against whom the claim is limit); Carter v. Gullett, 1979 OK 146, 602 P.2d 640(jurisdiction in small made. The notice must be filed on the mechan- claims dependent on amount of claim and counterclaim); Seminole Family Medicine Clinic v. Southern, 2005 OK CIV APP 46, 116 P.3d ic’s and materialman’s lien docket in the coun- 191(collection agency not proper party in small claims action); Fowler ty of the physician’s office and a copy of the Equipment Co. v. Houston Oil Co., Inc. 1997 OK CIV APP 52, 945 P.2d 513 (small claims court is without power to exceed cap on recoverable lien as filed must be sent by registered or certi- damages); Phillips v. Seffel, 1998 OK CIV APP 6,954 P.2d 1257 (jurisdic- fied mail to the injured party and his attorney, tion of small claims dependent on kind of case and amount sought) if known, and the person, firm or corporation 2006 OK 30 allegedly liable. Similar requirements are provided for the creation of a hospital lien by 42 LORA GAIL RAY, Plaintiff-Appellee, v. O.S. § 46(C)(1). KENNETH ALLEN RAY, Defendant-Appellant. ¶17 As previously discussed, our decisions strictly construe statutory liens and have con- No. 101,392. May 9, 2006 sistently held that in order for a statutory lien ON CERTIORARI TO THE COURT OF to be valid and enforceable, the exact terms of CIVIL APPEALS, DIV. II the statute creating it must be complied with. Courts cannot ignore the terms prescribed by a ¶0 In a divorce suit brought by the wife, the District Court, Blaine County, Mark A. Moore, statute for creating a lien. Balfour v. Nelson, trial judge, dissolved the marital bond, divided 1994 OK 149, 890 P.2d 916, 919. This principle and set apart property of the spouses and of strict statutory construction was adopted in awarded to the wife support alimony. The hus- Woodward v. St John Medical Center, 234 B.R. 519 band appealed for review of the alimony award. (N.D.Okla.1999), holding that where creditors’ The Court of Civil Appeals affirmed the decree. hospital and physician liens did not contain On certiorari granted upon the husband’s peti- itemized statements of the amounts claimed, tion, the liens were unenforceable because they THE COURT OF CIVIL APPEALS’ failed to comply with Oklahoma’s statutory OPINION IS VACATED; THE TRIAL requirements for perfection. Addressing credi- COURT’S ALIMONY AWARD IS tors’ arguments that the defects in their liens REVERSED AND THE CAUSE should be overlooked because the purpose of REMANDED WITH DIRECTIONS the lien is to assure payment to medical providers, that Court, relying on Kratz, Susan D. Williams, SUSAN D. WILLIAMS, P.C., explained that the judiciary has no power to Watonga, Oklahoma, for Appellee, repeal statutory requirements which have not Paul K. Woodward, TRAYNOR, LONG, been met in order to reach some specific result WYNNE & WOODWARD, P.C., Enid, Okla- for the parties. homa, for Appellant.1

1594 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 OPALA, J. during the marriage for the home.3 When wife ¶1 The dispositive issue on certiorari is withdrew funds from their bank account in whether the trial court erred in its award of March 2004, she left an amount insufficient to support alimony to the wife. We answer in the cover outstanding checks that had been written affirmative. earlier. At the time he had not made the final payment due on the 1999 Ford 250 pickup truck. I There was also a balance of $900 owed on a bank loan he incurred shortly after the marriage. He THE ANATOMY OF LITIGATION had paid these debts by the time of trial. He ¶2 Kenneth Allen Ray (husband) and Lora encouraged wife to go to college, but she had no Gail Ray (wife) were married on 18 June 2002. interest in attending. He explained that because The parties separated 21 months later and wife of his veteran status she would have been eligi- filed for divorce on 31 March 2004. No children ble for a student grant or for a low-interest loan. were born of this union. There was a scholarship program offered through his company. He stated that wife’s par- ¶3 The trial court explained that the dissolu- ents had also offered to help defray her school tion proceedings would be conducted as a expenses. “quasi summary proceeding” in which counsel would be allowed to ask leading questions. The ¶6 The trial court dissolved the marital bond, parties were the only witnesses. No exhibits divided and set aside separate property of the were offered or admitted. spouses,4 and awarded the wife $9,000 in support alimony payable in 15 months at a rate of ¶4 According to wife’s testimony, she was 19 $1,000 monthly for the first three months and years old at the time of the marriage. Her hus- $500 monthly for the next year. band was 37 years old at the time of trial. She drove husband’s pickup truck during her senior ¶7 Husband’s appeal seeks only our review of year of high school. Before the marriage she the support alimony award. He argues that the owned jointly with her mother a 1989 Chevrolet award was neither reasonable nor supported by Silverado pickup truck that had been damaged the evidence. The Court of Civil Appeals in an accident.2 Wife testified she kept the major- affirmed. One panel member rested his dissent- ity of the wedding gifts, as well as the wedding ing view on the lack of record proof to demon- ring, and has all the personal property from the strate wife’s need for support alimony and marriage she wishes to keep. When she moved husband’s ability to pay it. We are in accord out of the home in March 2004 there may have with the dissent’s assessment of the record. been $1,600 in their bank account. She withdrew II the majority of that amount when she left, leaving a balance of about $150. She worked during THE ARGUMENTS ON CERTIORARI the marriage, but quit for a 6-month period to go ¶8 Husband argues the trial court’s support to school, although she “never did.” Whenever alimony award is not supported by the evi- she would mention to her husband anything dence. He claims COCA misallocated the bur- about college he “would really say no.” Accord- den of proof and persuasion for an award of ing to wife, she gave up an opportunity to fur- support alimony. According to Husband, the ther her education when she got married after appellant/obligor’s burden on appeal is to pro- graduating from high school. She now wants to duce a record that shows the evidence does not attend Redlands Community College in El Reno provide support for an alimony award, rather and needs funds to do so. At the time of trial she than to point to some evidence of obligee’s need was working for $5.30 an hour. For the last three and obligor’s ability to pay. months before trial she had been cohabiting with a new male provider who lives approxi- ¶9 Wife asserts the support alimony award is mately two blocks from her place of employ- warranted by the evidence and is reasonable in ment and she has driven his truck to work “a its quantum and payment schedule. few times.” III ¶5 Husband testified he owns a home that he THE LAW’S DEMONSTRATED-NEED bought in 1991, which has a 30-year mortgage. STANDARD OF REVIEW FOR ALIMONY He also owns a 1999 Ford 250 pickup truck that was purchased 3 years before the marriage. Wife AWARD drove his pickup truck while they were dating ¶10 A suit for divorce is one of equitable cog- during her senior year of high school. He kept nizance. The trial court’s decree will be left several items of personalty that were purchased undisturbed unless found to be clearly contrary

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1595 to the weight of the evidence.5 Oklahoma’s relief.16 Legal error will not be presumed from a extant jurisprudence defines support alimony6 silent record.17 as a need-based concept.7 Its purpose is to cushion the economic impact of post-marriage tran- IV sition and a spouse’s readjustment to gainful THERE IS NO RECORD SUPPORT FOR employment. Demonstrated need is estab- THE ALIMONY AWARD lished by the totality of proof of the obligee’s financial condition.8 Factors to be considered ¶13 The task before us today is to determine include: a demonstrated need for alimony dur- whether the trial court’s support alimony award ing a reasonable post-divorce rehabilitative has a sufficient basis in the record. readjustment period; the parties’ station in life; ¶14 The trial court’s “quasi summary” disso- the length of the marriage and the ages of the spouses; the earning capacity of the parties as lution hearing produced a paucity of facts serv- well as their physical condition and financial ing as a basis for the alimony award. The wife means; the spouses’ accustomed style of living; was 19 years old when she married husband evidence of a spouse’s own income-producing who was 37 years old at the time of divorce. capacity and the time needed for the post- They lived together in marriage for 21 months divorce transition.9 and had no children. She withdrew over $1,000 from their bank account when she moved out A. and was allowed to drive husband’s pickup The Alimony Seeker Has The Burden of truck. She had a job earning $5.30 an hour and Demonstrating A Need for Support Alimony began cohabiting with a new male provider three months before trial. The husband owns a ¶11 The seeker of support alimony carries the 1999 Ford 250 pickup truck as well as a home of burden of affirmatively demonstrating the need for excess funds to cushion the economic transi- indeterminate value. He has a job. Based on tion from marital dependency to employment.10 these facts, wife was awarded $9,000 in support The demonstrated-need standard of today is dif- alimony, payable over a 15-month period, to ferent from that of the early nineteenth century. help her acquire an education and to purchase a Then (here and in England) a wife was not vehicle. There is here no evidence of (a) the required to show a need for spousal support.11 amount of money wife reasonably needs for That need was legally presumed. The ecclesias- readjustment of lifestyle to a new economic situ- tical courts could grant only divorces a mensa et ation, (b) her income-producing capacity, such thoro (from bed and board, known to us as legal as the number of hours she works per week and separation).12 In a legal separation, the husband her monthly income; (c) her monthly expenses had control of the wife’s property and the law and future living plans and expenses, (d) her imposed upon him a duty to continue support- physical condition, (e) the cost of her desired ing her. A divorce a vinculo matrimonii (from the education, (f) whether her station in life or stan- bonds of matrimony or an absolute divorce) was dard of living has changed since the separation; 13 allowed only by special act of Parliament. (g) how much her new cohabiting provider con- Because today a wife has full control of her sep- tributes to her monthly needs. Neither is there arate property and can easily obtain an any evidence of (a) the husband’s ability to pay absolute divorce, the earlier rationale that support alimony, (b) the value of his home, (c) ascribed to the husband a continuing duty to provide support is no longer a viable legal basis his net worth, (d) his physical condition, (e) his for post-divorce support alimony. living standard based on monthly income and expenses.18 B. ¶15 We hold the record tendered for our The Appellant Has The Burden Of Producing review is devoid of critical proof necessary for a A Record Sufficient To Show Error determination of support alimony based on ¶12 The appellant bears the undivided demonstrated need. The $9,000 alimony award responsibility for producing to a court of review to wife is clearly unsupported by the evidence. a record14 that will adequately demonstrate error The probative deficiency requires a reversal of in the trial court’s decree because the findings the alimony award and another expensive post- are contrary to the weight of evidence.15 The appeal proceeding. The added cost could have appealing party must include in the record for been saved by eliciting an adequate record to appeal all materials necessary for corrective serve as a basis for the decree’s alimony award.19

1596 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 V 12. Neither the three common-law courts nor the chancery had power to dissolve a marriage (or grant a separate maintenance decree). A SUMMARY divorce a mensa et thoro (from “bed and board”) could be procured from ecclesiastical courts; a divorce a vinculo matrimonii (“from the bond of ¶16 There is an absence of proof in this record matrimony”, which means a marriage dissolution) might be obtained only by a special act of the British Parliament. Divorce jurisdiction was (a) of wife’s need for support alimony during a transferred in 1857 from ecclesiastical tribunals to the civil court system reasonable period needed for her rehabilitative by the Matrimonial Causes Act of 1857, 20 & 21 Vict. c. 85. See Reaves v. post-matrimonial economic readjustment as well Reaves, 1905 OK 32, ¶ 14, 82 P. 490, 494, 15 Okl. 240; Irwin v. Irwin, 1894 OK 29, ¶ 10, 37 P. 548, 557 (Scott, J., dissenting); 15 W. Holdsworth, A HIS- as (b) of husband’s ability to pay post-divorce TORY OF ENGLISH LAW 205-06 (1965); Homer H. Clark, Jr.,THE LAW OF spousal support. Because wife has failed to meet, DOMESTIC RELATIONS IN THE UNITED STATES § 16.1, at 619 (2d ed.1988); Max before the trial court, her burden of affirmatively Radin, ANGLO AMERICAN LEGAL HISTORY § 269, at 512-513 (1936). 13. Id. demonstrating the amount of needed support, if 14. Hulsey v. Mid-America Preferred Ins. Co., 1989 OK 107, ¶7, 777 any, during the period of her economic readjust- P.2d 932, 936 (citing Eckel v. Adair, 1984 OK 86, ¶ 9, 698 P.2d 921, 924); ment, the trial court’s alimony award is reversed Hamid v. Sew Original, 1982 OK 46, ¶7, 645 P.2d 496, 497. 15. A reviewing court will not disturb a nisi prius decision in equity and the cause remanded for further proceedings absent an abuse of discretion or a finding that it is clearly contrary to the to be consistent with today’s pronouncement. weight of evidence. Johnson v. Johnson, supra note 5 at ¶ 15, at 544; Kiddie v. Kiddie, 1977 OK 69, ¶3, 563 P.2d 139, 140-41; Peters v. Peters, 1975 OK ¶17 The Court of Civil Appeals’ opinion is 114, ¶ 9, 539 P.2d 26, 27. vacated; the trial court’s support alimony award 16. An appellant bears total responsibility for including in the appellate record all materials necessary for corrective relief. Hulsey v. Mid- is reversed and the cause remanded with direc- America Preferred Ins. Co., supra note 14, at ¶ 7, 936; Hamid v. Sew Original, tions. supra note 14, at ¶ 7, 497. 17. Johnson v. Johnson, supra note 5 at ¶ 24, at 546 (citing Hamid v. Sew ¶18 WATT, C.J., WINCHESTER, V.C.J., Original, supra note 14, at ¶ 6, 645 P.2d at 497); Chamberlin v. Chamberlin, LAVENDER, HARGRAVE, OPALA, 1986 OK 30 ¶ 4, 720 P.2d 721, 723-24. 18. We assume that a judge sitting in a small community is familiar EDMONDSON, TAYLOR, and COLBERT, JJ., with the status of many people in that community, but there is no sub- concur; stitute in law for record proof. 19. The added expense of a post-appeal proceeding can be saved by ¶19 KAUGER, J., dissents. early post-reversal settlement. ¶20 Kauger, J., dissenting, 2006 OK 31 I would deny certiorari as improvidently THE BOARD OF COUNTY COMMISSIONERS granted. OF MUSKOGEE COUNTY, Plaintiff/Appellee, v. EDWARD L. LOWERY and MARY L. 1. Identified herein are only those counsel for the parties whose LOWERY, Husband and Wife, Defendants/ names appear on the certiorari briefs. Appellants and RURAL WATER DISTRICT 2. Wife testified that after the accident the insurance company paid $231 for the salvage value of the 1989 Chevrolet Silverado pickup truck. NO. 5, and THE MUSKOGEE COUNTY 3. Husband kept several items that were purchased during the mar- TREASURER, Defendants. THE BOARD OF riage — a computer, a computer desk, a washing machine, a dishwasher, a treadmill, an air conditioner, and some small heaters. COUNTY COMMISSIONERS OF MUSKOGEE 4. The trial court awarded the parties as their separate property all COUNTY, Plaintiff/Appellee, v. JACK E. personal property acquired prior to the marriage, all separate property WHITTEN and DORIS M. WHITTEN, Husband acquired since the date of separation, and all marital property currently in their possession. The husband was awarded the 1999 Ford 250 pickup and Wife, Defendants/Appellants and RURAL truck subject to any indebtedness that burdens it. WATER DISTRICT NO. 5, and THE 5. Younge v. Younge, 2002 OK 12, ¶¶14-15, 41 P.3d 966, 972; McLaugh- MUSKOGEE COUNTY TREASURER, lin v. McLaughlin, 1999 OK 34, ¶ 13, 979 P.2d 257, 260-61; Johnson v. John- son, 1983 OK 117, ¶ 23, 674 P.2d 539, 547. Defendants. THE BOARD OF COUNTY 6. In BLACK’S LAW DICTIONARY 67 (5th ed. 1979), it is said that the word COMMISSIONERS OF MUSKOGEE COUNTY, “alimony” comes from the Latin “alimonia”, meaning sustenance, and Plaintiff/Appellee, v. RICHARD HYSLOPE denotes “the sustenance or support of the wife by her divorced husband.” It “stems from the common-law right of the wife to support from her hus- Defendant/Appellant and THE FARM CREDIT band.” Funnell v. Funnell, 1978 OK 69, ¶13, 584 P.2d 1319, 1322. In Poloke BANK OF WICHITA RURAL WATER v. Poloke, 1913 OK 149, ¶4, 130 P. 535, 37 Okl. 70, the court defines alimo- DISTRICT NO. 5, and THE MUSKOGEE ny as “an allowance which the husband pays, by order of the court, to his wife for her maintenance while living separate from him, where no suit is COUNTY TREASURER, Defendants. THE brought for divorce, or during the pendency of a divorce suit or after the BOARD OF COUNTY COMMISSIONERS OF divorce is granted.” 7. Alimony is awarded based on demonstrated need. Younge v. MUSKOGEE COUNTY, Plaintiff/Appellee, v. Younge, supra note 5, at ¶14, 971; Johnson v. Johnson, supra note 5 at ¶23, PAUL HOBBS and DIANN HOBBS, Husband 546; Kirkland v. Kirkland, 1971 OK 98,¶¶25, 27, 488 P.2d 1222, 1227. and Wife, Defendants/Appellants and MARY 8. Id. 9. A woman’s financial dependence on marriage is no longer legally MURL BARRETT, BANK OF CHEROKEE presumed. Its presence must be proved by the clear weight of the evi- COUNTY, RURAL WATER DISTRICT NO. 5, dence. Younge v. Younge, supra note 5, at ¶14, 971; McLaughlin v. McLaugh- and THE MUSKOGEE COUNTY lin, supra note 5, at ¶13, 260-61. 10. Younge v. Younge, supra note 5, at ¶14, 971; Johnson v. Johnson, supra TREASURER, Defendants. note 5 at ¶23, 546; Kirkland v. Kirkland, supra note 7, at ¶¶25, 27, 1227. 11. June Carbone, The Futility of Coherence: The ALI’s Principles of the No. 98,361. May 9, 2006 Law, 4 J. L. & Fam. Stud. 43, 46, citing Vernier & Hurlbut, The Historical Background of Alimony Law and Its Present Statutory Structure, 6 Law & Con- (Companion with Case Numbers temp. Probs. 197 (1939). 98,362; 98,363; 98,531)

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1597 CERTIORARI TO THE COURT OF CIVIL takings of Landowners’ respective private APPEALS, DIVISION IV property to confer a private benefit on a private party, Energetix, in violation of Article 2, APPEAL FROM THE DISTRICT COURT OF MUSKOGEE COUNTY §§23 & 24 of the Oklahoma Constitution. We HONORABLE MIKE NORMAN, TRIAL further hold that economic development alone JUDGE (not in connection with the removal of blighted property) does not constitute a public use or ¶0 Muskogee County, through The Board of public purpose to justify the exercise of emi- County Commissioners of Muskogee County nent domain as a matter of Oklahoma consti- (hereinafter “The County”), brought condem- tutional law, nor does it satisfy the public pur- nation proceedings against Defendant pose requirement of 27 O.S. 2001 §5. Upon cer- Landowners (hereinafter “Landowners”) in tiorari previously granted, the District Court of Muskogee County for the purpose of acquiring right-of-way easements THE COURT OF CIVIL APPEALS’ for placement of three water pipelines, two of OPINION IS VACATED; THE DISTRICT which would solely service Energetix, L.L.C. COURT’S JUDGMENT IS REVERSED AND (hereinafter “Energetix”) a private electric gen- THE CAUSE IS REMANDED FOR eration plant proposed for construction and FURTHER PROCEEDINGS NOT operation in the county. Upon the condition INCONSISTENT WITH TODAY’S precedent of success in attainment of that ease- PRONOUNCEMENT; APPELLANTS’ ment, Energetix was contractually obligated to MOTION FOR APPEAL-RELATED construct the third pipeline on behalf of the ATTORNEYS’ FEES IS GRANTED; Muskogee County Rural Water District No. 5, APPELLANTS’ MOTION FOR APPEAL- which would provide water service to rural RELATED COSTS IS GRANTED IN PART. residents of the county. Landowners filed an C. Bart Fite of Wright, Stout, Fite & Wilburn, answer and counterclaim seeking declaratory Muskogee, Oklahoma, for Plaintiff/Appellee, and injunctive relief, objecting to the unlawful County. and unconstitutional taking of Landowners’ private property for the private use of Ener- Mark James Caywood of Mark James Cay- getix in violation of Article 2, §§23 & 24 of the wood, P.L.L.C., Oklahoma City, Oklahoma, for Oklahoma Constitution. The County argued Plaintiff/Appellee, County. the economic development of Muskogee Harlan Hentges of Mulinix, Ogden, Hall, County constituted a valid public purpose to support the County’s exercise of eminent Andrews, & Ludlum, Oklahoma City, domain in accordance with the Oklahoma Oklahoma, for Defendants/Appellants, Constitution and 27 O.S. 2001 §5. The District Landowners. Court agreed and ultimately confirmed the Stephen J. Scherer of Muskogee, Oklahoma, for takings. Landowners appealed. We thereafter Defendants/Appellants, Landowners Edward entered an Order providing that all four L. Lowery and Mary L. Lowery. appeals shall proceed as appeals from final orders of the District Court. This Court addi- Jo Nan Allen of Tahlequah, Oklahoma, for tionally entered an Order providing that the Defendants/Appellants, Landowners Paul instant cases are related and shall be treated as Hobbs and Diann Hobbs. companion cases and assigned to the same Tina Jordan of Tahlequah, Oklahoma, for reviewing court. The Court of Civil Appeals Defendants/Appellants, Landowners Paul (hereinafter “COCA”) reversed and remanded Hobbs and Diann Hobbs. with instructions. The County thereafter filed a Petition for Writ of Certiorari. Upon Landown- Eric J. Groves of Groves & Associates, Okla- ers’ showing of good cause for additional homa City, Oklahoma, for The Institute for Jus- briefs on certiorari, this Court ordered the fil- tice, Amicus Curiae. ing of supplemental briefs on certiorari, the fil- Dana Berliner of The Institute for Justice, ing of an amicus curiae brief, as well as heard Washington, D.C., admitted pro hac vice, for oral argument en banc. We consolidate the four The Institute for Justice, Amicus Curiae. companion appeals for the purpose of one opinion addressing all four. We hold the tak- Daniel P. Muino of Gibson, Dunn & Crutcher ings in the four instant cases are impermissible LLP, San Francisco, California, admitted pro

1598 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 hac vice, for The Institute for Justice, Amicus that Energetix’s duty to construct the Water Curiae. District pipeline arises only on the conditions precedent that Energetix first succeeds Lavender, J. in obtaining all rights-of-way needed to con- ¶1 The issues in the present cause are as fol- struct the private Eagle Pipeline and Ener- lows: (1) whether the County’s exercise of emi- getix begins construction of the Eagle nent domain in the instant cases is for public Pipeline.4 Under the terms of this contract, the use in accordance with Article 2, §23 and Arti- Water District would be responsible for sup- cle 2, §24 of the Oklahoma Constitution and (2) plying the necessary materials for construction whether the County’s taking for purposes of of the pipeline, but Energetix would pay all economic development of Muskogee County construction costs. Energetix additionally con- constitutes “public purposes” within the tracted to provide and install up to six (6) fire meaning of 27 O.S. 2001 §5 to support such a hydrants at its expense during the construction taking. of the Eagle Pipeline and the Water District I Pipeline (with Energetix’s duty to construct the hydrants likewise tied to the same conditions FACTS AND PROCEDURAL HISTORY precedent above). ¶2 Plaintiff/Appellee County initiated con- ¶4 Landowners filed an answer and coun- demnation proceedings against Defendant/ terclaim in each case seeking declaratory and Landowners1 for the purpose of acquiring tem- injunctive relief on the basis that the County’s porary and permanent right-of-way easements proposed taking was an unlawful taking of for the installation of three water pipelines. private property for private use and private Two of the proposed water pipelines (referred purpose of the private company, Energetix, in to by the parties and hereinafter collectively violation of 27 O.S. 2001 §5 and the eminent referred to as “the Eagle Pipeline”) would sole- domain provisions contained within both ly serve Energetix, a privately owned electric the Oklahoma Constitution and the U.S. generation plant, which was proposed for con- Constitution. struction in Muskogee County. By way of the Eagle Pipeline, Energetix’s proposed opera- ¶5 County filed a motion to strike tions would require a maximum of 8,000,000 Landowners’ answer and counterclaim on the gallons of water daily for use in cooling towers basis that Landowners failed to comply with associated with the operation of an 825 the statutory procedure applicable to condem- megawatt natural gas-fired power plant. The nation proceedings. The Report of Commis- Eagle Pipeline would extend from the plant sioners5 was thereafter filed, which provided site to the Arkansas River with one of the two the takings were for a public purpose and pipelines designated for carrying water to the established the amount of just compensation to plant and the other pipeline designated for be awarded to Landowners for their respective return of the water to the Arkansas River. properties.6 Landowners filed their respective Exceptions to the Commissioners’ Report,7 ¶3 Energetix proposed to build the third objecting primarily on the basis that the tak- water pipeline (hereinafter “the Water District ings were not for a valid public purpose, but Pipeline”) on behalf of the Rural Water District 2 rather an unlawful taking of private property No. 5 (hereinafter “Water District”) pursuant for private purpose. to a contract entitled “Rural Water District Number 5, Muskogee County: Water Pipeline ¶6 The trial court ultimately agreed with the Construction Agreement,” 3 which expressly County and entered an Order confirming the provided for Energetix’s agreement to build takings in these cases. The trial court’s order this pipeline at no cost to the Water District “as further provided the County properly exer- part of the consideration to induce certain cised the power of eminent domain pursuant property owners to grant private easements to 27 O.S. §5 in furtherance of the following for the Eagle Pipeline.” The Water District public purposes: 1) enhancing the economic Pipeline was intended to serve residents of the development of Muskogee County; 2) provid- Water District who were not currently being ing for temporary and permanent jobs for served and to enhance current water service to Muskogee County residents; and 3) for the residents of the Water District, who were operation of a pipeline to be used in conjunc- receiving it. This contract expressly specified tion with the construction of an electricity gen-

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1599 eration plant to be owned and operated by a general eminent domain power granted by 27 private company and located in Muskogee O.S. 2001 §5, which provides as follows: County. Additionally, the trial court order con- Any county, city, town, township, school cluded “the land acquired is necessary for the district, or board of education, or any installation and maintenance of certain water board or official having charge of cemeter- lines. These water lines are necessary for the ies created and existing under the laws of private electricity generation plant to operate, this state, shall have power to condemn for the benefit of Muskogee County residents lands in like manner as railroad compa- and the general public.” The trial court deter- nies, for highways, rights-of-way, building mined that this order affected a substantial sites, cemeteries, public parks and other part of the merits of the controversy and certi- public purposes. fied the matter for immediate appeal pursuant to 12 O.S. 2001 §952(b)(3). Id. (emphasis added). Additionally, we are guided by the applicable general federal con- ¶7 Landowners appealed, and the COCA stitutional9 and state constitutional eminent reversed and remanded the trial court’s deter- domain provisions, including and perhaps mination with instructions to enter a judgment most notably our special provision concerning sustaining Landowners’ Exceptions to the the taking of private property. Article 2, §23 Commissioners’ Report on the basis that the provides as follows: takings in the instant cases were unlawful in that they were for the direct benefit of a private No private property shall be taken or dam- company and not for “public purposes” as aged for private use, with or without com- required for the County’s exercise of condem- pensation, unless by consent of the owner, nation pursuant to 27 O.S. 2001 §5. The COCA except for private ways of necessity, or for reached its determination primarily upon the drains and ditches across lands of others conclusion that the economic development or for agricultural, mining, or sanitary pur- enhancement of a community fails to meet the poses, in such manner as may be pre- statutory “public purposes” requirement to scribed by law. support the County’s exercise of eminent domain in these cases. OKLA.CONST. art. 2, §23. Our Constitution further generally provides “private property ¶8 County filed its Petition for Certiorari, shall not be taken or damaged for public use arguing that the COCA incorrectly determined without just compensation.” OKLA. CONST. art. that the County’s exercise of eminent domain 2, §24. That constitutional provision addition- for the purpose of economic development does ally states “[in] all cases of condemnation of not constitute “public purpose” under Art. 2, private property for public or private use, the §24 of the Oklahoma Constitution. Landown- determination of the character of the use shall ers’ Answer to the Petition for Certiorari urged be a judicial question.” Id. The law is clear that the correctness of the COCA opinion, noting “[p]rivate property may not be taken or dam- the COCA reached its determination solely on aged by the condemning agency unless the statutory grounds. Upon Landowners’ show- taking or damage is necessary for the accom- ing of good cause for the filing of additional plishment of a lawful public purpose.” Luccock briefs on certiorari, we ordered the parties to v. City of Norman, 1978 OK 66, 578 P.2d 1204, submit supplemental briefs on certiorari.8 1206 (citing Art. 2, §§23 & 24 of the Oklahoma Additionally, we granted the Institute for Jus- Constitution).10 Luccock demonstrates that we tice leave to file a brief amicus curiae and heard have used the terms “public use” and “public oral argument en banc. purpose” interchangeably in our analysis of II our state constitutional eminent domain provisions, and we therefore view these terms as THE LAW APPLICABLE TO THIS synonymous. See id.; see also Berman v. Parker, CONDEMNATION PROCEEDING 348 U.S. 26, 32 (1954)(noting the narrow role of the judiciary in determining whether the The Oklahoma General Eminent Domain power of eminent domain is being exercised Statute and Constitutional Eminent Domain for a “public purpose” in a case construing a Provisions federal statute containing the term “public ¶9 The County sought to condemn use”); Kelo v. City of New London, 125 S.Ct. 2655, Landowners’ private property pursuant to its 2662 (2005) (explaining that in its application

1600 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 of the Fifth Amendment to the States at the sions “strictly in favor of the owner and close of the 19th Century, the U.S. Supreme against the condemning party.” Stinchcomb v. Court rejected the “use by the public test” and Oklahoma City, 1921 OK 154, 198 P. 508, 508 “embraced a broader and more natural inter- (First Syllabus by the Court). Additionally, pretation of public use as public purpose”). Oklahoma eminent domain statutes must con- The Constitutional Limitations and the form to the restrictions placed on the exercise Framers’ Intent of such power by the Oklahoma constitutional eminent domain provisions. See Allen v. Transok ¶10 It is settled law that the constitutional Pipe Line Co., 1976 OK 53, 552 P.2d 375. Since eminent domain provisions “are not grants of we must strictly construe the term “public pur- power, but limitations placed upon the exer- pose” as set forth in the applicable eminent cise of government power.” City of Pryor Creek domain statute, we acknowledge the distinc- v. Pub. Serv. Co., 1975 OK 81, 536 P.2d 343, 345 tion of our construction of that term outside (citation omitted). The constitutional limita- the context of eminent domain and specifically tions on the power of eminent domain “serve in the context of constitutional provisions to protect ‘the security of Property,’ which restricting the use of public funds to expendi- Alexander Hamilton described to the Philadel- tures for public purpose. See State ex rel. Brown phia Convention as one of the ‘great ob[jects] v. City of Warr Acres, 1997 OK 117, ¶18, 946 P.2d of Gov[ernment].’ ” Kelo v. City of New London, 1140, 1144 (determining the term “public pur- 125 S.Ct. 2655, 2671 (2005) (O’Connor, J., dispose” “should not be construed ‘in a narrow or senting) (alteration in original) (quoting 1 restrictive sense.’”) (citations omitted).12 We Records of the Federal Convention of 1787, p. adhere to the strict construction of eminent 302 (M. Farrand ed., 1934)). The framers of the domain statutes in keeping with our prece- Oklahoma Constitution likewise recognized dent, mindful of the critical importance of the “that to protect both life and property is the protection of individual private property first duty of government.” ALBERT H. ELLIS, A rights as recognized by the framers of both the HISTORY OF THE CONSTITUTIONAL CONVENTION U.S. Constitution and the Oklahoma Constitu- OF THE STATE OF OKLAHOMA, p. iv. (Introduc- tion. If we were to construe “public purpose” tion and Endorsement by William H. Murray, so broadly as to include economic develop- President of the Constitutional Convention) ment within those terms, then we would effec- (1923). In keeping with these principles, we tively abandon a basic limitation on govern- have determined the government’s power of ment power by “wash[ing] out any distinction eminent domain “lies dormant in the state between private and public use of property — until the Legislature by specific enactment des- and thereby effectively delet[ing] the words ignates the occasion, modes and agencies by “for public use” from [the constitutional provi- which it may be placed in operation.” City of sions limiting governmental power of eminent Pryor Creek, 536 P.2d at 345-46. A governmental domain.]” Kelo v. City of New London, 125 S.Ct. body subordinate to the state (i.e., local gov- 2655, 2671 (2005) (O’Connor, J., dissenting). In ernments such as a city, town, municipality or our view, the power of eminent domain should county) may not exercise, create, extend or be exercised with restraint13 and we therefore expand a power of eminent domain in the construe the term “public purpose” narrowly absence of statutory authority. Id.; City of Mid- specifically in this context. west City v. House of Realty, Inc., 2004 OK 56, ¶19, 100 P.3d 678, 685. III “Public Purpose” in the Context of Eminent AS A MATTER OF OKLAHOMA Domain CONSTITUTIONAL AND STATUTORY LAW, ECONOMIC DEVELOPMENT ¶11 In determining whether economic 11 ALONE IS NOT A PUBLIC PURPOSE TO development alone constitutes a “public pur- JUSTIFY THE EXERCISE OF COUNTY’S pose” within the meaning of 27 O.S. §5, as a POWER OF EMINENT DOMAIN. starting point, we are guided by the longstanding general rule of strict statutory con- ¶12 The County’s primary argument is that struction of eminent domain statutes. See City the general eminent domain statute, 27 O.S. §5 of Cushing v. Gillespie, 1953 OK 121, 256 P.2d authorizes its exercise of eminent domain for 418. Further, as a general rule, we construe our the sole purpose14 of economic development state constitutional eminent domain provi- (i.e., increased taxes, jobs and public and pri-

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1601 vate investment in the community) because satisfies the constitutional “public use” or economic development constitutes a “public “public purpose” requirement.17 We recognize purpose” within the meaning of the statute as that the U.S. Supreme Court recently upheld a well as the state constitutional eminent city’s exercise of eminent domain power in fur- domain provisions found in Art. 2, §§23 & 24 therance of an economic development plan, of the Oklahoma Constitution.15 holding that economic development satisfied the “public use” restriction in the Fifth Amend- ¶13 In arguing the term “public purposes” ment’s Takings Clause and finding the city’s in §5 includes the purpose of economic devel- economic development plan served a “public opment of the community, the County urges purpose.” Kelo v. City of New London,___ U.S. our adoption of the more expansive definition ___, 125 S.Ct. 2655 (2005). of the term “public purpose” as provided in State ex. rel. Brown v. City of Warr Acres, 1997 ¶16 In Kelo, the city of New London, Con- OK 117, 946 P.2d 1140, which construed that necticut, a city that had experienced “decades term in the context of public funding pursuant of economic decline,”18 developed a plan for to Art. 10, §§14, 17 and 26 of the Oklahoma economic development of the area, which Constitution. As previously noted in this Opin- included the acquisition of private property ion, we adhere to the rule of strict statutory owners’ land. The city in Kelo condemned the construction of eminent domain statutes and properties pursuant to Connecticut’s Munici- reject the County’s proposed application of the pal Development Statute, which expressly broader definition of “public purpose” as set authorized the use of eminent domain as part forth in Brown.16 of an economic development project. See Conn. Gen. Stat. §8-186 et seq. In reaching its determi- ¶14 We recognize the general rule that nation, the Court in Kelo applied its “broader where legal relief is available on alternative, and more natural interpretation of public use non-constitutional grounds, we avoid reaching as public purpose” pursuant to the Fifth a determination on the constitutional basis. See Amendment and noted its cases have defined State ex. rel. Fent v. State ex rel. Okla. Water Res. “public purpose” broadly as a reflection of Bd., 2003 OK 29, ¶12, 66 P.3d 432, 439. Howev- “[the Court’s] longstanding policy of deference er, the circumstances of this case lead us to the to legislative judgments in this field.” Id. at conclusion that it is necessary for us to reach a 2662-63. The majority in Kelo emphasized its constitutional determination in addition to our public use jurisprudence has afforded legisla- statutory determination. Here, the two deter- tures “broad latitude in determining what minations are intertwined. The analysis under public needs justify the use of the takings both the applicable eminent domain statute power.” Id. at 2664. Additionally, the Kelo and under the state constitutional provisions majority declined to “second-guess the City’s turns on the identical determination of the considered judgments about the efficacy of its meaning of the term “public purpose,” which development plan” as well as “the City’s we have previously noted in ¶9 of this Opin- determinations as to what lands it needs to ion, is synonymous with “public use” as pro- acquire in order to effectuate the project,” and vided in the Oklahoma Constitution. deferred to the legislature as to the amount ¶15 Considering the fact that the proposed and character of land to be taken for the proj- Eagle Pipeline would be solely dedicated to ect. Id. at 2668 (citation omitted). the purpose of serving a private entity to ¶17 The U.S. Supreme Court expressly limit- enable its construction and operation in energy ed its holding in Kelo as follows: “[t]his Court’s production, it is clear that the County in this authority, however, extends only to determin- case urges a broad interpretation of “public ing whether the City’s proposed condemna- purposes.” While arguing the construction of tions are for a “public use” within the meaning the plant will serve a public purpose by signif- of the Fifth Amendment to the Federal icantly enhancing the economic development Constitution.” Id. Notably, the Court in Kelo of Muskogee County through increased taxes, additionally expressly provided as follows: jobs and public and private investment, Coun- ty urges our adoption of a rule, which has been We emphasize that nothing in our opinion applied in other jurisdictions that the exercise precludes any State from placing further of eminent domain for purposes of economic restrictions on its exercise of the takings development alone (in the absence of blight) power. Indeed, many states already

1602 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 impose “public use” requirements that are tion, we view the transfer of property from one stricter than the federal baseline. Some of private party to another in furtherance of these requirements have been established potential economic development or enhance- as a matter of state constitutional law, ment of a community in the absence of blight while others are expressed in state eminent as a purpose, which must yield to our greater domain statutes that carefully limit the constitutional obligation to protect and pre- grounds upon which takings may be serve the individual fundamental interest of exercised. private property ownership. Id. (footnotes and citations omitted). ¶19 To the extent that our determination may be interpreted as inconsistent with the ¶18 Contrary to the Connecticut statute U.S. Supreme Court’s holding in Kelo v. City of applicable in Kelo, which expressly authorized New London, today’s pronouncement is eminent domain for the purpose of economic reached on the basis of Oklahoma’s own spe- development, we note the absence of such cial constitutional eminent domain provisions, express Oklahoma statutory authority for the Art. 2, §§23 & 24 of the Oklahoma Constitu- exercise of eminent domain in furtherance of tion, which we conclude provide private prop- economic development in the absence of erty protection to Oklahoma citizens beyond blight. The statute at issue in the instant cases that which is afforded them by the Fifth is a general grant of power that permits con- Amendment to the U.S. Constitution. In other demnation “in like manner as railroad compa- words, we determine that our state constitu- nies, for highways, rights-of-way, building tional eminent domain provisions place more sites, cemeteries, public parks and other public stringent limitation on governmental eminent purposes.” 27 O.S. §5; see City of Midwest City v. domain power than the limitations imposed by House of Realty, Inc., 2004 OK 56, ¶1, 100 P.3d the Fifth Amendment of the U.S. Constitu- 678 (characterizing the power in §5 as a gener- tion.19 We join other jurisdictions including Ari- al power of eminent domain and holding that zona, Arkansas, Florida, Illinois, South Caroli- municipality may not use this general power na, Michigan, and Maine, which have reached of eminent domain for the purpose of econom- similar determinations on state constitutional ic development and blight removal when act- grounds.20 Other states have similarly restricting jointly with a public trust). County here ed the government’s eminent domain power seeks a broad, expansive interpretation of the through state statute.21 term “public purpose” to permit the exercise of eminent domain pursuant to the County’s gen- ¶20 While the Takings Clause of the U.S. eral statutory power of eminent domain. How- Constitution provides “nor shall private prop- ever, we have already rejected such a broad erty be taken for public use without just com- interpretation of “public purpose” as set forth pensation,” the Oklahoma Constitution places in 27 O.S. §5 in City of Midwest City, where we further restrictions by expressly stating “[n]o noted “a municipality is not possessed with an private property shall be taken or damaged for unfettered discretion to condemn property for private use, with or without compensation.” economic redevelopment projects outside of OKLA.CONST. art. 2, §23 (emphasis added). the scope of statutory schemes that the Legis- That constitutional provision additionally lature has provided for removal of blighted expressly lists the exceptions for common law property.” Id. at ¶20, 100 P.3d at 685. In that easements by necessity and drains for agricul- case, we additionally noted the distinction tural, mining and sanitary purposes. The pro- between blight removal and economic devel- posed purpose of economic development, with opment, with “[t]he former [constituting] the its incidental enhancement of tax and employ- public purpose that constitutionally justifies ment benefits to the surrounding community, the subsequent sale of the property for private clearly does not fall within any of these cate- use.” Id. at ¶22, 100 P.3d at 686. Accordingly, gories of express constitutional exceptions to we hold that economic development alone the general rule against the taking of private does not constitute a public purpose and there- property for private use. To permit the inclu- fore, does not constitutionally justify the Coun- sion of economic development alone in the cat- ty’s exercise of eminent domain. Pursuant to egory of “public use” or “public purpose” our own narrow requirements in our constitu- would blur the line between “public” and “pri- tional eminent domain provisions found at vate” so as to render our constitutional limita- Art. 2, §§23 & 24 of the Oklahoma Constitu- tions on the power of eminent domain a nulli-

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1603 ty. If property ownership in Oklahoma is to the case to the trial court for a determination of remain what the framers of our Constitution their amount.”). Therefore, Landowners’ intended it to be, this we must not do. Motion for Appeal-Related Attorneys’ Fees is GRANTED to the extent the Landowners have IV demonstrated the requisite statutory authority LANDOWNERS’ MOTION FOR APPEAL- for the recovery of appeal-related attorney fees RELATED ATTORNEY FEES AND COSTS and we hereby REMAND to the trial court for a determination of “such sum as in the opinion ¶21 Landowners in each of the four instant of the court will reimburse [Landowners] for cases seek an award of their appeal-related [their] reasonable attorney . . . fees actually attorney fees and costs pursuant to incurred because of the condemnation Okla.Sup.Ct.R. 1.14(a) and (b), 27 O.S. §5 and proceeding” in accordance with 66 O.S. §55(D). 66 O.S. 2001 §55. County subsequently filed its Objection to Assessment of Attorney’s Fees, ¶23 Landowners’ Motion for Appeal-Relat- arguing that Landowners have incurred no ed Costs was “separately filed and labeled” actual attorney fees and expenses in this con- and included an attached verification includ- demnation proceeding because the Landown- ing taxable cost items23 in accordance with ers’ cost of defense was “defrayed from the Okla.Sup.Ct.R. 1.14(a). Landowners are enti- land owner by a private organization who [sic] tled to recover “costs on appeal” pursuant to is opposed to the county’s authority to acquire 12 O.S. 2001 §978, since the trial court’s judg- this easement.” County cites no legal authority ment against them was reversed in this case. in support of its objection to the assessment of Sunrizon Homes, Inc. v. American Guar. Inv. attorney fees in this matter. Corp., 1988 OK 145, 782 P.2d 103, 109. ¶22 The general rule is “[a]ppeal-related ¶24 Landowners seek recovery of the attorney fees are recoverable if statutory $100.00 fee for designation of the record, which authority exists for their award in the trial is a fee paid to the district court and is not court.” Casey v. Casey, 2002 OK 70, ¶26 58 P.3d recoverable in this court. See Spears v. Shelter 763, 772 (footnotes omitted). Further, the right Mut. Ins. Co., 2003 OK 66, ¶15, 73 P.3d 865, 871. to recover attorney fees in a condemnation Otherwise, Landowners seek recoverable proceeding must be provided by statute. Carter review-and-certiorari-related costs. Thus, v. City of Oklahoma City, 1993 OK 134, 862 P.2d Landowners’ Motion to tax review-and-certio- 77, 79; see Root v. Kamo Elec. Coop., Inc., 1985 OK rari-related costs shall be GRANTED IN 8, 699 P.2d 1083 (permitting condemnees’ PART in the amount of $288.16 to the Lowery recovery of attorney fees against a rural elec- Landowners in matter #98,361, $288.16 to the tric cooperative pursuant to 66 O.S. 1981 Whitten Landowners in #98,362 and $288.16 to §55(D)). Title 27 O.S. §5 provides in pertinent the Hyslope Landowner in #98,363 respective- part, “[a]ny county . . . shall have power to ly, and in the amount of $200.00 to the Hobbs condemn lands in like manner as railroad com- Landowners in #98,531. panies. . . . “ Id. Title 66 O.S. 2001 §51 et seq. is V the statutory scheme applicable in condemnation proceedings instituted by railroad compa- SUMMARY nies and provides the applicable method of ¶25 Although we recognize the COCA procedure for eminent domain proceedings correctly determined that economic develop- brought pursuant to 27 O.S. §5. See Harn v. ment alone did not constitute “public pur- State ex rel. Williamson, 1939 OK 40, 87 P.2d 127, pose” within the meaning of 27 O.S. §5, we 129. We hold that 66 O.S. 2001 §55(D)22 applies vacate the COCA’s opinion in order to make a to the instant cases to permit reimbursement to determination of first impression. We hold the the prevailing Landowners for their reasonable takings in the four instant cases are unlawful appeal-related attorney fees upon a requisite takings of Landowners’ private property to showing before the trial court on remand that confer a private benefit on a private party, attorney fees have been actually incurred by Energetix, in violation of Article 2, §§23 & 24 of Landowners because of the condemnation pro- the Oklahoma Constitution. We further hold ceeding. See 12 O.S. Supp. 2004 §696.4(C.) (pro- that takings for the purpose of economic devel- viding that “[t]he appellate court shall decide opment alone (not in connection with the whether to award attorney fees for services on removal of blighted property) do not consti- appeal, and if fees are awarded, it shall remand

1604 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 tute a public use or public purpose to support tion of either party unreasonably interfering with the other party’s use of its easements. the exercise of eminent domain as a matter of 5. The Commissioners were required to file an Amended Report Oklahoma constitutional law, nor does it satis- in each case because after the filing of the initial Commissioners’ Report, Landowners’ Exceptions included an objection on the basis fy the public purpose requirement of 27 O.S. that the report did not properly apportion the compensation award 2001 §5. Further, we grant Landowners’ between the Landowner and the Rural Water District No. 5, which was at that time a defendant in the lawsuits due to the Water District’s pre- Motion for Appeal-Related Attorneys’ Fees. existing easements on the subject properties. Subsequent to Landown- Appellants’ Motion for Appeal-Related Costs er’s objection, the County dismissed the Water District from the law- is granted in part. suits because its pre-existing easements were not subject to condemnation here and thus, the Water District was not entitled to compensation. The district court entered an order determining that as a result of ¶26 Upon certiorari previously granted, the dismissal of the Water District as a defendant, the Landowners’ Exception as to appropriate apportionment of the compensation THE COURT OF CIVIL APPEALS’ OPINION award was rendered moot and reappointed Commissioners to IS VACATED; THE DISTRICT COURT’S reassess the amount of just compensation due to the remaining Defen- dants. The amounts listed (as compensation due Landowners for the JUDGMENT IS REVERSED AND THE respective takings of their property) in the Amended Commissioners CAUSE IS REMANDED FOR FURTHER Report were the identical amounts as previously listed in the initial Commissioners’ Report. PROCEEDINGS NOT INCONSISTENT 6. The amount of compensation determined to be awarded to WITH TODAY’S PRONOUNCEMENT; Landowners for the takings as set forth in the Amended Commission- APPELLANTS’ MOTION FOR APPEAL- ers’ Report in each case was as follows: $6,260 to Lowery Landowners (#98,361); $17,850 to Whitten Landowners (#98,362); $35,640 to Hys- RELATED ATTORNEYS’ FEES IS GRANTED; lope Landowners (#98,363); $11,120 to Hobbs Landowners (#98,531). APPELLANTS’ MOTION FOR APPEAL- 7. County argued below that Landowners failed to comply with the requisite statutory procedure (as set forth in 66 O.S. 2001 §55) as to RELATED COSTS IS GRANTED IN PART. the proper and timely filing of Landowners’ Exceptions to the Com- missioners’ Report. In each case, an Amended Commissioners’ Report ¶27 LAVENDER, HARGRAVE, OPALA, was filed (due to Landowners’ objection that the initially filed Com- KAUGER, J.J., and CHAPEL, S.J. (sitting by missioners’ Report had failed to apportion the amount of compensation due to Landowners versus the amount due the Defendant Water designation in lieu of COLBERT, J.), concur. District for the takings). In the first three instant cases, County argued Landowners had waived their right to file exceptions or otherwise ¶28 TAYLOR, J., concurring in result. object to the takings because although Landowners had timely filed Exceptions to the initial Commissioners’ Report, Landowners failed to ¶29 WATT, C.J., concurs in part, dissents in re-file their Exceptions subsequent to the filing of the Amended Com- missioners’ Report (which was identical in content to that of the initial part. report filed in each respective case). The record contains some evidence that Landowners’ attorney of record did not receive copies of ¶30 WINCHESTER, V.C.J., and the Amended Commissioners’ Report filed in these cases from the Dis- EDMONDSON, J., dissent. trict Court Clerk until after the thirty day deadline had expired. (Tran- script of Hearing of August 22, 2002, pp. 17-18). In the fourth case (the ¶31 COLBERT, J., disqualified. Hobbs matter, #98,531), while the County initially raised a similar claim regarding Landowners’ waiver of their right to file exceptions due to the alleged untimely filing of the Landowners’ Exceptions, it 1. The Landowners/Defendants/Appellants in the four subject appears that the County ultimately withdrew this claim before the trial cases are as follows: Edward L. Lowery and Mary L. Lowery, Husband court and abandoned this issue as to the Hobbs matter. (Transcript of and Wife (case no. 98,361); Jack E. Whitten and Doris M. Whitten, Hus- Hearing of September 27, 2002, p. 8). The COCA ultimately rejected band and Wife (case no. 98,362); Richard Hyslope (case no. 98,363); the County’s claim in each of the four cases and determined the Paul Hobbs and Diann Hobbs, Husband and Wife (case no. 98,531). Landowners had not waived their statutory right to object to the tak- 2. Rural Water District No. 5 was originally named as a Defendant ings. Despite the County’s loss on this issue before the COCA, the in each of the four subject cases. The record reflects that at least some County failed to present it in its Petition for Certiorari. Although of the subject properties sought to be condemned in these cases were County attempts to preserve this issue in the penultimate paragraph subject to pre-existing Water District Easements. The County ultimate- in its supplemental brief on certiorari, the County’s failure to present ly dismissed the Water District from the cases because County did not this issue in its Petition for Certiorari is fatal to its preservation for seek to acquire an interest in and to the Water District’s easements. review on certiorari. See Okla. Sup. Ct. R. 1.180; Hough v. Leonard, 1993 Water District filed a Disclaimer in the District Court disclaiming any OK 112, 867 P.2d 438; see also Jackson v. Jackson, 2002 OK 25, n.12, 45 P.3d interest in the Commissioners’ Award in the condemnation action 418 (noting “[g]enerally, this Court will not review issues decided by because the County was not seeking to take any property of the Water the COCA adversely to a party that are not re-tendered for review on District and therefore, the Water District will have sustained no injury certiorari”). But see Patterson v. Beall, 2000 OK 92, ¶1, n.1, 19 P.3d 839 by way of County’s attempted condemnation. (noting that while a party’s attempt to raise an issue in the party’s sup- 3. This contract was attached as Deposition Exhibit #1 to the plemental brief on certiorari without first expressly raising the issue in August 27, 2002 transcript of the deposition of Ray Mize, the co-owner his petition for certiorari fails to preserve error, this Court may review of Energetix. claims relating to alleged deprivations of due process of law despite 4. The contract (at paragraph 3, page 2 thereof) further specifies that party’s failure to preserve error). Energetix’s duty to construct the Water District Pipeline is subject to 8. Prior to the hearing for oral argument on certiorari, the parties satisfaction of the additional following conditions precedent: Ener- in the Hobbs matter (#98,531) were ordered to present additional sup- getix’s attainment of all necessary permits and affirmatively deter- plementary briefs to specifically address the following question: “Is mining at its sole discretion, to construct the Eagle Pipeline; the Water providing access to a water supply for a private entity sufficient to sat- District and Energetix’s written agreement as to plans and specifica- isfy the public purpose requirement of 27 O.S. 2001 §5, thereby allow- tions of the Water District Pipeline and hydrants as well as a construc- ing the use of the county’s condemnation power to take an easement tion materials list; Water District’s obligation to provide all the materi- from private property owners?” als on the materials list to the Energetix contractor at least fifteen days 9. The U.S. Constitution generally provides in pertinent part as prior to construction of the Eagle Pipeline; Water District or Ener- follows: “No person shall be . . . deprived of life, liberty, or property, getix’s success in obtaining all necessary permits to build the Water without due process of law; nor shall private property be taken for District Pipeline and hydrants prior to commencement of the Eagle public use, without just compensation.” U.S. CONST. Amend. V. The Pipeline; receipt by each party of written consents by the other party Fifth Amendment to the U.S. Constitution is made applicable to the to the plans of each other’s facilities, as needed to eliminate any ques- States by the Fourteenth Amendment.

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1605 10. The express constitutional eminent domain provisions have of its appellate submissions the Water District Pipeline as a basis for similarly led to the converse determination that the government is satisfaction of the requisite “public purpose” test, but rather, argues prohibited from taking property for the purpose of conferring a pri- economic development as its sole basis for satisfying that test. We note vate benefit on a particular private party. Hawaii Housing Auth. v. Mid- that even if the Water District Pipeline rationale had not been aban- kiff, 467 U.S. 229 (1984); see City of Pryor Creek v. Pub. Serv. Co., 1975 OK doned, the facts relative to the proposed Water District Pipeline do not 81, 536 P.2d 343, 346 (noting “to hold otherwise would amount simply support the conclusion that there is a public purpose to support the to the taking of property from one and . . . giving it to another without County’s exercise of eminent domain. The condition precedent in the any benefit to the public”). contract operates in such a way that Energetix’s duty to construct the 11. We have previously determined the constitutionality of rede- Water District Pipeline never arises — and thus, the Water District velopment statutes that permitted takings for the combined purposes Pipeline proposed to serve the general public never comes into exis- of blight removal and economic development and upheld such takings tence — unless and until Energetix’s successful attainment of all even where such statutes authorize private use of the property after rights-of-way necessary for construction of the private Eagle Pipeline. blighted conditions are removed. See, e.g., Isaacs v. City of Oklahoma It is clear that the Eagle Pipeline alone would serve and benefit only City, 1966 OK 267, 437 P.2d 229, cert. denied, 389 U.S. 825 (1967). We one private entity and therefore, it fails to satisfy the “public purpose” identified the public use or public purpose in Issacs as slum or blight- test. Although the Water District Pipeline might have individually met ed area clearance and said the fact that private parties who might the public purpose test had the Water District sought to exercise its acquire ownership of the property after blight clearance “is merely own power of eminent domain (pursuant to 82 O.S. 2001 §1324.10), the incidental to the main legislative purpose.” Id. at 234. There has been Water District refrained from doing so in this case. In fact, the contract no allegation in the instant cases that any of the subject properties are expressly states the Water District lacked the funds to build the Water blighted or otherwise in poor condition. Here we are determining District Pipeline. It is clear that the Water District could not contract whether economic development alone is a public purpose to justify the away, surrender or alienate its own eminent domain power to another exercise of eminent domain. We note that our pronouncement today entity, as the right of eminent domain is inalienable. Burke v. Oklahoma does not disturb the rule in Issacs. City, 1960 OK 29, 350 P.2d 264; see also Ponca City v. Drummond, 1923 12. We note another critical distinguishing feature of Oklahoma OK 1112, 221 P. 466 (noting the rule that where property is taken for a courts’ determination of “public purpose” in public funding cases particular public purpose, such right of way or easement is limited to from the instant eminent domain matters, which leads us to adhere to the purposes of the same character of the original public use); 82 O.S. a strict construction of the term “public purpose” in the context of emi- §1324.10 (16) (providing the Water District’s right of eminent domain nent domain. In public funding cases, courts are required to give great “shall be restricted to the purpose of developing and providing rural deference to the legislature’s determination whether a particular project gas distribution, water works and sewage disposal facilities.”). Given will serve a public purpose. See State ex rel. Brown v. City of Warr Acres, these authorities, we are bound to consider the proposed Water Dis- 1997 OK 117, ¶18, 946 P.2d 1140, 1144. In contrast, the Oklahoma Con- trict Pipeline easement separately and independently given the dis- stitution expressly provides “in all cases of condemnation of private tinct character of its use from that of the Eagle Pipeline and the express property for public or private use, the determination of the character statutory restriction on the Water District’s eminent domain power to of the use shall be a judicial determination.” OKLA. CONST. art. 2, §24 the purpose of the “developing and providing rural . . . water works.” (emphasis added). The U.S. Supreme Court has concluded this judicial 82 O.S. §1324.10 (16). Certainly the County cannot, pursuant to a gen- determination is “extremely narrow,” and “[o]nce the question of the eral statutory eminent domain power, exercise its eminent domain public purpose has been decided, the amount and character of the power on behalf of the Water District beyond that express statutory land to be taken and need for a particular tract to complete the inte- restriction against the Water District itself, which limits its eminent grated plan rests in the discretion of the legislative branch.” Berman v. domain power to the purposes of the rural gas, water and sewage Parker, 348 U.S. 26, 104 (1954). In construing the constitutionality of a service. In reaching our determination of “public purpose” here, we state’s eminent domain statute authorizing such power for the pur- are constrained by the terms of the contract, which never give rise to pose of economic development specifically pursuant to the Federal Tak- public purpose unless and until the condition precedent of successful ings Clause, the U.S. Supreme Court recently emphasized its great def- acquisition of land for construction of the private Eagle Pipeline is sat- erence to the legislature “in determining what public needs justify the isfied. If we were to find the public purpose test satisfied on these use of the takings power.” Kelo v. City of New London, 125 S.Ct. 2655, facts, we would essentially be first permitting the taking of private 2664 (2005). property for a private use in order to give rise to a private, non-party’s 13. See Southwestern Illinois Dev. Auth. v. Nat’l City Envtl., 199 Ill.2d contractual obligation to construct a pipeline that would ultimately 225, 768 N.E.2d 1, 11 (2002), cert. denied, 537 U.S. 880 (2002) (noting pur- satisfy the public purposes requirement. The law does not support suant to the Illinois Constitution’s eminent domain provision that such a cart-before-the-horse type extension of the County’s general while the term “public purpose” is not a static concept, economic eminent domain power. development alone — in the absence of a showing the taking is for 15. The County additionally asserts (in its Petition filed in the trial purposes of eliminating slums or blight — does not constitute “public court in addition to its appellate briefs) that Energetix is a public util- purpose” and concluding “[t]he power of eminent domain is to be ity and that the rule set forth in Tuttle v. Jefferson Power & Improvement exercised with restraint, not abandon”). Co., 1912 OK 232, 122 P. 1102 is applicable in these cases. In Tuttle, this 14. The record reflects that at the time the County filed its Petition Court held that the generating, storing and distribution of electricity in these matters and throughout the discovery process, additional for the use of all who may have need of it, upon equal and reasonable terms is facts were presented to the trial court supportive of the argument that a public use so as to justify the power company’s exercise of its power the statutory and constitutional “public purpose” requirement was of eminent domain as expressly conferred by state statute. Id. at 1103 met. In addition to the economic development purpose, the County’s (emphasis added). County asserts that the business of generating elec- additional basis for establishing the “public purpose” requirement tricity alone constitutes a public purpose. There is no evidence in the was the proposed third Water District pipeline (intended to serve the record that Energetix plans to supply power or electricity to members rural residents of the community with expanded water service), which of the public who need it upon equal and reasonable terms. Rather, the Energetix had contractually agreed (in its contract with the Water Dis- record reflects Energetix is a private energy company called a “mer- trict) to construct on behalf of the Water District on the condition prece- chant plant,” which planned to operate pursuant to energy manage- dent that Energetix was successful in its acquisition of all the necessary ment service agreements, whereby an energy marketer would supply rights-of-way for construction of the Eagle Pipeline (the two pipelines Energetix with natural gas, Energetix would convert the natural gas that solely serve the private company, Energetix). The record reflects into electricity and deliver the electricity to the energy marketer, which Energetix presented this proposed plan to construct the Water District would then sell the electricity in the market. (Depo. T. of Ray Mize, Pipeline to the County Commissioners in support of its effort to con- August 27, 2002, p. 15-17). Additionally, the record reflects the owner vince the County that there was a direct public benefit with the of Energetix did not believe Energetix itself had the right to exercise increased rural water service to members of the rural community and the power of eminent domain. (Depo. T. of Ray Mize, August 27, 2002, thus, “public purpose” to support the County’s exercise of eminent p. 21-22). A reasonable inference from this acknowledgment is that domain power. We note that given the fact of the condition precedent Energetix itself did not consider itself a public utility because if it had, to Energetix’s duty to construct the Water District Pipeline, it is appar- it would have exercised its own eminent domain power as a public ent that members of the public, who might have enjoyed the benefits utility (pursuant to express statutory authority) as opposed to seeking of rural water service, are not the primary intended beneficiaries of the the County’s exercise of eminent domain power on its behalf. The proposed takings, as they would only enjoy those benefits on the con- record is unclear as to the identity of the end user or users of the elec- dition that the property was acquired for the private Eagle Pipeline tricity product to be sold by the energy marketer upon Energetix’s pro- purposes in the first instance. The Water District Pipeline basis was duction and sale to the marketer (i.e., we are unable to discern whether apparently abandoned on appeal, as the County does not argue in any the finished electricity product will ultimately be offered to the public

1606 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 at large and/or whether such product will ultimately be sold out of Ann. §§33037. Additionally, the California Code of Civil Procedure, state). We determine that Energetix is a private power company and §1240.020 provides the “power of eminent domain may be exercised to not a public utility, and therefore deem the rule in Tuttle inapplicable acquire property for a particular purpose only by a person authorized by here. Additionally, the County cites case law outside this jurisdiction statute to exercise the power of eminent domain to acquire such prop- in support of the general proposition that a private entity in the busi- erty for that use.” Id. (emphasis added). Based upon the legislative ness of generating electricity “has been universally held by all Courts declaration that redevelopment of blighted areas constitutes public to be a public purpose.” We reject this proposition to the extent it is use, California courts have construed this statute as providing that inconsistent with our limited holding in Tuttle. cities have the power of eminent domain for economic development 16. We note that we are not alone in determining there is a dis- purposes specifically limited in the context of blighted areas. See Rede- tinction between “public purpose” in the context of eminent domain velopment Agency v. Rados Bros., 95 Cal.App.4th 309, 115 Cal.Rptr.2d 234 cases as opposed to public funding cases. See, e.g., Georgia Dep’t of (2002); See also Carolina Water Serv., Inc. v. Lexington County Joint Mun. Transp. v. Jasper County, 355 S.C. 631, 586 S.E.2d 853, 856 (2003) (noting Water & Sewer Comm’n, 367 S.C. 141, 625 S.E.2d 227, 232-33 (S.C. Ct. “public purpose” in the context of tax cases and bond revenue cases is App., 2006) (noting the longstanding rule in South Carolina that the not the same as in the context of eminent domain proceedings in that term “public use” is a “broad, elastic term” and “[l]egislative determi- “public purpose” is narrowly defined in the latter proceedings). nations that a contemplated use is necessary, permanent, and public 17. See, e.g., Kelo v. City of New London, 125 S.Ct. 2655 (2005) are presumptively valid unless sham or fraud can be shown.” Id. (cita- (upholding a Connecticut state statute expressly authorizing the exer- tions omitted)). cise of the power of eminent domain in furtherance of economic devel- 22. This provision provides in pertinent part as follows: opment pursuant to the Takings Clause in the Fifth Amendment to the Where the party instituting a condemnation proceeding aban- U.S. Constitution). dons such proceeding, or where the final judgment is that the 18. There was no allegation in Kelo that the properties sought to be real property cannot be acquired by condemnation . . . then the condemned were blighted. Kelo, 125 S.Ct. at 2660. owner of any right, title or interest in the property involved may 19. “[T]he Oklahoma Constitution can afford rights greater than be paid such sum as in the opinion of the court will reimburse those granted by the United States Constitution.” Eastern Oklahoma such owner for his reasonable attorney, appraisal, engineering, Bldg. & Constr. Trades Council v. Pitts, 2003 OK 113, n.2, 82 P.3d 1008 (cit- and expert witness fees actually incurred because of the con- ing Turner v. City of Lawton, 1986 OK 51, ¶10, 733 P.2d 375, 378, cert. demnation proceeding. The sum awarded shall be paid by the denied, 483 U.S. 1007 (1987) ). Our holding in the instant cases concerns party instituting the condemnation proceeding. state constitutional questions based on Oklahoma law, which consti- 66 O.S. 2001 §55(D). tutes “separate, adequate, and independent [state] grounds” for our 23. Landowners’ motion in three of the instant cases (Lowery, decision. See Michigan v. Long, 463 U.S. 1032, 1041 (1983). #98,361; Whitten, #98,362; Hyslope, #98,363) includes their attorney’s 20. See, e.g., Southwestern Illinois Dev. Auth. v. Nat’l City Envtl., 199 affidavit verifying the following itemization of “appeal related court Ill.2d 225, 768 N.E.2d 1 (2002), cert. denied, 537 U.S. 880 (2002) (holding costs”: the “Petition in Error filing fee,” which we interpret to mean a taking for economic development alone would not achieve a legiti- Landowners seek recovery of the item more specifically referred to as mate public use and was unconstitutional pursuant to Art. 2, §15 of the the “deposit to cover costs,” or also generally referred to as the “filing Illinois Constitution, which generally provides private property shall fee,” in the amount of $200.00 as required by 20 O.S. 2001 §15. Addi- not be taken or damaged for public use without just compensation to tionally, the verified statement lists the fee paid to the Muskogee its owner.); County of Wayne v. Hathcock, 471 Mich. 445, 684 N.W.2d 765 County Court Clerk for the Designation of Record in the amount of (2004) (determining condemnations for purposes of economic devel- $100.00 and the fee paid to the court reporter for preparation of tran- opment are unconstitutional because they do not advance a public use scripts for the Record in the matter in the amount of $88.16. as required by Art. 10, §2 of the Michigan Constitution, which gener- With the exception of the $100.00 fee for designation of the record ally provides “[p]rivate property shall not be taken for public use (which is a fee paid to the district court that is not recoverable in this without just compensation . . . .”); Bailey v. Myers, 206 Ariz. 224, 76 P.3d Court) these items listed in the verified statement are recoverable 898, 901 (Ariz. App. Div. 1, 2003)(holding city’s taking of property was review-and-certiorari-related costs. See Spears v. Shelter Mut. Ins. Co., not for “public use” in accordance with the “significant limitations on 2003 OK 66, ¶15, 73 P.3d 865, 871; Sunrizon Homes, Inc. v. American the power of eminent domain provided by Article 2, §17 of the Arizona Guar. Inv. Corp., 1988 OK 145, 782 P.2d 103; Holleyman v. Holleyman, Constitution.”). We note that Article 2, §17 of the Arizona Constitution 2003 OK 48, ¶2-3, 78 P.3d 921, 940-41(Opala, V.C.J., Supplemental is virtually identical to Article 2, §23 of the Oklahoma Constitution. Opinion after rehearing’s denial) (explaining that Rule 1.14(a) regu- Article 2, §17 of the Arizona Constitution provides in pertinent part as lates the enforcement procedure of 12 O.S. §978 and these provisions follows: “[p]rivate property shall not be taken for private use, except mandate the prevailing party’s recovery of taxable costs including for private ways of necessity, and for drains, flumes, or ditches, on or court reporter expenses at the conclusion of appellate litigation); 12 across the lands of others for mining, agricultural, domestic, or sani- O.S. 2001 §978. The total amount of taxable cost items is $288.16 in tary purposes.” Id. See also Karesh v. City of Charleston, 271 S.C. 339, 247 each of the three cases (#98,361, #98,362 and #98,363). Landowners in S.E.2d 342, 345 (1978) (noting its express adherence to a “strict inter- the Hobbs matter (#98,531) list in their attached verified statement of pretation of [Art. 1, §13 of the South Carolina Constitution, which taxable cost items only the first two items (the $200.00 deposit to restricts the power of eminent domain to the taking of private proper- recover costs/filing fee and the $100.00 non-recoverable record fee). ty for “public use”] and determining condemnation of land and leas- Therefore, the total amount of recoverable costs in Hobbs (#98,531) is ing same to a private corporation for construction of a parking facility $200.00. and convention center is an unconstitutional taking of property for a private use despite incidental benefit to the public); City of Little Rock OPALA, J., concurring. v. Raines, 241 Ark. 1071, 411 S.W.2d 486 (1967)(determining takings for the purpose of “industrial development” do not satisfy the state con- ¶1 “No private property shall be taken or stitutional public use limitation pursuant to Art. 2, §§22 & 23 of the Arkansas Constitution); Baycol v. Downtown Dev. Auth., 315 So.2d 451, damaged for private use, with or without 457 (Fla. 1975) (construing Art. 1, §2 of the Florida Constitution as pro- compensation, unless by consent of the hibiting the exercise of eminent domain for a predominantly private use in a case where there was no showing of public need for the sub- owner, except for private ways of necessity, or ject parking facilities contemplated in the proposed private develop- for drains and ditches across lands of others ment project); Opinion of the Justices of the Supreme Judicial Court, 152 for agricultural, mining, or sanitary purposes Me. 440, 131 A.2d 904, 907 (1957)(holding a proposed Maine statute authorizing eminent domain for the purpose of “industrial develop- in such manner as may be prescribed by law.” ment . . . for the betterment of the economy of the city” was an uncon- [Emphasis supplied] Art.2 §23, Okl. Const. stitutional taking for private use and not a public purpose pursuant to Art. 1, §21 of the Maine Constitution, which provides “private proper- ¶2 Private property may be taken (or dam- ty shall not be taken for public uses without just compensation; nor unless the public exigencies require it.”). aged) for public use only upon payment of 21. For example, in California, a state statute declares “the rede- just compensation. Art.2 §24, Okl. Const. velopment of blighted areas and the provisions for appropriate continuing land use and construction policies in them constitute public uses and purposes for which public money may be advanced or ¶3 The question before us is whether expended and private property acquired.” Cal. Health & Safety Code Muskogee County may exercise its power of

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1607 eminent domain to acquire for Energetix rights Article 2, Section 23 of the Oklahoma Constitu- in land upon which a rural pipeline will be laid tion. to convey water for generation of electricity. ¶2 Article 2, Section 23 provides: Energetix is a private for-profit corporation that is not a public utility. I agree with the court No private property shall be taken or dam- and with Taylor, J., writing separately, that the aged for private use . . . . land is not sought for public but rather for private use in violation of Art.2 §24, Okl. The test under this provision is whether the Const., which disallows condemnation of pri- primary reason for the exercise of the power of vate property for nonpublic use. eminent domain serves a public purpose. If so, the condemnation complies with this provi- ¶4 When the government proposes to take a sion of article 2, section 23 of the Oklahoma person’s property to build streets, jails, gov- Constitution, even if an ancillary private bene- ernment buildings, libraries or public parks fits enures. See Isaacs v. Oklahoma City, 1966 OK that the government will own or operate, the 267, 437 P.2d 229. On the other hand, if the pri- anticipated use is unquestionably public. If the mary reason for the exercise of the power of government proposes to take property and eminent domain is to serve a private interest then convey it to private developers for private and the public purpose is incidental, then the commercial use, a significant question is pre- taking of private property is constitutionally sented by the intended disposition of the prop- invalid. Midwest City v. House of Realty, Inc., erty to be taken. The Oklahoma Constitution 2004 OK 56, ¶22, 100 P.3d 678, 686. requires that the anticipated public benefits substantially outweigh the private character of ¶3 In the briefs on appeal, the appellees rely the end use so that it may truly be said that the only on the public benefits of increased taxes, taking is for use that is “really public”. The jobs, and public and private investment which state constitutional requirement which limits will result from the Energetix plant as justify- the exercise of eminent domain power to “pub- ing the taking of private property for Ener- lic use” is satisfied only when the public bene- getix’s water pipelines. They do not rely on fits and characteristics of the intended use sub- any benefit resulting from the additional rural stantially predominate over the private value water pipeline. The primary reason for taking of that use. Bailey v. Myers, 206 Ariz. 224, 76 plaintiffs’ property is to benefit Energetix by P.3rd 898, 904. The essential element of pre- reducing its expense of laying its waterlines. dominance is absent from this record. Energetix is a for-profit company and not a public utility. It is not regulated by the Okla- ¶5 Because the intended taking has not been homa Corporation Commission. Energetix shown to be for public use, I concur in the generates electricity for one customer, not the court’s opinion and in the pertinent part of public. The electricity produced by Energetix is Taylor, J.’s separate writing. not distributed based on needs of people of TAYLOR, J., concurring in result. Muskogee County but based on Energetix’s business interests. The primary reason for ¶1 Although I agree with the majority opin- Muskogee County’s condemning plaintiffs’ ion’s result, my agreement is not unqualified. I property is to benefit Energetix which is a pri- agree that title 27, section 5 does not give vate use. Any benefits to Muskogee County are Muskogee County the authority to take the ancillary. plaintiffs’ property in this case. See Majority Op. at ¶¶12-14. Because Muskogee County’s ¶4 I emphasis the facts here are not analo- exercise of eminent domain is not authorized gous to taking private property to eliminate by title 27, section 5, it is unnecessary to resort blight. See 11 O.S. 2001, §38-111 (giving the to a constitutional analysis and such analysis is Urban Renewal Authority the right of eminent “deemed precluded by a self-erected ‘pruden- domain and declaring condemnation for tial bar’ of restraint.” See State ex rel. Fent v. renewal of blighted areas to be a public use). State ex rel. Okla. Water Res. Bd., 2003 OK 29, This Court has recognized that freeing an area ¶12, 66 P.3d 432, 439. Only because a majority of blight serves the public purpose necessary of this Court has relied on Oklahoma’s Consti- for the legitimate exercise of eminent domain tution as a basis for its decision, I write sepa- powers. The benefit to private interest in the rately on the issue of whether Muskogee condemned property after the elimination of County’s use of eminent domain is valid under undesirable conditions is incidental to the pub-

1608 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 lic purpose. Midwest City, 2004 OK 56 at ¶22, landowner’s fees and costs of defense were 100 P.3d at 686. defrayed by a private organization, then the landowner is not entitled to any award of ¶5 Likewise, these facts are not analogous to attorney fees and costs. a municipality or a rural water district taking private property for waterlines for its water- ¶8 Without joining in the Court’s constitu- works system. See 11 O.S.2001, §§22-104, 37- tional analysis, I nevertheless concur in this 117; 82 O.S.2001, §1324.10(17). In the case of a Court’s holding that Muskogee County’s exer- municipality or a rural water district exercis- cise of its power of eminent domain was statu- ing the power of eminent domain for water- torily unauthorized. For the above reasons, I lines as part of its waterworks system, the concur in the result. municipality and the rural water district retain EDMONDSON, J., Dissenting and joined by control of the waterlines’ use and, if they WINCHESTER, V.C.J. choose, can utilize the waterlines to supply water to other customers. See Shell Petroleum ¶1 The Court’s decision reflects an under- Corp. v. Town of Fairfax, 1937 OK 401, ¶23, 69 standable sensitivity to the United States P.2d 652 (provision conferring power upon Supreme Court’s recent approval in Kelo v. City cities to condemn and appropriate land for of New London of a municipal exercise of emi- waterworks purposes was not repugnant to nent domain to take unblighted private resi- any provision of the Constitution). This case is dential property and deliver it to a private more akin to a county condemning private business in anticipation of public benefits to be property for the benefit of a private entity who derived solely from economic development. wants to improve the property to increase the ¶2 In Oklahoma, our State Constitution entity’s income, and, as an ancillary benefit, extends greater protection to private property taxes increase. than does the Federal Constitution, as the ¶6 The plaintiffs would have us believe that majority opinion ably demonstrates. It also this is a case of a wealthy corporation which mandates that no private property be taken “wants the land of his poorer neighbors and without just compensation. influences local power to force the neighbors ¶3 However, I do not believe our greater to sell or be forced off their land.” In fact, measure of safety for private property was Muskogee County seeks a thirty-foot easement intended to deny non-riparian neighbors next to a county road, the waterlines would be access to state water resources; particularly underground, the plaintiffs would be compen- when the water is abundant, access can be sated for the easement, it appears the easement achieved merely by taking an easement and is would have very little impact on the plaintiffs’ essential to the neighbor’s survival, and the use of their land, and there is little danger in purpose is, as here, to expand electrical power harm occurring from the waterlines. Musko- resources in an economy in which energy is in gee County has a legitimate interest in bring- critically short supply. ing new business to the county and, thereby, increasing taxes and jobs. However, this inter- ¶4 No one should be denied access to public est does not legitimize Muskogee County’s water resources unless it is demonstrated that exercise of its power of eminent domain to pri- the access would impair the welfare of the marily benefit Energetix. public itself. New generation of electrical power is legislatively favored though it be by a ¶7 An award of attorney fees may be dictat- private company and marketed directly to a ed under the rule of stare decisis. However, any private consumer, because it contributes to the award of attorney fees to the landowner national energy pool and to the ultimate bene- should be granted ONLY if the landowners fit and security of the public. See 27 O.S., §§4, prove they were unequivocally and contractu- 7. ally obligated to pay attorney fees at the time the legal services were rendered and that the ¶5 Finally, I am not convinced that eminent landowners have actually paid the fees. If the domain attorney fees awarded against the landowners have not incurred attorney fees or county, and thus against the people in the if the landowners were not contractually obli- county, can be justified by piggybacking the gated to pay attorney fees, then they are not railroad condemnation statutes. In my view, entitled to an award of attorney fees. If the for an award of attorney fees to be authorized,

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1609 the authorization must be found within the and gas well is located. The subdivision in strict confines of the involved statute — here, which Schlumar’s property is located was plat- 27 O.S. §5 — and not merely within condem- ted in 2001 for residential development. Effec- nation statutes generally. See Head v.McCrack- tive July 1, 2003, the legislature enacted 52 O.S. en, 2004 OK 84, ¶14, 102 P.3d 670, 680; Beard v. §318.10. This statute provides that after the Richards, 1991 OK 117, 820 P.2d 812, 816; Carter effective date of the act, it shall be unlawful to v. City of Oklahoma City, 1993 OK 134, 862 P.2d locate any habitable structure within a radius 77, 80. of 125 feet from the wellbore of an active well. ¶6 With these reservations in mind, I ¶2 In 2004, Schlumar, a builder, purchased respectfully dissent. property adjacent to YDF’s oil well. In Novem- ber 2004, Schlumar began constructing a home 2006 OK 32 (a habitable structure) on his property. This YDF, INC., an Oklahoma corporation, structure happens to be within 125 feet of Plaintiff/Petitioner, v. SCHLUMAR, INC, YDF’s oil well. In April of 2005, YDF informed d/b/a SEMCO HOMES, Schlumar, by letter, that it was unlawful to Defendant/Respondent. erect a habitable structure within 125 feet of the oil well pursuant to 52 O.S. §318.10, and No. 102,628. May 16, 2006 that Schlumar was in violation of that statute. ON WRIT OF CERTIORARI FROM ¶3 YDF then commenced the present suit in CERTIFIED INTERLOCUTORY ORDER OF District Court seeking a declaration that THE DISTRICT COURT OF CANADIAN Schlumar was in violation of 52 O.S. §318.10, COUNTY an injunction against completion of the house, HONORABLE EDWARD C. and damages for negligence and negligence CUNNINGHAM, DISTRICT JUDGE per se. Schlumar counterclaimed, alleging ¶0 In 2004, Schlumar, a builder, purchased slander of title. Schlumar then filed a motion property adjacent to YDF’s oil well. In Novem- for summary judgment on plaintiff’s declara- ber 2004, Schlumar began constructing a home tion theory, contending that, as a matter of law, (a habitable structure) on his property. This 52 O.S. §318.10 did not apply to him as an adja- structure happens to be within 125 feet of cent landowner, even if the house was con- YDF’s oil well. In April of 2005, YDF informed structed within 125 feet of the wellbore, as 52 Schlumar, by letter, that it was unlawful to O.S. §318.10 is part of the Oklahoma Surface erect a habitable structure within 125 feet of Damages act, 52 O.S. §318.2 et seq., and thus the oil well pursuant to 52 O.S. §318.10, and applies only to surface owners and not to adja- that Schlumar was in violation of that statute. cent landowners. Trial court granted summary judgment in ¶4 On September 6, 2005, the trial judge Schlumar’s favor finding that Schlumar was signed and filed an order determining that 52 not a surface owner under the Oklahoma Sur- O.S. §318.10 did not apply to this adjacent face Damages Act. landowner and, thus, YDF was not entitled to CERTIORARI PREVIOUSLY GRANTED; a declaration in its favor. That order was ORDER OF THE TRIAL COURT certified for immediate review as a certified AFFIRMED. interlocutory order. Shawn J. Roberts, Craig E. Brown, BROWN ¶5 The issues presented by this matter are AND ROBERTS, P.C., Oklahoma City, Okla- whether 52 O.S. §318.10 applies to adjacent homa, for Plaintiff/Petitioner. landowners and whether, if it does apply, it constitutes an unconstitutional taking of pri- John A. Bass, Joseph P. Weaver, BASS LAW vate property, prohibited by Art. 2 §23 of the FIRM, El Reno, Oklahoma, for Defendant/ Oklahoma Constitution. We hold that 52 O.S. Respondent. §318.10 is in fact part of the Oklahoma Surface HARGRAVE, J. Damages Act, and as such, applies only to surface owners and not adjacent landowners. The ¶1 YDF, Inc., is the operator of an active oil standard of review is de novo. Booth v. McK- and gas well. Schlumar, Inc., is the owner of night, 2003 OK 49, 70 P.3d 855, 860. property located in Canadian County, that is adjacent to the property on which YDF’s oil

1610 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 ¶6 The fundamental rule of statutory con- 1. “Operator” means a mineral owner struction is to ascertain and give effect to leg- or lessee who is engaged in drilling islative intent, and that intent is first sought in or preparing to drill for oil or gas; the language of the statute. World Publishing and Co. v. Miller, 2001 OK 49 ¶ 79, 32 P.3d 829, 832. When legislative intent cannot be ascertained 2 “Surface owner” means the owner from the language of a statute, as in cases of or owners of record of the surface of ambiguity, we must apply rules of statutory the property on which the drilling construction. The test for ambiguity in a operation is to occur. statute is whether the statutory language is susceptible to more than one reasonable inter- ¶9 This statute was passed in 1982. The pretation. In the Matter of J.L.M., 2005 OK 15 ¶5, statute in question in the case at bar was 109 P.3d 336. Whether language is ambiguous passed in 2003 and was placed numerically is a question of law. American Economy Ins. Co. with the Oklahoma Surface Damages Act. To V. Bogdahn, 2004 OK 9 ¶ 11, 89 P.3d 1051, 1054. interpret §318.10 it is necessary to turn to the In construing ambiguous statutory language, definition section of the Surface Damages Act we do not limit ourselves to the consideration to define “operator” and “surface owner.” The of a single word or phrase. Rather, we look to addition of 52 O.S. Supp. 2003 §318.10 appears the various provisions of the relevant legisla- to not have been by mere happenstance or tive scheme to ascertain and give effect to the coincidence as YDF alleges, but rather the legislative intent and the public policy under- intent of the legislature was to create an adden- lying that intent. World Publishing Co. v. Miller, dum to the Act. 2001 OK 49 ¶ 79, 32 P.3d 829, 832. ¶10 The purpose of the Surface Damages ¶7 In the present matter, the statute in ques- Act is to promote the prompt payment of com- tion, 52 O.S. Supp. 2003 §318.10 provides: pensation of a surface owner whose land is A. After the effective date of this act, it taken for oil and gas exploration. The Okla- shall be unlawful to locate any habit- homa Legislature enacted the Surface Dam- able structure within: ages Act to provide a mechanism to balance 1. A radius of one hundred twenty-five the conflicting interests of the owners of two of (125) feet from the wellbore of an active our State’s most important resources; the min- well; or eral interest owner and the surface owner. 2. A radius of fifty (50) feet from the center Ward Petroleum Corp. v. Stewart, 2003 OK 11 ¶ 5, of any surface equipment or other 64 P.3d 1113, 1115. The Surface Damages Act equipment necessary for the operation states Oklahoma’s policy regarding damage of of an active well, including, but not lim- land caused by oil and gas drilling operation ited to, hydrocarbon and brine storage while balancing the interests of oil and gas vessels, tanks, compressors, heaters, operators with those of surface owners. separators, dehydrators, or any other Schneberger v. Apache Corp. 1994 OK 117, 890 related equipment. P.2d 847, 853. B. Provided, however, the provisions of ¶11 In the present matter, Schlumar does not this section shall not prohibit an opera- now and has never owned the separate tract of tor and surface owner from agreeing in land on which the well is located. Schlumar is writing to setback provisions with dis- not the “surface owner” of the land on which tances different from those set forth in the well sits and therefore the Surface Dam- this section. ages Act does not apply to his land. Having ¶8 The Oklahoma Surface Damages Act is found that 52 O.S. Supp. 2003 §318.10 is part of codified at 52 O.S.§318.1 et. seq. Title 52 §318.2 the Oklahoma Surface Damages Act, this sets forth the definitions to be used in the act. Court has fully disposed of all pertinent ques- It provides: tions at bar and we therefore find that the trial For purposes of Section 1 through 8 of this court’s granting of summary judgment was act: correct and proper.

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1611 CERTIORARI PREVIOUSLY GRANTED; of oil and gas field equipment. The obvious ORDER OF THE TRIAL COURT purpose of this prohibition is the welfare and AFFIRMED. safety of the public. ¶12 CONCUR: WATT, C.J., LAVENDER, ¶4 Here, a residential builder, Schlumar, HARGRAVE, KAUGER, EDMONDSON, JJ. Inc., is building a new residential structure on land adjacent to a parcel where an active oil DISSENT: WINCHESTER (JOINS ¶13 well is located. The building site is less than TAYLOR, J.), V.C.J., OPALA (JOINS TAYLOR, 125 feet from the active oil well. The operator J.), TAYLOR (BY SEPARATE WRITING), of the well filed this action alleging the builder COLBERT (JOINS TAYLOR, J.), JJ. is violating §318.10. The parties dispute the meaning of “surface owner” in §318.10. If TAYLOR, J., with whom WINCHESTER, §318.10 is treated as a part of the Oklahoma V.C.J., and OPALA and COLBERT, JJ., join, Surface Damages Act, then the builder clearly dissenting: does not fall within the Act’s definition of “sur- ¶1 Today’s opinion concludes that 52 face owner”4 and the operator is not entitled to O.S.Supp.2003, §318.10 is part of the Oklahoma relief. Surface Damages Act, 52 O.S.2001, ¶5 A cardinal rule of statutory construction §§318.2 - 318.9. These are two separate pieces is to ascertain and give effect to the Legisla- of legislation that relate to different subjects ture’s intent and purpose as gleaned from the and serve different purposes, and the Legisla- statute. Strong v. Laubach, 2004 OK 21, ¶9, 89 ture has not expressed an intent that §318.10 is P.3d 1066, 1970. The majority opinion finds leg- to be treated as a part of the surface damages islative intent to enact §318.10 as an “adden- regime. Accordingly, I must respectfully dis- dum to the Act” from the fact that §318.10 is sent. “placed numerically with the Oklahoma Sur- ¶2 The Oklahoma Surface Damages Act, face Damages Act.” Until today, we have not enacted in 1982,1 attempted to guarantee that turned to the section number selected for cod- the development of the oil and gas industry ification purposes to ascertain legislative did not become an expense of the land owner. intent. The section number for codification, Davis Oil Co. v. Cloud, 1986 OK 73, ¶16, 766 P.2d which may be assigned by the publisher of our 5 1347, 1351. The Act modified the common law codified statutes, is not substantive law and it rule that the oil and gas operator is not liable should not be used as a guide to implied leg- for surface damage caused by reasonable use. islative intent. Id. at ¶10, 766 P.2d at 1349. It prescribed a judi- ¶6 I do not view §318.10 as an addition or cial procedure2 for determining actual dam- amendment to the Oklahoma Surface Dam- ages to the surface of the land without regard ages Act. The Oklahoma Surface Damages Act, to the reasonableness of the use. Id. at ¶16, 766 as originally enacted, consisted of eight sub- P.2d at 1351. “The general purpose of the Act, stantive sections codified at §318.2 through as we recognized in Davis, was an effort to bal- §318.9. The Legislature could have expressed ance the conflicting interests of the owners of its intent to add a new section of law to the Act. two of our State’s important natural resources; It did not. As the majority opinion recognizes, the mineral interest holder on the one hand §318.2 defines “operator” and “surface owner” and the land owner on the other.” Houck v. expressly for purposes of sections 318.2 Hold Oil Corp., 1993 OK 166, ¶17, 867 P.2d 451, through 318.9. The Legislature could have eas- 457. ily referenced the definitions in §318.2 in draft- ¶3 The statute in question, 52 ing §318.10. It did not. O.S.Supp.2003, §318.10,3 is not concerned with ¶7 The Legislature enacted §318.10 in a surface damages caused by drilling or operat- measure, H. B. 1569 of the First Regular Ses- ing an oil or gas well. It deals with the location sion of the Forty-Ninth Oklahoma Legislature,6 of a habitable structure in relation to the loca- containing a single substantive section. That tion of an active oil or gas well and oil and gas substantive section, codified at 52 field equipment. It prohibits the location of a O.S.Supp.2003, §318.10, has nothing to do with habitable structure — a structure suitable to be surface damages and the common law. It con- occupied by a person — within 125 feet of the cerns the location of habitable structures. It wellbore of an active oil or gas well and 50 feet protects persons and families from potential

1612 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 harm that may be caused by active oil and gas part of a misdemeanor plea agreement. The wells in close proximity to their dwellings. It Professional Responsibility Tribunal and the preserves the welfare and safety of the public Oklahoma Bar Association recommend rein- where a builder has knowledge of the location statement. of active well in relation to new residential PETITION FOR REINSTATEMENT dwelling but the buying public does not. GRANTED UPON PAYMENT OF DUES ¶8 Were I writing for the Court, I would not AND COSTS. utilize the section number of a codified statute Rick Rodgers, Duncan, Oklahoma, for as a tool of statutory construction. In the Petitioner. absence of any reference to the Oklahoma Sur- face Damages Act and in light of the different Charles Watts, Oklahoma City, Oklahoma, for purposes of §318.10 and the Act, §318.10 Petitioner. should be construed and applied as a self-suf- Nathan Lockhart, Assistant General Counsel, ficient, free-standing statute independent of Oklahoma Bar Association, Oklahoma City, the surface damages regime. I would reverse Oklahoma, for Respondent. the summary judgment and return this cause to the district court for further proceedings. COLBERT, J.

1. 1982 Okla. Sess. Laws, ch. 341, codified at 52 O.S.Supp.1982, ¶1 Kathy Lynne Jones (Petitioner) seeks §§318.2 - 318.9. reinstatement to the Oklahoma Bar Associa- 2. Even though surface damages may be recovered through the Act’s special proceedings, a surface owner may also recover damages tion (OBA). This Court approved Petitioner’s in any related tort claims. Ward Petroleum Corp. v. Stewart, 2003 OK 11, resignation from the OBA on February 3, 1997, ¶11, 64 P.3d 1113, 1116. after she submitted her affidavit of resignation 3. 52 O.S.Supp.2003, §318.10 reads: A. After the effective date of this act, it shall be unlawful to pending disciplinary proceedings and follow- locate any habitable structure within: ing her plea of guilty to the misdemeanor 1. A radius of one hundred twenty-five (125) feet from the wellbore of an active well; or offense of falsely performing a notarial act. The 2. A radius of fifty (50) feet from the center of any surface trial panel of the Professional Responsibility equipment or other equipment necessary for the operation of an active well, including, but not limited to, hydrocarbon and brine Tribunal has unanimously recommended rein- storage vessels, tanks, compressors, heaters, separators, dehy- statement and the OBA joins that recommen- drators, or any other related equipment. dation. Petitioner has filed a brief in support of B. Provided, however, the provisions of this section shall not prohibit an operator and surface owner from agreeing in writing reinstatement and the OBA filed a waiver of to setback provisions with distances different from those set response. Because Petitioner has satisfied the forth in this section. 4. 52 O.S.2001, §318.2 defines “surface owner” as the record owner Rule 11 prerequisites for reinstatement, Okla. of the surface upon which the drilling operation is to occur. Stat. tit. 5, ch. 1, app. 1-A (2001), by clear and 5. For years the Legislature has authorized the publisher of our codified statutes to select any section number to avoid duplication. convincing evidence, she is reinstated effective The standard language used by the Legislature in directing codifica- upon her payment of dues and the costs of this tion of §318.10 is: “A new section of law to be codified in the Okla- proceeding. homa Statutes at Section 318.10 of Title 52, unless there is created a duplication in numbering.” 2003 Okla. Sess. Laws, ch. 361, §1. 6. 2003 Okla. Sess. Laws, ch. 361. The measure contained three sec- BACKGROUND tions: Section 1 added a new section to be codified as Section 318.10 of Title 52; Section 2 set forth July 1, 2003 as the effective date; and Sec- ¶2 Petitioner graduated from the University tion 3 declared an emergency. of Oklahoma School of Law on December 19, 2006 OK 33 1980. She was admitted to the OBA and her name was entered on the Roll of Attorneys on In the Matter of the Reinstatement of Kathy May 8, 1981, upon her successful completion of Lynne Jones, to Membership in the the Oklahoma Bar Examination. Thereafter, Oklahoma Bar Association and the Roll of Petitioner engaged in private practice in Dun- Attorneys. can, Oklahoma from May 8, 1981, until January SCBD # 4961. May 16, 2006 15, 1997. ORIGINAL PROCEEDING FOR RULE 11 ¶3 In January 1997, Petitioner was charged and subsequently pled guilty to the misde- BAR REINSTATEMENT meanor crime of Falsely Performing a Notarial ¶0 Petitioner seeks reinstatement to mem- Act.1 The amended information charged, in bership in the Oklahoma Bar Association and substance, that Petitioner falsely affixed the the Roll of Attorneys following her resignation notary public seal of Vicki Williams, her for- pending disciplinary proceedings in 1997 as mer secretary, to a Petition for Divorce. It

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1613 should be noted however, that neither of the In re Reinstatement of Kamins, 1988 OK 32, ¶ 19, clients’ signatures were forged nor did they 752 P.2d 1125, 1129. incur any financial harm from Petitioner’s acts. EVIDENCE AND ANALYSIS Petitioner received a five-year deferred sentence, was assessed a $500.00 fine and court ¶8 As a condition precedent to reinstate- costs, and was required to resign from the ment, a hearing must be held before the trial practice of law for a period of five years. As panel of the Professional Responsibility Tri- part of her plea agreement, Petitioner was also bunal. Rule 11.5, RGDP. Following the hearing, required to notify the OBA of the pending the trial panel shall file the hearing transcript criminal investigation. and a report containing specific findings as to whether an applicant: (1) possesses good ¶4 At the time of Petitioner’s resignation, moral character entitling the applicant to read- two grievances against her were pending with mission; (2) has not engaged in the unautho- the General Counsel’s Office: (1) DC 96-341, rized practice of law during the period of sus- alleging criminal conduct involving fraudulent pension, disbarment, or resignation; and (3) use of notary signature and seal; and (2) DC possesses the competence and learning in the 96-376, alleging that money garnished from law required for admission to practice law in the complainant in the course of his bankrupt- Oklahoma. Id. In addition, this Court will con- cy had not been returned despite Petitioner’s sider the following factors in determining an promise to do so. applicant’s fitness for reinstatement: ¶5 Petitioner’s improper conduct occurred (1) the present moral fitness of the appli- when she was suffering from situational cant; depression. She was recovering from a serious car wreck, short-staffed at work, and under (2) the demonstrated consciousness of the financial pressures resulting from a divorce. In wrongful conduct and disrepute which the addition, Petitioner bore the burden of paying conduct has brought the profession; an $80,000 debt for ten years of back taxes due (3) the extent of applicant’s rehabilitation; to her former husband’s failure to file. (4) the seriousness of the original miscon- ¶6 On October 28, 2004, Petitioner peti- duct; tioned for reinstatement. At her hearing before the Professional Responsibility Tribunal she (5) the conduct subsequent to discipline; introduced six witnesses who testified to her (6) the time that has elapsed since the orig- good moral character and competence in the inal discipline; law. There was no evidence that Petitioner had engaged in the unauthorized practice of law. (7) the applicant’s character, maturity, and The trial panel found and we agree, that Peti- experience at the time of the discipline; tioner possesses good moral character and that and her competence and learning in the law (8) the applicant’s present competence in qualify her for readmission. See Rule 11.5, legal skills. Rules Governing Disciplinary Proceedings (RGDP). Kamins, 1988 OK 32, ¶ 20, 752 P.2d at 1130. STANDARD OF REVIEW ¶9 At the hearing before the trial panel, Peti- tioner established by clear and convincing evi- ¶7 In considering a petition for reinstate- dence that she is remorseful concerning the ment, this Court exercises original jurisdiction conduct which led to her resignation. Petition- and applies the de novo standard of review. In er has publically acknowledged the wrongful- re Reinstatement of Gassaway, 2002 OK 48, ¶ 3, ness of her conduct and has sought forgiveness 48 P.3d 805, 806. The burden is on the applicant from those around her. It is evident that she to demonstrate by clear and convincing evi- has learned from her mistakes and from the dence that the prerequisites for reinstatement simple life she has maintained since her resig- are satisfied. Okla. Stat. tit. 5, ch. 1, app. 1-A, nation. Rule 11.4 (2001). An applicant whose resignation is tendered at a time when bar disciplinary ¶10 In addition, Petitioner has demonstrat- proceedings are pending bears the same bur- ed that she is completely rehabilitated. Since den as an individual who has been disbarred. her resignation, Petitioner has remarried,

1614 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 enjoys good mental and physical health, and and $1,033.64, the costs incurred in this rein- has repaid $78,000.00 in back taxes, leaving a statement proceeding, it is ordered that peti- balance of $2,000. The constellation of stressors tioner, Kathy Lynne Jones, be reinstated to that caused the situational depression and led membership in the OBA and her name placed to her criminal conduct are no longer present on the Roll of Attorneys licensed to practice in Petitioner’s life. law in Oklahoma. It is further ordered that Petitioner shall pay said costs and current ¶11 The record further demonstrates that membership dues within twenty days from the Petitioner has not practiced law since her name date this opinion is filed with the Clerk of this was stricken from the Roll of Attorneys on Feb- Court. ruary 3, 1997. Rather, she has earned a living performing numerous jobs ranging from farm- PETITION FOR REINSTATEMENT ing to catering at the Oklahoma State Universi- GRANTED UPON PAYMENT OF DUES ty dining hall, working in the direct selling AND COSTS. industry for Melaleuca and Team National, ALL JUSTICES CONCUR. and volunteering as a law clerk for the attorney representing her in this matter, Charles W. 1. Petitioner’s sundry acts of forging a notary’s signature and Watts. Moreover, Petitioner has complied with affixing the seal to various court documents which were filed with the court clerk are tantamount to violations of sections 1561(2); 1524; and Rule 11.5(b), RGDP, by not engaging in the 467 of title 21 of the Oklahoma Statutes. However, the district attorney, unauthorized practice of law. This was estab- although aware of the alleged violations, declined to prosecute. lished through Petitioner and her supervi- 2006 OK 34 sor/attorney who testified that he and Peti- tioner made certain that Petitioner neither JACOBS RANCH, L.L.C., an Oklahoma holds herself out as a lawyer nor counsels limited liability company, ROOS RANCH, clients while working as a law clerk. All work INC., an Oklahoma corporation, and ROOS completed by Petitioner is under the strict RESOURCES, INC., an Oklahoma supervision of her supervising attorney. corporation, Plaintiffs/Appellants, v. DUANE A. SMITH, as Executive Director, ¶12 Prior to tendering her resignation, Peti- and the OKLAHOMA WATER RESOURCES tioner practiced law for approximately fifteen BOARD, an agency of the STATE OF years; testimony was introduced that she “con- OKLAHOMA, Defendants/Appellees, and tinues to do top-notch legal work”; and for the ARBUCKLE MASTER CONSERVANCY past year, she has received hands-on super- DISTRICT, THE CITY OF ARDMORE, THE vised legal experience. Moreover, Petitioner CITY OF DAVIS, THE CITY OF DURANT, completed several hours of Continuing Legal THE CITY OF SULPHUR, THE CITY OF Education courses and regularly reads the TISHOMINGO, THE CITY OF Oklahoma Bar Journal. Petitioner has shown WYNNEWOOD, THE CITY OF ADA, and that her competence and learning in the law GARY GREEN, EARL BREWER, JOHN qualify her for readmission without retaking BRUNO, and REGINALD EASTERLING, as the Oklahoma Bar Examination. See Rule members of the CITIZENS FOR THE 11.5(c), RGDP. PRESERVATION OF THE ARBUCKLE- ¶13 Lastly, Petitioner has satisfied the proce- SIMPSON AQUIFER, dural requirements for reinstatement. She Intervenors/Appellees. complied with the notice requirements of No. 101,727. May 23, 2006 Rules 11.1(a) and 11.3(b), RGDP; and no objections to her reinstatement were received. Peti- ON APPEAL FROM THE DISTRICT tioner has not filed any applications for rein- COURT, OKLAHOMA COUNTY statement prior to this proceeding and all The Honorable Carolyn Ricks, Presiding funds expended on her behalf from the Client ¶0 Plaintiffs filed suit in the dis- Security Fund have been repaid in full. trict court for declaratory and CONCLUSION injunctive relief. Plaintiffs alleged that 82 O.S.Supp.2003, §§1020.9, ¶14 The record demonstrates by clear and 1020.9A and 1020.9B are unconsti- convincing evidence that Petitioner has satis- tutional and asked the court to fied the prerequisites for reinstatement. Effec- enjoin the Oklahoma Water tive upon the payment of the 2006 bar dues Resources Board from enforcing

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1615 those statutes. The challenged as a “Sole Source Aquifer” by the United law defines “sensitive sole source States Environmental Protection Agency groundwater basin” and imposes pursuant to the Safe Drinking Water Act, moratoria on issuing temporary as of the effective date of this act, including permits to withdraw water and any portion of any contiguous aquifer on local governmental contract- located within five (5) miles of the known ing to transfer water from a sensi- areal extent of the surface out-crop of the tive sole source groundwater sensitive sole source groundwater basin. basin. Plaintiffs moved for sum- 82 O.S.Supp.2003, §1020.9A(B)(1). The chal- mary judgment. The district court lenged legislation imposes moratoria on 1) entered summary judgment in favor of the defendants and inter- issuing temporary permits that would lead to venors. Plaintiffs appealed. This any additional municipal or public use of Court retained the appeal. water from a sensitive sole source groundwater basin at locations outside of the basin and DISTRICT COURT’S SUMMARY 2) contracting by municipalities and other JUDGMENT AFFIRMED. political subdivisions outside a sensitive sole source groundwater basin for water from the Clyde A. Muchmore, Mark S. Grossman, basin. 82 O.S.Supp.2003, §§1020.9A(B)(1) and Crowe & Dunlevy, Oklahoma City, Oklahoma, 1020.9B(A). The moratoria are effective until a for plaintiffs/appellants. hydrological study is completed and the Okla- Dean A. Couch, Oklahoma City, Oklahoma, for homa Water Resources Board determines a defendants/appellees, Duane A. Smith and maximum annual yield for the sensitive sole Oklahoma Water Resources Board. source groundwater basin. 82 O.S.Supp.2003, §§1020.9A(B)(2) and 1020.9B(B). The chal- Jason B. Aamodt, Rayanne G. Tobey, Aamodt lenged legislation also requires the Oklahoma & Tobey, Tulsa, Oklahoma, for Water Resources Board, before issuing a per- intervenors/appellees, Gary Green, Earl Brew- mit to withdraw water from a sensitive sole er, John Bruno, and Reginald Easterling as source groundwater basin, to determine if the members of the Citizens for the Preservation of proposed use is likely to degrade or interfere The Arbuckle-Simpson Aquifer. with springs or streams emanating in whole or D. Craig Shew, Smith, Shew, Scrivener & in part from water originating from the sensi- Corbin, Ada, Oklahoma, for tive sole source groundwater basin. 82 intervenor/appellee, the city of Ada. O.S.Supp.2003, §1020.9(A)(1)(d). Charles W. Shipley, Robert D. Kellogg, Jamie ¶2 The legislation is challenged as: 1) a spe- Taylor Boyd, Shipley & Kellogg, P.C., Tulsa, cial law regulating municipal and county Oklahoma, for intervenors/appellees, The affairs contrary to the Okla. Const., art. 5, §46; Arbuckle Master Conservancy District and the 2) a special law relating to a subject area that cities of Ardmore, Davis, Durant, Sulphur, can be dealt with in a general law contrary to Tishomingo and Wynnewood. the Okla. Const., art. 5, §59; 3) a special law with no notice as required by the Okla. Const., Neal Leader, Senior Assistant Attorney Gener- art. 5, §32; 4) a taking of private property with- al, Oklahoma City, Oklahoma, for the Office of out just compensation contrary to the Okla. the Attorney General.1 Const., art. 2, §24 and the U.S. Const., Fifth TAYLOR, J. Amendment, Takings Clause; and 5) discriminatory treatment of landowners contrary to the ¶1 Plaintiffs/appellants challenge recent U.S. Const., Fourteenth Amendment, Equal amendments to the Oklahoma Groundwater Protection Clause. We conclude the challenged Law, 82 O.S.2001, §§1020.1, et seq. The chal- legislation is valid and uphold the legislation lenged legislation,2 codified at 82 codified at 82 O.S.Supp.2003, §§1020.9, O.S.Supp.2003, §§1020.9, 1020.9A and 1020.9B, 1020.9A and 1020.9B. relates to “sensitive sole source groundwater basins.” It defines “sensitive sole source I. Facts and Proceedings Below groundwater basin” as: ¶3 The plaintiffs/appellants, Jacobs Ranch, a major groundwater basin or subbasin all LLC, Roos Ranch, Inc., and Roos Resources, or a portion of which has been designated Inc., claim rights in and to the groundwater in

1616 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 the Arbuckle-Simpson Groundwater Basin mitted to be withdrawn from the Arbuckle- underlying their property in Pontotoc County. Simpson Groundwater Basin. They also claim to be holders of temporary ¶8 The OWRB has the duty to make a permits for the withdrawal of that groundwater. hydrologic survey and investigation of each groundwater basin in Oklahoma at least every ¶4 The defendants/appellees, Oklahoma twenty years. 82 O.S.2001, §1020.4. The OWRB Water Resources Board (OWRB) and Duane A. also has the duty to determine a maximum Smith, Executive Director of the OWRB, are annual yield of groundwater to be produced responsible for the administration and enforce- from each groundwater basin. 82 O.S.2001, ment of Oklahoma’s groundwater law. The §1020.5. Any regular permit to withdraw water municipal intervenors, Davis, Durant, Sul- from a groundwater basin must be based upon phur, Tishomingo, Wynnewood and Ada, a completed hydrological study and a maxi- receive all or a portion of their water supply mum annual yield determination. 82 O.S.2001, from the Arbuckle-Simpson Groundwater §1020.11. Basin. Other intervenors are the Arbuckle Mas- ter Conservancy District and some of the mem- ¶9 The Oklahoma Geological Survey and bers of Citizens for the Preservation of the the United States Geological Survey studied Arbuckle-Simpson Aquifer. the hydrology of the Arbuckle-Simpson Groundwater Basin. In 1990, those agencies ¶5 The Arbuckle-Simpson Groundwater reported on the hydrology of the Arbuckle- Basin is a major groundwater basin as defined Simpson Groundwater Basin but the report by the Oklahoma Groundwater Law. 82 was not prepared to support a finding of the O.S.2001, §1020.1. It lies entirely within the maximum annual yield by the OWRB. The State of Oklahoma. It extends into five coun- OWRB advises that a hydrological study suffi- ties, covering all of Pontotoc, Murray and cient to determine a maximum annual yield Johnston counties and a portion of Carter and will be completed in the calendar year of 2008. Coal counties. It has depths greater than any other aquifer in the state, and its hydraulic and ¶10 In 1985 and 1986, the OWRB issued geologic conditions are unique in the state. It is temporary permits to withdraw water for pub- a predominately carbonate aquifer that pro- lic and municipal use to plaintiffs/appellants vides high-sustained flows to its springs and based on their interests in land in Pontotoc streams. Its carbonate formation, the limestone County overlying the Arbuckle-Simpson and dolomite strata, causes the recharge and Groundwater Basin. The temporary permits discharge rates to be less predictable than were revalidated annually until 2003. Begin- aquifers with the more common sandstone and ning in 2003, numerous protests objecting to shale formations. any further revalidation of plaintiffs’/appel- ¶6 The Arbuckle-Simpson Groundwater lants’ temporary permits have been filed with Basin serves as a source of good-quality drink- the OWRB. ing water to many domestic users, municipali- ¶11 Plaintiffs/appellants did not withdraw ties and parks in the area overlying the basin. any water from the Arbuckle-Simpson The United States Environmental Protection Groundwater Basin pursuant to their tempo- Agency (EPA) has designated a portion of the rary permits.4 However, in 2003 plaintiffs/ Arbuckle-Simpson Groundwater Basin as a appellants proposed to begin selling more than sole source aquifer pursuant to the Safe Drink- twenty billion gallons of water annually from 3 ing Water Act, 42 U.S.C. §§300g and 300h-3e. the Arbuckle-Simpson Groundwater Basin to There are a total of seventy-two designated municipalities in Canadian County, Okla- sole source aquifers in the continental United homa. Although no Canadian County munici- States. pality is involved in this litigation, plain- ¶7 The municipal intervenors are located tiffs/appellants assert that the Canadian within the five-county Arbuckle-Simpson County municipalities depend on groundwa- Groundwater Basin area and receive drinking ter sources that may become impractical in the water from the basin or sources that originate future due to more restrictive arsenic stan- in the basin. Municipal and public water sup- dards for drinking water. Those municipalities ply use is one of the largest uses of water per- also purchase water from Oklahoma City.5

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1617 ¶12 Without a sufficient hydrological study, ¶18 Here, the issue is the constitutionality of the effect of plaintiffs’/appellants’ proposed the 2003 amendments to the groundwater withdrawal of water from the Arbuckle-Simp- statutes. There is a strong presumption that the son Groundwater Basin can not be determined statutes are constitutional. Black v. Ball Janitori- by the OWRB. However, it is undisputed that: al Service, Inc., 1986 OK 75, ¶5, 730 P.2d 510, 1) aquifers in Oklahoma have suffered irre- 512. In deciding their constitutionality, the versible decline where withdrawals exceeded statutes will be upheld unless they are clearly the aquifer’s ability to recharge, such as the inconsistent with the constitution. Id. Ogallala Aquifer; 2) decline in the groundwa- III. The trial court’s ruling on plaintiffs’ ter level has resulted in the loss of the natural standing flow of streams, such as the Beaver River in the Oklahoma panhandle; and 3) a decline in the ¶19 The dissenting opinion raises a thresh- groundwater level of the Arbuckle-Simpson old issue which we are obliged to address Groundwater Basin could jeopardize the flow before we proceed to review the merits of the of springs and streams, such as the spring that summary judgment on appeal. The dissent is the source of the water for the city of Ada. takes the position that there is no clear paper trail of the trial court’s ruling on plaintiffs’ ¶13 In 2003, the Oklahoma Legislature standing raised in defendants’ dismissal passed Senate Bill No. 288 and the Governor 6 motion and asserted as an affirmative defense signed it into law. The measure expressly in intervenors’ answer. found that “a moratorium is necessary on the issuance of certain temporary permits on cer- ¶20 The record before this Court shows that tain sensitive sole source groundwater basins the trial court did make a determination that or subbasins to protect the health, safety and plaintiffs have standing to maintain this welfare of the people of Oklahoma.” 82 declaratory judgment action. On July 15, 2003, O.S.Supp.2003, §1020.9A(A). the defendants filed a motion to dismiss for, among other grounds, lack of standing. The ¶14 A major groundwater basin designated motion was fully briefed. On September 25, as a sole source aquifer, the Arbuckle-Simpson 2003, the trial court heard arguments on the Groundwater Basin falls within the statutory dismissal motion and entered a minute order definition of a “sensitive sole source ground- overruling the motion. The trial court memori- water basin.” 82 O.S.Supp.2003, alized the September 25th ruling in a journal §1020.9A(B)(1). Presently, it is the only entry filed on October 6, 2003. sensitive sole source groundwater basin in the state. ¶21 The appellate record does not show that the intervenors directly challenged plaintiffs’ ¶15 Plaintiffs/appellants filed this action standing in their summary judgment filings. asking that the sensitive sole source ground- The dissenting opinion correctly notes that the water basin law be struck down as inconsistent answers filed by the municipal intervenors with the federal and state constitutions. They alleged that plaintiffs lacked standing as an moved for summary judgment. affirmative defense. But the dissenting opinion ¶16 The district court concluded that the reaches to find a standing challenge in the sensitive sole source groundwater basin law is attack on plaintiffs’ status as permit holders in valid and enforceable and entered summary the municipal intervenors’ cross-motion for judgment in favor of the defendants and inter- partial summary judgment. It also reaches to venors. Plaintiffs appealed. This Court find a standing challenge in the attack on retained the appeal. plaintiffs’ lack of economic injury in the municipal intervenors’ argument responding II. Standard of Review to plaintiffs’ summary judgment argument that plaintiffs have not suffered an unconstitu- ¶17 Summary judgment disposes solely of tional taking. issues of law which we review by a de novo standard. Manley v. Brown, 1999 OK 79, 989 ¶22 The appellate record shows that defen- P.2d 448, 455. Our de novo review is plenary, dants directly challenged plaintiffs’ standing independent and non-deferential. Gladstone v. before the trial court. The trial court ruled Bartlesville Indep. Sch. Dist. No. 30, 2003 OK 30, against the defendants on their challenge to ¶5, 66 P.3d 442, 445. plaintiffs’ standing in a journal entry filed of

1618 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 record. Intervenors did not file a motion to dis- ¶26 It is a basic principle that water is a nat- miss plaintiffs’ petition for lack of standing nor ural resource, Sheldon v. Grand River Dam Auth., did they directly challenge plaintiffs’ standing 1938 OK 76, 76 P.2d 355; Anderson-Prichard Oil to maintain this declaratory judgment action in Corp. v. Okla. Corp. Comm’n, 1951 OK 234, 241 their summary judgment filings. The plaintiffs P.2d 363; Kline v. Okla. Water Resources Bd., 1988 filed their motion for summary judgment. The OK 18, 759 P.2d 210, which the state may regu- municipal intervenors filed a response to the late for the health, welfare and safety of the summary judgment motion and a cross- people. See, Wyoming v. Colorado, 259 U.S.419, motion for partial summary judgment. The cit- 42 S.Ct. 552, 66 L.Ed. 999 (1922); Fort Gratiot izen intervenors filed a response to the sum- Sanctuary Landfill, Inc. v. Mich. Dept. Of Natural mary judgment motion. The trial court pro- Resources, 504 U.S. 353, 365, note 6, 112 S.Ct. ceeded to summarily dispose of the merits of 2019, 2026-2027, 119 L.Ed.2d 139 (1992). The the controversy argued by all the parties on Legislature may exercise its police power to summary judgment. protect the state’s water irrespective of the ¶23 The trial court’s ruling on plaintiffs’ rights of private owners of the land most standing is not drawn by implication from immediately concerned. Hudson County Water mere silence. It is clear in this record that the Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, trial court recognized plaintiffs’ standing, as it 531, 52 L.Ed. 828 (1908). For the health, welfare had earlier determined, when it allowed the and safety of its citizens, the Legislature may plaintiffs to be heard on the merits and when it regulate a landowner’s use and enjoyment of proceeded to consider and rule upon the mer- water resources to prevent waste and infringe- its of the summary judgment filings. ment on the rights of others. Franco-American IV. Exercise of police power to regulate Charolaise, LTD v. Okla. Water Resources Bd., water resources 1990 OK 44, 855 P.2d 568, 576; Kline v. Okla. Water Resources Bd., 759 P.2d at 217. ¶24 Defending the constitutionality of the challenged legislation, the Attorney General V. Oklahoma’s Groundwater Statutes argues that the measure is an exercise of the ¶27 The OWRB asserts that the Legislature, Legislature’s police power for the purpose of in regulating groundwater, has classified regulating the state’s water resources. Police groundwater basins as minor basins and major power is an attribute of state sovereignty. Gib- basins and that the challenged legislation is a bons v. Missouri K. & T. R. Co., 1930 OK 108, 285 further classification for the protection of P. 1040, Syllabus by the Court. It is generally an basins that supply drinking water for commu- inherent power of the state legislature that nities. The OWRB argues that the challenged extends to the whole system of internal regula- legislation is sound management and steward- tion by which the state preserves public order, ship of unique aquifers within the current reg- prevents offenses against the state, and insures ulatory system of allocation for reasonable use. to the people the enjoyment of rights and property reasonably consistent with like enjoyment ¶28 An overview of the groundwater of rights and property by others. Id. Through statutes is helpful in our analysis of the chal- the exercise of its police power, the Legislature lenged legislation. In 1949, the Oklahoma Leg- determines what is necessary for the peace and islature enacted the Oklahoma Ground Water welfare of the people. Edmondson v. Pearce, Law to regulate the taking and use of ground 2004 OK 23, ¶34, 91 605, 623. water in order “to conserve and protect the 7 ¶25 The Legislature may exercise its police ground water resources of the State.” The 1949 power to regulate any property within the law restricted landowners to withdrawing jurisdiction of the state when regulation is nec- only the safe annual yield of a basin as meas- essary to secure the general safety, the public ured by its average annual recharge. 82 welfare, and the peace and good order of the O.S.1951, §1015; Okla. Water Resources Bd. v. community. Gibbons, 285 P. at 1042. The Legis- Texas County Irrigation and Water Resources, lature may exercise its police power to regulate 1984 OK 96, ¶6, 711 P.2d 38, 41. The Legislature the use and enjoyment of property when the determined that the ground water regulation free exercise of such use is detrimental to the served “the interest of agricultural stability, public interest. Phillips Petro. Co. v. Corp. domestic, municipal, industrial and other ben- Comm’n, 1956 OK 313, 312 P.2d 916. eficial uses, general economy, health and wel-

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1619 fare of the State and its citizens. . . .” 82 ed upon in a general law as required under art. O.S.1951, §1003. 5, §59, citing Grant v. Goodyear Tire & Rubber Co., 2000 OK 41, 5. P3d 594. ¶29 In 1972, the Oklahoma Legislature repealed the 1949 Ground Water Law8 and ¶32 The Oklahoma Constitution, art. 5, §59 enacted a new statutory scheme “to utilize the imposes two distinct restrictions upon law- groundwater resources of the state.” The 1949 makers. It requires that “laws of a general conservation policy was replaced by a reason- nature” must operate uniformly throughout able utilization policy. Okla. Water Resources Bd. the state. It also prohibits the enactment of a v. Texas County Irrigation and Water Resources, “special law” where a “general law” can be 711 P.2d at 41. The 1972 legislation provided applied. Article 5, §59 reads: for “the allocation for reasonable use based on hydrologic surveys of fresh ground water Laws of a general nature shall have a uni- basins or subbasins to determine a restriction form operation throughout the State, and on the production, based upon the acres over- where a general law can be made applica- lying the ground water basin or subbasin.” 82 ble, no special law shall be enacted. O.S.Supp.1972, §1020.2. In the 1972 enactment, ¶33 Article 5, §59 was included in the origi- the Oklahoma Legislature declared that a nal Constitution of the State of Oklahoma. At water utilization policy was necessary for the statehood the meanings of the terms “law of a health and welfare of the state and its citizens. general nature,” “general law,” “special law” Id. and “uniform operation” were established.9 A ¶30 Enacted in the exercise of the Legisla- “law of a general nature” related to a subject of ture’s police power, the current groundwater common interest to the whole state. J. G. law, 82 O.S.2001, §§1020.1 et seq., is the 1972 Sutherland, Statutes and Statutory Construc- regulatory regime for the reasonable utilization 148-150 (1891). A “general law” related to tion of the state’s groundwater resources and a subject of common interest to the whole state the subsequent amendments thereto. The chal- and embraced the whole subject or a whole lenged amendments impose a moratorium class related to the subject.10 Id. Although it against the transfer of water for out-of-basin might have related to a subject of common municipal and public use and interject a con- interest to the whole state, a “special law” servation requirement to the utilization embraced particular persons or things of a regime. As amended, the groundwater law class but not the whole subject or whole class. requires a permit applicant to show that the Id. A law had “uniform operation” throughout withdrawal of water is not likely to degrade or a state when it related to a subject of common interfere with springs or streams emanating in interest to the whole state and the Legislature whole or in part from water originating from did not apply it to particular localities or pro- the sensitive sole source groundwater basin. hibit its operation in particular locations, even VI. The Okla. Const., art. 5, §59 though it did not practically operate in every part of the state. Id. ¶31 Plaintiffs/appellants contend that the challenged legislation is unjustifiably limited ¶34 Immediately after statehood, this Court to the Arbuckle-Simpson Groundwater Basin considered the uniformity restriction imposed without naming it and that the limitation is upon lawmakers by art. 5, §59. Anderson v. Rit- irrational and a subterfuge for a special law, terbusch, 1908 OK 250, 98 P. 1002, State ex rel. relying on Elias v. City of Tulsa, 1965 OK 164, Smith v. Brown, 1909 OK 199, 103 P. 762, and 408 P.2d 517. They argue that the classification Burks v. Walker, 1909 OK 317, 109 P. 544. In of “sensitive sole source groundwater basin” is Anderson, a statute establishing a procedure to invalid because it is not reasonably related to a collect taxes on omitted property was chal- valid legislative objective, citing Reynolds v. lenged as contrary to art. 5, §59 because it had Porter, 1988 OK 88, 760 P.2d 816. They further no practical application in the eastern half of argue that the withdrawal of water for out-of- the state, pre-statehood Indian Territory. basin use and the reduction in stream flow due Anderson determined the challenged statute to groundwater pumping could be addressed had uniform application across the state even on a statewide basis as was done in the though the dissimilarities in the governmental groundwater statutes, 82 O.S.2001, §§1020.1 – and industrial conditions in Oklahoma Territo- 1020.22, and that the subject could be legislat- ry and Indian Territory caused a difference in

1620 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 the statute’s application. In so ruling, Anderson classification must not be capricious or quoted Noffzigger v. McAllister, 12 Kan. 315: arbitrary and must be reasonable and per- tain to some peculiarity in the subject mat- Whenever a law of a general nature is ter calling for the legislation. As between passed by the Legislature for the whole the persons and places included within the state, and is not applied by the Legislature operation of the law and those omitted, to any particular locality thereof and has there must be some distinctive characteris- no words prohibiting its operation in any tic upon which a different treatment may particular locality thereof, it is a law of uni- be reasonably founded and that furnish a form operation throughout the state, with- practical and real basis for discrimination. in the meaning of the constitutional provi- Nichols v. Walter, supra. sion, although it may not practically have operation in every part of the state. ¶37 This Court has tested a plethora of statutes for conformity with the requirements Anderson, 1908 OK 250, ¶26, 98 P. at 1009. of art. 5, §59. Adhering to the art. 5, §59 princi- ¶35 In State ex rel. Smith v. Brown, a statute ples pronounced at statehood, our extant providing for the removal of sheriffs, consta- jurisprudence tests a legislative classification bles, marshals, police officers, and city and in a law of a general nature to determine if the county attorneys for failure to diligently distinction of the persons, entities or things enforce the prohibition laws was challenged as (the class) has a reasonable and substantial contrary to art. 5, §59 because it applied to basis and a sound and rational relation to the some but not all county, township and munic- subject of the legislation. See, Hudgins v. Foster, ipal officers. State ex rel. Smith determined the 1928 OK 243, ¶30, 267 P. 645, 649 (striking challenged statute had uniform application down a statute abolishing township offices in across the state because it applied to all the forty-nine counties but not the remaining local officers in the class of officers who had twenty-eight counties for lack of reasonable the duty to enforce the prohibition laws. basis); Roberts v. Ledgerwood, 1928 OK 723, ¶18, 272 P. 448, 452 (striking down a statute impos- ¶36 In Burks v. Walker, a statute establishing ing the duty to oversee road and bridge work a county superior court in each county that on county commissioners, with incremental had at least 30,000 inhabitants and a city with salaries, only in counties that fall within spe- 8,000 inhabitants was challenged as a special cific population levels as arbitrary and without law with local application. Recognizing that a relation to the subject matter of the statute); law of a general nature may have uniform Sheldon v. Grand River Dam Authority, 1938 OK operation throughout the state even though it 76, ¶17, 76 P.2d 355, 361 (upholding a statute operates only upon a legislative class, Burks, creating a reclamation district for the Grand 1909 OK 317, ¶23, 109 P. at 549, explained: River Dam Authority as reasonable with In order for a law to be general in its nature sound and rational relation to the subject of the and to have a uniform operation, it is not legislation); Elias v. City of Tulsa, 1965 OK 164, necessary that it shall operate upon every ¶¶9-10 and 20, 408 P.2d 517, 519-520 (striking person and every locality in the state. A down a statute providing for a city-county law may be general and have a local appli- cooperative planning commission in cities cation or apply to a designated class if it within specific population limits fitted to Tulsa operates equally upon all the subjects only as arbitrary and a subterfuge); Issacs v. within the class for which it was adopted. Oklahoma City, 1966 OK 267, 437 P.2d 229 To determine whether or not a statute is (upholding population-based classification for general or special, courts will look to the urban redevelopment as reasonable); Tulsa statute to ascertain whether it will operate Expo. & Fair Corp. v. Bd. Of County Comm’rs, uniformly upon all the persons and parts 1970 OK 67, ¶22, 468 P.2d 501, 507 (striking of the state that are brought within the down a statute authorizing county fairs only in relation and circumstances provided by it. counties having a population between 100,000 People ex rel. v. Hoffman, 116 Ill. 587; Nichols and 200,000 as not related to the subject mat- v. Walter et al. 37 Minn. 264, 33 N.W. 800. ter); Reynolds v. Porter, 1988 OK 88, 760 P.2d 816 And the operation is uniform if it affects (striking down medical negligence statute of alike all persons in like situation. But limitations as special law prohibited by art. 5, where a statute operates upon a class, the §46); and Kerley v. Uniroyal Goodrich Tire Co.,

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1621 2000 OK 62, 10 P.3d 230 (striking down work- ferent from other major groundwater basins in ers’ compensation statute allowing only self- this state. insured employers to recoup overpayment of ¶41 We must next determine whether the temporary disability as underinclusive class classification is rationally related to the pur- legislation). Under the reasonable basis and pose of the legislation. Plaintiffs/appellants the rational relation tests, the court must deter- assert that the actual purpose of the challenged mine if the legislative classification rests upon legislation is to stop the transport of water to a reasonable difference that bears a rational Canadian County municipalities for municipal relation to the purposes and goals of the legis- and public use without interfering with other lation, i.e., does the classification further a temporary permits. The legislation does not legitimate state purpose or interest. single out Canadian County municipalities. It VII. Analysis of the challenged legislation finds that a moratorium on the issuance of under the Okla. Const.,art. 5, §59 temporary permits on “sensitive sole source groundwater basins” is needed to protect the ¶38 The essence of plaintiffs’/appellants’ health, safety and welfare of the people of challenge is that the sensitive sole source Oklahoma. 82 O.S.Supp.2003, §1020.9A(A). groundwater legislation creates an invalid And, it imposes a moratorium on the issuance classification prohibited by the Okla. Const., of temporary permits for out-of-basin munici- art. 5, §59. This challenge requires us to inquire pal or public use until it is determined that fur- into 1) the nature of the legislation, 2) the leg- ther removal of water from the “sensitive sole islative classification and 3) the uniformity of source groundwater basin” will not reduce the its operation. flow of its springs and streams. 82 ¶39 As to its nature, the sensitive sole source O.S.Supp.2003, §1020.9A(B)(2). groundwater basin legislation relates to the ¶42 It is undisputed that the source of safe state’s water resources that supply safe drink- drinking water for in-basin use may be ing water to the basin area and to all the peo- degraded by the transfer of large quantities of ple who live, work or visit there. Unquestion- water for out-of-basin use. It is also undisput- ably, safe drinking water is a subject of com- ed that public use is one of the largest uses of mon interest throughout the state and a right- the Arbuckle-Simpson groundwater. Antici- ful subject for legislative regulation. The sensi- pating that the transfer of water to out-of-basin tive sole source groundwater basin legislation municipalities might interfere with the avail- is a law of a general nature. ability of safe drinking water for in-basin use, ¶40 As to the legislative classification of the Legislature decided to preserve the sources “sensitive sole source groundwater basin,” we of safe drinking water for in-basin use until must determine whether there are distinguish- completion of a hydrological study and deter- ing characteristics which make “sensitive sole mination of a maximum annual yield. Accord- source groundwater basins” really different ingly, we conclude that the purpose of the chal- from other groundwater basins in the state. lenged legislation is to conserve the sole source The Legislature determined that a sensitive of safe drinking water for use in the area over- sole source groundwater basin is different lying the sensitive sole source groundwater from other major groundwater basins by until a hydrological study is completed and a virtue of the EPA’s “Sole Source Aquifer” des- maximum annual yield is determined that ignation. The EPA designation protects all ensures the withdrawal of water will not inter- within a sole source aquifer area that depend fere with the in-basin drinking water supply. upon the aquifer for safe drinking water. The ¶43 Different treatment of in-basin public designation allows the EPA to review federal use and out-of-basin public use does not make financially assisted projects in the out-crop the legislation a special law because the in- area of a sole source aquifer or its streamflow basin area and out-of-basin areas are not in like source area to ensure projects do not contami- situations. The in-basin area relies solely on the nate the aquifer and threaten public health. 54 aquifer for drinking water. The bases for the F. R. 39230. We conclude the EPA’s designation EPA designation are that the drinking water in of “Sole Source Aquifer” is a substantial and the designated sole source aquifer area is pro- reasonable distinction that makes the “sensi- vided by the Arbuckle-Simpson aquifer and tive sole source groundwater basin” class dif- that there are no existing alternative drinking

1622 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 water sources nor cost-effective sources capa- does not destroy its uniform operation ble of supplying the drinking water demands throughout the state. for the designated area. 54 F.R. 39230. The dis- ¶46 In summary, the challenged sensitive tinction between in-basin use and out-of-basin sole source groundwater basin legislation is a use has a rational relation to the purpose of the legislation. We conclude that the classification law of a general nature. The legislative classifi- of groundwater basins designated by the EPA cation of “sensitive sole source groundwater as “Sole Source Aquifers” is rationally related basins” is reasonable and rationally related to to the conservation of safe drinking water for the purpose of the legislation. The sensitive use in the overlying area. sole source groundwater basin legislation operates uniformly throughout the state upon ¶44 As to its uniform operation, we must all major groundwater basins designated, determine whether the “sensitive sole source presently and in the future, as sole source groundwater basin” classification limits the aquifers. The challenged legislation is a valid legislation’s application to particular locations general law under the Okla. Const., art. 5, §59. or particular persons thereby preventing Because the challenged legislation is a general statewide uniform application of the law. law, we need not consider plaintiffs’/appel- Plaintiffs/appellants argue that the class lants’ argument on the notice requirements for embraces only the Arbuckle-Simpson Ground- a special law under the Okla. Const., art. 5, §32. water Basin and those persons having an interest in the overlying land. They urge that the VIII. The Okla. Const., art. 5, §46 class is not open to any other groundwater ¶47 Plaintiffs/appellants challenge the sen- basins in the state that the EPA may in the sitive sole source groundwater basin legisla- future designate as sole source aquifers tion as contrary to art. 5, §46 of the Oklahoma because the legislation defines sole source Constitution.12 They contend that the moratori- aquifer designated by the EPA “as of the effec- um on contracts in the sensitive sole source tive date of this act.” We disagree. groundwater basin legislation is a special law 13 ¶45 The challenged legislation is framed in regulating municipal and county affairs. They general language to apply to the whole class of argue that the moratorium regulates municipal major groundwater basins designated by the and county affairs because it impacts the abili- Administrator of the EPA to be sole source ty of out-of-basin municipalities and counties aquifers in accordance with the Safe Drinking to enter into contracts for their public water Water Act, 42 U.S.C. §§300g and 300h-3(e). As supplies. They also argue it is a special law a general rule, a statute is applied prospective- because it applies to some but not all counties ly unless the language evidences an intent that and municipalities in the state and to only the it also be applied retrospectively.11 The statuto- Arbuckle-Simpson Groundwater Basin. ry language defining the “sensitive sole source ¶48 We have already determined that the groundwater basin” class as those basins des- challenged legislation relates to a subject of ignated sole source aquifers “as of the effective common interest throughout the state and that date of this act” expresses an intent that the it regulates the state’s water resources through legislation shall apply to any sole source the exercise of the state’s police power for the aquifer so designated prior to its effective date. health, welfare and safety of the public. Clear- However, we glean no intent, express or ly, regulation of groundwater resources for the implicit, from the legislation that it would not benefit of the public is a statewide concern. apply to any major groundwater basin in this Although we are mindful of the fact that water state which, in the future, the EPA designates supply is a basic concern of each of our politi- as a sole source aquifer. We conclude the sensi- cal subdivisions, we do not view the regulation tive sole source groundwater basin legislation of the state’s water resources as an affair of operates uniformly throughout the state upon counties, cities or towns under art. 5, §46. all major groundwater basins designated as Accordingly, we need not further consider sole source aquifers before and after its effec- plaintiffs’/appellants’ art. 5, §46 arguments. tive date and all persons brought within the circumstances provided by it. The fact that ¶49 We have also determined that the pur- there was only one groundwater basin desig- pose of the challenged legislation is to con- nated by the EPA as a “Sole Source Aquifer” serve the sole source of safe drinking water for when the challenged legislation was enacted in-basin use until a hydrological study is com-

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1623 pleted and a maximum annual yield is deter- 1210, quoted Gibbons v. Missouri, K & T. R. Co., mined that ensures the withdrawal of water 1930 OK 108, 285 P. 1040: will not interfere with the in-basin drinking [A]cts done in the proper exercise of the water supply. Obviously, §1020.9B was intend- police power, which merely impair the use ed to serve that legislative purpose. of property, do not constitute a taking IX. The Takings Clauses in the within the meaning of the constitutional U. S. Const., Fifth Amendment and the requirements as to the making of compen- Okla. Const., art. 2, §24. sation for the taking of property for public use, and accordingly do not entitle the ¶50 Plaintiffs/appellants argue that the sen- owner of such property to compensation sitive sole source groundwater basin legisla- from the state or its agents, or give him any tion constitutes a taking of private property right of action for the injuries sustained. In without just compensation contrary to the U.S. other words, regulations which the state, Const., Fifth Amendment, Takings Clause and in the exercise of its police power, author- the Okla. Const., art. 2, §24. We are not con- izes with respect to the use of property are vinced. The general rule is that the Legislature entirely independent of any question of may restrict the use and enjoyment of the compensation for such use. The question state’s water resources by exercise of its police of compensation has no influence in estab- power for the preservation of the public lishing them. The exercise of the police health, safety and welfare without compensat- power, therefore differs from the exercise ing the property owner. Franco-American Charo- of the right of eminent domain, which laise, LTD v. Okla. Water Resources Bd., 1990 OK involves the appropriation of private prop- 44, 855 P.2d 568, 576. The challenged legisla- erty to public use, and requires, in its law- tion regulates the state’s water resources ful exercise, pecuniary compensation for expressly “to protect the health, safety and the loss inflicted on the owner. welfare of the people of Oklahoma.” 82 O.S.Supp.2003, 1020.9A(A). It is well settled that the state, or its agents, in the exercise of its police power can ¶51 The Takings Clause of the Fifth Amend- extend this power only to such measures ment to the Constitution of the United States as are reasonable under all the circum- provides “nor shall private property be taken stances. The means adopted must bear for public use without just compensation.” The some real and substantial relation or be recent case of Tahoe-Sierra Preservation Council, reasonably necessary for the accomplish- Inc. v. Tahoe Regional Planning Agency, 535 U.S. ment of a legitimate object falling within 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002), the scope of the police power, and the law observed that the Fifth Amendment Takings or regulation must tend toward the preser- Clause requires compensation whenever the vation of public welfare, health, safety, or government appropriates private property for morals. a public interest, but it does not necessarily require just compensation where government See also, Phillips Petro. Co. v. Corporation Com- regulations “prohibit a property owner from m’n, 1956 OK 313, 312 P.2d 916 (holding that a making certain uses of her private property.” statute requiring a natural gas producer to Id. at 321-322. Whether a regulatory prohibi- make gas available to pump water for agricul- tion amounts to a taking under the Fifth ture irrigation at a price fixed by the Corpora- Amendment depends upon all the relevant tion Commission is not a regulation under the facts and circumstances. Id. at 322. police power but a taking of the producer’s property without due process of law and an ¶52 The Oklahoma Constitution, art. 2, §24 appropriation of the producer’s property with- provides that “[p]rivate property shall not be out just compensation); and Mattoon v. City of taken or damaged for public use without just Norman, 1980 OK 137, 617 P.2d 1347 (conclud- compensation.” While a governmental taking ing that the exercise of the police power to of private property for public use must be divert surface water onto one’s land must be compensated, a reasonable government regu- tested under the rule of reason and holding lation of the property is not compensable. Sun- that the enactment of a flood plain ordinance is tide Inn Operating Corp. V. State, 1977 OK 204, not a per se taking of private property for pub- 571 P.2d 1207, 1209. In this regard, Suntide, at lic use).

1624 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 ¶53 The challenged legislation prohibits the tinctions is peculiarly a legislative task” and OWRB from issuing temporary permits for such action by the Legislature is presumed out-of-basin municipal or public use until a valid. Id. hydrological study is completed and a maxi- ¶56 The “sensitive sole source groundwater mum annual yield is determined. It also basin” legislation does not relate to a funda- requires the OWRB, in considering applica- mental right grounded in the constitution nor tions for regular permits, to determine does it operate upon a suspect classification. whether a proposed use is likely to degrade or Equal protection analysis of the legislation interfere with springs or streams emanating does not require strict judicial scrutiny. We from water originating from a sensitive sole have already examined the legislation for pur- source groundwater basin. We view this mora- poses of art. 5, §59 and concluded that the torium on temporary permits as a temporary “sensitive sole source groundwater basin” restriction, at most, on the plaintiffs’/appel- classification has a reasonable basis and it is lants’ use of their water. We view the addition- rationally related to the purpose of the law. We al requirement on applicants for regular per- reach the same conclusions for purposes of mits to be a proper regulation of the state’s equal protection. The challenged legislation water resources in the exercise of the Legisla- does not deny plaintiffs/appellants equal pro- ture’s police power. We conclude that under tection of the laws. the facts and circumstances presented on summary judgment, the temporary moratorium on XI. Conclusion plaintiffs’/appellants’ proposed use of water ¶57 The utilization and the conservation of from the sensitive sole source aquifer and the the state’s water resources are rightful subjects additional permit requirement do not consti- for legislative regulation. The Oklahoma Leg- tute a taking of private property for public use islature not only has the power to regulate but under the constitutions of the United States also the profound responsibility to allocate this and the State of Oklahoma. precious natural resource for the benefit of the X. The Equal Protection Clause in the U. S. whole state. The state’s water resources is a Const., Fourteenth Amendment subject over which the Oklahoma Legislature must be vigilant and act with prudence for the ¶54 Plaintiffs/appellants complain that the benefit of all the citizens in the state. Unques- sensitive sole source groundwater basin classi- tionably, a statewide comprehensive policy for fication causes disparate treatment of both the utilization and the conservation of the landowners and permit applicants and holders state’s water is crucial to the health and wel- contrary to the U.S. Const., Fourteenth fare of every inhabitant in this state. We con- Amendment, Equal Protection Clause and Due clude the challenged groundwater legislation Process Clause. We do not agree. concerns a statewide interest and it operates ¶55 The United States Supreme Court has uniformly throughout the state upon the leg- fashioned a two-tier equal protection frame- islative class of “sensitive sole source ground- work. Equal protection analysis requires strict water basins” that is reasonable and rationally judicial scrutiny of statutes that operate to the related to the regulation of the state’s water peculiar disadvantage of a suspect class such resources. We hold the challenged legislation is as a class based on alienage or ancestry or that a valid general law under the Okla. Const., art. interfere with the exercise of a fundamental 5, §59. right grounded in the constitution such as the ¶58 The district court concluded that the right to vote, right to interstate travel and challenged legislation is “addressed to the rights guaranteed by the First Amendment. Arbuckle-Simpson Aquifer.”14 This conclusion Mass. Bd. Of Retirement v. Murgia, 427 U.S. 307, is inconsistent with our conclusions that the 312, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976). legislation is drafted in general terms and that Equal protection analysis of other statutes is it applies to any major groundwater basin that, the less stringent rational basis standard. The in the future, may be designated by the EPA as legislative class is examined for a rational rela- a sole source aquifer. Even so, the district court tion to the objective of the statute. Id. at 314. reached the correct result. Where the trial court The rational relation inquiry is a “relatively reaches the correct result for the wrong reasons relaxed standard reflecting the Court’s aware- or on incorrect theories, it will not be reversed. ness that the drawing of lines that create dis- Estate of Bartlett, 1984 OK 9, 680 P.2d 366; Dixon

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1625 v. Huiyan, 2000 OK 56, 10 P.3d 888. According- bands and wives, parents and children. He also explained that the subject of a statute may be general, but if the statute is limited in its scope, ly, we affirm the district court’s summary judg- it may be a special statute. Id. at 151. For instance, fees for local officers ment in favor of defendants/appellees and is a general subject and extends to every political subdivision in the state, but a statute prescribing fees for particular counties is a special intervenors/appellees. law on a general subject. Id. at 152. He further explained that a law on a subject general in nature may operate only upon a class if the class DISTRICT COURT’S SUMMARY has peculiar characteristics which require exclusive legislation. Id. at JUDGMENT AFFIRMED. 162. 11. Seal v. Okla. Corporation Comm’n, 1986 OK 34, ¶51, 725 P.2d 278, WATT, C.J., and LAVENDER, KAUGER (by 294. 12 Section 46 provides in part: separate writing), EDMONDSON, TAYLOR The legislature shall not, except as otherwise provided in and COLBERT, JJ., concur. this Constitution, pass any local or special law . . . Regulating the affairs of counties, cities, towns, wards, or school OPALA, J., (by separate writing) dissents. districts . . . . 13. Title 82 O.S.Supp.2003, §1020.9B reads: A. A moratorium is hereby established on any municipality HARGRAVE, J., not participating. or other political subdivision of this state prohibiting any such entity from entering into a contract or other agreement which WINCHESTER, V.C.J., disqualified. would lead to municipal or public water supply use of groundwater from a sensitive sole source groundwater basin as defined 1. Identified herein are only those counsel of the parties whose in Section 1 of this act. Said moratorium shall apply only to names appear on the appellate paperwork. municipalities or political subdivisions which are located out- 2. Senate Bill No. 288 of the First Regular Session of the Forty- side of any county that overlays in whole or in part said basin or Ninth Oklahoma Legislature, 2003 Okla. Sess. Laws, ch. 365. subbasin. 3. 42 U.S.C. §§300g and 300h-3(e) authorize the Administrator of B. Said moratorium shall be in effect until such time as the the EPA 1) to determine that an area has an aquifer which is the sole Oklahoma Water Resources Board conducts and completes a source or principal source of drinking water for the area and which, if hydrological study and approves a maximum annual yield that contaminated, would create a significant hazard to public health and will ensure that any permit for the removal of water from a sen- to publish notice of the determination in the Federal Registry and 2) to sitive sole source groundwater basin will not reduce the natural withhold federal financial assistance for any project that may contam- flow of water from springs and streams emanating from said inate the sole source aquifer. On September 25, 1989, the EPA Admin- basin or subbasin. istrator designated a portion of the Arbuckle-Simpson Aquifer system 14. The district court entered the following conclusions in the as a sole source aquifer, determining that 1) the aquifer supplies all of summary judgment order on appeal: the public and domestic water consumed in an area comprising por- 1. There is no substantial controversy as to any material facts tions of Johnston, Murray and Pontotoc counties, 2) there is no exist- and Defendants and Intervenors are, as a matter of law, entitled ing alternative drinking water source or combination of sources which to judgment. provides fifty percent or more of the drinking water to the area, and 3) 2. The Arbuckle-Simpson Aquifer is a unique aquifer in the there is no available cost-effective source capable of supplying the State of Oklahoma. drinking water demands for the designated area. Notice of the EPA 3. The challenged law advances legitimate state interests in designation is published at 54 F.R. 39230. the protection of waters of the Arbuckle-Simpson Aquifer. Federal funds are available to protect an area located within a des- 4. Because the Simpson-Arbuckle is unique, and thus there is no ignated sole source aquifer. 42 U.S.C. §300h-6. The area to be protect- similarly situated aquifer in Oklahoma, the challenged statutes, ed must be identified as a critical aquifer protection area by the fol- though having local application, are nevertheless general laws, lowing criteria: 1) vulnerability of the aquifer to contamination due to and thus advance public notice was not required, pursuant to hydrogeologic characteristics, 2) number of people using the aquifer Okla. Const. Art. 5 §32, prior to their enactment. As a general as a drinking water source, 3) economic, social and environmental law addressed to the Arbuckle-Simpson Aquifer, the chal- benefits to the area by maintaining high quality drinking water, and 4) lenged enactment can lawfully treat waters from that aquifer economic, social and environmental costs due to degradation of the in a manner different from waters in other aquifers in the quality of the water. 42 U.S.C. §300h-6(d). State. Such different treatment (temporary moratoria on licenses 4. This dispute does not involve the landowners’ rights to the and contracts and required criterion) does not convert the gen- water as provided in 60 O.S.2001, §60. Landowners have a statutory eral statute into a special or local law. right to withdraw groundwater for domestic use without a permit. 82 5. The challenged enactments do not violate Plaintiff’s equal O.S.2001, §1020.3. protection right. 5. Apparently, the Canadian County municipalities plan to trans- 6. The challenged enactments do not constitute a violation of port the water through some eighty miles of pipeline from the Arbuck- due process nor an unconstitutional taking of property. le-Simpson Groundwater Basin to Canadian County. The cost of the (Emphasis added.) pipeline project is estimated to be between $150 million and $200 million. 6. See footnote 2 supra. KAUGER, J., with whom Watt, C.J., and 7. 1949 Okla. Sess Laws, ch. 11, §3, codified at 82 O.S.1951, §1003. 8. 1972 Okla. Sess. Laws, ch. 248, §23. Edmondson, J., join, concurring: 9. We read constitutional provisions to give effect to the intent of the framers and the people in adopting them. Boswell v. State, 1937 OK ¶1 I agree with the majority that the statutes 727, 74 P.2d 940. J. G. Sutherland, Statutes and Statutory Construction in question are not unconstitutional. This 144 (1891) observed that in the second half of the Nineteenth Century, several state constitutions required statewide uniform operation of result is governed by our precedents begin- laws of a general nature. The provision was intended to require just ning in 1909 with Burks v. Walker, 1909 OK and equal laws and to prevent, as far as possible, enactments which were not such. Id. It was intended to prevent the granting of privileges 317, ¶23, 109 P. 544 in which we said: to any citizens or class of citizens which was not granted to all the citizens upon the same terms. Id. at 151. The frequency and inconven- “In order for a law to be general in its ience of local and special legislation in public acts led to the adoption nature and to have a uniform operation, it of the uniformity requirement. Id. at 147. 10. Sutherland at 147. Sutherland explained that legislation is gen- is not necessary that it shall operate upon eral in nature because the subject matter is of common interest to the every person and every locality in the whole state. Sutherland recognized that generic subjects of legislation state. A law may be general and have a may be divided. For instance, laws dealing with people may be divided into classes such as voters, sane and insane persons, minors, hus- local application or apply to a designated

1626 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 class if it operates equally upon all subjects terial to the law’s uniform operation through- within the class for which it was adopted. out the state.1 To determine whether or not a statute is 1. To hold otherwise in City of Enid would have effectively nulli- general or special, courts will look to the fied at least 51 population-based legislative enactments that regulate statute to ascertain whether it will operate the affairs of counties, cities, towns, wards and school districts, some uniformly upon all the persons and parts of which have been on the books since just after statehood. For statutes requiring the classification of cities, towns or counties by population, of the state that are brought within the see e.g.,11 O.S. Supp. 2004 §28-101 (Creating a municipal criminal relation and circumstances provided by it. court of record in cities with population greater than 65,000.) [Prede- cessor statute declared valid as a general law in Buchanan v. State, 30 People ex rel. v. Hoffman, 116 Ill. 587; Okla. Crim. 362, 236 P. 903 (1924)]; 20 O.S. 2001 §1201 (County law Nichols v. Walter et al, 37 Minn. 264, 33 libraries in counties of greater than 300,000 to be operated in accordance with rules promulgated by the Supreme Court.); 11 O.S. 2001 N.W. 800. And the operation is uniform if it §27-104 (Prohibiting municipal judges in cities with population greater affects alike all persons in like situation. than 200,000 from otherwise practicing law.); 11 O.S. 2001 §44-103 (Requiring Board of Adjustment in cities with population over 200,000 But where a statute operates upon a class, to meet at least twice per month.); 11 O.S. 2001 §45-102 (Members of the classification must not be capricious or municipal planning commission in cities with population over 200,000 entitled to per diem.); 11 O.S. 2001 §29-203 (Size of volunteer fire arbitrary and must be reasonable and per- departments set by population.); 11 O.S. 2001 §22-116 (Municipality tain to some peculiarity in the subject mat- with population of more than 350,000 has jurisdiction over all property within its limits belonging to the municipality, and may enact ordi- ter calling for the legislation. As between nances regulation real property it owns outside its corporate limits.); 2 the persons and places included within the O.S. 2001 §15-69 (Requiring board of directors of fair boards in counties with population of more than 55,000 to hold additional county operation of the law and those omitted, fairs and stock shows.); 63 O.S. 2001§1-203 (Setting minimum salary there must be some distinctive characteris- for county superintendent of health by population of county.); 63 O.S. 2001 §1-210 (Creating city-county board of health in counties with tic upon which a different treatment may population of more than 225,000, which contain at least one city of be reasonably founded, and that furnishes more than 150,000 people.); 62 O.S. 2001 §385 (Cities, counties, town- ships and school districts with population between 200,000 and a practical and real basis for discrimina- 300,000 may pay bonds on which the statute of limitation has run.); 62 tion. Nichols v. Walter, supra.” O.S. 2001 §331 (Requiring cities with more than 30,000 population to budget and levy for their Park Budget Account.); 51 O.S. 2001 §10 (Pro- ¶2 The Burks test was very recently reaf- hibiting appointments to fill vacant county offices only in counties with a population of more than 600,000.); 50 O.S. 2001 §42 (Defining firmed in City of Enid v. Public Employees allowed cemetery placements by population of nearest city, and Relations Board, 2006 OK 16, ¶15, __ P.3d __. exempting cities with population over 300,000 from statutory requirements where such a matter would be covered by a city planning com- There the question of what constituted a class mission.); 28 O.S. 2001 §1103.1 (Exempting counties with a population for the purposes of determining whether a leg- of more than 400,000 from hiring an executive director for economic development program.); 11 O.S. 2001 §16-302 (Municipalities with less islative enactment was a special law barred by than 1,000 population and no charter required to elect officers and con- the Oklahoma Constitution, art. 5, §46 was sider initiative questions and biannual meeting, unless otherwise set of a regulation election.); 11 O.S. 2001 §34-101 (Setting maximum num- considered. We said in ¶15: ber of hours a reserve police officer may work by the size of the municipality.); 12 O.S. 2001 §1206.1 (Excluding municipalities of less than “Thus, in Burks, the Court created a two- 60,000 from having to contribute financially to the acquisition of part, rational-relationship test to deter- rights-of-way for state highways.); 65 O.S. 2001 §158.1 (Limiting powers of library commission in counties with less than 200,000 persons.); mine whether a population-based classifi- 65 O.S. 2001 §4-206 (Setting minimum qualifications of librarians cation was a special or general law. The based on population of the county in which the library is located.); 65 O.S. 2001 §1-104 (Defining types of libraries by the population of their Court has used this test in numerous cases location.); 19 O.S. 2001 §11 (Minimum population for the creation of a involving constitutional challenges to pop- new county.); 3A O.S. 2001 §207 (Municipalities with a population of less than 1,000 not to receive horse racing tax proceeds.); 11 O.S. 2001 ulation-based legislation under Okla. §17-105 (Municipalities with more than $25,000 in income but less than Const., art. 5, §§46 and 59.” 2,500 in population held to less stringent accounting standards then municipalities with more than 2,500 population.); 19 O.S. 2001 §215.36 In both Burks and City of Enid, the Court (Requiring counties with more than 300,000 population to furnish Dis- trict Attorney with equipment and personal to create a computer noted the application of the two-part test based microfilm service.); 19 O.S. 2001 §1202 (Defining “rural”, for the applied regardless of whether the classification purposes of the Rural Ambulance Service Districts Act, as a municipality with a population of less than 8,500.); 27A O.S. 2001 §2-5-103 is challenged under the Okla. Const. art. 5, (Requiring cities of less than 300,000 to obtain prior approval as to §§46 or 59 or both. In City of Enid, the number feasability before enforcing stricter municipal clean air standards.); 27A O.S. 2001 §2-10-1001 (Approval of applications for a solid waste of cities which fell into the classification was management station by counties with less than 20,000 population immaterial because the test for constitutionali- requires previous placement on a county plan.); 62 O.S. Supp. 2004 §842 (Using county population to set formula for maximum amount of ty is not numerical, but rather whether the funds available to the county under the Oklahoma Local Development classification is clearly capricious, arbitrary, and Enterprises Zone Incentive Leverage Act.); 62 O.S. Supp. 2005 §856 (Using different funding formula under the Local Development and wholly unrelated to the Act. The same test Act depending on wether or not the city has more or less than 50,000 applies here, also making the fact that there is population.); 62 O.S. Supp. 2003 §885 (Housing reinvestment districts only one ground water basin designated by the may only be created in cities and counties with population of less than 300,000.); 62 O.S. 2001 §871 (Defining municipality for the purposes of EPA as a “Sole Source Aquifer” wholly imma- the Oklahoma Rural Housing Incentive District Act as a city or town

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1627 with a population of less than 40,000 in a county with a population of governmental Relations which may only be filled by officers from less than 75,000.); 62 O.S. 2001 §2102 (Defining community for the pur- municipalities meeting certain population requirements.); 69 O.S. 2001 poses of the Industrial Facilities Development Act as a county, city §316 (Including all roads within the incorporated limits of a munici- ,town or place with a population of less than 7,000.); 11 O.S. Supp. 2004 pality with a population of less than 2,500 in the certification of coun- §2-104 (Making population classification for the purposes of deter- ty road milage.); 68 O.S. Supp. 2005 §3604 (Permitting municipalities mining what territory may be created in a plat for a new municipali- with a population of less than 100,000 to receive up to 25% of the ty.); 11 O.S. Supp. 2004 §3-101 (Requiring petition for a new town to amount of a payment to a qualified establishment in the municipality contain “the appropriate documentation to prove the territory within under the Oklahoma Quality Jobs Program Act.); 68 O.S. 2001 §706 five miles of the corporate limits of a municipality having a population (Portioning special fuel tax revenue by population.); 68 O.S. 2001 of more than 200,000 has historically been identifies as a community of §500.7 (Apportioning diesel fuel tax revenue by population.); 68 O.S. people residing in compact form”.); 2 O.S. 2001 §15-113 (Requiring city 2001 §500.6 (Apportioning gasoline tax revenue by population.); 36 of 20,000 or more to have representation on county fair board.); 63 O.S. O.S. 2001 §6220.1 (Adjusters in municipalities with less than 6,000 pop- Supp.2005 §2843.1 (Providing for suspending the collection of the ulation are not prohibited from having pecuniary interest in entity required wireless 911 fee in counties with a population of less than providing reconstruction services.); 47 O.S. Supp. 2005 §1140 (Classi- 30,000 where the public agency has not yet deployed service.). fying counties and municipalities by population for purposes of plac- For statutes permitting. but not requiring, different action based ing motor vehicle agents.); 59 O.S. Supp. 2004 §567.4 (Requiring at on a population classification. See e.g.,11 O.S. 2001 §39-103.1 (Permit- least members of the Oklahoma Nursing Board to be from counties ting, but not requiring, municipalities with a population greater than with less than 40,000 population.); 63 O.S. Supp. 2004 §142.4 (Munici- 1,500 to create and levy for improvement districts.);19 O.S. Supp.2004 §339.6 (Permitting, but not requiring, only commissioners in counties palities of less than 3,000 population exempt from filing fees under the with a population greater than 500,00 to set a juvenile curfew to apply Underground Facilities Damage Prevention Act.); 19 O.S. 2001 §901.57 to unincorporated areas of the county.); 11 O.S. 2001 §13-101 (Permit- (Calculating formula for the distribution of funds under the Rural Fire ting, but not requiring cities or towns with a population equal to or Protection Program Fund Act by population.). greater than 2,000 to frame a charter.); 10 O.S. 2001 §1050A (Authoriz- ing the appointment of an assistant juvenile officer only in those counties having a population between 24,000 and 40,000.); 18 O.S. 2001 OPALA, J., dissenting. §1324.2 (Defining “rural area” for the purposes of the Rural Water, Sewer, Gas and Solid Waste Management Districts Act as an area that ¶1 The court upholds groundwater legisla- “may” include portions of a corporate limit of any municipality hav- tion enacted in 20031 as free from state and fed- ing a population of less than 10,000.); 20 O.S. 2001 §1304A (Permitting, but not requiring, the district courts in counties with a population of eral constitutional taint. I recede from today’s greater than 200,000 to publish their dockets in a daily newspaper paid pronouncement for two reasons: (1) there is for by the court fund.); 19 O.S. 2001 §951 (Authorizing counties with a population of greater than 3000,000 to create a county retirement sys- here no record trail that the dispositive thresh- tem.); 19 O.S. 2001 §941 (Authorizing counties with a population of old issue of standing was ever considered and greater than 300,000 to install and operate county parking lots.); 19 O.S. 2001 §565.1 (Authorizing county sheriff in counties with a popu- expressly passed upon in advance of the lation of greater than 40,000 to establish and operate a bureau of iden- statute’s judicial testing for constitutional tification.); 68 O.S. Supp. 2002 §1370.9 (Permitting only counties with a population of less than 200,000 to levy a lodging tax of up to 5%.); 20 orthodoxy, and (2) the court’s opinion imper- O.S. 2001 §1202 (Law library trustees in counties with a population of missibly extends the text and outer sweep of greater than 300,000 authorized to suspend or change the amount of payments to the State Law Library Revolving Fund.); 19 O.S. 2001 §547 the challenged statute before subjecting its (Setting maximum number of hours county reserve sheriffs may work expanded contours to constitutional testing. In by population of the county.); 19 O.S. 2001 §645 (Town or city having this public-law controversy I would first afford less a population of less than 5,000 may designate county treasurer has the official treasurer of the town or city.); 11 O.S. Supp. 2004 §36-113 the trial court its missed opportunity to cure (Board of County Commissions may construct, improve, repair or the deficiency (in the record) by exploring and maintain streets in municipalities having population of less that 5,000, and in municipalities of less than 15,000 if the county has a sales tax deciding the standing issue before any other earmarked for road repair.); 11 O.S. 2001 §37-223 (Municipalities of less issue is reached on review. than 2,500 may pay for their share of school assessments with building bonds or the proceeds of a building tax levy.); 19 O.S. Supp. 2004 §215.30 (Counties with population of 400,000 or more permitted to I supplement the county District Attorney’s salary.). It arguably would have voided at least an additional 19 statutes in THE COURT HAS FAILED TO DIRECT which the legislature has made a distinction based on population for THAT A TRIAL COURT’S DISPOSITION the purpose of facilitating state services through counties or cities. See e.g., 17 O.S. 2001 §40.1 (Corporation Commission required to establish OF THE THRESHOLD STANDING ISSUE a regional office in each municipality having a population greater than BE SECURED BEFORE THE 250,000); 68 O.S. Supp.2005 §2887 (Exempting retirement communities in municipalities with a population of greater than 500,000 from the GROUNDWATER LAW IS TESTED FOR payment of ad valorem taxes.); 19 O.S. 2001 §866.1 (Counties in which CONSTITUTIONAL ORTHODOXY there is no city of more than 200,000 may created a county planning and zoning commission.); 74 O.S. 2001 §2901.2 (Providing that ¶2 We cannot reach the alleged infirmity of between 65% and 75% of the expenditures from the Oklahoma Hous- ing Trust Fund shall be made in counties with a population of less than the challenged 2003 groundwater legislation in 490,000.); 75 O.S. Supp. 2004 §503 (Requiring the Governor and Lt. advance of a showing that the trial court con- Governor to each appoint a member of the small business regulatory committee from municipalities with a population of 300,000 or more, sidered and passed upon two separate chal- and the President Pro Tempore of the Senate and the Speaker of the lenges to the plaintiffs’ standing.2 These chal- House to each appoint one member from municipalities with a population of less than 300,000.); 74 O.S. 2001 §5013.2 (Giving preference in lenges were made at different stages of sum- the expenditure of funds from the Minority Business Development mary process. The first was pressed at the pre- Program Fund to applicants with an ability to aid minority owned businesses located in communities with populations of less than intervention stage when the defendants 10,000.); 74 O.S. 2001 §910 (Requiring all counties with a population of (Water Board and Duane Smith) moved to dis- less than 400,000 to become a participating employer in the Oklahoma miss.3 The second was interposed by the inter- Public Employees Retirement System no later than January 1, 1974.); 4 74 O.S. 2001 §480 (Creating seats on the Advisory Committee on Inter- venors.

1628 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 ¶3 Standing, which presents here a thresh- today, would relegate the mandatory standing old question, cannot be “’inferred argumenta- inquiry to the exclusive concern of the trial tively from averments in the pleadings’5 but courts and leave nothing for reviewing tri- rather ‘must affirmatively appear in the bunals but to rubber stamp the lower court’s record.’”6 Because standing will not be pre- decision in cases, such as this one, in which the sumed from a silent record, we look to the presence of standing appears to be satisfied paper trail of a meaningful nisi prius inquiry only to the court of first instance. I would not that would reveal the issues of law or fact, or abdicate this court’s reviewing responsibility both, that were inquired into and resolved by accepting as final and irreversible the trial below. There must be a record trail of an court’s resolution of that threshold issue. express judicial finding of standing in a judge- ¶7 Standing must be satisfied whether the signed journal entry. parties call it to the court’s attention or not.11 ¶4 There is here absolutely no paper trail Even if the parties fail to raise the issue, stand- of any kind that informs us of the decisional ing’s factum cannot be drawn from vacuity. process employed in disposing of the stand- The court has an obligation to pursue the ing issue. The trial court may have indeed inquiry sua sponte until it is satisfied that the denied the dismissal quest, but its order does plaintiffs meet the law’s test. In the absence of not squarely and expressly address itself to the a re-inquiry into standing on an adequate standing challenge.7 There is no express men- record, I cannot and do not join today’s pro- tion in the order disposing of the first chal- nouncement insofar as it resolves constitution- lenge that affirmatively deals with that issue al attacks in advance of strict necessity.12 More- or enlightens us on whether standing presents over, when resolving a question of public law, an issue of law or fact, or both. In none of the it is this court’s duty to invoke sua sponte the trial court’s orders is there an entry that correct legal norms that are dispositive of the 13 addresses itself to the second standing chal- issues pressed on review. 8 lenge. In short, there is no record trail shed- ¶8 In short, the microscopic nisi prius record ding any light on the judicial inquiry conduct- references the court is relying on today fall ed below into the standing issue and into the short of satisfying the unique nature of the extent of that inquiry with respect to either question we are obliged to inquire into before facts or law. passing on the constitutional orthodoxy of the ¶5 The court appears to regard as amply statutes attacked for fundamental-law infirmi- sufficient a trial court’s implied disposition of ty. The record trail relied on by the court today the standing issue in contrast to an express on- does not afford the means of discharging our the-record decision that would give an appel- duty to revisit the factum of standing. late court some insight into the nature and ¶9 Confronted, as we are, by the record’s extent of the conducted inquiry. There is here total silence, I would reverse summary judg- no need for today’s rush to judgment in ment and (a) give both parties an opportunity advance of proper standing resolution.9 This to re-present the unresolved threshold issue court should not be reaching any of the and secure its meaningful disposition upon pressed constitutional issues without first full inquiry and (b) afford the trial court the being assured of an affirmative on-the-record opportunity to cure the deficiency now in the trial-court decision in response to a standing record by expressly reaching and deciding the challenge. Because the two consecutive chal- plaintiffs’ standing in advance of resolving all lenges made below to plaintiffs’ standing pres- other issues. ent, on this record, an unresolved threshold II issue, the cause should be remanded for an in- depth inquiry and determination by the first- TODAY’S PRONOUNCEMENT instance court. IMPERMISSIBLY STRETCHES THE STATUTE’S TEXT THAT IS TO BE TESTED ¶6 The requirement of standing is at the FOR CONSTITUTIONAL FLAWS heart of the court’s inquiry into its power to entertain the litigation before it.10 It closely fol- ¶10 I strongly reject today’s judicial stretch- lows an inquest into its own jurisdiction. To ing of the text of the challenged groundwater accept as a sufficient record the tersely worded legislation. An appellate court commits grave entries in the memorials, as the court does error by extending the scope of the law to a

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1629 statewide dimension without any warrant in tracts for the sale of groundwater which would be impacted. The trial court heard the defendants’ motion on 25 September 2003; the order its language and then testing it for the presence denying the dismissal quest was entered 6 October 2003 (see infra note of constitutional flaws.14 7). It makes no explicit mention of the challenge to standing. 4. Municipalities and Citizens For The Preservation Of The ¶11 The statute does not appear to apply Arbuckle-Simpson Aquifer (CAPSA) were granted leave to intervene 3 October 2003. Standing was affirmatively challenged in the inter- beyond a single aquifer — the Arbuckle-Simp- venors’ answers and was clearly implicated in a response to the plain- son Groundwater Basin.15 Its terms target only tiffs’ motion for summary judgment. The Intervenors/municipalities’ 16 answers to plaintiffs’ petition state as an affirmative defense: “sensitive sole source” groundwater basin. At The Plaintiffs lack standing to bring this cause of action the time of the statute’s passage, the Arbuckle- AFFIRMATIVE DEFENSES* * * 17. Plaintiff Jacobs Ranch, LLC is an improper party and has no Simpson was the only major groundwater standing to bring this action in that Jacob’s Ranch, LLC holds no basin in the state which had been designated permits issued by the Defendant, OWRB nor does it own any as a sole-source aquifer. land based on which it can apply for an OWRB permit. Plaintiff Roos Resources, Inc. is an improper party and has no standing to bring this action because it holds no permits issued ¶12 Today’s search for constitutional ortho- by Defendant OWRB. doxy attributes to the challenged statute a gen- * * * 26. Since Plaintiffs are either permit holders or not qualified to eral application to all aquifers (in the state) by become applicants for Arbuckle-Simpson ground water permits, invoking no more than pure thin air for the Plaintiffs lack standing to assert Senate Bill 288 is unconstitu- pedestal of the statute’s textual extension. tional with respect to applicants for groundwater permits. CAPSA’s cross motion for partial summary adjudication states: III 12. Plaintiffs’ twelfth statement of fact is objected to as incorrect and misleading and is denied. Plaintiffs’ own papers show that Plaintiffs do not hold temporary, revocable permits to use SUMMARY groundwater for various municipal and light industrial purposes. Instead, Exhibits B and I to the Plaintiffs motion indicate that ¶13 I would counsel the court to defer its only Jacobs Enterprises holds interest in any temporary permits. pronouncement until the standing issue has It appears from the Plaintiffs own papers that they do not hold an interest in any of the permits that are claimed to have been been thoroughly explored and decided below. interfered with. Standing has been raised by the defendants Plaintiffs have made and can make no demonstration that they will suffer economic injury as a result of the implementation of and intervenors, but there is no clear record S.B. 288. The regulation of the use of ground water does not con- trail of its nisi prius disposition which would stitutionally infringe upon landowners’ vested property rights. As even the Plaintiffs acknowledge, they must first obtain a per- inform us about that issue and would tell us mit from the Oklahoma Water Resources Board before using whether it poses an issue of fact or law, or both. water for any non-domestic purpose. Though it is claimed, An affirmative decision on standing’s presence some, if not all of the Plaintiffs actually do not own a permit to use groundwater from the Arbuckle Simpson Aquifer nor do cannot be drawn by implication or from mere they have any contract to sell the water to anyone. silence, but must be shown by an affirmative Even though intervenors made this assertion in the context of pressing another theory, in public-law litigation this court is duty-bound to on-the-record ruling. supply the correct legal norm. If this fact issue be resolved in intervenors’ favor, it would be dispositive of plaintiffs’ claim for declarato- ¶14 I would not make today’s pronounce- ry relief. Amos v. Spiro Public Schools, 2004 OK 4, ¶7, 85 P.3d 813, 816. ment on the several important constitutional 5. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 608, 107 L.Ed.2d 603 (1990) (quoting Grace v. American Central Ins. challenges in reliance upon a judicial stretch- Co., 109 U.S. 278, 284, 3 S.Ct. 207, 210, 27 L.Ed. 932 (1883)). ing of the statute’s text that is facially confined 6. FW/PBS, Inc. v. City of Dallas, supra note 5, 493 U.S. at 231, 110 S.Ct. at 608 (quoting Mansfield C. & L.M.R. Co. v. Swan, 111 U.S. 379, to a single aquifer. 382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884)). 7. The trial court’s order states: 1. The challenged groundwater legislation is 82 O.S.Supp.2003 Having considered Defendants’ Motion to Dismiss and Brief in §§1020.9A, 1020.9B, 1020.9(A)(1)(d), (2)(d). Support, Plaintiffs’ Brief in Opposition to Motion to Dismiss, 2. Standing must be predicated on cognizable economic harm. and Defendants’ Reply Brief in Support of Defendants’ Motion Public Service Co. of Oklahoma v. Northeastern Oklahoma Elec. Co- to Dismiss, and the additional arguments presented by respec- op., Inc., 2002 OK 29, ¶6, 49 P.3d 80, 82; Oklahoma Gas & Elec. Co. v. tive counsel at the hearing, the Court HEREBY ORDERS AND Oklahoma Elec. Coop., Inc., 1973 OK 158, ¶12, 517 P.2d 1127, 1132. The DECREES that Defendants’ Motion to Dismiss is DENIED. plaintiff must show that he in fact suffered injury to a legally protect- 8. Even if the trial court’s order had specifically dealt with the ed interest. A person who seeks to invalidate a statute as unconstitu- standing issue, there is no legal ground for prohibiting later-included tional must establish standing by showing that the legislation sought parties from challenging standing as an affirmative defense. They are to be invalidated detrimentally affects his/her interest in a direct, entitled to a “full and fair opportunity” to litigate this threshold issue immediate and substantial manner. Public Service Co. of Oklahoma v. before a decision on the merits. Northeastern Oklahoma Elec. Co-op., Inc., supra at ¶6, 49 P.3d at 82; 9. The prudential rule of necessity, adhered to by all state and fed- Hendrick v. Walters, 1993 OK 162, ¶4, 865 P.2d 1232, 1237; Indepen- eral courts, commands that constitutional issues not be resolved in dent School Dist. No. 9 v. Glass, 1982 OK 2, 639 P.2d 1233, 1237; Mat- advance of strict necessity. This sine qua non principle of constitutional ter of Estate of Doan, 1986 OK 15, ¶7, 727 P.2d 574, 576. judicature is plainly ignored and patently offended today. In re Sny- 3. The defendants moved for dismissal on three grounds: (1) the der, 472 U.S. 634, 642-43, 105 S.Ct. 2874, 2880, 86 L.Ed.2d 504 (1985); case does not present a justiciable controversy and is not ripe; (2) the Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. plaintiffs fail to state a claim against Duane Smith upon which relief 466, 483, 80 L.Ed. 688 (1936)(Brandeis, J., concurring); State ex rel. Fent can be granted; (3) Roos Resources, Inc. lacks standing to challenge v. State ex rel. Okla. Water Res. Bd., 2003 OK 29, ¶ 12, 66 P.3d 432, 439. SB288. They urged plaintiffs’ claim was premature because (a) the “Embedded in the traditional rules governing constitutional adjudica- legislation had not yet become effective, (b) the temporary permits’ tion is the principle that a person to whom a statute may constitution- revalidation would not occur until six months later, at which time the ally be applied will not be heard to challenge that statute on the plaintiffs may not even hold temporary permits or choose to revali- ground that it may conceivably be applied unconstitutionally to oth- date them and (c) plaintiffs did not allege there were any actual con- ers, in other situations not before the Court. ... A closely related princi-

1630 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 ple is that constitutional rights are personal and may not be asserted 421565031, Policy No. 42165015, vicariously. ... These principles rest on more than the fussiness of judges. They reflect the conviction that under our constitutional sys- Garnishee/Appellant. tem courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws. Constitutional judgments ... are No. 101,726. May 23, 2006 justified only out of the necessity of adjudicating rights in particular cases between the litigants brought before the Court.” Broadrick v. CERTIORARI TO THE COURT OF CIVIL Oklahoma, 413 U.S. 601, 610-11, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 APPEALS, DIVISION III (1973)(emphasis added, citations omitted). 10. Standing inquiry must be affirmatively resolved at nisi prius to ensure that the litigation was properly brought before the trial tri- Honorable Ronald G. Franklin, Trial Judge bunal. Toxic Waste Impact Group, Inc. v. Leavitt, 1994 OK 148, ¶ 1 n. 1, 890 P.2d 906, 910-11; Oklahoma Public Employees Ass’n v. Oklahoma ¶0 In June of 2001, Brett Dept. of Central Services, 2002 OK 71, ¶21, 55 P.3d 1072, 1081; see also Haworth died after he collided Dover Historical Soc. v. City of Dover Planning Com’n, 838 A.2d 1103, 1110 (Del.Supr. 2003). with a pickup truck driven by 11. Matter of Estate of Doan, supra note 2, at ¶7, at 576. Theodore Jantzen. Haworth’s 12. Ashwander v. Tennessee Valley Authority, supra note 9, 297 widow, Densi Haworth, brought U.S. at 347, 56 S.Ct. at 483 (Brandeis, J., concurring); Broadrick v. Okla- homa, supra note 9, 413 U.S. at 610-11, 93 S.Ct. at 2915. a wrongful death action against 13. Burdick v. Independent School Dist. No. 52 of Oklahoma City, Jantzen. A stipulated journal 1985 OK 49, ¶8, 702 P.2d 48, 54; McCracken v. City of Lawton, 1982 OK 63, ¶9, 648 P.2d 18, 21; Application of Goodwin, 1979 OK 106, ¶2, 597 entry of judgment was filed and P.2d 762, 764. In public-law litigation, into which this appeal falls, this damages were set. Jantzen’s court rather than the parties may choose sua sponte the issues dispositive of the appeal. Amos v. Spiro Public Schools, supra note 4, at ¶7, at insurer, Oklahoma Farm Bureau 816. Mutual Insurance Company paid Standing may be raised sua sponte in a public-law controversy as an the policy limits of an automobile issue at any stage of the judicial process by any party or by the court. Hendrick v. Walters, supra note 2, 865 P.2d at 1236. Once raised it must policy and the widow initiated be resolved in advance of the trial court’s decision on the merits. Okla- garnishment proceedings to homa Public Employees Association v. Oklahoma Dept. Of Central Services, supra note 10, at ¶21, 55 P.3d at 1080; Toxic Waste Impact Group, Inc. v. determine if coverage existed Leavitt, supra note 10, at ¶9, 890 P.2d at 911. under an additional farm and 14. This court may not, under the guise of construction, extend, ranch policy. The trial judge, enlarge or otherwise change the terms of a statute. Where the statute is plain and unambiguous, there is no room for judicial construction Honorable Ronald G. Franklin, that would extend its ambit beyond the scope of the plain and unam- granted summary judgment to biguous language. Hammock v. U.S., 2003 OK 77, ¶10, 78 P.3d 93, 97; Arrow Tool & Gauge v. Mead, 2000 OK 86, ¶15, 16 P.3d 1120, 1125-26; the widow. Farm Bureau Sisney v. Smalley, 1984 OK 70, ¶17, 690 P.2d 1048, 1051. appealed. The Court of Civil 15. The contested groundwater law affects the plaintiffs’ present right to withdraw water from the Arbuckle-Simpson Groundwater Appeals reversed and remanded, Basin for municipal or public water supply use outside of the five determining that the farm and counties overlying the groundwater basin. ranch policy unambiguously 16. The challenged legislation imposes two moratoria (a) one on the Oklahoma Water Resources Board’s issuance of temporary permits excluded the pickup driven by for the withdrawal of groundwater for municipal or public water sup- Jantzen. We hold that because the ply use outside of any county overlying a “sensitive sole source” groundwater basin and (b) the other on municipalities and other polit- policy terms are ambiguous, the ical subdivisions (located outside of any county overlying that basin) insurance contract was properly contracting to transport water from a sole-source aquifer for munici- construed against the insurer. We pal or public-water supply use. The term “sensitive sole source groundwater basin or subbasin” is defined by the legislation as any remand the cause to the Court of major groundwater basin that has been designated as a sole-source Civil Appeals to address assign- aquifer by the United States Environmental Protection Agency (EPA). 82 O.S.Supp.2003 §§1020.9A, 1020.9B, 1020.9(A)(1)(d). At the time of ments of error left unresolved by the contested law’s passage, the Arbuckle-Simpson was the only its prior disposition. major groundwater basin in the state which had been designated by the EPA as a sole-source aquifer. CERTIORARI PREVIOUSLY GRANTED; 2006 OK 35 COURT OF APPEALS OPINION VACATED AND MATTER REMANDED TO COURT DENSI HAWORTH, Special Administratrix OF CIVIL APPEALS FOR PROCEEDINGS of the Estate of BRETT DEWAYNE CONSISTENT WITH THIS OPINION. HAWORTH, Deceased, Plaintiff/Appellee, v. Theodore Jantzen, individually, and as G. Todd Ralstin, Oklahoma City, Oklahoma, partner in Jantzen Farm and Ranch for Plaintiff/Appellee. Enterprises; Mrs. Theodore Jantzen, Steve L. Lawson, Oklahoma City, Oklahoma, individually and as partner in Jantzen Farm for Garnishee/Appellant. and Ranch Enterprises; and Allstate Insurance Company, Defendants, and KAUGER, J., OKLAHOMA FARM BUREAU MUTUAL ¶1 The dispositive issue presented on certio- INSURANCE COMPANY, Policy No. rari is whether the trial court properly granted

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1631 summary judgment when it determined that ¶6 Farm Bureau appealed and on February because certain insurance policy exclusions 11, 2005, the widow filed a counter-petition were ambiguous as matter of law, the contract insisting that the trial court erred in failing to must be construed against the insurer to provide award her reasonable attorney fees, costs, and coverage. The Court of Civil Appeals deter- post-judgment interest. On November 10, 2005, mined that the policy exclusions were unam- the Court of Civil Appeals reversed and biguous and did not provide coverage. We hold remanded, determining that the farm and ranch that because the policy terms are ambiguous, the policy unambiguously excluded the pickup insurance contract was properly construed driven by Jantzen. We granted certiorari on Jan- against the insurer and we remand the cause to uary 30, 2006. the Court of Civil Appeals to address the assign- ¶7 BECAUSE THE POLICY TERMS ARE ments of error left unresolved. AMBIGUOUS, THE INSURANCE FACTS CONTRACT WAS PROPERLY CONSTRUED AGAINST THE INSURER. ¶2 On June 14, 2001, Theodore Jantzen [Jantzen] parked his 2001 Dodge pickup truck in ¶8 The language in controversy is found in the the entry to a wheat field he farmed near Can- “EXCLUSIONS” section of Jantzen’s farm and ton, Oklahoma, on State Highway 58A. While ranch policy. The policy provides in pertinent backing out of the field, Jantzen collided with part: Brett Dewayne Haworth [the deceased], who “EXCLUSIONS was traveling north on the highway on his Under PERSONAL LIABILITY — COVER- motorcycle. Haworth died from his injuries later AGE G and MEDICAL PAYMENTS TO that same day in a local hospital. OTHERS — COVERAGE H, we do not cover: ¶3 At the time of the accident, Jantzen carried 1. Bodily injury or property damage arising two insurance policies issued by the appellant, out of the ownership, maintenance, use or neg- Oklahoma Farm Bureau Mutual Insurance ligent entrustment of: . . . Company [Farm Bureau]: a farm and ranch policy with a $500,000 policy limit and an automo- b. land motor vehicles subject to motor bile policy with a $250,000 policy limit. The vehicle registration owned or operated or appellee, the deceased’s widow and special rented or loaned to an insured person. . . administrator of his estate, Densi Haworth c. land motor vehicles, other than golf carts [Haworth/widow], brought a negligence action while used for golfing, if the bodily injury or against Jantzen on October 23, 2001. property damage occurs away from the ¶4 On March 7, 2003, the parties stipulated to insured premises. . .” [Emphasis in original.] a judgment of $775,000 which by its terms, ¶9 Farm Bureau argues that the policy unam- included any interest, costs, or other relief that biguously excludes coverage of the pickup driv- the court could award. The judgment provided en by Jantzen. Haworth contends that the policy that Jantzen pay $25,000 out of his own pocket, exclusions are ambiguous and therefore must be Farm Bureau pay the $250,000 limit of the auto- construed to provide coverage. We note at the mobile policy, and that Haworth seek the outset that resolution of this cause does not cen- remaining $500,000 through a garnishment pro- ter around any fact question as to where the ceeding against Farm Bureau so that coverage pickup was precisely located. When Farm under the farm and ranch policy could be Bureau appealed, it asserted that the trial court determined. erred in granting summary judgment based ¶5 On April 21, 2004, Haworth filed garnish- upon a determination that the policy was ment proceedings seeking the $500,000 limit of ambiguous, not that summary judgment was the farm and ranch policy, as well as pre-judg- improper because a material fact issue existed ment and post-judgment interest, attorney’s regarding whether the accident occurred off of fees, and costs. The court granted summary the premises. We need not be concerned with judgment to the widow on January 18, 2005, whether the issue was properly raised for finding that because the farm and ranch policy appeal, because the fact question of precisely was ambiguous, it had to be construed against where the pickup was located is not a material Farm Bureau. The trial court awarded Haworth fact question relevant to this cause. the $500,000 policy limits, which included pre- ¶10 At the trial level, Farm Bureau argued judgment interest and attorney’s fees. that there were not any disputed facts which

1632 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 could preclude summary judgment. Neverthe- policy. A “vehicle” is statutorily defined as any less, it also insisted that nothing had been device in, upon, or by which any person or shown to suggest that the 1800 acres described property may be transported or drawn upon a on the declarations page included anything highway.8 “Motor vehicle” is statutorily defined more than the Jantzen’s home and surrounding as any self-propelled vehicle.9 “Registration” land. This assertion is contrary to the declara- pertains to the requirement to obtain a certificate tions page which includes 120 acres in Dewey or license plate from the state.10 County, plus an additional 1600 acres of farm- ¶15 In Oklahoma, all motor vehicles, travel land and contrary to Jantzen’s affidavit which trailers, commercial trailers, all-terrain vehicles, states his residence consisted of only 120 acres in and motorcycles must be registered.11 Pickup Dewey County. Farm Bureau presented nothing trucks are subject to registration in Oklahoma. to support an assertion that the field at issue was Adding the adjective “land” to the term “motor not part of the 1800 acres covered on the decla- vehicle” does not create any further reasonable rations sheet of the policy as “farm premises.” ambiguity in this case. Taken in their ordinary ¶11 Farm Bureau also alternatively argued sense, the terms “land motor vehicle subject to that, although the pickup may have been par- registration” and “land motor vehicle” unam- tially in the field or at the entrance to the field at biguously apply to Jantzen’s pickup truck. the time of the accident, the injury occurred at ¶16 The ambiguity in the policy language lies the back of the pickup which was on the high- in the apparent contradiction of exclusions 1(b) way and as a result, the accident was excluded and 1(c). Exclusion 1(b) provides that Farm by the policy provision which excludes coverage Bureau will not cover damage arising out of the for injuries or damage occurring away from the use of land motor vehicles subject to registra- insured premises. This argument concerning the tion. Exclusion 1(c) provides that Farm Bureau point of impact being at the back of the pickup will not cover damage arising out the use of land ignores the fact that control of the pickup motor vehicles if the injury or damage occurs remained with the driver. away from the insured premises. This language ¶12 Pursuant to 60 O.S. 2001 §1202, an owner is conflicting, confusing, and ambiguous. An of land bound by a highway is presumed to own insured could reasonably construe these provi- the property to the center of the road, unless the sions to mean that coverage of injury or damage contrary is shown.1 A road is generally only an arising out of the use of a land motor vehicle is: easement for public use and fee simple title is 1) always excluded; 2) only excluded if the vehi- vested in the abutting landowners burdened cle is subject to registration; 3) only excluded if only by an easement.2 Farm Bureau did not the injury occurs away from the insured premis- attempt to rebut this presumption. Accordingly, es; or 4) only excluded if the vehicle is not regardless of whether a portion of the pickup required to be registered and if the injury occurs was on the highway and in the entrance to the away from the insured premises. field, it was in fact located within the premises ¶17 If it is not ambiguous, we accept the con- of the property owner as a matter of law. tract language in its plain, ordinary, and popular ¶13 An insurance policy is a contract,3 and a sense.12 When an insurance contract provision is contract is to be construed as a whole, giving ambiguous, words of inclusion will be liberally effect to each of its parts.4 The interpretation of construed in favor the insured, and words of an insurance contract and whether it is ambigu- exclusion will be strictly construed against the ous is determined by the court as a matter of insurer.13 In construing an ambiguity or uncer- law.5 An insurance contract is ambiguous only if tainty against the insurer and in favor of the it is susceptible to two constructions on its face insured, Oklahoma looks to the objectively rea- from the standpoint of a reasonably prudent sonable expectations of the insured to fashion a layperson, not from that of a lawyer.6 However, remedy.14 When an insurer desires to limit its lia- this Court will not indulge in forced or con- bility under a policy, it must employ language strained interpretations to create and then con- that clearly and distinctively reveals its stated strue ambiguities in insurance contracts.7 purpose.15 ¶14 The insurer employs the terms “land ¶18 Construing the motor vehicle exclusion motor vehicle” and “land motor vehicles subject ambiguity in the insured’s favor and against the to registration” in the policy exclusion in an insurer, we determine that the farm and ranch attempt to limit liability. However, the terms policy does not exclude coverage for Jantzen’s “land motor vehicle” and “land motor vehicle personal liability for the deceased’s personal subject to registration” are not defined in the injury arising out of the use of the Dodge pick-

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1633 up (a land motor vehicle) occurring on the 3. American Economy Ins. Co. v. Bogdahn, 2004 OK 9, ¶8, 89 P.3d 1051; Spears v. Shelter Mutual Ins. Co., 2003 OK 66, ¶4, 73 P.3d 865; insured premises. Because the material facts are Cranfill v. Aetna Life Ins. Co., 2002 OK 26, ¶5, 49 P.3d 703. undisputed, the trial court properly granted 4. Bituminous Casualty Corp. v. Cowen Const. Inc., 2002 OK 34, ¶9, 55 P.3d 1030; Dodson v. St. Paul Ins. Co., 1991 OK 24, ¶12, 812 P.2d summary judgment. 372. Title 15 O.S. 2001 §157 provides: “The whole of a contract is to be taken together, so as to give effect CONCLUSION to every part, if reasonably practicable, each clause helping to interpret the others.” ¶19 Summary judgment is properly granted Title 36 O.S. 2001 §3621 provides: when there are no disputed questions of materi- “Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as al fact and the moving party is entitled to judg- amplified, extended, or modified by any rider, endorsement, or 16 ment as a matter of law. When summary judg- application attached to and made a part of the policy.” ment involves only legal questions, the standard 5. Max True Plastering Co. v. U.S.F.& G. Co., 1996 OK 28, ¶20, 912 P.2d 861; Dodson v. St. Paul Ins. Co., see note 4, supra; Harjo Gravel of review of a trial court’s grant of summary Co. v. Luke-Dick Co., 1944 OK 268, ¶10, 153 P.2d 112. judgment is de novo.17 Insurance contracts are 6. Spears v. Shelter Mutual Ins. Co., see note 3, supra at ¶9; Cran- 18 fill v. Aetna Life Ins. Co., see note 3, supra at ¶5; Max True Plastering contracts of adhesion. An insurer has the Co. v. U.S.F.& G. Co., see note 5, supra. advantage of drafting the contract and holds an 7. Max True Plastering Co. v. U.S.F.& G. Co., see note 5, supra. uneven bargaining position. Consequently, any 8. Title 47 O.S. Supp. 2005 §1-186 provides: “A. A vehicle is any device in, upon, or by which any person or ambiguity in the language of the contract must property is or may be transported or drawn upon a highway be strictly construed against the insurer.19 excepting devices used exclusively upon stationary rails or tracks. B. As used in this title, the term “vehicle” shall not include: Because the policy exclusions are ambiguous, 1. Implements of husbandry, as defined in Section 1-125 of the trial court properly construed the insurance this title; 2. Electric personal assistive mobility devices, as defined in contract. Section 10114A of this title; or 3. Motorized wheelchairs, as defined in Section 1-136.3 of ¶20 However, rather than affirm the trial this title.” court judgment, we remand the cause to the Because the statute in effect at the time of the accident is substan- Court of Civil Appeals. Rule 1.80(b) of the Okla- tially similar to the current statute, references are to the current version. homa Supreme Court Rules, 12 O.S. 2001 Ch. 15, 9. Title 47 O.S. Supp 2005 §1-134 provides: App. 1,20 provides that should we vacate an “A. A motor vehicle is: 1. Any vehicle which is self-propelled; or opinion of the Court of Civil Appeals, we may 2. Any vehicle which is propelled by electric power obtained address the matters not decided or remand for from overhead trolley wires, but not operated upon rails. determination of issues left unresolved by the B. As used in this title, the term “motor vehicle” shall not include: 21 1. Implements of husbandry, as defined in Section 1-125 of Court of Civil Appeals’s decision. The Court of this title; Civil Appeals held that the policy exclusions 2. Electric personal assistive mobility devices as defined in Section 1-114A of this title; were unambiguous and were dispositive of the 3. Motorized wheelchairs, as defined in Section 1-136.3 of issues regarding post-judgment interest, costs this title; or and attorney fees raised in the counter-petition. 4. Vehicles moved solely by human or animal power.” Because the statute in effect at the time of the accident is substan- In doing so, it did not visit those issues chal- tially similar to the current statute, references are to the current lenged on appeal. We exercise our discretion to version. 10. Title 47 O.S. 2001 §1-153 provides: remand the cause to the Court of Civil Appeals, ”The registration certificate or certificates and registration plates to address the assignments of error left unre- issued under the laws of this state pertaining to the registration of vehicles.” solved and we express no view as to the merits 11. Title 47 O.S. 2001 §1137.3 provides in pertinent part: of the unresolved issues. “The purchaser of every new motor vehicle, travel trailer or commercial trailer shall register or license the same within thirty (30) CERTIORARI PREVIOUSLY GRANTED; days from the date of purchase. . . .” Title 47 O.S. Supp. 2005 §1115.3 provides: COURT OF APPEALS OPINION VACATED “A. Except as otherwise provided by this section, all-terrain vehi- AND MATTER REMANDED TO COURT cles and motorcycles used exclusively off roads or highways shall OF CIVIL APPEALS FOR PROCEEDINGS be registered once with the Oklahoma Tax Commission within thirty (30) days after purchase. CONSISTENT WITH THIS OPINION. B. For all-terrain vehicles or motorcycles used exclusively off roads or highways purchased prior to July 1, 2005, registration, as other- WATT, C.J., HARGRAVE, KAUGER, wise required by Section 1115 of Title 47 of the Oklahoma Statutes, shall not be required, but shall be allowed at the option of the EDMONDSON, COLBERT, JJ., concur. owner of the all-terrain vehicle or motorcycle used exclusively off roads or highways. WINCHESTER, V.C.J., LAVENDER, OPALA, C. All-terrain vehicles or motorcycles used exclusively off roads or TAYLOR, JJ., dissent. highways owned or purchased by a person that possesses an agricultural exemption pursuant to Section 1358.1 of Title 68 of the Oklahoma Statutes may be registered as provided by this section, 1. Title 69 O.S. 2001 §1202 provides: but shall not require registration.” “An owner of land bounded by a road or street is presumed to Section 1115.3 became effective July 1, 2005. Prior to enactment, own to the center of the way, but the contrary may be shown.” registration was not required for off-road all-terrain vehicles. 2. See, Town of Reydon v. Anderson, 1982 OK 92, ¶12, 649 P.2d 12. Cranfill v. Aetna Life Ins. Co.,see note 3, supra at ¶5; McDon- 541; Bd. of Trustees of Town of Taloga v. Hadson Ohio Oil Co., 1978 OK ald v. Schreiner, 2001 OK 58, ¶7, 28 P.3d 574; Littlefield v. State Farm 16, ¶13, 574 P.2d 1038. Fire & Casualty Co., 1993 OK 102, ¶7, 857 P.2d 65.

1634 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 13. Spears v. Shelter Mutual Ins. Co., see note 3, supra at ¶5; Simp- 20. Rule 1.180(b), Supreme Court Rules, 12 O.S. 2001 Ch. 15, App. son v. Farmers Ins. Co., Inc., 1999 OK 51, ¶10, 981 P.2d 1262; Max True 1, provides: Plastering Co. v. U.S.F.& G. Co., see note 5, supra at ¶8; Littlefield v. “Review of Certiorari. Issues not presented in the petition for cer- State Farm Fire & Casualty Co., see note 12, supra; Phillips v. Estate of tiorari may not be considered by the Supreme Court. Provided, Greenfield, 1993 OK 110, ¶10, 859 P.2d 1101. however, if the Court of Civil Appeals did not decide all of the 14. Spears v. Shelter Mutual Ins. Co., see note 3, supra at ¶6; Max properly preserved and briefed issues, the Supreme Court may — True Plastering Co. v. U.S.F.& G. Co., see note 5, supra at ¶7. should it vacate the opinion of the Court of Civil Appeals — 15. Spears v. Shelter Mutual Ins. Co., see note 3, supra at ¶7; Max address such undecided matters or it may remand the cause to the True Plastering Co. v. U.S.F.& G. Co., see note 5, supra at ¶7. Court of Civil Appeals for that Court to address such issues. The 16. Wathor v. Mutual Assurance Administrators, Inc., 2004 OK 2, case will then be decided on the reviewable issue or issues pre- ¶4, 87 P.3d 559; Oliver v. Farmers Ins. Group of Companies, 1997 OK sented in the briefs therefore filed, unless for good cause the filing 71, ¶6, 941 P.2d 985; Indiana Nat. Bank v. State Dept. of Human Ser- of additional briefs be then allowed. The Supreme Court may — vices, 1993 OK 101, ¶10, 857 P.2d 53. should it vacate the opinion of the Court of Civil Appeals — 17. Head v. McCracken, 2004 OK 84, ¶3, 102 P.3d 670; In re. Estate address any issue properly raised in the appeal or on certiorari. of MacFarline, 2000 OK 87, ¶3, 14 P.3d 551; Carmichael v. Beller, 1996 Hough v. Leonard, 867 P.2d 438 (Okla. 1993).” OK 48, ¶2, 914 P.2d 1051. 21. Boren v. Thompson & Assoc., 2000 OK 3, ¶26, 999 P.2d 438; 18. Spears v. Shelter Mutual Ins. Co., see note 3, supra at ¶5; Max Hough v. Leonard, 1993 OK 112, ¶15, 867 P.2d 438. True Plastering Co. v. U.S.F.& G. Co., see note 5, supra at ¶7. 19. Max True Plastering Co. v. U.S.F.& G. Co., see note 5, supra at ¶8; Littlefield v. State Farm Fire & Casualty Co., see note 12, supra; Dodson v. St. Paul Ins. Co., see note 4, supra.

September 7 – 9, 2006 Please visit our web site at www.ca10.uscourts.gov/judconf/index.php CLE credits will be available. General registration fee is $250.

n OBA Rules of Professional Conduct Committee has engaged in a comprehensive Areview of the Oklahoma Rules of Professional Conduct. This project was prompted by extensive updates to the ABA’s Model Rules of F Professional Conduct. The committee has RULES O adopted and recommended changes to Oklahoma’s current rules and encourages public AL comment either by e-mail or in writing. You OFESSION may submit any written commentary to the OBA, PR P.O. Box 53036, Oklahoma City, OK 73152 or by e-mail to [email protected]. View the proposed CONDUCT rules at www.okbar.org/ethics/ORPC.htm. The OBA Board of Governors intends to review the committee’s recommendations during its 2006 term. Public hearings on the proposed rule changes will be scheduled for summer 2006. Recommended changes will then be submitted to the House of Delegates with final approval the province of the Oklahoma Supreme Court.

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1635 NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT OF ROBERT SEAN BRADLEY, SCBD 5168# T O MEMBERSHIP IN\ THE O KLAHOMA BAR ASSOCIATION

Notice is hereby given pursuant to Rule 11.3(b), Rules Governing Disciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A, that a hearing will be held to determine if Robert Sean Bradley should be reinstated to active membership in the Oklahoma Bar Association. Any person desiring to be heard in opposition to or in support of the petition may appear before the Professional Responsibility Tribunal at the Oklahoma Bar Center at 1901 North Lincoln Boulevard, Oklahoma City, Oklahoma, at 9:30 a.m. on Monday, July 3, 2006. Any person wishing to appear should contact Dan Murdock, General Counsel, Oklahoma Bar Association, P. O. Box 53036, Oklahoma City, Oklahoma 73152, telephone (405) 416-7007, no less than five (5) days prior to the hearing.

PROFESSIONAL RESPONSIBILITY TRIBUNAL

4&55-&:063$"4&#:46/4&5

#BSSZ3%BWJT .&%*"5*0/4&37*$&4 QFSIPVSQFSQBSUZ 0WFS $BTFT.FEJBUFE $PNQMJNFOUBSZ-VODIBOEPS ] %JOOFSBU1FBSMTPS3FE3PDL(SJMM 0/-",&)&'/&3#&58&&/1&"3-43&%30$, #%"7*4!0,-"-"8:&3$0. -",&)&'/&31"3,8":]0,-")0."$*5:

1636 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 Court of Criminal Appeals Opinions

2006 OK CR 18 to reconcile the conflicting provisions of the Youthful Offender Act, and preserve the leg- R.M.J, Appellant, v. STATE OF OKLAHOMA, Appellee. islative intent of the Youthful Offender Act by giving the conflicting provisions of the act a No. J-2005-216. May 15, 2006 “saving construction” rendering the Act consis- ACCELERATED DOCKET ORDER tent, non-conflicting and Constitutionally sound. The State also cited O.J.A.’s refusal to ¶1 On January 28, 2004, Appellant was treat and keep youthful offenders in custody charged as a Youthful Offender in Case No. CF- past the age of 18 as an ongoing impediment to 2004-14 in the District Court of Seminole Coun- implementation of the Youthful Offender Act. ty. On February 4, 2004, Appellant entered a guilty plea to all charges and was remanded to ¶5 In an order entered September 29, 2004, the custody of the Office of Juvenile Affairs the District Court of Seminole County, the Hon- (O.J.A.) for rehabilitation. All sentences were to orable George Butner, District Judge, denied be served concurrently. The sentencing order Appellant’s request for release from O.J.A. cus- issued in Appellant’s case noted that he was to tody, authorized O.J.A. to retain custody of be remanded to O.J.A. custody for a total of Appellant until his 19th birthday and set a seven years. Appellant was 17 years old at the “pre-19th birthday review” hearing for June 22, time of sentencing. 2005.1 Appellant failed to timely seek an appeal of the denial of his motion for release from ¶2 August 2, 2004 was Appellant’s 18th custody. birthday. On August 24, 2004, after being advised by O.J.A. that it intended to recom- ¶6 On December 2, 2004, Appellant filed an mend he be released from its custody, Appel- Application for Writ of Habeas Corpus, seeking lant filed a “Motion for Release from Office of the same relief that he had sought in his August Juvenile Affairs Custody.” The motion alleged 24, 2004 Motion for Release from Custody. That the State failed to timely conduct a review hear- request was denied by the District Court in an ing pursuant to 10 O.S. §7306-2.10 to extend order entered that same day. Appellant then O.J.A.’s ability to keep Appellant in custody initiated his appeal from that order with this beyond his 18th birthday. Appellant alleged Court filed December 13, 2004. On December that the State was barred from conducting the 23, 2004, this Court entered an order directing hearing after Appellant reached the age of 18 Appellant to clarify the posture of his appeal and requested the District Court release him and show cause why the appeal should not be from O.J.A.’s custody. dismissed for failure to timely appeal the Dis- ¶3 The District Court directed a response trict Court’s original denial of his request for from O.J.A. and the State. O.J.A.’s response release from custody. indicated that it had no authority to retain cus- ¶7 On January 6, 2005, Appellant filed his tody of Appellant since no hearing had been response with this Court. Attached to the conducted prior to his 18th birthday allowing response was an affidavit from trial counsel, M. for the extension of custody until Appellant’s Bradley Carter, indicating that there was confu- 19th birthday. Citing 10 O.S. 2001, §7306-2.10 sion over whether or not the order entered Sep- (G), O.J.A. opined that Appellant must be tember 29, 2004, denying Appellant’s request released from its custody because the District for release from custody, was a final, appeal- Court did not authorize extension of custody or able order. To expedite this matter, Mr. Carter supervision of Appellant prior to his 18th stated that the parties agreed to incorporate the birthday. arguments and transcripts of proceedings from ¶4 The State argued that it was not procedu- the hearing on the Motion to Release from Cus- rally barred from seeking to extend custody in tody into an Application for Writ of Habeas Appellant’s case simply because he had cele- Corpus, which was subsequently filed on brated his 18th birthday. It requested the court December 2, 2004. Judge Butner was made

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1637 aware of the situation, and again denied the eighteenth birthday. Therefore, the trial request for release. court’s jurisdiction over Appellant lapsed on his eighteenth birthday. Thus, ¶8 In an order entered February 24, 2005 this the trial court did not have authority to Court noted that Appellant could not extend order the Office of Juvenile Affairs his appeal time by simply re-filing his motion (O.J.A.) to continue its jurisdiction over in a different format. We declined jurisdiction Appellant. of the Application for Writ of Habeas Corpus because it was nothing more than an attempt to ¶12 Pursuant to this Court’s February 24, extend Appellant’s appeal time. However, this 2005 order, this appeal was assigned to the Court recognized that the Youthful Offender Accelerated Docket of this Court. The proposi- Act did not specify whether Appellant could tions or issues were presented to this Court in appeal the district court’s ruling denying his oral argument March 2, 2006, pursuant to Rule request for release from custody. We granted 11.2(F). At the conclusion of oral argument, the Appellant an appeal out of time from the order matter was taken under advisement. denying his request for release from O.J.A. cus- ¶13 We make the following findings with tody noting the statute’s ambiguity. regard to Appellant’s case. ¶9 On May 19, 2005, this Court entered an 1. There is no appeal allowed from an order striking the previously scheduled oral order of the District Court extending or argument, and invited the parties to file sup- terminating O.J.A.’s custody of a Youth- plemental argument and authority. O.J.A. was ful Offender entered as a result of a pre- also invited to file a response. The parties were 18th or pre-19th birthday hearing. to address the following questions posed by the court: 2. The pre-18th and pre-19th birthday review hearings, required by 10 O.S. 1. Whose responsibility is it to schedule the §7306-2.10 (D) shall be docketed and pre-18th/19th birthday hearing set forth scheduled for at least thirty (30) days in 10 O.S. §7306-2.10 (D)? prior to the defendant’s 18th and 19th 2. If no hearing is held prior to a defen- birthdays at the time the youthful dant’s 18th/19th birthday, as required offender is sentenced and remanded to by §7306-2.10(D), does the trial court the custody of the Office of Juvenile lose jurisdiction over the defendant? Affairs for rehabilitation. 3. If no pre-18th/19th birthday hearing is 3. The District Court does not lose jurisdic- held, what are the consequences of the tion over a defendant for failure to time- failure to timely conduct the hearing? ly conduct the offender’s 18th or 19th birthday review hearing. 4. What is the relationship between the provisions of 10 O.S. §§7306-2.10 (D) and 4. This matter is REMANDED to the Dis- (G), and how should the two provisions trict Court of Seminole County with be reconciled? instructions to conduct Appellant’s 19th birthday review hearing as specified in ¶10 Timely responses were filed by Appel- 10 O.S. §7306-2.10 . lant and the State. On July 20, 2005, O.J.A. filed a request for leave to file its brief out of time Title 10 O.S. §7306-2.10 (D) reads as follows: stating it was unaware of this Court’s invitation D. If the youthful offender has not been to file an amicus curaie brief in the matter. On previously discharged, the court shall August 18, 2005, O.J.A. was granted permis- hold a review hearing within the thirty sion to file its brief out of time. This matter was (30) days immediately preceding the then re-scheduled for oral argument on March date the youthful offender becomes 2, 2006. eighteen (18) years of age or nineteen ¶11 On appeal, Appellant raised one propo- (19) years of age, if extended by law. sition of error: As noted in our February 24, 2005 order, there 1. The State failed to file a Motion to is no provision in the Youthful Offender statute Extend Jurisdiction or to Bridge in order for appealing from an order of the District to retain custody of Appellant past his Court extending or terminating O.J.A.’s cus-

1638 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 tody of a Youthful Offender, as a result of the parties specified in 10 O.S. §7306-2.10 (B), and pre-18th or pre-19th birthday review hearing. to allow time for the District Court to properly Nor is there a provision in this Court’s Rules review the initial review report and any timely granting appellate review of this type of ruling. filed written responses. Appellant’s request for relief presented an issue of first impression regarding this matter. ¶16 Appellant claims in his application filed After reviewing Appellant’s claim for relief, with this Court that the District Court’s juris- and deciding the limited issue presented in this diction over Appellant lapsed when it failed to case, we find that there is no right to appeal timely conduct the birthday review hearing, from a District Court’s order extending or ter- therefore the court did not have the authority minating O.J.A.’s custody of a Youthful to order O.J.A. to continue its jurisdiction over Offender pursuant to 10 O.S. §7306-2.10 (D). Appellant. The remedy, Appellant argues, is his immediate release from O.J.A. custody. This is ¶14 All parties agree the statute, while the same argument espoused by O.J.A. The directing the District Court to conduct the pre- State argues this interpretation of the statute 18th and pre–19th birthday hearings, does not defeats the purpose of the Youthful Offender specify who has the responsibility for schedul- Act. ing the hearing. The Office of Juvenile Affairs is required, by statute, to prepare a written report ¶17 As we have noted on numerous occa- concerning the conduct, progress and condi- sions when considering Youthful Offender tion of the youthful offender, which shall be issues, the purpose of the Youthful Offender submitted to the court prior to scheduled Act is clearly set out in 10 O.S. §7306-2.2 (B) reviews. See 10 O.S. §7306-2.10 (B). This which states: includes the pre-18th and pre-19th birthday review hearings. The statute further directs the It is the purpose of the Youthful Offender court to consider the report, and any timely Act to better ensure the public safety by written response to these reports before con- holding youths accountable for the com- ducting its review. Id. We can only conclude mission of serious crimes, while affording that since the statute requires pre-18th and courts methods of rehabilitation for those pre–19th birthday reviews, and requires the youths the courts determine, at their dis- district court to consider the report before con- cretion, may be amenable to such methods. ducting its reviews, the reports should be pro- It is the further purpose of the Youthful vided to the court in advance of these statutori- Offender Act to allow those youthful ly required hearings. In Appellant’s case, no offenders whom the courts find to be pre-18th birthday review report was prepared amenable to rehabilitation by the methods or delivered to the District Court either in prescribed in the Youthful Offender Act to advance of Appellant’s birthday, or at the be placed in the custody or under the review hearing that was ultimately held on supervision of the Office of Juvenile Affairs September 29, 2004. for the purpose of accessing the rehabilita- ¶15 It is the finding of this Court that the tive programs provided by that Office and statutorily mandated pre-18th and pre-19th thereby, upon good conduct and successful birthday hearings set forth at 10 O.S. §7306-2.10 completion of such programs, avoid con- (D) must be docketed and scheduled at the viction for a crime. time a youthful offender is remanded to O.J.A. custody for rehabilitation. The hearings shall ¶18 Under this Act, it is clear that the Legis- be scheduled within the thirty days immediate- lature seeks to ensure the safety of the commu- ly preceding the youthful offender’s birthday. nity, while providing viable methods of reha- As provided by the Legislature in the Youthful bilitation for those youths the courts deem may Offender statute, the necessary reports con- be amenable to such treatment. Id.; G.G. v. State, cerning the conduct, progress and condition of 1999 OK CR 7, ¶ 6, 989 P.2d 936; C.L.F. v. State, the youthful offender are to be timely filed to 1999 OK CR 12, ¶ 6, 989 P.2d 945. To interpret facilitate a meaningful review of the youthful 10 O.S. §7306-2.10 (D) to mean that failure to offender’s progress, or lack thereof. The Office conduct a review hearing results in a “get out of Juvenile Affairs pre-18th and pre–19th birth- of jail free card” for a youthful offender makes day review reports should be filed to allow suf- a mockery of the system and defeats the pur- ficient time for responses to be filed by those pose of the Act.

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1639 ¶19 In construing legislation, this Court tion, the youthful offender remains in O.J.A. strives to interpret and reconcile statutory pro- custody. visions as being consistent, if at all possible, ¶22 More importantly, 10 O.S.§7306-2.4 (H) and to give force and effect to the plain meaning of the statutory provisions. Appellant was also addresses the custody of a youthful remanded to O.J.A. custody to pursue and offender who has reached his or her 18th or complete a plan of rehabilitation. We have no 19th birthday. This section states if the youthful doubt that the Legislature intended to provide offender has not been discharged by the court youthful offenders sufficient time in O.J.A. cus- from the custody or supervision of O.J.A. with- tody to allow for completion of their assigned in thirty days immediately preceding the date rehabilitation plans. One method for extending on which the youthful offender becomes 18 the time to allow completion of a rehabilitation years of age, or if extended by the court, 19 plan is to extend jurisdiction to allow O.J.A. to years of age, the court shall hold a review hear- retain custody of a youthful offender who has ing and shall make further orders regarding the reached or is approaching his or her 18th or youthful offender as provided by §7306-2.10 of this 19th birthday via the review hearing outlined title. The implication of this portion of the in 10 O.S. §7306-2.10 (D). statute is that 18 and 19 are the operative ages for further review of an offender’s custodial sit- ¶20 At the conclusion of the review hearing, uation, but the court still must enter an order to the court may take one of several courses of alter the offender’s custodial posture. action with regard to the youthful offender. See 10 O.S. §7306-2.10 (F).2 Nowhere does the ¶23 The only reasonable interpretation of 10 statute provide for immediate release from cus- O.S. §7306-2.10 (D), read in conjunction with tody if a youthful offender’s pre-18th or the other relevant sections of the Youthful pre–19th birthday review hearing is not timely Offender Act, is that the 18th and 19th birthday conducted. To so interpret the statute makes reviews are time sensitive review hearings, §7306-2.10(D) nothing more than a procedural positioned to afford an additional examination trap allowing for the unregulated release of an offender’s rehabilitative progress. The of individuals who have not completed a reviews are used to allow the court to deter- rehabilitation plan. mine what steps need to be taken next in administering the offender’s sentence and ¶21 We cannot believe that the Legislature intended such an interpretation. The only insuring progress in his or her rehabilitation method provided in the Youthful Offender Act plan. Whether the hearing is timely conducted for transferring custody of a youthful offender, or not, the trial court does not lose jurisdiction or for discharging a youthful offender from over the youthful offender. O.J.A. custody, is the issuance of a court order. ¶24 Our ruling, however, should not be read A reading of the statute indicates that the age of as encouraging courts, defendants, O.J.A., the 18 (or 19 if custody is extended) is a turning State or other responsible party to ignore the point. If custody is not extended, upon comple- statute and fail to timely schedule and conduct tion of a plan of rehabilitation the court can these review hearings. As noted above, the order an offender’s release from O.J.A. custody. birthday review hearings shall be scheduled at See 10 O.S. §7306-2.10 (C). If the offender fails to the time a youthful offender is sentenced and substantially comply with the terms and condi- remanded to O.J.A. custody. tions of his or her plan of rehabilitation, the court can bridge the offender to the adult sys- ¶25 Our remedy for the Appellant in this tem, transferring custody of the offender from case is to AFFIRM the District Court’s ruling O.J.A. to the Department of Corrections entered on September 29, 2004 and again on (D.O.C.). Id. Of the options outlined in the December 2, 2004, directing O.J.A. to retain cus- Youthful Offender Act allowing for a change in tody of Appellant. This matter is REMANDED an offender’s custody, none allows O.J.A. to to the District Court of Seminole County with release an individual from custody upon reach- instructions to conduct Appellant’s 19th birth- ing the age of 18 or 19 (or any other age) simply day review hearing (which this Court under- because the pre-18th or pre-19th birthday stands has been held in abeyance pending res- review hearing was not conducted. Without an olution of this appeal) consistent with the pro- order from a district court of proper jurisdic- visions of 10 O.S. §7306-2.10.

1640 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 ¶26 IT IS THEREFORE THE ORDER OF ¶1 Kenneth Eugene Hogan, Appellant, was THIS COURT THAT this matter be REMAND- tried by jury in the District Court of Oklahoma ED to the District Court of Seminole County County, Case No. CRF-88-646, and convicted of with instructions for the District Court to con- First Degree Murder. The jury fixed Hogan’s duct the Appellant’s pre-19th birthday review punishment at death and the trial court sen- hearing in accordance with 10 O.S. §7306-2.10. tenced Hogan accordingly. Hogan appealed his Judgment and Sentence to this Court and we ¶27 Pursuant to Rule 3.15, Rules of the Okla- affirmed. Hogan v. State, 1994 OK CR 41, 877 homa Court of Criminal Appeals, Title 22, Ch.18, P.2d 1157.1 The United States Supreme Court App. (2006), the MANDATE is ORDERED denied Hogan’s petition for certiorari, Hogan v. issued upon the delivery and filing of this deci- Oklahoma, 513 U.S. 1174, 115 S.Ct. 1154, 130 sion. L.Ed.2d 1111 (1995), and we denied Hogan’s ¶28 IT IS SO ORDERED. application for post-conviction relief, Hogan v. State, Case No. PCD-95-1337 (Dec. 19, 1996)(not ¶29 WITNESS OUR HANDS AND THE for publication). SEAL OF THIS COURT this 15th day of May, 2006. ¶2 Hogan thereafter sought federal habeas corpus review in the United States District /s/ Charles S. Chapel Court for the Western District of Oklahoma. CHARLES S. CHAPEL, The district court denied relief and Hogan Presiding Judge appealed. The Tenth Circuit reversed and /s/ Gary L. Lumpkin remanded the matter for a new trial, finding GARY L. LUMPKIN, that Hogan’s due process rights were violated Vice Presiding Judge by the trial court’s refusal to instruct the jury on first degree manslaughter. Hogan v. Gibson, 197 /s/ Charles A. Johnson F.3d 1297, 1312 (10th Cir. 1999). Hogan’s case CHARLES A. JOHNSON, was retried March 24 through April 4, 2003 Judge before the Honorable Tammy Bass-Jones. The /s/ Arlene Johnson jury convicted Hogan of First Degree Murder ARLENE JOHNSON, and fixed punishment at death after finding the Judge murder was especially heinous, atrocious, or cruel. The trial court sentenced Hogan to death /s/ David Lewis and he appeals. DAVID LEWIS, Judge I. FACTS ATTEST: /s/ Michael Richie ¶3 Kenneth Hogan and Lisa Stanley had Clerk known each other well for several years before Hogan killed her on January 28, 1988 during an 1. The order actually says that the pre-19th birthday review is to be afternoon visit to her apartment. She had taken conducted June 22, 2004, however it appears that this is a scrivener’s care of his children; he had helped her with error and the actual date should be June 22, 2005. 2. Pursuant to 10 O.S.§7306-2.10(F), the court, upon conducting a schoolwork. Even after her marriage to George review hearing, may, among other things, discharge the youthful Stanley he visited her often in her apartment. offender from O.J.A. custody, revoke an order of probation and place the offender in O.J.A.’s custody; revoke a community supervision There was speculation at trial that their rela- placement; place the offender in a sanction program operated by tionship was a romantic one, but no evidence of O.J.A., bridge the offender to the adult system, or extend jurisdiction and authorize the Office of Juvenile Affairs to retain custody and intimacy. Hogan said he had thought of her as supervision of the offender. a sister. 2006 OK CR 19 ¶4 George Stanley testified that the morning of January 28 had been an ordinary one for the KENNETH EUGENE HOGAN, Appellant, couple. He and Lisa had sorted laundry, eaten vs. STATE OF OKLAHOMA, Appellee. lunch, and smoked a pipe-full of marijuana No. D-2003-610. May 15, 2006 before he left for work before noon. When he returned home that evening, he found his OPINION apartment in a shambles and his wife’s body on A. JOHNSON, JUDGE: the floor of the living room.

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1641 ¶5 Lisa Stanley had been stabbed 25 times HORN: What were they doing. . .what’s with a large knife. She suffered wounds to her this person doing KEN? head, neck, chest, back, and throat. Any one of HOGAN: It was stabbing her and I could- several wounds would have caused her death n’t stop him. . .that’s right. . .I just went quickly. Bloodstain pattern analysis showed over to be friends, I didn’t come over there the stabbing had begun in the kitchen, the vic- to do any harm and now I’ve got to pay. . tim had been upright and moving for a period .it’s not fair. of time during the attack, and the deepest wounds had been inflicted in the living room ¶9 After the stabbing Hogan remained in the where the body was found. apartment and spent some time arranging things to look as if someone else had been ¶6 Within a week, Hogan confessed during “fighting” with Lisa. He tipped over the televi- an interview with Oklahoma City Police sion, emptied the contents of her purse out “to Department Detective Bob Horn that he had make it look like someone was looking for killed Lisa Stanley. The State introduced a tape stuff” and took the bathroom rug, stained with recording of that confession and played it for his blood, away to be burned. the jury. Later, the defense introduced a tran- scription of the same recording. Hogan told ¶10 His decision to confess was not immediate. There was testimony that after he left the Detective Horn that on January 28th he lied to apartment, Hogan drove to an emergency his wife saying he was going to find work, but room for treatment of his cut hand. There he instead had gone to Lisa’s apartment to help gave several stories about the cause of his her with a book report for school. They smoked injury. Later he asked his wife to tell the police “some stuff,” got high and “smoked some he had been home and had injured himself in more.” Trouble began when Lisa insisted he the garage. She testified to that conversation. steal a Pioneer stereo for her. He refused and they argued. ¶11 At trial, there was no dispute that Ken Hogan had killed Lisa Stanley. The salient ¶7 According to his statement, the trouble question for the jury during first stage was escalated when Hogan, angry, prepared to whether Hogan had acted with the deliberate leave. Lisa told him the neighbors could hear intent to take away her life or in a heat of through the walls and threatened to scream passion. that he was raping her. She locked herself in the bathroom. He kicked the door in and threat- II. JURY SELECTION ISSUES ened to tell her mother and her husband secrets A. about certain incidents in her past. She went to the kitchen, returning with a butcher knife ¶12 In Proposition VII, Hogan claims several which she “pushed” at him. He grabbed the rulings made by the trial court during jury blade while she pulled the knife back cutting selection denied him his right to a fair and impartial jury. First, he claims that the trial his hand. Hogan told the detective he “just court erred in refusing to allow defense counsel knew that she was gonna tell the Police that I’d to inquire of a prospective juror whether she tried to rape her, . . . .” could consider other forms of homicide sup- ¶8 The interview continued: ported by the evidence. Hogan maintains the purpose of counsel’s question was to deter- HORN: What’d you do, KEN? mine whether prospective jurors could consid- HOGAN: I killed her. er his heat of passion defense. Without this information, he contends, defense counsel HORN: For the purposes of this report could neither ascertain grounds to dismiss a KEN tell me. . .tell me what happened. prospective juror for cause, nor intelligently HOGAN: It hurts, too much. . . exercise peremptory challenges. We disagree. HORN: How did you kill her? ¶13 The manner and extent of voir dire questioning is discretionary with the trial court. Its HOGAN: With the knife she cut me with rulings will not be disturbed on appeal unless and it wasn’t. . .it was like I wasn’t even the court’s decision was clearly erroneous or there. . .just somebody else. . .it wasn’t even manifestly unreasonable. Lott v. State, 2004 OK me. . . CR 27, ¶96, 98 P.3d 318, 344; Black v. State, 2001

1642 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 OK CR 5, ¶15, 21 P.3d 1047, 1057. To facilitate ¶17 A prospective juror should be excused jury selection, the trial court may restrict ques- for cause when his views on capital punish- tions that are repetitive, irrelevant or in regard ment would prevent or substantially impair the to legal issues upon which the trial court will performance of his duties as a juror in accor- instruct the jury. Black, 2001 OK CR 5, ¶15, 21 dance with the court’s instructions and jurors’ P.3d at 1057. “No abuse of discretion will be oath. Wainwright v. Witt, 469 U.S. 412, 424, 105 found so long as the voir dire questioning is S.Ct. 844, 852, 83 L.Ed.2d 841 (1985); Young v. broad enough to afford the defendant a jury State, 2000 OK CR 17, ¶23, 12 P.3d 20, 32. free of outside influence, bias or personal inter- Prospective jurors must not be irrevocably est.” Id. committed to any one punishment option ¶14 This Court has upheld trial courts who before trial has begun and they must be willing restrict defense theory questions posed to to consider all the penalties provided by law. prospective jurors when the questions seek to Id. In Allen v. State, we stated: test prospective jurors’ willingness to accept [N]ot all who oppose the death penalty are the accused’s theory of defense rather than to subject to removal for cause in capital test their impartiality. Black, 2001 OK CR 5, ¶19, cases; those who firmly believe the death 21 P.3d at 1058; Jackson v. State, 1998 OK CR 39, penalty is unjust may nevertheless serve as ¶12, 964 P.2d 875, 883. Here defense counsel jurors in capital cases so long as they state asked the prospective juror “[i]f the Court . . . clearly that they are willing to temporarily were to give you instructions that encompass set aside their own beliefs in deference to homicides that are not intentional homicides, the rule of law. would you be willing to consider those instructions?” The trial court sustained the State’s 1994 OK CR 13, ¶23, 871 P.2d 79, 90-91 (cita- objection. tions omitted). The wrongful exclusion of an eligible juror in a capital case based solely upon ¶15 The question posed here is somewhat that juror’s opposition to the death penalty can different from the questions condemned in never constitute “harmless error.” See Gray v. Black and those disallowed in Jackson. But as Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, the Jackson court stated, “[w]e are not interest- 2057, 95 L.Ed.2d 622 (1987); DeRosa v. State, ed in whether or not a certain question was 2004 OK CR 19, ¶36, 89 P.3d 1124, 1140, n. 78. allowed to be asked, but rather whether the defendant was allowed sufficient voir dire to ¶18 The thirteen prospective jurors identified determine if there were grounds to challenge a by Hogan were all examined by the trial court particular juror for cause and to intelligently and the parties. Each of them stated unequivo- exercise his preemptory (sic) challenges.” Jack- cally that under no circumstances would they son, 1998 OK CR 39, ¶11, 964 P.2d at 883. impose the death penalty. One of the prospec- Defense counsel here was permitted to ask tive jurors went further, saying that he could prospective jurors whether they believed that not sit in judgment of another under any cir- everyone who kills someone does so intention- cumstances. When questioned by defense ally. Defense counsel was allowed to question counsel all of these prospective jurors affirmed prospective jurors about whether they could that deeply held beliefs against the death consider all the court’s instructions regarding penalty prevented them from considering it. the evidence of intent, and to ask questions Based on this record we find the trial court did testing whether the jurors would listen to both not abuse its discretion in removing these sides of the case and consider all the evidence jurors for cause. before rendering a verdict. The questioning here was broad enough to meet constitutional C. requirements and no relief is required. ¶19 Hogan’s third claim is that the trial court erred in refusing his request to excuse five B. jurors for cause. The record shows that Hogan ¶16 Hogan also claims the trial court erred in used five of his peremptory challenges to excusing thirteen prospective jurors for cause remove these jurors and they did not serve. The without determining whether they could suffi- record further shows that Hogan waived two ciently set aside their opposition to the death of his nine peremptory challenges. Failure to penalty and consider all three available punish- use all peremptory challenges allotted waives ment options, including the death penalty. any objection to the final composition of the

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1643 jury. See Ross v. Oklahoma, 487 U.S. 81, 87-90, 108 any of Hogan’s constitutional rights. Easlick did S.Ct. 2273, 2278-79, 101 L.Ed.2d 80, (1988) not carve out a “state of mind” exception and (requiring defendants to exercise peremptory we are unpersuaded to do so now. challenges to cure the trial court’s erroneous ¶22 Applying the Spuehler standard to the ruling on a challenge for cause and holding any error stemming from a trial court’s erroneous evidence here, we find a rational trier of fact ruling on a cause challenge is grounds for could have found Hogan acted with malice reversal only if the defendant exhausts all aforethought beyond a reasonable doubt when peremptory challenges and an incompetent he stabbed Stanley twenty-five times. Hogan juror is forced upon him.”); see also Battenfield v. admitted he stabbed Stanley multiple times. State, 1998 OK CR 8, ¶20 n. 29, 953 P.2d 1123, The evidence showed that Hogan began his 1129 n. 29. Because Hogan failed to use all of knifing of Stanley near the kitchen, following his peremptory challenges and does not argue her into the living room where he cut her that he was forced to keep an unacceptable throat, severing the carotid arteries on the left juror, he cannot succeed on this claim. side of her neck. The jury rejected Hogan’s heat of passion defense and his claims that he “lost III. FIRST STAGE ISSUES it” and was not in control. The manner of the A. killing and the pattern of the wounds support a finding that Hogan intended to kill Stanley. See ¶20 In Proposition II, Hogan claims his first Cruse v. State, 2003 OK CR 8, ¶5, 67 P.3d 920, degree murder conviction must be modified to 922. This claim is denied. first degree manslaughter because the State failed to prove beyond a reasonable doubt that B. he killed Stanley with malice aforethought. ¶23 In Proposition III, Hogan claims the three Before reaching the merits of this claim, we references made to his previous trial prejudiced must determine the proper standard of review. him.3 Hogan contends informing the jury that Because the prosecution used only circumstan- he had been previously tried for this crime tial evidence to prove he killed with malice diminished jurors’ sense of responsibility in aforethought, Hogan claims this Court should their decision-making responsibilities because 2 use the “reasonable hypothesis” standard. they would reason that he had already been While Hogan acknowledges this Court’s hold- convicted once before of first degree murder. ing in Easlick v. State, 2004 OK CR 21, ¶15, 90 P.3d 556, 559 rejecting the reasonable hypothe- ¶24 In Romano v. State, 1995 OK CR 74, 909 sis test, he claims it remains the proper stan- P.2d 92, we addressed an almost identical dard in cases where the evidence of intent was claim. The Romano court held two references to proved by circumstantial evidence only. the defendant’s prior trial constituted error and a violation of 21 O.S.1991, §951, but concluded ¶21 In Easlick we abandoned the “reasonable the error was harmless. Romano, 1995 OK CR hypothesis” test and stated we would review 74, ¶¶51-52, 909 P.2d at 115. The Romano court all future sufficiency claims under the Spuehler found the error harmless given the strength of standard, whereby the appellate court reviews the evidence against the defendant and the fact a defendant’s appeal of the sufficiency of the that the jury was aware that there had been trial evidence in the light most favorable to the prior proceedings and hearings in the case prosecution to determine whether any rational despite the references. Id. trier of fact could have found the essential elements of the crime charged beyond a reason- ¶25 As was true in Romano, Hogan’s jury was able doubt. See Spuehler v. State, 1985 OK CR well aware that prior proceedings had taken 132, ¶7, 709 P.2d 202, 203-04 quoting Jackson v. place because some of the testimony was pre- Virginia, 443 U.S. 307, 316, 99 S.Ct. 2781, 2787, sented by reading a transcript from Hogan’s 61 L.Ed.2d 560 (1979). Contrary to Hogan’s prior trial. Transcripts from Hogan’s first trial claim that Easlick was not retroactive by its were also used to question and impeach some terms and should not be applied to cases tried of the witnesses. The error here was also miti- prior to the decision, the language in Easlick gated by the trial court’s instructions that cor- clearly expressed this Court’s intent to apply rectly informed the jury of its role and duty in the Spuehler standard in all cases reviewed on this case. The trial court instructed the jurors appeal post Easlick. The retroactive application they were the sole judges of the evidence and of a standard of review does not run afoul of that they should not surrender their own judg-

1644 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 ment, but base their decision on the evidence OK CR 27, ¶96, 98 P.3d 318, 344; Lockett v. State, presented during trial. These circumstances 2002 OK CR 30, ¶19, 53 P.3d 418, 425. Pho- where evidence of guilt was strong dictate a tographs are admissible if they are relevant and finding that the error was harmless. their probative value is not substantially outweighed by the danger of unfair prejudice or ¶26 It is not clear how a reference in the sec- needless presentation of cumulative evidence. ond stage to Hogan’s prior trial could have Lockett, 2002 OK CR 30, ¶19, 53 P.3d at 425; 12 influenced the jury’s sentencing decision. The O.S.2001, §§2402 -2403. jury was never told that Hogan had been previously sentenced to death and that the sen- ¶30 Only eleven photographs depicting Stan- tence had been reversed. This jury was proper- ley at the crime scene were introduced during ly instructed regarding punishment. We can the first stage.4 These photographs were proba- find no reason to believe that the isolated refer- tive because they assisted the jury in under- ence to a prior trial in second stage diverted the standing the crime scene reconstructionist’s jury from its “awesome responsibility” of testimony, assisted the jury in understanding deciding the appropriate punishment. See the State’s theory of how the crime occurred Bland v. State, 2000 OK CR 11, ¶106, 4 P.3d 702, and corroborated parts of Hogan’s confession. 729. The error, if any, was harmless. The fact that State’s Exhibits 4 and 19 show Stanley’s wedding pictures in the background C. does not cause the photographs to be substan- ¶27 In Proposition IV, Hogan claims the tially more prejudicial than probative; the pho- admission of several photographs violated his tos showed the location of Stanley’s body in her right to due process and the Ex Post Facto home where she was killed surrounded, as one Clause of both the federal and state constitu- would expect, by her household possessions. tions. The State introduced fifty-two photo- ¶31 We recognize that the challenged photographs during both stages of trial: twenty-eight graphs may be disturbing to the sensibilities of crime scene photographs; eighteen photo- a normal person. Each of the photographs, graphs depicting Stanley’s body at the crime however, showed a different aspect of the scene, five of Stanley taken at the medical crime scene or a view of different wounds Stan- examiner’s office and one “in life” graduation ley sustained. Their probative value was not photograph. The photographs introduced dur- substantially outweighed by the danger of ing first stage will be considered here and the needless presentation of cumulative evidence. second stage photographs, including the Nor were the photos unfairly prejudicial. The “in life” graduation photograph, will be photos show the crime scene, the victim, and considered with second stage issues. the wounds she sustained during her attack. ¶28 Defense counsel moved in limine to They do not depict the work of a medical exam- exclude the crime scene photographs, arguing iner as an autopsy photograph might, nor are any probative value of the photos was far out- they gratuitously shocking. These pictures weighed by the danger of unfair prejudice. depict the killer’s handiwork. It did not violate Defense counsel objected at trial to State’s due process to show them to Hogan’s jury. See Exhibits 4 and 19 because Stanley’s wedding DeRosa v State, 2004 OK CR 19, ¶73, 89 P.3d pictures were visible in the background of the 1124, 1150. photograph of her body. Defense counsel fur- D. ther objected to the admission of State’s Exhibits 14 and 17 arguing those photos were ¶32 In Proposition VI, Hogan claims he was unfairly prejudicial and to the admission of denied a fair trial by the admission of a privi- State’s Exhibits 15 and 16 because they were leged communication with his wife Tiffany duplicative of State’s Exhibit 14. Defense coun- shortly after Stanley’s death. The conversation sel did not object to State’s Exhibits 3, 6, 11, 12 consisted of Hogan asking Tiffany to lie and and 18. The trial court overruled each of provide him with an alibi for the day Stanley Hogan’s objections. was killed by supporting his claim to police that he was home with her that day and that he ¶29 The decision to admit photographs is cut his hand in the garage.5 Because he never discretionary with the trial court and will not intended for Tiffany to reveal that he told her to be reversed on appeal unless clearly erroneous lie to the police and counted on her to support or manifestly unreasonable. Lott v. State, 2004 his alibi based on their marital relationship, he

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1645 claims that part of the conversation was privi- ¶36 Considering the confidential communi- leged. Before Tiffany testified, defense counsel cation at issue here and the objectives of the objected to her testimony, asserting Hogan’s husband-wife privilege, we find Hogan dis- marital privilege.6 The trial court overruled closed and consented to disclosure of a signifi- Hogan’s objection finding the content of the cant part of the conversation he had with his conversation was intended to be repeated to wife when both he and his wife told police the third parties and was therefore not privileged. alibi he contrived. By voluntarily disclosing The court admitted the conversation between and consenting to disclosure of a significant Hogan and his wife as proof of consciousness part of the confidential conversation he had of guilt. with his wife, Hogan waived the husband-wife privilege as to the entire conversation and the ¶33 In 1978, the Oklahoma legislature enact- trial court did not err in admitting Tiffany’s tes- ed the Oklahoma Evidence Code [hereinafter timony concerning it. 12 O.S. Supp.2002, §2511. Code], which states that every person is competent to be a witness and that no person can IV. FIRST STAGE INSTRUCTIONS refuse to be a witness and disclose information A. unless authorized by law. 12 O.S.2001, §§2501 ¶37 In Proposition I, Hogan challenges the and 2601.7 The legislature codified a confiden- trial court’s first stage jury instructions submit- tial marital communication privilege in the ting heat of passion manslaughter as a lesser Code known as the “Husband-Wife Privilege.”8 included offense. He claims the jury instruc- ¶34 The husband-wife privilege precludes a tions were erroneous and denied him due spouse from testifying in a criminal proceeding process because the instructions did not inform as to any confidential communication between the jury that the State had to disprove his affir- the accused and the spouse. 12 O.S. 2001 §2504 mative defense and prove the absence of heat (B). A communication is confidential and thereof passion beyond a reasonable doubt. Hogan fore privileged if it is made privately by any also claims the trial court’s instructions were person to that person’s spouse, and the content constitutionally deficient because the instruc- of the conversation is not intended for disclo- tions did not adequately inform the jury that sure to any other person. 12 O.S.2001, §2504 heat of passion was his defense or adequately (A). A person waives the privilege if he volun- distinguish between the different mental states tarily discloses or consents to disclosure of any of murder and manslaughter. Hogan acknowl- “significant” part of the privileged matter. 12 edges that Black v. State, 2001 OK CR 5, ¶¶42- O.S. Supp.2002, §2511. 49, 21 P.3d 1047, 1064-67, held the uniform instructions sufficiently distinguish between ¶35 This Court has not defined “significant” the mental states of murder and manslaughter, for purposes of determining when the holder of adequately allocate the burden of proof and a privilege has waived it by disclosing a part of allow the jury to properly consider the an otherwise privileged communication to a manslaughter evidence even in those instances third party. Wigmore would find voluntary tes- where the defendant’s defense is heat of pas- timony concerning a part of any communica- sion and manslaughter is submitted as a lesser tion waives the privilege as to the whole of the included offense. Hogan maintains, however, communication. 8 Wigmore on Evidence, §2327 that Black is not controlling here because the at 638; §2340 at 671-72. Whinery finds that trial court did not use the uniform instructions §2511 is more flexible and “provides a standard and the instructions given failed to adequately within which a court may exercise its discretion instruct the jury on how to evaluate and depending upon the facts of the particular case consider the offense of heat of passion and the objectives to be achieved by the privi- manslaughter. lege in question.” Oklahoma Evidence, vol. 2, ¶38 Hogan did not object to the trial court’s Whinery, §35.13 at 764. We agree with the manslaughter instructions on this basis; his Whinery approach. Courts should consider the failure to do so forfeits any error unless he can facts of the particular case and the objectives of show plain error. See Norton v. State, 2002 OK the particular privilege in judging whether the CR 10, ¶17, 43 P.3d 404, 409; 20 O.S.2001, holder of a privilege has disclosed a significant §3001.1. To be entitled to relief under the plain part of a privileged matter so as to waive the error doctrine, Hogan must prove: 1) the exis- privilege as to the whole communication. tence of an actual error (i.e., deviation from a

1646 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 legal rule); 2) that the error is plain or obvious; son v. New York, 432 U.S. 197, 200-01, 97 S.Ct. and 3) that the error affected his substantial 2319, 2322, 53 L.Ed.2d 281 (1977). In Oklahoma, rights, meaning the error affected the outcome a defendant’s only burden is to raise a reason- of the proceeding. See Simpson v. State, 1994 OK able doubt of his guilt. Merriweather v. State, 12 CR 40, ¶¶3, 11, 23, 876 P.2d 690, 694, 695, 698; 20 P.2d 707, 708 (Okl.Cr.1932); McClatchey v. State, O.S.2001, §3001.1. If these elements are met, 152 P. 1136, 1137 (Okl.Cr.1915). Once a defense this Court will correct plain error only if the is raised the defendant is entitled to an instruc- error “seriously affect[s] the fairness, integrity tion on his theory of defense and the burden of or public reputation of the judicial proceed- persuasion never shifts to the defendant. Kin- ings” or otherwise represents a “miscarriage of sey, 1990 OK CR 64, ¶9, 798 P.2d at 633; Merri- justice.” Simpson, 1994 OK CR 40, ¶30, 876 P.2d weather, 12 P.2d at 708; McClatchey, 152 P. at at 701 (citing United States v. Olano, 507 U.S. 1137. The burden of persuasion remains on the 725, 736, 113 S.Ct. 1770, 1779, 123 L.Ed.2d 508 State to prove each element of the crime (1993); 20 O.S.2001, §3001.1. charged beyond a reasonable doubt and thus to prove beyond a reasonable doubt the absence ¶39 The first step in plain error analysis is to of any affirmative defense raised.11 See Striplin determine whether error occurred. It is settled v. State, 1972 OK CR 175, ¶13, 499 P.2d 446, 449. law that trial courts have a duty to instruct the jury on the salient features of the law raised by ¶42 Hogan’s jury was instructed that the the evidence with or without a request. Atter- State was required to prove each element of berry v. State, 1986 OK CR 186, ¶8, 731 P.2d 420, first degree murder beyond a reasonable doubt 422 citing to Wing v. State, 1955 OK CR 29, ¶34, and that Hogan could not be convicted of that 280 P.2d 740, 747. Jury instructions are suffi- offense unless the State had met its burden. The cient if when read as a whole they state the jury was similarly instructed that it could not applicable law. McGregor v. State, 1994 OK CR convict Hogan of heat of passion manslaughter 71, ¶23, 885 P.2d 1366, 1380. unless the State had proved the elements of that offense beyond a reasonable doubt. These ¶40 Hogan did not dispute that he killed instructions when read as a whole required the Stanley. He defended the first degree murder State to prove Hogan acted with deliberate charge by attempting to convince the jury that intent in killing Lisa Stanley, and, consequently, he did not kill Stanley with a deliberate intent required the State to prove the absence of any but rather acted in a heat of passion. Based on other mental state. The trial court’s instructions his defense, he asked the trial court to give the neither presumed any element nor required uniform instructions on heat of passion Hogan to prove any element in order to reduce manslaughter as a lesser included offense. The the crime to manslaughter.12 trial court gave the uniform manslaughter instructions, submitting the manslaughter ¶43 The instructions were sufficiently clear in offense as a lesser included offense as Hogan explaining the difference between the mental requested. The Court deviated from the uni- state required for first degree murder and the form instructions relating to the jury’s consid- mental state required for manslaughter. As we eration of lesser included offenses and crafted stated in Black: its own.9 These instructions about which The use of “deliberate intent” in the defini- Hogan complains were based largely on tion of malice in Oklahoma connotes an instructions he proposed.10 The question we intent that is thought out or considered must answer is whether the trial court’s before commission of the fatal act, rather instructions adequately stated the applicable than some undefined condition of the mind law. or heart. Because heat of passion requires ¶41 “Legal defenses are matters which go to the defendant to act on the force of a strong the legal exoneration of guilt or evidence which emotion following adequate provocation may reduce the charge to a lesser included that would naturally affect the ability to offense.” Kinsey v. State, 1990 OK CR 64, ¶9, 798 reason and render the mind incapable of P.2d 630, 633. This Court often refers to these cool reflection, i.e., not with a deliberate legal defenses as affirmative defenses. In some intent pre-formed, the Oklahoma defini- jurisdictions, the defendant bears not only a tions of malice and heat of passion show burden of production for his affirmative they cannot co-exist. Although the instruc- defense but a burden of persuasion. See Patter- tions in the instant case do not specifically

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1647 state these mental states cannot co-exist. . ., error that may have occurred here was error the definitions employed to define the invited by Hogan. The trial court gave, almost mental states of murder and heat of passion verbatim, Hogan’s proposed instructions.15 manslaughter sufficiently informed the Reversal cannot be based on such an error. See jury that the differing mens rea elements Lynch v. State, 1995 OK CR 65, ¶7, 909 P.2d 800, were mutually exclusive. 802 (“[w]e will not allow [a]ppellant to invite error and then complain of the same”); Pierce v. * * * State, 1990 OK CR 7, ¶10, 786 P.2d 1255, 1259-60 Although the instructions administered (holding that defendant may not complain of advised the jury procedurally to consider error he invited, and further holding that rever- murder first and only if it had a reasonable sal cannot be based on such error). doubt as to the proof of murder then to B. consider manslaughter, other instructions dictated that the jury consider Appellant’s ¶46 In Proposition V, Hogan argues that the heat of passion evidence in determining if trial court’s refusal to give his requested Appellant possessed a deliberate intent instruction on the “exculpatory statement doc- when he stabbed Pogue. Specifically, in its trine”16 violated due process and his right to consideration of the murder elements, the present his defense. We review the trial court’s jury was instructed to consider the external ruling denying Hogan’s requested instruction circumstances surrounding the commis- for an abuse of discretion. Kinchion v. State, 2003 sion of the homicidal act to determine if OK CR 28, ¶14, 81 P.3d 681, 685. Appellant possessed a deliberate intent to ¶47 The trial court did not abuse its discre- take a human life. Such external circum- tion in refusing to give a jury instruction on stances included Appellant’s “words, con- exculpatory statements because Hogan’s state- duct, demeanor, motive, and all other cir- ment to the police was disproved by other evi- cumstances connected” with the fatal stab- dence in the case. See Kinchion, 2003 OK CR 28, bing of Pogue. Therefore, based on the ¶14, 81 P.3d at 685. Further, Hogan was not instructions administered, we find Appel- prejudiced by the absence of the instruction as lant was not deprived of having the jury the jury was fully instructed on the State’s bur- consider his heat of passion defense in tan- den of proof, the presumption of innocence, dem with the murder charge. As such, we and the voluntariness of his statement. Id. find the instructions administered in this case were constitutionally adequate to V. SECOND STAGE ISSUES ensure that the appropriate burdens of A. proof were allocated to the parties and that the jury was free to consider Appellant’s ¶48 In Proposition VIII, Hogan claims he was defense. denied due process and that the trial court lacked jurisdiction to instruct on the death Black, 2001 OK CR 5, ¶¶48 and 49, 21 P.3d at penalty absent the filing of a new Bill of Partic- 1066-67. ulars for retrial. He maintains that the notice ¶44 The trial court in this case gave the same filed by the State could not constitutionally substantive instructions given in Black on first substitute for a new Bill of Particulars. We dis- degree murder and heat of passion manslaugh- agree. ter, including all of the definitions provided in ¶49 The purpose of filing a Bill of Particulars the uniform instructions. These instructions is to give the defendant notice that the State is when read as a whole sufficiently state the seeking the death penalty based on certain applicable law of this case as they did in Black.13 identified statutory aggravating circumstances For that reason, Hogan cannot show plain so the defendant can prepare a defense. See error. Banks v. State, 1985 OK CR 60, ¶32, 701 P.2d 418, ¶45 Any objections Hogan had to the format 426. When Hogan’s case was reversed and of the instructions or the order in which they remanded for new trial, jurisdiction of this mat- were presented required his objection and sub- ter was returned to the district court for retrial mission of alternative instructions. Not only on the original Information charging Hogan did he fail to object to these particular instruc- with First Degree Murder. In lieu of refiling the tions, they were given at his request.14 Any Bill of Particulars, the State filed a notice seven-

1648 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 teen months prior to Hogan’s retrial, advising “usual” rule that a capital defendant who Hogan of its intent to again seek the death obtains reversal of his conviction on appeal has penalty. The Notice advised Hogan that the had his original conviction nullified and the State intended to offer the same Bill of Particu- slate wiped clean. Id. at 152, 106 S.Ct. at 1753. If lars with the same allegations as the Bill of Par- convicted again, he may be subjected to the full ticulars contained in the Statement Making range of punishment provided by law. Id. The More Definite and Certain filed before his first clean slate rule does not apply, however, if the trial. Seventeen months was sufficient notice to defendant has been acquitted because the pros- allow Hogan to prepare his defense to the Bill ecution did not prove its case for the death of Particulars. Under these circumstances, the penalty. Id. A defendant is acquitted of the State was not required to file a new Bill of death penalty whenever a jury agrees or an Particulars. appellate court decides that the prosecution has failed to prove its case for the death penal- B. ty. See Bullington v. Missouri, 451 U.S. 430, 101 ¶50 At the capital sentencing stage of S.Ct.1852, 68 L.Ed.2d 270 (1981)(defendant sen- Hogan’s first trial, the State introduced evi- tenced to life by a capital sentencing jury has dence of three aggravating circumstances: that been acquitted of the death penalty and the Hogan presented a continuing threat; that the Double Jeopardy Clause forbids the state from murder was especially heinous, atrocious, or seeking the death penalty on retrial in the event cruel; and that Hogan murdered Stanley to the defendant obtains reversal of his convic- avoid arrest or prosecution. The jury unani- tion); Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. mously found the second aggravator was 2305, 81 L.Ed.2d 164 (1984)(sentencer’s finding, proved beyond a reasonable doubt and sen- albeit erroneous, that no aggravating circum- tenced Hogan to death. Nothing in the record stance is present resulting in the imposition of sheds any light on the jury’s treatment of the a life sentence is an acquittal barring a second other two aggravators. capital sentencing proceeding). ¶51 At retrial the State presented evidence of ¶54 The court held in Poland that neither the the heinous, atrocious, or cruel and continuing sentencer nor the reviewing court had decided threat aggravators.17 The second jury, as the that the prosecution had not proved its case for first, made no finding of the continuing threat the death penalty and thus acquitted the peti- aggravator, but unanimously found the murder tioners because both had found evidence of an 18 was especially heinous, atrocious, or cruel and aggravating circumstance. Poland, 476 U.S. at sentenced Hogan to death. 154-55, 106 S.Ct. at 1754-55. The Poland court rejected the argument that a capital sentencer’s ¶52 Hogan argues that the failure of his first failure to find a particular aggravating circum- jury to unanimously find he presented a con- stance alleged by the prosecution constitutes an tinuing threat was an effective acquittal of that “acquittal” of that circumstance for double aggravator which terminated jeopardy, jeopardy purposes. Poland, 476 U.S. at 155-56, invoked the protection of the double jeopardy 106 S.Ct. at 1755. The court refused to “view the clause, and prohibited the State from charging capital sentencing hearing as a set of minitrials it again at his second trial. He argues that Sat- on the existence of each aggravating circum- tazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. stance” because aggravating circumstances are 732, 154 L.Ed.2d 588 (2003) requires that hold- not separate penalties or offenses; rather they ing in this case. We disagree. are the standards that guide the sentencer’s choice between the alternative verdicts of death ¶53 In Poland v. Arizona, 476 U.S. 147, 106 19 S.Ct. 1749, 90 L.Ed.2d 123 (1986) the Supreme and life imprisonment. Id. at 156, 106 S.Ct. at Court considered “whether the Double Jeop- 1755. Poland followed the usual rule, holding ardy Clause bars a further capital sentencing the State is not barred from seeking the death penalty on retrial of a defendant who has not proceeding when, on appeal from a sentence of been acquitted of the death penalty and the death, the reviewing court finds the evidence State may present evidence of any aggravating insufficient to support the only aggravating circumstance supported by the record.20 factor on which the sentencing judge relied, but does not find the evidence insufficient to sup- ¶55 Nothing in Sattazahn abrogates Poland’s port the death penalty.” Poland 476 U.S. at 148, holding and nothing supports Hogan’s 106 S.Ct. at 1751. The Poland court affirmed the argument here. Sattazahn argued that his

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1649 judge-imposed life sentence in lieu of a non- Ring v. Arizona23 in the context of capital sen- finding of death by his jury was a jeopardy-ter- tencing double jeopardy claims.24 Because minating event. The Sattazahn majority dis- aggravating circumstances operate as the func- agreed and found that a jury’s inability to reach tional equivalent of an element of a greater a decision in the penalty phase of a capital trial offense, murder is a distinct lesser included resulting in the imposition of a statutorily man- offense of murder plus one or more aggravat- dated life sentence did not constitute an ing circumstances. Murder exposes a defen- “acquittal” of the offense the Supreme Court dant to a maximum sentence of life imprison- now terms “murder plus aggravating circum- ment; murder plus one or more aggravators stances” sufficient to bar the prosecution from increases the maximum sentence to death. The seeking the death penalty again on retrial. Sat- Sixth Amendment requires that a jury, not a tazahn, 537 U.S. at 112, 123 S.Ct. at 740. The judge, find the existence of any aggravating cir- mere imposition of a life sentence is not an cumstances beyond a reasonable doubt. In Part acquittal of the death penalty for double jeop- III of Sattazahn, a plurality of the court agreed: ardy purposes. To bar the State from seeking the death penalty on retrial, there must be an In the post-Ring world, the Double Jeop- affirmative decision by the defendant’s first ardy Clause can, and must, apply to some jury not to impose a death sentence, i.e. an capital-sentencing proceedings consistent acquittal of the death penalty on the merits. Id. with the text of the Fifth Amendment. If a at 106-07, 123 S.Ct. at 737. Because Sattazahn’s jury unanimously concludes that a State first jury had deadlocked without reaching a has failed to meet its burden of proving the decision regarding aggravating circumstances existence of one or more aggravating cir- and the trial court thereafter imposed a life sen- cumstances, double-jeopardy protections tence, Sattazahn could not establish that the attach to that “acquittal” on the offense of jury had “acquitted” him during his first capi- “murder plus aggravating circumstan- tal-sentencing proceeding. Consequently, jeop- ce(s).” Thus, [Arizona v.] Rumsey [467 U.S. ardy had not terminated; Sattazahn’s successful 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984)] appeal wiped the slate clean and the state was was correct to focus on whether a factfind- permitted to seek the death penalty upon retri- er had made findings that constituted an al. Sattazahn, 537 U.S. at 112-13, 123 S.Ct. at 740. “acquittal” of the aggravating circum- ¶56 Unlike Sattazahn who appealed a life stances; but the reason that issue was cen- sentence imposed by a judge by operation of tral is not that a capital-sentencing pro- law, Hogan appeals a death sentence imposed ceeding is “comparable to a trial,” ... but by a jury on a verdict of guilty on murder plus rather that “murder plus one or more aggravating circumstances. By sentencing aggravating circumstances” is a separate Hogan to death at his first trial on a finding the offense from “murder” simpliciter. murder was especially heinous, atrocious, or Sattazahn, 537 U.S. at 112, 123 S.Ct. at 740.25 cruel, Hogan’s jury clearly did not acquit him of murder plus aggravating circumstances. ¶58 Hogan’s first jury found that the murder Therefore, he cannot make a claim of entitle- was especially heinous, atrocious, or cruel and ment to a life sentence on the basis of either convicted him of murder plus aggravating cir- acquittal or operation of law. In the absence of cumstance(s). Even were we to treat each a jeopardy-terminating event entitling him to a aggravator as a separate offense as Hogan life sentence (i.e., acquittal by jury on aggravat- desires rather than distinguishing as separate ing circumstances and imposition of life sen- offenses murder simpliciter and murder plus tence or finding of insufficient evidence by aggravating circumstance(s), the only thing we appellate court of all aggravators), retrial for know about Hogan’s first jury is that it did not murder plus aggravating circumstances is not unanimously find that the continuing threat 21 barred on double jeopardy grounds. aggravator existed beyond a reasonable doubt. ¶57 Contrary to his claim, Part III of the Sat- This is not the same as a unanimous finding tazahn opinion (joined by three justices) does that the aggravator does not exist at all; some not support his position that his first jury effec- jurors may have found it while others did not.26 tively acquitted him of the continuing threat Jeopardy does not attach and bar retrial in that aggravator. Part III of that opinion discusses situation. See Sattazahn, 537 U.S. at 109, 123 the application of Apprendi v. New Jersey22 and S.Ct. at 738 (stating a retrial following a hung

1650 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 jury normally does not violate the Double Jeop- photograph in a homicide trial neither alters ardy Clause). the definition of any crime nor increases the penalties for that crime. The Ex Post Facto ¶59 For that reason, this case does not impli- Clause is not violated by the application of a cate the concerns of protecting the finality of new evidentiary rule in a capital trial for a acquittals present in Bullington and Rumsey. crime committed before the evidentiary There is no reason to shield a defendant in change. Mitchell v. State, 1994 OK CR 70, ¶51, Hogan’s position from further litigation; fur- 884 P.2d 1186, 1204, overruled on other grounds by ther litigation is the only hope he has. Poland, Mitchell v. Ward, 150 F.Supp.2d 1194 (W.D. 476 U.S. at 156, 106 S.Ct. 1756. Neither does Okla. 1999). Legislative changes in admissible Hogan’s case present the Hobson’s choice dis- testimony or evidence during the second stage cussed by the Sattazahn dissent. Sattazahn, 537 of a capital trial are procedural. Mitchell, 1994 U.S. at 126, 123 S.Ct at 748 (Ginsburg, J., dis- OK CR 70, ¶51, 884 P.2d at 1204. This claim senting)(noting that a defendant in Sattazahn’s therefore is denied. position must relinquish either his right to file a potentially meritorious appeal, or his state- ¶62 Hogan also challenges the constitutional- granted entitlement to avoid the death penal- ity of the amended §2403, arguing the admis- ty). When Hogan appealed and succeeded in sion of an “in-life” photograph without regard overturning his murder conviction and vacat- to the evidentiary balancing test violates due ing his death sentence, the slate was wiped process and makes §2403 vague and overbroad. clean. The State was not barred from retrying Hogan maintains that the blanket admissibility Hogan on murder plus aggravating circum- of such photographs unnecessarily risks stances and presenting evidence to support the exposing jurors to prejudicial information. continuing threat aggravator. ¶63 We presume that a legislative act is con- C. stitutional; the party attacking the statute has the burden of proof that it is not. State v. ¶60 In Proposition IV, Hogan challenges the Thomason, 2001 OK CR 27, ¶7, 33 P.3d 930, 932. introduction of Stanley’s “in-life” photograph We construe statutes, whenever reasonably during second stage. Hogan killed Stanley in possible, to uphold their constitutionality. Id. A January 1988. At the time he committed the statute is void only when it is so vague that crime, “in-life” photographs were inadmissi- men of ordinary intelligence must necessarily ble. See Thornburg v. State, 1999 OK CR 32, ¶23, guess at its meaning. Id. Section 2403 is not 985 P.2d 1234, 1244. In 2002, the Legislature void for vagueness. The words of the statute amended 12 O.S. §2403, permitting the admis- are clear and self-explanatory. sion in a prosecution for any criminal homicide of an appropriate photograph of the victim ¶64 Contrary to Hogan’s claim that §2403 while alive when offered by the district attor- permits the wholesale admission of “in-life” ney to show the general appearance and condi- photographs, the statute makes it clear that tion of the victim while alive. Hogan claims the only one “appropriate” photograph is admissi- admission of Stanley’s “in-life” photograph ble. 12 O.S.Supp.2003, §2403. Inappropriate violated his rights under the Ex Post Facto photographs would be those that violate the Clause because it was not admissible at the balancing test articulated in the preceding sen- time he killed Stanley. tence of that section. Here, the State offered Stanley’s “in-life” photograph, a graduation ¶61 The United States Constitution expressly photograph of Stanley taken in 1986, during prohibits states from enacting ex post facto laws. the second stage victim impact testimony of U.S. Const. art. I, §10, cl. 1. “[T]he focus of the Stanley’s mother. The photograph was offered ex post facto inquiry is not on whether a legisla- “to show the general appearance and condition tive change produces some ambiguous sort of of the victim while alive.” The photograph was ‘disadvantage’ [to affected offenders] ... but on appropriate and its probative value was not whether any such change alters the definition substantially outweighed by the danger of of criminal conduct or increases the penalty by unfair prejudice. The trial court did not abuse which a crime is punishable.” California Dep’t of its discretion in admitting it. Corrections v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct 1597, 1602 n. 3, 131 L.Ed.2d 588 (1995); ¶65 Hogan also challenges the admission of Barnes v. Scott, 201 F.3d 1292, 1295 (10th Cir. twelve photographs introduced during second 2000). Permitting the admission of an “in-life” stage to prove that Stanley’s murder was espe-

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1651 cially heinous, atrocious, or cruel. Hogan however, that Freeman could testify in rebuttal claims he was denied a fair sentencing trial if the defense “opened the door.” Freeman’s because State’s Exhibits 42-44, 64-70, 90-91 testimony would rebut evidence of Hogan’s were extremely gruesome and unfairly good character. 27 prejudicial. ¶69 While the Court ruled that the State ¶66 To prove a murder was especially could call Freeman in rebuttal if his testimony heinous, atrocious, or cruel, the State must would be relevant to rebut Hogan’s character introduce competent evidence indicating the evidence, it refused to advise the defense what victim’s death was preceded by torture or seri- specific evidence of Hogan’s character would ous physical abuse. See Davis v. State, 2004 OK open the door to the State’s rebuttal. In conse- CR 36, ¶39, 103 P.3d 70, 81. To support a find- quence, the defense was faced with a strategic ing of serious physical abuse, the State must decision. However difficult that decision might show the victim endured conscious physical have been, the trial court committed no error suffering prior to death. Id. Exhibits 42, 43, and here. 44 were pictures of cuts on Stanley’s hands showing defensive wounds. These photo- E. graphs were relevant to show that Stanley was ¶70 In Proposition XI, Hogan attacks the vic- conscious during the attack and defending her- tim impact evidence in this case. First, he self. The relevance of these photographs was claims that the probative value of the victim not substantially outweighed by any of the impact evidence was substantially outweighed dangers set forth in 12 O.S.2001, §2403. by the danger of unfair prejudice because it ¶67 The other nine photographs consisted of focused almost exclusively on the emotional seven pictures of Stanley at the scene depicting impact of Stanley’s death on her parents. Sec- close-up shots of Stanley’s various wounds ond, he argues that victim impact evidence has (State’s Ex. 64-70) and two of Stanley at the no place in Oklahoma’s sentencing scheme medical examiner’s office depicting the large because the evidence acts as a “superaggrava- gash wound on her neck from two different tor.” Finally, he contends that its admission in angles (State’s Ex. 90-91). These photographs this case violated the Ex Post Facto Clause. are gruesome. Deciding whether such exhibits ¶71 This Court has consistently rejected are relevant and more probative than prejudi- claims that victim impact evidence acts as a cial, however, is within the trial court’s discre- superaggravator and that its admission in tion. Lockett, 2002 OK CR 30, ¶19, 53 P.3d at 425; criminal trials where the crime was committed 12 O.S.2001, §§2402-2403. The photographs before the legislature passed legislation allow- were relevant and tended to prove that Stanley ing it violates the Ex Post Facto Clause. See suffered abuse prior to her death. The evidence Murphy v. State, 2002 OK CR 24, ¶47, 47 P.3d that Stanley’s death was preceded by serious 876, 886; Mitchell v. State, 1997 OK CR 9, ¶3, 934 physical abuse including conscious physical P.2d 346, 349. Hogan cites no new authority suffering was strong and virtually uncontro- that warrants reconsideration. These claims are verted. On the record before us, we cannot find denied. the trial court abused its discretion in admitting these photographs. ¶72 Hogan claims the trial court erred in admitting the victim-impact evidence in this D. case because it was more prejudicial than pro- ¶68 In Proposition X, Hogan claims that he bative, making it less likely that the jury’s sen- was tactically precluded from calling character tencing decision was a reasoned, moral witnesses in mitigation and from allowing response to the question of whether Hogan other mitigation witnesses to testify fully deserved the death penalty. Hogan claims sev- because of the trial court’s erroneous ruling eral statements by Stanley’s parents referring to concerning State’s rebuttal witness, Kevin Free- her as a “special angel,” and a “gift from God,” man. The trial court barred the State from intro- and Stanley’s mother’s statement, “I loved and ducing certain evidence through Freeman protected Ken’s children and could not com- tending to show Hogan was a continuing prehend that he would hurt mine” were too threat. The court’s ruling was made because emotional and unfairly prejudicial to be con- Freeman’s evidence had not been timely dis- sidered by the jury in determining punishment. closed to the defense. The trial court found, He also objects to Stanley’s mother’s testimony

1652 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 that she had nightmares where she would the evidence in the light most favorable to the wake-up “screaming for Lisa to run.” State to determine whether any rational trier of fact could have found the facts necessary to ¶73 Evidence about the victim and about the support the aggravating circumstance beyond financial, emotional, psychological, and physi- a reasonable doubt. DeRosa, 2004 OK CR 19, cal impact of the murder on the victim’s family ¶85, 89 P.3d at 1153. is admissible. 21 O.S.2001, §701.10(C); 22 O.S.2001, §984. Hogan argues his case is like ¶76 This Court upholds a jury’s finding of Cargle v. State, 1995 OK CR 77, 909 P.2d 806, in this aggravating circumstance when it is sup- which this Court found error in the admission ported by proof of conscious, serious physical of certain victim impact evidence. The Cargle abuse or torture prior to death. Davis, 2004 OK court held that capital sentencing must be reli- CR 36, ¶39, 103 P.3d at 81. The evidence here able, accurate and nonarbitrary and, conse- showed that Hogan stabbed Stanley numerous quently, inflammatory, irrelevant victim impact times. That she remained in an upright position evidence that fails to show the financial, psy- during the stabbing tended to show she was chological or physical impact of the victim’s conscious. The blood pool evidence indicated death on her family, should be excluded. Car- that the fatal, arterial stab wounds did not gle, 1995 OK CR 77, ¶¶81-82, 909 P.2d at 830. occur until the end of the stabbing. Stanley had Trial courts must carefully balance the proba- defensive wounds on her hands from her tive value of particular victim impact evidence attempt to fend off the attack, providing further against the danger of unfair prejudice to the evidence that she had remained conscious. This defendant, and be vigilant to limit such evi- evidence supports a finding beyond a reason- dence that does not fall within the statute per- able doubt that Stanley was conscious and mitting its admission. The prepared statements aware of what was happening to her and that read by Stanley’s parents were not like the vic- she suffered serious physical abuse prior to her tim impact evidence condemned in Cargle; death. rather the statements contained evidence of the ¶77 Finally, Hogan argues that his death sen- emotional, psychological and physical effects tence is not valid because the mitigating evi- of Stanley’s death on her parents. The state- dence outweighed the sole aggravating circum- ments were concise and the emotional refer- stance. Hogan claims that the jury should have ences to Stanley or her death did not render the been instructed, as he requested, that the statements unfairly prejudicial or inadmissible. aggravating circumstances must outweigh the We find the trial court did not abuse its discre- mitigating evidence beyond a reasonable tion in allowing this victim impact evidence. doubt. The failure to so instruct, he contends, F. resulted in the imposition of a death sentence that does not meet the Eighth Amendment’s ¶74 In Proposition IX, Hogan argues that the reliability requirements. We rejected this claim application of the especially heinous, atrocious, in Torres v. State 2002 OK CR 35, ¶¶5-6, 58 P.3d or cruel aggravating circumstance to situations 214, 216, and held that a finding that the aggra- where the evidence shows the decedent’s death vating circumstances outweigh mitigating evi- occurred during an altercation initiated by the dence beyond a reasonable doubt is not decedent renders it unconstitutionally vague required by Ring v. Arizona, 536 U.S. 584, 122 and overbroad unless a finding is required that S.Ct. 2428, 153 L.Ed.2d 556 (2002). Torres is dis- the defendant intentionally inflicted gratuitous positive. This claim is denied. harm beyond that caused by the rage born of the altercation. We have repeatedly upheld the G. constitutionality of this aggravating circum- ¶78 In Proposition XII, Hogan claims that stance and decline to revisit this issue here. Oklahoma’s death penalty statute violates the Duty v. State, 2004 OK CR 20, ¶13, 89 P.3d 1158, Establishment Clause of the First Amendment 1161; Lockett, 2002 OK CR 30, ¶40, 53 P.3d at and is therefore unconstitutional.28 Hogan con- 430. This claim is denied. tends that the effective function of execution as ¶75 Hogan also asserts that the evidence in a punishment is dependent upon the sectarian this case was insufficient to prove that aggra- religious notion of a merit- based afterlife, such vator beyond a reasonable doubt. When the as heaven and hell. Because a neutral post-exe- sufficiency of the evidence supporting an cution existence would not cause the offender aggravator is challenged on appeal, we review to experience the secular purposes of punish-

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1653 ment such as the loss of property, right or priv- (b) persons imprisoned literally for life ilege, Hogan argues the death penalty serves have little incentive to behave properly, no secular function unless the offender post- and execution continues to exist under circum- (c) it is undesirable, costly, and possibly stances contemplated by those religions that inhumane to keep persons in prison adhere to the doctrine of a punitive afterlife. By until they actually die from old age or this reasoning, he argues, the death penalty disease. unconstitutionally advances religion. Holberg, 38 S.W.3d at 140, see also Gregg v. Geor- ¶79 Whether Oklahoma’s death penalty gia, 428 U.S. 153, 183-86, 96 S.Ct. 2909, 2930-31, statute violates the Establishment Clause is a 49 L.Ed.2d 859 (1976)(plurality — social pur- question of first impression for this Court. A poses are retribution and deterrence). statute does not violate the Establishment ¶81 We find the reasoning in Holberg persua- Clause if (1) it has a secular legislative purpose, sive and that the purpose of the death penalty (2) its principal or primary effect neither statute in Oklahoma is likewise punitive in advances nor inhibits religion, and (3) it does nature. The purpose and primary effect of our not create excessive entanglement between death penalty statute is not the advancement of government and religion. Lemon v. Kurtzman, any religion; it does not violate the Establish- 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 ment Clause. L.Ed.2d 745 (1971); Tulsa Area Hosp. Council v. Oral Roberts Univ., 1981 OK 29, ¶14, 626 P.2d ¶82 Next Hogan contends that the justifica- 316, 321. tions for the death penalty are invalid. He argues that the death penalty is neither cost- ¶80 The Texas Court of Criminal Appeals effective nor serves as a deterrent to would-be rejected the claim that Texas’s death penalty offenders. To support this claim Hogan statute violated the Establishment Clause and requests an evidentiary hearing to supplement advanced religion in Holberg v. State, 38 S.W.3d the record with evidence concerning this issue 137 (Tex. Crim. App. 2000). The Holberg court and funding for the presentation of expert tes- stated, “[t]he primary effect of the [death timony on this issue. Not even a clear showing penalty] statutes is penal in nature, not reli- that the death penalty was not cost-effective gious, and the mere fact that the statues are and wholly failed to deter criminal acts would consistent with the tenets of a particular faith justify this Court in abolishing the death penal- does not render the statutes in violation of the ty. The issues Hogan raises here are policy mat- Establishment Clause.” Holberg, 38 S.W.3d at ters clearly within the purview of the legisla- 140. The Holberg court cited the following secu- ture and not the courts. Hogan’s request for an lar beliefs it viewed as supporting the legisla- evidentiary hearing is denied. ture’s decision to enact Texas’s death penalty ¶83 Hogan also argues that Oklahoma’s statutes: death penalty procedure in 21 O.S.2001, §701.11 (1) the death penalty is the only propor- violates the Oklahoma Constitution. Specifical- ly Hogan complains that the jury procedure tional punishment for certain crimes; violates the provisions against special verdicts (2) the death penalty ensures, at a mini- in art. 7, §15. We rejected this argument in mum, that the offender will never harm Romano, 1995 OK CR 74, ¶105, 909 P.2d at 125; anyone again; that case is dispositive here. This claim is denied. (3) the death penalty may deter some persons (professional criminals and those H. already imprisoned for life), and possibly ¶84 In Proposition XIII, Hogan raises six others, from committing murder; and issues previously settled by this Court in order (4) life imprisonment without parole is not to prevent a finding of waiver in any subse- a viable alternative to the death penalty quent state or federal proceedings. Hogan con- because, cedes that we have previously rejected each contention. See Harris v. State, 2004 OK CR 1, (a) capital offenders are a danger to ¶52, 84 P.3d 731, 751(Oklahoma’s capital sen- others in the prison environment, tencing scheme is constitutional; capital defen-

1654 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 dant has neither right to allocution before jury context of the entire trial, considering not only nor right to argue last; defendant has no right the propriety of the prosecutor’s actions, but to separate jury for capital sentencing); also the strength of the evidence against the Williams v. State, 2001 OK CR 24, ¶6, 31 P.3d defendant and the corresponding arguments of 1046, 1049 (instruction defining life without defense counsel. Id. parole in a capital case unwarranted); Al- ¶89 First, Hogan argues that the prosecutor Mosawi v. State, 1996 OK CR 59, ¶78, 929 P.2d “conditioned jurors to equate their responsibil- 270, 287 (it is not error to exclude evidence on ity of ensuring justice with imposing the death the cost-effectiveness of the death penalty);29 penalty” throughout trial. He claims this type Bernay v. State, 1999 OK CR 37, ¶¶49-50, 989 of argument fosters an “us against them” atti- P.2d 998, 1012 (no constitutional right to a jury tude and argues it is improper for a prosecutor instruction making residual doubt a mitigating to tell a jury that the only justice is the prosecu- circumstance). We are not persuaded to recon- tor’s view of justice. He cites portions of two sider any of these issues. The claims raised in segments of the prosecutor’s closing argument Proposition XIII are denied. which read in full: I. What is justice? Because that’s the ultimate ¶85 In Proposition XIV, Hogan claims the issue. What verdict can you walk back into trial court erred in failing to instruct the jury in this courtroom and bring to us and say out second stage that it was to determine the vol- loud that will represent to the parties untariness of his statements to police and dis- involved in this lawsuit justice? Because regard them if it found the statements were not that’s the issue that you now have before voluntary. Because Hogan failed to object and you. Justice. That we talked about all request such an instruction, we review for plain through voir dire. We talked about it — and error only. See Norton, 2002 OK CR 10, ¶17, 43 I know I discussed it with each and every P.3d at 409; 20 O.S.2001, §3001.1. one of you individually, the issue of justice, and the fact that you take an oath to bring ¶86 The record shows, and Hogan concedes, justice to this courtroom. That’s what you that the trial court gave the proper instruction promised me that you would do. concerning the voluntariness of his statements to police in its first stage instructions. The And I would submit to you that based on record further shows that the trial court the law that you have and the facts that instructed the jury that its first stage instruc- you’ve heard that there is no verdict that tions were applicable during second stage represents justice for this (indicating), no where appropriate. The instruction Hogan verdict that you could bring into this court- complains was omitted was in fact incorporat- room that represents justice other than the ed into the trial court’s second stage instruc- penalty of death. And I ask that you go tions. This claim is without merit. upstairs and that you do your duty as VI. PROSECUTORIAL MISCONDUCT jurors and that you return to this courtroom with a verdict of death for Mr. ¶87 In Proposition XV, Hogan argues that Hogan. certain parts of the prosecutor’s closing arguments constitute prosecutorial misconduct and ¶90 There was no objection in either instance. violated his right to due process and a fair trial. This Court condemns arguments that improp- Hogan objected to only one of the comments, erly express a prosecutor’s personal opinion as preserving the error for appeal; we review the to the appropriateness of the death penalty. See remaining remarks identified on appeal for Washington v. State, 1999 OK CR 22, ¶63, 989 plain error only. Matthews v. State, 2002 OK CR P.2d 960, 979; Ochoa v. State, 1998 OK CR 41, 16, ¶38, 45 P.3d 907, 920. ¶55, 963 P.2d 583, 601. This Court, however, has found such comments do not rise to the level of ¶88 In reviewing this due process claim, we plain error where the prosecutor’s remarks must determine whether the prosecutorial mis- were “not phrased in personal terms, but conduct so infected Hogan’s trial that it was appealed to the jury’s understanding of justice rendered fundamentally unfair, such that the and asked that standard be upheld.” Mitchell v. jury’s verdict should not be relied upon. State, 1994 OK CR 70, ¶44, 884 P.2d 1186, 1202. DeRosa, 2004 OK CR 19, ¶53, 89 P.3d at 1145. We When the remarks are taken in context, it is evaluate the alleged misconduct within the clear that the prosecutor was arguing that jus-

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1655 tice required the death penalty be imposed er determines what circumstances are mitigat- under the particular facts and law of Hogan’s ing under the facts and circumstances of any case and was not stating her personal opinion. case. In Harris, we rejected the defendant’s Hogan has failed to show these remarks rise to claim that the prosecutor mischaracterized his the level of plain error. See Lockett, 2002 OK CR mitigating evidence by rhetorically asking the 30, ¶21, 53 P.3d at 425. jury whether it rendered the defendant “less responsible” for his crimes. Harris, 2004 OK CR ¶91 Next Hogan claims that the prosecutor denigrated his defense by arguing that his 1, ¶59, 84 P.3d at 752-53. The prosecutor in statements about Stanley’s death were self- Hogan’s case made this same type of argument. serving and by telling the jury that Hogan As in Harris, the prosecutor’s argument, when “butchered” her. Again, there were no objec- considered in its entirety, took issue with each tions to these statements. These comments did piece of Hogan’s mitigating evidence, but did not deprive Hogan of a fair trial or sentencing. not tell the jury to ignore it. The jury was prop- “Parties have wide latitude, in closing argu- erly instructed on mitigating circumstances. ment, to discuss the evidence and reasonable We find no error here. inferences from evidence, and relief is required ¶95 Fifth, Hogan claims that the prosecutor only where grossly improper and unwarranted argued that all murders deserve the death argument affects a defendant’s rights.” Hanson penalty. Hogan did not object. When the prose- v. State, 2003 OK CR 12, ¶13, 72 P.3d 40, 49. The cutor’s argument is read in context, the prose- prosecutor’s remarks were reasonable infer- cutor told the jury its punishment decision ences based on the evidence. Hogan again fails should fit the crime that Hogan committed. to prove plain error. This argument was not improper and Hogan ¶92 Third, Hogan claims that the prosecutor cannot show plain error. erroneously told the jury not to consider his ¶96 Hogan also argues that the cumulative mitigating evidence when the prosecutor stat- effect of these arguments contributed to his ed, “I would submit to you that certainly with conviction and death sentence. We have found respect to mitigator number six, that there is no no individual error; therefore we do not find proof at all that Mr. Hogan feels one ounce of any relief is warranted when the remarks are remorse for what he did to Lisa Renee Stanley.” considered in the aggregate. There was no objection to this statement. The comment was a reasonable inference based on ¶97 Hogan argues, finally, that to the extent the evidence and thus Hogan cannot prove any of these claims are deemed forfeited by plain error. Id. counsel’s failure to object, he was denied his Sixth Amendment right to the effective assis- ¶93 Fourth, Hogan claims the prosecutor vio- tance of counsel. Having found no error, Hogan lated his right to a fair and reliable sentencing cannot prevail on this claim under the Strick- proceeding by equating guilt with the reduc- land test; he cannot show prejudice. Lockett, tion of moral culpability in its second stage 2002 OK CR 30, ¶15, 53 P.3d at 424. This claim closing argument. Because the purpose of miti- is denied. gating evidence is to reduce moral culpability at sentencing, not legal responsibility for the VII. CUMULATIVE ERROR offense, see OUJI-CR 2d No. 4-78, he contends ¶98 In Proposition XVI, Hogan claims that even the prosecutor’s argument confused the jury if no individual error in his case merits rever- and effectively told it to disregard his mitigat- sal, the cumulative effect of the errors commit- ing evidence entirely. Hogan cites the prosecuted during his trial necessitates reversal of his tor’s argument questioning whether his miti- conviction or modification of his death sen- gating evidence actually mitigated against the 30 tence. This Court has recognized that when death penalty. Hogan objected to this line of there are “numerous irregularities during the argument. The trial court overruled Hogan’s course of [a] trial that tend to prejudice the objection, but told the prosecutor to “read the rights of the defendant, reversal will be instruction” defining mitigating evidence. required if the cumulative effect of all the errors ¶94 “Mitigating circumstances are those was to deny the defendant a fair trial.” DeRosa, which, in fairness, sympathy, and mercy, may 2004 OK CR 19, ¶100, 89 P.3d at 1157 (quoting extenuate or reduce the degree of moral culpa- Lewis v. State, 1998 OK CR 24, ¶63, 970 P.2d bility or blame.” OUJI-CR2d 4-78. The fact find- 1158, 1176). We have reviewed Hogan’s claims

1656 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 for relief and the record in this case and con- McKESSON, ASSISTANT PUBLIC DEFEND- clude that, although his trial was not error free, ERS, OKLAHOMA COUNTY, 320 ROBERT S. any errors and irregularities, even when con- KERR, SUITE 611, OKLAHOMA CITY, OK sidered in the aggregate, do not require relief 73102, ATTORNEYS FOR DEFENDANT, because they did not render his trial funda- SANDRA ELLIOTT, SUZANNE GUMP, ASSIS- mentally unfair, taint the jury’s verdict, or ren- TANT DISTRICT ATTORNEYS, OKLAHOMA der sentencing unreliable. Any errors were COUNTY, 320 ROBERT S. KERR, SUITE 505, harmless beyond a reasonable doubt, individu- OKLAHOMA CITY, OK 73102, ATTORNEYS ally and cumulatively. FOR THE STATE. VIII. MANDATORY SENTENCE REVIEW APPEARANCES ON APPEAL ¶99 In Proposition XVII, Hogan contends CAROLYN L. MERRITT, ASSISTANT PUBLIC that his death sentence cannot be upheld under DEFENDER, OKLAHOMA COUNTY, 320 this Court’s mandatory sentence review. Title ROBERT S. KERR, SUITE 611, OKLAHOMA 21 O.S.2001, §701.13 requires this Court to CITY, OK 73102, ATTORNEY FOR APPEL- determine “[w]hether the sentence of death LANT. was imposed under the influence of passion, prejudice or any other arbitrary factor; and W. A. DREW EDMONDSON, ATTORNEY whether the evidence supports the jury’s or GENERAL OF OKLAHOMA, JENNIFER J. judge’s finding of a statutory aggravating cir- DICKSON, PRESTON SAUL DRAPER, ASSIS- cumstance.” After conducting this review, this TANT ATTORNEYS GENERAL, 112 STATE Court may order any corrective relief that is CAPITOL BUILDING, OKLAHOMA CITY, OK warranted or affirm the sentence. 21 O.S.2001, 73105, ATTORNEYS FOR APPELLEE. §701.13(E). OPINION BY: A. JOHNSON, JUDGE ¶100 We have reviewed the record in this CHAPEL, P.J.: Dissent case in conjunction with Hogan’s claims for LUMPKIN, V.P.J.: Concur in Results relief and have found that Hogan’s conviction C. JOHNSON, J.: Concur and death sentence were not the result of trial LEWIS, J.: Concur. court error, prosecutorial misconduct, or 1. Hogan filed his Petition in Error on December 1, 2003. Hogan’s improper evidence or witness testimony. We Brief in Chief was filed on July 26, 2004. The State’s brief was filed on therefore find Hogan’s death sentence was not November 23, 2004. This Court heard oral argument on August 23, imposed because of any arbitrary factor, pas- 2005. 2. Under the reasonable hypothesis standard, this Court would sion, or prejudice. review the evidence in the light most favorable to the State to determine whether the circumstantial evidence ruled out all reasonable ¶101 We have also upheld the jury’s finding hypotheses except that Hogan acted with malice aforethought. that the murder was especially heinous, atro- 3. The first reference occurred when defense counsel asked Tiffany Harrington whether this was the first time she testified regarding this cious, or cruel because the aggravating circum- incident. Harrington answered, “Except for the first trial.” The next stance is factually substantiated. The Judgment instance occurred during the prosecution’s cross-examination of a defense witness. The prosecutor asked, “In fact, at the prior trial, you and Sentence of the trial court is AFFIRMED. and I spoke, did we not?” Defense counsel objected, moved for a mistrial but did not ask the trial court to admonish the jury. The trial court AN APPEAL FROM THE DISTRICT COURT sustained the objection, but denied the motion for a mistrial. The final OF OKLAHOMA COUNTY instance occurred during second stage when Investigator Bud Argo testified that he did not think he could identify Hogan. The prosecutor THE HONORABLE TAMMY BASS-JONES, refreshed Argo’s memory with the transcript from Hogan’s first trial, DISTRICT JUDGE reading the portion where Argo identified Hogan and asking Argo if he recalled his testimony. Argo stated, “Yes, that was in the first trial.” KENNETH EUGENE HOGAN, Appel- Defense counsel asked for a second stage mistrial. The trial court admonished the prosecutor to couch her questions requiring only a yes lant, was tried by jury and convicted of or no response and denied Hogan’s motion for a mistrial. First Degree Murder in the District Court of 4. The State showed photographs of Stanley in State’s Exhibits 42- 44, 65-70, and 90-91 to the medical examiner during first stage, but did Oklahoma County, Case No. CRF-88-646. not introduce these exhibits until second stage. The Honorable Tammy Bass-Jones, District 5. The prosecutor asked Hogan’s former wife during trial: Judge presided and sentenced Hogan to Q. (Prosecutor) At some point prior to going to the police department and after the police had called to try to question your death in accordance with the jury’s verdict. husband, did you and he have some discussion about what to say Hogan perfected this appeal. Judgment to the police? A. (Tiffany Hogan Harrington) Yes. and Sentence is AFFIRMED. Q. Okay. Can you please describe that for us? A. To tell them that he was home all day? APPEARANCES AT TRIAL Q. Okay. And what did he tell you to tell them about the injury to his hand? CATHERINE HAMMARSTEN, ANTHONY A. That he had cut a hose in the garage.

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1657 Q. Okay. And did you do that? (holding Due Process Clause requires the prosecution to prove beyond A. Yes. a reasonable doubt all of the elements included in the definition of the Q. So you told that to the police when they first questioned charged offense and New York law that requires the defendant in a sec- you? ond degree murder prosecution to prove by a preponderance of the A. Yes. evidence the affirmative defense of extreme emotional disturbance in Q. It is a certain fact that at some point during your inter- order to reduce the crime to manslaughter when no element of the view with the detectives you told them that that, in fact, was not charged offense is presumed does not violate the Due Process Clause); true? Mullaney v. Wilbur, 421 U.S. 684, 703-04, 95 S.Ct. 1881, 1892, 44 L.Ed.2d A. Yes. 508 (1975) (holding State must prove every element of an offense Q. And do you recall at what point it was during the inter- beyond a reasonable doubt and a scheme that shifts the burden of proof view that you told them the truth that Mr. Hogan had not, in fact to the defendant by presuming a fact upon proof of the other elements been at home? of the offense violates due process). A. Yes. 13. The dissent contends the Court here upholds an infirm verdict Q. And did you tell the police everything that Mr. Hogan resting on faulty jury instructions. The dissent maintains, contrary to had said to you that he intended for you to convey to the police this Court’s holding in Black, that the mental states of malice afore- officers? thought and heat of passion are not sufficiently distinguished by the A. Yes. uniform instructions. And therefore, due process requires an instruc- (Tr.6 at 188-89) tion informing the jury that the State must disprove the heat of passion 6. Defense counsel first objected to testimony about the conversa- manslaughter defense even when the defendant has requested the tion between Hogan and his wife during the State’s opening statement. court submit heat of passion manslaughter as a lesser included offense. 7. Section 2501 provides in part: Malice aforethought murder requires the defendant not only intend to Except as otherwise provided by constitution, statute or rules kill but form a deliberate intention to take away the life of another per- promulgated by the Supreme Court no person has a privilege son. OUJI-CR2d 4-62. A deliberate act is one that requires a cool mind to: that is capable of reflection. Heat of passion manslaughter, on the other 1. Refuse to be a witness; hand, is a homicide committed by a person who is incapable of that 2. Refuse to disclose any matter. cool reflection called for by the requirement of deliberation because of Section 2601 provides that every person is competent to be a witness intense emotion caused from actions of the victim. OUJI-CR2d 4-95, 4- except as otherwise provided in the Oklahoma Evidence Code, 12 97, 4-98, 4-99, 4-100 and 4-101. It is the provocation of the deceased that O.S.2001, §§2101 et seq. causes the passion or emotion of the defendant and it is that passion or 8. At the same time the legislature enacted the Code, it repealed the emotion that causes the defendant to perpetrate the act which results in Code of Civil Procedure’s privilege of spousal immunity, also known death. OUJI-CR2d 4-101. Acting in the heat of passion need not over- as spousal disqualification, that forbids a spouse from being a witness come the killer’s reason or destroy free exercise of choice; rather the against the other. See 12 O.S., §385(3) (providing that husbands and sudden passion precludes deliberation and causes the killer to act. wives were incompetent to be witnesses for or against each other 14. As we stated in Black, “[t]hat is not to say more specific instruc- except concerning transactions in which one acted as the agent of the tions, if requested, [setting forth heat of passion manslaughter as a other or when they were joint parties and had a joint interest in the defense rather than a lesser included offense] are not desirable.” Black, action.) Section 385 also contained a broad confidential marital com- 2001 OK CR 5, ¶48 n. 17, 21 P.3d at 1067 n. 17. munication privilege. The legislature repealed the Code of Criminal 15. See note 10, supra. Procedure’s privilege of spousal immunity four years later. See 22 O.S., 16. The “exculpatory statement doctrine” states: §702 (providing “neither husband nor wife shall in any case be a wit- An exculpatory statement is defined as a statement by the ness against the other except in a criminal prosecution for a crime com- defendant that tends to clear a defendant from alleged guilt, mitted one against the other, or except in a criminal prosecution against or a statement that tends to justify or excuse his/her actions either the husband or the wife, or both, for a felony committed by or presence. either, or both, against the minor children of either the husband or the Where the State introduces in connection with a confession or wife, but they may in all criminal cases be witnesses for each other, and admission of a defendant an exculpatory statement, which, if shall be subject to cross-examination as other witnesses, and shall in no true, would entitle him/her to an acquittal, he/she must be event on a criminal trial be permitted to disclose communications acquitted unless such exculpatory statement has been dis- made by one to the other except on a trial of an offense committed by proved or shown to be false by other evidence in the case. one against the other or except on a trial of a felony committed by one, The falsity of an exculpatory statement may be shown by cir- or both, against the minor children of either the husband or the wife.”) cumstantial as well as by direct evidence. Prior to the adoption of the Code, §702 made it clear that in all but a A statement is exculpatory within the meaning of this very narrow range of circumstances the marital privilege could be instruction only if it concerns a tangible, affirmative, factual invoked to prevent one spouse from testifying against the other. Lavicky matter capable of specific disproof. A statement is not excul- v. State, 1981 OK CR 87, ¶6, 632 P.2d 1234, 1236. In contrast, the Code patory within the meaning of this instruction if it merely “limits the marital privilege, in criminal cases, to “confidential com- restates the defendant’s contention of innocence. munications.’” Id. See also Evidence Subcommittee’s Note to 12 O.S., OUJI-CR 2d 9-15 §2504. 17. The State did not pursue the avoid arrest aggravator at Hogan’s 9. Instruction No. 13 substantially sets forth the procedure con- retrial. tained in the uniform instructions for consideration of lesser included 18. The petitioners in Poland were convicted of a double murder offenses. It properly informed the jury of the punishment range for arising out of a robbery of a currency courier. Id. at 149, 106 S.Ct. at manslaughter and that the issue of punishment for first degree murder 1752. At the penalty phase, the State sought to prove the existence of was not before the jury at that time. two statutory aggravating circumstances to justify imposition of the 10. Hogan’s requested instructions on manslaughter as a lesser death penalty: (1) the murder was committed for pecuniary gain; and included offense were filed and the record shows the trial court includ- (2) the murder was especially heinous, cruel or depraved. Id. The trial ed them all in its instructions, rearranging the order of a few sentences judge, acting as sentencer, rejected the “pecuniary gain” circumstance and paragraphs concerning how to consider lesser included offenses. on the theory that the circumstance required proof of a contract killing 11. This burden is reflected in the uniform instructions on defenses. and there was no proof of such in the record. Id. The trial judge found See OUJI-CR2d 8-5 (burden of proof for defense of another; OUJI-CR2d that the State had proved that the murders were “especially heinous, 8-17 (burden of proof for defense of property); OUJI-CR2d 8-22 (burden cruel or depraved,” that this circumstance outweighed any mitigating of proof for duress); OUJI-CR2d 8-26 (burden of proof for entrapment); evidence and sentenced the petitioners to death. Id. OUJI-CR2d 8-30 (burden of proof for excusable homicide); OUJI-CR2d On appeal, the Arizona Supreme Court reversed the convictions 8-33 (burden of proof for insanity); OUJI-CR2d 8-38 (burden of proof and death sentence finding among other errors that the evidence was for voluntary intoxication); OUJI-CR2d 8-44 (burden of proof for invol- insufficient to support the aggravating circumstance that the murders untary intoxication); and OUJI-CR2d 8-49 (burden of proof for self- were “especially heinous, cruel or depraved.” Id. at 150, 106 S.Ct. at defense). 1752. The court held the trial judge erred in finding that the pecuniary 12. These instructions satisfy In re Winship, 397 U.S. 358, 364, 90 gain circumstance was limited to contract killings and therefore the cir- S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970)(holding that the Due Process cumstance could be considered on retrial. Id. Clause protects the accused against conviction except upon proof At retrial, the petitioners were again convicted and sentenced to beyond a reasonable doubt of every fact necessary to constitute the death. Id. The petitioners appealed to the Arizona Supreme Court argu- crime charged). Cf. Patterson, 432 U.S. at 214-16, 97 S.Ct. at 2329-30 ing, inter alia, that the Double Jeopardy Clause barred reimposition of

1658 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 the death penalty because the appellate court had previously acquitted judge, but instead, those factors are facts (like elements of an offense) them by finding the evidence insufficient to support the sole aggrava- that must be found by a jury beyond a reasonable doubt. Not only does tor found by the sentencer. Id. at 151, 106 S.Ct. at 1753, 90 L.Ed.2d at the dissent misread Sattazahn, it would reject controlling authority by 129. The Arizona Supreme Court rejected the double jeopardy claim attempting to divine what may happen in a future case. and affirmed the death sentence. Id. The United States Supreme Court 25. While these justices equate aggravators with elements of a affirmed the Arizona Supreme Court’s decision. Id. crime, that does not mean a jury’s failure to find a particular aggravat- 19. As under Arizona’s capital sentencing scheme, an Oklahoma ing circumstance alleged by the prosecution constitutes an acquittal. capital sentencing jury’s finding of any particular aggravating circum- Rather, aggravators are elements that, if proven, establish the greater stance does not of itself “convict” a defendant and require the death offense of murder plus aggravating circumstances. If the jury rejects the penalty, and its failure to find any particular aggravating circumstance one or more aggravators alleged and sentences the defendant to life, does not “acquit” a defendant and preclude the death penalty. the defendant has been acquitted of murder plus aggravating circum- 20. The dissent acknowledges that Hogan can prevail only if this stances and jeopardy attaches to that acquittal. Sattazahn, 537 U.S. at Court declines to follow Poland. 112, 123 S.Ct. at 740. Such a finding is consistent with the court’s prior 21. The dissent misconstrues our holdings in Crawford v. State, 1992 cases. The converse is if the defendant is not acquitted of murder plus OK CR 62, 840 P.2d 627, 640-41, Cheney v. State, 1995 OK CR 72, 909 P.2d aggravating circumstances and successfully appeals, the state can seek 74, and Perry v. State, 1995 OK CR 20, 893 P.2d 521, 533-37, and misun- derstands the Sattazahn distinction between a jury’s non-finding of an the death penalty using any aggravator supported by the record. Id. at aggravating circumstance and an acquittal on the merits of murder 113, 123 S.Ct. 740. plus aggravating circumstances that entitles a defendant to a life sen- 26. The Sattazahn court found that a lack of findings with respect to tence. Crawford, Cheney, and Perry are examples of cases in which this an aggravator is not an acquittal. Sattazahn, 537 U.S. at 109, 123 S.Ct. at Court found the state did not prove its case for the death penalty, a 738 (“that non-result-cannot fairly be called an acquittal ‘based on find- finding that constitutes an acquittal of murder plus aggravating cir- ings sufficient to establish legal entitlement to the life sentence.’”) cumstances and legally entitled those defendants to life sentences. Con- 27. Freeman, Hogan’s cousin, did testify that he and Hogan bur- trary to the dissent’s claim, these cases do not stand for the proposition glarized some businesses together around the time of the homicide and that this Court rejected Poland in any manner for almost ten years or that Hogan had admitted shooting BB’s at a closed convenience store found that the jury’s failure to find a particular aggravator constitutes because he was angry over being fired. The trial court did not allow an acquittal. This point is further supported by the fact that this Court Freeman to testify that Hogan had stolen a gun from his parents to cited Poland approvingly in Romano v. State, 1995 OK CR 74, ¶66-68, 909 shoot out the windows in the convenience store or that Hogan had P.2d 92, 117-18, a case decided eleven days after Cheney. indicated that if he ever encountered a witness during one of their bur- 22. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that glaries, they would have to kill the witness so they could not be iden- if the existence of any fact increases the maximum punishment that tified. The trial court also precluded Freeman from testifying that may be imposed on a defendant, that fact constitutes an element that Hogan asked him and another accomplice to break into pawn shops to must be found by a jury beyond a reasonable doubt). steal guns to use in their burglaries and that they declined because they 23. 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (holding that were afraid Hogan would use a gun during a burglary. Sixth Amendment requires that a jury, not a judge, find the existence of 28. The Establishment Clause of the First Amendment of the Unit- any aggravating circumstance, and that they be found beyond a rea- ed States Constitution provides that “Congress shall make no law sonable doubt). Hogan’s aggravators were tried to a jury, not a judge. respecting an establishment of religion.” This guarantee was made There is no Ring issue here. applicable to the states by the Due Process Clause of the Fourteenth 24. The dissent counts two of the justices joining Part III (Rehn- Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, quist, C.J., now deceased, was the third justice joining Part III) and the 903, 84 L.Ed. 1213 (1940). four dissenters in Sattazahn as rejecting the doctrinal basis for the 29. We denied Hogan’s request for an evidentiary hearing and Poland decision. This position is not supported by a careful reading of funds for an expert on the cost effectiveness and deterrent value of the Sattazahn. In Part II of the Sattazahn decision, five justices spoke approvingly of the so-called Bullington line of cases which includes death penalty in Proposition XII, supra. Poland: 30. Hogan quotes a part of one sentence from the five pages that he Under the Bullington line of cases just discussed, the touch- references for this complaint. The sentence in full reads, “I would sub- stone for double-jeopardy protection in capital-sentencing mit to you based on the evidence that you’re going to find that the State proceedings is whether there has been an “acquittal.” Peti- of Oklahoma has in fact proved the aggravators and that in fact the mit- tioner here cannot establish that the jury or the court igators don’t exist or certainly could not in any way reduce his culpa- “acquitted” him during his first capital-sentencing pro- bility for this offense.” ceeding. As to the jury: The verdict form returned by the foreman stated that the jury deadlocked 9-to-3 on CHAPEL, JUDGE, DISSENTING: whether to impose the death penalty; it made no findings with respect to the alleged aggravating circumstance. ¶1 I dissent from today’s opinion because I That result — or more appropriately, that non-result — cannot fairly be called an acquittal “based on findings suf- disagree with the majority’s resolution of ficient to establish legal entitlement to the life sentence.” Propositions I, V, VI, and VIII of Hogan’s Sattazahn, 537 U.S. 101 at 109 (quoting Arizona v. Rumsey, 467 U.S. 203, 1 211 (1984) and referring with approval to Bullington v. Missouri, 451 U.S. appeal. 430 (1981) and Poland v. Arizona, 476 U.S. 147 (1986))(emphasis added). The Sattazahn dissenters grappled with the issue of whether jeop- ¶2 Hogan admitted that he killed Lisa Stan- ardy is terminated by entry of a state-mandated life sentence when the ley. His defense to the first-degree murder jury deadlocks on punishment. The dissent here contends that footnote 6 of the Sattazahn dissent, when combined with the position of the jus- charge against him was that he killed her in a tices in the Part III plurality, establishes that a capital sentencing pro- “heat of passion,” which constituted first- ceeding is a mini trial on each individual aggravator and that a jury’s failure to find a particular aggravator constitutes an acquittal. In foot- degree manslaughter rather than malice-afore- note 6, the Sattazahn dissent states “[t]his Court has determined . . . that thought murder. In Proposition I, Hogan claims for purposes of the Double Jeopardy Clause, capital sentencing proceedings involving proof of one or more aggravating factors are to be that his jury should have been instructed on his treated as trials of separate offenses, not mere sentencing proceedings.” theory of defense, i.e., that the killing was heat- Id. at 126 n. 6, 123 S.Ct. at 747 n. 6). Footnote 6 only acknowledges the Court’s post-Apprendi/Ring jurisprudence that capital sentencing proof-passion manslaughter, and that the State ceedings involve proof of facts that are functional equivalents of ele- was required to prove, beyond a reasonable ments of offenses and thus, to that extent, capital sentencing proceedings are to be treated as “trials of separate offenses,” the separate doubt, that he did not kill in the heat of pas- 2 offenses being murder plus aggravating circumstances and murder sion. Today’s majority opinion accepts all the simpliciter. It means only that under Ring, capital sentencing proceed- basic components of Hogan’s argument, but ings are no longer proceedings in which sentence enhancing factors are found and applied in some discretionary manner by a sentencing declines to reach the conclusion they portend.

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1659 ¶3 The majority opinion accepts the follow- emphasized that Davis, unlike the defendants ing components of Hogan’s argument. First, in Mullaney and Lofton, did not present a heat- “trial courts have a duty to instruct the jury on of-passion defense, since his “sole defense at the salient features of the law raised by the evi- trial was self-defense.”13 Finally, after examin- dence with or without a request.”3 Second, ing the specific jury instructions at issue, the Hogan “defended the first degree murder Davis court concluded that these instructions, charge by attempting to convince the jury that “unlike those in Lofton, explicitly defined mal- he did not kill Stanley with a deliberate intent ice and heat of passion as mutually exclusive.”14 but rather acted in a heat of passion.”4 Third, Thus the finding by Davis’s jury that he killed “[o]nce a defense is raised[,] the defendant is with malice aforethought “necessarily implies entitled to an instruction on his theory of the absence of heat of passion.”15 defense.”5 Fourth, “[t]he burden of persuasion remains on the State to prove each element of ¶7 In McCormick v. State,16 our Court the crime charged beyond a reasonable doubt addressed the “unique situation” where the and thus to prove beyond a reasonable doubt offense of heat-of-passion manslaughter “func- the absence of any affirmative defense raised.”6 tioned not as simply an alternative to the charge of murder, but as an affirmative defense ¶4 Thus the logical legal conclusion to draw to the crime charged by the State.”17 Although from the Court’s analysis appears to be that McCormick’s jury was instructed on the ele- once sufficient evidence has been presented at ments of heat-of-passion manslaughter, the trial to raise the affirmative defense (to a first- degree murder charge) of heat-of-passion trial court refused to give an additional instruc- manslaughter, the trial court should be tion specifically informing the jury that it could required, with or without a request from the only convict McCormick of first-degree murder defendant, to instruct the jury that heat-of-pas- if the State proved, beyond a reasonable doubt, 18 sion manslaughter is the defendant’s defense that he was not acting in the heat of passion. and to instruct the jury that in order to convict While this Court acknowledged the appropri- the defendant of first-degree murder, the State ateness of such an instruction, we ruled that the is required to establish, beyond a reasonable trial court’s failure to so instruct was not doubt, that the defendant was not acting in the reversible error.19 We found that McCormick’s heat of passion. This conclusion is also the case was more like Davis than Lofton, because it logical extension of the precedents of this involved jury instructions that were “mutually Court. exclusive.”20 “[T]he language used by the trial

7 court was unequivocal; a murder conviction ¶5 In Mullaney v. Wilbur, a unanimous required proof of a deliberate intent to kill[,] Supreme Court held that “the Due Process while manslaughter should be found if the Clause requires the prosecution to prove killing was done without a design to effect beyond a reasonable doubt the absence of the death.”21 Thus the instructions defined the two heat of passion on sudden provocation when mental states and the two crimes such that they the issue is properly presented in a homicide 22 case.”8 In United States v. Lofton,9 the Tenth Cir- did not overlap and could not co-exist. cuit Court of Appeals concluded that “Mullaney ¶8 This brings us to Black v. State,23 in which requires us to hold that a defendant in a feder- this Court addressed jury instructions just like al murder case who has sufficiently raised a the ones used at Hogan’s trial and a challenge heat of passion defense is entitled to instruc- just like the one being made in Hogan’s tions informing the jury of the theory of appeal.24 I do not dispute the majority’s asser- defense and of the Government’s duty to prove tion that under the analysis of Black, Hogan’s beyond a reasonable doubt the absence of heat Proposition I claim fails. I maintain, however, of passion in order to obtain a murder that the analysis of Black on this issue was and 10 conviction.” is flawed and inconsistent with our caselaw. ¶6 In Davis v. Maynard,11 the Tenth Circuit Furthermore, the faulty analysis of Black has Court of Appeals considered an Oklahoma needlessly delayed the salutary adoption of a defendant’s habeas corpus challenge to the jury uniform jury instruction addressing the proper instructions in his first-degree murder trial. The approach to a defendant’s assertion of heat-of- Davis court began by emphasizing the limited passion manslaughter as an affirmative defense context of habeas review.12 The court also to first-degree murder.25

1660 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 ¶9 The first-degree murder defendant in Black such as fear, terror, anger, rage or resent- — like the defendants in Mullaney, Lofton, and ment. This passion or emotion must have McCormick, and like Hogan — invoked heat-of- existed to such a degree as would naturally passion manslaughter “not simply as an alterna- affect the ability to reason and render the tive to the charge of murder, but as an affirma- mind incapable of cool reflection. However, tive defense to the crime charged by the State.”26 the passion need not have been such as would Although Black’s jury was instructed regarding entirely overcome reason, or be so overpowering the elements of first-degree murder and the less- as to destroy free exercise of choice. . . .35 er offense of heat-of-passion manslaughter, Nevertheless, the Black opinion concluded that, according to all of the current uniform instruc- under these instructions, acting in the “heat of tions for these offenses, his jury was not advised passion” and acting with “deliberate intent” are that heat-of-passion manslaughter was his “mutually exclusive” and that these mental defense, nor was his jury informed that the State states “cannot co-exist.”36 had to disprove this defense, in order for him to be convicted of first-degree murder.27 Black chal- ¶12 This analysis, upon which today’s majori- lenged the trial court’s failure to instruct on ty opinion rests its rejection of Hogan’s Proposi- these two issues, just as Hogan does in the cur- tion I claim, is indefensible. While it was plausi- rent appeal.28 ble to conclude that the instructions used in McCormick — where heat-of-passion ¶10 We acknowledged in Black that “this manslaughter was defined as a homicide “per- Court has been inconsistent in its rulings on petrated without a design to effect death”— whether a defendant can commit heat of passion made the mental states for heat-of-passion manslaughter if the defendant intended to manslaughter and first-degree murder “mutual- 29 kill.” We concluded, however, that we did not ly exclusive,” such a conclusion cannot be sus- need to resolve this inconsistency in Black, tained when this lack of a “design to effect because the instructions used in Black’s case did death” has been eliminated from the instruction not contain any language defining manslaugh- defining the elements of heat-of-passion ter as a homicide “perpetrated without a design manslaughter, particularly when the above- 30 to effect death.” Instead, Black’s jury was quoted definition of “passion” is given. instructed that a conviction for heat-of-passion manslaughter required the State to prove: 1) the ¶13 Our uniform instruction defining what death of a human; 2) caused by the defendant; 3) kind of “passion” must exist for heat-of-passion the death was not excusable or justifiable; 4) the manslaughter makes quite clear that acting in death was inflicted by means of a dangerous the “heat of passion” and acting with “deliber- 37 weapon; and 5) when performing the conduct ate intent” are not mutually exclusive. which caused the death, defendant was in a heat Although the heat of passion can “affect” a per- of passion.31 Hence Black’s jury was not required son’s ability to reason, it does not necessarily to make such a finding, and any inconsistency “overcome reason” or “destroy free exercise of regarding this element could not have preju- choice.” Hence a jury can properly convict a diced Black.32 defendant of heat-of-passion manslaughter, even though the jury believes that the defendant ¶11 Remarkably, after emphasizing that had a deliberate intent to kill.38 Black’s jury was not instructed that heat-of-passion manslaughter required a lack of intent to ¶14 This conclusion fits with our common- kill, the Black opinion goes on to conclude that sense understanding that even when people are under Davis and McCormick — which specifical- affected by very strong emotions, this does not ly relied upon the inclusion of this very instruc- necessarily mean that they lose complete control tion — the jury instructions given to Black’s jury of their ability to control their actions, nor does were not erroneous.33 The Black opinion noted it mean that they cannot act deliberately, such that they can and should be held accountable for that Black’s jury was instructed according to the 39 uniform instructions relating to heat-of-passion their actions. In fact, this same commonsense manslaughter.34 Hence Black’s jury and Hogan’s understanding of human behavior appears to be jury were both instructed according to the fol- the basis for establishing heat-of-passion manslaughter as a crime, while recognizing that lowing uniform instruction: it is a lesser crime than first-degree murder.40 It is The passion or emotion which must exist in also consistent with our recognition that heat-of- the defendant refers to any strong emotion, passion manslaughter can serve as an affirma-

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1661 tive defense — though not a complete defense in support of the defense, the jury should be — to first-degree murder. instructed regarding the availability of this defense and the State’s burden to disprove it. ¶15 Although the Black opinion concluded Such an instruction (or instructions) could state that the instructions in that case were “constitu- as follows: tionally adequate,”41 it acknowledged that “more specific instructions,” regarding the Evidence has been introduced that the jury’s consideration of heat-of-passion killing in this case constitutes first-degree manslaughter as an affirmative defense to first- (heat-of-passion) manslaughter, as a defense degree murder, could be “desirable.”42 Today’s to the charge of first-degree murder.47 majority opinion likewise recognizes that “more You are instructed that you must first con- specific instructions setting forth heat of passion sider whether the defendant committed the manslaughter as a defense rather than a lesser crime of first-degree manslaughter, as included offense, if requested, may be better 43 defined in these instructions. If you unani- suited and desirable.” I maintain that such mously agree that the evidence presented instructions are not only desirable, they are nec- establishes, beyond a reasonable doubt, that essary under the constitutional mandate of Due the defendant committed the crime of first- Process. Heat-of-passion manslaughter is an degree manslaughter, you should convict appropriate affirmative defense to a malice- him of first-degree manslaughter. aforethought murder charge in Oklahoma. Hence a defendant who relies upon this defense You are further instructed that in order to is entitled to an instruction informing his jury of convict the defendant of first-degree mur- it, as long as some evidence has been admitted der, the State must prove, beyond a reason- that supports the defense.44 Furthermore, such a able doubt, that he/she did not commit first- defendant is also entitled to an instruction degree manslaughter. If you unanimously informing his jury that the State is required to agree that the defendant did not commit the disprove this defense, in order for him to be con- crime of first-degree manslaughter, you victed of first-degree murder. should then consider whether he/she committed the crime of first-degree murder, as ¶16 Most of the affirmative defenses recog- defined in these instructions.48 nized in Oklahoma (and noted by the majority opinion) are “complete defenses” or “exculpat- It is my belief that we should stop making ing defenses.” Such defenses, when properly excuses for the failure to give such an instruc- established, totally absolve the defendant of tion, stop contorting the English language to criminal liability. These defenses include insani- rationalize our failure to require one, and start ty, self-defense, defense of another, accident, requiring that such an instruction be given. involuntary intoxication, and duress.45 Although ¶18 I would conclude that Hogan should pre- a defendant can certainly raise heat-of-passion vail on his Proposition I claim, by finding that manslaughter as an affirmative defense to a mal- the trial court committed plain error and violat- ice-aforethought murder charge, this defense is ed Due Process when it failed to instruct an “incomplete defense” or “partial defense.”46 Hogan’s jury regarding his affirmative defense Although such a defense diminishes the extent and the State’s burden to disprove it. This con- of the defendant’s criminal liability, it does not clusion follows from the Supreme Court’s deci- absolve the defendant of criminal liability. sion in Mullaney and our Court’s decision in Rather, this partial defense suggests that the McCormick, as well as our well-established defendant should be convicted of a separate, approach to the treatment of affirmative defens- lesser crime. es. This conclusion is also consistent with the Tenth Circuit Court’s decisions in Lofton and ¶17 Therefore, an Oklahoma jury should be 49 required to consider this defense, when it is Davis. properly raised, but a finding that it applies ¶19 I recognize the irony of granting Hogan a would result in a conviction on the lesser offense further retrial on a claim that seems only one of first-degree manslaughter rather than simply step removed from the error that led to his first an acquittal. I suggest that when a defendant retrial, particularly when Hogan did not object charged with malice-aforethought murder to the court’s instructions or propose an instruc- asserts heat-of-passion manslaughter as a tion of the sort he now maintains was required. defense and some evidence is presented at trial Nevertheless, the lesson of Black is that when

1662 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 this Court strains to uphold a conviction, testify against the other regarding a “confiden- despite a trial court’s inadequate instructions to tial communication” between them, and Okla- the defendant’s jury, the same inadequate homa’s current Evidence Code continues to pro- instructions will continue to be given in other tect such communications.54 cases. And this Court will again be faced with ¶23 Here Hogan contrived a story and asked the same issue in another hard case, in another his wife to lie by repeating it. The majority opin- appeal. ion’s analysis conflates the contrived story with ¶20 In Proposition V, Hogan challenges the the request to lie and concludes that the privi- trial court’s refusal to instruct his jury regarding lege was waived, because the (false) story was the “exculpatory statement doctrine.” The uni- intended to be and was disclosed. Of course it is form instruction sought by Hogan would have true that Hogan did not intend that his wife instructed his jury: “Where the State introduces keep the contents of the concocted story “confi- in connection with a confession or admission of dential,” since he asked his wife to tell the story a defendant an exculpatory statement which, if in order to provide him with an alibi. That was true, would entitle him/her to an acquittal, the whole point. But the “confidential commu- he/she must be acquitted unless such exculpato- nication” at issue is Hogan’s admission to his ry statement has been disproved or shown to be wife that the story he was asking her to recount false by other evidence in the case.”50 The major- was untrue. I would hold that Hogan should ity opinion rejects this claim as follows: “The have been allowed to prevent his wife from tes- trial court did not abuse its discretion in refus- tifying that Hogan acknowledged to her that the ing to give a jury instruction on exculpatory alibi story was a lie and that he asked her to tell statements because Hogan’s statement to the this lie to police. police was disproved by other evidence in the ¶24 In Proposition VIII, Hogan argues that case.”51 because his original jury rejected the “continu- ¶21 Although I would be willing to agree ing threat” aggravating circumstance, it violated with a specific finding that Hogan’s statement to Double Jeopardy to allow the State to re-pursue the police was not truly “exculpatory,” as that this aggravator in the second stage of the retrial term is defined in our uniform instruction,52 I of this case. Hogan argues that he was effective- cannot agree with the Court’s implicit finding ly “acquitted” of the continuing threat aggrava- that we can disregard the evidentiary signifi- tor; hence the State should not have been cance of the defendant’s own words where allowed to try him again on this same aggrava- “other evidence” “disproved” what he said. tor. I conclude that Hogan is correct. Recent Hogan was granted habeas relief from the 10th authority from the United States Supreme Court Circuit regarding his original conviction strongly suggests that it does violate Double because, in essence, this Court declined to prop- Jeopardy to allow the State to re-pursue an erly consider whether Hogan’s statements were aggravating circumstance that was rejected by a sufficient to warrant a jury instruction on heat- prior capital jury in the same case. Furthermore, of-passion manslaughter.53 We should not make a broader understanding of Double Jeopardy in a parallel mistake or misstatement in this round. the context of a capital sentencing is consistent If Hogan’s statement was actually exculpatory, with the approach taken by this Court until up he would have been entitled to the exculpatory until 1996. statement instruction, regardless of the “other ¶25 The majority’s analysis is based upon evidence in the case.” I do not believe that Poland v. Arizona.55 In Poland, the Supreme Court Hogan’s statement was exculpatory, yet I am not ruled that it did not violate Double Jeopardy to comfortable with the majority opinion’s allow the State to go back and try again to get a analysis. death penalty verdict, even though it was deter- ¶22 I also disagree with the majority opinion’s mined on appeal that the only aggravating cir- resolution of Hogan’s Proposition VI marital cumstance found by the original factfinder was privilege claim. In my judgment the theoretical not supported by sufficient evidence — as long and policy bases for protecting spousal commu- as other evidence in the record supported a sep- nications — family harmony, affection, confi- arate aggravator.56 I acknowledge that the analy- dence, and loyalty within the marital relation- sis of the majority opinion in Poland is contrary ship — are as valid today as they were 300 years to Hogan’s claim on appeal. Hence Hogan can ago. We ought not force or permit one spouse to prevail upon his Proposition VIII claim only if

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1663 this Court agrees that we should no longer ¶29 Consequently, over nine and one-half follow Poland. years after the Supreme Court’s decision in Poland, this Court was still taking the position ¶26 I begin by noting that this Court did not that if the evidence in the record was insufficient immediately adopt the narrow understanding to support the aggravating circumstance(s) of Double Jeopardy represented by Poland. In found by the jury in a particular case, the defen- fact, this Court maintained a broader approach dant had been effectively “acquitted” of the to capital-stage Double Jeopardy — and an death penalty; and the State would not be approach directly contrary to Poland — for nine allowed to pursue it again in a resentencing.66 In and one-half years after the Supreme Court’s this consistent line of published cases, we did 1986 decision in Poland. In our 1992 decision in not even consider, as the Supreme Court did in Crawford v. State,57 in an opinion by Judge Lump- Poland, whether there was other evidence in the kin, this Court held that where the sole aggra- record that could have been used to support a vating circumstance found by the jury was not separate aggravator. If the evidence presented supported by sufficient evidence, we were by the State was inadequate to sustain the required to remand the case for resentencing, aggravator(s) found in the previous capital sen- where the only punishments that could be con- tencing, we did not allow the State another sidered were life and life without parole.58 chance at the death penalty.67 ¶27 This Court concluded in Crawford: ¶30 This approach changed dramatically with Having found that the evidence does not this Court’s 1996 decision in Salazar v. State.68 In support the sole aggravating circumstance Salazar, we found that the sole aggravating cir- found by the jury, we have no alternative cumstance found by the jury (on resentencing) but to REMAND THE CASE FOR A NEW was not supported by sufficient evidence.69 This TRIAL ON SENTENCING. . . . Since the time, however, we cited and quoted extensively remand for resentencing is due to insuffi- from the Supreme Court’s Poland decision.70 We ciency of the evidence to support the aggra- then adopted the Poland approach as our own vating circumstance, the sentencing options and applied it to the case on review.71 We fol- at resentencing are limited to imprisonment lowed this same approach in Frederick v. State,72 for life or life without parole.59 and we have continued to follow Poland since 1996.73 We did not consider or discuss whether other aggravating circumstances could have applied ¶31 I maintain, however, that the United to the murder in Crawford. Hence we did not States Supreme Court, through the still-unfold- take the approach outlined by the Supreme ing Apprendi/Ring Revolution, has rejected the Court in Poland. doctrinal basis for its decision in Poland. The Poland decision was inconsistent with the ¶28 This Court continued to take the approach Supreme Court’s preceding and landmark deci- of Crawford up through our 1995 decisions in sion in Bullington v. Missouri,74 in which the Perry v. State60 and Cheney v. State.61 In Perry, after Court noted that in the capital sentencing con- finding that the evidence was insufficient to text, the State was only entitled to “one fair support either of the two aggravating circum- opportunity to offer whatever proof it could stances found by the jury,62 this Court held that assemble.”75 And more importantly, it is incon- it was required to modify the defendant’s sen- sistent with the Supreme Court’s current under- tence to life imprisonment without parole, with- standing of the jury’s role in sentencing general- out any discussion or consideration of allowing ly and in capital sentencing, in the State to re-pursue the death penalty.63 We particular. concluded, “Because the evidence will not support the two charged aggravating circum- ¶32 In Ring v. Arizona,76 which evolved from stances, we find that Perry’s sentence of death the broader sentencing revolution begun in must be vacated and modified to life without Apprendi v. New Jersey,77 the Supreme Court rec- the possibility of parole.”64 Similarly, in Cheney, ognized that because the capital sentencing after finding that the sole aggravating circum- process is analogous to the guilt stage of trial, stance found by the jury in that case was not many of the constitutional protections applica- adequately supported by the evidence, we again ble to the determination of a defendant’s guilt concluded that we were required to modify the must be applied equally to the determination of defendant’s sentence to life without parole.65 whether a capital defendant should be sen-

1664 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 tenced to death. In particular, Ring held that Clause: They dealt only with the sentence to be “[b]ecause Arizona’s enumerated aggravating imposed for the ‘offence’ of capital murder.”88 factors operate as ‘the functional equivalent of Hence the Court in this earlier era “continually an element of a greater offense,’ . . . the Sixth tripped over the text of the Double Jeopardy Amendment requires that they be found by a Clause.”89 jury.”78 ¶37 Section III emphasizes however, that ¶33 Thus in Ring the Supreme Court inaugu- “recent developments,” namely, Apprendi and rated its current approach to understanding Ring, “have illuminated this part of our jurispru- aggravating circumstances as the “functional dence.”90 Section III summarizes these landmark equivalent” of “elements of a greater offense,” decisions and their expanded view of the where the lesser offense is simply first-degree Sixth Amendment’s jury-trial guarantee.91 It murder or “murder simpliciter,” for which the continues: death penalty is not an authorized punishment, and the greater offense is “murder plus one or We can think of no principled reason to dis- more aggravating circumstances,” for which the tinguish, in this context, between what con- death penalty is an authorized punishment.79 stitutes an offense for purposes of the Sixth While this shift might seem mere semantics to Amendment’s jury-trial guarantee and what some, in fact, the change is fundamental and constitutes an “offence” for purposes of the quite significant. Fifth Amendment’s Double Jeopardy Clause. . . In the post-Ring world, the Dou- ¶34 This brings us to Sattazahn v. Pennsylva- 80 ble Jeopardy Clause can, and must, apply to nia. The narrow holding in Sattazahn is not par- some capital-sentencing proceedings consis- ticularly striking — a 5-4 majority holds that tent with the text of the Fifth Amendment.92 where a capital-stage jury becomes “deadlocked” during its deliberations, this is not an And Section III clearly concludes that a jury’s “acquittal” on the death penalty.81 Hence the findings on aggravating circumstances are like State can re-pursue the death penalty in a resen- minitrials on separate offenses, where the guilt- tencing or retrial in the same case.82 Thus Sat- stage verdict is for the lesser offense of “murder tazahn applies the same rule to capital-stage simpliciter,” and the second stage involves a trial “hung juries” that the Court has consistently on the greater offense of “murder plus one or applied to hung juries in the guilt stage.83 more aggravating circumstances.”93 Thus Sec- ¶35 A closer look at the various Sattazahn tion III asserts, “If a jury unanimously concludes opinions, however, reveals that at least six mem- that a State has failed to meet its burden of prov- bers of the current Supreme Court fundamental- ing the existence of one or more aggravating cir- ly disagree with the doctrinal basis for Poland cumstances, double-jeopardy protections attach to that ‘acquittal’ on the offense of ‘murder plus and strongly suggests that these six justices 94 would overturn Poland if presented with the aggravating circumstance(s).’” same issue.84 Justice Scalia wrote the majority ¶38 The Sattazahn dissenters would have gone opinion in Sattazahn.85 The Sattazahn majority even further, since they maintain that even the opinion acknowledges the decision in Poland, entry of a statutorily-mandated life sentence, summarizes it, and notes that Poland “distin- when a jury cannot reach a verdict, should pre- 86 guished Bullington and Rumsey.” Yet a careful vent the State from pursuing the death penalty review of Part III of Scalia’s (plurality) opinion, in a retrial.95 It must be noted, however, that the along with Ginsburg’s dissent, reveals that a four dissenters agreed with Section III of Scalia’s substantial majority of the justices now on the opinion that, in the post-Ring world, when a Court no longer view Double Jeopardy protec- jury “acquits” a defendant on an aggravating tions in the capital sentencing context in the nar- circumstance, that aggravating circumstance row manner upon which Poland relied. cannot be pursued in any retrial or resentencing ¶36 Section III begins by noting that “[w]hen in the same case. The Sattazahn dissenters note: Bullington, Rumsey, and Poland were decided, “This Court has determined . . . that for purpos- capital-sentencing proceedings were under- es of the Double Jeopardy Clause, capital sen- stood to be just that: sentencing proceedings.”87 tencing proceedings involving proof of one or And such “sentencing proceedings” were more aggravating factors are to be treated as tri- understood as different from trials “in a respect als of separate offenses, not mere sentencing pro- crucial for purposes of the Double Jeopardy ceedings.”96

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1665 ¶39 Therefore, a careful review of the various under Oklahoma law, the jury should not have opinions in Sattazahn reveals that a strong considered this aggravator (or the evidence pre- majority of the Court’s current members have sented to support it) within its determination rejected the view of capital sentencing upon about whether to sentence Hogan to death. which Poland is based. As today’s majority Hence it could be argued that Hogan’s current emphasizes, Poland dismissed the claim that a claim is moot. capital-sentencing jury’s failure to find a partic- ¶43 In light of Sanders, however, it should be ular aggravating circumstance “constitutes an acknowledged that by alleging the continuing ‘acquittal’ of that circumstance for double jeop- 97 threat aggravator in Hogan’s retrial, over ardy purposes.” The Poland Court emphasized defense objection, the State was allowed to pres- that it was not prepared to “view the capital sen- ent evidence during the retrial’s sentencing tencing hearing as a set of minitrials on the exis- phase that would not otherwise have been tence of each aggravating circumstance,” since admissible — since the State’s evidence would aggravating circumstances “are not separate 98 otherwise have been limited to evidence sup- penalties or offenses.” porting the “heinous, atrocious, or cruel” aggra- ¶40 Yet as early as Bullington and as recently vating circumstance. Thus the State’s aggravat- as Ring and Sattazahn, the Supreme Court has ing evidence should have been limited to evi- clearly announced that a capital sentencing is dence about the circumstances of Stanley’s mur- not merely a “sentencing proceeding.” Rather, in der. many critical constitutional respects, a capital ¶44 Because the State was allowed to pursue sentencing is, in fact, a “minitrial” or separate the continuing threat aggravator, however, it factual determination regarding the aggravating was allowed to present evidence that Hogan circumstance(s) alleged by the State. In particu- had committed burglaries in the Oklahoma City lar, a capital sentencing is a minitrial on the and Moore area; that he shot out windows at a offense of murder-plus-one-or-more-aggravat- business from which he had been fired; that he ing-circumstances, to which the protections of threatened the family of a former business part- Double Jeopardy apply, just as they do in the ner; and that he once molested an eleven-year- 99 context of the jury’s first-stage verdict. old neighbor girl. The majority opinion does not ¶41 It is my belief that the Supreme Court will address any of this evidence or its significance. overrule Poland when the issue of its enduring Yet none of this evidence could have been put legitimacy is properly before the Court. It is also before Hogan’s jury if the State had been pre- my belief that when a constitutional right as prevented, under the constitutional protection cious as the protection against Double Jeopardy against Double Jeopardy, from re-pursuing the is at issue, and when a man’s very life is on the continuing threat aggravator. line, we need not and should not wait until the ¶45 I recognize that both juries that were pre- proper test case winds its way to the Supreme sented this evidence rejected the continuing Court docket. The constitutional handwriting is threat aggravator. After reviewing the actual on the wall. We should read it and announce evidence regarding each of these incidents, that this Court will no longer follow Poland. We though certainly not flattering to Hogan, I did not adopt Poland when it was first decided, understand why the juries declined to find this and we remain free to reject Poland now. aggravator. Consequently, I could be comfort- ¶42 At a minimum, this Court should not able with a conclusion by this Court that even reach out to reaffirm the questionable analysis of though the State should not have been allowed Poland in a case that does not necessarily require to pursue the continuing threat aggravating cir- us to do so. In Brown v. Sanders,100 the Supreme cumstance, this constitutional error turned out Court recently announced that when a death to be harmless under the specific circumstances penalty case involves a jury’s consideration of of this case. an invalid aggravating circumstance, the focus ¶46 Today’s decision could have resolved of appellate review should be on whether the Hogan’s Proposition VIII claim by deciding that invalid “sentencing factor” allowed the jury to any Double Jeopardy violation was rendered give “aggravating weight” to evidence that moot by the resentencing jury’s rejection of the would not otherwise have been before it.101 continuing threat aggravator and/or by con- Because Hogan’s retrial jury declined to find the cluding that the admission of evidence in sup- “continuing threat” aggravating circumstance, port of this aggravator was harmless beyond a

1666 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 reasonable doubt. I would prefer that today’s vict the Defendant of First Degree Murder, but must consider whether the Defendant is guilty of the lesser included offense of decision had taken such an approach, rather First Degree Manslaughter. than relying on the constitutionally unstable Id. 19. Id. at ¶28, 845 P.2d at 901 (finding that quoted instruction “would foundation of Poland. not have been inappropriate in this instance”). 20. Id. at ¶26, 845 P.2d at 901. ¶47 For the reasons articulated herein, I dis- 21. Id. at ¶26, 845 P.2d at 901. The McCormick jury, like the Davis jury, sent from today’s decision. was instructed that in order to convict the defendant of manslaughter, the jury had to find that the killing was “perpetrated without a design to effect death,” while a first-degree murder conviction required a finding 1. I must also note that I concur in the resolution of Proposition II that the defendant acted with “a deliberate intention to take away the life only by reason of stare decisis. of a human being.” Id. at ¶¶23-24, 845 P.2d at 900. 2. Hogan did not object to the jury instructions given during his 22. It should be noted, however, that the McCormick instructions retrial, nor did he offer an instruction of the sort he now asserts should were much less explicit than the Davis instructions, which actually stat- have been given by the trial court. Hence he argues that the failure of the ed that “[m]alice and heat of passion cannot co-exist.” trial court, sua sponte, to instruct the jury on his theory of defense and the 23. 2001 OK CR 5, 21 P.3d 1047. State’s burden to disprove it was plain error. 24. Not surprisingly, Hogan struggles to distinguish his case from 3. See Majority Opinion, p. 20 (citations omitted). Black, since the defendant in that appeal did not prevail. Hence Hogan 4. Id. emphasizes that the trial court did not use all of the appropriate uniform 5. Id. at p. 21 (internal citations omitted). instructions in instructing his jury. Hogan is correct that the trial court 6. Id. at pp. 21-22 (citation omitted). In support of this statement, the should have used OUJI-CR2d 10-24 to instruct his jury regarding its con- majority opinion cites our uniform jury instructions for other affirmative sideration of first-degree murder in relation to the lesser offense of first- defenses, which are structured such that once sufficient evidence has degree manslaughter. Instead, the court’s Instruction No. 13 combined been presented (by either party) to raise a particular affirmative defense, various portions of uniform instructions 10-13, 10-24, and 4-66. And in the trial court is required to instruct the jury on that defense and to Instruction No. 14, the court modified the former OUJI-CR2d 10-27, to instruct that the State is required to prove, beyond a reasonable doubt, specifically inform the jury that it was “not required to determine unan- the absence of that defense. See Id. at p. 21 n.10. imously that the defendant [is] not guilty of the crime charged before 7. 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). you may consider a lesser included offense,” consistent with this Court’s 8. Id. at 704, 95 S.Ct. at 1892. The Mullaney case involved a Maine jury Graham v. State instruction that informed the jury that if the State proved that a homicide decision in , 2001 OK CR 18, 27 P.3d 1026. (In 2003, OUJI- was both intentional and unlawful, malice aforethought had been estab- CR2d 10-27, as modified in accord with Graham, was incorporated into lished, unless the defendant could prove, by a preponderance of the evi- the current version of OUJI-CR2d 10-24.) dence, that he acted in the heat of passion on sudden provocation. Id. at On the other hand, the trial court did use the appropriate uniform 686, 95 S.Ct. at 1883. The Mullaney Court noted that “the presence or instructions for defining first-degree murder and heat-of-passion absence of the heat of passion on sudden provocation[] has been, almost manslaughter, as well as the all the key elements and terms within these from the inception of the common law of homicide, the single most offenses, namely, OUJI-CR2d 4-61, 4-62, 4-63, 4-95, 4-97, 4-98, 4-99, 4-100, important factor in determining the degree of culpability attaching to an and 4-101. Although Hogan argues that the order in which the instruc- unlawful homicide.” Id. at 696, 95 S.Ct. at 1888. tions were presented was confusing, he cannot point to any specific issue 9. 776 F.2d 918 (10th Cir. 1985). upon which the instructions were incomplete or inconsistent with the 10. Id. at 920. The Lofton court noted that the defendant failed to law in effect at the time. In fact, Hogan acknowledges that the issue object to the jury instructions in that case, “despite ample opportunity,” about which he is actually appealing, i.e., the failure to instruct his jury but concluded, nevertheless, that the federal district court committed regarding its consideration of heat-of-passion manslaughter as an affir- “plain error” by failing to instruct the jury regarding her heat-of-passion mative defense to first-degree murder, was not then and is not now con- defense and the Government’s duty to disprove it. Id. at 922. tained in any uniform instruction. 11. 869 F.2d 1401 (10th Cir. 1989), cert. granted and judgment vacated on While I agree that it is almost always the better and more prudent another ground by Saffle v. Davis, 494 U.S. 1050, 110 S.Ct. 1516, 108 L.Ed.2d approach to instruct according to our uniform instructions, I conclude 756 (1990), on remand, Davis v. Maynard, 911 F.2d 415 (10th Cir. 1990). that the trial court’s instructions were not inconsistent with Oklahoma 12. The court noted that in this kind of collateral attack on a state law in effect at the time, nor did they prejudice Hogan in this regard. court judgment, the question is whether the challenged instruction “‘so The court’s modification of the uniform instructions had no impact upon infected the entire trial that the resulting conviction violates due Hogan’s actual challenge within Proposition I. Hence the majority’s process,’ not merely whether ‘the instruction is undesirable, erroneous, notation that the now-challenged instructions were “based largely on or even “universally condemned.”’” Id. at 1405 (all citations omitted). instructions [Hogan] proposed” and its subsequent invocation of the 13. Id. at 1404. The Davis court questioned whether the trial court’s “invited error” doctrine both turn out to be entirely irrelevant. See Major- decision to instruct on heat-of-passion manslaughter was even warrant- ity Opinion, pp. 21, 25. Properly understood, Hogan’s Proposition I ed, under the facts of that case. See Id. at 1406. claim is indeed an exact parallel of the claim made in Black. We should 14. Id. at 1406 (emphasis added). The instructions in Davis defined use this opportunity to reconsider Black and resolve this important issue first-degree manslaughter as a homicide “perpetrated without a design correctly. to effect death.” The jury was instructed that in order to convict the 25. Although I did not join the Court’s opinion in Black, I acknowl- defendant of heat-of-passion manslaughter, the passion “must have edge that I did concur in result. existed to such a degree as would naturally destroy the sway of reason 26. Black, 2001 OK CR 5, ¶42, 21 P.3d at 1065. and render the mind incapable of cool reflection, and thus exclude mal- 27. See Id. at ¶47, 21 P.3d at 1066 (“Nowhere in the instructions was ice aforethought.” In addition, the jury was specifically instructed that the jury advised that heat of passion manslaughter was Appellant’s “[m]alice and heat of passion cannot co-exist.” Id. at 1405. defense or that the State had the burden to disprove heat of passion 15. Id. at 1406-07. Thus the Davis court concluded that where heat of beyond a reasonable doubt.”). Thus the instructions given in Black’s trial passion is not “squarely raised” as a defense and where the jury’s paralleled those given in Hogan’s retrial; and since Black failed to object instructions define “malice” and “heat of passion” such that they cannot to the instructions regarding heat-of-passion manslaughter, we reviewed co-exist, “the jury need not be instructed specifically that the prosecution his claims only for plain error. Id. at ¶41, 21 P.3d at 1065. must prove the absence of heat of passion . . . .” Id. at 1407. 28. Black also asserted that his jury should have been instructed that 16. 1993 OK CR 6, 845 P.2d 896. manslaughter should be considered “in tandem” with the murder 17. Id. at ¶18, 845 P.2d at 899. While McCormick admitted killing the charge. Id. at ¶41, 21 P.3d at 1064. victim, he maintained that he “lacked the malice aforethought necessary 29. Id. at ¶39, 21 P.3d at 1064 (citing cases with contrary holdings on to sustain a conviction for murder because he was acting under the ‘heat this issue). of passion’ at the time.” Id. at ¶18, 845 P.2d at 899-900. 30. Id. at ¶40, 21 P.3d at 1064. This language comes directly from the 18. Id. at ¶16, 845 P.2d at 899. McCormick proffered the following first-degree manslaughter statute. See 21 O.S.2001, §711(2) (defining specific instruction at his trial: heat-of-passion manslaughter as a homicide “perpetrated without a [Y]ou are instructed that the State has the burden of proving design to effect death, and in a heat of passion, but in a cruel and unusu- beyond a reasonable doubt that the Defendant did not act in the al manner, or by means of a dangerous weapon . . .”). Nevertheless, our heat of passion before you could convict him of First Degree Mur- current uniform instruction defining the elements of manslaughter, der. If the State failed to prove beyond a reasonable doubt that the unlike the instructions in Davis and McCormick, does not contain any lan- Defendant did not act in the heat of passion, then you cannot con- guage about lack of a design to kill. See OUJI-CR2d 4-95 (2000 Supp.).

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1667 31. See 2001 OK CR 5, ¶40, 21 P.3d at 1064 (citing former OUJI-CR2d require (and never has required) that the defendant go through some 4-96). This instruction, with the same five elements, has since been incor- kind of reflective decision-making process, i.e., “deliberation,” before porated into OUJI-CR2d 4-95. See OUJI-CR2d 4-95 (Supp. 2000). Hogan’s killing the victim. In fact, such a requirement would seem to go beyond jury was instructed according to this uniform instruction, with these even the traditional concept of “premeditation” that this State (and this same five elements. Although none of the cases discussed herein Court) has consciously declined to require when it comes to defining the involves a first-degree manslaughter that was perpetrated “in a cruel elements of first-degree murder. We simply require that the killing be and unusual manner,” rather than “by means of a dangerous weapon,” done deliberately, meaning, in essence, “on purpose.” Deliberation is not this crime is also covered by the current version of OUJI-CR2d 4-95 required. (which contains alternative language for such cases) and by the analysis 39. Hence I agree with this Court’s jurisprudence that lack of a design I propose herein. to effect death is not an element of heat-of-passion manslaughter and 32. See 2001 OK CR 5, ¶40, 21 P.3d at 1064. with the decision by the drafters of our uniform instructions not to 33. See Id. at ¶47, 20 P.3d at 1066-67. include such a lack of intent as an element of heat-of-passion 34. Id. at ¶47, 20 P.3d at 1066. manslaughter . . . despite the statutory language of 21 O.S.2001, §711(2). 35. See OUJI-CR2d 4-99 (all emphasis added). It should be noted that 40. In Morgan v. State, 1975 OK CR 89, ¶4, 536 P.2d 952, 954, this this language is exactly the same as the language used in the original Court emphasized that heat-of-passion manslaughter occupies “a mid- version of this State’s uniform criminal jury instructions, in 1981. See way position between self-defense and murder.” The Court noted that OUJI-CR2d 458 (Manslaughter in the First Degree — Passion Defined). with self-defense “the blow is excused, because necessary to save the life 36. As quoted supra by today’s majority opinion, the Black opinion of the person striking it, or to prevent grievous bodily harm; while in asserted as follows: manslaughter there is no such necessity, and the blow is only partially Because heat of passion requires the defendant to act on the excused, because given in the heat of passion.” Id. at ¶5, 536 P.2d at 954 force of a strong emotion following adequate provocation that (quoting Miller, Criminal Law, §92). As we recently noted in McHam v. would naturally affect the ability to reason and render the mind State, 2005 OK CR 28, ¶14 n.3, 126 P.3d 662, 668 n.3, Morgan was subse- incapable of cool reflection, i.e, not with a deliberate intent pre- quently overruled in Walton v. State, 1987 OK CR 227, ¶¶7-9 744 P.2d 977, formed, the Oklahoma definitions of malice and heat of passion 978-79. As McHam recognized, however, Walton overruled Morgan “only show they cannot co-exist. Although the instructions in the instant insofar as [Morgan] had been interpreted to hold that in every prosecu- case do not specifically state these mental states cannot co-exist as tion for first-degree, premeditated murder, if self-defense has been in Davis, the definitions employed to define the mental states of raised, the trial court’s failure to instruct on heat-of-passion manslaugh- murder and heat of passion manslaughter sufficiently informed ter is per se reversible error.” McHam, 2005 OK CR 28, ¶14 n.3, 126 P.3d the jury that the differing mens rea elements were mutually exclu- at 668 n.3 (all emphasis in McHam) (citing Walton). This Court’s McHam sive. opinion specifically refers to the Morgan discussion of the relationship Id. at ¶47, 21 P.3d at 1066-67. between self-defense and heat-of-passion manslaughter (quoted herein) 37. See OUJI-CR2d 4-99 (quoted supra in text). as “an insightful discussion on this issue.” Id. 38. In footnote 13, today’s majority opinion acknowledges that 41. 2001 OK CR 5, ¶48, 21 P.3d at 1067. “[a]cting in the heat of passion need not overcome the killer’s reason or 42. Id. at ¶48 n.17, 21 P.3d at 1067 n.17. destroy free exercise of choice.” Hence today’s majority opinion appears 43. See Majority Opinion, p. 25 n.14 (agreeing with Black on this to agree that a defendant can properly be convicted of heat-of-passion issue). manslaughter even though he had a deliberate intent to kill his victim. 44. The analysis and instruction I am offering would apply only to a Thus the majority opinion appears also to agree that, despite the lan- defendant who actually relies upon heat-of-passion manslaughter as his guage of Oklahoma’s manslaughter statute, lack of a “design to effect defense, i.e., to a defendant who does not contest the fact that he killed death” is not an element of heat-of-passion manslaughter under current the victim, but who maintains that the killing constituted first-degree Oklahoma law. This agreement would seem to end our debate, since it manslaughter. While such a defendant could also logically assert that the was the presence of this very element in heat-of-passion manslaughter killing was in self-defense (if there was some evidence to support this that justified the conclusions in Davis and McCormick that the mental claim), a defendant who does not acknowledge responsibility for the states for heat-of-passion manslaughter and first-degree murder were killing would not be entitled to an instruction on this defense — though “mutually exclusive.” he or she could be entitled to an instruction on manslaughter as a lesser In footnote 13, however, today’s majority attempts to find a new way offense. to distinguish the mental states required for these two crimes, by dis- 45. “Duress” is limited in this context to a reasonable belief that one covering a new element in malice-aforethought murder: a “requirement is in “imminent danger of death or great bodily harm from another.” See of deliberation.” In essence, footnote 13 attempts to extend the first- OUJI-CR2d 8-20. degree murder requirement of “deliberate intent” into an additional 46. Such a defense could also be described as an “imperfect defense” requirement that the defendant engage in an act of “deliberation” about or “mitigating defense.” See Morgan, 1975 OK CR 89, ¶5, 536 P.2d at 954 whether to kill or not. In addition to referring to a “requirement of delib- (contrasting “perfect defense” of self-defense with “imperfect defense” eration,” footnote 13 asserts that “[a] deliberate act is one that requires a of voluntary manslaughter); OUJI-CR2d 8-36 (Committee Comments) cool mind that is capable of reflection.” While some might believe that (contrasting “exculpating defense” of insanity with “mitigating defense” the State should be required to prove some amount of reflective “delib- of voluntary intoxication). eration” by a “cool mind” before a person can be convicted of first- 47. In a case involving multiple victims, the name of the victim (or degree murder, such a requirement has no basis in the current law of this victims) about which some evidence supported the heat-of-passion State, either statutory or decisional; and footnote 13 proffers no authori- defense could be inserted for clarification purposes. ty for its new approach. 48. In cases where this instruction was given, the jury would not be As our uniform jury instructions assert, the four elements of first- instructed under the lesser included offense instructions, namely, OUJI- degree murder in Oklahoma are: 1) the death of a human, 2) which was CR2d 10-23 and 10-24. unlawful, 3) caused by the defendant, and 4) caused with malice afore- 49. Although the decisions of the Tenth Circuit Court of Appeals are thought. See OUJI-CR2d 4-61; see also 21 O.S.2001, §701.7 (“A person not binding upon this Court, they are instructive and well-reasoned on commits murder in the first degree when that person unlawfully and this issue. with malice aforethought causes the death of another human being.”). 50. See OUJI-CR2d 9-15. We then define “malice aforethought” as “a deliberate intention to take 51. See Majority Opinion, p. 26 (citation omitted). away the life of a human being.” See OUJI-CR2d 4-62; see also 21 52. See OUJI-CR2d 9-15 (defining “exculpatory statement” as “a O.S.2001, §701.7 (“Malice is that deliberate intention unlawfully to take statement by the defendant that tends to clear a defendant from alleged away the life of a human being, which is manifested by external circum- guilt, . . . which, if true, would entitle him/her to an acquittal”). stances capable of proof.”). Our uniform instructions note that this 53. See Hogan v. Gibson, 197 F.3d 1297, 1306 (10th Cir. 1999) (“[T]he “deliberate intent to take a human life must be formed before the [homi- Oklahoma Court of Criminal Appeals engaged in the wrong inquiry — cidal] act,” although “[n]o particular length of time is required for for- asking on rehearing whether Hogan’s self-defense instruction constitut- mation of this deliberate intent.” See OUJI-CR2d 4-62. And our uniform ed a lesser included instruction, or initially whether the evidence was instructions specifically note that “[t]he intent may have been formed sufficient to support conviction on the greater charger, but never engag- instantly before commission of the act.” Id. Yet the idea that deliberate ing in the correct inquiry as to whether Hogan presented sufficient evi- intent can be formed “instantly before the commission of the act” is dence to warrant a first-degree manslaughter instruction.” (emphasis in inconsistent with the suggestion that cool-minded “deliberation” is original)). I dissented from this Court’s original Hogan decision on this required. basis. See Hogan, 877 P.2d at 1166-67 (Chapel, J., dissenting) (“It may be Oklahoma law requires that the State establish that the defendant that the jury would have found Hogan to be guilty of First Degree Mur- had a “deliberate intent” to kill his or her victim. Oklahoma law does not der even if they had been provided with a manslaughter instruction.

1668 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 However, that is not the test. The test is whether there is some evidence had been “acquitted” of the death penalty by a jury from having to face reasonably suggesting that the lesser-included offense instructions are it again upon retrial: “Because the sentencing proceeding at petitioner’s warranted. Hogan’s confession clearly provides some evidence of first trial was like the trial on the question of guilt or innocence, the pro- manslaughter.” (emphasis in original)). tection afforded by the Double Jeopardy Clause to one acquitted by a 54. See 12 O.S.2001, §2504(B) (“An accused in a criminal proceeding jury is also available to him, with respect to the death penalty, at his retri- has a privilege to prevent his spouse from testifying as to any confiden- al.” Id. The Court cited North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, tial communication between the accused and the spouse.”). 23 L.Ed.2d 656 (1969), as articulating the idea of having “the slate wiped 55. 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986). clean” on a retrial, such that a defendant would be subject to any legally 56. Id. at 156-57, 106 S.Ct. at 1756 (where record evidence supported authorized punishment upon retrial. 451 U.S. at 441-42, 101 S.Ct. at 1859- non-found aggravating circumstance(s), defendant had not been 60 (quoting Pearce, 395 U.S. at 721, 89 S.Ct. at 2078). The Bullington Court “acquitted” of death penalty, for Double Jeopardy purposes, and State emphasized, however, that “the ‘clean slate’ rationale recognized in could re-pursue death penalty). Pearce is inapplicable whenever a jury agrees or an appellate court 57. 1992 OK CR 62, 840 P.2d 627. decides that the prosecution has not proved its case.” Id. at 443, 101 S.Ct. 58. Id. at ¶71, 840 P.2d at 641. at 1860 (emphasis added). Hence the Bullington Court concluded: “Hav- 59. Id. at ¶85, 840 P.2d at 643. The Crawford Court relied upon 21 ing received ‘one fair opportunity to offer whatever proof it could O.S.Supp.1985, §701.13 (governing this Court’s review of death sen- assemble,’ . . . the State is not entitled to another.” Id. at 446, 101 S.Ct. at tences), and 21 O.S.Supp.1989, §701.10a (governing sentencing proceed- 1862 (quoting Burks v. State, 437 U.S. 1, 16, 98 S.Ct. 2141, 2150, 57 L.Ed.2d ings on remand after death sentence has been overturned). See 1992 OK 1 (1978)). In Arizona v. Rumsey, 467 U.S. 203, 209-12, 104 S.Ct. 2305, 2309- CR 62, ¶71, 840 P.2d at 641. Section 701.13 remains exactly the same 11, 81 L.Ed.2d 164 (1984), the Supreme Court followed Bullington and today. See 21 O.S.2001, §701.13. Section 701.10a was amended in 1993, to held that even where an “acquittal on the death penalty” is based upon clearly establish a defendant’s right to jury sentencing in any resentenc- a trial court’s misconstruction of a statute, Double Jeopardy forbids fur- ing, as long as the original sentencing was by a jury. See 21 O.S.2001, ther pursuit of the death penalty upon remand of the case. §701.101a(1). Under the prior provision, the defendant had no right to a 76. 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). jury sentencing if the death penalty was not at issue on resentencing. See 77. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). 21 O.S.Supp.1989, §701.10a(1)(a). Hence there has been no change in our 78. Ring, 536 U.S. at 609, 122 S.Ct. at 2443 (quoting and citing Appren- statutory law that can explain this Court’s subsequent decision to reject di). the approach of Crawford. 79. The decision in Ring was 7-2, with six justices joining the majori- 60. 1995 OK CR 20, 893 P.2d 521. ty opinion and Justice Breyer concurring in the judgment. Only Justices 61. 1995 OK CR 72, 909 P.2d 74. O’Connor and Rehnquist dissented. 62. 1995 OK CR 20, ¶¶54-62, 893 P.2d at 533-36. 80. 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003). 63. Id. at ¶64, 893 P.2d at 536-37. 81. Id. at 109, 123 S.Ct. at 738. 64. Id. at ¶53, 893 P.2d at 533. 82. Id. at 116, 123 S.Ct. at 742. 65. 1995 OK CR 72, ¶26, 909 P.2d at 83 (“[W]e find the evidence sim- 83. Hence a hung jury in either the guilt stage or the sentencing stage ply does not support the jury’s finding that the murder of Mrs. Cheney of a trial generally results in a “do over” for the State. was committed in an especially heinous, atrocious or cruel manner. 84. I am not counting Justices O’Connor and Rehnquist in this tally; Accordingly, Cheney’s sentence of death must be modified to life impris- nor am I making any prediction about how the Court’s newest justices onment without the possibility of parole.”). will vote. 66. Poland was decided on May 5, 1986; Cheney was decided on 85. Scalia’s opinion was joined, en toto, by Justices Rehnquist and December 8, 1995. Thomas. Justices O’Connor and Kennedy joined all but Part III of the 67. On the other hand, we have consistently allowed the State to seek opinion. Justice Ginsburg wrote a dissenting opinion, joined by Justices the death penalty upon resentencing when a death sentence is reversed Stevens, Souter, and Breyer. for capital-stage errors not involving insufficient evidence. 86. 537 U.S. at 108-09, 123 S.Ct. at 738. It should be noted that Poland, 68. 1996 OK CR 25, 919 P.2d 1120. unlike Sattazahn, did not involve a hung jury. 69. Id. at ¶12, 919 P.2d at 1125 (reversing “great risk of death to more 87. 537 U.S. at 110; 123 S.Ct. at 739 (emphasis in original). than one person” aggravator). 88. Id. (emphasis in original) 70. Id. at ¶¶14-18, 919 P.2d at 1125-27. It should be noted that prior to 89. Id. at 110-11, 123 S.Ct. at 739. the Salazar decision, in a case decided eleven days after Cheney, we did 90. Id. at 111, 123 S.Ct. at 739. cite Poland approvingly. In Romano v. State, 1995 OK CR 74, ¶¶66-68, 909 91. Section III notes that in Ring, the Court held “that the Sixth P.2d 92, 117-18, we rejected the defendant’s claim that State should have Amendment requires that a jury, and not a judge, find the existence of been collaterally estopped from presenting evidence regarding an aggra- any aggravating circumstances, and that they be found, not by a mere vator rejected by his original jury, where his original capital conviction preponderance of the evidence, but beyond a reasonable doubt.” Id. (cit- was reversed for failure to sever from his co-defendant. This Court ing Ring). rejected Romano’s claim as “moot,” since the second jury, like the first, 92. Id. at 111-12, 123 S.Ct. at 739-40. “rejected the aggravating circumstance of ‘continuing threat.’” Id. at ¶68, 93. Id. at 112, 123 S.Ct. at 740. 909 P.2d at 118. Nevertheless, we did cite Poland approvingly within our 94. Id. It could be argued that Oklahoma’s current, capital-stage ver- discussion of Romano’s claim. See Id. at ¶67, 909 P.2d at 118. dict forms — which instruct juries to simply check any aggravating cir- 71. This Court wrote: cumstance(s) upon which the jurors unanimously agree — do not allow We interpret Poland to hold that if either the trial court or a us to determine whether a jury’s failure to find a particular aggravator reviewing court finds that, after removal of any infirm factors, the was a unanimous rejection of that aggravator or not. Yet this Court has residual evidence offered by the state at the sentencing proceeding consistently described verdicts where an aggravator is unchecked as a will not support a death sentence, then the defendant has been “rejection” of the unchecked aggravator(s). See, e.g., Davis v. State, 2004 acquitted of the death penalty and jeopardy precludes any further OK CR 36, ¶47 n.8, 103 P.3d 70, 83 n.8; Dodd v. State, 2004 OK CR 31, ¶91, sentencing proceedings seeking a death verdict. However, if there ¶102, 100 P.3d 1017, 1044, 1047; Lott v. State, 2004 OK CR 27, ¶132, ¶176, is evidence which supports other statutory aggravating circum- 98 P.3d 318, 351, 359; Johnson v. State, 2004 OK CR 25, ¶3 n.7, 95 P.3d 1099, stances, the case may be remanded and a death verdict may be 1101 n.7; Harris v. State, 2004 OK CR 1, ¶60, 84 P.3d 731, 753; Alverson v. sought. . . . State, 1999 OK CR 21, ¶30, 983 P.2d 498, 511; Patton v. State, 1998 OK CR Salazar, 1996 OK CR 25, ¶18, 919 P.2d 1120, 1127. We then concluded that 66, ¶110, 973 P.2d 270, 299. And in no case has this Court interpreted a evidence in the record supported two aggravating circumstances that jury’s failure to find an aggravator as a “hung jury,” since without spe- Salazar’s resentencing jury had declined to find. Hence we remanded cific notice from a jury that it is “deadlocked,” we have no basis for the case for a further resentencing, in which the death penalty could be assuming that such is the case. I conclude that the most reasonable way pursued. Id. at ¶19, 919 P.2d at 1127. to deal with an Oklahoma jury’s failure to check an aggravating circum- 72. 2001 OK CR 34, ¶¶108-10, 37 P.3d 908, 938 (citing and following stance, at least in the short term, is to treat it as a unanimous rejection of both Poland and Salazar). that aggravator, which operates as an “acquittal” on that aggravator. 73. See Salazar v. State, 1998 OK CR 70, ¶7, 973 P.2d 315, 321 (noting Where it is entirely possible that the jury unanimously rejected the that despite Crawford, Perry, and Cheney, “[t]he Court’s analysis and unchecked aggravator, I maintain that it violates Double Jeopardy to application of Poland in Salazar. . . represents this Court’s current posi- allow the State to re-pursue that aggravator in a subsequent retrial or tion on this issue”). resentencing. 74. 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). 95. Id. at 118, 123 S.Ct. at 743 (Ginsburg, J., dissenting). 75. Id. at 446, 101 S.Ct. at 1862 (citation omitted). In Bullington, the 96. Id. at 126 n.6, 123 S.Ct. at 747 n.6 (emphasis in original) (citing Supreme Court held that Double Jeopardy protected a defendant who Ring and Bullington).

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1669 97. Poland, 476 U.S. at 155, 106 S.Ct. at 1755. this Court has previously reviewed mixed ques- 98. Id. at 155-56, 106 S.Ct. at 1755. 99. And a capital defendant’s guilt-stage murder conviction consti- tions of law and fact based upon an abuse of dis- tutes a “lesser included offense” in relation to the capital-stage determi- cretion standard, asking whether the trial nation regarding the “greater offense” of murder-plus-one-or-more- aggravators. court’s findings of fact are supported by the 100. __ U.S. __, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006). record, and not a de novo review. However, 101. Id. at 892 (“An invalidated sentencing factor . . . will render the sentence unconstitutional by reason of its adding an improper element based upon stare decisis I agree with the Court’s to the aggravation scale in the weighing process unless one of the other resolution of the claim of ineffective assistance sentencing factors enables the sentencer to give aggravating weight to of counsel. the same facts and circumstances.” (emphasis in original) (footnote omitted)). The Sanders case sought to change the different appellate rules governing “weighing States,” such as Oklahoma, in which the jury is ¶2 Additionally, in Proposition XIII, Appel- limited in its decision about whether to impose the death penalty to the lant’s mere listing of issues for this Court to con- specific aggravating circumstances (or “eligibility factors”) found as part of the jury’s eligibility determination, and non-weighing states, in which sider is insufficient to invoke appellate review. I the jury’s ultimate determination about whether to impose the death find Appellant has waived appellate review as penalty is not limited in this way. Id. at 889-91. he has not provided any argument or authority LUMPKIN, V.P.J.: CONCUR IN RESULTS: as to why this Court should reconsider it prior rulings on six different issues. See Rule 3.5C, ¶1 In concur in the affirmance of the judgment Rules of the Oklahoma Court of Criminal Appeals, and sentence in this case. I write separately to Title 22, Ch.18, App. (2001). See also Romano v. note that as stated in my separate writing to State, 1995 OK CR 74, ¶65, 909 P.2d 92, 117. Hanes v. State, 973 P.2d 330, 338 (Okl.Cr.1998)

Clinical Instructor/Staff Attorney INVESTIGATOR O.U. College of Law POSITION AVAILABLE The O.U. College of Law is seeking a OFFICE OF THE GENERAL COUNSEL part time (.50 FTE) Clinical Instructor/ OKLAHOMA BAR ASSOCIATION Staff Attorney for the O.U. Legal Clinic. This position is for one year beginning in Seeking experienced investigator. August of 2006. The attorney will directly Bachelor’s degree is preferred. supervise licensed legal interns working Responsibilities include conducting on actual cases in the client clinical pro- interviews; writing reports; preparing gram. The attorney must be licensed by, subpoenas; taking statements; conduct- and in good standing with, the Oklahoma ing complex, sensitive, and confidential Bar Association. General civil and family investigations; assisting in presentation law experience is required. Some of investigations; and testifying and experience in criminal law is also helpful. assisting prosecutors in disciplinary Salary is $32,000 with 50% benefits proceedings. Knowledge and use of coverage. The O.U. College of Law is an WordPerfect helpful. Must have good Equal Opportunity Employer. Send oral and written communication skills. resume and cover letter to Lori Ketner at Submit resume with cover letter and the O.U. Legal Clinic, 300 Timberdell Road, Room 2020, Norman, OK 73019 or references to Dan Murdock, General FAX to (405) 325-7758. Applications will be Counsel, P.O. Box 53036, Oklahoma accepted through June 16, 2006. City, OK 73152, no later than June 9, 2006. An Equal Opportunity Employer.

1670 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 Court of Civil Appeals 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)

IN THE SUPREME COURT OF THE STATE DONE BY ORDER OF THE SUPREME COURT OF OKLAHOMA this 4th day of May, 2006 Thursday, May 4, 2006 /s/ The following cases are assigned to the Court of Joseph M. Watt Civil Appeals Oklahoma City, Divisions 1 and 3. CHIEF JUSTICE The judges serving in the Oklahoma City Divi- sions are Carol M. Hansen, Glenn D. Adams, Thursday, May 18, 2006 Larry E. Joplin, Kenneth L. Buettner and E. Bay 102,436 Catherine James v. David James. Mitchell, III and Robert Dick Bell. The judges sit 102,473 Tamarie Lou Clark fka Stewart v. Danny in three-judge panels which rotate periodically, F. Stewart. but all assigned cases will be decided by three of 102,663 First Place v. OK Employment Security the above named judges. Any party may seek dis- Comm, et al. qualification of any judge pursuant to Okla.Sup.Ct.R. 1.175, 12 O.S.2001, Ch. 15, App. 1 102,721 Franklin House v. The Town of Dickson, and 20 O.S. 2001 §§ 30.3, 1401 and 1402. a Municipal Corp. 102,187 Andrew Clay v. Shirley Leverette. 102,725 Michael L. McCulloh v. Cynthia L. McCulloh. 102,220 Jeri Bistline v. In the Matter of the Estate of Queen Ann Niece. 103,036 CoxCom, Inc. v. OK Secondary Schools Athletic Assoc., et al. 102,320 Billy White v. Jason Knight, et al. 103,076 Jeremy & Jennifer Overton v. State of 102,363 Olen Cranfield v. Oleg Guriev et al. Oklahoma. 102,367 William W. Dennis v. E. L. Fullen et al. The proceedings are to be governed by Oklahoma 102,377 Larry Joe Vaughn v. Heather C. Hillian, Supreme Court Rules, Part V, Appeals Assigned formerly Vaughn. to Court of Civil Appeals. 12 O.S. 2001 Ch. 15, 102,383 First Enterprise Bank v. Be-Graphic Inc. App. 1. Until the Court of Civil Appeals has made et al. its final disposition, all motions, petitions and other paperwork shall be filed with the Clerk of 102,407 International Association of Firefighters the Supreme Court who serves ex officio as the Local 3434 v. The Public Employees clerk of the Court of Civil Appeals room B-2, State Relations Board of the State of OK, et al. Capitol, Oklahoma City, Oklahoma, 73105. 102,728 Vicki Butrick Koch v. Voyager Property DONE BY ORDER OF THE SUPREME COURT & Casualty Ins. Co. this 18th day of May, 2006 102,955 Hobby Lobby Stores Inc v. Anthony /s/ farmer & WWC. Joseph M. Watt 102,956 Grace Living Center v. Mary Sue Dentis CHIEF JUSTICE & WCC. Thursday, May 4, 2006 103,042 Sandra S. Sucher v. Oklahoma City Pub- The following cases are assigned to the Court of lic Schools & WCC. Civil Appeals Tulsa, Divisions 2 and 4. The judges 103,251 Family Motor Coaching Inc v. The Aber- serving in the Tulsa Divisions are John F. Reif, nathy Agency, Inc. Keith Rapp, Jerry L. Goodman, and Jane P. Wise- The proceedings are to be governed by Oklahoma man and Doug Gabbard, II. The judges sit in Supreme Court Rules, Part V, Appeals Assigned three-judge panels which rotate periodically, but to Court of Civil Appeals. 12 O.S. 2001 Ch. 15, all assigned cases will be decided by three of the App. 1. Until the Court of Civil Appeals has made above named judges. Any party may seek dis- its final disposition, all motions, petitions and qualification of any judge pursuant to other paperwork shall be filed with the Clerk of Okla.Sup.Ct.R. 1.175, 12 O.S. 2001, Ch. 15, App. 1 the Supreme Court who serves ex officio as the and 20 O.S. 2001 §§ 30.3, 1401 and 1402. clerk of the Court of Civil Appeals room B-2, State 102,413 Robert & Kathy Elliott v. Caleb Capitol, Oklahoma City, Oklahoma, 73105. McCaleb, et al.

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1671 102,475 PGS Onshore, Inc. v. Brian Taliaferro, et 103,002 Rebecca & Charles Howard v. James & al. Dawn Christensen. 102,675 Gela Peterson, et al v. Billy C. Newport. The proceedings are to be governed by Okla- 102,683 Chesapeake Operating Inc. v. A. K. homa Supreme Court Rules, Part V, Appeals Manahan, Jr. et al. Assigned to Court of Civil Appeals. 12 O.S. 2001 Ch. 15, App. 1. Until the Court of Civil Appeals 102,684 Chesapeake Operating Inc. v. John has made its final disposition, all motions, peti- Stine. tions and other paperwork shall be filed with the 102,723 Terry Ramsey v. State of Oklahoma. Clerk of the Supreme Court who serves ex officio 102,798 Top LLC v. Chesapeake Operating Inc., as the clerk of the Court of Civil Appeals room B- et al. 2, State Capitol, Oklahoma City, Oklahoma, 73105. 102,838 OK Metafund Community Develop- DONE BY ORDER OF THE SUPREME COURT ment Corp. v. Oklahoma Tax this 18th day of May, 2006 Commission. 102,902 State of Oklahoma v. Seneca Insurance /s/ Co., et al. Joseph M. Watt CHIEF JUSTICE 102,920 Jeanina L. Hammer, et al v. Dawn Deanna Arnold, now Meek 2006 OK CIV APP 16 103,000 Cody J. Bennett v. Express Personnel, et STATE OF OKLAHOMA, ex rel., al. DEPARTMENT OF HUMAN SERVICES 103,114 JSSJ Corp & Jim Clark v. OK Farm CHILD SUPPORT ENFORCEMENT, Bureau Mutual Ins et al. Plaintiff/Appellee, vs. DUSTIN LOYAL BLESSUM, Defendant/Appellant. 103,257 State of Oklahoma, ex rel., Kim Holland, Insurance Commissioner, et al No. 99,958. May 17, 2006 v. Triunion Financial Corp. et al. CORRECTIONAL ORDER The proceedings are to be governed by Okla- homa Supreme Court Rules, Part V, Appeals The opinion of Division IV is hereby corrected Assigned to Court of Civil Appeals. 12 O.S. 2001 to reflect that Janice Howard-Croft is the Ch. 15, App. 1. Until the Court of Civil Appeals attorney of record for Plaintiff/Appellee State has made its final disposition, all motions, peti- of Oklahoma. The name of Cindy Allen, tions and other paperwork shall be filed with the erroneously listed as the attorney of record for Clerk of the Supreme Court who serves ex officio Appellee, should be removed. as the clerk of the Court of Civil Appeals room B- ALL JUDGES CONCUR. 2, State Capitol, Oklahoma City, Oklahoma, 73105. SO ORDERED this 12th day of May, 2006. DONE BY ORDER OF THE SUPREME COURT /s/ Doug Gabbard II this 4th day of May, 2006 DOUG GABBARD II, Presiding Judge, Division IV /s/ Joseph M. Watt 2006 OK CIV APP 48 CHIEF JUSTICE CATERPILLAR INC., and CATERPILLAR Thursday, May 18, 2006 PAVING PRODUCTS INC., Plaintiffs/ 101,743 ST OK, OK Board of Medical Licensure Appellees/Counter-Appellants, v. TRINITY v. Taimur Latif Chaudhry, M.D. INDUSTRIES, INC., Defendant/ Appellant/Counter-Appellee. 102,279 Stephanie Turner v. Farm Properties, Inc., et al. Case No. 100,258. December 13, 2005 102,328 Ralph D. Mobbs v. Lois J. Mobbs. APPEAL FROM THE DISTRICT COURT OF 102,431 Clyde Crosswhite v. Mid-Oklahoma OKLAHOMA COUNTY, OKLAHOMA Cooperative. HONORABLE DANIEL L. OWENS, TRIAL 102,871 Keith & Pattsi Thornbrue v. ST OK, et al. JUDGE 102,935 A Lynn Luhm v. Security Health Care, AFFIRMED LLC. James A. Jennings, III, Carrie P. Hoisington, Linda

1672 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 G. Kaufmann, JENNINGS, COOK & HOISING- ¶5 Caterpillar identified Trinity as the manu- TON, PLLC, Oklahoma City, Oklahoma and facturer and supplier of the bracket. In 1998, Caterpillar notified Trinity of the accident and W. T. Womble, WOMBLE COTELLESSE & HOW- lawsuits, and requested it participate in settle- ELL, Houston, Texas, for Plaintiffs/Appellees/ ment negotiations. Trinity refused. Caterpillar Counter-Appellants, then notified Trinity that it planned to proceed Clyde A. Muchmore, Mary H. Tolbert, CROWE & with negotiations and to sue Trinity for contribu- DUNLEVY, Oklahoma City, Oklahoma, for tion or indemnification. Defendant/Appellant/Counter-Appellee. ¶6 In January 1999, Caterpillar settled for OPINION BY JANE P. WISEMAN, JUDGE: $1,800,000 the lawsuit that was the subject of the appeal. In February 2000, it settled the other law- ¶1 In this action for indemnification, defen- suit for $250,000. dant Trinity Industries, Inc., appeals the trial court’s judgment on a jury verdict in favor of ¶7 Later in 2000, Caterpillar filed its petition plaintiffs Caterpillar Inc. and Caterpillar Paving against Trinity for indemnification for the settle- Products Inc. (collectively, Caterpillar). For the ments plus attorney’s fees and costs. Caterpillar following reasons, we affirm. asserted that the hinge bracket was manufactured by Trinity and did not conform to Caterpillar’s BACKGROUND specifications, and that this was the primary basis ¶2 The genesis of this appeal is a 1994 highway for Caterpillar’s liability to the workers. construction accident that injured two workers. ¶8 As a general rule, a party is entitled to The workers were operating a Caterpillar PR- indemnity where it settles a claim rather than tak- 1000C cold planer, a large machine that breaks up ing it to judgment when it shows the indemnitor and removes asphalt and other surfaces from was legally liable and the settlement was reason- roads. The machine’s “teeth” were located inside able and in good faith. 41 Am. Jur. 2d Indemnity a large cutter housing assembly unit which one §46 (1995). Additionally, where the indemnitor could access by hydraulically raising a twelve-by- has notice of the claim and refuses to defend, the four-foot, 1,500-pound door. While the workers indemnitee (the party settling the claim) must were under the machine changing equipment show it was potentially liable, as opposed to and making repairs, the large door fell on them, showing actual liability. Id. causing injuries. ¶9 In 2002, the trial court applied these princi- ¶3 The workers sued Caterpillar for negli- ples in refusing to dismiss Caterpillar’s indemni- gence, manufacturer’s product liability, and ty theory. The trial court found Caterpillar gave implied warranty. Initially, the trial court granted Trinity adequate notice of settlement negotiations summary judgment to Caterpillar in one of the and an opportunity to participate; Caterpillar’s lawsuits, because the worker had failed to use a decision to settle and the settlement amounts safety bar intended to secure the door. In 1997, in were reasonable; and Caterpillar had proved it appeal number 88,841, this Court reversed and was potentially liable to the workers. The trial remanded, holding that facts were in dispute court concluded Caterpillar could prevail on its regarding whether proper use of the safety bar indemnity claim if it proved by the greater weight would have prevented the door from falling. of the evidence that its potential liability resulted from a part supplied by Trinity. ¶4 We noted in that opinion that there was evidence of a defect in the manufacture of the ¶10 Trial took place in 2003. The jury found in machinery. The heavy door was held open only favor of Caterpillar, awarding it $2,050,000 in by a hydraulic cylinder, whose hydraulic “ram” damages for settlement of the workers’ lawsuits had separated, allowing the door to fall. We stat- and $1,021,103 for attorney’s fees and expenses ed: “The failure of the hydraulic ram was likely incurred in those cases. The trial court entered due to stress fracture caused by bending forces judgment on the verdict, adding $10,885 in costs resulting from an improper assembly of a hinge and $871,237 in pre-judgment interest, for a total bracket during manufacture.” According to the judgment of almost $4,000,000. Trinity appeals. workers’ expert, the machine’s center hinge STANDARD OF REVIEW bracket on the cutter housing door was larger than the size specified by Caterpillar, eliminating ¶11 Where any competent evidence reasonably the necessary clearance between the bracket and tending to support a jury verdict exists, “and no another part of the machine. This resulted in prejudicial errors are shown in the trial court’s fatigue cracks and the stress fracture. instructions to the jury or rulings on legal ques-

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1673 tions presented during trial, the verdict will not matter.” 44 Am.Jur.2d §1795. This statement be disturbed on appeal.” Barnes v. Okla. Farm indicates that the insurer and insured stand Bureau Mut. Ins. Co., 2000 OK 55, ¶3, 11 P.3d 162, in the same shoes and that the insured is the 166. party who has rights against a claimant in the first place. We therefore conclude that Lapkin ISSUES ON APPEAL had standing to prosecute the claim for unjust I. REAL PARTY IN INTEREST enrichment, despite the fact that [the insurer] issued the check. ¶12 Trinity first asserts the trial court erred in allowing Caterpillar’s indemnification claim to Id. at ¶8, 23 P.3d at 962. go to the jury, because the settlement proceeds ¶15 The Oklahoma Wildlife case cited by Lapkin were paid by Caterpillar’s insurance company, was later applied in Black Hawk Oil Co. v. Exxon and not by either of the Caterpillar entities named Corp., 1998 OK 70, 969 P.2d 337. There the plaintiff as plaintiffs. Therefore, Trinity asserts, Caterpillar alleged the defendants had failed to pay for slop lacked “standing” to seek indemnification oil that it and other gas plant operators had col- because it did not suffer a loss. The trial court lected. The defendants asserted the plaintiff resolved this matter against Trinity by treating the lacked standing because it had assigned its rights argument as a real party in interest defense that to a successor. The Oklahoma Supreme Court first Trinity waived by failing to raise in a timely rejected the idea that this was properly a standing manner. issue, holding it actually involved the real party ¶13 The trial court reached the correct result, in interest doctrine. Then it rejected the argument regardless of whether the issue was waived. As on its merits, applying Oklahoma Wildlife, noting, Caterpillar points out, the applicable rule on this “Neither [defendant] claims that any judgment matter was expressed in Lapkin v. Garland Blood- against them here might not protect them from worth, Inc., 2001 OK CIV APP 29, 23 P.3d 958, in further liability to others arising out of the same which a doctor settled a malpractice claim against acts.” Id. at ¶24, 969 P.2d at 344. him. His insurer paid the proceeds, which were ¶16 Similarly, Trinity does not claim, or even split between the patient and her lawyers. The express a concern, that the judgment Caterpillar settlement was voided by the Oklahoma received fails to protect Trinity from a further Supreme Court. The patient’s guardian returned action by Caterpillar’s insurance company or any her portion of the proceeds, but her lawyers other entity. Trinity was therefore not entitled to refused to return their share. The doctor then summary judgment. While we have chosen to sued the lawyers for unjust enrichment to analyze the matter slightly differently than the recover the remaining proceeds. trial court did, we agree with the trial court’s ¶14 The trial court granted summary judg- result, and find no error. ment in the doctor’s favor. The lawyers argued II. THE EVIDENCE — CATERPILLAR’S this was error because the settlement had been ALLEGED LIABILITY paid by the doctor’s insurer, not the doctor. The Court of Civil Appeals rejected the argument, ¶17 Indemnity is available where “one party stating: has a primary liability or duty that requires that party to bear the whole of the burden as between We note that the check issued by [the insurer] certain parties.” Thomas v. E-Z Mart Stores, Inc., was issued on behalf of [Dr.] Lapkin, its 2004 OK 82, ¶20, 102 P.3d 133, 139. No right of insured. Therefore, regardless of the actual indemnity exists between joint tortfeasors against source of the money, it came “from” Lapkin each other. Id. at ¶22, 102 P.3d at 140. The right to compensate for his negligence. We agree exists when one who is only constructively liable with Lapkin that “a defendant’s right is to to the injured party and is in no manner responsi- have a cause of action prosecuted against him ble for the harm is compelled to pay damages for by the real party in interest, but his concern the tortious act of another. Braden v. Hendricks, ends when a judgment for or against the 1985 OK 14, ¶11, 695 P.2d 1343, 1349. Trinity nominal plaintiff would protect him from any asserts the evidence established as a matter of law action upon the same demand by another.” that Caterpillar “contributed to the liability,” Oklahoma Wildlife Federation, Inc. v. Nigh, 1972 defeating the right to indemnification. OK 144, 513 P.2d 310, 314. Further, “. . . the insurer as subrogee, in contemplation of law, ¶18 Trinity argues that, if Caterpillar had a stands in the place of the insured and suc- potential liability such that the case had some set- ceeds to whatever rights he may have in the tlement value, even with Trinity out of the case,

1674 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 Caterpillar would not be entitled to a jury deter- failed to prove Trinity manufactured the cutter mination of indemnity. Under Oklahoma law, a housing assembly, which included the hinge claim of indemnity is not barred merely because a bracket. There was no definitive piece of identifi- party has an interest in settling. See Porter v. Nor- cation evidence introduced by either side. ton-Stuart Pontiac-Cadillac of Enid, 1965 OK 18, Unquestionably, Trinity manufactured some ¶19, 405 P.2d 109, 114. The proper inquiry here is assemblies for Caterpillar that were placed in what caused the accident. It is immaterial that a cold planers, but the part involved was not party seeking indemnity might have been negli- stamped with the manufacturer’s name. Trinity gent in some way, unless that failure is a proxi- admitted it could not prove who made the brack- mate or contributing cause of the accident. Id. at et, but it presented evidence indicating the assem- ¶18, 405 P.2d at 113. bly placed on the particular machine involved in ¶19 Much of the evidence concerning the acci- the accident could have been manufactured by dent focused on the machine’s center hinge another company and taken by Caterpillar from brackets. According to one expert witness, the existing inventory. brackets should have been no longer than 3.5 ¶25 Trinity asserts “not one scintilla of evi- inches, and the bracket in this case was 3.9 inches. dence” was produced showing any assembly it The additional height caused friction with anoth- manufactured was actually placed in the particu- er part of the machine, leading to metal fatigue, lar machine. To adopt Trinity’s argument would stress fractures, and the failure of the hydraulic be to disregard Caterpillar’s evidence which ram, causing the door to fall on the workers. included the testimony of three Caterpillar ¶20 Trinity argued it was only responsible for employees that only Trinity was used as a suppli- manufacturing the cutter housing assembly, and er of the cutter box housing assembly. These wit- Caterpillar was responsible for designing the cold nesses were admittedly Caterpillar employees, planer and assessing the clearances needed to but the jury was entitled to consider their testi- keep the bracket from contact with other parts of mony and credibility. Additionally, the evidence the machine. Trinity presented evidence indicat- included some purchase orders indicating Cater- ing Caterpillar was at least partly to blame for the pillar purchased assemblies from Trinity at times accident through its design, assembly, and inspec- coinciding with the completion of the particular tion methods. machine involved in the accident. ¶21 If the existence of such evidence were suf- ¶26 The sufficiency of the evidence to sustain a ficient to bar a claim for indemnity, we would judgment is determined on appeal in light of the agree with Trinity. But the issue is not whether evidence tending to support it, together with there is any evidence to support Trinity’s argu- every reasonable inference deducible from that ment. The issue is whether there is any evidence evidence, rejecting all conflicting evidence to support the jury’s verdict. adduced by the opposing party. Barnes v. Okla. Farm Bureau Mut. Ins. Co., 2000 OK 55, ¶3, 11 P.3d ¶22 In that regard, Caterpillar’s expert testified 162, 166. In the instant case, the jury could rea- the cause of the accident was a manufacturing sonably infer that Trinity made the part in ques- defect in the hinge brackets. He specifically testi- tion. It was not bound to reach that decision, but fied the brackets were oversized and not manu- its verdict is within the evidence properly consid- factured according to Caterpillar’s specifications. ered at trial. Under our standard of review, that is He further testified the machine had four to five sufficient to affirm. thousand pieces and that Caterpillar could not be expected to inspect every piece. ¶27 In its brief-in-chief, Trinity noted that Caterpillar admitted destroying almost all the ¶23 The jury was thoroughly instructed invoices for the cutter housing assembly, even regarding indemnity. It could certainly have cho- though the invoices could have conclusively sen to determine that Caterpillar was at least part- established the identity of the bracket manufac- ly responsible for the accident. It chose not to do turer. In its reply brief, it argues that Caterpillar so. Because competent evidence exists supporting should therefore not have been permitted to that decision, we will not interfere with its establish Trinity’s involvement by inference. verdict. ¶28 Caterpillar filed a motion to strike this III. THE EVIDENCE — TRINITY’S issue on the grounds that Trinity failed to raise ALLEGED LIABILITY the issue of spoliation at the trial court level or in ¶24 Trinity also asserts that it is entitled to the brief-in-chief. Trinity filed a response, assert- judgment as a matter of law because Caterpillar ing it had raised the matter “simply to illumi-

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1675 nate” its argument that the evidence was insuffi- later, Caterpillar settled one lawsuit, and then set- cient as a matter of law to establish that Trinity tled the other lawsuit about a year after that. manufactured the cutter housing assembly. ¶33 While there is no bright line for determin- ¶29 We deny the motion to strike, but we reject ing how much time must pass before notice is Trinity’s proposition of error. The parties present- untimely, Trinity points out that several years of ed evidence to the jury regarding the destruction litigation took place before it received notice. of documents by both Caterpillar and Trinity. The While that amount of time might very well be jury was entitled to consider the evidence in enough to conclude notice was untimely, the reaching its decision. As noted above, the jury instant case’s facts are unusual in that a summary resolved the issue of Trinity’s involvement, as it judgment was granted. At that point, Caterpil- was entitled to do. lar’s legal liability did not exist, pending the appeal. IV. SUFFICIENCY OF CATERPILLAR’S NOTICE ¶34 That was the situation in Daugherty v. Farmers Coop. Ass’n, 1989 OK CIV APP 89, 790 ¶30 Trinity next asserts Caterpillar was not P.2d 1118. The defendant — the party seeking entitled to indemnity because it gave Trinity indemnity — was sued in 1978. Its motion for untimely and insufficient notice of the workers’ summary judgment was granted. In 1984, the lawsuits. While there is little Oklahoma law on Oklahoma Supreme Court reversed the summary this point, a good summary of the general rule on judgment as to one theory. Only then did the this point is found in In re Cooper Manufacturing, defendant give notice it was seeking indemnity. Inc., 131 F. SupP.2d 1238 (N.D. Okla. 2001). Essen- While years had passed between the lawsuit and tially, the indemnitee — the party settling a claim the notice, the defendant argued it had no valid who then seeks indemnity — is required to show action for indemnity until the Supreme Court’s proof of its actual liability unless it notifies the reversal, because up until that point, the trial putative indemnitor of a potential settlement of court’s summary judgment left the defendant free the underlying litigation, thereby providing the from any liability upon which to base indemnity. indemnitor with an opportunity to approve the Id. at ¶5, 790 P.2d at 1119. settlement, participate in settlement negotiations, ¶35 The trial court disagreed, and granted the or assume the defense of the underlying claim. If indemnitor summary judgment based on the the indemnitee does provide sufficient notice and Uniform Commercial Code’s notice provisions. opportunity to object, the indemnitee need only Another division of this Court reversed, holding show potential liability. This “potential liability the UCC’s notice provisions could not be inter- exception” may apply after a court weighs the posed as a defense to a claim for indemnity. Id. at policy interests in encouraging settlements ¶7, 790 P.2d 1119-20. The Court did not specifical- against considerations of fairness to a putative ly approve the defendant’s argument, but it could indemnitor. Id. at 1252-53. be said the Court implicitly did so, given its ¶31 Trinity does not dispute Caterpillar result. showed potential liability, but it does assert the ¶36 While Daugherty is certainly not disposi- notice it was given was untimely and insufficient, tive, the fact remains that Caterpillar received meaning Caterpillar should have been required summary judgment, meaning its legal liability to show actual liability. The trial court rejected did not exist at that point. In fact, if Caterpillar Trinity’s argument, holding that Trinity had had settled for the $1,800,000 while it had the waived the untimeliness issue and had failed to summary judgment in hand, and then sought prove the notice was insufficient. indemnity, Trinity could have argued the settle- ¶32 As to the timeliness of notice, the undis- ment was unreasonable because Caterpillar was puted facts show the accident occurred in 1994. free from liability at that point. Once the appellate The workers’ lawsuits were filed in 1995. Evi- process concluded, and Caterpillar was no longer dence of the problem with the center hinge brack- free, it unquestionably gave timely notice. Even if et was available by 1996. Up to this point, Cater- Trinity timely raised this argument — and the pillar had not given notice to Trinity. In 1997, trial court found it had not — we conclude the Caterpillar’s motion for summary judgment in trial court correctly rejected the argument. one of the lawsuits was granted. Later that year, ¶37 Ultimately, the “indispensable element” of this Court reversed that judgment. Certiorari was the notice Caterpillar was required to provide denied in May 1998, and Caterpillar notified Trin- and that Trinity was entitled to receive was ity soon after, in early July 1998. About six months “[n]otice sufficient to give the indemnitor a mean-

1676 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 ingful opportunity to defend . . . . The primary ning the lawsuits. When asked about their belief concern is fairness to the indemnitor. A formal following the mock trial, the witness answered: tender of defense is not required, rather notice Common belief was that Caterpillar and an opportunity to participate is all that is nec- would not prevail on manufacture [sic] of essary.” Cooper, 131 F. SupP.2d at 1253. We con- product liability. In other words, that a jury clude Trinity had that opportunity. would likely find that the cutter housing door ¶38 As to the sufficiency of notice, a meeting was defective. between the parties took place in July 1998, six ¶43 At that point, Trinity objected and moved months before the first settlement was reached. for a mistrial. The trial court excused the jury. There is evidence in the record, including an affi- After considerable discussion in chambers, the davit from a Caterpillar lawyer in attendance, trial court denied the motion, and then instructed that Trinity was specifically informed about the the jury to disregard the question and answer. accident, the lawsuits, and the problem with the Trinity asserts it was error to deny its motion for bracket. At the meeting, Trinity received an invi- mistrial, because the witness violated the trial tation to participate in settlement negotiations. court’s ruling and placed the blame for the Trinity declined to do so and continued to take accident on Trinity. that position after receiving additional urging from Caterpillar to participate. There was evi- ¶44 Whether to grant a mistrial is a matter for dence in the record for the trial court to conclude the sound discretion of the trial court, and its notice was sufficient, and we see no reason to dis- decision will not be disturbed absent an abuse of turb that decision. discretion. Jordan v. General Motors Corp., 1979 OK 10, ¶4, 590 P.2d 193, 195. “To reverse a trial court ¶39 We conclude Trinity received timely notice on the ground of abuse of discretion it must be and a meaningful opportunity to participate, and found that the trial judge made a clearly erro- we therefore reject its argument. neous conclusion and judgment, against reason V. TRINITY’S MOTION FOR MISTRIAL — and evidence.” Abel v. Tisdale, 1980 OK 161, ¶20, EXPERT WITNESS’S TESTIMONY 619 P.2d 608, 612. ¶40 Trinity next asserts the trial court erred in ¶45 The parties agree that, at a minimum, the denying its motion for mistrial based on the testi- witness misspoke by not limiting his remarks to mony of a witness. The witness was a jury con- general terms. But we cannot agree with Trinity sultant who had arranged a mock trial for Cater- that the single remark entitled it to a mistrial. pillar after the summary judgment in its favor From the start of the trial, the jury knew the door was reversed and remanded in one of the work- was involved in the accident, for the simple rea- ers’ lawsuits. son that the undisputed evidence showed the door fell on the workers, causing their injuries. ¶41 In lengthy sidebar discussions with the The witness did not mention the hinge bracket or lawyers early in the jury consultant’s testimony, that Trinity might be its manufacturer. To accept the trial court, relying on its previous in limine rul- Trinity’s argument would require us to presume ing, stated that the witness could testify that the that, from the witness’s statement that a jury was mock jurors believed Caterpillar could be liable to likely to find the door was defective, this jury the workers because of a manufacturing defect in would conclude that it should also find that the the cold planer machine. The trial court ruled the problem lay solely with the door, that the door’s witness could not testify that the mock jurors problem was due to the bracket, and that the believed the specific cause of Caterpillar’s poten- bracket was solely the responsibility of Trinity. tial liability was the bracket manufactured by Trinity. It ruled that testimony either pinpointing ¶46 This case is far afield from Gabus v. Harvey, a particular part of the cold planer, such as the 1984 OK 4, 678 P.2d 253, which the parties dis- hinge, or pinpointing who was responsible for the cussed with the trial court, where the Supreme defect would invade the province of the jury as to Court held it was reversible error to allow a police why the machine failed and who made the part officer in an auto negligence case to give his opin- that failed. ion about the cause of the accident. There the testimony went directly to an ultimate issue. In the ¶42 Caterpillar’s lawyer briefed the witness instant case, the statement came in the middle of about the trial court’s ruling. On the stand, the a complicated trial spread over more than a week witness testified that before the mock trial he and and did not go directly to the ultimate issue. We Caterpillar’s lawyers believed that the workers’ cannot say the trial court’s decision was an abuse own negligence might lead to Caterpillar win- of discretion.

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1677 VI. PREJUDGMENT INTEREST resolve the dispute and determine what amount was reasonable, the fees were not capable of ¶47 Finally, Trinity asserts the trial court erred ascertainment, meaning prejudgment interest in granting Caterpillar prejudgment interest on was unavailable. the verdict. Title 23 O.S.2001 §6 states: ¶54 There is no such dispute in the instant Any person who is entitled to recover case. Trinity does not assert it ever argued or pre- damages certain, or capable of being made sented any evidence that the settlement amounts certain by calculation, and the right to recov- were too high. Trinity vigorously disputed its lia- er which is vested in him upon a particular bility to Caterpillar, but it did not present any evi- day, is entitled also to recover interest thereon dence that the amounts paid in settlement — from that day . . . . which Caterpillar then sought from Trinity — ¶48 Trinity asserts that the amounts Caterpillar were unreasonable. If a fact finder must weigh paid to settle the lawsuits were subject to the trial conflicting evidence to determine the precise court’s determination that they were reasonable, amount of damages due to a plaintiff, then a court and if an amount must be determined to be “rea- cannot grant prejudgment interest. Bird Constr. sonable,” it cannot be said to be “certain” as Sec- Co. v. Okla. City Hous. Auth., 2005 OK CIV APP 12, tion 6 requires. ¶29, 110 P.3d 560, 568. No conflicting evidence was presented in the instant case for the fact find- ¶49 We reject this argument. First, the damages er to weigh. The amounts sued for were certain, Caterpillar recovered were “damages certain.” and Caterpillar was entitled to prejudgment Caterpillar sought and was awarded the specific, interest. certain amounts paid in settlement of the workers’ claims. VII. CATERPILLAR’S COUNTER-APPEAL ¶50 Second, a statute Trinity relies on is inap- ¶55 Caterpillar also pled contribution as an plicable. By its own terms, 12 O.S.2001 §832(D) alternative theory of recovery. In 2002, the trial applies to contribution claims. The theory Cater- court held that while Caterpillar could present its pillar prevailed on was indemnity, not contribu- indemnity theory to the jury, it could not pursue tion. Trinity has failed to show the statute applies. its alternative contribution theory. The trial court reasoned that this theory turned on a matter of ¶51 Third, the case law Trinity relies on is dis- law: whether Caterpillar and the two workers tinguishable. “Under section 6, the damages must intended the settlements to represent full com- be liquidated to be recoverable.” Pierce Couch pensation. The trial court held they did not so Hendrickson Baysinger & Green v. Freede, 1997 OK intend, meaning the workers were not precluded 33, ¶36, 936 P.2d 906, 914. Trinity relies on lan- from suing Trinity, and Caterpillar could not pur- guage in that case that, if a fact finder must deter- sue a claim for contribution. mine the reasonableness of the amounts sought in a claim, the amounts are not capable of certainty ¶56 After Trinity appealed the judgment on the and therefore are not recoverable under the pre- jury verdict, Caterpillar filed a counter-petition- judgment interest statute. Trinity argues that in-error, asserting the trial court erred by failing because indemnity requires the settlement to submit the contribution theory to the jury. obtained by the indemnitee to be reasonable, Because we have resolved Trinity’s appeal in there likewise can be no recovery under the favor Caterpillar, it is unnecessary to resolve the statute. counter-appeal, and we decline to do so. ¶52 The parties in the instant case did not dis- CONCLUSION pute the amount of damages. It stands to reason ¶57 The trial court’s judgment on the jury ver- that if both sides agree on a number, that number dict is AFFIRMED. is “certain.” REIF, P.J., concurs, and GABBARD, J., concurs ¶53 The facts were different in Pierce Couch. specially. There the amount of damages was disputed. The case involved a law firm and a client who reject- GABBARD, J., specially concurring: ed a settlement and lost the underlying case. The ¶1 I write separately because of my concern law firm billed the client for costs and fees, and about the use of trial simulations or mock trials as the client asserted the amounts billed were not evidence in the case. reasonable. The Supreme Court held that the law firm was entitled to less than what it billed the ¶2 Mock or simulated trials increasingly are client, and because the courts were required to being used in civil and criminal pretrial prepara-

1678 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 tion. Patterson, A.H. “Testing Your Case: How APPEAL FROM THE DISTRICT COURT OF Trial Simulations Work,” The Practical Litigator, SEMINOLE COUNTY, OKLAHOMA Vol. 1, No. 4, July 1990, pg. 37-42; 75 Am. Jur. 2d HONORABLE GARY SNOW, JUDGE Trial §42 (1991). Like focus groups and public opinion polls, they can be valuable pretrial tools. AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH INSTRUCTIONS ¶3 However, allowing the introduction of mock trial results into evidence is fraught with Jerry L. Colclazier, COLCLAZIER & ASSOCI- danger and should be generally condemned. Few, ATES, Seminole, Oklahoma, for Plaintiff/ if any, standards exist to ensure that trial simula- Appellant, tions accurately reflect the jury composition, evi- Ed Cadenhead, ELSENER & CADENHEAD, P.C., dence, and presentation of the relevant case. Few Seminole, Oklahoma, for Defendant/ controlled studies exist to verify their predictive Appellee. ability. Absent standardization, additional study and peer review, this evidence clearly cannot sat- OPINION BY ROBERT DICK BELL, PRESIDING isfy the requirements of Daubert v. Merrell Dow JUDGE: Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). ¶1 Plaintiff/Appellant L. Environmental Ser- vice, Inc. appeals from that portion of the trial ¶4 Moreover, such evidence has a potential for court’s order denying Plaintiff’s motion for attor- prejudice which outweighs its probative value. ney fees and costs, and awarding attorney fees See 12 O.S. 2001 §2403. It raises the possibility that and costs to Defendant/Appellee United Motors, jurors will defer to the result of the mock trial jury, Inc., in Plaintiff’s successful action against Defen- instead of deciding the case on the evidence dant for breach of warranty and negligence. The before it. fees and costs were awarded Defendant pursuant to 12 O.S. 2001 §1101. For the reasons set forth ¶5 Without standardization and scientific below, we affirm in part and reverse in part the review of the predictive reliability of mock trials, trial court’s judgment, and remand this matter for there seems little reason to allow its admission further proceedings consistent with this opinion. into evidence. If a mock trial cannot be shown to be a reliable predictor of a trial’s outcome, it ¶2 Plaintiff filed the instant action for breach of should not be allowed to prove justification for a warranty (both implied and express) and negli- decision to settle a lawsuit for $1.8 million, any gence against Defendant following Defendant’s more than it should be allowed to prove justifica- replacement and attempted repairs of the trans- tion for refusing to pay an insurance or other mission of a vehicle owned by Plaintiff.1 After claim. To hold otherwise opens up a grave poten- more than a year of pre-trial litigation, Defendant tial for abuse. offered to confess judgment pursuant to §1101 “in the amount of $5,000.00 inclusive of all interest, ¶6 Moreover, routine use of mock trials will costs and attorney fees.” Plaintiff rejected the unnecessarily increase the cost of pre-litigation offer, the case proceeded to trial and a jury subse- expenses, and cause an additional financial bur- quently awarded Plaintiff $1,800.00 in damages. den on those least able to afford it. Future potential litigants may well believe that participating in ¶3 Plaintiff sought an award of prevailing a mock trial, or conducting their own mock trial party attorney fees and costs under 12 O.S.Supp. for rebuttal purposes, is a necessary pre-litigation 2002 §936 and 12 O.S. 2001 §939. Defendant expense. objected to any award of fees or costs to Plaintiff and requested its own award of fees and costs, ¶7 For these reasons, I would find that the pursuant to §1101, from the date it offered to con- introduction of the mock trial result was improp- fess judgment on November 10, 2002, to the end er. However, in view of the trial court’s admon- of the case. The trial court denied Plaintiff’s fee ishment, it was harmless error under the facts and request in its entirety and granted Defendant’s fee circumstances presented. Therefore, I concur in request. From said judgment, Plaintiff appeals. the majority’s conclusion. ¶4 The sole issue on appeal concerns each 2006 OK CIV APP 49 party’s entitlement to an award of attorney fees L. ENVIRONMENTAL SERVICE, INC., and costs, which presents a question of law sub- PLAINTIFF/APPELLANT, v. UNITED MOTORS, ject to de novo review. Volvo Commercial Fin. LLC INC., AN OKLAHOMA CORPORATION, the Americas v. McClellan, 2003 OK CIV APP 27, DEFENDANT/APPELLEE. ¶13, 69 P.3d 274, 278. Section 936 allows a reason- Case No. 101,232. March 24, 2006 able attorney fee to the prevailing party in an

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1679 action to recover for labor or services, and for ment interest must be added to the verdict for breach of implied warranty. United Gen. Ins. Co. v. §1101 comparison purposes). Crane Carrier Co., 1984 OK 47, ¶10, 695 P.2d 1334, ¶8 Notwithstanding that §1101 is silent regard- 1337. Section 939 provides for a prevailing party ing the inclusion of attorney fees and costs with attorney fee in express warranty breach actions. the jury verdict for purposes of comparison with Section 1101, generally speaking, “allows a defen- an offer to confess judgment, we hold those dant to recover costs where a formal offer is made expenses must be considered where such were and is rejected by plaintiff and then plaintiff sub- included as part of the offer. We first reiterate that sequently recovers less than the offer at trial.” where attorney fees and costs are otherwise Hicks v. Lloyd’s Gen. Ins. Agency, Inc., 1988 OK 97, recoverable, a plaintiff who accepts a defendant’s ¶4, 763 P.2d 85, 86. The latter statute specifically offer to confess judgment under §1101 is entitled states, “If the plaintiff fails to obtain judgment for to recover costs accrued up to the date of the more than was offered by the defendant, he shall defendant’s offer. Dulan v. Johnston, 1984 OK 44, pay the defendant’s costs from the time of the ¶13, 687 P.2d 1045, 1047. Because fees and costs offer.” were otherwise recoverable and Defendant’s ¶5 At issue in this case is the amount that con- offer to confess judgment was made inclusive of stitutes Plaintiff’s “judgment” under §1101 for such expenses, it logically follows that those purposes of comparison with Defendant’s offer expenses must be added to the jury’s damage to confess judgment. Defendant argues the jury’s award for comparison purposes under §1101. To verdict of $1,800.00 constitutes the “judgment.” compare the raw verdict of the jury with Defen- Plaintiff asserts because Defendant’s offer to con- dant’s offer to confess judgment would be, as fess judgment was made inclusive of attorney Plaintiff aptly describes, like comparing apples to fees and costs, such expenses incurred by Plain- oranges. tiff before the date of Defendant’s offer must be ¶9 Our decision is also bolstered by Carson v. added to the damage award before an equitable Specialized Concrete, Inc., 1990 OK 87, 801 P.2d 691, comparison may be made under §1101. where the Supreme Court reached the same decision we do today with respect to a comparable ¶6 Initially, we note neither party argues the statute. There, the Court considered 12 O.S. 1981 applicability of 12 O.S. Supp. 2002 §1101.1, which §940(B), which provided “that if a defendant would plainly answer the above question if makes an offer which is rejected by the plaintiff applicable. Subsection 1101.1(C) states: and the subsequent judgment is greater than the For purposes of comparing the amount offer, the plaintiff is entitled to attorney fees.” of a judgment with the amount of an offer [in Carson at ¶3, 801 P.2d at 692. Specifically, §940(B), the applicable case] attorney fees and costs which has not been amended, states in relevant otherwise recoverable shall be included in part: the amount of the compared judgment only if If upon the action being adjudicated the the offer was inclusive of attorney fees and judgment rendered is for the defendant or for costs. Fees or costs recoverable for work per- the plaintiff and is for a lesser amount than formed after the date of the offer shall not be the defendant’s offer, then the plaintiff shall included in the amount of the judgment for not be entitled to recover attorney’s fees, purposes of comparison. court costs and interest . . . . And if the judg- In any event, because Defendant’s offer to confess ment rendered is for the plaintiff, and is for a judgment specifically referred to §1101 and nei- larger amount than the defendant’s offer, ther party has asked this Court to apply §1101.1, then the plaintiff shall be entitled to recover we express no opinion regarding whether §1101.1 attorney’s fees, court costs and interest. applies to the particular facts of this case. Like §1101, §940 does not specify what items are ¶7 We also reject out of hand Defendant’s sug- included with the verdict for purposes of com- gestion that the jury’s verdict is synonymous parison with a defendant’s offer. Further, both with the term “judgment” used in §1101. “Had statutes were enacted to encourage settlements. the legislature intended a §1101 offer to be com- Carson at ¶5, 801 P.2d at 692 (§940); Dulan v. John- pared to a verdict, rather than to a judgment, it ston, 1984 OK 44, ¶10, 687 P.2d 1045, 1047 (§1101). would have so stated. By using the word ‘judg- ¶10 The stated issue in Carson was “whether, ment,’ rather than ‘verdict,’ the legislature’s under section 940(B), the trial court must consid- intent is clear.” Bohnefeld v. Haney, 1996 OK CIV er the amount of the costs and attorney fees when APP 141, ¶9, 931 P.2d 90, 91 (holding prejudg- determining if a jury verdict is lesser or greater

1680 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 than the amount of an offer which includes costs ¶14 AFFIRMED IN PART, REVERSED IN and attorney fees.” Carson at ¶3, 801 P.2d at 692. PART AND REMANDED WITH INSTRUC- The Supreme Court answered the question in the TIONS. affirmative. HANSEN, J., and JOPLIN, J., concur. The respondent argues that the amount 1. Plaintiff also sued the manufacturer of the transmission, but the of an offer inclusive of interest, costs, and judgment regarding that defendant is not at issue in this appeal. attorney fees should be compared with the 2006 OK CIV APP 50 amount of the judgment to determine the applicability of subsection 940(B). Under IN RE: THE MARRIAGE OF TEDDIE LEE respondent’s argument, a defendant can NIBARGER, Petitioner/Appellant, v. JUDITH thwart the legislative intent of section 940 by L. NIBARGER, Respondent/Appellee. offering an amount that is more than the No. 102,326. February 10, 2006 amount claimed but less than the recovery plus the total taxable court cost. The Legisla- APPEAL FROM THE DISTRICT COURT OF ture did not intend for this loophole to exist. DELAWARE COUNTY, OKLAHOMA Carson at ¶6, 801 P.2d at 693. HONORABLE BARRY DENNEY, JUDGE ¶11 On the basis of the foregoing, we conclude AFFIRMED the trial court erred in failing to consider Plain- Richard D. James, MORROW, WILSON, WAT- tiff’s pre-offer expenses when comparing Defen- SON & JAMES, Miami, Oklahoma, for Petition- dant’s offer to Plaintiff’s “judgment.” Because er/Appellant, Defendant’s offer of $5,000.00 was inclusive of Gary D. Mallow, Robert C. Jenkins, MALLOW, attorney fees and costs, such reasonable expenses JENKINS & REPPART, PLLC, Grove, Oklahoma, incurred by Plaintiff before the offer was made for Respondent/Appellee. must be added to the jury’s verdict of $1,800.00 Opinion by Kenneth L. Buettner, Chief Judge: before a comparison is undertaken pursuant to §1101. To hold otherwise would thwart the leg- ¶1 Petitioner/Appellant Teddie Lee Nibarger islative intent of that statute. We reiterate pre- (Husband) appeals from the trial court’s order judgment interest must also be included with the dismissing Husband’s motion to modify the par- verdict amount for comparison purposes under ties’ Divorce Decree. The trial court granted §1101. Bohnefeld, 1996 OK CIV APP 141at ¶11, 931 Respondent/Appellee Judith L. Nibarger’s (Wife) P.2d at 91. motion to dismiss based on the finding that the parties were divorced by a consent decree which ¶12 Plaintiff presented uncontested evidence the trial court was without authority to modify that it incurred attorney fees and costs of more absent both parties’ consent. We affirm. than $8,000.00 as of the date of Defendant’s offer ¶2 The Decree of Divorce, filed July 25, 2000, to confess judgment. However, the reasonable- indicates that trial was held in May 2000, the ness of those expenses has not been determined court issued its findings in a court minute in June by the trial court. See 12 O.S. §§936 and 939. On 2000. Thereafter, the parties submitted their pri- remand, the trial court must determine the vate settlement agreement which was incorporat- amount of reasonable attorney fees and costs ed into the final Decree.1 Paragraph 10 of the incurred by Plaintiff prior to Defendant’s offer, as Decree states: well as prejudgment interest, before making a That the parties further stipulate and agree comparison of Plaintiff’s “judgment” with Defen- that (Wife) shall be awarded and (Husband) dant’s offer under §1101. should be ordered to pay to (Wife) support ¶13 Upon de novo review, we hold that portion alimony in the total amount of $108,000.00, which support alimony should be pay (sic) at of the trial court’s judgment denying Plaintiff’s the rate of $900.00 per month for a period of request for attorney fees and costs, and awarding 120 months, with said payments to begin on Defendant the same must be reversed and July 1, 2000. remanded for further proceedings consistent with this opinion. The remainder of the judgment is Both parties signed the Decree and indicated they affirmed. Both parties’ request for appeal-related agreed to its form and content. attorney fees is deferred to the trial court pur- ¶3 Husband first filed a Motion to Modify the suant to 12 O.S. Supp. 2004 §696.4(D). Decree in March 2001. In that motion he asserted

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1681 material and substantial changes of conditions instance. Husband then asserted that pursuant to required modifying the support alimony award.2 Utsinger v. Utsinger, 1993 OK CIV APP 21, 848 Wife filed a Motion to Dismiss in November P.2d 1180, where the parties entered a consent 2001, asserting that the Decree was a consent decree for an alimony award which complied order and as a result the alimony provision could with the requirement that it be for a sum certain, not be modified without the consent of both par- the trial court retained authority to modify the ties, citing Whitehead v. Whitehead, 1999 OK 91, consent decree unless the decree contained an 995 P.2d 1098 and Perry v. Perry, 1976 OK 57, 551 express waiver of the court’s modification P.2d 256. The trial court granted Wife’s Motion to authority. Dismiss in February 2002, citing Whitehead, supra. ¶7 Whitehead, supra, involved a consent decree The record does not indicate whether Husband providing for the payment of alimony for an appealed from that dismissal order. indefinite period. The husband sought to termi- ¶4 Husband filed a second Motion to Modify nate alimony payments, and contended in part Decree of Divorce in May 2005. Husband again that the alimony provision was void on its face argued a material and substantial change in cir- because it failed to establish a sum certain alimo- cumstances warranted reduction of the support ny amount. The trial court denied the husband’s alimony obligation. Husband asserted that he claim because the alimony provision was part of had retired from his railroad employment for a consent decree. The Oklahoma Supreme Court medical reasons, which resulted in his income affirmed the trial court. In Whitehead, the court being “radically reduced.” Husband asserted noted the long-accepted rule that parties to a that his retirement also resulted in Wife’s income divorce may submit an agreed order to the trial increasing because she began receiving railroad court for approval, and once incorporated into spousal retirement benefits “over, above and the decree, such a consent order may not be beyond the interest in (Husband’s) retirement modified without the consent of both parties. Id. benefits awarded by the Decree . . . .” at ¶¶ 9-11. The Supreme Court also recognized that this rule applies even if the parties agree to ¶5 Wife filed her Motion to Dismiss June 13, conditions which would be void if imposed by 2005. Wife repeated her argument that the the trial court: “(s)uch an agreement between the Decree was by consent and therefore could not parties is enforceable and valid even though it be modified without the consent of both parties. does what a trial court cannot do, provided the The trial court issued its Order June 29, 2005, in agreement does not contravene public policy.” which it found that the Decree was a consent Id. at ¶10, citing Perry, supra, 551 P.2d at 258. decree which included an agreement between Despite Husband’s assertion to the contrary, this the parties regarding support and maintenance. statement does not mean that consent decrees The court found “(t)he agreement between the are not subject to modification only if the parties parties as set out in the decree was final and agree to otherwise void or unlawful conditions binding and left nothing for determination by in a consent decree. the court.” The court relied on Whitehead, supra and Stuart v. Stuart, 1976 OK 107, 555 P.2d 611, in ¶8 Husband argued next that because the noting that a consent decree may not be modi- Decree in this case did not expressly waive the fied without the consent of both parties and the trial court’s statutory modification authority, it is court therefore granted Wife’s motion to dismiss. presumed the parties intended for the trial court to retain that authority. For this statement, Hus- ¶6 Husband appeals from the June 2005 dis- band relied on Utsinger, supra. We note that the missal of his second motion to modify the Whitehead decision was issued after Utsinger. Decree. In his response to Wife’s motion to dis- Additionally, Utsinger is a Court of Civil Appeals miss, Husband did not claim that the Decree was decision which does not bear the designation not a consent order. Husband claimed first that “approved for publication by the Supreme Whitehead, supra, did not bar modification in this Court” and therefore has not been accorded case because, according to Husband, precedential value, pursuant to Oklahoma Whitehead applies only to cases where the parties Supreme Court Rule 1.200(c)(2). Utsinger there- have consented to an alimony award which fore has persuasive value only. Whitehead plainly would otherwise be void if entered by a court. states that “(i)f the agreement between the par- Husband argued that the agreement the parties ties regarding support and maintenance is entered in this case was for a sum certain, intended as final and binding, leaving nothing payable in installments for a specific time period, for determination by the court on the question of and that as such, it was an alimony award which the amount of the allowance, such decree is not the trial court could have made in the first subject to modification without the consent of both

1682 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 parties.” Id. at ¶10, citing Stuart v. Stuart, 1976 provision. According to Dickason, a consent OK 107, ¶14, 555 P.2d at 615. On this point White- decree is subject to the law then in place, and if head and Utsinger cannot be reconciled and we the parties wish to prevent that law from becom- must follow Whitehead. Whitehead does not sup- ing part of their agreement, any power to do so port Husband’s claim that the trial court retained must be expressly exercised. Silence on the authority to modify the consent Decree at issue application of the law is not sufficient. here, absent an express waiver of the modifica- ¶5 Utsinger v. Utsinger, 1993 OK CIV APP 21, tion authority. Accordingly, we AFFIRM the trial 848 P.2d 1180, correctly applied this principle in court’s order dismissing Husband’s motion to concluding that a consent decree which was modify the Decree. silent on the application of § 134(D), in effect, MITCHELL, P.J., concurs, and ADAMS, J., dis- included that provision. We should reach the sents with separate opinion. same conclusion. ¶6 Modification pursuant to § 134(D) is not 1. Wife asserts that the court minute indicated the trial court would award $120,000 in support alimony, to be paid over ten years. inconsistent with any express provision of the 2. These included a reduction in Husband’s income, an increase in trial court’s decree or the parties’ agreement. Husband’s expenses, Wife becoming employed, and a decrease in Wife’s need for support. Therefore, I respectfully dissent. ADAMS, J., dissenting: 2006 OK CIV APP 51 ¶1 According to the majority, no divorce decree DANNY and JUDY MAINKA, husband and awarding support alimony and which is based wife; and, MICHAEL and SHEILA MAINKA, upon the parties’ agreement is subject to the pro- husband and wife, Plaintiffs/Appellants, v. visions of 43 O.S.2001 § 134(D) allowing modifi- GAYLON L. MITCHUSSON and BEVERLY J. cation of support alimony, even though the par- MITCHUSSON, husband and wife; ties’ agreement and the decree are silent with CHARLES Y. MITCHUSSON, SR. and EVA G. regard to modification. In doing so, I believe the MITCHUSSON, Trustees of the Charles Y. majority applies Whitehead v. Whitehead, 1999 OK Mitchusson, Sr. Revocable Trust dated August 91, 995 P.2d 1098, too broadly. 5, 2004; CHARLES Y. MITCHUSSON, SR. and EVA G. MITCHUSSON, Trustees of the Eva ¶2 Whitehead involved an agreement which G. Mitchusson Revocable Trust dated August provided for support alimony which was not 5, 2004; CHARLES Y. MITCHUSSON, JR. and stated in a lump sum and for a defined period. MARCIA J. MITCHUSSON; RONALD G. That agreement was inconsistent with the “sum MITCHUSSON and JUDITH MITCHUSSON; certain” rule based on language formerly con- ROY L. SPARKS, as Trustee of the Roy L. tained in what is now 43 O.S.2001 § 121, but Sparks Revocable Trust dated May 1, 1998 and which continues to be recognized as applicable LEDA K. SPARKS, as Trustee of the Leda K. in Oklahoma. See Mayhue v. Mayhue, 1985 OK 68, Sparks Revocable Trust dated May 1, 1998, 706 P.2d 890. Mr. Whitehead, despite having Defendants/Appellees. allowed the divorce decree to become final, No. 102,424. March 29, 2006 sought to have the alimony provision declared invalid. APPEAL FROM THE DISTRICT COURT OF ¶3 The Court concluded Mr. Whitehead could GRADY COUNTY, OKLAHOMA not do so, although he would have been able to HONORABLE RICHARD VAN DYCK, TRIAL mount a collateral attack on the alimony provi- JUDGE sion if it had not been a “consent decree.” The Court’s statement, relied upon by the majority, AFFIRMED that “such decree is not subject to modification Jack Mattingly, Jr., THE MATTINGLY LAW without the consent of both parties,” cannot be FIRM,. P.C., Seminole, Oklahoma, for Plain- applied out of its context, i.e. an agreement which tiff/Appellants, was inconsistent with the relief sought. Whitehead, 1999 OK 91, ¶10, 995 P.2d at 1101. Phil W. Gordon, HAYS & GORDON, Chickasha, Oklahoma, for Defendant/Appellees. ¶4 This case is more closely analogous to Dick- ason v. Dickason, 1980 OK 24, 607 P.2d 674, where- OPINION BY CAROL M. HANSEN, Judge: in the Court held a consent decree which was ¶1 This action involves the trial court’s denial silent on the applicability of what is now 43 of Appellants’ quest for an easement over O.S.2001 § 134(B) regarding termination of sup- Appellees’ property in order to access a public port alimony, was nevertheless subject to that road. Appellants are the owners of two tracts of

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1683 land in Grady County. They operate DM Dozers, intention of condemning Appellees’ property in a business that includes building highways and order to open a public road on the section line.1 bridges. Appellants use several large semi-trac- There was no indication the section line had ever tor-trailer trucks to haul equipment from their been officially opened as a public road. Because business to job sites. They filed this action claim- it had never been opened, it could not have been ing they were entitled to an easement across considered as abandoned. Appellees’ land on a section line that bisects ¶5 Wells v. Webb, 1989 OK 61, 772 P.2d 400, Appellees’ property, or in the alternative, an dealt with a dispute between two adjoining easement anywhere across the land. They want landowners. Therein, the appellant sought to the easement in order to avoid the inconvenient enjoin the appellee from blocking a portion of a and impractical route their trucks now must take section line running through a portion of the through the town of Bradley, Oklahoma. They appellant’s property. The Court held that no fee alleged the requested easement was a part of an owner should be denied the use of an abutting old county section line that ran through section-line for the purposes of ingress and Appellees’ property. They sought an easement egress to his land. It held though the appellant’s by necessity or, in the alternative, an easement by land was not entirely land-locked, the portion of implication. its forty acre tract was materially dependent ¶2 Appellees answered denying the existence upon use of the subject section-line which in the of an opened section line road through their past had served as a common roadway though not a property. They further denied such an easement public highway. The testimony disclosed that was necessary for Appellants to operate their entry to that portion of the appellant’s tract was business in that Appellants already had reason- not otherwise possible in an automobile or even able access to their property. They have used the by tractor. The Court reversed judgment in favor route through Bradley for about 20 years without of the appellee. damage to the roads in Bradley, or creating a nui- ¶6 The facts in that decision differ from those sance to the property owners along the way. Fol- in this appeal. Appellees admit there exists a sec- lowing a bench trial, the court granted judgment tion line through their property. However, as for Appellees. stated above, the evidence does not support the ¶3 On appeal, Appellants argue they are enti- section line had ever been a public road. In addi- tled to use the section line as it may not be aban- tion, ingress and egress to Appellants’ land is not doned or vacated because it exists in former Indi- materially dependent on use of the section line. an territory, citing Denton v. Board of County Com- Entry to their property is clearly possible missioners of McClain County, 1994 OK 42, 873 through the alternate route they have used for P.2d 1039. That decision involved county com- years. missioners who had constructed a section line ¶7 In Burkhart v. Jacob, 1999 OK 11, 976 P.2d road which bisected the plaintiff’s property. The 1046, the Court dealt with a road, already property owner claimed the section line had opened for travel. The appellant just wanted to been abandoned. The Supreme Court held improve the road to use it for commercial pur- because the section line went through Indian ter- poses. The Court held the fact the land in Wells ritory it could not be abandoned and gave judg- was materially dependant on the section line, ment to the county. It held “section lines reserved was merely one factor the Court considered in its by the Civilized Tribes Allotment Act cannot be decision. It was not controlling. But it did hold abandoned or vacated.” It quoted Paschall Prop- the use of the section line road by the appellant erties, Inc. v. Board of County Commissioners, 1987 must be reasonable. It reversed a summary judg- OK 6, 733 P.2d 878. “The Act contains no time ment in favor of the defendant. constraints as to when these roads may be estab- ¶8 Unlike the appellant in Donathan v. Wege- lished and specifies that all subsequent pur- man, 1998 OK CIV APP 29, 955 P.2d 759, Appel- chasers are subject to the provision, having taken lants here are asking for an easement across their title subject to it.” Appellees’ land, rather than an injunction to pro- ¶4 The sole evidence to support the existence hibit the defendants from blocking an already of a section line road here is the testimony of one existing road along a section line dividing the witness from Bradley who stated he recalled that two adjoining properties. In Donathan, the par- about sixty years ago there was a road of some ties agreed there was an alternate route of access, sort in the vicinity of the section line. A Grady although the appellant contended it was not County commissioner testified to the contrary. always available for use. The section line in the The commissioner stated the county had no present case does not divide Appellants’ and

1684 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 Appellees’ properties and there is clearly always an available alternate route for Appellants to get to the public road. ¶9 The easement proposed by Appellants would bisect Appellees’ land where their home, pond and cattle operation are located. Appellee LEGAL AID STAFF ATTORNEY Mitchusson testified there were power lines on or close to the section line. In order to build a Legal Aid Services of Oklahoma is accepting Staff road two rods wide,2 the power lines would Attorney applications for the following offices: have to be moved. He testified his cattle opera- Clinton, Lawton, Norman, and Stilwell. Staff Attorneys provide representation and other legal tion could be jeopardized by a road across his services for low-income and elderly people. property. He also felt it would interfere with Qualified applicants must have a commitment to security on the property, particularly at night. serving low-income and elderly people in addition ¶10 The trial court found no necessity for the to excellent writing, advocacy, and legal research easement existed. It distinguished Donathan skills. Applicants must have the ability to communi- cate effectively. This is an opportunity to help make and Wells in that the section line in question did justice for all a reality. Staff attorney positions have not divide the property of Appellant and an entry level salary of $30,000 and more DOE. Appellee. Appellee owns on both sides of the Generous fringe benefits include health, dental, life, section line and Appellant only owned a small and disability insurance as well as a pension plan portion north of the section line. It also found and other benefits. Application forms are available Appellants’ request for an easement by implica- at www.legalaidok.org or LASO Operations, 2901 tion did not exist in that Appellants had never Classen Boulevard, Suite 110, Oklahoma City, OK used any portion of Appellees’ property. Where 73106. Send application, resume, and writing sample to the above address or fax 405-524-1257. the owner of two or more adjoining lots Applications will be accepted until June 19, 2006 employs one so that the other derives a benefit and thereafter until filled. EOE of a continuous, permanent and obvious nature from the other, and sells the one in favor of which the quasi easement exists, such easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication. Tangner v. Brannin, 1963 OKLAHOMA INDIGENT OK 101, 381 P.2d 321. Clearly, the trial court was correct in finding no easement by implication. DEFENSE SYSTEM ¶11 The denial or award of an easement is an exercise of the trial court’s equitable cog- DEFENSE COUNSEL nizance, and its order will be affirmed on appeal unless it is found to be against the clear The Oklahoma Indigent Defense System weight of the (OIDS) has an opening for Defense Counsel evidence or contrary to law or established position our Non-Capital Trial Division, principles of equity. Mooney v. Mooney, 2003 OK Mangum satellite office. 51, 70 P.3d 872. The decision of the trial court herein is neither against the clear weight of the Salary commensurate with qualifications and evidence nor contrary to law or established within agency salary schedule range. Excellent principles of equity. benefits. ¶12 AFFIRMED Any interested applicant should submit a letter of interest and résumé to Angie Cole. BELL, P.J., and JOPLIN, J., concur. Angie L. Cole, AA/EEO Officer 1. Some Bradley homeowners signed a petition asking the county Oklahoma Indigent Defense System commissioners to open the section line as a public road. The commissioners denied the request. P.O. Box 926 2. According to Appellees, the Act of Congress of April 26, 1906 required all section line easements to be 33 feet (2 rods) wide. Appel- Norman, OK 73070 lants were attempting to obtain a 66 foot wide easement in order to accommodate their trucks. OIDS is an Equal Opportunity Employer

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1685 We Support the Re-Election of Judge Carolyn Ricks The lawyers and community leaders named below have confidence in Judge Carolyn Ricks and support her re-election as district judge of Oklahoma County, Division 4, Seat 12.They recommend her as an experienced, ethical, fair and outstanding judge who is worthy of your vote.

Ed Abel Joyce Bennett Hugo Cassianu Ann Daniel Robin M. Erskrie Angela Goforth John Hermes Jean Abel Phyliss Bennett Mike Cassidy C. M. “Dan” Daniel Todd Estes Amy Gooch Michael J. Heron Luke Abel Jennifer L. Ivester Berry Renee Cassidy Shirlie Daniel Allen D. Evans Jimmy Goodman Dylan Hickman J. Angela Ables DeLeis Best Larry G. Cassil, Jr. Thomas J. Daniel Dee Evans John N. Goodman Jaime L. Hickman Joan Ackley Kenyatta Bethea Dalia Castillo Janice M. Danson Frank D. Evans Randy Goodman Tina Hicks Jeanie Adams Mark Bialick James P. Cates Stephen R. Dare Gary L. Farnum Charles B. Goodwin Justin Hiersche Woodrow W. Adams Stacie Black Gary Catron Harley Darnell Richard L. Farris Kevin Gordon Kevin Hill Beth Adell Mike Blake Jacqueline Catrow Fern Darren Diane Faulkner Gary Grady Heather L. Hintz John A. Alberts Johnny Blassingame Allison Cave Cliff Daugherty Ed Faulkner Yvonne Grady Brion Hitt Charles F. Alden III Billy Bock Racheal Cave William E. Davidson Melvin Fennell Bill Grant Patsy Hodge Frances Aldridge Trena Boerner Lawrence Chan Shanon F. Davies Thomas G. Ferguson, Jr. Gerald P. Green Dan Hoehner Robert Aldridge Allicia Bolton Bart Chancellor Gary W. Davis Margarita Fernandez Tammy Green Patricia Hoge Edith Allan Timothy J. Bomhoff James M. Chaney George D. Davis Heather Fick Michelle Greene Robert Hoisington Beth Allen Angie Bookout Andy Chapman Judy Davis Robin F. Fields Rosella J. Greene Glenda Holden Ethan B. Allen III Jami Bookout Jennifer Chapman Peggy Davis Linda Finch J. Mitchell Gregory, Jr. Laura Holkum Hilay Allen Chris Boring Tim N. Cheek Renee Davis Amy Fischer Carol Grieder Nancy Holliday Reagan Allen Monty Bottom Adam Childers Steven C. Davis Eric S. Fisher Jill Griffin Carmie Holloway Terrie Allen Brock Bowers Linda Chilton James W. Dawson Grant Fitz John Griffin Dan Holloway Tina Allen David Box Robert G. Chilton Bruce Day Marcia Fitzgibbon Nikki Griggs James H. Holloway, Jr. Dameon Allensworth Dennis Box Clay Christensen Seth A. Day Berton Fleenor Liz Groon Jerome A. Holmes Linda Almaraz Irven Box Wade Christensen Bill V. Dean, Jr. Sherri T. Fleming Heather Grubb Gary B. Homsey Alexander Alpern Diane Braddock Gary M. Chubbuck Christie P. Dean Mark Folger Leslie D. Guajardo Dustin Hopson James D. Alsup, Jr. Tres Bradford June L. Chubbuck Stacey DeGottareid James D. Foliart Lorenzo Guajardo Ryan V. Horvath Ashley Altshuler Karen K. D. Brady Allen Clark Ryan Deligans Laurie A. Fong Cathi Gudell Henry D. Hoss Philip Anderson David Branscum Angel Clark Sandy DeMito Richard Ford Elaine Haack R. Ben Houston Paul Anthony Alexa J. Bray Curtis Clark Nick Demos Kathryn Forsee John Hacker David Howell Michael Antkowiak Kathy Brigham T. L. Clay Larry Derryberry William Forsee J. D. Hadley Frances A. Howell Bill Archibald Kenneth A. Brokaw R. Lyle Clemens Maria Diamond Teresa Foster Ben Hagar James F. Howell Shawn Arnold Fran Brooks Rhonda Clinton J. R. Dillinger Julie Fountain Scott Hale Joy Howell Jeanie Atchley Paul Brooks Erin Clogston Steven Ditto Chris Fox Elizabeth Hall T. P. Howell Nicholas Atwood Fred W. Brown Nancy L. Cody David Dobson Robert T. Frantz Joel Hall Thomas W. Howell Jerry Austine George H. Brown Donald Coffey Page Dobson Vicki Frederick Linda Hall Christian Huckaby Jo Anne Austine Jimmie Shadid Brown Mary Coffey Brian Dolan Amanda Fugate Robyn Hall Whitney Huckaby D. Lynn Babb Steven Huddleston Linda P. Brown Norma Cokeley Mary Dolan Cindy Fulkerson James G. Hamill Anthony W. Babcock David Hudiburg Margo M. Brown Mark D. Coldiron Randi D. Donaldson Michelle Fulkerson Preston G. Hammer Drew Babcock Fred Hudson Mark Brown David H. Cole David Donchin Ronald D. Fulkerson John C. Hammond Connie Bachman R. L. Huff Michael Browning Steven P. Cole Bob Donelson Sam Fulkerson Martha Hammond Gary C. Bachman Joel Hughes Judy Cail Bruce Moran Trudy Cole Glenda Donelson Scott Fulkerson Joe M. Hampton Stephen D. Bachman Leo K. Hughes, Jr. Alma Badillo Jamie Bruehl Dwayne Collins Kim Donelson Shawn Fulkerson Norma Hanks Rodney Hunsinger James Bagby Jennifer Bruner Rob Conger Mitch Donelson Steve Fulkerson Ron Hanks Cheryl P. Hunter Ann Bailey Tanya Bryant Cynthia Conner Sean Donelson Virginia Fulton Cynthia Hanner Shirley Y. Hunyadi Burck Bailey Whitney Buergler Alan Cook Pamela J. Doran Preston G. Gaddis II Larry H. Harden Mary Hurley Marianne Ballard Bob Burke Penny Cook Richard D. Doran Joelle Gandall Joel Harmon Thomas P. Hurley Brooke Ballul Marie Burroughs Russell Cook Darrell Downs Sammy Garcia Inona Harness Sally Husenfritz Alan Bardell Carl Butler Tenal S. Cooley III Kevin Driskill J. G. Gardner Chris Harper Sherry Huston Steven L. Barghols Louise Butler Geneva Coons Linda Driskill Kent W. Gardner Jennifer Harrington Brad Jackson James R. Barnett William E. Butler Jeffrey M. Cooper Michael D. Duncan Thelma Garha Michelle Harrington Nikki James Robert D. Baron Gus Buttman R. Curtis Cooper Nikki Duran Bryan Garrett Allen Harris Mitchell B. Janik Gayle Barrett Ben Butts Norma Coppedge Gerald Durbin John W. Garrett Jessica Harris Stephen L. Jantzen Eugene K. Bartman James B. Buxton Lorrie A. Corbin Jennifer Dutton Ed Garrison Richard J. Harris Jerry Jaynes Donald G. Bassett Elizabeth Cail Tom Corbin Mark Duvall Evan Gatewood Chris Harrod Pam Jenkins Linda Bassett James Cail George S. Corbyn, Jr. Diane Eager Sue Geatz Cindy Harrod Terry Jenkins Dan Batchelor James T. Cail III Linda E. Corrat Ronald Eager Jerrod Geiger Jeff L. Hartmann James A. Jennings Leslie V. Batchelor Lillian Cail Dianne Cotton Don Easter Charles E. Geister III Doug Hartwig Peggy Jobes Danielle Batson Melinda J. Cail, M.D. Melissa Couch Blake Eberle Barbara Gentry Teena Harvey Burt Johnson Jason Battle Dan Caldwell Terri Cowger Jonathan D. Echols James D. George Bob Hayden Daniel P. Johnson Hugh A. Baysinger Karen Callahan Dottie Cox Charles Eckert Stacy Gerken John B. Hayes Eric L. Johnson Jamie J. Beam Kelley C. Callahan Ron Cox Laura Eckert Lindsey Germain Kristi L. Hazen J. Logan Johnson Stephen D. Beam Allen Campbell Billy Coyle Matthew Eckstein Bobbie Gilbreath Chris Hedrick Scott Johnson Regan Beatty Michelle Campney John W. Coyle III Joe Edwards Curtis Gilbreath Dick Hefton Shelley L. Johnson Roy Beatty Donna Cantrell Scott L. Cravens Marc Edwards Greg Gilbreath Teri Helland William Johnson Rusty Beatty John Cantrell M. Joe Crosthwait Stephanie Edwards Mike Gipson Fred Henderson David C. Johnston, Jr. Johnny Beech Sam Caporal Jenna Cuningham Rob Eichler Peggy Gipson Glynese Henderson Mollee Johnston Jeff R. Beeler Vickie Rainwater Carbitcher Tommy Cuningham David Elder Michael Githens Cheryl Hendricks Philip Johnston John Beers Bob G. Carpenter Curtis P. Cunningham Carlene Elmore Juston R. Givens Russell L. Hendrickson Sylvia Johnston Donna J. Bellman Terry R. Carrington Robert Dace Charles Elmore W. Chris Gleman Angie Hendrix Beth Jones Lance Benham David W. Carson John Dahlem Lonnie Elmore Jeff Glen Mike Hendrix Dorwin Jones Celestia Bennett Joel Carson Louis Dakil Shannon Emmons Kelly Glos Harlan Hentges Helen Jones Len Cason Susan Dakil Kraettli Q. Epperson Keith R. Gobin Guya Herly Treasurer: Glenn E. Ricks

1686 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 Jake Jones III George Malone Caleb Mukala Barbara Precure Dianne Sanders Roger A. Stong Wanda Wallace Jay Jones Robert E. Manchester Tom Mullen James Precure Luis R. Santizo Carl Stover Gertrude Walls V. Jones Jessie Mann Russell Mullinix Chappie Prim Audrey Sartin Paula Stover Micky Walsh Will K. Jones Steve Mann Glen Mullins E. Edd Pritchett, Jr. Raquel Sasa Denise Stoy Regena Walsh Eric Jordan Joyce Manthey Rick Mullins Richard Propester John Schaefer Martin Straubs Frank Walters, Jr. James D. Kalisthorn L. Ray Maples II Matt Munding Marolyn Pryor Cindy Schaus Robert A. Streets Hilton Walters J. Robert Kalsu Lynn B. Mares Brooke S. Murphy Roger Pryor Stephen Schaus Brad Stringer Mathew G. Kane Bobbie Margo Janice Murray Shelly Pryor Sheryl Schelkun Debbie Stringer Joseph Walters Mary Ann Karnes Marty Margo Susan C. Murray Andrea Puckett J. R. Schneider Connie Stuckey Travis Walters Rebecca Karpe Marvin K. Margo Albert W. Murry Brian Puckett Jeanie Schniederjon Jeanie R. Studee Wilma Walters Myra Kaufman Perry T. Marrs, Jr. Jason J. Murry Tony G. Puckett Sandy Schovanec Sheree Stump Todd Ward David L. Kearney Chris Martin, M.D. Robert N. Naifeh, Jr. Beth Pugh G. Blaine Schwabe David Sturdivant Mark Warman Wanda Keel Theresa Martin Ken Nelson John T. Pugh Lisa Schwartz Kyle Sweet Bob Warren Dayton Keesee Timothy L. Martin Nancy Nelson Teresa Purcell Shirley Schwartz Janet Swindle Joseph C. Warren Joy Kegebein Galina Martynenks Tracy Pierce Nester Shelly Putney Libby Scott John W. Swinford, Jr. Stephen Washlaw Gerald E. Kelley Jacque Massad Michelle Newsom Wilma Qualls Wendy Scott A. Kyle Swisher Dell Watson James P. Kelley Keith Mastin Brandon Nichols Robert Raftery Phil Sears Larry E. Tabor Richard B. Kells Robert Matson Richard Nix David Rahme Amanda Self Norma J. Tabor Harold E. Weaver Lyle Kelsey Abby Mattew Robert O’Bannon Peter J. Ram Jennifer C. Seller Starla Tack Jane Weaver Tom Kendrick Terry Matthews Joe O’Brien Stan Rankin Michael J. Seller Roland Tague Jim Webb Brigid F. Kennedy Vicki Mattingly D. Michael O’Neil, Jr. Kevin Ratliff Randall Sewell Lew Tait Daniel G. Webber, Jr. Darvin Kent Byrona J. Maule Jane O’Toole Bill Raze Barry Shadid Kathleen Tanksley Leslie Weeks Marty Kessler Allen R. Maxwell Marty Odom Dorothy Reading Dana Shadid M. Linda Tapp Adam Scott Weintraub Robert H. Kestens Patti Maxwell Phil Odom Doyle Reading Dorene Shadid Patricia Tarpley Ashley Wells Eric R. King Debbie L. May Richard Ogden Karen Reading George Shadid Jeff Tate Bart Wells James A. Kirk Monty C. Mayfield Earl Ogletree Connie Reed Jarod Shadid Larry Tawwater David Wells Jennifer Kirkpatrick David Mayo Ronni Ogletree Albert Reeves Mari Lynn Shadid Grover Taylor Keith J. Klein J. Mark McAlester Will Oldfield Jack R. Reeves Randel Shadid Katherine Taylor Loz Jackie Wells Ken Klingenberg James A. McCaffrey Kirk Olson Robert Reichert Timothy Shadid Kyle K. Taylor Joshua Wells Sheila Klover Steve McCaleb Stephen Olson Dale Reneau G. Calvin Sharpe Todd Taylor Maryann Wells Gina Knight Joe C. McClendon Karl Oltermann Beth Reynolds Elizabeth R. Sharrock Kenna Holloway Tays Terrell P. Wells Betty Knutson Ricky A. McClendon Patricia A. Oltermann Nancy Reynolds Robert R. Shaw William Teague Cindy Wested Karl F. Kramer Joe McCormick Kelsie S. Orndorff James Rhodes John L. Shears Angela Templeton Andy Westerman Cassi Krieger Lottie McCormick Misty Osborn Douglas A. Rice Robert N. Sheets James H. Thiessen Angela Westerman Lane Krieger Barbara McCurdy Cynda C. Ottaway Nolan Rich James R. Shelton Bill Thomas John Westerman Loretta Lanham Dr. John McCurstion Larry Ottaway Ramona Rich John Shelton Angela Thompson Vivian Westerman Gerry Lantagne Jane McCurstion Carlo P. Pacione Craig Ricks T. J. Shelton Brent Thompson Phillip G. Whaley James W. Larimore Matthew McDevitt Julie Paddock Direk Ricks Chris Shepherd Mathew Thompson James K. Larimore Cynthia McHale Tiffany K. Padilla Eric Ricks LaVern Shepherd C. William Threlkeld Nathan Whatley Scott A. Law Barbara McKee Linda Page Gary Ricks Patrick Sherry B. W. Tidwell Pete White Marvin Laws Todd McKinnis Arnold Palestte Glenn Ricks Susan Shields Bonnie Tillman Savahna White R. Thomas Lay Ronnie McLain Stephen S. Parker Jerri Ricks Ron Shinn Don Timberlake Terri White Bret Leach Harold B. McMillin, Jr. Jay Parks Phil Ricks Kathy Shipley Jim Timberlake Lyndon Whitmire Dana Leach Michael S. McMillin Richard Parr Ron Ricks Gary J. Shires Carol J. Timm Gillian Whybark Delores Lee Sue McMillin Richard E. Parrish Shirley Ricks Susan Short Margie Timm Leah Wicker Mike Lee John C. McMurry Robbin Parrish Theresa Ricks Tom M. Short II Jeanette Timmons John Wiggins Paul Lefebvre Brandlyn McNeely Sarah Lee Parrish Tom Ricks James Siderias Victoria Tindall Sam Wilder Betty LeJeune Lacey McPherson Patrick R. Pearce, Jr. D. Todd Riddles Denise Sidwell Monica Tinsley Sam LeJeune Mel McVay Beverly Pearson L. Michael Rieves Travis Siegel Sara Tinsley Ben Williams Alvin R. Leonard Barbara McWilliams Bill Pearson Gary A. Rife Bob Simpson Warren Tinsley C. Brad Williams Amber Leseney Jack B. McWilliams Ragena L. Pearson Bonnie Riggs Jenelle Simpson Terry Tippens Janice L. Williams Vince Leseney Marc Means Angel Peeler Arleta Ritchie Amy Sine Doug Todd John Michael Williams Andrew W. Lester Angela Melton Travis Pennington Bill Roberts Earl Skarky Jeff Todd D. Ross Willingham Robert Levene Rhona Melton Alli V. Peoples III Carroll David Roberts Bill Smith Terry Todd Robert L. Willis Amy Lewis Bill Meneke Michael R. Perri Dennis Roberts II Jamie Smith Molly H. Tolbert Samuel P. Willis B. Lewis Karen Meneke Dianna Peters Dustin L. Roberts Jason Smith Victor Trautmann Charlene Wilson Greg Lewis Donna Metheny Michael A. Peters Greg Roberts Michael E. Smith David Traynor Donald R. Wilson Helen Lewis Brad Miller Brenda Peterson Herschel Roberts Randy Smith Kim Traynor Jeff Lewis Dave Miller Mary Jo Peterson Jeff M. Roberts Ryan Smith Danny Trent Jack Wilson Libby Lewis Laurie J. Miller Stephen Peterson Judyth Roberts Theron Smith Paul Trimble William A. Wilson Miarael Lewis Deborah Minard Joan Pettersen Krissy Roberts L. Don Smotherman Terri Trogdon Bob Winans Terri Lewis David K. Moeller Jack Petty John Robertson Amy D. Snow Kevin K. Trout DeeAnn Winans Susan Liner Lisa M. Molsbee Malitia Phillips Eugene Robinson Traci Soderstrom Jon H. Trudgeon Connie Wolfe Nick Linholm Chad Moody Carl E. Pickle Reid Robison Cynthia L. Sparling Jerry Tubb Tom Wolfe John C. Lithe Tracey Moody Joyce Pickle Stephen J. Rodolf Tony Speck Mike Turek Brandi Wood Andrea Lloyd Jeff Moore Amy J. Pierce Bryan Rody Max Speegle Jackie Turner Chris Wood Mary Lockhart Shelley D. Moore Cheryl Pierce Garnett D. Rogers Mark Spencer Gene Twining Elizabeth S. Wood Jim Loftis Nancy Moran John Pierce Sharon Roles Tracie Spencer Wilma Twining Shannon Wood Diana Lopez Siobhan Morava Stephen M. Pike Linda S. Romasz Henry Spielmann Eric A. Urbach Jose Lopez Sharon Morean Lauren Pitezel Amanda Rosell Stacy D. Spivey William van Egmond Harry Woods J. Mark Lovelace Mike Morel Kathy Plant Christy Rowland Matt Standard Billy R. Van Curen Maggie Wooton Susan Loving Catherine Morgan Arlin Plender Joan Rown Jennifer Stanley Peter T. Van Dyck Dana Wright Nathan Lowe Marla Morgan Sandy Plender Carolie E. Rozell R. Gene Stanley Donna Vaughn Tom Wright Kathy Lyles Mike Morgan Ross A. Plourde Kory Rozell Chris Stearman Janelle J. Vaughn Donna Yarbrough Leslie L. Lynch Pat Morgan Carl Pojezny Anton J. Rupert Amy R. Steele George William Velotta II Kenneth Yates Kildare Lyon Ken Morris David Pomeroy Kristy Rushing John Steele Jessica Volinski Roy Yokley Allison Mack Linda Morris Emily K. Pomeroy David Russell Rose Steele Jim Wadelow Troy Yokley Cale Maddy Paul Morris Janice Ponder Kristi Russell Ami Steelman L. Mark Walker Warren Young Robert Magrini Sharra Morris Kathryn Ponder Amy Russo Danette Stein Ronald L. Walker Darla Majors Barbara Morrison Al Poppino Jason A. Ryan Tom Stepanzier Sam Walker Lou Zin Dr. Michael Majors Charles F. Moser Kathleen Porter Patrick M. Ryan David G. Stern Heather Wall Ray E. Zscheische Mary Majors Judith Moudy James R. Posey Jaclyn Sadler David Stewart Holly Wallace Nazette Zuhdi Michael Maloan Shari Mounce April Powell Alix Samara Leasa M. Stewart R. Brown Wallace Kathryn Zynda Claudie Malone Pam Mowery David Prater Anita Sanders Terry Stokes Ron Wallace

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1687 We wholeheartedly support and endorse Judge Dan Owens in his position as District Judge. Voted by members of OCBA as one of Oklahoma County’s most outstanding Judges.

Ed Able Peter B. Bradford Steven Clark Bradley K. Donnell Bryan Garrett Russell L. Hendrickson Angela J. Ables Michael H. Brady John Anthony Claro Stephen A. Dotter J. Brent Gaylon John N. Hermes Murray E. Abowitz Randall A. Breshears Mack A. Clayborne Clifford C. Dougherty III Charles E. Geister, III Michael J. Heron Joseph T. Acquarira, Jr. Michael W. Brewer Brent D. Coldiron Timothy C. Dowd Sharon D. Gentry David High Vic Albert James E. Britton Steven P. Cole Darrell W. Downs Kelly A. George Frank D. Hill Charles F. Alden, III Kenneth A. Brokaw Ron Collier Kevin Driskill DeeAnn L. Germany John B. Hill Linda G. Alexander Carson M. Brooks J. William Conger Paul W. Dudman Keith R. Gibson Heather Hintz Ethan B. Allen, III Rex D. Brooks Leslie L. Conner, Jr. Sidney G. Dunagan Jared Giddens William H. Hoch Robert D. Allen Linda P. Brown Darren R. Cook Gerald Durbin Sally Gilbert John Hochgraefe John M. Amick Richard Bruce George S. Corbyn, Jr. W. Samuel Dykeman Robert H. Gilliland, Jr. Carrie P. Hoisington Philip W. Anderson Jamie K. Bruehl Melissa Couch Rand C. Eddy Keith F. Givens Glenda Holden Scott M. Anderson Gary A. Bryant Todd Court Joe Edwards Juston R. Givens Don Holladay Don J. Andrews Brandon L. Buchanan Gregory J. Crawford Marc Edwards Jerri K. Glenn Gary B. Homsey Michael M. Arnett Derek K. Burch M. Joe Crosthwait, Jr. Kent Eldridge Edward Goldman Lee Holmes Lynn D. Babb Catherine M. Burton Stanley L. Cunningham Kenneth W. Elliott Robert M. Goldman Richard E. Hornbeek Gary C. Bachman Benjamin J. Butts Jeffrey Curran Shannon Emmons Ambre C. Gooch Philip F. Horning Stephen D. Bachman Tim D. Cain Robert W. Dace Mark A. Engel O. Clifton Gooding Henry D. Hoss John Terry Bado Kelley C. Callahan George W. Dahnke Bryan N. Evans John N. Goodman Thomas W. Hosty Robert S. Baker Randall Calvert J. Christopher Daniels James H. Everest Randy L. Goodman James F. Howell Steven L. Barghols Catherine L. Campbell Gary W. Davis Arnold Fagin Gerald P. Green Michael J. Hunter Robert D. Baron Robert J. Campbell, Jr. George D. Davis Charles L. Fagin Donald K. Groom Rodney K. Hursinger Ray Bays William L. Canon Jack S. Dawson Gary L. Farnum Michael D. Gray John Hunsucker David O. Beal Kym Carrier Jerry Day Rebecca Farris Leslie Guajardo Cheryl P. Hunter James H. Bellingham Stanley F. Carroll Stephen L. DeGiusti Eliot R. Feiler Robert P. Hall J. Roger Hurt Eugene K. Berman Joel L. Carson Timothy D. DeGiusti Ken Felker Sarah A. Hall J. Dudley Hyde Howard K. Berry, Jr. Patrick Jon Casey R. Ryan Deligans Elliott Fenton Howard R. Haralson Scott A. Johnson James Belote Larry G. Cassil, Sr. Daniel M. Delluomo John Foley Joel W. Harmon Bryce Johnson Mark E. Bialick James P. Cates Rick L. Denker Michael R. Ford Inona Jane Harness Burton J. Johnson Jeff Black Gary W. Catron Clinton D. Dennis Kent F. Frates Jeff L. Hartmann Eric L. Johnson Kevin Blaney G. Derek Chance Patricia Dennis Judge Leamon Freeman David T. Hasbrook J. Logan Johnson Todd Blasdel James Chaney Larry Derryberry Doug Friesen Sally Hasenfratz David C. Johnston, Jr. Jerome H. Blumenthal Debra Charles David R. Dickey Sam R. Fulkerson Robert J. Haupt Dan K. Jones Timothy J. Bomhoff David A. Cheek David H. Dobson Shawn D. Fulkerson Gaylon C. Hayes Jake Jones Mark Bonner Gary S. Chilton Page Dobson Simone Fulmer Rick Healy K. Nicholle Jones Monty Bottom Cathy M. Christensen Randi A. Donaldson Don Funnell Rodney J. Heggy Orval Edwin Jones Dennis Box Joe Clay Christensen David Donchin Gore Gaines Timothy R. Henderson W. Brent Kelley

Paid for by Committee to re-elect Dan Owens, District Judge David High, Co-chairman John Goodman, Co-chairman 3601 N. Classen, Suite 203, Oklahoma City, Oklahoma 73118

1688 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 Rick Kells William J. Molinsky, Jr. Stephen L. Olson Dawn Rahme Sandy Schovanec Cynthia L. Sparling John Frederick Kempf, Jr. Jeffrey H. Moorman D. Michael O’Neil, Jr. Tracy C. Reed Elaine E. Schuster Larry M. Spears Brigid Kennedy Elizabeth A. Morehead Larry Ottaway Dale Reneau Blaine G. Schwabe, III Nancy Spencer John A. Kenney Larry A. Morgan Martin G. Ozinga Christina Reynolds Paul A. Scott Ronald E. Stakem Ken Kerr, Jr. Tim E. Millen James C. Peck Gary C. Rhodes Randall L. Sewell Matt Standard David W. Kirk Michael Mullins Devan A. Pederson Glenn E. Ricks Charles A. Shadid Steve Stephens Jim Kirk Richard M. Mullins Allie V. Peoples, III Gary A. Rife Randal Shadid Leasa M. Stewart Jennifer Kirkpatrick Brooke S. Murphy Dianna Peters Dennis C. Roberts Ed Shapard John D. Stiner Michael Paul Kirschner Sidney A. Musser William D. Pettigrew Rob F. Robertson Carla Sharpe Amy M. Stipe David W. Kisner Margaret K. Myers Harris Phillips Bob Robinson James W. Sharrock Terry Stokes David Kline Robert N. Naifeh, Jr. June E. M. Phillips Richard A. Robinson James C. Shaw Paul Streck Ken Klingenberg John C. Neimeyer Travis Pickens Reid E. Robison William F. Shdeed N. Martin Stringer Stan Koop Tracy Peirce Nester Bryan A. Plank Michael Rogalin Robert N. Sheets Don Strong Mark T. Koss Drew Neville Ross A. Plourde Michelle Kirby Roper T. J. Shelton Scott Sublett Stuart Knarr Brandon S. Nichols David Pomeroy Richard Rose Patrick Sherry William H. Sullivan Terry D. Kordeliski, II Richard D. Nix William P. Porter Armando Rosell Travis K. Siegel Kyle N. Sweet Harry J. Kouri, III Roland Tague Kevin Krahl Albert L. Tait, Jr. Michael E. Krasnow Derrick Teague Lane Krieger Sheila M. Thee Mike LaBrie F. William Thetford Jeff Laird Rachel Thetford James K. Larimore Carolyn S. Thompson Michael F. Lauderdale Jennifer Thompson Thomas R. Lay Robert C. Thompson David W. Lee Terry W. Tippens Alvin R. Leonard Doug Todd Jason Leonard Jeff L. Todd Andrew W. Lester Mary H. Tolbert Fred A. Liebrock Steven R. Tolson John C. Litke Robert D. Tomlinson Heidi J. Long Ray Tompkins Amy L. Loughridge Rex Travis J. Mark Lovelace Patsy Trotter Susan B. Loving Jerry Tubb Charles B. Lutz, Jr. Mike Turpen Leslie L. Lynch Patricia Tyree Robert Magrini David W. Van Meter Michael Maloan John Vitali Robert A. Manchester, IV Jim Vogt Robert E. Manchester Alexander C. Vosler Thomas Manning Andrew L. Walding Steven S. Mansell James R. Waldo Perry T. Marrs, Jr. Ronald L. Wallace Regina M. Marsh Kevin M. Walos G. Stephen Martin Hilton H. Walters James Matthews Todd Ward Byrona J. Maule James E. Warner, III J. Mark McAlester Drew D. Webb William C. McAlister “The law applied with fairness and James R. Webb Michael McAtee Josh Welch James A. McCaffrey William Wells Michael D. McClintock impartiality assures justice and Nathan L. Whatley Greg McCracken Joe White Jr. Keith D. McFall Pete White Neil P. McGuffee equality to everyone.” William H. Whitehill Jr. James C. McMillin Lyndon Whitmire John C. McMurry Wiley L. Williams Joel H. McNatt Lindsey Willis-Andrews Mel McVay David D. Wilson John W. Mee, Jr. – Judge Dan Owens Donald R. Wilson John W. Mee, III Nick Wilson Nick Merkley Ryan Wilson Judge Herb Mesigh Philip C. Winters Richard Mildren Michael L. Noland James N. Posey G. David Ross Lee Slater Thomas Wolfe Val R. Miller Robert O’Banan Courtney Davis Powell Paul Ross Richard E. Smalley Christopher A. Wood Earl D. Mills Richard Ogden Don M. Powers Mitchell D. Rozin Bob A. Smith Elizabeth Scott Wood W. Wayne Mills David Ogle G. Kay Powers Karl Rysted Bill Smith J. Kelly Work Robert B. Milsten Earl L. Ogletree Jim Priest Alix Samara Curtis L. Smith A. Daniel Woska George Miskovsky, III 5\DQ02OG¿HOG Tony G. Puckett Anita Sanders Josh Smith Sheryl N. Young Mark D. Mitchell Kirk Olson Lawrence Purvis Peter K. Schaffer Leslie G. Sparks Ray E. Zschiesche

Paid for by Committee to re-elect Dan Owens, District Judge David High, Co-chairman John Goodman, Co-chairman 3601 N. Classen, Suite 203, Oklahoma City, Oklahoma 73118

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1689 1690 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1691 OBA SOLO and SMALL FIRM CONFERENCE & YLD MIDYEAR MEETING JUNE 22-24, 2006 TANGLEWOOD RESORT • LAKE TEXOMA DAY 1 • Friday, June 23 8:25 a.m. Welcome Stephen Beam OBA President-Elect

8:30 a.m. 60 Tips in 60 Minutes Ross Kodner, Tom Mighell and Jim Calloway

9:20 a.m. Break

9:30 a.m. Beyond Google & Yahoo: Adobe® Acrobat® 7: Avoiding Guardianship Advanced Searching What Can It Do For Your Nightmares Office Tom Mighell Lesa Creveling, Judy Tuggle, Rick Borstein Judge Kyle Haskins and Paul Blevins

10:20 a.m. Break

10:30 a.m. E-discovery and Electronic Appellate Practice for the Social Security: It’s Short Evidence Management Solo Practitioner & Long Term Disability Ross Kodner Jody Nathan James Grennan and Jim Calloway

11:20 a.m. Break

11:30 a.m. Recent Developments in Web 2.0: The Next Insurance and Car to noon Oklahoma Family Law Generation Wrecks: Top 10 Things Every Solo Should Know Jon Ford and Phillip Tucker Tom Mighell and Jim Calloway Jody Nathan

Noon LUNCH BUFFET 12:50 p.m. - 2:00 p.m. Getting Paid — James A. Slayton Rethinking Attorney Billing — Jim Calloway Plenary Session Good Client Relations — Stephen Beam Making Money From Technology — Ross Kodner

2:00-2:10 p.m. Break

2:10 p.m. - All You Ever Wanted to Tightwad’s Guide to Recent Developments in 3:00 p.m. Know About Division of Lowering Your Overhead Estate Planning and Marital Property Probate Law Jim Calloway Virginia Henson L. Michele Nelson

1692 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 DAY 2 • Saturday, June 24 8:25 a.m. Welcome John Morris Williams OBA Executive Director

8:30 a.m. Ten Most Frequently Asked Questions of the Ethics Counsel Gina L. Hendryx

9:20 a.m. Break 9:30 a.m. Worst and Best Criminal Metadata and Other Tech 50 “Sics” in Trial Practices Disasters 50 Minutes: Learning From Writing Wrongs Jerome A. Holmes Ross Kodner and Brian T. Hermanson Donita Douglas

10:20 a.m. Break

10:30 a.m. Internet Research Special Procedures Work-life Balance That Finds You in Probate Cathy Christensen Tom Mighell Robert S. Farris

11:30 a.m. LUNCH BREAK — No Speaker — Hotel Check Out

12:30 p.m. - “The Sweet Spots” “Things I Wish I Had Legislative Update 1:20 p.m. Buying Law Known” John Morris Williams Office Hardware Panel: Jon Parsley, Ross Kodner Frank Holdsclaw and Nathan Johnson Keri Williams, Moderator

1:30 p.m. - What’s Hot and What’s 3:00 p.m. Not in Running Your Law Practice Fun For The Family At Tanglewood! Ross Kodner, Jody Nathan and Jim Calloway

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1693 The OBA Summer Get-A-Way OBA Solo & Small Firm Conference and YLD Midyear Meeting June 22-24, 2006 • Tanglewood Resort — Lake Texoma

REGISTRATION FORM: THIS FORM SHOULD BE TYPEWRITTEN OR PRINTED “LEGIBLY”

Registrant’s Name:______OBA#:______Address:______City/State/Zip:______Phone:______Fax:______E-Mail:______List name and city as it should appear on badge if different from above: ______Registration Fees: Registration fee includes 12 hours CLE credit, including one hour ethics. All meals: Thursday evening Poolside Buffet; Breakfast Buffet Friday & Saturday; Buffet lunch Friday & Saturday; Friday evening Ballroom Buffet.

Circle One Early-Bird Attorney Registration (on or before May 30, 2006) $175 Late Attorney Registration (May 31, 2006 or after) $225 Early-Bird Attorney & Spouse/Guest Registration (on or before May 30, 2006) $275 Late Attorney & Spouse/Guest Registration (May 31, 2006 or after) $325

Spouse/Guest Attendee Name: ______Early Bird Family Registration (on or before May 30, 2006) $325 Late Family Registration (May 31, 2006 or after) $375 Spouse/Guest/Family Attendee Names: Please list ages of children. Spouse/Guest: ______Family: ______Age:______Family: ______Age:______Family: ______Age:______

Materials on CD-ROM only Total Enclosed: $______NEW THIS YEAR: Teen Get-A-Way for ages 13 - 17. Teen activities during limited hours.

Make check payable to the Oklahoma Bar Association. MAIL Meeting Registration Form to: CLE REGISTRAR, P.O. Box 960063, Oklahoma City, OK 73196-0063. FAX Meeting Registration Form to (405) 416-7092 For payment using ___VISA or ___ Master Card: CC: ______Expiration Date: ______Authorized Signature: ______No discounts. Cancellations will be accepted at anytime on or before May 30, 2006 for a full refund; a $50 fee will be charged for cancellations made after May 31, 2006. Call 1 (800) 833-6569 for hotel reservations. Ask for the special OBA rate.

1694 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 OBA Solo & Small Firm Conference and YLD Midyear Meeting June 22-24, 2006 • Tanglewood Resort - Lake Texoma • (800) 833-6569 HOTEL REGISTRATION FORM

Registrant’s Name:______Phone: ______

Address: ______City/State/Zip: ______

Spouse/Guest/Family Attendee Names: ______

______Name Age, if under 21 ______Name Age, if under 21 ______Name Age, if under 21 HOTEL INFORMATION

Arrival Day/Date ______Departure Day/Date: ______No. of People ______

Please check room preference: ______Single Condo $99 ______New Hotel Room $119 ______Tower Suite $129

______Smoking Room ______Non-Smoking Room Special Requests: ______CHILDREN ACTIVITIES (3 yrs. & up) SPOUSE/GUEST ACTIVITIES FRIDAY, JUNE 23, 2006 FRIDAY, JUNE 23, 2006 9:30 am - 11:30 am: Age Appropriate Crafts 9:30 am: Golf _____ No. $12 each child $______9/$35, 18/$50 (call for tee time) _____ No. Golfers 9/$35 $______11:30 am - 1 pm: Story Time (lunch included) _____ No. Golfers 18/$50 $______No. $12 each child $______RECREATIONAL ACTIVITIES 1 pm - 3 pm: Supervised Swimming _____ No. $12 each child $______4 Outdoor Swimming Pools & Jacuzzi 2 Lighted Tennis Courts 7:30 pm - 10:30 pm: Movies & Popcorn Playground & Volleyball Court _____ No. $12 each child $______Bicycle Rentals Belgian Horseback Riding SATURDAY, JUNE 24, 2006 Croquet & Badminton 9:30 am - 11:30 am: Supervised Swimming Lake Texoma Striper Fishing _____ No. $12 each child $______> > > > > > > > > > 11:30 am - 1 pm: Story Time (lunch included) _____ No. $12 each child $______TRANQUILITY SPA Featuring: Massage Therapy, European Facials, Body 1 pm - 3 pm: Age appropriate games _____ No. $12 each child $______Wraps, Airbrush Tanning…plus much more! TOTAL for Children $______Call 1(800) 833-6567 Private babysitting available for children before June 19 to make spa appointment. 3 and under $10 per hour, arrange at front desk.

See www.tanglewoodresort.com for more hotel, recreational activities and spa information.

Mail or fax entire page to: Tanglewood Resort Attn: Teresa, 290 Tanglewood Circle, Pottsboro, TX 75076-Fax (903) 786-2128. Make check payable to the Tanglewood Resort. If paying by credit card please complete: _____VISA _____ Master Card _____ Discover _____ AMX

Credit Card No.______Authorized Signature:______Expiration Date:______Cancellations of activities will be accepted 48 hours before arrival date. HOTEL DEADLINE: MAY 30, 2006

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1695 Sovereignty Symposium May 31 — June 1, 2006 REGISTRATIONXIX FORM • Mail this form to: • Location of Symposium: The Sovereignty Symposium, Inc. Renaissance Hotel/Cox Business 1915 N. Stiles, Suite 305 Services Center, 10 N. Broadway Oklahoma City, OK 73105 Oklahoma City, Oklahoma 73102 Attention: Ms. Julie Rorie

Name: ______Occupation: ______Address: ______City: ______State: ______Zip: ______Nametag should read: ______E-mail Address and/or Website ______Telephone Numbers: Home (____) ______Work (____) ______Fax (____) ______Tribal Affiliation (if applicable): ______Are you a member of a bar association? ______Yes ______No If so, what state: ______Bar # ______

# of Amount Persons Enclosed $195.00 = Registration fee ($210.00 if postmarked after May 15). $95.00 = Registration for Federal, State or Tribal judges (this fee is waived for Oklahoma District Court and Appellate judges). $100.00 = Registration per day, per person; no one-day registration for May 31. TOTAL AMOUNT

HOTEL ACCOMMODATIONS: Fees do not include hotel accommodations. For reservation contact: Renaissance Hotel (405) 228-8000 or 1-800-468-3571 Notice To All Tenth Circuit Federal, State, and Tribal Judges:

Please be advised that members of the Tenth Circuit Federal - State - Tribal Relations Committee will meet with members of the state and tribal judiciary to conduct a dialogue on mutual concerns. The meeting will take place as a part of the Sovereignty Symposium 2006 on Wednesday, May 31, 2006, beginning at 8:30 a.m. and will continue until all business is concluded. The meeting will be held at the Renaissance Hotel/Cox Business Services Convention Center, 10 North Broadway, Oklahoma City, Oklahoma.

1696 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 ASSISTANT GENERAL COUNSEL The Oklahoma Department of Mental Health and Substance Abuse Services (ODMHSAS) is recruiting an Assistant General Counsel, announcement #06-026. This position under direc- tion of the General Counsel performs highly responsible professional work in preparation and Assistant Federal Public Defender presentation of cases in court and administrative proceedings, and advises the agency and personnel FEDERAL HABEAS CORPUS regarding legal matters. This position will involve emphasis on public law, employment law and DEATH PENALTY DIVISION behavioral health law. Qualifications: Jurist FEDERAL PUBLIC DEFENDER Doctorate degree from an ABA accredited law school and member in good standing of the ORGANIZATION Oklahoma Bar. Preference may be given for civil WESTERN DISTRICT OF OKLAHOMA and administrative litigation and trial experience. Shall be willing and able to fulfill all job related The Federal Public Defender is accepting travel normally associated with this position. applications for the position of Assistant Federal Salary range: $40,000 – 50,600. Reference #06-026 Public Defender in the Capital Habeas Unit. and apply to address below with a copy of your most The Unit represents death sentenced prisoners in recent performance evaluation and two (2) writing federal habeas corpus litigation proceedings samples and resume. Reasonable accommodation to throughout Oklahoma. This is a full time position individuals with disabilities may be provided upon request. Application period: 5/8/06, 8:00 a.m. and located in Oklahoma City. closes on 6/9/06, 5:00 p.m. EOE. • ODMHSAS - Applicants must possess strong writing ability, a Human Resources • PO Box 53277, Oklahoma commitment to poverty law or indigent criminal City, OK 73152 • (405) 522-3902 defense, and litigation experience in at least one of the following areas: criminal law, death penalty litigation, habeas corpus litigation, or complex federal court civil litigation. Habeas experience desirable but not required. High academic ASSISTANT GENERAL COUNSEL qualifications and exceptional writing ability will be NEEDED OFFICE OF THE considered in lieu of experience. The position GENERAL COUNSEL requires travel. OKLAHOMA BAR ASSOCIATION Salary commensurate with experience and Applications are being accepted for a education, equivalent to salaries for Assistant U.S. full-time Assistant General Counsel for the Attorneys with similar experience. Oklahoma Bar Association. The Assistant Qualified persons may apply by forwarding a General Counsel assists the General Counsel letter of interest, resume, and representative in screening, investigating and prosecuting writing sample to: allegations of unethical conduct by lawyers. Applicants must be admitted to practice law Gary Farris, Administrative Officer in Oklahoma, have excellent research, writing Office of the Federal Public Defender and litigating skills and extensive trial experi- Western District of Oklahoma ence. Private practice experience strongly 215 Dean A. McGee, Suite 109 preferred. Salary negotiable, depending upon Oklahoma City, Oklahoma 73102 credentials and experience. Excellent benefits Application packages must be received no later including retirement, health and life than June 9, 2006. insurance. Resumes, together with a cover let- The Federal Public Defender Organization for the ter and references, should be submitted no Western District of Oklahoma is an Equal later than Friday, June 9, 2006, to Dan Opportunity Employer. Murdock, General Counsel, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.An Equal Opportunity Employer

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1697 GRANT APPLICATIONS AVAILABLE

OKLAHOMA INTEREST ON LAWYERS' TRUST ACCOUNTS (IOLTA) PROGRAM 2006 GRANT APPLICATIONS NOW AVAILABLE The Oklahoma Bar Foundation (OBF) Grants and Awards Committee is now accepting applications for 2006 grants to be awarded through the Oklahoma IOLTA Program. The deadline for Application submission is Tuesday, July 18, 2006. Applications are accepted for programs and projects that: • provide delivery of legal services to the poor; • promote quality legal education; • improve the administration of justice and promote such other programs for the benefit of the public as are specifically approved by the Oklahoma Bar Foundation for exclusively public purposes. The 2005 IOLTA grants totaling $354,500 were approved by the Oklahoma Bar Foundation Board of Trustees to:

I Provide delivery of civil legal aid services to the poor and elderly throughout Oklahoma. Grants totaling $200,000 were awarded to the consolidated statewide organization, Legal Aid Services of Oklahoma, Inc. and $45,000 was awarded for legal aid services for children and other victims of domestic abuse to Oklahoma Lawyers For Children, Inc., Tulsa Lawyers For Children, Inc. and the Oklahoma Indian Legal Services, Inc. Domestic Violence Prevention Program.

I Fund education programs in the total amount of $59,500. Awards were made to the Oklahoma Bar Association Law-Related Education Teacher’s Workshop Program, grades K through 12; the Oklahoma High School Mock Trial Program sponsored by the Oklahoma Bar Association Young Lawyers Division; the statewide YMCA Oklahoma Youth & Government Program; and $7,500 was reserved for the 2006 National High School Mock Trial Competition to be held in Oklahoma.

I Improve the administration of justice through $50,000 in grants awarded to the statewide Oklahoma Access To Justice Commission. IOLTA grant applications must be postmarked or delivered no later than Tuesday, July 18, 2006 to be considered. Packets may be downloaded from the Web Page at www.okbar.org/obf or application packets may be requested by writing or calling:

OKLAHOMA BAR FOUNDATION IOLTA PROGRAM P O Box 53036 Oklahoma City OK 73152-3036 (405) 416-7070 or (800) 522-8065 E-mail: [email protected]

1698 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 CLASSIFIED ADS

SERVICES SERVICES

APPEALS and LITIGATION SUPPORT — Research SOIL & GROUND WATER POLLUTION AND and writing by a veteran generalist who thrives DAMAGE INVESTIGATION: Expert Witness. Dr. G.A. on wide variety of projects, big or small. Cogent. (JIM) SHIRAZI, Ph.D., RPG, CPSSC. 30yrs Experience Concise. Nancy K. Anderson, (405) 682-9554, in Oil, Gas, Mining & Environmental cases in Federal, [email protected]. District and Corporation Commission Courts. Tel: (405) 478-1228. Email: [email protected]. LEGAL RESEARCH AND WRITING. Brief writing; motions; civil appeals; trial support. Reasonable rates. Ten years experience. Lou Ann R. Barnes OFFICE SPACE (918) 810-3755; [email protected] 4901 NW EXPRESSWAY, OKC. Suite of 3 plus kitchen, parking at door, freshly decorated, custom milled wood- HANDWRITING IDENTIFICATION work. Perfect for Executive and Staff. Available June 15. POLYGRAPH EXAMINATION Please contact Beau Williams at (405) 840-3889. Board Certified Court Qualified Diplomate — ABFE Former OSBI Agent ADA OFFICE SPACE AVAILABLE — The historic Life Fellow — ACFE FBI National Academy American Building one block from the courthouse. Arthur D. Linville (405) 636-1522 Professional offices in a variety of sizes and prices with flexible terms. Convenient parking. Contact John INTERESTED IN PURCHASING Producing & Fitzgerald (580) 759-2481. Non-Producing Minerals; ORRI; O & G Interests. CORNER OFFICE AVAILABLE IN NICE MIDTOWN Please contact: Patrick Cowan, CPL, CSW Corporation, P.O. Box 21655, Oklahoma City, OK 73156-1655; (405) TULSA OFFICE CONDO — 2409 E. Skelly Drive, Suite 755-7200; Fax (405) 755-5555; E-mail: [email protected]. 200. Easy access to highway and to convenient parking. Phone, Westlaw, and DSL internet access available. Call OF COUNSEL LEGAL RESOURCES — SINCE 1992 — Stacy (918) 605-1488. Exclusive research & writing. Highest quality: trial and appellate, state and federal, admitted and practiced DOWNTOWN OKC OFFICE SPACE in historic First U.S. Supreme Court. Over 20 published opinions with National Center located on the corner of Park and numerous reversals on certiorari. MaryGaye LeBoeuf Robinson. No long-term lease required. Variety of space (405) 728-9925, [email protected] available from as little as one office up to as much as 6,000 square feet. Renovated in 2001. Wood floors, large SECURITY NEGLIGENCE Special expertise in prem- reception area, built-ins, kitchen, and offices with a ise liability, security training and security procedures, view! Call (405) 239-3800. Authored four security textbooks. Thirty years combined experience in security and law enforcement. OFFICES FOR RENT: NW Classen Location, OKC. Contact Ron Vause. 1-800-728-0191. Telephone, law library, waiting area, receptionist, telephone answering service, office Desk & Chair, all SIGNATURE and HANDWRITING writer identi- included in rent; Offices from $490.00 per month. Free fied. DOCUMENTS examined for alterations. parking. Gene (405) 525-6671. Specialized lab equipment. Since 1978. Certified. PAT TULL (405) 751-1299. SOME REFERRAL WORK for attorney wanting to OKC ATTORNEY HAS CLIENT INTERESTED in share space in Mid-Tulsa. Staff, phones, fax, copier, purchasing producing and non-producing mineral computer, printer, internet and furniture available. interests. For information, contact Tim Dowd, 211 N. Prefer attorney with family, personal injury and Robinson, Suite 1300, OKC, OK 73102, (405) 232-3722, general practice experience. (918) 270-2604. (405) 232-3746 — fax, [email protected]. PRESTIGIOUS OKC OFFICE SPACE — Ideal for small EXPERT WITNESSES • ECONOMICS • law firm or solo practitioner. Located at 154th & N. May at VOCATIONAL • MEDICAL Economic Damages, the entrance to Esperanza. Beautiful country French Lost Profits Analysis, Business/Pension Valuations, building overlooks ponds and waterfalls; convenient to Employment Discrimination, Divorce, Wrongful Kilpatrick Turnpike and Hefner Parkway; inclusive of Discharge, Vocational Assessment, Life Care Plans, receptionist; high speed internet; fax; copier; digital Medical Records Review, Business/Legal Ethics. telephone system; security system with cameras; National Experience. Call Patrick Fitzgerald. gourmet kitchen and conference room. $900 per month. (405) 447-6093. AVAILABLE NOW. Contact Gregg Renegar (405) 285-8118.

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1699 OFFICE SPACE POSITIONS AVAILABLE

TWO OFFICES AVAILABLE FOR SUBLEASE — 204 N. ASSISTANT UNITED STATES ATTORNEY – The Robinson — OKC. Receptionist, phone, copier, fax, law United States Attorney's Office for the Western District library, conference room, kitchen and DSL internet of Oklahoma is seeking experienced attorneys to fill a access. Call Christy at Elliott and Peterson at (405) 236- vacancy in its Criminal Division. This position will be 3600. assigned to one of four teams handling counter-terror- ism and national security, violent crimes, narcotics PRESTIGIOUS OKC OFFICE SPACE 4528 N. Classen trafficking, white collar and public corruption crime, Blvd. Reception, Fax, Copier, Telephone System, and other federal major crimes. Salary is based on the Conference Room, Kitchen, parking in front and rear. number of years of professional attorney experience. Trial experience is desirable. Interested applicants Frequent Referrals. Contact J.R. Homsey (405) 524-1011. should send their resumes to: Robert J. Troester, First Assistant U.S. Attorney, U.S. Attorney’s Office, West- NEED OKC DOWNTOWN SATELLITE OFFICE? We ern District, Oklahoma, 210 Park Avenue, Suite 400, have what you want. From $325.50/month with all bills Oklahoma City, OK 73102. This position is open until paid including free downtown parking and Cox high filled. speed internet. Call (405) 447-6480 for more information. PARALEGAL UP TO $36K + state benefits LEGAL EXECUTIVE SUITES for lease 4312 Classen package. BS or BA; or 4 yrs paralegal\legal asst exp; or Boulevard, OKC, near downtown, rates from $500.00. an equivalent combination of edu & exp. Preference Receptionist, Unlimited U.S. Long Distance, for: Paralegal certification; Federal appellate experi- voice-mail, caller ID, Conference Rooms, IP Video ence; Exp w/ case mgmt software (e.g., Case Logistics); Conferencing, Collating copier, Fax, Internet, Exp performing legal research and preparing legal Non-Smoking. (405) 525-0777. documents; and/or adv edu. Download appl. and questionnaire from website. Deadline: June 5th, 2006. OK Health Care Authority, Attn: Human Resources, POSITIONS AVAILABLE 4545 N. Lincoln Blvd., Ste. 124, OKC, OK 73105 [email protected]; www.okhca.org EOE IMMEDIATE OPENING for a full-time Receptionist. Light computer skills and excellent telephone skills SMALL N.W. OKC FIRM WITH HEAVY CASE LOAD seeks associate with experience in personal required. Good work ethic is a must. Fax resume to injury, and civil litigation. Candidate must also have (405) 239-3801. bankruptcy experience and working knowledge with the new updates. Our firm practice focuses mainly in 3529 — TRUSTS & ESTATES ATTORNEY — personal injury, family practice, criminal practice and CONTRACT Excellent long-term contract opportunity bankruptcy. All contacts will be kept confidential. to work for a prestigious national non-profit organiza- Compensation package commensurate with tion on trusts and estate matters handling a wide vari- experience and performance. Send resume to Box ety of responsibilities including reviewing, drafting, and “R,” Oklahoma Bar Association, P.O. Box 53036, administering documents related to probate matters, Oklahoma City, OK 73152. counseling others regarding related legal issues, and supervising support personnel. Should have 2-4 years of EXECUTIVE DIRECTOR WANTED — Responsible for probate &/or estate planning experience, exceptional the administration of ongoing programs, workshops, communication skills, and be a motivated self-starter. and trade fairs. Applicants must have good communica- Superior academics and experience as well as bar tion skills along with a Bachelors Degree, or higher. membership are required. Position will last for several Should be familiar with all aspects of oil and gas pro- months and has the potential to go permanent. duction operations and have field experience. Applicant E-mail resume to [email protected] or fax to must be able to learn the operations of a State Agency, (404) 942-3780. and its associated rules and regulations. If you feel you meet these qualifications contact the Commission on 3528 — TRUSTS & ESTATES PARALEGAL — Marginally Producing Oil and Gas Wells by sending CONTRACT Well-respected non-profit organization is your resume and a brief letter stating why you feel you looking for a mid-level paralegal for long-term are qualified to: MWC, 3535 N.W. 58th Street, Ste. 870, assignment assisting counsel with administration of Oklahoma City, OK 73112. Please write RESUME on the legacy and bequest gifts. Must possess a high level of outside of the envelope. initiative and be customer service oriented. Requires at least 2-4 years of experience working on trust and probate matters, excellent written and verbal communi- TULSA AV-RATED BOUTIQUE LAW PRACTICE seek- cation skills, and be proficient with Excel, Word, and ing Associate Attorneys 2+ years experience. Litigation other computer software applications. BA/BS and or environmental law experience strongly preferred. paralegal certificate also required. E-mail resume Full- and part-time schedule available. Provide salary to [email protected] or fax to requirements. Send replies to Box “Q,” Oklahoma Bar (404) 942-3780. Association, P.O. Box 53036, Oklahoma City, OK 73152.

1700 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 POSITIONS AVAILABLE POSITIONS AVAILABLE

LARGE OKLAHOMA CITY FIRM SEEKS TAX DOWNTOWN OKC AV RATED FIRM seeks associate ATTORNEY AND TRANSACTIONAL ATTORNEY: attorney with at least 4 years experience to practice Phillips McFall McCaffrey McVay & Murrah, P.C. is in general civil litigation. Strong academic background looking to hire a Tax Attorney, preferred to have a LLM and writing skills required. Must be prepared to and/or CPA with at least 3 years experience. We are immediately assume substantial responsibility. Com- also seeking to hire a Transactional Attorney with 3-5 pensation and benefits commensurate with abilities. years experience who will work directly with Director Send resume and salary requirements to: Box “M,” on commercial transactions, real estate law, design and Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. construction law, and international law. Excellent starting salary and benefits. Please send resume to Amy Chavez, 12th Floor, One Leadership Square, 211 N. AV-RATED FIRM IN DOWNTOWN TULSA is seeking Robinson, Oklahoma City, Oklahoma 73102 or an associate with 1-3 years experience to work in the [email protected]. areas of civil litigation, regulatory matters and commercial transactions. Firm has strong client base and offers AV RATED DOWNTOWN OKC FIRM seeks associate excellent opportunities for advancement to lawyers w/min. 2 yrs. exper. Emphasis on business law, family committed to the highest levels of work product and law, commercial law and gen. litigation. Strong academ- client service. Superior academic performance (top 10% ic background and drafting skills required. All replies of class) and proven writing skills are required. Please confidential. Send resume and writing sample to: Box send a current resume, list of references and writing “O,” Oklahoma Bar Association, P.O. Box 53036, Okla- sample to Joyce, Paul & McDaniel, PLLC, 1717 South homa City, OK 73152. Boulder Avenue, Suite 200, Tulsa, OK 74119.

PART-TIME PARALEGAL Litigation or Probate Experi- IN-HOUSE COUNSEL POSITION — Tulsa-based ence Necessary. Send resume to Terry T. Wiens, 4301 SW domestic and international contract drilling company 3rd, Oklahoma City OK, 73108, Fax: (405) 843-7935; seeks full-time attorney with 2-3 years experience in email: [email protected]. energy, corporate and/or general business practice. Submit confidential resumé with salary requirements DYNAMIC OKLAHOMA CITY LAW FIRM concentrat- and references to: Helmerich & Payne, Inc., 1437 ing in commercial litigation, construction law and insur- South Boulder Avenue, Suite 1400, Tulsa, OK ance defense seeks lawyer with 3-4 years experience, lit- 74119-3623, Attention: Tina York, Human Resources, igation background and excellent legal writing skills for [email protected]; (918) 588-5485-fax. associate position. Please send resume, transcript and writing sample to Box “L,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. CLASSIFIED INFORMATION

OKC LAW FIRM seeks associate with experience or CLASSIFIED RATES: One dollar per word per interest in commercial litigation & real estate transac- insertion. Minimum charge $35. Add $15 surcharge tions. Accepting resumes in confidence from attys per issue for blind box advertisements to cover with 2-5 years experience. Must have excellent forwarding of replies. Blind box word count must research and writing skills. Send resume', salary include “Box ____ , Oklahoma Bar Association, P.O. requirements, references, writing sample to Box “N,” Box 53036, Oklahoma City, OK 73152.” Display Oklahoma Bar Association, P.O. Box 53036, Oklahoma classified ads with bold headline and border are $50 City, OK 73152. per inch. See www.okbar.org for issue dates and Display Ad sizes and rates. DEADLINE: Tuesday noon before publication. Ads RIGGS ABNEY NEAL TURPEN ORBISON & LEWIS must be prepaid. Send ad in writing stating number seeks a lawyer with a minimum of three years experi- of times to be published to: ence for the firm's Tulsa office. Experience in business Melissa Brown formations and transactions, real estate, securities, Oklahoma Bar Association estate planning, and/or tax is required. Please for- P.O. Box 53036 ward resume and salary requirements to Colleen Oklahoma City, OK 73152 Nichols at [email protected]. Publication and contents of any advertisement is not to be deemed an endorsement of the views expressed S PA N I S H / E N G L I S H bilingual attorney/assis- therein, nor shall the publication of any advertisement tant attorney position available in OKC. Send resume be considered an endorsement of the procedure or serv- and salary requirements to: Human Resources, 2410 ice involved. All placement notices must be clearly non- W. Memorial Road, Suite C-345, OKC, OK 73134. discriminatory.

Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1701 1702 The Oklahoma Bar Journal Vol. 77 — No. 16 — 5/27/2006 Vol. 77 — No. 16 — 5/27/2006 The Oklahoma Bar Journal 1703