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Volume 79 ◆ No. 28 ◆ Oct. 25, 2008

Court Material LAWYERS HELPING LAWYERS ASSISTANCE PROGRAM

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2410 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 OFFICERS & BOARD OF GOVERNORS J. William Conger, President, Oklahoma City Jon K. Parsley, President-Elect, Guymon EVENTS CALENDAR Michael C. Mordy, Vice President, Ardmore OCTOBER Stephen D. Beam, Immediate Past President, Weatherford Julie E. Bates, Oklahoma City 29 OBA Appellate Practice Section Meeting; 12 p.m.; Oklahoma Bar Jack L. Brown, Tulsa Cathy M. Christensen, Oklahoma City Center, Oklahoma City and OSU Tulsa; Contact: Gene Bertman Donna Dirickson, Weatherford (405) 340-1900 Robert S. Farris, Tulsa Brian T. Hermanson, Ponca City NOVEMBER W. Mark Hixson, Yukon Jerry L. McCombs, Idabel Deborah A. Reheard, Eufala 5 OBA Administrative Law Section Meeting; 12 p.m.; Oklahoma Bar Alan Souter, Bristow Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Gary Peggy Stockwell, Norman James T. Stuart, Shawnee Payne (405) 271-1269 Kimberly Warren, Tecumseh, Chairperson, 11 Veterans Day (State Holiday) OBA/Young Lawyers Division BAR CENTER STAFF 12 Ruth Bader Ginsburg American Inn of Court; 5 p.m.; Oklahoma Bar John Morris Williams, Executive Director; Center, Oklahoma City; Contact: Julie Bates (405) 691-5080 Dan Murdock, General Counsel; Donita Bourns Douglas, Director of Educational Programs; 13 Hudson Hall Wheaton Inn Pupilage Group Three; 5:30 p.m.; Carol A. Manning, Director of Communications; Federal Building, 333 West Fourth St.; Contact Michael Taubman (918) Craig D. Combs, Director of Administration; 260-1041 Gina L. Hendryx, Ethics Counsel; Jim Calloway, Director of Management Assistance Program; Rick 19-21 OBA 104th Annual Meeting; Sheraton Hotel, One North Broadway, Loomis, Director of Information Systems; Beverly S. Oklahoma City Petry, Administrator MCLE Commission; Jane McConnell, Coordinator Law-related Education; 21 OBA Board of Governors Meeting; 2 p.m.; Sheraton Hotel, One North Janis Hubbard, First Assistant General Counsel; Broadway, Oklahoma City; Contact: John Morris Williams (405) 416-7000 Mark Davidson, Loraine Dillinder Farabow and Janna D. Hall, Assistant General Counsels; Robert 27-28 Thanksgiving Holiday (State Holiday) D. Hanks, Senior Investigator; Sharon Orth , Dorothy Walos and Krystal Willis, Investigators Nina Anderson, Manni Arzola, Jenn Barrett, DECEMBER Debbie Brink, Melissa Brown, Brenda Card, Sharon Dotson, Johnny Marie Floyd, Matt Gayle, Susan Hall, Brandon Haynie, Suzi Hendrix, 4 Law-related Education Committee Meeting; 4 p.m.; Oklahoma Bar Misty Hill, Debra Jenkins, Jeff Kelton, Durrel Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Jack Lattimore, Debora Lowry, Heidi McComb, Renee G. Clark Jr. (405) 232-4271 Montgomery, Wanda Reece-Murray, Tracy Sanders, Mark Schneidewent, Robbin Watson, 10 OBA Clients’ Security Fund Committee Meeting; 2 p.m.; Oklahoma Laura Willis & Roberta Yarbrough Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: EDITORIAL BOARD Micheal Charles Salem (405) 366-1234 Editor in Chief, John Morris Williams, News & Layout Editor, Carol A. Manning, Editor, Melissa 12 OBA Family Law Section Meeting; 3 p.m.; Oklahoma Bar Center, DeLacerda, Stillwater, Associate Editors: Steve Oklahoma City and OSU Tulsa; Contact: Lynn S. Worley (918) 747-4600 or Barnes, Poteau; Martha Rupp Carter, Tulsa; Mark Noel Tucker (405) 348-1789 Curnutte, Vinita; Leslie D. Guajardo, Oklahoma City; John Munkacsy, Lawton; Pandee Ramirez, Okmulgee; Julia Rieman, Enid; James Stuart, For more events go to www.okbar.org/news/calendar.htm Shawnee and Judge Lori M. Walkley, Norman NOTICE of change of address (which must be The Oklahoma Bar Association’s ofﬁ cial Web site: www.okbar.org in writing and signed by the OBA member), undeliverable copies, orders for subscriptions THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar or ads, news stories, articles and all mail items Association. All rights reserved. Copyright© 2008 Oklahoma Bar Association. should be sent to the Oklahoma Bar Association, The design of the scales and the “Oklahoma Bar Association” encircling the P.O. Box 53036, Oklahoma City, OK 73152-3036. scales are trademarks of the Oklahoma Bar Association. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Oklahoma Bar Association (405) 416-7000 Toll Free (800) 522-8065 FAX (405) 416-7001 THE OKLAHOMA BAR JOURNAL (ISSN 0030-1655) IS PUBLISHED THREE TIMES Continuing Legal Education (405) 416-7006 A MONTH IN JANUARY, FEBRUARY, MARCH, APRIL, MAY, AUGUST, SEPTEM- Ethics Counsel (405) 416-7083 BER, OCTOBER, NOVEMBER AND DECEMBER AND BIMONTHLY IN JUNE AND General Counsel (405) 416-7007 JULY. BY THE OKLAHOMA BAR ASSOCIATION, 1901 N. LINCOLN BOULEVARD, Law-related Education (405) 416-7005 OKLAHOMA CITY, OKLAHOMA 73105. PERIODICALS POSTAGE PAID AT OKLA- HOMA CITY, OK. POSTMASTER: SEND ADDRESS CHANGES TO THE OKLAHOMA Lawyers Helping Lawyers (800) 364-7886 BAR ASSOCIATION, P.O. BOX 53036, OKLAHOMA CITY, OK 73152-3036. SUBSCRIP- Mgmt. Assistance Program (405) 416-7008 TIONS ARE $55 PER YEAR EXCEPT FOR LAW STUDENTS REGISTERED WITH THE Mandatory CLE (405) 416-7009 OKLAHOMA BAR ASSOCIATION, WHO MAY SUBSCRIBE FOR $25. ACTIVE MEM- OBJ & Communications (405) 416-7004 BER SUBSCRIPTIONS ARE INCLUDED AS A PORTION OF ANNUAL DUES. ANY Board of Bar Examiners (405) 416-7075 OPINION EXPRESSED HEREIN IS THAT OF THE AUTHOR AND NOT NECESSAR- Oklahoma Bar Foundation (405) 416-7070 ILY THAT OF THE OKLAHOMA BAR ASSOCIATION, OR THE OKLAHOMA BAR JOURNAL BOARD OF EDITORS.

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2411 NEW DEVELOPMENTS IN EMPLOYMENT LAW (PS: THE ADA IS BACK) presented by the Oklahoma Employment Lawyer’s Association (OELA)

Date: Friday, December 12, 2008 at 9:00 am to 5 pm Location: Crabtown in Bricktown, Okla. City (Buffet lunch included in tuition) CLE CREDIT: CLE credit is being submitted for approval for 8 hours CLE including 1.8 hours of ethics. Tuition: $200.00 for early bird registration on or prior to December 1, 2008. $225.00 from December 2, 2008 to the day of the seminar. $ 25.00 discount for OELA members & government/public service attys CANCELLATION There will be a $25.00 charge for cancellation. There will be no refunds POLICY: for cancellations made after December 9, 2008, however materials will be sent to persons making late cancellations. REGISTRATION: Make checks payable to: OELA Send registrations to OELA, 325 Dean A. McGee, Okla. City, OK 73102 Fax No: (405) 235-6111 For more information contact Lori Lanon at 235-6100 PROGRAM 8:30 am Registration, donuts and drinks 9:00 OVERVIEW OF THE NEW RULES OF PROFESSIONAL ETHICS. Presented by Gary Rife former OBA general counsel and member of the ethics rules revision committee. A summary of changes prepared by Gina Hendryx, OBA ethics counsel will be part of the materials. 10:30 Break 10:45 THE JUDICIAL YEAR IN REVIEW. Major U.S. Supreme Court; Tenth Circuit and Oklahoma Supreme Court decisions. Presented by Mark Hammons president of the OELA. 12:00 Lunch buffet 1:00-5:00 MAJOR LEGISLATIVE DEVELOPMENTS- focusing on the 2008 ADA Restoration Amendments and GINA: the 2008 Genetic Information NonDiscrimination Act. Presented by Brian East– member of the task force on revising the ADA. * New definitions of “substantially limits” * New definitions of “major life activity” * New standards for being “regarded as disabled” * When are remedial/corrective measures considered? * How are episodic impairments treated? * What are the EEOC’s new rule-making powers * Are the ADA changes retroactive? * What does “genetic discrimination” mean? * What are the remedies for genetic discrimination?

Full Name:______

Firm:______

Address:______

City:______State ______Zip______

Phone ( )______Email ______

Are you a member of OELA? ___ Yes ___ No OBA #______

2412 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 OKLAHOMA BAR ASSOCIATION

table of contents Oct. 25, 2008 • Vol. 79 • No. 28 page 2411 Events Calendar 2414 Index to Court Opinions 2415 Supreme Court Opinions 2469 OBA Annual Meeting 2008

2481 New Attorneys Take Oath 2485 Disposition of Cases Other Than By Publication

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2413 Index To Opinions Of Supreme Court

In Re: Amendment of Article VII, Section 2, Para. (a) of the Rules Creating and Controlling the Oklahoma Bar Association SCBD No. 4483 ...... 2415 In Re: Rules Governing Disciplinary Proceedings [Title 5, Chp.1, App. 1-A Rule 1.4 – Monetary Transactions] In Re: Rules of Professional Conduct [Title 5, Chp.1, App. 3 A, Rule 1.15 (g) and Rule 1.15 (h)(8) – Safekeeping Property] S.C.B.D. No. 4216 and S.C.B.D. No. 3490 ...... 2415 2008 OK 93 IN RE: ADOPTION OF THE 2008 REVISIONS TO OKLAHOMA JURY INSTRUCTIONS CIVIL (SECOND EDITION) No. SCAD-2008-77 ...... 2419 2008 OK 37 In the Matter of Melia Melton SCAD No. 2008-30 ...... 2436 2008 OK 37 In the Matter of Gail Spurgeon SCAD No. 2008-30 ...... 2436 2008 OK 94 IN THE MATTER OF THE ASSESSMENT OF PERSONAL PROPERTY TAXES AGAINST MISSOURI GAS ENERGY, a DIVISION OF SOUTHERN UNION COMPANY, FOR TAX YEARS 1998, 1999, AND 2000. No. 103,355 ...... 2436 2008 OK 95 EOG RESOURCES MARKETING, INC., Plaintiff/Appellee, v. OKLAHOMA STATE BOARD OF EQUALIZATION and OKLAHOMA TAX COMMISSION, Defendants/Appellants. No. 105,860 ...... 2455

2414 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 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)

In Re: Amendment of Article VII, Section 2, In Re: Rules Governing Disciplinary Para. (a) of the Rules Creating and Proceedings [Title 5, Chp.1, App. 1-A Controlling the Oklahoma Bar Association Rule 1.4 – Monetary Transactions] SCBD No. 4483. October 2, 2008 In Re: Rules of Professional Conduct [Title 5, ORDER AMENDING RULES CREATING Chp.1, App. 3-A, Rule 1.15 (g) and Rule 1.15 AND CONTROLLING (h)(8) – Safekeeping Property] THE OKLAHOMA BAR ASSOCIATION S.C.B.D. No. 4216 and S.C.B.D. No. 3490 This matter comes on before this Court upon October 2, 2008 an Application to amend Article VII, Section 2. ORDER TO AMEND RULE 1.4 OF THE Para. (a) of the Rules Creating and Controlling RULES GOVERNING DISCIPLINARY the Oklahoma Bar Association. This Court PROCEEDINGS AND TO AMEND RULE finds that it has jurisdiction over this matter, 1.15(g) AND RULE 1.15 (h)(8) OF THE RULES and that an Order should enter as follows: OF PROFESSIONAL CONDUCT IT IS THEREFORE ORDERED, ADJUDGED This matter comes on before this Court upon AND DECREED that the Application of the Application for an Order to Amend Rule 1.4 of Oklahoma Bar Association for an Order amen- the Rules Governing Disciplinary Proceedings ding Article VII, Section 2, Para. (a) of the Rules Creating and Controlling the Oklahoma Bar and to Amend Rule 1.15(g) and Rule 1.15 (h)(8) Association to strike the words “Director of of the Rules of Professional Conduct regarding Administration” upon the recommendation of attorney trust accounts. This Court finds that it its auditor is hereby entered. has jurisdiction over this matter, and that an Order should enter as follows: IT IS FURTHER ORDERED that Article VII Section 2, Para. (a) of the Rules Creating and IT IS THEREFORE ORDERED, ADJUDGED Controlling the Oklahoma Bar Association is AND DECREED that the Application of the hereby amended to read as set forth in Exhibit Oklahoma Bar Association be granted and that A attached hereto, and that publication of this an Order be entered amending Rule 1.4 by rule change shall appear two times in the striking certain language in this portion of the Oklahoma Bar Journal and one time in the Rules Governing Disciplinary Proceedings and E-news of the Oklahoma Bar Association that the Rule, as amended, is set forth in Exhib- within 60 days of the execution of this Order. it “A” attached hereto. DONE BY ORDER OF THE SUPREME IT IS FURTHER ORDERED, ADJUDGED COURT this 2nd day of October, 2008. AND DECREED that the Application to Amend /s/ James R. Winchester Rule 1.15(g) and Rule 1.15(h)(8) of the Rules of JAMES R. WINCHESTER Professional Conduct, relating to the furnish- Chief Justice ing of trust account information, is granted, and that the Rules, as amended, are set forth in EXHIBIT A Exhibit “B” attached. “(a) With the exception of the Clients’ Security IT IS FURTHER ORDERED, ADJUDGED Fund on expenditures of the Association, AND DECREED that the amendments to the checks for taxes, health insurance and checks aforementioned rules shall become effective not exceeding $5,000.00 shall be signed by any January 1, 2009, and that notice of the rule two of the following staff members of the changes be published two times in the Okla- Association: homa Bar Journal, published one time in the Executive Director E-news of the Oklahoma Bar Association, and General Counsel that mention of the rule change be contained in Director of Continuing Legal Education the annual dues statement of the Oklahoma Director of Public Information” Bar Association.

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2415 DONE BY ORDER OF THE SUPREME property shall be kept by the lawyer and shall COURT this 2nd day of October, 2008. be preserved for a period of five years after termination of the representation. /s/ James R. Winchester JAMES R. WINCHESTER (b) A lawyer may deposit the lawyer’s own Chief Justice funds in a client trust account for the sole purpose of paying bank service charges on that ALL JUSTICES CONCUR account but only in an amount necessary for EXHIBIT A that purpose. Rules Governing Disciplinary Proceedings. (c) A lawyer shall deposit into a client trust Chapter 1, App. 1-A account legal fees and expenses that have been paid in advance, to be withdrawn by the law- Rule 1. Jurisdiction of the Court in the yer only as fees are earned or expenses Discipline of Lawyers and the Unauthorized incurred. Practice of Law.§1.4.Controversies Regarding Fees. (d) Upon receiving funds or other property in which a client or third person has an interest, a 1. (a) All members of the Bar who are lawyer shall promptly notify the client or third required under the Oklahoma Rules of person. Except as stated in this Rule or other- Professional Conduct, Rule 1.15, to wise permitted by law or by agreement with maintain a trust account for the deposit the client, a lawyer shall promptly deliver to of clients’ funds entrusted to said attor- the client or third person any funds or other ney, shall do so and furnish evidence property that the client or third person is enti- thereof as provided for in Rule 1.15. tled to receive and, upon request by the client Information received by the Associa- or third person, shall promptly render a full tion as a result of such inquiry shall accounting regarding such property. remain confidential unless a grievance is filed against a lawyer which, in the (e) When in connection with a representation, a opinion of the Professional Responsi- lawyer possesses funds or other property in bility Commission, may warrant disci- which both the lawyer and another person plinary action in regard to the handling claim interests, the funds or other property of said trust account. Failure of any shall be kept separate by the lawyer until there lawyer to respond giving the informa- is an accounting and severance of their inter- tion requested will be grounds for ests. If a dispute arises concerning their respec- appropriate discipline. tive interests, the portion in dispute shall be kept separate by the lawyer until the dispute is (b) Controversies as to the amount of fees shall resolved, and the undisputed portion of the not be considered a basis for charges in a disci- funds shall be promptly distributed. plinary proceeding unless it is made to appear that the amount demanded is extortionate or (f) Where funds or other items of property fraudulent. entrusted to a lawyer have been impressed with a specific purpose as to their use, they Exhibit B shall retain that specific character unless other- Oklahoma Rules of Professional Conduct wise authorized by a client or third person or Chapter 1, App. 3-A prohibited by law. Where funds are impressed Client-Lawyer Relationship with a specific purpose, a lawyer may not sub- Rule 1.15. Safekeeping Property ject them to a counterclaim, set off for fees, or subject them to a lien. (a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in (g) Effective January 1, 2009, all members of the connection with a representation separate from Bar who are required under the Oklahoma the lawyer’s own property. Funds shall be kept Rules of Professional Conduct, to maintain a in a separate account maintained in the state trust account for the deposit of clients’ funds where the lawyer’s office is situated, or else- entrusted to said lawyer, shall do so and fur- where with the written consent of the client or nish information regarding said account(s) as third person. Other property shall be identified hereinafter provided. Each member of the Bar as such and appropriately safeguarded. Com- shall provide the Oklahoma Bar Association plete records of such account funds and other with the name of the bank or banks in which

2416 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 the lawyer carries any trust account, the name quarterly, to the Oklahoma Bar under which the account is carried and the Foundation, Inc. (“Foundation”); and account number. The lawyer or law firm shall provide such information within thirty (30) (ii) to transmit with each remittance to days from the date that said account is opened, the Foundation a statement showing closed, changed, or modified. The Oklahoma the name of the lawyer or the law firm Bar Association will provide on-line access for whom the remittance is sent, the and/or paper forms for members to comply account number, the period of time with these reporting requirements. Provision covered by the statement, the rate of will be made for a response by lawyers who do interest applied and the average daily not maintain a trust account and the reason for balance of the account; not maintaining said account. Information (4) the lawyer or law firm shall not deposit received by the Association as a result of this funds belonging to the lawyer or law firm in inquiry shall remain confidential except as pro- the account, except that funds necessary to vided by the Rules Governing Disciplinary comply with the depository institution’s Proceedings. Failure of any lawyer to respond minimum balance requirements for the main- giving the information requested by the tenance of the account or funds needed to Oklahoma Bar Association, Oklahoma Bar pay applicable fees and service charges may Foundation or the Office of the General be deposited therein; Counsel of the Oklahoma Bar Association will be grounds for appropriate discipline. (5) in determining whether to use the inter- (h) A lawyer or law firm that holds funds of est-bearing account herein specified, the law- clients or third parties in connection with a yer shall consider whether the funds to be representation shall create and maintain an invested could be utilized to provide a interest-bearing demand trust account and positive net return to the client, taking into shall deposit therein all such funds to the consideration the following factors: extent permitted by applicable banking laws, (i) the amount of interest that the funds that are nominal in amount or to be held for a would earn during the period they are short period of time in compliance with the expected to be deposited; following provisions: (ii) the cost of establishing and admin- (1) the account may be established with any istering the account, including the cost bank or savings and loan association autho- of the lawyer’s services and the cost of rized by federal or state law to do business in preparing any tax reports required for Oklahoma and insured by the Federal interest accruing to a client’s benefit; Deposit Insurance Corporation; and (2) the rate of interest payable on the account (iii) the capability of financial institu- shall not be less than the rate paid by the depository institution to regular, non-lawyer tions to calculate and pay interest to depositors. Higher rates offered by the insti- individual clients; tution to customers whose deposits exceed (6) in the event that any client asserts a claim certain time or quantity minimums, such as against a lawyer based upon such lawyer’s those offered in the form of certificates of determination to place client advances in the deposit, may be obtained by a lawyer or law account because such balance is nominal in firm so long as there is no impairment of the amount or to be held for a short period of right to withdraw or transfer principal time, the Foundation shall, upon written immediately (except as accounts generally request by such lawyer, review such claim may be subject to statutory notification and either: requirements), even though interest may be sacrificed thereby; (i) approve such claim (if such balances are found not to be nominal in amount (3) the depository institution shall be directed: or short in duration) and remit directly (i) to remit interest or dividends, as to the claimant any sum of interest the case may be, on the average remitted to the Foundation on account monthly balance in the account, at least of such funds; or

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2417 (ii) reject such a claim (if such balances Office shall establish rules governing approval are found to be nominal in amount or and termination of approved status for finan- short in duration) and advise the claim- cial institutions, and shall annually publish a ant in writing of the grounds therefor. list of approved financial institutions. In the event of any subsequent litigation involving such a claim, the Foun- (k) A financial institution may be approved as dation shall interplead any such sum of a depository for lawyer trust accounts if it files interest and shall assume the defense with the Office of the General Counsel an of the action; agreement, a Trust Account Overdraft Report- ing Agreement (TAORA) form provided by the (7) The requirements of subparagraph (h) Office, to report to the Office in the event any shall not apply if: properly payable instrument is presented (i) it is not feasible for the lawyer or against a lawyer trust account containing insuf- law firm to establish an interest-bear- ficient funds, irrespective of whether or not the ing trust account for reasons beyond instrument is honored. No trust account shall the control of the lawyer or law firm, be maintained in any financial institution such as the unavailability of a financial which does not agree to make such reports. institution which offers such an account Any such agreement shall apply to all branches in the community where the principal of the financial institution and shall not be can- office of the lawyer or law firm is situ- celled except upon thirty (30) days notice in ated, or writing to the Office. (ii) those financial institutions which (l) The Trust Account Overdraft Reporting offer such an account in the community Agreement shall provide that all reports made where the principal office of the lawyer by the financial institution shall be in the or law firm is situated impose fees and following format: service charges that routinely exceed (1) In the case of a dishonored instrument, the interest generated by the account; the report shall be identical to the overdraft and notice customarily forwarded to the deposi- (8) Information necessary to determine com- tor, and should include a copy of the dishon- pliance or justifiable reason for noncompli- ored instrument, if such a copy is normally ance with the requirements of subparagraph provided to depositors. (h) shall be included in the reporting required (2) In the case of instruments that are pre- by subparagraph (g) of this Rule. If it appears sented against insufficient funds but which that a lawyer or law firm has not complied instruments are honored, the report shall where it is feasible to do so, the matter may identify the financial institution, the lawyer be referred to the office of the General or law firm, the account number, the date of Counsel of the Oklahoma Bar Association for presentation for payment and the date paid, appropriate investigation and proceedings. as well as the amount of overdraft created (i) When a lawyer receives funds subject to this thereby. rule that are not required to be deposited in an (3) Such reports shall be made simultane- interest bearing account payable to the Okla- ously with, and within the time provided by homa Bar Foundation pursuant to (h), the law- law for notice of dishonor, if any. If an instru- yer may create and maintain either an interest ment presented against insufficient funds is bearing or a noninterest bearing account, pro- honored, then the report shall be made with- vided that any interest earned by the funds in five (5) banking days of the date of presen- belongs to the client, shall be distributed tation for payment against insufficient according to the client’s instructions, and shall funds. not be used by the lawyer for any purpose without the client’s express consent. (m) Every lawyer practicing or admitted to practice in this jurisdiction shall be deemed to (j) Beginning January 1, 2008 and in addition to have consented to the reporting and produc- the requirements previously set forth in this tion requirements mandated by this rule. Rule, lawyers trust accounts shall be maintained only in financial institutions approved (n) Nothing herein shall preclude a financial by the Office of the General Counsel. The institution from charging a particular lawyer

2418 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 or law firm for the reasonable cost of adopted to wit: 1.4, 1.8A, 1.20, 1.21, 2.5, 4.14, producing the reports and records required by 4.16, 5.5, 5.9, 6.16, 9.8A, 9.8B, 9.8C, Preface to this rule. Comparative Negligence Instructions, 12.12, 26.1, 26.2, 26.3, 26.4, 26.5, 27.1, 27.2 (o) Definitions ¶4 The Court also accepts and authorizes the “Financial Institution” — includes banks, sav- updated committee comments to be published, ings and loan associations, savings banks and together with the above styled revisions and any other business or person which accepts for each amended page in the revisions to be noted deposit funds held in trust by lawyers. at the bottom as follows (2008 Supp.) “Properly payable” — refers to an instrument ¶5 As it did so previously, the Court today which, if presented in the normal course of declines to relinquish its constitutional or stat- business, is in a form requiring payment under utory authority to review the legal correctness the laws of this jurisdiction. of these authorized instructions when it is “Notice of dishonor” — refers to the notice, called upon to afford corrective relief in any which a financial institution is required to give, adjudicative context. under the laws of this jurisdiction, upon These rules will take effect 30 days from the presentation of an instrument, which the date this order is filed. institution dishonors. DONE BY ORDER OF THE SUPREME 2008 OK 93 COURT IN CONFERENCE THIS 9TH DAY OF IN RE: ADOPTION OF THE 2008 OCTOBER, 2008. REVISIONS TO OKLAHOMA JURY /s/ James E. Edmondson INSTRUCTIONS CIVIL JAMES E. EDMONDSON (SECOND EDITION) Vice Chief Justice No. SCAD-2008-77. October 14, 2008 ALL JUSTICES CONCUR ORDER ADOPTING AMENDMENTS TO OKLAHOMA UNIFORM JURY Chapter One INSTRUCTIONS - CIVIL General Instructions (SECOND EDITION) List Of Contents ¶1 The Court has reviewed the report and Instruction No. 1.1 recommendations of the Oklahoma Supreme Explanation To Jury Panel Court Committee for Uniform Civil Jury Of Voir Dire ...... 3 Instructions for adoption of the proposed revisions. The Court accepts that report and finds Instruction No. 1.2 the revisions should be ordered adopted. Oath On Voir Dire ...... 3 ¶2 It is therefore ordered, adjudged and Instruction No. 1.3 decreed that the revisions shall be available for Oath Administered To Jury ...... 4 access via the internet from the Court website Instruction No. 1.4 at www.oscn.net and provided to West Pub- Jury’s Duties — Cautionary lishing Company for publication. The Admin- Instructions— To Be Given After istrative Office of the Courts is requested to Jury Is Sworn ...... 5 duplicate and provide copies of the revisions to the judges of the District Courts and the Dis- Instruction No. 1.5 trict Courts of the State of Oklahoma are Jury’s Duties — Cautionary directed to implement the utilization of these Instructions — Bias On Account revisions effective 30 days from the date of this Of Race, Religion, Etc ...... 7 order. Instruction No. 1.6 Jury’s Duties — Cautionary Instructions ¶3 It is therefore ordered, adjudged and —Corporation As Party ...... 8 decreed the amendments to existing OUJI-C 2d instructions, and the adoption of new instruc- Instruction No. 1.7 tions, as set out in the following designated Cautionary Instruction — Note instructions and attached to this order, are Taking By Jurors ...... 8

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2419 Instruction No. 1.8 The evidence which you are to consider con- Jury’s Duties — Introduction sists of the testimony of the witnesses; the To Instructions —To Be Given exhibits, if any, admitted into evidence; any After The Evidence ...... 9 facts admitted or agreed to by the attorneys; and any facts which I instruct you to accept as Instruction No. 1.8 A true. The term “witness” means anyone who Closing Instruction-to testifies in person, or by deposition, including Be Given after the Evidence ...... 10 the parties. Instruction No. 1.9 In addition, you are permitted to draw such Jury’s Duties — To Be Given reasonable inferences from the testimony and Prior to Deliberation ...... 10 exhibits as you feel are justified when consid- Instruction No. 1.10 ered with the aid of the knowledge which you Note Taking By Jurors — each possess in common with other persons. To Be Given Prior to You may make deductions and reach conclu- Deliberation ...... 11 sions which reason and common sense lead you to draw from the facts which you find to Instruction No. 1.11 have been established by the testimony and Mandatory Instruction evidence in the case. Upon Discharge ...... 11 The production of evidence in court is gov- Instruction No. 1.20 erned by rules of law. From time to time it may Statute of Limitations be the duty of the attorneys to object to the — Affirmative Defense ...... 11 production of evidence and my duty to rule on Instruction No. 1.21 these objections. If I say the objection is sus- Statute of Limitations — tained, you must not consider the testimony or exhibit covered by the objection. If I say the Exception ...... 11 objection is overruled, you may consider the testimony or exhibit covered by the objection. OUJI No. 1.4 The attorney’s objections, and my rulings upon JURY’S DUTIES - CAUTIONARY these objections, together with the reasons for INSTRUCTIONS - these objections and rulings are not evidence TO BE GIVEN AFTER JURY IS SWORN and should not be considered by you. Members of the Jury: I will now explain to The statements, remarks and arguments of you your duties as jurors. It is vital to the the attorneys are intended to help you in administration of justice that you fully under- understanding the evidence and applying the stand and faithfully perform these duties. law, but are not evidence. If any statement, It is my duty to determine all of the law remark or argument of an attorney has no basis applicable to this case and to inform you of in the evidence, then you should disregard it. that law by these instructions and by the You are the sole judges of the believability of instructions that I will give you after all evi- each witness and the value to be given the tes- dence has been received. It is your duty to timony of each. You should take into consider- accept and follow all of these instructions as a ation the witness’s means of knowledge, whole, not accepting one or more of these strength of memory and opportunities of obser- instructions and disregarding the others. vation. Also consider the reasonableness, con- It is your duty to determine the facts of this sistency or inconsistency of the testimony. You case from the evidence produced in open court. should also consider the bias, prejudice or You should consider only the evidence intro- interest, if any, the witness may have in the duced while the court is in session. It is then outcome of the trial, the conduct of the witness your duty to apply the law, as determined by upon the witness stand and all other facts and the court, to the facts as determined by you, circumstances that affect the believability of and thus render a verdict. You should not the witness. allow sympathy or prejudice to influence your My rulings and remarks made during the decision. Your decision should be based upon course of this trial are not intended to indicate probabilities, and not possibilities. It may not my opinion as to the facts. During all recesses be based upon speculation or guesswork. and adjournments, while this case is in prog-

2420 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 ress, you must not discuss this case, or any- any evidence or testimony received during the thing about this case, with anyone, and you trial, nor intimated in any way what you must not allow anyone to discuss it with you. should decide in this case. This rule applies not only to court employees, the attorneys involved in this case, and others You are the judges of the facts. The impor- you may meet in the courthouse, but also to tance and worth of the evidence and testimony your husband and wife, other members of is for you to decide. From all the testimony your family, your friends and anyone else you heard and evidence seen by you during the may meet. If during the trial anyone talks to trial, and using the reasoning which you each you or tries to talk to you about this case, you have, you will make your decision. You should must immediately report it to me, or the [(clerk perform your duties as jurors impartially and of the court)/bailiff], who will report to me. faithfully, under your oath. Do not, before this case is finally submitted The law provides that you should now listen to you for a decision, talk to your fellow jurors to and consider the arguments of counsel, about this case, or anything about this case, or which are a proper part of this case. form or express any opinion about it. Notes on Use This Instruction should be given at the conclusion of the jury instruc- [Do not read newspaper reports about this tions, immediately before the closing arguments of counsel. trial, and do not watch or listen to television or ______radio reports about it.] Do not read newspaper reports or obtain information from the internet OUJI No. 1.20 about this trial or the issues, parties or wit- STATUTE OF LIMITATIONS - nesses involved in this case, and do not watch AFFIRMATIVE DEFENSE or listen to television or radio reports about it. Do not attempt to visit the scene or investigate [Defendant] has raised the statute of limita- this case on your own. tions as an affirmative defense to the claim of [Plaintiff] for [Specify Type of Claim]. [Defen- The reasons for these rules are that it is essen- dant] has the burden of proving by the greater tial that you should keep your minds free and weight of the evidence that the claim was open at all times throughout this trial and that barred by the statute of limitations. A statute of you should not be influenced by anything limitations is a law that a case is barred if a except the evidence you hear and see in the plaintiff does not file the case within a speci- courtroom. fied period of time. The statute of limitations From now on, at the beginning of each recess for the claim for [Specify Type of Claim] is or adjournment, I will refer to these instruc- [Specify Limitation Period], and the date that tions as “my instructions” or “my usual instruc- [Plaintiff] filed this case was [Date]. In this tions,” but whether or not this is done, you will case, the statute of limitations required [Plain- carefully observe these rules at all times. tiff] to file this case within [Specify Limitation Notes on Use Period] from [Specify Applicable Time for Unless the case has attracted or is likely to attract the attention of Accrual of Claim, e.g., the date of breach of the the media, the bracketed paragraph concerning newspaper reports contract, the date of injury, the date when and the like should not be given to the jury. Before excusing the jurors for recesses and adjournments, the judge [Plaintiff] knew or reasonably should have should remind them not to discuss the case. The following Instruction known of the injury and its cause]. is suggested: At this time, let me remind you not to discuss this case, or Notes on Use anything about this case, with anyone [(during the recess)/ This Instruction should be used in cases where a statute of limita- (while court is adjourned)], and do not allow anyone to discuss tions defense presents a jury question. In many cases, a statute of limi- it with you. If anyone talks to you or tries to talk to you about tations defense will be subject to the court’s ruling as a matter of law, this case, you are instructed to report it immediately either to me because there are no material factual issues in dispute. Where there are or to the [(clerk of the court)/bailiff]. material factual issues in dispute, a jury question will be presented. See ______Harper-Turner Oil Co. v. Bridge, 1957 OK 124, 311 P.2d 947 (accrual of cause of action for damages to water well was a question of fact that was properly presented to a jury); Moses v. Miller, 1950 OK 14, 216 P.2d OUJI NO. 1.8A 979, 202 Okla. 605 (whether action was barred by the statute of limita- CLOSING INSTRUCTION-TO BE GIVEN tions was a question of fact for the jury). AFTER THE EVIDENCE Committee Comments The Court has made rulings during this trial. In general, the date of accrual of a claim is In ruling, the Court has not in any way sug- when the owner of the claim first acquires the gested to you the weight or credit to be given right to bring an action on it. Samuel Roberts

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2421 Noble Foundation, Inc. v. Vick, 1992 OK 140, ¶ 8, Committee Comments 840 P.2d 619, 622. This will occur as soon as Tolling of the statute of limitations occurs if each element of the claim has been satisfied. the plaintiff is subject to a legal disability or the Thus, a contract claim will generally accrue on defendant fraudulently conceals the claim from the date of the breach, and a tort claim will Alexander v. Oklahoma generally accrue on the date of the injury. In the plaintiff. , 382 F.3d cases of fraud or professional malpractice, the 1206, 1217 (10th Cir. 2004) (discussing Oklaho- date of accrual is subject to the discovery rule, ma law). Tolling may also occur for other rea- under which the date of accrual is when the sons as well. See, e.g., Resolution Trust Corp. v. plaintiff knew or should have known of the Grant, 1995 OK 68, ¶ 23, 901 P.2d 807, 817 (doc- injury. Id. ¶ 22, 840 P.2d at 624 (“The discovery trine of adverse domination may toll statute of rule provides that the limitations period does limitations against directors and officers); not begin to run until the date the plaintiff Armco, Inc. v. Holcomb, 1985 OK 5, ¶ 8, 694 P.2d knew or should have known of the injury.”). 937, 940 (workers’ compensation claim tolled See also Reynolds v. Porter, 1988 OK 88, ¶ 6 n.8, by statutory provision). Generally, the party 760 P.2d 816, 820 n.8 (“The ‘discovery rule’ seeking to avoid a statute of limitations defense allows limitations in tort cases to be tolled until has the burden of proving the facts in support the injured party knows or, in the exercise of of the avoidance. 54 C.J.S. Limitations of reasonable diligence, should have known of Actions § 370 (2007). See Armco, Inc. v. Holcomb, the injury.”); Funnell v. Jones, 1985 OK 73, ¶ 6, 737 P.2d 105, 107 (“In Oklahoma, an action for 1985 OK 5, ¶ 5, 694 P.2d 937, 938 (“The burden malpractice, whether medical or legal, though of proof therefore devolved upon Claimant to based on a contract of employment, is an action adduce essential facts which would operate to in tort and is governed by the two-year statute arrest, suspend, toll or waive the statute of of limitations [which] begins to run from the limitations, pursuant to 85 O.S. § 8, to establish date the negligent act occurred or from the date his right to recovery beyond the prescribed the plaintiff should have known of the act com- period.”). But see Resolution Trust Corp. v. Grant, plained of. “); Matter of Woodward, 1976 OK 55, 1995 OK 68, ¶ 23, 901 P.2d 807, 817 (burden of ¶ 10, 549 P.2d 1207, 1209 (“Where means of proof regarding tolling under doctrine of discovering fraud are in hands of party adverse domination was placed on defendants defrauded and defrauding party has not cov- to rebut presumption of control of corporation ered up his fraud to extent it would be difficult by officers and directors). or impossible to discover, party defrauded will be deemed to have had notice of fraud from ______date means of discovering such fraud came into his hands and fraud will be deemed to Chapter Two have been discovered upon that date.”). Statement Of Issues ______List Of Contents OUJI No. 1.21 Instruction No. 2.1 STATUTE OF LIMITATIONS - EXCEPTION The Issues In the Case — There is an exception to a statute of limita- No Counterclaim ...... 13 tions defense if ([Plaintiff] was unable to file Instruction No. 2.2 the case because [Specify Ground for Excep- The Issues In The Case — ...... 14 tion, e.g., [Plaintiff] was Under a Legal Disabil- ity], [Defendant] misled [Plaintiff] by conceal- Instruction No. 2.3 ing the [Specify Type of Claim] from him/her, The Issues In The Case — etc.]. Admitted Liability ...... 16 [Plaintiff] has the burden of proving by the Instruction No. 2.4 greater weight of the evidence that this require- The Issues In The Case— ment is satisfied. If you find by the greater Uninsured Motorists Coverage ...... 16 weight of the evidence that [Specify Ground for Exception], then you must find that the Instruction No. 2.5 claim for [Specify Type of Claim] is not barred The Issues In The Case — Cautionary by the statute of limitations. Instruction ...... 16

2422 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 OUJI No. 2.5 Instruction No. 4.10 THE ISSUES IN THE CASE - CAUTIONARY Measure Of Damages — INSTRUCTION Aggravations Of Pre- Existing Conditions ...... 44 This statement of the case simply defines the issues to be tried by you in this case, and the Instruction No. 4.11 allegations or claims made therein do not con- Measure Of Damages — Medical stitute any evidence, nor do the statements or Malpractice — Loss Of Chance ...... 44 arguments of counsel, but you will only consider as evidence the testimony heard from the Instruction No. 4.12 witness stand by the witness under oath, any Personal Property Market exhibits which have been introduced and any Value — Not Repairable ...... 46 stipulations made by counsel, and you will Instruction No. 4.13 consider that evidence under the following Personal Property — instructions. No Market Value ...... 47 Notes on Use Instruction No. 4.14 This Instruction should be given along with the statement of the case instruction. Personal Property — ______Cost Of Repairs — Loss Of Use ...... 48 Instruction No. 4.15 Chapter Four Personal Property — Injury To Person Or Property Loss Of Use ...... 49 List Of Contents Instruction No. 4.16 Instruction No. 4.1 Personal Property — Conversion Personal Injuries— (Moved to Instruction No. 27.2) ...... 50 Adults ...... 35 Instruction No. 4.17 Instruction No. 4.2 Effect Of Income Tax Personal Injuries — On Award Of Damages ...... 50 Minor Child ...... 36 Instruction No. 4.18 Instruction No. 4.3 air Market Value — Definition ...... 51 Personal Injuries — Minor Child — Measure OUJI No. 4.14 Of Parent’s Or Guardian’s PERSONAL PROPERTY - COST OF Damages ...... 37 REPAIRS - LOSS OF USE Instruction No. 4.4 If you decide for [Plaintiff] on the question Personal Injuries — Minor Child of liability, you must then determine the amount — Loss Of Earnings ...... 38 of money that will reasonably and fairly Instruction No. 4.5 compensate him for the injury to the [insert Loss Of Spousal Consortium description of property]. That amount is: — Elements Of Liability ...... 39 1. The reasonable cost of repairing the [insert Instruction No. 4.6 description of the property], plus deprecia- Measure Of Damages— tion, if any, to the [insert description of the Loss Of Spousal Consortium ...... 40 property]; (“Depreciation” means the difference between the market value of the property Instruction No. 4.7 immediately before being injured and its mar- Loss Of Parental Consortium — ket value after repairs have been or would be Elements Of Liability ...... 41 made.) and, Instruction No. 4.8 2. The reasonable cost of renting a similar Measure Of Damages — [insert description of the property] during the Loss Of Parental Consortium ...... 42 time reasonably required to make the Instruction No. 4.9 necessary repairs of the injury caused by Measure Of Damages — [Defendant]. Injury To Spouse ...... 43 Notes on Use

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2423 Paragraphs one and two may be used together. Coe v. Esau, 377 P.2d Chapter Five 815, 820 (Okla. 1963). However, actual expense must be shown by Damages evidence to have been incurred before the plaintiff is entitled to recover for loss of use. Stapleton Motor Sales Co. v. Coley, 107 Okla. 269, List Of Contents 272, 232 P. 28, 31 (1925). Eliminate reference to “depreciation” in absence of evidence thereof. Instruction No. 5.1 Damages Not To Be Inferred ...... 55 Committee Comments Instruction No. 5.2 The Oklahoma Supreme Court decided in Uncertainty As To Amount Brennan v. Aston, 2003 OK 91, ¶ 84 P.3d 99, 102, Of Damage ...... 55 that this Instruction correctly stated the law of Instruction No. 5.3 Oklahoma insofar as it permitted recovery for Duty To Mitigate Damages the diminution in value of damaged property. — Personal Injury ...... 55 ______Instruction No. 5.4 OUJI No. 4.16 Duty To Mitigate Damages — Property ...... 56 PERSONAL PROPERTY - CONVERSION Instruction No. 5.5 MOVED TO INSTRUCTION NO. 27.2 Exemplary Or Punitive Damages (Prior Law) (Deleted) ...... 56 If you decide for [Plaintiff] on the question of liability, you must then determine the amount Instruction No. 5.6 Exemplary Or Punitive of money that will reasonably and fairly com- Damages — First Stage ...... 60 pensate [him/her] for the conversion of the [insert description of property]. That amount Instruction No. 5.7 is: Verdict Form, For Plaintiff, Punitive Damages (First Stage) ...... 65 1. The value of the property at the time of the Instruction No. 5.8 conversion with interest from that time; Verdict Form, For Defendant or (First Stage) ...... 67 2. The highest market value of the property Instruction No. 5.9 at any time between the time of the conversion Exemplary Or Punitive and your verdict; Damages — Second Stage ...... 68 Instruction No. 5.10 and a fair compensation for the time and Verdict Form, For Plaintiff, money properly expended by [Plaintiff] in pur- Punitive Damages (Second Stage) ...... 71 suit of the property. Instruction No. 5.11 Comments Verdict Form, For Defendant 23 O.S.1991 § 64 confers upon the owner of (Second Stage) ...... 73 wrongfully converted personal property a Instruction No. 5.12 choice between the traditional measure of Mortality Tables — damages of value at the time of conversion and Explanation ...... 74 the time of the verdict. To elect to recover the highest market value the suit must be prose- OUJI No. 5.5 cuted with due diligence- this is a question of Exemplary Or Punitive Damages (Prior Law) law for the court. Hamco Oil & Drilling Co. v. INSTRUCTION DELETED Ervin, 354 P.2d 442, 445-46 (Okla. 1960); Champlin Ref. Co. v. Aladdin Petroleum Corp., 205 If you find in favor of [Plaintiff], and grant Okla. 524, 527, 238 P.2d 827, 830 (1951); [him/her] actual damages, and if you find the McKinnon v. Monarch Loan Co., 111 Okla. 213, conduct of [Defendant], was [or amounted to 215-16, 239 P. 170, 172 (1925). ]: ______Fraud;

2424 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 Oppression; 4. Whether there was other similar conduct, and if so, how often it occurred; Malice; or 5. How aware [Defendant] was of the con- Wanton or reckless disregard of another’s duct and its consequences, and whether there rights; were attempts to conceal the conduct; then you may, in addition to actual damages, 6. Whether [Defendant] benefited from the grant [Plaintiff] punitive damages in such sum conduct, and if so, whether that benefit should as you reasonably believe will punish be taken away; [Defendant], and be an example to others. 7. The need to discourage others from similar [The conduct of [Defendant] involves fraud conduct; and if [state the grounds for fraud that are appropriate in this case]]. 8. The financial resources of [Defendant]. [Oppression involves an act [or failure to In no event should the punitive damages act] that is done in a manner which injures exceed the amount of actual damages another person with unnecessary harshness [or awarded. severity], by [state the means of oppression, Notes on Use e.g., misuse or abuse of authority or power, or This Instruction is for use in actions filed before August 25, 1995. by taking advantage of some weakness, For actions filed on or after then, see Instruction Nos. 5.6 and 5.7, disability, or misfortune of another person]]. supra. This Instruction should only be given if there has been a showing of fraud, oppression, malice, or wanton or reckless disregard of another’s [Malice involves either hatred, spite, or rights by the defendant. Moreover, the court should include in the ill-will, or else the doing of a wrongful act Instruction only that type of conduct by the defendant (e.g. fraud, intentionally without just cause or excuse.] malice, etc.) that has been shown. The bracketed definitions should also be given as is appropriate. [The conduct of [Defendant] was in wanton For example, in a fraud case an appropriate instruction might read: or reckless disregard of another’s rights if The conduct of [Defendant] involves fraud if [Defendant] [Defendant] was either aware, or did not care, made a statement to [Plaintiff] that [he/she] either knew was that there was a substantial and unnecessary untrue or had no idea whether it was true or not, and [Defen- dant] made the statement with the intention of inducing [Plain- risk that [his/her/its] conduct would cause tiff] to rely on the statement to [Plaintiff]’s injury. serious injury to others. In order for the con- In instructing the jury on how to determine the amount of punitive duct to be in wanton or reckless disregard of damages, the court should list only those factors that are appropriate to the case. In particular cases, there may be other factors that should another’s rights, it must have been unreason- be included in the Instruction. See, e.g., Instruction No. 12.11 (punitive able under the circumstances, and also there damages in products liability cases); Pacific Mut. Life Ins. Co. v. Haslip, 111 S. Ct. 1032, 1045 (1991) (existence of other awards or must have been a high probability that the criminal penalties may be considered in mitigation if the court allows conduct would cause serious harm to another evidence on those matters to be admitted). person.] The last sentence of the Instruction should be deleted if the trial court has found that there is clear and convincing evidence of fraud, Punitive damages are not to be considered as malice, etc. compensation to [Plaintiff], but as punishment Comments to [Defendant], and as an example to others to deter them from like conduct. The law does not This Instruction was drafted to conform to require you to award punitive damages, and if Okla. Stat. tit. 23, § 9 (1991), which, as amended you do so, you must use sound reason in set- in 1986, provides: ting the amount. You should be aware that the A. In any action for the breach of an obli- purpose of punitive damages is to punish, and gation not arising from contract, where the not destroy, a defendant. In determining defendant has been guilty of conduct evinc- the amount of punitive damages, you may ing a wanton or reckless disregard for the consider the following factors: rights of another, oppression, fraud or malice, actual or presumed, the jury, in addi- 1. The harm that [Defendant’s] conduct has tion to the actual damages, may give dam- already caused and is likely to cause; ages for the sake of example, and by way of punishing the defendant, in an amount not 2. The degree of wrongfulness of [Defen- exceeding the amount of actual damages dant’s] conduct; awarded. Provided, however, if at the con- 3. How long the conduct lasted and whether clusion of the evidence and prior to the it is likely to continue; submission of the case to the jury, the court

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2425 shall find, on the record and out of the based on the standards for punitive damages presence of the jury, that there is clear and that were discussed in Pacific Mut. Life Ins. Co. convincing evidence that the defendant is v. Haslip, 111 S. Ct. 1032, 1044-45 (1991), in guilty of conduct evincing a wanton or which the United States Supreme Court relied reckless disregard for the rights of another, on a number of Alabama’s procedural protec- oppression, fraud or malice, actual or pre- tions, including the trial court’s jury instruc- sumed, then the jury may give damages for tions, in rejecting a due process challenge to a the sake of example, and by way of punish- punitive damage award. See also Mattison v. ing the defendant, and the percentage limi- Dallas Carrier Corp., 947 F.2d 95, 110 (4th Cir. tation on such damages set forth in this 1991) (requiring trial court to give jury instruc- section shall not apply. tion incorporating the factors from the Haslip B. The provisions of this section shall be case). In Buzzard v. Farmers Ins. Co., Inc., 824 strictly construed. P.2d 1105, 1115 (Okla. 1991), the Oklahoma The prior version of this statute did not have Supreme Court noted that “the amount in a cap limiting punitive damages to an amount actual controversy” was a factor that a court not greater than actual damages, and also it did may consider in determining the correctness of not include “conduct evincing a wanton or a punitive award. reckless disregard for the rights of another” as ______one of the grounds for awarding punitive damages. See 22 O.S.1991 § 9 (amended 1986). A OUJI No. 5.9 number of Oklahoma cases decided before the EXEMPLARY OR PUNITIVE 1986 amendment had stated that punitive DAMAGES — SECOND STAGE damages were allowed for gross negligence, but only for that kind of gross negligence that Ladies and Gentlemen of the jury, you have evinced a wanton or reckless disregard of found in favor of the plaintiff and granted another’s rights. See, e.g., Morgan v. Bates, 390 him/her actual damages, and you have also P.2d 486, 488 (Okla. 1964); Wootan v. Shaw, 205 found by a separate verdict that the defendant Okla. 283, 284, 237 P.2d 442, 444 (1951). See also (was guilty of acted with reckless disregard of Silkwood v. Kerr-McGee Corp., 769 F.2d 1451, the rights of others) (and/or) (acted intention- 1455 (10th Cir. 1985) (“The requisite malice ally and with malice towards others). [under 23 O.S.1991 § 9] may be inferred from gross negligence that indicates a conscious You may now, in addition to actual damages, indifference to the consequences of one’s acts, grant the plaintiff punitive damages in such [citation omitted], or a reckless disregard for sum as you reasonably believe will punish the safety of others.”), cert. denied, 476 U.S. 1104 defendant and be an example to others. (1990). Consequently, this Instruction includes Punitive damages are not to be considered as wanton or reckless disregard as a ground for compensation to [Plaintiff], but as punishment allowing punitive damages, but it does not to [Defendant], and as an example to others to include gross negligence as a separate ground. deter them from like conduct. The law does not The definition of oppression follows closely require you to award punitive damages, and if the one used in 3 E. Devitt, C. Blackmar, & you do so, you must use sound reason in set- M. Wolff, Federal Jury Practice and Instruc- ting the amount. You should be aware that the tions: Civil § 85.19 (4th ed. 1987). The definition purpose of punitive damages is to punish and of malice is based on that found in Malik v. not destroy a defendant. Apex Int’l Alloys, Inc., 762 F.2d 77, 80 (10th Cir. 1985) (“Malice is defined as a wrongful act [You may consider evidence of actual harm done intentionally without just cause or to others in determining the seriousness of the excuse.”), and Bennett v. City Nat’l Bank & Trust hazard to the public and thus whether the con- Co., 549 P.2d 393, 397 (Okla. Ct. App. 1975) duct that harmed the plaintiff was particularly (“Malice is defined as the intentional doing of reprehensible or bad. Conduct that risks harm a wrongful act without justification or to many may be more reprehensible than con- excuse.”). duct that risks harm to only a few. However, This Instruction includes a listing of factors you may not use punitive damages to punish for the jury to consider in determining the [Defendant] directly on account of harms that amount of punitive damages. Most of these are [Defendant] may have caused to others.]

2426 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 In determining the amount of punitive amount of actual damages. If the defendant has been found guilty of acting intentionally and with malice towards others, the damages, you may consider the following fac- award should not exceed the greater of $500,000.00, or twice the tors: amount of actual damages awarded, or the increased financial benefit derived by the defendant as a direct result of the conduct 1. The seriousness of the hazard to the pub- causing the injury to the plaintiff and other persons or entities. If lic arising from [Defendant]’s misconduct; the punitive damages award is higher than the greater of $500,000 or twice the amount of actual damages, the trial judge 2. The profitability of the misconduct to is required to reduce that portion of the punitive damages award that exceeds the greater of $500,000 or twice the amount of [Defendant]; actual damages by the amount that the defendant has previously paid for punitive damages awarded in Oklahoma state court 3. How long the conduct lasted and wheth- actions for the same conduct. er it is likely to continue; Okla. Stat. tit. 23, § 9.1 (C)(2) (Supp. 1995). If the trial court has found beyond a reasonable doubt that the 4. Whether there were attempts to conceal defendant acted intentionally and with malice and engaged in conduct the misconduct; that was life-threatening to humans, and also the jury has found that the defendant acted intentionally and with malice towards others, 5. How aware [Defendant] was of the con- there is no limit on the amount of punitive damages and the last duct and its consequences and how aware paragraph of this instruction should be omitted. [Defendant] was of the hazard and of its Committee Comments excessiveness; (Approved by Committee on August 6, 2004) 6. The attitude and conduct of [Defendant] The United States Supreme Court has ruled upon finding out about the misconduct/ in a line of cases that due process “prohibits the hazard; imposition of grossly excessive or arbitrary 7. The financial condition of [Defendant]; punishments on a tortfeasor.” State Farm Mutu- al Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 8. (If the defendant is a corporation or other (2003). Striking down a large punitive damage entity) The number and level of employees award in the State Farm case, the Supreme involved in causing or concealing the Court declared: misconduct. Lawful out-of-state conduct may be proba- In no event should the punitive damages tive when it demonstrates the deliberate- exceed the greater of: (Select One) ness and culpability of the defendant’s [$100,000.00 or the amount of actual damages action in the State where it is tortious, but you have previously awarded]. that conduct must have a nexus to the specific harm suffered by the plaintiff. A jury OR must be instructed, furthermore, that it [$500,000.00, or twice the amount of actual may not use evidence of out-of-state con- damages you have previously awarded, or the duct to punish a defendant for action that increased financial benefit derived by the was lawful in the jurisdiction where it defendant as a direct result of the conduct occurred. causing the injury to the plaintiff and other Id. at 422. persons or entities]. ______Notes on Use This Instruction is based on Okla. Stat. tit. 23, § 9.1 (C)(2) (2001). The Verdict Forms in Instruction Nos. 5.10 and 5.11 should accompany this Chapter Six Instruction. Legal Relationships The bracketed paragraph of this Instruction that comes before the list of factors for punitive damages is based on the United States List Of Contents Supreme Court’s decision in Phillip Morris USA v. Williams, 127 S. Ct. 1057 (2007). It should be given upon request of a party if there is a Instruction No. 6.1 significant risk of a misunderstanding by the jury that it should impose Minor — Defined — punitive damages for harm to nonparties, either because of the evidence presented at trial or argument of counsel. Id. at 1065. The Right To Sue Or Defend ...... 77 Supreme Court’s opinion stated that “conduct that risks harm to many is likely more reprehensible.” The Committee discussed the use of Instruction No. 6.2 “may be” rather than “is likely”, and decided that the “may be” language was more appropriate for jury instruction, because Agency — Defined ...... 77 reprehensibility is a jury issue. The last paragraph of this instruction is to be determined as Instruction No. 6.3 follows: Disclosed, Partially Disclosed If the defendant has been found guilty of acting with reckless disregard for the rights of others, then the punitive damages Or Undisclosed Principal — award should not exceed the greater of $100,000.00 or the Defined ...... 78

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2427 Instruction No. 6.4 3. [Defendant] desired to bring about the Employer And Employee — injury; or Defined ...... 78 4. [Defendant] knew that injury to [Plaintiff] Instruction No. 6.5 was substantially certain, and not merely likely, Loaned Employee ...... 79 to occur. Instruction No. 6.6 You may infer the knowledge of [Defendant] Loaned Employee — from the conduct of [Defendant] and all the Determination Of ...... 79 surrounding circumstances. Instruction No. 6.7 Committee Comments Scope Of Employment ...... 80 This Instruction is based on Parret v. Unico Instruction No. 6.8 Serv. Co., 2005 OK 54, ¶ 24, 127 P.3d 572, 579: Scope Of Authority — Defined ...... 80 In order for an employer’s conduct to Instruction No. 6.9 amount to an intentional tort, the employer Incidental Of Implied must have (1) desired to bring about the Authority — Defined ...... 81 worker’s injury or (2) acted with the knowl- Instruction No. 6.10 edge that such injury was substantially Implied Authority certain to result from the employer’s con- Based On Business Usage ...... 81 duct. Under the second part of this standard, the employer must have intended the Instruction No. 6.11 act that caused the injury with knowledge Apparent Authority that the injury was substantially certain to Agency By Estoppel] — Definition And Effect ...... 82 follow. The issue is not merely whether injury was substantially certain to occur, Instruction No. 6.12 but whether the employer knew it was Scope Of Authority Or substantially certain to occur. The employ- Employment — Departure ...... 83 er’s subjective appreciation of the substan- Instruction No. 6.13 tial certainty of injury must be demon- Ratification — Definition strated. In most cases, however, it will be And Effect ...... 83 necessary to demonstrate the employer’s subjective realization by circumstantial Instruction No. 6.14 Knowledge Of Agent evidence. Thus, an employer’s knowledge Imputable To Principal ...... 84 may be inferred from the employer’s conduct and all the surrounding Instruction No. 6.15 circumstances. Termination Of Agent’s ______Authority ...... 85 Instruction No. 6.16 Chapter Nine Employer Liability — Substantial Negligence — Comparative Negligence Certainty Test ...... 85 List Of Contents Instruction No. 9.1 OUJI No. 6.16 Negligence — Elements EMPLOYER LIABILITY - SUBSTANTIAL CERTAINTY TEST Of Liability ...... 105 For [Plaintiff] to recover from [Defendant] Instruction No. 9.2 for his/her injury, [Plaintiff] must prove by the Negligence — Defined ...... 105 greater weight of the evidence: Instruction No. 9.3 1. The conduct of [Defendant] was inten- Ordinary Care — Defined ...... 106 tional; Instruction No. 9.4 2. [Defendant]’s conduct caused injury to Child’s Capacity [Plaintiff]; For Negligence ...... 107

2428 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 Instruction No. 9.4A Instruction No. 9.18 Children — Standard Comparative Negligence: Of Care ...... 109 One Defendant — Definition ...... 121 Instruction No. 9.5 Instruction No. 9.19 Volunteer — Duty Of Care ...... 110 Comparative Negligence: Multiple Defendants — Definition ...... 122 Instruction No. 9.6 Direct Cause — Definition ...... 110 Instruction No. 9.20 Comparative Negligence: Instruction No. 9.7 Counterclaim Plead — Definition ...... 124 Concurrent Causes ...... 111 Instruction No. 9.21 Instruction No. 9.8 Comparative Negligence: Non-Party Intervening Cause —Definition ...... 111 Involved — Definition ...... 126 Instruction No. 9.8A Instruction No. 9.22 Liability for Additional Advice Concerning Injuries by Other Persons ...... 111 Color-Coded Verdict Forms ...... 128 Instruction No. 9.8B Instruction No. 9.23 Liability for Increased Blue Verdict Form, Harm - Products Liability ...... 111 Or Plaintiffs — Directions ...... 128 Instruction No. 9.8C Instruction No. 9.24 Intervening Cause — Definition ...... 111 Blue Verdict Form, Instruction No. 9.9 For Plaintiffs — Multiple Rescue Doctrine ...... 112 Defendants — Directions ...... 129 Instruction No. 9.10 Instruction No. 9.25 Negligence Per Se — Violation Blue Verdict Form, For Of Statute Or Ordinance ...... 113 Plaintiff: Counterclaim Plead — Directions ...... 129 Instruction No. 9.11 Conduct In Compliance Instruction No. 9.26 With Statute Or Ordinance ...... 113 Blue Verdict Form, For Plaintiff: Non-Party Involved — Instruction No. 9.12 Directions ...... 130 Unknowing Violation Of Statute Or Ordinance ...... 114 Instruction No. 9.27 Pink Verdict Form, For One Instruction No. 9.13 Defendant — Directions ...... 130 Res Ipsa Loquitur — Inference Of Negligence ...... 114 Instruction No. 9.28 Pink Verdict Form, For Multiple Instruction No. 9.14 Defendants — Directions ...... 130 Assumption Of Risk ...... 115 Instruction No. 9.29 Instruction No. 9.15 Pink Verdict Form, For Defendant: Negligence Of Driver Non-Party Involved — Directions ...... 131 Not Imputable To Passenger ...... 117 Instruction No. 9.30 Instruction No. 9.16 Pink Verdict Form, For Defendant Negligence Of Parent On Counterclaim — Directions ...... 131 Not Imputable To Children ...... 117 Instruction No. 9.31 Preface To The Comparative Green Verdict Form, Or Neither Negligence Instructions ...... 118 Plaintiff Nor Defendant— Counterclaim — Directions ...... 133 Instruction No. 9.17 Comparative Negligence Not Instruction No. 9.32 A Defense To WillfulAnd White Verdict Form, Comparative, Wanton Or Intentional Conduct ...... 120 One Defendant — Directions ...... 133

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2429 Instruction No. 9.33 Instruction No. 9.49 White Verdict Form, Comparative, White Verdict Form, Medical Two Defendants — Directions ...... 134 Malpractice, Loss Of Chance ...... 156 Instruction No. 9.34 Instruction No. 9.50 White Verdict Form, Comparative Negligence — One Comparative, Multiple Defendant — Directions ...... 158 Defendants — Directions ...... 135 Instruction No. 9.51 Instruction No. 9.35 Willful and Wanton White Verdict Form, Comparative, Conduct — Definition ...... 158 Counterclaim — Directions ...... 136 Instruction No. 9.36 OUJI No. 9.8A White Verdict Form, Comparative, LIABILITY FOR ADDITIONAL INJURIES BY Non-Party — Directions ...... 138 OTHER PERSONS Instruction No. 9.37 Blue Verdict Form, For Plaintiff ...... 139 If you find by the greater weight of the evidence that [Defendant] is liable to [Plaintiff], Instruction No. 9.38 then [Defendant] is also liable for any addi- Blue Verdict Form, For Plaintiff; tional injuries caused by the normal efforts of Counterclaim Involved ...... 140 [Specify Provider of Medical or Other Care] Instruction No. 9.39 in providing aid/treatment that [Plaintiff] rea- Blue Verdict Form — For Plaintiff — sonably required [even if the aid itself was Multiple Defendants ...... 141 provided in a negligent manner]. Instruction No. 9.40 OR Ink Verdict Form, For One If you find by the greater weight of the Defendant ...... 142 evidence, that [Defendant] is liable to Instruction No. 9.41 [Plaintiff], then [Defendant] is also liable for Pink Verdict Form, For Multiple any additional injury from a second accident Defendants ...... 143 that would not have happened except for the Instruction No. 9.42 original injury and also was a normal conse- Pink Verdict Form, For Defendant quence of the original injury. on Counterclaim ...... 144 Notes on Use Instruction No. 9.43 The first alternative in this Instruction should be used in cases such as Atherton v. Devine, 1979 OK 132, 602 P.2d 634, where the plaintiff Green Verdict Form, For received additional injuries when the ambulance in which he was Neither Plaintiff nor Defendant ...... 145 being transported from the original accident was involved in another accident, or where a plaintiff suffers additional injuries while being Instruction No. 9.44 treated in a hospital, see Shadden v. Valley View Hosp., 1996 OK 140, 915 White Verdict Form, Comparative, P.2d 364. The bracketed clause at the end of the first alternative should be used only if there is evidence of any negligence by the provider of One Defendant ...... 146 medical or other care. Instruction No. 9.45 The second alternative should be used if the plaintiff suffered White Verdict Form, Comparative, additional injuries from a second accident that was a consequence of the original accident. Two Defendants ...... 148 Committee Comments Instruction No. 9.46 White Verdict Form, Comparative, This Instruction is based on Restatement Multiple Defendants ...... 150 (Second) of Torts §§ 457, 460 (1965), and the Oklahoma Supreme Court’s holding in Instruction No. 9.47 Atherton v. Devine, 1979 OK 132, ¶ 7, 602 P.2d White Verdict Form, Comparative, 634, 637, imposing liability “against the Counterclaim ...... 152 original tortfeasor for efforts of third persons in Instruction No. 9.48 rendering aid which resulted in additional White Verdict Form, Comparative, injury to the victim.” Non-Party Involved ...... 154 ______

2430 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 OUJI No. 9.8B But if you are not able to separate the harm LIABILITY FOR INCREASED that was due to the other causes from the HARM - PRODUCTS LIABILITY increased harm from [Defendant]’s negligence, [Defendant] is liable for all the harm to If you find by the greater weight of the evi- [Plaintiff]. dence that the [Specify Product] was defective and that the defect was a contributing factor in [Defendant] has the burden of proving by increasing the harm to [Plaintiff] beyond what the greater weight of the evidence, that the was due to other causes, then [Defendant] is increased harm from [Defendant]’s negligence liable for the increased harm. can be separated from the harm due to the other causes. If you are able to separate the harm that was due to the other causes from the increased Notes on Use harm from the defect, [Defendant] is liable This Instruction should be used for cases where the liability for increased harm is based on negligence, rather than products liability. only for the increased harm from the defect. Like the preceding Instruction, this Instruction should only be used where there is an issue whether the plaintiff’s injury is separable into But if you are not able to separate the harm multiple injuries with different causes or not, and it is not needed for that was due to the other causes from the cases where it is clear that there is only a single injury to the plaintiff. See Johnson v. Ford Motor Co., 2002 OK 24, ¶¶ 15-17, 45 P.3d 86, 92-93 increased harm from the defect, [Defendant] is (omission of instruction that defendant was liable only for enhanced liable for all the harm to [Plaintiff]. injuries due to defect was not reversible error where the plaintiff’s claim was that the defect caused his injuries, rather than that the defect [Defendant] has the burden of proving by enhanced his injuries, and therefore instructions on causation were the greater weight of the evidence, that the adequate). increased harm from the defect can be Committee Comments separated from the harm due to the other causes. This Instruction is derived from Restate- ment (Third) of Torts: Products Liability Notes on Use § 16 (1998). This Instruction to be used for second impact cases, such as Lee v. ______Volkswagen of Am., Inc., 1984 OK 48, 688 P.2d 1283. It should only be used where there is an issue whether the plaintiff’s injury is separable into multiple injuries with different causes or not, and it is not needed for cases where it is clear that there is only a single injury to the plain- PREFACE TO THE COMPARATIVE tiff. See Johnson v. Ford Motor Co., 2002 OK 24, ¶¶ 15-17, 45 P.3d 86, 92-93 NEGLIGENCE INSTRUCTIONS (omission of instruction that defendant was liable only for enhanced injuries due to defect was not reversible error where the plaintiff’s The following uniform instructions reflect claim was that the defect caused his injuries, rather than that the defect enhanced his injuries, and therefore instructions on causation were the status of the comparative negligence law at adequate). the time the Uniform Committee released its work for publication as of November 1, 2004. Committee Comments This area of the law, in particular, has been the This Instruction is based on Restatement subject of a number of recent developments (Third) of Torts: Products Liability § 16 and is likely to may be subject to additional (1998). changes in the near future. ______Accordingly, this preface is designed to provide a brief overview of the basic stages of the development of comparative negligence law in OUJI No. 9.8C Oklahoma. LIABILITY FOR INCREASED HARM - NEGLIGENCE 1. From statehood until 1973 the Doctrine of Contributory Negligence controlled in If you find by the greater weight of the evi- Oklahoma. That doctrine provided that any dence that [Defendant] was negligent and that negligence on the part of the plaintiff which [Defendant]’s negligence was a contributing contributed to his injuries operated as a factor in increasing the harm to [Plaintiff] complete bar to his recovery from any other beyond what was due to other causes, then negligent parties. [Defendant] is liable for the increased harm. 2. The Oklahoma legislature replaced the If you are able to separate the harm that contributory negligence doctrine in 1973 by was due to the other causes from the adoption of a new comparative negligence increased harm from [Defendant]’s negligence, statute.1 Under the comparative negligence [Defendant] is liable only for the increased statute a plaintiff was no longer completely harm from [Defendant]’s negligence. barred from recovery if his negligence was

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2431 found to be less than fifty percent of the does not apply, however, to actions brought by negligence causing his injuries.2 the state or a political subdivision of the state. Also, the statute does not apply if the plaintiff’s 3. In Laubach v. Morgan, 588 P.2d 1071, 1074 (Okla. 1978), the Oklahoma Supreme Court percentage of negligence is 0%. Therefore, if abolished the joint and several liability rule in the plaintiff’s percentage of negligence is 0%, multiple tortfeasor situations and adopted in then Boyles v. Oklahoma Natural Gas. Co., 1980 its stead a rule of several liability only. Under OK 163, 619 P.2d 613, would still apply. Laubach, each defendant’s liability to the 1. 23 O.S.1991 § 13. Comparative negligence is a statutory substi- plaintiff is was limited to that amount which tute for the common-law concept of contributory negligence to which his proportionate percentage of negligence reference is made in Okla. Const. art. 23, § 6. The concept calls for a bears to the plaintiff’s total damages. comparison of Plaintiffs fault vis-a-vis that of the “other side” (defendant or defendants). Comparative negligence does not mean compar- 4. The Oklahoma legislature enacted in 1978 ing or apportioning the negligence among multiple defendants. 2. In 1979 the Comparative Negligence Act was amended to allow a statute providing for contribution among a plaintiff to recover if his negligence was fifty percent or less of the 3 joint tortfeasors. Prior to this legislation, Okla- negligence causing his injuries. homa did not afford to any joint tortfeasor the 3. 12 O.S.1991 § 832. right of recovery against another joint tortfeasor when the first joint tortfeasor was required Chapter Twelve to pay more than his pro rata share of plaintiff’s Products Liability damages. List Of Contents 5. Boyles v. Oklahoma Natural Gas. Co., 619 P.2d 613 (Okla. 1980) was a negligence action Instruction No. 12.1 brought against multiple defendants, but not Manufacturers’ Products involving an allegation of contributory negli- Liability — Elements ...... 189 gence on the part of the plaintiff. On appeal it Instruction No. 12.2 was urged that the trial court erred in refusing Defective — Defined ...... 190 to instruct the jury to apportion the several defendants’ liability under the rule of Laubach. Instruction No. 12.3 The Oklahoma Supreme Court responded to Unreasonably Dangerous that contention by stating: — Defined ...... 190 There is absolutely nothing in Laubach to Instruction No. 12.4 negate the continued force of the common Direct Cause — Definition ...... 191 law rule of joint and several liability in those negligent torts which fall completely Instruction No. 12.5 outside the purview of our comparative Product Defective If No negligence legislation. Warning Given ...... 192 619 P.2d at 616. The Court in Boyles made clear Instruction No. 12.6 that it intended to abolish the joint and several Adequacy Of Warnings ...... 193 liability rule only in comparative negligence actions, and not other negligent torts. Instruction No. 12.7 Liability For Injury From 6. Berry v. Empire Indem. Ins. Co., 634 P.2d 718 Food Or Beverage ...... 194 (Okla. 1981), was a negligence action involving an allegation of contributory negligence on the Instruction No. 12.8 part of the Plaintiff. The jury found the Plaintiff Definition Of Substance Which free of negligence. The Oklahoma Supreme Could Be Reasonably Expected Court held that Boyles controlled and “Oklaho- To Be Present In A Food ma’s comparative negligence statute (23 O.S. Or Beverage ...... 195 Supp. 1979 § 13) has no application,” because the Plaintiff was free of negligence. 634 P.2d Instruction No. 12.9 at 710. In 2004, the Oklahoma Legislature Affirmative Defense adopted 23 O.S. § 15, which provides for Of Misuse Of Product ...... 195 several liability in all actions based on fault and not arising out of contract, except that a Instruction No. 12.10 defendant is subject to joint and several Affirmative Defense Of Voluntary liability if that defendant’s percentage of Assumption Of The Risk Of negligence is greater than 50%. The statute A Known Defect ...... 196

2432 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 Instruction No. 12.11 7. The financial resources of [Defendant]. Affirmative Defense You should be aware that the purpose of Of Unavoidably Unsafe punitive damages is to punish, and not destroy, Product ...... 198 a [manufacturer/seller/lessor]. In no event Instruction No. 12.12 should the punitive damages exceed the Products Liability — amount of actual damages awarded. Punitive Damages (Deleted) ...... 199 Notes on Use This Instruction is for use in actions filed before August 25, 1995. For actions filed on or after then, see Instruction Nos. 5.6 through 5.11, OUJI No. 12.12 supra.

Products Liability — Punitive Damages In a products liability action the trial court should give the appropriate Instructions from Chapter 4 on compensatory damages for INSTRUCTION DELETED injuries to person or property. This Instruction should also be given where, besides offering proof on each of the elements in Instruction If you award [Plaintiff] actual damages, and No. 12.1, the plaintiff also has made a showing that the defendant was if you find that [Defendant] showed a reckless highly blameworthy for manufacturing or selling a defective product. disregard for the public safety, then you may also grant [Plaintiff] punitive damages in such Chapter Twenty Six sum as you reasonably believe will punish BREACH OF FIDUCIARY DUTY [Defendant], and be an example to others. LIST OF CONTENTS A reckless disregard of the public safety Instruction No. 26.1 means that a [manufacturer/seller/lessor] Breach of Fiduciary either knew, or else did not care, that there was Duty - Elements of Liability ...... 1 a substantial and unnecessary risk of injury, and also, that the [manufacturer/seller/lessor] Instruction No. 26.2 failed to either determine the seriousness of the Breach of Fiduciary danger or reduce the risk to an acceptable Duty - Existence of Fiduciary minimal level. The purpose of punitive dam- Relationship ...... 2 ages is not to compensate an individual consumer, but instead to benefit society by punish- Instruction No. 26.3 ing a [manufacturer/seller/lessor] who [makes/ Breach of Fiduciary sells/leases] defective products thereby encour- Duty - Fiduciary Duty Owed ...... 4 aging other [manufacturers/sellers/lessors] to Instruction No. 26.4 maintain safety standards for the benefit of Breach of Fiduciary consumers generally. Duty - Breach Defined ...... 1 In deciding whether to award punitive dam- Instruction No. 26.5 ages, and the amount of the award, if any, you should consider the following factors: Breach of Fiduciary Duty - Damages ...... 1 1. How serious was the risk of harm to the public that resulted from the defect in the [description of product]; OUJI No. 26.1 BREACH OF FIDUCIARY 2. Whether [Defendant] was aware of the DUTY - ELEMENTS OF LIABILITY existence and seriousness of the defect; In order for [Plaintiff] to recover from 3. Whether [Defendant] has corrected the [Defendant] on [his/her] claim for breach of defect [or reduced the danger], and if so, what fiduciary duty, you must find that all of the fol- [he/she/it] did and how long that took; lowing have been established: 4. The amount it cost [or would have cost] to 1. A fiduciary relationship existed between correct the defect [or reduce the danger]; [Plaintiff] and [Defendant] that created (a fiduciary duty)/(fiduciary duties) that 5. The amount of profits that [Defendant] [Defendant] owed to [Plaintiff]; received from other sales [or leases] of the defective [description of product]; 2. [Defendant] breached the fiduciary duty/ duties to [Plaintiff]; and 6. Whether [Defendant] attempted to conceal the defect or deceive the public about the 3. The breach of the fiduciary duty/duties safety of the [description of product]; and was the direct cause of damages to [Plaintiff].

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2433 Notes on Use Patton, 1985 OK 95, ¶¶ 17-18, 710 P.2d 108,

Instructions 26.2 to 26.5, infra, should be used with this Instruction. 111-12; Sellers v. Sellers, 1967 OK 34, ¶¶ 21-22,

Committee Comments 428 P.2d 230, 236; and Robertson v. Painewebber, Inc., 2000 OK CIV APP 17, ¶¶ 10-11, 998 P.2d This instructions is based on the following statement in FDIC v. Grant, 8 F. SupP.2d 1275, 1299 (N.D. Okla. 1998): 193, 198-99. From a review of the authorities in Oklahoma, it appears that ______the four elements of an actionable breach of fiduciary duty claim are: (1) the existence of a fiduciary relationship, (2) a duty arising out of the fiduciary relationship, (3) a breach of the duty, and (4) damages proximately caused by the breach of duty. OUJI No. 26.3 The Instruction combines the first and second elements from the BREACH OF FIDUCIARY DUTY - Grant case, because the existence of a fiduciary relationship will create one or more fiduciary duties as a matter of law. FIDUCIARY DUTY OWED ______You are instructed that [Defendant] owed the following duty/duties to [Plaintiff]: OUJI No. 26.2 BREACH OF FIDUCIARY DUTY - [Describe the fiduciary duty or duties] EXISTENCE OF FIDUCIARY RELATIONSHIP OR You are instructed that a fiduciary If you find that a fiduciary relationship exist- relationship existed in this case between [Plaintiff] and [Defendant]. ed in this case between [Plaintiff] and [Defen- dant], then you are instructed that [Defendant] OR owed the following duty/duties to [Plaintiff]: You are instructed that if you determine that [Describe the fiduciary duty or duties] [Specify Grounds for Fiduciary Relationship, e.g., [Defendant] was the [guardian, employee, Committee Comments partner, attorney, accountant, banker, physician, etc.] of [Plaintiff]], then a fiduciary For examples of duties of an agent to a prin- relationship existed in this case between cipal, see Restatement (Third) of Agency §§ [Plaintiff] and [Defendant]. 8.01-8.12 (2006). The Restatement sets out the OR fiduciary duties of an agent to a principal under the headings of duties of loyalty and You must determine whether a fiduciary duties of performance, but it would be helpful relationship existed in this case between [Plaintiff] and [Defendant] based upon their for the trial judge to provide more guidance by relationship and the other circumstances in this specifying the fiduciary duty that is applicable case. A fiduciary relationship exists whenever to the case, such as the duty to maintain confi- trust and confidence are reasonably placed by dences, to refrain from self-dealing, or the duty one person in the integrity and loyalty of to provide information to the principal. another, and the other person knowingly ______accepts that trust and confidence and then undertakes to act on behalf of the person. Notes on Use OUJI No. 26.4

The first alternative should be used where the existence of a BREACH OF FIDUCIARY fiduciary relationship may be determined as a matter of law. Examples DUTY - BREACH DEFINED include relationship such as guardian and ward, attorney and client, principal and agent, and where a fiduciary relationship is created by [Defendant] breached a fiduciary duty in statute. See Lowrance v. Patton, 1985 OK 95, ¶ 17, 710 P.2d 108, 111. this case if [Defendant] did not act in accor- The second alternative should be used where the existence of a fiduciary relationship depends on a disputed factual issue. The trial dance with [Specify the Fiduciary Duty or court may need to modify this alternative to explain the disputed Duties Owed]. factual issue-e.g., by defining the requirements for a guardianship. The third alternative should be used where the existence of a fidu- [Plaintiff] claims that [Defendant] breached ciary relationship is a jury question and the fiduciary relationship does not fit into a well-defined category, such as the relationship of a the fiduciary duty/duties that [Defendant] guardian and ward. owed to [Plaintiff] in the following manner: Committee Comments [Specify alleged breach of fiduciary duty or The criteria for a fiduciary relationship in the duties] third alternative are taken from Lowrance v. ______

2434 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 OUJI No. 26.5 For definitions of conversion, see Welty v. BREACH OF FIDUCIARY Martinaire of Oklahoma, Inc., 1994 OK 10, ¶ 6, DUTY - DAMAGES 867 P.2d 1273, 1274 (“Black defines conversion A person who breaches a fiduciary duty as “an unauthorized assumption and exercise owed to another person is liable for the harm of the right of ownership over goods or per- that was directly caused by the breach. If you sonal chattels of another.”); Steenbergen v. First decide that [Defendant] breached a fiduciary Fed. Sav. & Loan of Chickasha, 1987 OK 122, ¶ 9, duty to [Plaintiff] and [Plaintiff] has suffered harm as a direct result, you must then fix the 753 P.2d 1330, 1332 (“Conversion is any act of amount of [his/her] damages. This is the dominion wrongfully exerted over another’s amount of money that will reasonably and personal property in denial of or inconsistent fairly compensate [him/her] for the harm with his rights therein.). directly caused by [Defendant].

In fixing the amount you will award [him/ OUJI No. 4.16 27.2 her] you may consider the following: PERSONAL PROPERTY — [Specify elements of damages, e.g., lost CONVERSION - DAMAGES profits, emotional distress, etc.] ______If you decide for [Plaintiff] on the question of liability, you must then determine the amount Chapter twenty Seven of money that will reasonably and fairly com- Conversion pensate [him/her] for the conversion of the List Of Contents [insert description of property]. That amount is: Instruction No. 27.1 Conversion - Elements ...... 382 1. The value of the property at the time of the Instruction No. 27.2 conversion with interest from that time; Conversion - Damage ...... 384 or 2. The highest market value of the property OUJI No. 27.1 CONVERSION — ELEMENTS at any time between the time of the conversion and your verdict; Conversion is an unauthorized assumption and exercise of the right of ownership over the and a fair compensation for the time and personal property of another person that is money properly expended by [Plaintiff] in inconsistent with the rights of the owner. pursuit of the property. [Plaintiff] is required to prove by the greater weight of the evidence the following in order Comments to recover on the claim for conversion against [Defendant]: 23 O.S.1991 § 64 confers upon the owner of wrongfully converted personal property a 1. [Plaintiff] (was the owner of)/ choice between the traditional measure of possessed/(had the right to possess) the [Specify Property]; damages of value at the time of conversion and the time of the verdict. To elect to recover the 2. [Defendant] intentionally (took posses- highest market value the suit must be prose- sion of)/(prevented [Plaintiff] from having access to)/destroyed the [Specify Property]; cuted with due diligence-this is a question of law for the court. Hamco Oil & Drilling Co. v. 3. [Plaintiff] did not consent; and Ervin, 1960 OK 94, ¶ 15, 354 P.2d 442, 445-46 4. [Plaintiff] was harmed as a result of the (Okla. 1960); Champlin Ref. Co. v. Aladdin Petro- conduct of [Defendant]. leum Corp., 1951 OK 207, ¶ 14, 205 Okla. 524, Notes on Use 527, 238 P.2d 827, 830 (1951); McKinnon v. Mon- OUJI 27.2 (formerly OUJI 4.16) provides an instruction on damages, arch Loan Co., 1925 OK 482, ¶ 18, 111 Okla. 213, and it should accompany this Instruction. 215-16, 239 P. 170, 172 (1925). Committee Comments ______

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2435 2008 OK 37 /s/ James R. Winchester JAMES R. WINCHESTER In the Matter of Melia Melton Chief Justice SCAD No. 2008-30. October 16, 2008 2008 OK 94 ORDER NUNC PRO TUNC AMENDING ORDER OF IN THE MATTER OF THE ASSESSMENT SUSPENSION OF PERSONAL PROPERTY TAXES Now, on the 15th day of October, 2008, there AGAINST MISSOURI GAS ENERGY, came on for consideration an Application of a DIVISION OF SOUTHERN UNION the State Board of Examiners of Certified COMPANY, FOR TAX YEARS Shorthand Reporters for an Order of Nunc Pro 1998, 1999, AND 2000. Tunc removing the name of Melia Melton from its Order for License Suspension issued on No. 103,355. October 21, 2008 April 14, 2008, whereby the licenses of Certi- ON APPEAL FROM THE DISTRICT fied Court Reporters were suspended for fail- COURT, WOODS COUNTY ure to report their continuing education for calendar year 2007. ¶0 The Woods County Assessor issued an omitted property tax assessment against Mis- The Court, having considered the Applica- souri Gas Energy, a local gas distribution com- tion, finds the following name should be pany headquartered in Kansas City, Missouri, removed from the above-referenced Order for License Suspension issued by this Court on, for Tax Years 1998, 1999, and 2000. The prop- April 14, 2008. erty assessed was natural gas held in an underground storage facility located in Woods Coun- Melia Melton ty. Assessor rejected Missouri Gas Energy’s Respectfully submitted this 16th day of Octo- informal protest of the tax and the Woods ber, 2008. County Board of Equalization upheld Asses- sor’s decision. Missouri Gas Energy then /s/ James R. Winchester appealed to the Woods County District Court, JAMES R. WINCHESTER Ray Dean Linder, trial judge, challenging the Chief Justice validity of the tax on state- and federal-law 2008 OK 37 grounds. The trial court gave judgment to Missouri Gas Energy. Assessor brought this In the Matter of Gail Spurgeon appeal, which stands retained for this court’s SCAD No. 2008-30. October 16, 2008 disposition.

ORDER NUNC PRO TUNC AMENDING ORDER OF THE TRIAL COURT’S JUDGMENT IS SUSPENSION REVERSED Now, on the 15th day of October, 2008, there Mart Tisdal and Luke Adams, Tisdal Law Firm, came on for consideration an Application of Clinton, OK and Hollis Thorp, Woods County the State Board of Examiners of Certified Assistant District Attorney, Alva, OK, for Shorthand Reporters for an Order of Nunc Pro Appellant. Tunc removing the name of Gail Spurgeon from its Order for License Suspension issued William K. Elias and Linda Jo Blan-Byford, on April 14, 2008, whereby the licenses of Cer- Elias, Books, Brown & Nelson, P.C., Oklahoma tified Court Reporters were suspended for City, OK, for Appellee. failure to report their continuing education for Julie L. Miller, Craig A. Crimmins, and Shelley calendar year 2007. A. Shelby, Oklahoma State School Boards Asso- The Court, having considered the Applica- ciation, Oklahoma City, OK, for Amici Curiae, tion, finds the following name should be Oklahoma State School Boards Association and removed from the above-referenced Order for Cooperative Council for Oklahoma School License Suspension issued by this Court on, Administration.1 April 14, 2008. OPALA, J. Gail Spurgeon ¶1 The dispositive issues tendered on appeal Respectfully submitted this 16th day of Octo- are: (1) Did Assessor prove that the assessed ber, 2008. property had a tax situs in Woods County?

2436 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 (2) Did Assessor prove that Missouri Gas Ener- decision by trial de novo pursuant to the provi- gy owned the assessed property? (3) Is the sions of 68 O.S. 2001 §2880.1.2 MGE’s appeal assessed natural gas tangible personal property challenged the assessment on both state- and for purposes of ad valorem taxation? (4) Does federal-law grounds. the challenged tax violate the Commerce Clause ¶5 MGE moved in the district court for sum- of the United States Constitution? and (5) Does mary judgment, which was denied. The trial the challenged tax violate the Freeport Exemp- court then bifurcated the proceedings for tion of the Oklahoma Constitution? We answer sequential bench trials. In the first trial, held on the first three questions in the affirmative and 10 August 2004, the trial judge heard testimony the last two questions in the negative. on whether the challenged assessments violat- I ed the Freeport Exemption of the Oklahoma THE ANATOMY OF LITIGATION Constitution, Article 10, §6A.3 After ruling that the Freeport Exemption was inapplicable, the ¶2 Missouri Gas Energy (“MGE” or “the trial court on 27 February 2006 heard testimony Company”) is a local gas distribution company on the remaining state- and federal-law issues. whose principal place of business is in Kansas On 19 April 2006, the trial court pronounced City, Missouri. It is regulated by the Missouri judgment in favor of MGE and ordered Woods Public Service Commission. MGE purchases County officials to refund to the Company any natural gas from suppliers in Texas, Kansas taxes paid under protest together with all and Oklahoma and contracts with Panhandle accrued interest. Assessor appealed. The cause Eastern Pipeline Company (“Panhandle”), an stands retained for this court’s disposition. We interstate common carrier of natural gas, for now reverse the trial court’s judgment. transportation of the gas to the state of Mis- souri. There the gas is sold to MGE’s custom- II ers. MGE sells no gas in Oklahoma and main- THE TRANSPORTATION AND STORAGE tains no facilities or employees in this state. In OF NATURAL GAS the process of being transported, some natural ¶6 Panhandle operates an interstate natural gas is removed from the pipeline and placed in gas pipeline system, which is regulated by the storage facilities belonging to Panhandle. One Federal Energy Regulatory Commission such storage facility, North Hopeton, is located (“FERC”). The Panhandle pipeline system in Woods County. begins in what is called the Field Zone4 in Texas ¶3 Assessor learned in 2000 that Panhandle and Oklahoma and consists of pipeline branch- was storing natural gas at North Hopeton at es or legs connected at metered receipt points the behest of shippers using Panhandle’s pipe- with the sources of gas supply located in those line for transportation of their gas to market. states. The branch traversing Texas has no Assessor concluded that the gas being stored at physical connection with the branch traversing North Hopeton was subject to ad valorem taxa- Oklahoma until they converge into a single tion in Woods County. She requested from pipeline at a compressor station located in Panhandle a list of shippers who had gas Haven, Kansas. stored at North Hopeton as of 1 January 1998, ¶7 Shippers purchase gas from suppliers in 1999, and 2000 and the amount of gas held in the Field Zone and contract with Panhandle for storage for each. Panhandle did not generate its transportation to market. Suppliers deliver this information in the ordinary course of busi- the purchased natural gas into one of the ness, but in response to Assessor’s request, branches or legs of the system at one of the assembled a list of its shippers and allocated to metered receipt points. Multiple shippers use each a portion of the gas stored at North Hope- the pipeline simultaneously and all of their gas ton. Based on this information, Assessor levied is commingled. Neither Panhandle nor the the ad valorem tax at issue in this case. shippers attempt to trace gas belonging to indi- ¶4 MGE protested the assessment in an vidual shippers. Tracing of individual mole- informal proceeding before Assessor. Assessor cules of natural gas is physically impossible rejected the protest and MGE appealed to the from the moment the gas enters the pipeline at Woods County Board of Equalization, which the supplier’s facility. A series of compressor upheld Assessor’s decision. MGE filed a peti- stations along the pipeline create a pressure tion in the Woods County District Court on 26 drop which causes the gas to physically move, June 2002, initiating an appeal from the Board’s eventually arriving at a metered delivery points

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2437 in the Market Zone5 from which it is sold to that gas will be delivered. In commensurate, consumers. Gas originating in Oklahoma trav- simultaneous transactions, Panhandle can els through Woods County to get to the Haven receive into its pipeline the volume of gas pur- convergence point. chased by a shipper and deliver a thermally equivalent volume of gas to the same shipper ¶8 In addition to transporting gas directly at a delivery point hundreds of miles away. from the Field Zone to the Market Zone, Pan- The molecules of gas delivered by the pipeline handle offers a storage service to its shippers, the terms of which are set out in storage con- to the shipper at the delivery point are clearly tracts. Panhandle has two natural gas storage not the same molecules of gas that the supplier facilities in the Field Zone: the Borchers Stor- put into the system at the shipper’s request. age Facility located in Kansas on the branch of ¶12 Shippers also use the scheduling system the pipeline originating in Texas and the North to nominate gas into storage. In making stor- Hopeton Storage Facility located in Woods age nominations, shippers cannot specify which County, Oklahoma, on the Oklahoma branch storage facility is to receive the gas nominated into of the pipeline. storage. Although there is not always a direct ¶9 The transportation and storage of natural correlation between nominations into storage gas is subject to certain physical laws that gov- and actual injections, the net effect of the pro- ern its movement. Movement is caused by cess is that a volume of gas equivalent to that displacement of gas in the system, not by the nominated is received into whichever storage actual movement of specific molecules from facility Panhandle determines needs the injec- points of receipt to points of delivery. Gas in a tion based on a timely analysis of its system’s pipeline moves in only one direction: from an needs. The molecules of gas that go into a stor- area of higher pressure to one of lower pres- age facility upon a shipper’s nomination are sure. In geographical terms, gas in Panhandle’s very unlikely to be the same molecules pur- pipeline moves only from the Field Zone chased by that shipper, but there is no way to toward the Market Zone and never in the know as neither the purchased nor the stored opposite direction. Molecules of gas that have molecules are traceable. Operationally, the passed either of the Field Zone storage facili- pipeline and the storage customer care only ties cannot physically turn around and end up that the volume of gas nominated into storage in storage, nor can gas molecules purchased goes into storage. from a supplier on one branch of the pipeline ¶13 Similarly, when a shipper nominates gas system end up in storage at the storage facility out of storage, it cannot specify from which on the other branch. storage facility the gas is to be taken. Panhan- ¶10 The storage facilities operate on an injec- dle can take gas from either storage facility tion-withdrawal cycle that matches the weath- depending on its system’s needs. Its obligation er-related demand for natural gas. From April is simply to provide its storage customer with through November, when demand for natural gas. In terms of their relationship with each gas is relatively low, gas is injected into the other, neither Panhandle nor the storage cus- storage facilities. During the winter months, tomer cares from which facility the gas is from November through March, gas is with- removed. The molecules taken out of storage drawn. Just as in the pipeline itself, all gas in could be molecules originally purchased by the storage is commingled and incapable of being shipper, but they are just as likely, probably traced to a particular shipper. more likely, to be molecules originally purchased by another shipper. It is impossible to ¶11 Natural gas transactions are executed by know the original purchaser of any molecules means of a computerized scheduling system in removed from storage. which “nominations” are made. A supplier posts on the scheduling system that it will ¶14 Panhandle keeps track of each shipper’s deliver a volume of gas for a shipper’s account storage transactions by means of a storage and the shipper posts on the scheduling sys- account. If the nomination is into storage, the tem a confirmation that it will receive that shipper’s storage account balance is increased; quantity of gas from that supplier. At the same if the nomination is out of storage, its storage time, the shipper uses the scheduling system to account balance is decreased. Panhandle keeps arrange for transportation of the gas under a a single storage account balance for each ship- transportation contract and designates where per for gas held in storage at Borchers and

2438 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 North Hopeton combined. Panhandle does not erty in the form of either an account receivable account separately for each storage facility. or a deposit. MGE argues that the contested assessment is invalid because both accounts ¶15 Although the actual molecules of gas receivable and deposits are exempt from ad held in a storage facility would not have trav- valorem taxation under the provisions of Arti- eled as far as Haven when they were removed cle X, §6A of the Oklahoma Constitution.10 from the pipeline and placed into storage, Assessor responds that the levy is upon the gas the parties treat the storage transactions as itself, which is tangible personal property. The having taken place at Haven. When gas is trial court treated the assessment as one on withdrawn from storage, it is treated by the tangible personal property. parties’ transportation contracts as restarting its journey from Haven, not from one of the ¶19 MGE’s argument calls for an interpreta- storage facilities. tion of the meaning of certain terms used in §6A of Article 10 of our fundamental law. ¶16 The transportation process creates a That provision exempts “accounts and bills complete disassociation between ownership of receivable, brokerage accounts, and credits, the gas in the system on the one hand and pos- whether secured or unsecured.” The constitu- session and control of the gas on the other. tional text does not define any of these terms. While Panhandle takes possession of gas placed In determining their meaning, we must bear into its pipeline and controls its movement, in mind that a constitution is not made for the including the determination of which facility parsing of lawyers, but for the instruction of will receive storage gas, it never acquires title the people so that they may read and under- to the gas. Title to the gas from receipt into the stand their rights and their duties.11 The pipeline to delivery at the point of consump- words used in a constitutional provision are tion remains at all times in the shipper, but the hence to be construed in a way that is most shipper has absolutely no control over the familiar to the ordinary people who adopted movement of its gas in the pipeline. it.12 “Words which do not of themselves denote III that they are used in a technical sense, are STANDARD OF REVIEW to have their plain, popular, obvious, and natural meaning; . . .”13 ¶17 Selection of the appropriate standard of appellate review requires the correct character- ¶20 With these rules of construction in mind, ization of the trial court proceedings.6 The trial we consider the meaning of the words used in court proceeding in this case was neither an §6A. The word “receivables,” as in “accounts action at law nor a suit in equity, but rather a receivable,” is ordinarily understood in busi- special statutory proceeding for the purpose of ness to mean “amounts of money due to a busi- ascertaining whether a taxpayer is entitled to a ness from customers.”14 (emphasis added) The refund of a tax paid under protest.7 Accord- Uniform Commercial Code defines an account ingly, the trial court’s judgment should be as a right to payment of a monetary obligation affirmed unless it is against the clear weight of for the sale or lease of property or for services the evidence or is contrary to law or to estab- rendered.15 The relationship between parties to lished principles of equity. The trial court’s an account receivable is one of debtor and statutory construction is always reviewed de creditor.16 The common meaning of debt is novo8 and its application of the law to the facts money owed in exchange for goods or services in resolving mixed questions of law and fact is purchased on credit.17 A brokerage account is reviewed as a question of law.9 an arrangement between an investor and a brokerage firm in which the investor deposits IV money with the firm and places investment THE CHALLENGED TAX WAS LEVIED orders through the brokerage. In exchange for UPON GAS STORED IN WOODS COUNTY these services, the investor owes the firm a AND NOT UPON AN INTANGIBLE commission. The brokerage firm may hold INTEREST IN THAT GAS funds or other property belonging to the inves- ¶18 While agreeing that natural gas is tangi- tor, but as the investor’s agent, not as a debtor. ble personal property, MGE contends that the The term “credit” in ordinary usage means the assessment at issue is not on the gas itself, but right granted by a creditor to a debtor to defer rather upon MGE’s interest in the gas, which payment of a monetary obligation.18 While MGE characterizes as intangible personal prop- there are obvious and distinct differences

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2439 between the broker-investor relationship and the intangible tax which had been imposed by the debtor-creditor relationship, in each case 68 O.S. Supp. 1965 §2501. An examination of one party receives something in exchange for the entire provision reveals that it was not the the deferred payment of money to the other people’s intent in passing it to bar the taxation party. of bailed corporeal property. The exemption provides that an interest in property is exempt, ¶21 MGE would have us treat Panhandle’s “whether or not evidenced by certificates, obligation to deliver gas to MGE as a debt shares, or other written evidence of beneficial which, in MGE’s hands, forms an account ownership.” The intent was to prohibit taxa- receivable. In this scenario, MGE is in the position of a beneficial interest which may be held tion of an account creditor vis-`a-vis Panhandle in a trust res or on deposit.21 who, as account debtor, owes a debt to MGE payable, not in the form of money, but in the ¶25 MGE’s relationship with Panhandle did form of gas in whatever volumes MGE nomi- not create a division of title to the stored gas, in nates out of storage. We cannot accede to this which Panhandle had legal title and MGE ben- characterization of the parties’ relationship or eficial title. Nothing in the record suggests that of Panhandle’s obligation to MGE as being one MGE had anything less than unified title to in the nature of debt. the gas it nominated into storage. “Bailment is the transfer of ‘the possession of personal ¶22 Under its storage contracts and accord- property without the transfer of ownership for ing to the federal Tariffs that govern interstate the accomplishment of a certain purpose.’”22 gas transportation and storage, MGE purchased Hence, MGE’s interest in the storage gas was storage services from Panhandle. The contracts not a beneficial interest held in trust or on provide that MGE will pay Panhandle the deposit within the meaning of the constitu- effective, applicable rates under the Tariffs in tional exemption. exchange for the services provided by Pan- handle. MGE had a right to performance of the V purchased services, including the timely with- NATURAL GAS STORED AT drawal of the gas from storage and its delivery NORTH HOPETON HAS A TAXABLE to Missouri. This right to Panhandle’s perfor- SITUS IN WOODS COUNTY mance of its obligations under the storage con- ¶26 The record clearly shows that natural gas tracts was not an account receivable as that was physically stored at North Hopeton and term is used in §6A and Panhandle’s obligation that a certain volume of gas was present there was not a debt. A debtor holds title to the thing on the assessment dates at issue. The trial court owed. The record is clear in this case that title nevertheless concluded that natural gas held in to the gas remained at all times in MGE and storage at North Hopeton could not acquire a was never transferred to Panhandle. tax situs in this state because gas stored pend- ¶23 Nor are we persuaded that the tax is ing transportation out of state is in transit in invalid because levied upon an exempt depos- interstate commerce. it. MGE refers us to a provision of our state’s ¶27 MGE argues that both state and federal constitution that exempts from ad valorem law support the trial court’s conclusion that taxation “[a]ll interests in property held in trust property in interstate commerce cannot have a or on deposit within or without this State, and tax situs in a particular state. MGE first argues whether or not evidenced by certificates, shares, that the provisions of 68 O.S. 2001 §2831(E) or other written evidence of beneficial owner- apply to its storage gas and bar its acquisition ship.”19 MGE relies on a definition of the word of tax situs in Oklahoma. That statute states in “deposit” found in Black’s Law Dictionary (5th pertinent part: “Tangible personal property ed. 1979), which broadly defines deposit to moving through the state from a point outside include a bailment of goods.20 MGE argues that the state, in transit to a final destination out- its contractual storage arrangement with Pan- side the state, shall for purposes of taxation, handle is, or is similar enough to, a bailment to acquire no situs in the state. . . .” The statute characterize its interest in the gas stored at applies to (1) tangible personal property (2) in North Hopeton as an interest in property on transit through Oklahoma (3) from a point out- deposit. We disagree. side Oklahoma (4) to a final destination outside ¶24 The constitutional exemption created in of Oklahoma. MGE contends that its storage Article 10, §6A(f), adopted in 1968, abolished gas meets all four of these requirements. Asses-

2440 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 sor argues that it is not in transit from a point merce Clauses of the Constitution as they outside of Oklahoma. apply to the power of the states to levy a tax on commerce between the states. ¶28 The trial court found that all the gas stored at North Hopeton originates within the ¶31 The United States Supreme Court has state of Oklahoma. That finding is supported addressed this conflation of the two constitu- by ample evidence and is sufficient to remove tional provisions, saying that while it has the gas from the reach of this statute. For the treated whether property in transit in interstate reasons stated later in this opinion, the fact that commerce has sufficiently come to rest in a the assessment was based upon an allocation state for purposes of subjection to a property to each shipper of the gas stored at North tax as a Commerce Clause question, the bare Hopeton does not alter the fact that all the gas question whether such property has tax situs in stored in that facility physically originated in a state for the purpose of subjection to a prop- this state. erty tax is one of due process.28 The central ¶29 MGE also argues that gas stored at North concern of the Due Process Clause is the Hopeton does not have a tax situs in Oklahoma fundamental fairness of governmental activity, under federal law because it is in interstate not the protection of interstate commerce from commerce. Whether property has a tax situs in discrimination.29 23 a particular state is a question of due process. ¶32 While the Due Process Clause and the The United States Supreme Court has described Commerce Clause operate in tandem “to main- the necessary connection between property to tain and advance the idea of a national and be taxed and the taxing jurisdiction for international economy,”30 the analytical frame- purposes of due process as follows: work for determining conformity to the two “When we speak of the jurisdiction to tax provisions is not identical. Both provisions land or chattels as being exclusively in the have a requirement that there be a nexus state where they are physically located, we between the property to be taxed and the tax- mean no more than that the benefit and ing state. Under the Due Process Clause, that protection of laws enabling the owner to nexus requirement is minimal, while under the enjoy the fruits of his ownership and the Commerce Clause it is substantial. We hold power to reach effectively the interests pro- that despite the parties’ intention that MGE’s tected, for the purpose of subjecting them stored natural gas will ultimately be delivered to payment of a tax, are so narrowly restrict- to Missouri, its sojourn in storage in Oklahoma ed to the state in whose territory the physi- gives it at least a minimal nexus to this state cal property is located as to set practical sufficient to establish tax situs and to survive a limits to taxation by others.”24 due process attack. The Court has also said simply that “a state tax ¶33 The record in this case shows that large comports with the Due Process Clause if ‘the volumes of gas are stored in Woods County for taxing power exerted by the state bears fiscal a substantial part of the year, being gradually relation to protection, opportunities and bene- injected for months and then being gradually fits given by the state.’” 25 The relevant question withdrawn over another period of months. The is whether the property sought to be taxed has contested assessment is not a tax on property sufficient contact with the taxing jurisdiction to that is merely passing through Woods County 26 provide a fair basis for the levy. to an out-of-state destination. It is a tax on tan- ¶30 Instead of considering whether the gas gible personal property actually located in held in storage at North Hopeton had the kinds Woods County on the assessment dates.31 The of contacts with the state making state taxation stored volumes of gas receive the continuous “fair,” the trial court concluded that because protection, benefits and opportunities afforded the gas stored at North Hopeton is in interstate by the state and county throughout the tax commerce, it cannot have a tax situs in Okla- year. While the volume of gas present at North homa. There is a great deal of confusion in this Hopeton fluctuates, some volume is there at all area because the term tax situs has often been times. Even if the gas is “in transit” in used in deciding that a tax does or does not interstate commerce for federal regulatory conform to the strictures of the Commerce purposes, it is present in Woods County with a Clause.27 In doing so, courts have blurred the sufficient degree of permanence to satisfy the distinction between the Due Process and Com- dictates of due process.

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2441 VI consumption. At no point in the transportation THE NATURAL GAS STORED AT NORTH or storage process did MGE transfer title to the HOPETON IS OWNED IN COMMON BY gas to Panhandle. Either the shippers own the ALL SHIPPERS WITH STORAGE gas wherever it is in the system or no one owns VOLUMES ON THE PANHANDLE it. The latter is untenable. PIPELINE SYSTEM ¶38 The general rule is that where fungible ¶34 While MGE agrees that it owns natural goods belonging to different persons are so gas in the Panhandle system and that gas is intermingled as to be undistinguishable, stored at North Hopeton, it denies that Asses- whether by consent of the owners or by some- sor has proved that it owned even a single one’s wrongful act, the owners become tenants molecule of gas stored at North Hopeton on in common of the mass.32 The commingling of the assessment dates. The trial court agreed, a fungible commodity does not affect owner- concluding that Assessor had produced no ship unless the parties intend to transfer title. documentary evidence establishing that MGE The Uniform Commercial Code provides in the had title to the assessed volumes of gas and context of warehouse storage that fungible, that the allocations provided by Panhandle are commingled goods are owned in common.33 not themselves evidence of ownership. The Application of this rule averts the absurd result trial court further found that there was no cor- that ownership of gas can be established at the relation between the volumes of gas MGE inception of the transportation process and at placed into the system on the pipeline leg con- the end of the transportation process, regard- nected to North Hopeton, the only gas that less of the impossibility of tracing particular could physically be placed into storage there, molecules of gas, but cannot be established in and the volumes of gas assessed. MGE con- the course of the transportation process simply tends that these nisi prius findings and conclu- because molecules cannot be traced. sions are supported by substantial evidence ¶39 The trial court ruled that Panhandle’s and must be affirmed. allocation of storage volumes to each shipper is ¶35 MGE reminds us that from the moment not evidence of ownership. This is correct, but gas enters the pipeline at the suppliers’ facility, misconstrues the purpose of Panhandle’s allo- it is commingled with every other molecule of cation. An “allocation” is “the action of appor- gas already in the pipeline. MGE contends that tioning,” and to “apportion” means “to divide it owns particular molecules of gas, but because and assign in proportion” or “to divide and 34 individual molecules of gas cannot be traced, distribute proportionately.” Ownership is a Panhandle does not and cannot quantify a vol- condition precedent to an allocation; it is not ume of gas and identify a particular shipper as proved by an allocation. that volume’s owner. Thus MGE contends that ¶40 Having concluded that gas held in Field while it owns gas in the system, its ownership Zone storage facilities is owned in common by of gas at any particular location on the system all shippers, we turn now to whether Assessor cannot be proved. established that the allocation formula she ¶36 Assessor argues that it does not have to used reasonably apportions the gas stored at prove the location of any particular molecules North Hopeton among shippers with positive of gas to assess MGE for gas stored at North storage account balances. Assessor contends Hopeton. Assessor contends that MGE is enti- that because access to gas in a particular stor- tled to delivery of a volume of gas, not delivery age facility is not limited to a shipper’s pur- of particular molecules, and that it owns the chases on the leg of the pipeline connected to volume to which it is entitled without regard to that storage facility, the amount taxable to each where any particular molecules happen to be. shipper should be determined by an allocation She urges the court to hold that all gas in Field to each storage facility of a portion of each Zone storage, regardless of where it is stored, is shipper’s system-wide storage account vol- owned in common by all shippers with posi- ume. The way the system works, each shipper tive storage account balances. is simply entitled to a volume of gas thermally equivalent to that which it placed into storage ¶37 We agree with Assessor. The record regardless of where it was placed when stored clearly shows that MGE took title to purchased or from where it is taken when removed from gas at the wellhead and was deemed to be the storage. Consequently, Assessor argues, there owner of delivered gas at the point of ultimate is no need for there to be a correlation between

2442 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 the volumes purchased by MGE upstream of has evolved substantially and fitfully over the North Hopeton and the volumes upon which it years.39 The Court’s attitude toward state taxa- is taxed. tion of interstate commerce has alternated between a blanket prohibition and varying ¶41 The allocation Panhandle provided to degrees of accommodation. In its 1977 opinion Assessor was prepared in accordance with a in Complete Auto Transit, Inc. v. Brady,40 the provision of a FERC Tariff containing a for- Court fashioned a four-part test that continues mula for the calculation of storage volumes for today to govern the validity of state taxes state ad valorem tax purposes.35 MGE argues under the Commerce Clause. A tax will be sus- that the existence of this formula in the FERC tained under Brady against a Commerce Clause Tariff does not control the validity of the chal- challenge if it (1) is applied to an activity with lenged tax under our fundamental and statu- a substantial nexus with the taxing state; (2) is tory law and we agree. While the FERC- fairly apportioned; (3) does not discriminate approved state ad valorem tax allocation for- against interstate commerce; and (4) is fairly mula has no bearing on the validity of the related to services provided by the state.41 challenged tax under our state’s laws, it does, in the event a state determines that storage gas ¶44 Underlying the Brady analysis and con- can be taxed ad valorem, present a reasonable temporary Commerce Clause jurisprudence in allocation method approved by the federal general is the conviction that those engaged in regulatory agency with special knowledge of interstate commerce must expect to pay their the workings of the natural gas industry in just share of state tax burdens.42 The decisive general and of the transportation and storage issue is “whether the State has exerted its facets of the natural gas business. Assessor’s power in proper proportion to . . . [taxpayer’s] expert witness, an independent accountant activities within the State and to . . . [taxpay- and auditor for the oil and gas industry, con- er’s] consequent enjoyment of the opportuni- firmed the accuracy of Panhandle’s figures. ties and protections which the State has afford- The allocation formula used by Panhandle ed.”43 While the Court has applied the Brady resulted in a proportionate distribution of test to many kinds of taxes,44 it has never storage volumes between storage facilities and addressed whether the Brady test applies to an among shippers with storage account balances. ad valorem tax on goods in the process of being It is a fair and reasonable method of transported in interstate commerce. apportioning ownership among common ¶45 Because the Supreme Court has not yet owners. decided a Commerce Clause challenge to an VII ad valorem tax on goods in the transportation THE COMMERCE CLAUSE DOES NOT process under Brady, the parties have sug- BAR THE CHALLENGED ASSESSMENT gested that we apply the test used prior to Brady when interstate commerce was held to ¶42 The Commerce Clause, Article I, §8, cl. 3, be immune from state taxation. That test of the United States Constitution, expressly looked at whether there was an interruption in authorizes Congress to “regulate Commerce transit that took the goods out of interstate with foreign Nations, and among the several commerce. That determination was made States.” Its purpose is to create “an area of based on subjective factors related to the rea- trade free from interference by the States.”36 sons for the interruption in transit.45 Today, as Although the Commerce Clause says nothing both MGE and Assessor recognize, even if about the protection of interstate commerce in MGE’s storage gas is in transit in interstate the absence of action by Congress, it has long commerce, that does not automatically mean been recognized as having both an affirmative that a tax levied against it would contravene and a negative sweep.37 By granting to Con- the Commerce Clause because “interstate com- gress the power to regulate interstate commerce may be required to pay its fair share of merce, the Commerce Clause by negative state taxes.”46 Correspondingly, a determina- implication prohibits the states from enacting tion that MGE’s storage gas is “at rest” in measures, including taxes, that advantage local Oklahoma would not mean that it is beyond business.38 the reach of the Commerce Clause. “The Court ¶43 The United States Supreme Court’s inter- has . . . long since rejected any suggestion that pretation of the Commerce Clause in relation a state tax or regulation affecting interstate to the states’ power to tax interstate commerce commerce is immune from Commerce Clause

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2443 scrutiny because it attaches only to a ‘local’ or omy would be grave.50 MGE’s storage gas can- intrastate activity.”47 not be characterized as goods that are merely passing through the state. Large volumes of ¶46 While the Supreme Court has cautioned gas are stored in Woods County for a substan- state and lower federal courts to follow directly tial part of the year, being gradually injected applicable precedents that may appear to have for months and then being gradually with- been rejected in some other line of cases and drawn over another period of months. While leave to it the prerogative of overruling its own 48 the volume of gas increases and decreases over decisions, application of a traditional rule that the year, some volume is stored in the county leads only to the inconclusive result that goods at all times during the year. The gas in storage are either in transit or at rest would not resolve at North Hopeton thus has a substantial pres- the issue before us today. We will hence review ence in Woods County and is not in transit in the constitutionality of the tax in this case such a way as to invoke the protection of the using the Brady analysis. Commerce Clause. 49 ¶47 MGE’s task at nisi prius was to prove by ¶51 To the extent that the subjective factors clear and convincing evidence that at least one critical to the Blasius analysis retain a role of the four prongs of the Brady test was not under the Brady test, they cut both ways on the met. The trial court concluded that the tax question of nexus. The record indicates that failed to meet any of the four prongs. We dis- MGE and Panhandle each has its own indepen- agree and hold that the contested tax meets all dent reasons for storing gas. A pipeline can four prongs of the Brady test and is valid under only move so much gas at a time and there the Commerce Clause. would be insufficient gas to meet peak winter A. First Prong - Substantial Nexus demand if gas were not stored. This is critical to both the carrier and the shipper. For MGE, ¶48 The first prong of the Brady test requires storage allows it to accumulate gas when that there be a substantial nexus between the demand is low so that it can fulfill its custom- activity or property sought to be taxed and the ers’ needs and meet the requirements of state taxing state. The trial court concluded that (Missouri) regulators for gas during the winter. there was not such a nexus between MGE’s For Panhandle, storage is used to maintain storage gas and Woods County because the gas pressure in its system, which is the force that was at all times while in storage in the posses- moves gas through the pipe. sion and control of a common carrier (Pan- handle) and committed to being transported ¶52 The record shows that MGE had no con- out of state. trol over the gas in storage other than the tim- ing of its return to the pipeline for further ¶49 MGE argues that its only contact with transportation, nor did MGE have the ability to Oklahoma is its contractual relationship with alter the ultimate destination of the gas. Never- Panhandle, a common carrier that transports theless, storage of gas is not only anticipated the gas out of state and stores the gas as part of by MGE, but intended. While MGE cannot that process. According to MGE, the trial court direct the pipeline to use the Woods County was legally correct in concluding that this type facility, it contracts for storage knowing that of contact with Oklahoma was insufficient to the Woods County facility is one of two Field establish a substantial nexus. MGE also argues Zone storage facilities. If gas is stored there, that regardless of how long its gas is present in and it is, MGE cannot claim it does not intend Woods County, it is always deemed by Federal for that to happen. Were the court making the Energy Regulatory Commission (“FERC”) reg- old “in transit” or “at rest” determination, this ulations to be “merely passing through the record would make that determination very state” and therefore cannot have any nexus to difficult. Inasmuch as the subjective factors are Oklahoma, let alone a substantial one. inconclusive, the nexus issue is better decided on the basis of the objective fact that Panhandle ¶50 The nexus requirement ensures that, stored gas on behalf of MGE and that a certain with respect to goods in interstate commerce, a amount of it was held at North Hopeton at all state will not be able to exact a fee simply for times during the tax years in question. the privilege of passing through the state. If a state could tax such movement, every state ¶53 The trial court concluded that when a through which goods passed could levy the party’s only contacts with a taxing state are by same tax and the impact on the national econ- mail or common carrier, a substantial nexus is

2444 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 lacking as a matter of law. This rule was fash- storage facilities.58 This was remedied in Order ioned by the Supreme Court in National Bellas No. 636, which required pipelines to offer Hess, Inc. v. Department of Revenue of Illinois.51 access to their storage capacity on an open- There the Court held that mail-order sellers access basis.59 “By defining transportation to without a physical presence in a state do not include storage (citation omitted), the Com- have a substantial nexus with the state if they mission made storage subject to the same non- do no more than communicate with customers discrimination requirements as capacity in the taxing state by mail or common carrier. rights.”60 (internal quotation marks omitted) The common carrier in National Bellas Hess was The court’s decision on whether a state tax on the telephone. We do not view MGE’s contacts storage gas contravenes the Commerce Clause with the state of Oklahoma through storage at has nothing to do with these federal regulatory the North Hopeton facility as analogous to the concerns. communications made by means of telephone ¶56 The dissent nevertheless continues to found in National Bellas Hess. Unlike the spo- insist that FERC’s inclusion of storage in the radic communications with random consum- definition of transportation compels us to con- ers in a state deemed lacking in National Bellas clude that the taxation of stored natural gas is Hess, MGE’s storage gas has a substantial inconsistent with the Commerce Clause. To physical presence in the state throughout the reiterate, this conclusion is not borne out by an year. examination of FERC Order 636. We will let ¶54 MGE next points out that federal law FERC speak for itself: designates storage as part of the process of “The Commission envisions a future gas transporting natural gas between states and market where buyers and sellers can meet concludes that gas in storage is per se in transit to fashion deals according to their needs, in interstate commerce under federal law. with no decline in, and indeed with Accordingly, MGE argues, this court must enhancement of, the quality and reliability view gas in storage as “merely passing through of service for gas consumers. . . . To that end, the state” regardless of the actual circumstanc- the Commission is amending part 284 [18 CFR es of its storage. MGE cites a number of cases 284] in several ways to upgrade pipeline ser- in which federal courts have indeed recognized vices used to transport gas, whether sold by a that storage of natural gas is an important com- pipeline or another merchant. This will ponent of interstate gas transportation,52 but provide all gas purchasers with improved none of the cited cases bears on the question of access to all gas sellers whether or not the whether the taxation of stored gas destined gas purchasers want a “no-notice” firm to be shipped out of state conforms to the transportation service. In brief, the Com- Commerce Clause.53 mission is making ten changes in part 284. ¶55 MGE next cites a FERC regulation that . . .. Fifth, the Commission is amending § 284.1 defines the transportation of natural gas to to define transportation as including storage.”61 include storage.54 MGE argues that this means (emphasis added) gas must be treated as in transit while stored and: and not subject to local taxation. The FERC regulation does not have this effect. FERC “Because storage is now defined as trans- treats storage as part of transportation in order portation, under § 284.1(a), which must be to ensure open access to storage by non-pipe- unbundled from sales, the pipeline itself line owners of natural gas who use the pipeline may not retain, or hold, any storage capac- system. “Federal regulation of the natural gas ity downstream of the place where it industry is . . . designed to curb pipelines’ unbundles in connection with the provid- potential monopoly power over gas transpor- ing of any of its own sales services. Hence, tation.”55 In FERC Order No. 436,56 FERC the pipelines with downstream storage should imposed common carrier status on natural gas have storage available to sell to transportation pipeline companies, conditioning their receipt customers on an open access, nondiscriminato- of a critical certification on their “acceptance of ry, contract basis. This will enable open non-discrimination requirements guaranteeing access transportation customers to buy gas equal access for all customers” to certain trans- and store it for future use. This will enable all portation services.57 Order No. 436 did not shippers to more effectively manage their gas address the problem of unequal access to gas supply and procurement programs.”62

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2445 ¶57 Unlike the dissent, we can find nothing fairly apportioned is determined by examining in the language or intent of Order 636 that whether it is internally and externally consis- compels us to reach the conclusion that state tent.71 A tax is internally consistent if it is struc- taxation of stored natural gas violates the Com- tured so that if every State were to impose an merce Clause. That Order’s inclusion of stor- identical tax, no multiple taxation would age in the definition of transportation is simply result.72 To be externally consistent, the State part of an overhaul of FERC’s regulations with must tax “only that portion of the revenues the objective of restructuring the services pro- from the interstate activity which reasonably vided by interstate natural gas pipelines “to reflects the in-state component of the activity ensure that transportation service is equal in being taxed.”73 quality for all gas supplies, whether the customer purchases the gas from the pipeline or ¶60 Decisions discussing the fair apportion- from another supplier.”63 ment requirement generally involve taxed activities that have multi-state facets, rather ¶58 The dissent cites Supreme Court juris- than taxed property. An ad valorem tax is prudence which recognizes that gas storage assessed only on property located within a facilities like that at North Hopeton are a criti- single state. The record clearly shows that there cal part of the transportation of natural gas for was a certain volume of gas stored in Woods its sale and resale in interstate commerce. We County on the assessment dates at issue. No disagree that those cases support the invalida- other state could levy an ad valorem tax on gas tion of the ad valorem tax at issue here. In Sch- located in Woods County. MGE contends that neidewind v. ANR Pipeline Co.,64 a natural gas multiple states could assess taxes on the stor- pipeline company and a natural gas storage age gas by using different assessment dates or company challenged a Michigan state statute allocation formulas. That argument is not per- that authorized the Michigan State Public Ser- suasive. No states other than Kansas and Okla- vice Commission to regulate the issuance of homa have a Field Zone storage facility and securities by the companies. Before holding Kansas has recently rejected the imposition of that the state statute was preempted, the Court an ad valorem tax on storage gas based upon a first pointed out that FERC had jurisdiction state statute that exempts public utility compa- over the respondent gas storage company nies from such taxation.74 The Director of Ad because it was a natural gas company under Valorem Tax for Panhandle’s parent corpora- 65 the Natural Gas Act of 1938. The Court tion testified that the allocation methodology described storage as “a necessary and integral used by Panhandle to determine the amount part of the operation of piping gas from the and ownership of gas at the two Field Zone area of production to the area of consump- storage facilities forecloses multiple-state taxa- 66 tion.” The Court’s holding had nothing to do tion. The tax is hence internally consistent. with the validity of ad valorem taxation under MGE disputes that it owns any of that gas, but the Commerce Clause. The dissent also cites that is a distinct issue from whether the county 67 Maryland v. Louisiana, which held a tax to be is taxing gas not present in the county. invalid under the Commerce Clause because it was discriminatory.68 The Court did not invali- ¶61 A tax is externally consistent if it does date the tax for lack of substantial nexus and not reach beyond that portion of the value of even suggested in dictum that some of the gas the transaction, enterprise, or property that is at issue might have had a substantial nexus fairly attributable to economic activity within with the state even though it was in interstate the taxing state. Woods County is seeking to commerce.69 tax gas located in Woods County and nowhere else. The tax is hence externally consistent. B. Second Prong - Fair Apportionment C. Third Prong - Discrimination ¶59 The second prong of the Brady test requires that the tax be fairly apportioned to ¶62 The third prong of the Brady test looks at activities carried on by the taxpayer within the whether the tax discriminates against interstate state. The trial court did not address this prong. commerce. The trial court concluded that the MGE asserts that it is not met. The “central assessments in this case are discriminatory purpose behind the apportionment require- because they impute ownership of property to ment is to ensure that each State taxes only its MGE “irrespective of contracts, tariffs, and fed- fair share of an interstate transaction.”70 Wheth- eral regulations which restrict shippers from er a state tax affecting interstate commerce is claiming ownership of [the gas].” MGE con-

2446 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 tends that the tax discriminates against inter- unrestricted as that for domestic corpora- state commerce because gas in storage is in tions.”78 The Commerce Clause does not shield interstate commerce and any storage was tem- property and activities connected to interstate porary. MGE claims the tax is being assessed commerce from having to contribute to the simply because its gas is deposited into an general cost of providing governmental services interstate pipeline system. even if those costs are not readily attributable to the taxed property or activity.79 “The simple ¶63 In the Commerce Clause context, dis- but controlling question is whether the state crimination “means differential treatment of has given anything for which it can ask return.”80 in-state and out-of-state economic interests The “relevant inquiry” is not “the amount of that benefits the former and burdens the lat- 75 the tax of (sic) the value of the benefits alleg- ter.” The Supreme Court has said, “Under our edly bestowed as measured by the costs the consistent course of decisions in recent years a State incurs on account of the taxpayer’s activ- state tax that favors in-state business over out- ities,”81 but whether the tax is “reasonably of-state business for no other reason than the related to the extent of the taxpayer’s contact” location of its business is prohibited by the with the taxing jurisdiction.82 The tax in this 76 Commerce Clause.” A discriminatory tax is case operates on the presence of personal prop- one that provides a direct commercial advan- erty in Woods County. It is taxed to the same 77 tage to local business. Oklahoma’s ad valorem extent as all other personal property in the tax is a non-discriminatory property tax. It falls county. MGE is therefore being asked to shoul- on anyone owning property located within the der no more than its fair share for the support state on the assessment date for the support of of government-provided services and the receipt government services that benefit all persons of “the advantages of a civilized society.”83 and property. Assessor testified that stored gas destined for sale within the state is similarly ¶66 To summarize, we find nothing in the subject to the state’s ad valorem tax. MGE record to support the trial court’s conclusion made no showing that Woods County or any that the Brady test is not met in this case other other county in Oklahoma assesses the state’s than the bare fact that the natural gas at issue is ad valorem tax in a manner that discriminates in some sense in interstate commerce. We against out-of-state business. The tax in this therefore hold that the Woods County tax on case does not discriminate against interstate the natural gas in storage at North Hopeton commerce. conforms to the Commerce Clause and is constitutionally valid.84 D. Fourth Prong - Reasonable Relationship to Services VIII MGE’S GAS STORED AT NORTH ¶64 The fourth prong of the Brady test is sat- HOPETON WAS NOT COVERED BY THE isfied if the tax is reasonably related to the FREEPORT EXEMPTION services provided by the state to the taxpayer. MGE points out that it has no offices or ¶67 The provisions of Article 10, §6A of the employees in Oklahoma and contends that it Oklahoma Constitution, known as the Freeport does not use the state’s infrastructure. Since the Exemption, state in pertinent part: risk of loss of the gas from a catastrophic event § 6A. Tangible personal property mov- is on the pipeline, MGE claims it does not ben- ing through State - Situs. efit from fire or police protection. Hence, MGE argues that the fourth prong of the Brady test is A. All property consigned to a consignee in not satisfied by the tax at issue. this State from outside this State to be forwarded to a point outside this State, which ¶65 The state’s ad valorem tax is a general is entitled under the tariffs, rules, and regu- revenue tax imposed for the support of local lations approved by the Interstate Com- governments. It is not a user fee or assessment merce Commission to be forwarded at designed to reimburse the state for the use of a through rates from the point of origin to determinable quantity of government-owned the point of destination, if not detained or government-provided facilities and services. within this State for a period of more than The Supreme Court has said that the use by ninety (90) days, shall be deemed to be foreign corporations of local opportunities property moving in interstate commerce, “under the protection and encouragement of and no such property shall be subject to local government offers a basis for taxation as taxation in this State; provided, that goods,

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2447 wares and merchandise, whether or not ¶71 The court has considered the relation- moving on through rates, shall be deemed ship between the first and second clauses of to move in interstate commerce, and not the Freeport Exemption in several decisions. In subject to taxation in this State if not In re Assessment of 1969, Crescent Precision Prod- detained more than nine (9) months where ucts Inc.,88 the court was asked to decide such goods, wares and merchandise are so whether the second clause of the Freeport held for assembly, storage, manufacturing, Exemption incorporates the consignment re- processing or fabricating purposes; pro- quirement of the first clause (“All property vided, further, that personal property con- consigned to a consignee in this State from signed for sale within this State must be outside this State to be forwarded to a point assessed as any other personal property.” outside this State, . . .).”89 The court held that (emphasis added) the consignment requirement does not extend 90 ¶68 MGE argues that its natural gas in stor- to and limit the second clause. In arriving at age falls under the terms of the second clause that conclusion, the court said, of the Freeport Exemption, which exempts “It is apparent that §6A consists of three from taxation goods, wares and merchandise, grammatically complete and independent whether or not moving on through rates, if clauses, each with its own subject, which such property is not detained more than nine are mutually supportive of and comple- months in this state for specified purposes, mentary to each other and yet each express- including storage. The trial court ruled that ing a complete thought with no ambigui- natural gas comes within the meaning of the ties or absurdities. . . . Insofar as the facts of phrase “goods, wares and merchandise,” but this case are concerned, clauses 1 and 2, construed the exemption to require that the except as being mutually supportive of and property for which the exemption is sought complementary to each other, are indepen- originate outside of Oklahoma. The trial court dent and coordinate, having different sub- found that all of MGE’s natural gas originated jects, and each capable of standing alone. It within Oklahoma and hence ruled that the thus cannot be said that the first clause Freeport Exemption did not apply to MGE’s modifies the second clause or that the limi- storage gas. MGE supports the trial court’s tations of the first clause are ‘carried over’ definitional decision, but argues that the out- into the second one.”91 of-state origin requirement, which expressly appears only in the first clause of the Freeport ¶72 The property in Crescent was purchased Exemption, should not be read into the second by the taxpayer outside of Oklahoma and clause.85 shipped to its plant in Tulsa, so the question of the property’s state of origin was not at issue. ¶69 Assessor invites the court to reverse the trial court’s decision that natural gas falls ¶73 A few years after this decision, the court within the meaning of the phrase “goods, was urged in Austin, Nichols & Co., Inc. v. Okla- wares and merchandise” and hold that the homa County Board of Tax-Roll Corrections92 to Freeport Exemption is unavailable to MGE for find exempt under §6A manufactured goods that reason as well as for the gas’s in-state ori- shipped into Oklahoma from New York and gin. Assuming, but not deciding, that the trial stored for fewer than nine months at a ware- court correctly construed the phrase “goods, house in Oklahoma until sold to wholesalers in wares and merchandise” to include natural Oklahoma and surrounding states. The Asses- gas, we can and do dispose of the Freeport sor agreed that the goods sold to wholesalers Exemption issue on the basis of the property’s in surrounding states were exempt under §6A, place of origin and will therefore leave the but argued that the goods sold to wholesalers definitional question to another day. in this state were not. The manufacturer argued that the limitation to property destined to leave ¶70 Grammatically, the second clause of the the state found in the first clause of the exemp- Freeport Exemption is a proviso within a larger tion should not be read into the second clause provision consisting of three clauses. While a inasmuch as the two are independent clauses proviso is usually presumed to restrain, quali- and operate separately. fy, limit, or define only the provision to which it is attached,86 it may be considered tanta- ¶74 The court in Austin, Nichols & Co. agreed mount to an independent enactment if the with the assessor that §6A is applicable only to context requires it.87 goods, wares and merchandise shipped to points

2448 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 outside the state even though there is no lan- constitutionally exempt from personal guage in clause 2 expressly stating that limita- property taxation.”98 (emphasis added) tion.93 While adhering to its earlier statement in ¶77 Having reviewed our prior decisions Crescent that the three clauses of §6A are opining upon the singular purpose of the Free- independent and can stand alone, the court port Exemption and considering the plain lan- clarified that the provision as a whole has a guage of the provision, we hold that it was the singular purpose: intent of the drafters and the people to limit “The language relating to the separate application of the second clause, like the first, treatment of the three paragraphs in Cres- to property originating outside of this state. As cent . . . relates to specific language con- the court said in Crescent, “the whole object of tained in one paragraph, ‘consigned’ or [§6A is] . . . to exempt property moving through ‘consignee’, and not in the other, while in Oklahoma from one State to another.”99 Prop- the case under consideration the whole object erty that originates at a location in Oklahoma, of [§6A is] . . . to exempt property moving stops at another location in Oklahoma, and through Oklahoma from one State to another.”94 then moves to a destination outside of Okla- (emphasis added) homa does not “move through Oklahoma from one State to another.” Moreover, property that ¶75 The court in Austin, Nichols & Co. relied originates in Oklahoma cannot “not acquire for support on the ballot title passed by the situs in Oklahoma” because it begins with situs Legislature at the time the Freeport Exemption in Oklahoma. was placed before the people for a vote. The ballot title states: ¶78 MGE points out that under the Freeport Exemption’s second clause, property is to be “Shall a Constitutional Amendment deemed to be moving in interstate commerce if Amending Article X of the Constitution of it is not detained in Oklahoma for more than the State of Oklahoma, by adding a new nine months. MGE contends that this portion section thereto to be designated as Section of the provision eliminates the requirement of 6A, providing that tangible personal prop- the first clause that the property must originate erty moving through Oklahoma from one out of state. We disagree. The cited language State to another State shall not acquire situs simply means that an interruption for nine within Oklahoma for purposes of taxation, months or less shall not take the property out be approved by the people?”95 of interstate commerce, but it does not elimi- A ballot title is a contemporaneous construc- nate the requirement that the property origi- tion of a constitutional amendment and as such nate outside of the state. In both Crescent and weighs heavily in determining an amend- Austin, Nichols & Co., the property at issue had ment’s meaning.96 The ballot title talks of prop- been moving in interstate commerce when it erty moving from one State to another through entered Oklahoma from another state. The Oklahoma. The court interpreted this to mean court said that being in interstate commerce that the property had to be destined to leave was not enough to bring the property within the State. the protection of the Freeport Exemption. The property also had to have an out-of-state loca- ¶76 Our most recent pronouncement involv- tion as its destination. Similarly, an out-of-state ing clause 2 of the Freeport Exemption is Inde- origination is required. pendent School District No. 9 of Tulsa County v. Glass.97 Although the decision did not require ¶79 MGE argues that even if the Freeport the court to construe the language of clause 2, Exemption applies only to property that origi- the court’s description of that clause assumes, nates outside of Oklahoma, the trial court was but does not decide, that the out-of state wrong in concluding that all of its gas origi- origination requirement of the first clause is nated within Oklahoma. MGE argues that if not limited to that clause: the assessment is to be based on a system-wide allocation rather than on where gas purchased “Inventory of goods, wares and merchan- by MGE could physically be located, then to be dise owned by a manufacturer and shipped consistent the physical origination of the gas to a manufacturer within the state from out- should be ignored for Freeport Exemption pur- side the state which are processed by the poses as well and all of its gas should be manufacturer within nine months are deemed to originate at the Kansas location

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2449 where MGE “contractually” nominates gas ¶83 WINCHESTER, C.J., EDMONDSON, into and out of storage. V.C.J., and HARGRAVE, OPALA, TAYLOR and REIF, JJ., concur. ¶80 We disagree. The contested assessment was made on a theory of common ownership ¶84 KAUGER and COLBERT, JJ., concur in of the natural gas at North Hopeton on the result. assessment dates. All of that gas originated in ¶85 WATT, J., dissents. Oklahoma. Gas originating outside of Oklaho- ma was not apportioned to MGE. The location 1. Identified herein are only counsel for the parties who have entered an appearance in this cause (as required by Okla. Sup. Ct. Rule from which MGE nominates gas into and out 1.5(a), 12 O.S. 2001, Ch. 15, App.1) and whose names appear on the of storage is immaterial. The critical question is appellate briefs. 2. The pertinent provisions of 68 O.S. 2001 §2880.1 state: where in the real, physical world the gas stored “A. Both the taxpayer and the county assessor shall have the at North Hopeton originates and that place is right of appeal from any order of the county board of equalization to the district court of the same county, . . . In case of appeal Oklahoma. That is what the trial court found the trial in the district court shall be de novo. . . .” and the record contains ample competent evi- 3. For the terms of the Freeport Exemption, see text at ¶67. 4. The Field Zone is the geographic area where natural gas is pro- dence supporting that decision. It is not incon- duced and gathered for sale to gas distributors. sistent to allocate to MGE for purposes of ad 5. The Market Zone is the geographic area where gas is sold to consumers. valorem taxation gas at North Hopeton which 6. Patel v. O.M.H. Med. Ctr., Inc., 1999 OK 33, ¶17, 987 P.2d 1185, it owns in common with all other shippers 1192, cert. denied, 528 U.S. 1188, 120 S. Ct. 1242, 146 L. Ed.2d 100 (2000). using the Panhandle pipeline, while at the 7. A special proceeding differs from other civil actions in the man- same time recognizing that all of the gas of ner of pleading, practice and procedure prescribed by law. Special proceedings are not governed by the general regime of pleadings. all of the shippers stored at North Hopeton Ward Petroleum Corp. v. Stewart, 2003 OK 11, ¶7, 64 P.3d 1113, 1115; originates in Oklahoma. City of Tahlequah v. Lake Region Elec., Co-op., Inc., 2002 OK 2, ¶4, 47 P.3d 467, 474 (Opala, J., joined by Watt, V.C.J., and Kauger and Sum- IX mers, JJ., dissenting). 8. State of Okla. ex rel. Dep’t of Human Services ex rel. Jones v. SUMMARY Baggett, 1999 OK 68, ¶4, 990 P.2d 235, 238; In re Estate of Nelson, 2007 OK CIV APP 81, ¶6, 168 P.3d 235, 238; Weeks v. Cessna Aircraft Co., ¶81 Natural gas is tangible personal proper- 1994 OK CIV APP 171, ¶5, 895 P.2d 731,732 (approved for publication by ty. It has a location and it has an owner. Because Order of the Oklahoma Supreme Court). 9. Ellington v. Horwitz Enterprises, 2003 OK 37, ¶4, 68 P.3d 983, of the physical properties of natural gas, the 984; Taylor v. City of Okla. City, 1989 OK 129, ¶7, 782 P.2d 1363, 1365. particular molecules purchased by a shipper 10. The provisions of Article 10, §6(A), Okla. Const., state in pertinent part: and placed into a pipeline cannot be traced. “Intangible personal property as below defined shall not be That does not and cannot mean the gas has no subject to ad valorem tax or to any other tax in lieu of ad valorem tax within this State: discernable location or owner. Like other tan- * * * * * gible personal property, it has both. We hold (c) Accounts and bills receivable, including brokerage accounts, and other credits, whether secured or unsecured. that the contested tax was an assessment on * * * * * tangible personal, not intangible exempt prop- (f) All interests in property held in trust or on deposit within or without this State, and whether or not evidenced by certifi- erty, that gas stored at North Hopeton is locat- cates, shares, or other written evidence of beneficial owner- ed for ad valorem tax purposes in Woods ship.” 11. Carter v. Rathburn, 1922 OK 105, ¶39, 209 P. 944, 953. County, and that as a commingled, fungible 12. Id. commodity, stored natural gas is owned in 13. Id. 14. The Penguin Dictionary of Accounting 243 (1st ed. 2002); Joel common by all shippers maintaining a positive G. Seigel & Jae K. Shim, Dictionary Of Accounting Terms 11 (3d ed. storage account balance based on a propor- 2000) (“amounts due [a business] on account from customers who have bought merchandise or received services.”); Tingey v. Haisch, 152 tional allocation of volumes. We also hold P.3d 1020, 1024 (Wash. 2007) (“Obtaining the definition of “account today that the trial court erred in ruling that receivable” from a technical business dictionary is consistent with plain meaning analysis.”). the assessed volumes of gas held in storage at 15. 12A O.S. 2001 §1-9-102 (a)(2)(A): North Hopeton are protected from state ad “ ’Account’, except as used in ‘account for’, means a right to payment of a monetary obligation, whether or not earned by valorem taxation by the Commerce Clause of performance: (i) for property that has been or is to be sold, the United States Constitution. Finally, we leased, licensed, assigned, or otherwise disposed of; (ii) for services rendered or to be rendered; . . .” decline to afford relief to MGE under the Free- 16. Resolution Trust Corp. v. Greer, 1995 OK 126, ¶18, 911 P.2d 257, port Exemption inasmuch as we concur in the 263. 17. Price v. Mize, 1981 OK 49, ¶5, 628 P.2d 705, 706 (“A debt is a trial court’s conclusion that this exemption is sum of money due upon either an express or an implied contract.”). See not applicable to MGE’s storage gas. the provisions of 24 O.S. 2001 §§1 and 2, and 25 O.S. 2001 §8, which construed together provide that a debtor’s obligation and a creditor’s entitlement is to the payment of money. The provisions of 25 O.S. 2001 ¶82 THE TRIAL COURT’S JUDGMENT IS §8 state in pertinent part: “... every one who owes to another the per- REVERSED formance of an obligation is called a debtor, and one to whom he owes

2450 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 it is called a creditor.” The debtor/creditor status is further defined in owned in common by the persons entitled thereto and the warehouse 24 O.S.1991 §1, whose terms define a debtor as: “... one who, by reason is severally liable to each owner for that owner’s share. . . .” of an existing obligation, is, or may become, liable to pay money to 34. Websters Third New International Dictionary at 57 and 105, another, whether such liability is certain or contingent.” A creditor is respectively (1961). correspondingly defined in the provisions of 24 O.S.2001 §2, as: “... one 35. The FERC Tariff formula for the determination of storage in whose favor an obligation exists, by reason of which he is, or may inventories for state ad valorem taxes states: become, entitled to the payment of money.” “For purposes of reporting Storage inventories for state ad 18. The word “credit” is used in a variety of contexts and is associ- valorem taxes, . . . [i]nventories in Field Area Storage Facilities ated with such terms as consumer credit, tax credit, line of credit, shall be allocated to all Shippers with inventories [under various extension of credit, full faith and credit, federal credit, confirmed FERC Tariff Rate Schedules], based on the ratio of total Storage credit, transfer credit, offer of credit, etc. For example, the Oklahoma inventories for the state divided by total Storage inventories for Consumer Credit Code defines credit in substantially the form which all states times the Shipper’s total Stored Volume under such we employ here. See 14A O.S. 2001 1-301(7), which states: “’Credit’ Rate Schedules.” means the right granted by a creditor to a debtor to defer payment of 36. Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318, 328, debt or to incur debt and defer its payment.” 97 S. Ct. 599, 606, 50 L. Ed.2d 514 (1977), quoting Freeman v. Hewit, 329 19. Article 10, §6A(f), Okla. Const. See supra note 10. U.S. 249, 252, 67 S. Ct. 274, 276, 91 L. Ed. 265 (1946). 20. That definition states in pertinent part: “A bailment of goods to 37. Quill Corp. v. North Dakota, supra note 29 at 309, 112 S. Ct. be kept by the bailee without reward, and delivered according to the 1904. object or purpose of the original trust. In general, an act by which a 38. Okla. Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 179-80, person received the property of another, binding himself to preserve it 115 S. Ct 1331, 1335-36, 131 L. Ed.2d 261 (1995). and return it in kind. . . . The giving of the possession of personal 39. Several of the justices have expressed impatience with the zig- property by one person to another, with his consent, to keep for the use zag course of the Court’s dormant Commerce Clause jurisprudence. and benefit of the first or a third person.” See Black’s Law Dictionary Justice Souter has charitably described the Court’s understanding of 394 (5th ed. 1979). the dormant Commerce Clause as having “taken some turns.” Okla. 21. State ex rel. Cartwright v. Dunbar, 1980 OK 15, ¶39, 618 P.2d 900, Tax Comm’n v. Jefferson Lines, Inc., supra note 38 at 180, 115 S. Ct. 1331 910. (Scalia, J., joined by Thomas, J., concurring in judgment). Justice Scalia 22. Essex v. Fife, 1917 OK 526, ¶3, 168 P. 814, 815; Broaddus v. Com- has referred sartorially to the various tests created by the Court to mercial Nat. Bank of Muskogee, 1925 OK 527, ¶9, 237 P. 583, 584 (defin- implement the dormant Commerce Clause as “our wardrobe of ever- ing bailment as “a delivery of personalty for some particular purpose, changing negative Commerce Clause fashions.” Am. Trucking Ass’ns, or on mere deposit, upon a contract, express or implied, that after the Inc., v. Michigan Public Service Comm’n, 545 U.S. 429, 439, 125 S. Ct. purpose has been fulfilled it shall be redelivered to the person who 2419, 2426, 162 L. Ed.2d 407 (2005) (Scalia, J., concurring in judgment). delivered it, or otherwise dealt with according to his directions, or kept He has called the Court’s current test “eminently unhelpful” and has until he reclaims it as the case may be.”). expressed his hope that it will someday take “its rightful place in Part 23. Braniff Airways v. Nebraska State Bd. of Equalization and II of the Court’s opinion, among the other useless and discarded tools Assessment, 347 U.S. 590, 599, 74 S. Ct. 757, 763, 98 L. Ed. 967 (1954); of our negative Commerce Clause jurisprudence.” Okla. Tax Comm’n Johnson Oil Refining Co. v. State of Okla., 290 U.S. 158, 162, 54 S. Ct. v. Jefferson Lines, Inc, supra note 38 at 201, 115 S. Ct. 1331 (Scalia, J., 152, 154, 78 L. Ed. 238 (1933); Frick v. Commonwealth of Pennsylvania, joined by Thomas, J., concurring in judgment). Justice Stevens has 268 U.S. 473,488-89, 45 S. Ct. 603, 604, 69 L. Ed. 1058 (1925); Union acknowledged “the uneven course of decisions in this field.” Am. Refrigerator Transit Co. v. Commonwealth of Kentucky, 199 U.S. 194, Trucking Ass’ns Inc. v. Scheiner, 483 U.S. 266, 269, 107 S. Ct. 2829, 2832, 202-03, 26 S. Ct. 36, 37, 50 L. Ed. 150 (1905); Delaware, L. & W.R. Co. v. 97 S. Ed.2d 226 (1987). Justice Thomas has noted the Court’s “decades- Commonwealth of Pennsylvania, 198 U.S. 341, 358, 25 S. Ct. 669, 674, long struggle over the meaning of the nontextual negative command 49 L. Ed. 1077 (1905). of the dormant Commerce Clause.” U.S. v. International Business 24. Curry v. McCanless, 307 U.S. 357, 364, 59 S. Ct. 900, 904, 83 Machines Corp., 517 U.S. 843, 851, 116 S. Ct. 1793, 1799, 135 L. Ed.2d L. Ed. 1339 (1939). 124 (1996). 25. R. J. Reynolds Tobacco Co. v. Durham County, North Carolina, 40. 430 U.S. 274, 97 S. Ct. 1076, 51 L. Ed.2d 326 (1977). 479 U.S. 130, 156, 107 S. Ct. 499, 515, 93 L. Ed.2d 449 (1986), quoting 41. Id. at 279, 97 S. Ct. 1076. Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444, 61 S. Ct. 246, 249, 249- 42. “It was not the purpose of the commerce clause to relieve those 50, 85 L. Ed. 267 (1940) (“A state is free to pursue its own fiscal policies, engaged in interstate commerce from their just share of state tax bur- unembarrassed by the Constitution, if by the practical operation of a den [s].” Oregon Waste Systems, Inc. v. Dep’t of Environmental Qual- tax the state has exerted its power in relation to opportunities which it ity, 511 U.S. 93, 102, 114 S. Ct. 1345, 1351, 128 L. Ed.2d 13 (1994), quoting has given, to protection which it has afforded, to benefits which it has Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 254, 58 S. Ct. conferred by the fact of being an orderly, civilized society.”). 546, 548, 82 L. Ed. 823 (1938). 26. Town of Cady v. Alexander Const. Co., 107 N.W.2d 267, 270 43. Commonwealth Edison Co. v. Montana, 453 U.S. 609, 625, 101 (Wis. 1961) (“Perhaps the concept of situs for tax purposes . . . means S. Ct. 2946, 2957, 69 L. Ed.2d 884 (1981), quoting General Motors Corp. no more than [that] the state [in which] the personal property is v. Washington, 377 U.S. 436, 440-441, 84 S. Ct. 1564, 1568, 12 L. Ed.2d physically present must have sufficient contact or relationship with the 430 (1964), overruled on other grounds, Tyler Pipe Industries, Inc. v. property in order to form in fairness a basis for taxing it.”). Washington State Dept. of Revenue, 483 U.S. 232, 107 S. Ct. 2810, 97 27. See e.g., this court’s decision in Magnolia Petroleum Co. v. Bd. L. Ed.2d 199 (1987). of County Comm’rs of McClain County,1936 OK 527, 63 P.2d 6. 44. Brady, supra note 40 (privilege tax on the sale of transportation 28. Braniff Airways v. Nebraska State Bd. of Equalization, supra services); Okla. Tax Comm’n v. Jefferson Lines, Inc., supra note 38 (sales note 23 at 598-99, 74 S. Ct. 757 (referring to a property tax on aircraft, tax on goods); D.H. Holmes Co. Ltd. v. McNamara, 486 U.S. 24, 108 S. an instrumentality of interstate commerce). Ct. 1619, 100 L. Ed.2d 21 (1988) (use tax on direct mail catalogs printed 29. Quill Corp v. North Dakota, 504 U.S. 298, 312, 112 S. Ct. 1904, out of state); Maryland v. Louisiana, 451 U.S. 725, 101 S. Ct. 2114, 68 1913, 119 L. Ed.2d 91 (1992). L. Ed.2d 576 (1981) (“first-use” tax imposed on certain uses of natural 30. 14A Fletcher Cyclopedia of the Law of Corporations §6912. gas brought into Louisiana); Container Corp. of America v. Franchise 31. See the provisions of 68 O.S. 2001 §2831(a), which state in perti- Tax Bd., 463 U.S. 159, 103 S. Ct. 2933, 77 L. Ed.2d 545 (1983) (corporate nent part: franchise tax); Washington Dept. of Revenue v. Ass’n of Washington “All property, both real and personal, having an actual, con- Stevedoring Cos., 435 U.S. 734, 98 S. Ct. 1388, 55 L. Ed.2d 682 (1978) structive or taxable situs in this state, shall, except as hereinafter (business and occupation tax); Commonwealth Edison Co. v. Montana, provided, be listed and assessed and taxable in the county, supra note 43 (severance tax); Mobil Oil Corp. v. Comm’r of Taxes of school districts, and municipal subdivision thereof, where actu- Vermont, 445 U.S. 425, 100 S. Ct. 1223, 63 L. Ed.2d 510 (1980) (corporate ally located on the first day of January of each year.” income tax applied to “foreign source” dividend income); American 32. The Intermingled Cotton Cases, 92 U.S. 651, 2 Otto 651, 23 Trucking Associations, Inc. v. Michigan Public Services Comm’n, supra L. Ed. 756 (1875); Basin Elec. Power Co-op. v. ANR Western Coal note 39 (annual fee on trucks engaged in intrastate commercial haul- Development Co., 105 F.3d 417 (8th Cir. 1997) (and cases cited therein), ing); Japan Lines Ltd. v. Los Angeles County, 441 U.S. 434, 99 S. Ct. appeal after remand, ANR Western Coal Development Co. v. Basin Elec. 1813, 60 L. Ed.2d 336 (1979) (assuming that the Brady test is applicable Power Co-op., 276 F.3d 957, (8th Cir. 2002); Gilberton Contracting Co. to an ad valorem tax on instrumentalities of commerce (shipping con- v. Hook, 267 F. Supp. 393 (D. Pa. 1967); McDonnell v. Bank of China, tainers) under the foreign Commerce Clause). 33 F.2d 816, 817 (9th Cir.1929). 45. If the interruption was for the convenience or safety of the 33. The provisions of 12A O.S. 2001 §7-207 (b) state in pertinent goods or for “transit reasons,” the goods remained immune from taxa- part: “If different lots of fungible goods are commingled, the goods are tion. If the interruption was for the owner’s business purposes, such as

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2451 to exercise the right to dispose of the goods, the opposite result was 71. Id. reached. 72. Id.; Koch Fuels, Inc. v. State ex rel. Okla. Tax Comm’n, 1993 OK 46. D. H. Holmes Co., Ltd. v. McNamara, supra note 44 at 30-31, 108 140, ¶29, 862 P.2d 471, 478. S. Ct. 1619. Of course, goods that move continuously through a state in 73. Goldberg, supra note 70 at 262, 199 S. Ct. 589. the course of an interstate journey without stopping are no more ame- 74. In re Director of Property Valuation, 161 P.3d 755 (Kan. 2007) nable to local taxation under Brady than they were under the historical (holding that because natural gas companies do not “control and hold analysis, but the reason is not simply that they are “in transit in inter- for resale” natural gas in an underground storage facility, they are not state commerce.” Rather, it is because their actual movement deprives “public utilities” as defined by a state statute which excludes public them of the degree of nexus with the taxing state that would justify the utilities from a certain property tax exemption; since taxpayers did not tax under the first prong of the Brady analysis. meet the statutory definition of a public utility, their natural gas inven- 47. Commonwealth Edison Co. v. Montana, supra note 43 at 615, tory was exempt from ad valorem taxation). 101 S. Ct. 2946. 75. Oregon Waste Syst., Inc. v. Dep’t of Env’tl Quality of State of 48. Rodriguez de Quijas v. Shearson/American Express, Inc., 490 Oregon, 511 U.S. 93, 99, 114 S. Ct. 1345, 1350, 128 L. Ed.2d 13 (1994). U.S. 477, 484, 109 S. Ct. 1917, 1921-22, 104 L. Ed.2d 526 (1989). 76. Am. Trucking Ass’ns, Inc. v. Scheiner, supra note 39 at 286, 107 49. This case presents an “as applied” Commerce Clause challenge S. Ct. 2829. to the state’s ad valorem tax. The burden of proof in a Commerce 77. Northwestern States Portland Cement Co. v. Minnesota, 358 Clause challenge is on the taxpayer who must prove by clear and con- U.S. 450, 458, 79 S. Ct. 357, 362, 3 L. Ed.2d 421 (1959). vincing evidence that application of the state statute to him or her 78. Ford Motor Co. v. Beauchamp, 308 U.S. 331, 334-335, 60 S. Ct. violates the Commerce Clause. 273, 275, 84 L. Ed. 304 (1939). 50. Quill Corp., supra note 29 at 312, 112 S. Ct. 1904. 79. Commonwealth Edison Co., supra note 43 at 623, 101 S. Ct. 51. 386 U.S. 753, 758, 87 S. Ct. 1389, 18 L. Ed.2d 505 (1967), overruled 2946. on other grounds by Quill Corp. v. North Dakota, supra note 29; Nat’l 80. Wisconsin v. J. C. Penney Co. 311 U.S. 435, 444, 61 S. Ct. 246, 246, Geographic Society v. Cal. Bd. of Equalization, 430 U.S. 551, 559, 97 85 L. Ed. 267 (1940). S. Ct. 1386, 1392, 51 L. Ed.2d 631 (1977). 81. Commonwealth Edison Co., supra note 43 at 625, 101 S. Ct. 52. Columbia Gas Transmission Corp. v. Exclusive Gas Storage 2946. Easement, 776 F.2d 125, 129 (6th Cir. 1985); Schneidewind v. ANR 82. Id. at 626, 101 S. Ct. 2946. Pipeline Co., 485 U.S. 293, 295, n. 1, 108 S. Ct. 1145, 1148, n. 1, 99 83. Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U.S. 207, 228, L. Ed.2d 316 (1988). 100 S. Ct. 2109, 2123, 65 L. Ed.2d 66 (1980), quoting Japan Line, Ltd. v. 53. Columbia Gas Transmission Corp. v. Exclusive Gas Storage County of Los Angeles, 441 U.S. 434, 445, 99 S. Ct. 1813, 1820, 60 Easement, supra note 52 at 129 (construing a federal statute to permit L. Ed.2d 336 (1979). the use of eminent domain to acquire underground gas storage facili- 84. The Texas Court of Appeals has issued its opinion in The Peoples ties because “[u]nderground gas storage facilities are a necessary and Gas, Light, and Coke Co. v. Harrison Central Appraisal District, ___S.W.2d integral part of the operation of piping gas from the area of production ___, 2008 WL 4328807 (Tex. App.-Texarkana, Sept. 24, 2008). That deci- to the area of consumption”); Maryland v. Louisiana, 451 U.S. 725, 755, sion, which has not yet been released for publication and is still subject n. 27, 101 S. Ct. 2114, 2134, n. 27, 68 L. Ed.2d 576 (1981) (holding a tax to withdrawal or revision, concludes that the ad valorem taxation of to be invalid under the Commerce Clause because it was discrimina- natural gas in an underground storage facility located in Harrison tory, but stating in dictum that some of the gas might have had a sub- County, Texas, violates the Commerce Clause. The dissent in a footnote stantial nexus with the state even though “[g]as crossing a state line at makes favorable mention of this Texas decision, but we remain unper- any stage of its movement to the ultimate consumer is in interstate suaded by that court’s reasoning. The Texas court first scrutinizes commerce during the entire journey”); Okla. Natural Gas Co. v. Harrison County’s ad valorem tax using the traditional continuity of F.E.R.C., 28 F.3d 1281(D.C. Cor. 1994) (holding that FERC had jurisdic- transit analysis, a test that we reject today as having been superseded tion over a lateral gas pipeline connected to an interstate gas pipeline); by the Supreme Court’s decision in Complete Auto Transit v. Brady. Even Calif. v. Lo-Vaca Gathering Co., 379 U.S. 366, 85 S. Ct. 486, 13 L. Ed.2d if we were to apply the traditional test, we would not be persuaded 357 (1965) (holding that the Federal Power Commission (predecessor that the Woods County tax violates the Commerce Clause based upon to FERC) had jurisdiction of all sales of gas in interstate commerce). the Texas court’s reasoning. The factors considered compelling by the 54. The provisions of 18 C.F.R. §284.2(a) state: “Transportation includes storage, exchange, backhaul, displacement, or other methods Texas court — the identity of the pipeline company as the decision of transportation.” maker with respect to the place of storage and the FERC definition of 55. United Distribution Cos. v. F.E.R.C., 88 F.3d 1105, 1122 (D.C. Cir. transportation to include storage — are not determinative in our view. 1996). For a detailed explanation of our refusal to invalidate the tax here at 56. Order No. 436, Regulation of Natural Gas Pipelines After Par- issue based upon FERC’s inclusion of storage in the regulatory defini- tial Wellhead Decontrol, [Regs. Preambles 1982-85] F.E.R.C. Stats. & tion of transportation, see supra text at page 26, 27. In addition, we Regs. (CCH) ¶ 30,665, order on reh’g, Order No. 436-A, [Regs. Pream- decline to follow the Texas court’s reasoning in concluding that the ad bles 1982-85] F.E.R.C. Stats. & Regs. (CCH)¶ 30,675 (1985), order on valorem taxation of storage gas fails to meet the first and fourth prongs reh’g, Order No. 436-B, [Regs. Preambles 1986-90] F.E.R.C. Stats. & of the Brady test. The Texas appellate court concludes that the taxpayer Regs. (CCH) ¶ 30,688, order on reh’g, Order No. 436-C, 34 F.E.R.C. in that case had no substantial nexus with Texas because it had no ¶ 61,404, order on reh’g, Order No. 436-D, 34 F.E.R.C. ¶ 61,405, order office or employees in that state and because the gas at issue was on reh’g, Order No. 436-E, 34 F.E.R.C. ¶ 61,403 (1986), vacated and placed in storage by the pipeline company. The Texas court states, “We remanded sub nom. Associated Gas Distributors v. FERC, 824 F.2d 981 note again that, as required by the Commission [FERC] regulations, (D. C. Cir.1987), cert. denied, 485 U.S. 1006, 108 S. Ct. 1468, 1469, 99 Pipeline — not Peoples [the taxpayer] — directs that activity [the act of L. Ed.2d 698 (1988). storing gas], and we are to consider not whether Pipeline’s activities 57. United Distribution, supra note 55 at 1123. have a substantial nexus with the State, but whether Peoples’ activities 58. Id. at 1133. do.” We are convinced that the Texas court’s focus on the parties’ 59. Id. activities and their in personam types of contacts with the taxing state is 60. Id. mistaken. The tax at issue is an ad valorem property tax, a tax on prop- 61. Pipeline Service Obligations and Revisions to Regulations Gov- erty where it is located, not on the taxpayer’s activities. In fact, the erning Self-Implementing Transportation; and Regulation of Natural Texas court admits that gas stored under Harrison County, Texas, is Gas Pipelines After Partial Wellhead Decontrol, (Docket Nos. RM91- owned by the taxpayer, but concludes that “the storage of natural gas 11-000; RM87-34-065; Order No. 636), 57 FR 13267-02, 1992 WL 75263 at the North Lansing field is an insufficient nexus when we consider (F.R.) (Thursday, April 16, 1992) (Issued April 8, 1992), 13, 80-13,281. the particular, unique circumstances at hand and the complex relation- 62. Id. at 13,288-13,289. ships among the parties involved.” The dissent in this case comes to a 63. Id. at 13,267. similar conclusion. While this case certainly presents some complexity, 64. Supra note 52. the fundamental question is simple: does the taxpayer own property 65. Id. at 295, 108 S. Ct. 1145, 1148. The Natural Gas Act is codified located in the county seeking to impose the ad valorem tax? It is not at 15 U.S.C. § 717 et seq. whether the taxpayer is personally participating in activities in the 66. Id. at 295, n. 1, 108 S. Ct. 1145, 1148, n. 1. state. Nothing in the Texas appellate court’s decision persuades us that 67. Supra note 53. the answer to the correctly formulated question is anything other than 68. Id. at 756, 101 S. Ct. 2114, 2134. a resounding yes. As for the fourth prong of the Brady test, which the 69. Id. at 756, n. 27, 101 S. Ct. 2114, 2134, n. 27. Texas appellate court also finds unmet, suffice it to say that both the 70. Goldberg v. Sweet, 488 U.S. 252, 261,109 S. Ct. 582, 588, 102 pipeline company and the owner of gas stored in an underground stor- L. Ed.2d 607 (1989). age facility benefit from the state’s services and protection.

2452 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 85. Although MGE, the victorious party below, did not file a coun- gas “is not in transit in such a way as to invoke ter petition-in-error for review of the trial court’s construction of the Freeport Exemption, it did raise the issue in its appellate brief. A suc- the Commerce Clause.” The majority also cessful party below who does not bring an appeal, counter-, or cross- determines that Missouri Gas Energy (MGE), a appeal may, as appellee, press only those errors which, if rectified, would support the correctness of the trial court’s judgment. Bivens v. company which the majority acknowledges State ex rel. Okla. Mem. Hosp., 1996 OK 5, ¶20, 917 P.2d 456, 465. Such sells no gas in Oklahoma and maintains no a party is restricted to the defense of the relief it was granted below. Id; facilities or employees in this state, has a suffi- State ex rel. Macy v. Board of County Comm’rs of Okla. County, 1999 OK 53, ¶19, n. 43, 986 P.2d 1130, 1140, n. 43. In making the argument cient nexus with the state to support taxation that the trial court should have concluded that all or almost all of its of natural gas temporarily resting within our storage gas is exempt from ad valorem taxation under the Freeport Exemption, MGE is merely asking the court to affirm a favorable nisi borders whether or not the natural gas is prius disposition on an additional and alternative theory from that relied considered to be in the stream of interstate upon by the trial court, not seeking to substitute a different form of relief commerce.2 I can agree with neither of these in place of the relief granted. An appellate court will affirm a correct 3 4 judgment on any applicable theory. Bivens, supra note 85 at ¶19, at 465. conclusions. Therefore, I dissent. MGE is hence free to argue the applicability of the Freeport Exemption without having filed its own petition-in-error. ¶2 FEDERAL LAW MAKES IT CLEAR 86. Hill v. Board of Ed., 1997 OK 111, ¶6, 944 P.2d 930, 932; Russell THAT NATURAL GAS INTENDED FOR v. State, 1971 OK 117, ¶12, 488 P.2d 1264, 1267. 87. Hudson v. Hopkins, 1919 OK 183, ¶12, 183 P. 507, 510. INTERSTATE TRANSPORT IS IN THE 88. 1973 OK 106, 514 P.2d 933. STREAM OF INTERSTATE COMMERCE 89. See ¶67 for the full text of the Freeport Exemption. 90. Supra note 88 at ¶13, at 935. WHEN IT IS TEMPORARILY PLACED IN 91. Id. STORAGE. 92. 1978 OK 65, 578 P.2d 1200. 93. Id. at ¶21, at 1204. ¶3 The majority’s argument that federal 94. Id. at ¶14, at 1202-03. 95. Id. at ¶18, at 1203; Session Laws 1967, S.J.R. No. 44, §2. The bal- regulations have little or no credence in lot title adopted by the Legislature was rejected by the Attorney Gen- determining whether the natural gas stored in eral, who revised it in part by adding language containing the terms of an Oklahoma facility is in the stream of the second clause of §6A. The revised language, which is the language ultimately presented to the people on election day, stated: commerce is unconvincing. It comports with “Shall a Constitutional Amendment amending Article X of neither the clear language of the regulation nor the Constitution of the State of Oklahoma by adding a new section thereto, to be designated as Section 6A, providing that tan- with federal precedent. gible personal property moving through Oklahoma from one state to another state shall not acquire situs within Oklahoma for ¶4 Administrative rules are valid expressions purposes of taxation; and providing tangible personal property of lawmaking powers having the force and held for assembly, storage, manufacturing, processing, or fabri- 5 cating purposes shall not be subject to taxation in Oklahoma if effect of law. Administrative rules, like stat- such property is not detained in the State more than nine (9) utes, are given a sensible construction bearing months, be approved by the people?” in mind the evils intended to be avoided.6 If an See Oklahoma State Election Board, Election Results and Statistics 1968, at 39. The ballot title as revised merely restates the language of administrative rule is clear and unambiguous, the provision itself. It does not resolve the question of whether the out- there is no need to resort to rules of of-state origin requirement of the first clause was intended to be incor- 7 porated in the second clause. Considering the difficulty the question construction to ascertain its meaning. presents to us today, it seems unlikely that the people voting on §6A were even conscious of the ambiguity or thought one way or the other ¶5 Application of constructive tools is unnec- about the provision’s meaning on this point. The Attorney General’s essary to determine whether the federal regu- view on the question may be more accurately reflected by Attorney General Opinion No. 65-215, which opined on the constitutionality of latory agency would treat the natural gas here section 2 of Senate Bill 438. Section 2 of Senate bill 438 was almost as being in the stream of commerce. The fed- identical to clause 2 of §6A. The Attorney General assumed that the eral regulation specifically states, in clear and property described in section 2 of Senate Bill 438 was property shipped into Oklahoma, not property originating in Oklahoma. See Austin, unambiguous language, that transportation Nichols & Co., Inc., supra note 92 for the pertinent language of Attor- “includes storage.”8 Furthermore, it is unques- ney General’s Opinion No. 62-215. 96. Wiseman v. Boren, 1976 OK 2, ¶11, 545 P.2d 753, 758. tioned that the federal regulations control 97. 1982 OK 2, 639 P.2d 1233. transportation of natural gas in interstate com- 98. Id. at ¶15, at 1239. 9 99. Crescent, supra note 88 at ¶14, at 1202-03. merce. The United States Supreme Court has made it clear that gas storage facilities like WATT, J. dissenting: the one at issue here are a critical part of the transportation of natural gas for its sale and ¶1 The majority gives a perfunctory nod to a 10 federal regulation promulgated by the Federal resale in interstate commerce. The High Energy Regulatory Commission (FERC) spe- Court has also recognized that “gas crossing a state line at any stage of its movement to the cifically providing that the transportation of ultimate consumer is in interstate commerce natural gas “includes storage.”1 Nevertheless, during the entire journey.”11 it ignores the extent to which the same federal regulatory scheme controls the decision of ¶6 The natural gas MGE purchases and whether the natural gas here is in the stream of places in the pipeline system is stored in the interstate commerce. It reasons that the stored Oklahoma storage facility but it is never intend-

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2453 ed for consumption in this state. It is placed commerce. MGE has no offices in Oklahoma. It with the interstate common carrier, Panhandle owns no property here. It has no employees Eastern Pipeline Company (Panhandle), for within the boundaries of our state. MGE’s only transportation to the state of Missouri. There is connection to Oklahoma is its utilization of no question under the federal regulation that, Panhandle’s pipeline system which contains a while in storage in Oklahoma, the gas remains storage facility. MGE’s connection to in transportation and that it is intended to be Okla-homa is too tenuous to subject its natural sold in interstate commerce. gas to ad valorem taxation in Oklahoma. ¶7 MGE HAS NO SUBSTANTIAL NEXUS CONCLUSION WITH OKLAHOMA TO SUPPORT THE ¶11 FERC regulations and the Supreme TAXATION OF NATURAL GAS IN Court’s pronouncements on the same require INTERSTATE COMMERCE UNDER THE that we consider the gas MGE stores in Okla- TEACHINGS OF COMPLETE AUTO homa to be in the transportation system.14 TRANSIT v. BRADY. There is no question that the transportation ¶8 In Complete Auto Transit, Inc. v. Brady, itself will be interstate. Because there is no sub- 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 stantial nexus between MGE and its activities (1977), rehearing denied, 430 U.S. 976, 97 S.Ct. within Oklahoma, the gas may not be taxed 1669, 52 L.Ed.2d 371 (1977), the United States under the commerce clause. The majority holds Supreme Court fashioned a four-part test to otherwise. I dissent. govern the imposition of state taxes on goods in the stream of interstate commerce.12 A tax 1. Title 18 C.F.R. §284.1 providing: “Transportation includes storage, exchange, backhaul, dis- may be sustained under Brady against a com- placement, or other methods of transportation.” merce clause challenge if the tax: 1) is applied 2. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 97 S.Ct. 1076, 51 L.Ed.2d 326 (1977), rehearing denied, 430 U.S. 976, 97 S.Ct. 1669, 52 to activity with a substantial nexus with the L.Ed.2d 371 (1977) provides that not all goods in interstate commerce taxing state; 2) is fairly apportioned; 3) does are free from state taxation. Taxation is allowed if the tax: 1) is applied to an activity with a substantial nexus with the taxing state; 2) is fairly not discriminate against interstate commerce; apportioned; 3) does not discriminate against interstate commerce; and 4) is fairly related to services provided by and 4) is fairly related to services provided by the state. the state. 3. Nothing in the majority’s analysis would keep the same gas owned by the same company from being subject to ad valorem tax in more than one storage facility. If natural gas stored in Oklahoma has a ¶9 The trial court concluded its analysis with sufficient nexus to support the tax, the same gas stored in a Texas facil- application of the first condition of the test. It ity might well be subject to the same burden. The facts presented here determined that there was no such nexus are substantially different than those addressed by the Court in Cities Serv. Gas Co. v. Oklahoma Tax Comm’n, 1989 OK 69, 774 P.2d 468, cert. where MGE’s natural gas was at all times while denied, 493 U.S. 854, 110 S.Ct. 157, 107 L.Ed.2d 115 (1989) in which this in storage in the possession and control of the Court held that a conservation excise tax would not place an unconstitutional burden on interstate commerce. In Cities Service, this note common carrier, Panhandle, and where the gas supra, Oklahoma was the only state which could tax the severance as was committed to being transported out of it was the state from which the natural resource was actually severed. 4. The majority discounts the analysis of a Texas Court of Appeals state for sale and consumption. Although the case presenting facts virtually identical to those we deal with here. The majority recognizes that “[t]he nexus require- Texas Court determined that levying an ad valorem tax on natural gas ment ensures that, with respect to goods in stored in its state impermissibly infringed on the commerce clause. It did so primarily upon the grounds that the gas remains in interstate interstate commerce, a state will not be able to commerce while in natural gas storage facilities and that the entity exact a fee simply for the privilege of passing owning the gas lacked a sufficient nexus with the storage state to support imposition of the tax. See, The Peoples Gas, Light, and Coke Co. through a state,” it determines that the storage v. Harrison Central Appraisal Dist., ___ S.W.2d ___, 2008 WL 4328807 of natural gas for a substantial portion of the (Tex.App. 2008). 5. McClure v. ConocoPhillips Co., 2006 OK 42, ¶17, 142 P.3d 390. year is sufficient to create the nexus 6. Walker v. Group Health Serv., Inc., 2001 OK 2, ¶27, 37 P.3d 749; requirement under Brady. Oklahoma Alcoholic Beverage Control Bd. v. Burris, 1980 OK 58, ¶13, 626 P.2d 1316, 20 A.L.R.4th 593. ¶10 The fallacy with the majority’s logic is 7. Coppola v. Fulton, 1991 OK 18, ¶12, 809 P.2d 1291; Mayfield v. H.B. Oil & Gas, 1987 OK 106, ¶9, 745 P.2d 732. that it looks strictly at the generic act of storing 8. Title 18 C.F.R. §284.1, see note 1, supra. gas in an Oklahoma facility. An activity which 9. Williston Basin Interstate Pipeline Co.v. An Exclusive Gas Stor- the federal law provides is not static but an age Leasehold & Easement in The Cloverly Geological Formation, 524 F.3d 1090 (9th Cir. 2008). 13 integral part of the transportation process. 10. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 308, 108 S.Ct. Furthermore, although it is unquestioned that 1145, 99 L.Ed.2d 316 (1988). 11. Maryland v. Louisiana, 451 U.S. 725, 101 S.Ct. 2114, 2134, 68 some portion of the gas in the storage facility L.Ed.2d 576 (1981); California v. Lo-Voca Gathering Co., 379 U.S. 366, belongs to MGE, it is the common carrier, Pan- 369, 85 S.Ct. 486, 13 L.Ed.2d 357 (1965). 12. Cities Serv. Gas Co. v. Oklahoma Tax Comm’n, see note 3, handle, who directs the storage activity and supra. who ultimately releases the gas into interstate 13. Title 18 C.F.R. §284.1, see note 1, supra.

2454 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 14. Title 18 C.F.R. §284.1, see note 1, supra; Schneidewind v. ANR gathering facilities. The purpose of these facili- Pipeline Co., see note 10, supra. See also, Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold & Easement in The ties is to move natural gas from wells owned Cloverly Geological Formation, note 9, supra. by EOG Resources Inc. to the point of sale. 2008 OK 95 ¶3 On December 14, 2006, EOGRM brought EOG RESOURCES MARKETING, INC., an action in Oklahoma County District Court Plaintiff/Appellee, v. OKLAHOMA STATE seeking a declaratory judgment that the State BOARD OF EQUALIZATION and Board of Equalization and the Oklahoma Tax OKLAHOMA TAX COMMISSION, Commission (collectively, the Board of Equal- Defendants/Appellants. ization) had erroneously classified it as a public service corporation for the purposes of ad No. 105,860. October 21, 2008 valorem taxation for the 2006 tax year, and that the Board of Equalization was without jurisdic- APPEAL FROM THE DISTRICT COURT 1 OF OKLAHOMA COUNTY tion to assess EOGRM’s property. On February 9, 2007, the Board of Equalization filed its Honorable Noma D. Gurich, Trial Judge answer disputing EOGRM’s claims and asserting that injunctive relief is barred by 68 O.S. ¶0 Appellee, EOG Resources Marketing Inc., 2 (EOGRM) filed an action seeking a declaratory 2001 §2885(A). judgment that the Oklahoma State Board of ¶4 All non-exempt property is taxed ad Equalization and the Oklahoma Tax Commis- valorem unless the legislature provides a sub- sion (collectively, the Board of Equalization) stitute tax.3 The Oklahoma Constitution autho- had erroneously classified it as a public service rizes the legislature to classify property for corporation and that it was without jurisdic- purposes of taxation.4 The legislature has clas- tion to assess EOGRM for the purposes of ad sified property into five types for the purposes valorem taxation. The trial court granted sum- of ad valorem taxation: 1) real property; 2) per- mary judgment to EOGRM. The Board of sonal property; 3) personal property exempted Equalization appealed, and we retained the pursuant to the Okla. Const. art. 10, §6(b); 4) cause. We affirm the trial court, and hold that: public service corporation property; and 5) 1) the district court was the proper forum for railroad and air carrier property.5 Generally, the the action; 2) Title 68 O.S. Supp. 2002 §2851.3 is county assessor has the duty of locally assess- violative of the Okla. Const. art. 5, §46 and art. ing ad valorem taxes.6 However, public service 10, §§5(B), 14(A), and 21(A); and 3) EOGRM is corporation property and railroad and air car- not a public service corporation as defined by rier property are centrally assessed by the the Okla. Const. art. 9, §34. Board of Equalization.7 The Oklahoma Consti- TRIAL COURT AFFIRMED. tution fixes the rate for locally assessed real property at 11%-13.5%, but it does not fix the Larry D. Patton, Lynn C. Rogers, Oklahoma rate for public service corporation property.8 City, Oklahoma, for Appellee. ¶5 This cause is the most recent link in a long Michael E. Smith, Sharon T. Thomas, chain of related causes that begins with an Oklahoma City, Oklahoma, for Appellants. unpublished Court of Civil Appeals opinion KAUGER, J.: promulgated on April 5, 1996 — Texaco Explo- ration & Prod., Inc., v. State Bd. of Equalization, ¶1 The issue presented is whether the trial No. 85,256 (1996) cert. denied. There, the sole court erred in granting summary judgment to issue was whether Texaco Exploration, a gas EOG Resources Marketing, Inc., (EOGRM) gathering company, was a public service cor- concerning whether: 1) the district court was poration for the purposes of ad valorem taxa- the proper forum for the cause; 2) the State tion. Before 1994, Texaco Exploration had been Board of Equalization and the Oklahoma Tax assessed locally, but when the Board of Equal- Commission had jurisdiction to assess EOGRM ization learned that Texaco Exploration owned for ad valorem taxes; and 3) EOGRM is a and operated gas gathering pipelines, it ordered public service corporation. We find that it did the company to file reports with the Board of not. Equalization for the purpose of central assessment. Texaco Exploration filed an action for FACTS declaratory and injunctive relief asserting that ¶2 EOGRM is a subsidiary of EOG Resources it was not a public service corporation. The Inc. EOGRM owns and operates natural gas trial court and Court of Civil Appeals agreed,

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2455 and Texaco Exploration continued to be ¶10 On October 26, 2007, the Board of Equal- assessed locally. ization filed a motion for summary judgment noting that for the years 1994-2005, EOGRM, ¶6 On July 1, 1997, the legislature responded and/or its predecessor, were centrally assessed to Texaco Exploration by amending 68 O.S. Supp. 1997 §2808(C) to provide that any gas without objection. The Board of Equalization gathering system assessed centrally after Janu- argued that because EOGRM was centrally ary 1, 1997, would continue to be assessed assessed for the 2002 tax year, the Board of 9 Equalization was legislatively mandated by 68 centrally through the 1998 tax year. This cre- 15 ated a brief status quo among existing gas O.S. Supp. 2002 §2851.3 to continue assessing gathering companies. EOGRM centrally. ¶7 On December 28, 2001, we addressed the ¶11 On November 27, 2007, EOGRM respond- issue of the valuation of the property of gas ed and moved for summary judgment, arguing gathering companies in: In re. Assessment for that §2851.3: 1) should be construed to apply the Year 2000 of Certain Property Owned by only to gas gathering companies which were Oneok Field Servs. Gathering, LLC, 2001 OK lawfully assessed as public service corpora- 116, 38 P.3d 900. There, the question presented tions in 2002; 2) is a special law in violation of was whether pipeline rights of way owned by the Okla. Const. art. 5 §§46, 59 and art. 10 a gas gathering company were to be classified §14(A);16 3) violates the Uniformity Clause of as real property or personal property for assess- the Okla. Const. art. 10, §5(B);17 4) violates the ment by the county assessor. We found that the Okla. Const. art. 10 §21(A)18 by impermissibly rights of way were classified by the legislature extending the jurisdiction of the Board of as real property. Equalization; and 5) violates the Equal Protection Clauses of the United States and ¶8 On May 17, 2002, the legislature respond- Oklahoma Constitutions.19 ed to Oneok by creating the Task Force on Valuation of Gas Gathering Systems Assets ¶12 On April 16, 2008, the trial court granted (Task Force) to address whether gas gathering EOGRM’s motion for summary judgment, systems should be centrally or locally assessed, finding as a matter of law, that: 1) EOGRM is and how the companies’ property should be not a public service corporation; 2) Title 68 O.S. valued.10 The Task Force, consisting of three Supp. 2002 §2851.3 is an unconstitutional stat- Senators and three Representatives, was to ute; and 3) the Board of Equalization unlaw- study the issue and make recommendations in fully assessed EOGRM’s property for ad valor- a study to be released not later than December em taxes for the years 2006 and 2007. The 31, 2003.11 This deadline was extended to Board of Equalization filed its petition in error December 31, 2005, and re-extended to Decem- and motion to retain on May 13, 2008. We ber 31, 2007.12 The study has yet to be released. retained the cause on June 4, 2008. At the same time that the legislature created the Task Force, it imposed a moratorium on I. changes in the valuation or method of assess- THE DISTRICT COURT WAS THE PROPER ment of gas gathering assets at 68 O.S. Supp. FORUM IN WHICH TO BRING AN 2002 §2851.3.13 ACTION CHALLENGING THE JURISDICTION OF THE BOARD OF ¶9 On June 15, 2007, the Court of Civil EQUALIZATION TO ASSESS EOGRM FOR Appeals again addressed the issue of whether AD VALOREM TAXES. a gas gathering company was to be centrally or locally assessed for ad valorem taxes in Chesa- ¶13 Summary judgment is properly granted peake Energy Mktg., Inc. v. State Bd. of Equal- when there are no disputed questions of mate- ization, 2007 OK CIV APP 79, 167 P.3d 446. rial fact and the moving party is entitled to There, the appellate court found that because judgment as a matter of law.20 When summary the corporation had been assessed locally for judgment involves only legal questions, the the 2002 tax year, 68 O.S. Supp. 2002 §2851.3 standard of review of a trial court’s grant of was controlling, the status quo was to be pre- summary judgment is de novo.21 The burden is served, and the Board of Equalization could on EOGRM, as the moving party in this cause, not assess the corporation.14 The issue of the to show beyond a reasonable doubt that 68 O.S. constitutionality of §2851.3 was not addressed Supp.2002 §2851.3 is unconstitutional.22 A legis- in the Court of Appeals’ opinion. lative act is presumed to be constitutional and

2456 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 will be upheld unless it is clearly, palpably and The primary goal of statutory construction is to plainly inconsistent with the Constitution.23 ascertain and follow the intent of the legislature.31 The words of a statute will be given their ¶14 Before addressing EOGRM’s arguments plain and ordinary meaning unless it is con- on the constitutionality of §2851.3, the Board of trary to the purpose and intent of the statute Equalization first argues that under 68 O.S. 32 2001 §2885(A),24 EOGRM may not seek equita- when considered as a whole. The legislature ble remedies in district court because jurisdic- has plenary power to tax, subject only to constitutional restrictions and the will of the tion over its claim rests with the Court of Tax 33 Review. EOGRM argues that because it is chal- people expressed through elections. lenging the jurisdiction of the Board of Equal- A. ization to assess ad valorem taxes against it, the Title 68 O.S. Supp. 2002 §2851.3 is a Special district court is the proper forum for the action Law in violation of the Okla. Const. art. 5, under 68 O.S. 2001 §2886.25 §46 and art. 10, §14(A). ¶15 This question was raised in United Air- ¶17 EOGRM argues that §2851.3 is an uncon- lines, Inc. v. State Bd. of Equalization, 1990 OK stitutional special law. The Oklahoma Consti- 29, 789 P.2d 1305. There, United Airlines tution contains several provisions regarding brought an action in district court seeking a special laws for taxation and assessment. The declaratory judgment that it was not a public most broadly applicable prohibition on special service corporation for the purposes of ad laws may be found at the Okla. Const. art. 5, valorem taxation, and the Board of Equaliza- §59, which provides that where a general law tion argued that the district court was without can be made applicable, no special law may be subject matter jurisdiction to hear the cause. enacted.34 To determine whether a statute vio- We determined that the kinds of actions con- lates art. 5, §59 we apply the following three templated by §2885(A) were those in which a pronged test: 1) Is the statute a special law or a taxpayer brings a complaint requesting a cor- general law? 2) If the statute is a special law, is rection of equalizations or assessments made a general law applicable? and 3) If a in error or requesting an abatement of taxes, general law is not applicable, is the statute a and appeals from such proceedings.26 We found permissible special law?35 that it was more appropriate for a district court to determine whether the Board of Equaliza- ¶18 The Oklahoma Constitution also con- tion has jurisdiction to assess a particular tax- tains two other pertinent prohibitions on spe- payer, and that §2886 was applicable to such cial laws. The Okla. Const. art. 5, §46 enumer- actions.27 Here, EOGRM is making the same ates twenty-eight areas in which the legislature challenge to the jurisdiction of the Board of is absolutely prohibited from passing special Equalization. United Airlines v. State Bd. of laws unless it is otherwise allowed to do so Equalization is dispositive of the issue and the elsewhere in the Constitution. One of these district court was the proper forum for this areas is relieving the assessor of taxes from cause. official duties.36 The Okla. Const. art. 10, §14 II. (A) absolutely prohibits the legislature levying TITLE 68 O.S. SUPP. 2002 §2851.3 IS AN or collecting taxes by special laws unless it is UNCONSTITUTIONAL STATUTE. otherwise allowed to do so elsewhere in the Constitution.37 ¶16 EOGRM has challenged the constitutionality of 68 O.S. Supp. 2002 §2851.3 on several ¶19 For the Okla. Const. art. 5, §46 and art. grounds. The Board of Equalization generally 10, §14(A), our analysis consists only of deter- contends that §2851.3 is not violative of any mining whether the statute is a general law or provision of the United States or Oklahoma a special law.38 This is because these constitu- Constitutions. The Constitution is the bulwark tional provisions absolutely prohibit special to which all statutes must yield.28 In construing laws that address the subjects the provisions and applying constitutional provisions, the govern. Because §2851.3 is a statute concerning intent of the framers and the people adopting the assessment of gas gathering companies for it must be given effect.29 Absent an ambiguity, ad valorem taxation, we determine that the the intent is settled by the language of the pro- statute addresses the subjects listed in art. 5, vision itself, and the courts are not at liberty to §46 and art. 10, §14(A). We must determine search beyond the instrument for meaning.30 whether §2851.3 is a special law.

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2457 ¶20 A statute relating to all persons or things ¶23 The Board of Equalization has not dem- of a class is a general law; one relating to par- onstrated any pertinent dissimilarity between ticular persons or things of a class is a special gas gathering companies which are assessed law.39 The number of persons or things upon centrally and those which are assessed locally. which the law has a direct effect may be very The classification made by §2851.3 boils down few, but it must operate uniformly upon all to nothing more than choosing a date. The brought within the class by common circum- method by which a gas gathering company stances.40 Special laws are those which single was assessed in 2002 is not a distinctive out less than an entire class of similarly affected characteristic upon which different treatment persons or things for different treatment.41 In is reasonably founded. an action alleging a violation of art. 5, §46 or ¶24 The Board of Equalization argues that art. 10, §14(A), the only issue to be resolved is because §2851.3 was intended as a temporary whether a statute on a subject enumerated in measure, the statute is nothing more than the those sections targets less than an entire class lawful action of the legislature engaged in its of similarly situated persons or things for dif- 42 constitutionally mandated duty to work out a ferent treatment. Where a statute operates systematic and fair taxation policy. Although it upon a class, the classification must be reason- is not clear from the plain language of §2851.3 able and pertain to some peculiarity in the that it is a temporary measure, when read subject of the legislation, and there must be together with §2851.2, it seems likely that the some distinctive characteristic upon which dif- statute was intended as a temporary moratori- 43 ferent treatment is reasonably founded. It is um until the Task Force releases its findings. not the role of this Court to question the desir- However, as was noted in Claremont Sch. Dist. ability, wisdom, or logic of a valid statutory v. Governor, 744 A.2d 1107, 1113 (N.H. 1999): classification.44 All as citizens are aware, there is nothing ¶21 EOGRM’s contention is that similarly permanent about any piece of legislation; situated gas gathering companies are taxed dif- its terms and conditions are subject to ferently. Gas gathering companies which were change at the will of the political process. centrally assessed in 2002 are now centrally assessed, and gas gathering companies which The intended legislative life of a statute has no were locally assessed in 2002 are now locally bearing on the requirement that it pass consti- 47 assessed. The Board of Equalization responds tutional muster. Because it unreasonably treats that EOGRM has failed to provide any evi- similarly situated gas gathering companies dence that gas gathering companies that are differently, 68 O.S. 2001 §2851.3 is an unconsti- locally assessed are similarly situated. tutional special law in violation of the Okla. Const. art. 5, §46 and art. 10, §14(A). ¶22 EOGRM has provided an affidavit from James C. Johnson, President of Chesapeake B. Energy Marketing, Inc. (CEMI). In the affida- Title 68 O.S. Supp. 2002 §2851.3 Violates vit, Johnson states that CEMI is a gas gathering the Okla. Const. art. 10, §5(B) by Arbitrarily company which functions in a way substan- Requiring Different Methods of Assessment tially similar to EOGRM.45 CEMI is not a public for Similarly Situated Gas Gathering service corporation and is assessed locally. Companies. EOGRM also points to the judgment in Texaco ¶25 EOGRM next objects to §2851.3 by Exploration & Prod., Inc., v. State Bd. of Equal- arguing that the law violates the Uniformity ization, No. 85,256 (Okla. Civ. App. 1996) cert. Clause of the Oklahoma Constitution by assess- denied, in which Texaco Exploration, a gas gath- ing members of the same class at different ering company which functions in a way sub- assessment ratios. The Okla. Const. art. 10, stantially similar to EOGRM, was declared not §5(B) provides that taxes must be uniform on to be a public service corporation and not sub- the same class of subjects.48 The assessment ject to central assessment.46 The Board of Equal- percentage rate on one class or subclass of ization has not offered any evidence that con- subjects must be uniform.49 However, the State tradicts the claim that CEMI and Texaco Explo- has a wide range of discretion to distinguish, ration are gas gathering companies which are select, and classify objects of taxation, as pro- similarly situated to EOGRM in all respects vided by the Okla. Const. art. 10, §22.50 In order except the method by which they are assessed for a tax classification to pass constitutional for the purposes of ad valorem taxation. muster, there must be a reasonable classifica-

2458 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 tion and a reasonable opportunity for uniform assessed in 2002. Conversely, the law requires or equal incidence upon the class created.51 county assessors to locally assess public service Because tax classifications are presumptively corporation property as long as it was locally valid, the burden is on the challenger to prove assessed in 2002. This, EOGRM argues, requires that a classification does not rest upon a rea- the Board of Equalization and county assessors sonable basis, and a statute will not be dis- to act outside constitutionally established juris- turbed in the absence of unreasonable, dis- dictional boundaries. criminatory, or arbitrary action.52 ¶29 The Okla. Const. art. 10, §21(A) requires ¶26 The Board of Equalization argues that the Board of Equalization to assess all public §2851.3 does not create any new classification, service corporation property.55 The Board of but simply requires a gas gathering company Equalization did not directly address EOGRM’s to remain in the tax classification which it occu- contention that §2851.3 violates the Okla. Const. pied in 2002. We do not find this argument art. 10, §21. Instead, the Board of Equalization convincing. Prior to the enactment of the stat- argues that because it determined that EOGRM ute, a gas gathering company could either be was to be centrally assessed in 2002 and classified as a public service corporation or as EOGRM did not object at that time, the deter- a non-public service corporation. This classifi- mination is final, has the same effect as a judg- cation could be contested by the company. ment not subject to further appeal,56 and that it With the enactment of §2851.3, two new clas- may not be challenged by EOGRM in this sifications were created: 1) gas gathering com- action. EOGRM responds that it is not chal- panies which were classified as public service lenging its 2002 assessment, but its 2006 and corporations in 2002; and 2) gas gathering com- 2007 assessments. panies which were not classified as public ¶30 A taxpayer may bring an action in dis- service corporations in 2002. By freezing a trict court challenging the jurisdiction of the gas gathering company in its 2002 Board of Equalization to assess it for ad valor- classification, the statute prevents the company em taxes.57 A taxpayer is entitled to challenge a from contesting its status as a public service tax law or assessment in subsequent tax years, corporation. even when the taxpayer has not previously ¶27 Just as it is the responsibility of the legis- challenged the assessment. In Ladd Petroleum lature to make law and the executive to carry Corp. v. Oklahoma Tax Comm’n, 1989 OK 5, ¶2 those laws into effect, it is for the judiciary to fn. 1, 767 P.2d 879, the corporation alleged that interpret the law.53 The judiciary is the indepen- the additional gross production, petroleum dent department of government charged with excise, and conservation excise taxes it was the responsibility of protecting the Constitu- assessed were in violation of the Fourteenth tion.54 Clearly, the legislature may answer the Amendment. Although Ladd had failed to question of whether a gas gathering company make timely objections to the assessments in is a public service corporation for the purposes previous years, we decided its appeal for the of ad valorem taxation of law, but it may not years it timely filed objections. In United Air- refuse to do so and also effectively forbid tax- lines, Inc. v. State Bd. of Equalization, 1990 OK payers from seeking legal redress in the courts. 29, ¶3, 789 P.2d 1305, United Airlines argued It is the attempt to forestall any judicial review that it was not a public service corporation for of the classification of similarly situated the purposes of ad valorem taxation. We heard gas gathering companies that makes the new the appeal despite the fact that the Board of classifications created by §2851.3(B) an Equalization had centrally assessed airline unreasonable and arbitrary action. companies for forty-two years at the time United Airlines sought to challenge its central C. assessment. The Board of Equalization has not Title 68 O.S. Supp. 2002 §2851.3 Violates alleged that EOGRM’s challenges for tax years the Okla. Const. art. 10 §21(A) by Seeking to 2006 and 2007 were not timely, and the undis- Extend the Jurisdiction of The Board of puted finality of the Board of Equalization’s Equalization and County Assessors. 2002 determination is not germane to our analysis of the constitutionality of §2851.3. ¶28 EOGRM’s third argument is that §2851.3 law requires the Board of Equalization to con- ¶31 The Okla. Const. art. 10, §21(A) unam- tinue to centrally assess non-public service biguously divides the types of property to be corporation property as long as it was centrally assessed centrally by the Board of Equalization

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2459 from the types of property which are to be centrally assessed, and gas gathering compa- assessed locally by county assessors. The Board nies which were locally assessed in 2002 are of Equalization may not lawfully assess non- now locally assessed. The legislature is given public service corporation property. If there is especially broad latitude in creating classifica- property which was erroneously designated as tions and distinctions in tax statutes.62 Unless a public service corporation property in tax year classification jeopardizes the exercise of a fun- 2002, §2851.3, on its face, requires the Board of damental right or characterizes based upon an Equalization to reach beyond its constitution- inherently suspect characteristic, the Equal ally established jurisdiction to continue to Protection Clause requires only that the classi- assess the property. Conversely, if there is fication rationally further a legitimate state property which was erroneously designated as interest.63 In other words, if the classification is non-public service corporation property in neither capricious nor arbitrary, and rests upon 2002, §2851.3 requires county assessors to reach some reasonable consideration of difference or beyond their constitutionally established policy, there is no denial of the equal protection jurisdiction to continue to assess the property. of the law.64 This standard is especially deferen- tial in the context of classifications made by ¶32 Furthermore, taxpayers who allege that complex tax laws.65 When determining whether their property has been erroneously designated a class or subclass has been created, it is the are left without recourse. This is another way intent of the legislature to create a class which whereby §2851.3 purports to divest the judi- controls.66 ciary of its constitutional responsibility of adju- dicating a justiciable question of law, in this ¶35 Because 68 O.S. Supp. 2002 §2851.3 vio- case — whether a gas gathering company is a lates the Okla. Const. art. 5, §46 and the Okla. public service corporation for the purposes of Const. art. 10, §§5(B), 14(A) and 21(A), we need ad valorem taxation. The legislature may not consider whether the statute violates the answer this question of law, but it may not Equal Protection Clause of either the United refuse to do so and also forbid taxpayers from States or the Oklahoma Constitution. seeking legal redress in the courts. Because III. §2851.3 seeks to extend the constitutionally EOGRM IS NOT A PUBLIC SERVICE established jurisdiction of the Board of Equal- CORPORATION. ization and county assessors, it is an unconstitutional statute in violation of the Okla. Const. ¶36 EOGRM argues that it is not a public art. 10, §21(A). service corporation, and the Board of Equaliza- tion is without jurisdiction to assess it for ad D. valorem taxation. The Board of Equalization We Need Not Consider Whether 68 O.S. responds that even if 68 O.S. Supp. 2002 §2851.3 Supp. 2002 §2851.3 Violates the Equal is not applicable, EOGRM is a public service Protection Clauses of the United States and corporation. The Okla. Const. art. 9, § 34 Oklahoma Constitutions. defines a public service corporation.67 The par- ¶33 EOGRM’s final objection to §2851.3 is ties’ point of contention on the issue of whether that the statute violates the Equal Protection EOGRM is a public service corporation centers Clauses of the United States58 and Oklahoma59 around whether EOGRM is “. . . authorized to Constitutions by arbitrarily and capriciously exercise the right of eminent domain or (has) a using different methods to tax property within franchise to use or occupy any right of way, the same classification. The Equal Protection street, alley or public highway, whether along, Clause of the Fourteenth Amendment to the over or under the same, in a manner not permitted to the general public. . .” as contem- United States Constitution is applicable to state 68 exercise of taxing power.60 The Equal Protection plated by the Okla. Const. art. 9, §34. The Clause protects a taxpayer from state action Board of Equalization argues that because which selects it out for discriminatory treat- EOGRM has utilized statutory rights to obtain ment by subjecting it to taxes not imposed on road crossing permits and lay pipelines under public roadways, it falls under the definition of others of the same class.61 a public service corporation. EOGRM responds ¶34 EOGRM’s basic contention is that simi- that it is not a public service corporation larly situated gas gathering companies are because: 1) it does not furnish natural gas taxed differently. Gas gathering companies directly to the general public; 2) its rates are not which were centrally assessed in 2002 are now regulated by the Oklahoma Corporation Com-

2460 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 mission or Federal Energy Regulatory Com- ¶40 Title 69 O.S. Supp. 2004 §1401 requires mission; 3) it cannot exercise the power of county commissioners to grant public utilities eminent domain; and 4) it laid lines under pub- or cable television systems the right to use the lic roadways pursuant to road crossing permits public roads and highways and permits county available to the general public. commissioners to grant such rights to any citi- 76 A. zen. However, the statute defines a “public EOGRM May Not Exercise the utility” as an entity that has obtained the status Power of Eminent Domain. of a public utility through the Oklahoma Cor- poration Commission pursuant to 17 O.S. 2001 ¶37 The legislature has differentiated gas §152.77 EOGRM has not obtained such status gathering companies from intrastate pipeline from the Corporation Commission. The cross- companies and intrastate transmission pipeline ing permits it received to lay pipe under roads companies. Title 52 O.S. 2001 §24.4(1) defines and highways were granted to EOGRM as a “gathering” as when a person other than a member of the general public, not as a public local distribution company, intrastate trans- utility. mission company, or interstate pipeline transports natural gas through a pipeline for hire.69 ¶41 The Pipelines Act of 1907, specifically 52 The inherent power of an entity to take private O.S. 2001 §10, provides that every gas pipeline property for public use is called the power of corporation or individual is given the authority eminent domain.70 Intrastate pipeline compa- to lay pipelines over, under, across or through nies and intrastate transmission pipeline com- state streets and highways.78 However, under panies may exercise the power of eminent the Pipelines Act of 1907, those rights are domain under the federal Natural Gas Act71 predicated on filing the necessary plats and and Oklahoma’s Production and Transporta- acceptance with the Corporation Commission.79 tion Act.72 However, gas gathering companies EOGRM is not a pipeline company registered may not exercise the power of eminent domain with the Corporation Commission, and it does under either the Natural Gas Act or the not possess the rights granted to registered Production and Transportation Act. pipeline companies by 52 O.S. 2001 §10. ¶38 The Natural Gas Act, at 15 U.S.C.A. ¶42 Because EOGRM may not exercise the §717(b), explicitly does not apply to gas gather- power of eminent domain and does not pos- 73 ing companies. The Production and Transpor- sess the right to occupy any right of way, street, tation Act provides that only domestic pipeline or highway in a manner not permitted to the companies may exercise the power of eminent 74 general public, it is not a public service corpo- domain. That right is predicated on filing the ration for the purposes of ad valorem taxation. necessary plats and acceptance with the Cor- Because EOGRM is not a public service corpo- poration Commission, as per 52 O.S. 2001 §26.75 ration, under the Okla. Const. art. 10, §21(A), EOGRM is not a pipeline company which has the Board of Equalization was without jurisdic- filed plats and acceptance with the Corpora- tion to assess it for the purposes of ad valorem tion Commission, and, therefore, does not possess the rights granted to domestic pipeline taxation for the tax years 2006 and 2007. companies by the Production and Transporta- CONCLUSION tion Act. EOGRM may not exercise the power of eminent domain. ¶43 This Court does not correct the legislature, nor do we legislate by judicial fiat. None- B. theless, we must apply Oklahoma’s Constitu- EOGRM Does Not Possess a tion.80 Title 68 O.S. Supp. 2002 §2851.3 is an Right to Occupy Streets, Highways, or unconstitutional statute. It unreasonably Rights of Way in a Manner Not Available to requires different methods of assessment for the General Public. similarly situated gas gathering companies ¶39 The Board of Equalization argues that based on a company’s status at an arbitrary under 52 O.S. 2001 §10 and 69 O.S. Supp. 2004 past date. It is a special law in violation of the §1401, EOGRM possesses statutory rights to Okla. Const. art. 5, §46 and art. 10, §14(A), and occupy streets or rights of way in a manner not it violates the Okla. Const. art. 10, §5(B) by available to the general public. EOGRM argues assessing members of the same class at differ- that neither statute endows it with rights not ent assessment ratios, requiring the Board of available to the general public. Equalization and county assessors to act out-

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2461 side the jurisdictional boundaries set by the The Legislature, pursuant to authority of Article X, Section 22 of the Oklahoma Constitution, hereby classifies the following Okla. Const. art. 10, §21(A). types of property for purposes of ad valorem taxation: 1. Real property; ¶44 The Okla. Const. art. 9, §34 clearly sets 2. Personal property, except as provided in paragraph 3 of out the criteria for determining which entities this subsection; 3. Personal property which is household goods of the head of are public service corporations. EOGRM is not families and livestock employed in support of the family in those a public service corporation because it may counties which have exempted such property pursuant to subsection (b) of Section 6 of Article X of the Oklahoma Constitu- neither exercise the right of eminent domain tion; nor does it have a franchise to use or occupy 4. Public service corporation property; and 5. Railroad and air carrier property. any right of way, street, alley or public high- 6. Title 68 O.S. 2001 §2819 provides: way in a manner not permitted to the general Taxable values of real and personal property shall be established in accordance with the requirements of Sections 8, 8B and public. Pursuant to the Okla. Const. art. 10, 8C of Article X of the Oklahoma Constitution. The county asses- §21(A), the Board of Equalization may only sor shall determine the taxable value of all taxable property that the assessor is required by law to assess and value and shall assess public service corporation property and determine such taxable value in accordance with the require- railroad and air carrier property. The Board of ments of Sections 8, 8B and 8C of Article X of the Oklahoma Constitution. Equalization was without jurisdiction to assess 7. Okla. Const. art. 10, §21(A), provides: EOGRM’s property for the tax years 2006 and There shall be a State Board of Equalization consisting of the 2007. Instead, county assessors have jurisdic- Governor, State Auditor, State Treasurer, Lieutenant Governor, Attorney General, State Inspector and Examiner and President of tion to locally assess EOGRM’s property. the Board of Agriculture. The duty of said Board shall be to adjust and equalize the valuation of real and personal property ¶45 The trial court did not err by granting of the several counties in the state, and it shall perform such other duties as may be prescribed by law, and they shall assess EOGRM’s motion for summary judgment and all railroad and public service corporation property. declaring that: 1) EOGRM is not a public ser- 8. Okla. Const. art. 10, §8(A)(2-3) provides: vice corporation; 2) 68 O.S. Supp. 2002 §2851.3 A. Except as otherwise provided in Article X of this Constitu- tion, beginning January 1, 1997, all property which may be taxed is an unconstitutional statute; and 3) the Board ad valorem shall be assessed for taxation as follows: of Equalization unlawfully assessed EOGRM’s . . . 2. Real property shall not be assessed for ad valorem taxation property for ad valorem taxes for the tax years at a value less than eleven percent (11%) nor greater than thirteen 2006 and 2007. and one-half percent (13.5%) of its fair cash value for the highest and best use for which such property was actually used, or was TRIAL COURT AFFIRMED. previously classified for use, during the calendar year next preceding the first day of January on which the assessment is made. The transfer of property without a change in its use classification WINCHESTER, C.J., EDMONDSON, V.C.J., shall not require a reassessment based exclusively upon the sale HARGRAVE, KAUGER, WATT, TAYLOR, value of such property. In connection with the foregoing, the Legislature shall be empowered to enact laws defining classifica- COLBERT, and REIF, J.J. – concur. tions of use for the purpose of applying standards to facilitate uniform assessment procedures in this state; and OPALA, J. – concurs in judgment. 3. All other property which is assessed by the State Board of Equalization shall be assessed for ad valorem taxation at the 1. EOGRM had already filed a complaint with the Court of Tax percentage of its fair cash value, estimated at the price it would Review on July 6, 2006 (EQ-2006-4). The action was stayed on January bring at a fair voluntary sale, at which it was assessed on January 25, 2007, pending the result of the district court action. EOGRM also 1, 1996. filed parallel complaints with the Court of Tax Review for the tax years For the 2006 tax year, the Board of Equalization assessed EOGRM’s 2007 (EQ-2007-2) and 2008 (EQ-2008-1). property at the rate of 22.85%. Petition of EOGRM, Record, Vol. I, Sec. On December 19, 2007, EOGRM filed a parallel action against the 3 at p. 2. Board of Equalization in district court for the 2007 tax year. The two 9. The statute has not been amended since 1997. Title 68 O.S. 2001 district court actions were consolidated on February 8, 2008. §2808(C) provides: 2. Title 68 O.S. 2001 §2885(A) provides: Any real or personal property used by any company, corpo- The proceedings before the county assessor, boards of equal- ration, trustee, receiver, or other person owning, leasing, or operating for hire any pipeline or oil or gas gathering system ization and appeals therefrom shall be the sole method by which which was assessed by the State Board of Equalization after assessments or equalizations shall be corrected or taxes abated. January 1, 1997, shall continue to be assessed by the State Board Equitable remedies shall be resorted to only where the aggrieved of Equalization through ad valorem tax year 1998. party has no taxable property within the tax district of which 10. Title 68 O.S. Supp. 2002 §2851.2(A-D) has not been amended complaint is made. since its enactment. It provides: 3. Title 68 O.S. 2001 §2804 provides: A. There is hereby created the “Task Force on Valuation of All property in this state, whether real or personal, except Gas Gathering System Assets”. that which is specifically exempt by law, and except that which B. The Task Force shall consist of six (6) members to be is relieved of ad valorem taxation by reason of the payment of an appointed as follows: in lieu tax, shall be subject to ad valorem taxation. 1. Three members shall be appointed by the Speaker of the See Liddell v. Heavner, 2008 OK 6, ¶8, 180 P.3d 1191; Home-Stake Prod. Oklahoma House of Representatives from the membership of the Co. v. Board of Equalization of Seminole County, 1966 OK 115, ¶16, 416 House; and P.2d 917. 2. Three members shall be appointed by the President Pro 4. Okla. Const. art. 10, §22 provides: Tempore of the Oklahoma State Senate from the membership of Nothing in this Constitution shall be held, or construed, to the Senate. prevent the classification of property for purposes of taxation; C. The Speaker of the Oklahoma House of Representatives and the valuation of different classes by different means or meth- shall designate one of the Speaker’s appointees as a cochair. The ods. President Pro Tempore of the Oklahoma State Senate shall desig- 5. Title 68 O.S. 2001 §2803(A) provides: nate one of the Pro Tempore’s appointees as a cochair. The Task

2462 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 Force shall conduct an organizational meeting not later than 25. Title 68 O.S. 2001 §2886 provides: August 31, 2002. In all cases where the illegality of the tax is alleged to arise by D. The Task Force shall conduct a study of the valuation of reason of some action from which the laws provide no appeal, gas gathering system assets for purposes of ad valorem taxation. the aggrieved person shall pay the full amount of the taxes and The study shall include: give notice of any lawsuit by such person at the time and in the 1. The valuation methods currently used for gas gathering manner provided by Section 2884 of this title. It shall be the duty systems; of the county treasurer to hold, invest and disburse such taxes 2. The methods used to determine whether gas gathering only in the manner provided for by Section 2884 of this title. system assets are subject to the jurisdiction of a county assessor 26. The Court in United construed 68 O.S. Supp. 1981 §2468(A), or the State Board of Equalization for purposes of valuation and which was repealed in 1988 and reenacted with substantially similar assessment; language at 68 O.S. Supp. 1988 §2885, where it has not been amended 3. Existing opinions of the courts of the State of Oklahoma since. Section 2468(A) provided: governing the valuation and assessment of gas gathering system The proceedings before the boards of equalization and assets or such other materials, cases, opinions or determinations appeals therefrom shall be the sole method by which assess- that may be relevant to the study; and ments or equalizations shall be corrected or taxes abated. Equi- 4. Other matters as may be pertinent to the study and recom- table remedies shall be resorted to only where the aggrieved mendations of the Task Force as the Task Force deems relevant. party has no taxable property within the tax district of which 11. Title 68 O.S. Supp. 2002 §2851.2(H) provided: complaint is made. The Task Force shall complete its study not later than Decem- 27. United Airlines, Inc. v. State Bd. of Equalization, 1990 OK 29, ber 31, 2003. ¶¶12-15, 789 P.2d 1305. See also Cantrell v. Sanders, 1980 OK 43, ¶¶4-7, 12. Title 68 O.S. Supp. 2003 §2851.2(H) provided: 610 P.2d 227; Dobson Cellular Sys. v. State Bd. of Equalization, 1998 OK The Task Force shall complete its study not later than Decem- CIV APP 62, ¶¶5-7, 957 P.2d 569. ber 31, 2005. 28. South Tulsa Citizens Coalition, L.L.C. v. Arkansas River Bridge Title 68 O.S. Supp. 2005 §2851.2(H) provides: Auth., see note 20, supra at ¶11; In re. Assessments for the Year 2005 of The Task Force shall complete its study not later than Decem- Certain Real Property Owned by Askins Properties, L.L.C., 2007 OK ber 31, 2007. 25, ¶12, 161 P.3d 303; Oklahoma Elec. Co-op, Inc. v. Oklahoma Gas & 13. Title 68 O.S. Supp. 2002 §2851.3 provides: Elec. Co., 1999 OK 35, ¶7, 982 P.2d 512; Reherman v. Oklahoma Water A. Effective January 1, 2003, there shall be no changes in the Res. Bd., see note 23, supra at ¶22. valuation methodology of gas gathering system assets. 29. South Tulsa Citizens Coalition, L.L.C. v. Arkansas River Bridge B. Effective January 1, 2003, there shall be no changes in the Auth., see note 20, supra at ¶11; Oklahoma Elec. Co-op, Inc. v. Okla- determination of whether gas gathering system assets are locally homa Gas & Elec. Co., see note 28, supra; Hendrick v. Walters, 1993 OK assessed or centrally assessed and the treatment of such assets 162, ¶7, 865 P.2d 1232; Boswell v. State, 1937 OK 727, ¶9, 74 P.2d 940. for the January 1, 2002, assessment year shall be maintained and 30. South Tulsa Citizens Coalition, L.L.C. v. Arkansas River Bridge preserved. Auth., see note 20, supra at ¶11; Oklahoma Elec. Co-op, Inc. v. Okla- 14. Chesapeake Energy Mktg., Inc. v. State Bd. of Equalization, homa Gas & Elec. Co., see note 28, supra at ¶8; Boswell v. State, see 2007 OK CIV APP 79, ¶15, 167 P.3d 446. note 29, supra. 15. Title 68 O.S. Supp. 2002 §2851.3, see note 13, supra. 31. South Tulsa Citizens Coalition, L.L.C. v. Arkansas River Bridge 16. Okla Const. art. 5, §46 provides in pertinent part: Auth., see note 20, supra at ¶11; Cooper v. State ex rel. Dept. of Public The Legislature shall not, except as otherwise provided in Safety, 1996 OK 49, ¶10, 917 P.2d 466; TRW/Reda Pump v. Brewington, this Constitution, pass any local or special law authorizing: 1992 OK 31, ¶5, 829 P.2d 15; Ledbetter v. Oklahoma Alcoholic Beverage . . . Extending the time for the assessment or collection of taxes, or otherwise relieving any assessor or collector of taxes Laws Enforcement Comm’n, 1988 OK 117, ¶7, 764 P.2d 172. from due performance of his official duties, or his securities from 32. Samman v. Multiple Injury Trust Fund, 2001 OK 71, ¶11, 33 P.3d liability . . . . 302; George E. Failing Co. v. Watkins, 2000 OK 76, ¶7, 14 P.3d 52; Nay- lor v. Petusky, 1992 OK 88, ¶4, 834 P.2d 439. Okla. Const. art. 5, §59 provides: Laws of a general nature shall have a uniform operation 33. Liddell v. Heavner, see note 3, supra; In re. Oneok Field Servs. throughout the State, and where a general law can be made Gathering, L.L.C., 2001 OK 116, ¶8, 38 P.3d 900. applicable, no special law shall be enacted. 34. Okla. Stat. art. 5, §59, see note 16, supra. 35. Ross v. Peters, 1993 OK 8, ¶27, 846 P.2d 1146; Reynolds v. Porter, Okla. Const. art. 10, §14(A), provides in pertinent part: Except as otherwise provided by this section, taxes shall be 1988 OK 88, ¶13, 760 P.2d 816. levied and collected by general laws, and for public purposes 36. Okla. Const. art. 5, §46, see note 16, supra. only . . . . 37. Okla. Const. art. 10, §14(A), see note 16, supra. 17. Okla. Const. art. 10, §5(B), provides: 38. Reynolds v. Porter, see note 35, supra at ¶17; Maule v. Indepen- Taxes shall be uniform upon the same class of subjects. dent Sch. Dist. No. 9 of Tulsa County, 1985 OK 110, ¶12, 714 P.2d 198. 18. Okla. Const. art. 10, §21(A), see note 7, supra. 39. Zeier v. Zimmer, 2006 OK 98, ¶11, 152 P.3d 861; Grant v. Good- 19. U.S. Const. amend. 14, §1, provides in pertinent part: year Tire & Rubber Co., 2000 OK 41, ¶5, 5 P.3d 594; Reynolds v. Porter, . . . No State shall make or enforce any law which shall see note 35, supra at ¶14. abridge the privileges or immunities of citizens of the United 40. Reynolds v. Porter, see note 35, supra at ¶14; Grabel v. Childers, States; nor shall any State deprive any person of life, liberty, or 1936 OK 271, ¶0, 56 P.2d 357. property, without due process of law, nor deny to any person 41. City of Enid v. Public Employees Relations Bd., see note 22, within its jurisdiction the equal protection of the laws. supra at ¶8; Grant v. Goodyear Tire & Rubber Co., see note 39, supra; Okla. Const. art. 2, §7 provides: Reynolds v. Porter, see note 35, supra at ¶14; No person shall be deprived of life, liberty, or property with- 42. Glasco v. State ex rel. Okla. Dept. of Corrections, 2008 OK , ¶22, out due process of law. 188 P.3d 177; Zeier v. Zimmer, see note 39, supra at ¶13. 20. South Tulsa Citizens Coalition, L.L.C. v. Arkansas River Bridge 43. Glasco v. State ex rel. Okla. Dept. of Corrections, see note 42, Auth., 2008 OK 4, ¶10, 176 P.3d 1217; Wathor v. Mut. Assurance supra at ¶21; Reynolds v. Porter, see note 35, supra at ¶14. Adm’rs, Inc., 2004 OK 2, ¶4, 87 P.3d 559; Oliver v. Farmers Ins. Group 44. Glasco v. State ex rel. Okla. Dept. of Corrections, see note 42, of Companies, 1997 OK 71, ¶6, 941 P.2d 985. supra at ¶28; Zeier v. Zimmer, see note 39, supra at ¶31; Calvey v. 21. South Tulsa Citizens Coalition, L.L.C. v. Arkansas River Bridge Dixon, 2000 OK 17, ¶21, 997 P.2d 164. Auth., see note 20, supra; Head v. McCracken, 2004 OK 84, ¶3, 102 P.3d 45. Affidavit of James C. Johnson, Record, Vol II, Sec. 2(I): 670; In re. Estate of MacFarline, 2000 OK 87, ¶3, 14 P.3d 551; Carmichael . . . CEMI’s primary function is to lay gathering lines to wells v. Beller, 1996 OK 48, ¶2, 914 P.2d 1051. operated by Chesapeake connecting those wells to pipelines 22. City of Enid v. Public Employees Relations Bd., 2006 OK 16, ¶5, operated by purchasers. . . . 133 P.3d 281; Hamilton v. Oklahoma City, 1974 OK 109, ¶15, 527 P.2d 46. Texaco Exploration & Prod., Inc., v. State Bd. of Equalization, 14. No. 85,256, p. 5 (Okla. Civ. App. 1996) cert. denied provides in pertinent 23. Mehdipour v. State ex rel. Dept. of Corrections, 2004 OK 19, ¶22, part: 90 P.2d 546; Reherman v. Oklahoma Water Res. Bd., 1984 OK 12, ¶11, . . . The evidence in the instant case shows Texaco owns and 679 P.2d 1296; National Collegiate Athletic Ass’n v. Owens, 1976 OK operates a gas gathering system in connection with its gas pro- 136, ¶12, 555 P.2d 879; Allen v. Burkhart, 1962 OK 279, ¶34, 377 P.2d cessing plants. Texaco does not transport gas for others. The gas 821. gathering system carries gas through underground pipes from 24. Title 68 O.S. 2001 §2885(A), see note 2, supra. producing wells to its gas processing plants. After the gas is

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2463 processed, in which the gas is made usable and marketable, it is . . . The term “public service corporation” shall include all sold to gas pipeline companies. . . . transportation and transmission companies, all gas, electric, 47. South Tulsa Citizens Coalition, L.L.C. v. Arkansas River Bridge heat, light and power companies, and all persons, firms, corpora- Auth., see note 20, supra at ¶11; Sun Oil Co. v. Goldstein, 453 F. Supp. tions, receivers or trustees engaged in said businesses, and all 787, 795 (D. Md. 1978) (Test of constitutionality is whether a statute has persons, firms, corporations, receivers or trustees authorized to a reasonable relation to a legitimate State purpose, not statute’s legisla- exercise the right of eminent domain or having a franchise to use tive life.). or occupy any right of way, street, alley or public highway, 48. Okla. Const. art. 10, §5(B), see note 17, supra. whether along, over or under the same, in a manner not permit- 49. Title 68 O.S. 2001 §2803(C) provides: ted to the general public, and all persons, firms, corporations, Classification as provided by this section shall require uni- receivers and trustees engaged in any business which is a public form treatment of each item within a class or any subclass as utility or a public service corporation, at the present time or provided in Article X, Section 5 of the Oklahoma Constitution. which may hereafter be declared to be a public utility or a public See also Bison Nitrogen Prod. Co. v. Lucas, 1987 OK 46, ¶3, 738 P.2d 147; service corporation . . . . Cantrell v. Sanders, see note 27, supra at ¶14. The term “public service corporation” is also defined at 68 O.S. 2001 50. Okla. Const. art. 10, §22, see note 4, supra. See also Regan v. §2808(A)(1), which provides in pertinent part: Taxation With Representation of Washington, 461 U.S. 540, 547, 103 “Public service corporation” means all transportation com- S.Ct. 1997, 76 L.Ed.2d 129 (1983); Fent v. State ex rel. Okla. Tax Comm’n, panies, transmission companies, all gas, electric, light, heat and 2004 OK 59, ¶10, 99 P.3d 251; Williams Nat. Gas Co. v. State Bd. of power companies and all waterworks and water power compa- Equalization, 1994 OK 150, ¶14, 891 P.2d 1219. nies, and all persons authorized to exercise the right of eminent 51. In re. Income Tax Protest of Flint Res., 1989 OK 9, ¶13, 780 P.2d domain or to use or occupy any right-of-way, street, alley, or 665; Sowders v. Oklahoma Tax Comm’n, 1976 OK 95, ¶19, 552 P.2d public highway, along, over or under the same in a manner not 698. permitted to the general public. 52. Olson v. Oklahoma Tax Comm’n, 1947 OK 58, ¶0, 180 P.2d 68. Okla. Const. art. 9, §34, see note 67, supra. 622. 69. Title 52 O.S. 2001 §24.4(1) provides in pertinent part: 53. Zeier v. Zimmer, see note 39, supra at ¶12; Stephens Produce “Gathering” is the transportation of natural gas through a Co. v. Stephens, 1958 OK 277, ¶0, 332 P.2d 674; Baskin v. State, 1925 OK pipeline for hire, compensation or otherwise, or transporting 1, ¶10, 232 P.2d 388. natural gas through a pipeline, in whole or in part, for such 54. Zeier v. Zimmer, see note 39, supra at ¶12; Wyatt-Doyle & But- person’s own account, whether in connection with the purchase ler Engineers, Inc. v. City of Eufaula, 2000 OK 74, ¶8, 13 P.3d 474; In re. and resale of natural gas, or in connection with the processing of Initiative Petition No. 344, 1990 OK 75, ¶16, 13 P.2d 474. natural gas or otherwise, performed by a person other than a Okla. Const. art. 7, §1 provides in pertinent part: local distribution company, intrastate transmission pipeline or The judicial power of this State shall be vested in Senate, sit- interstate pipeline. Gathering includes those activities or pro- ting as a Court of Impeachment, a Supreme Court, the Court of cesses performed between the delivery points and the redelivery Criminal Appeals, the Court on the Judiciary, the State Industrial points, which shall include and be limited to only transportation, Court, the Court of Bank Review, the Court of Tax Review, and measurement, conditioning, compressing, pressure regulation, such intermediate appellate courts as may be provided by stat- recompressing, cleaning and treating of such gas and the fuel or ute. . . . gas loss associated with such foregoing activities. The terms Okla. Const. art. 7, §4 provides in pertinent part: “conditioning, cleaning and treating” as used herein shall The appellate jurisdiction of the Supreme Court shall be co- include those processes of separation, dehydration, removal of extensive with the State and shall extend to all cases at law and all contaminants and inerts and filtering. Gathering specifically in equity; except that the Court of Criminal Appeals shall have shall not include processing or the extraction of natural gas liq- exclusive appellate jurisdiction in criminal cases until otherwise uids and products. . . . (Emphasis added.) provided by statute and in the event there is any conflict as to 70. In re. Initiative Petition 382, 2006 OK 45, ¶10, 142 P.3d 400. jurisdiction, the Supreme Court shall determine which court has 71. Title 15 U.S.C.A. §717f(h) (2008) provides in pertinent part: jurisdiction and such determination shall be final. . . . Right of eminent domain for construction of pipelines, etc. Okla. Const. art. 7, §7(a) provides in pertinent part: When any holder of a certificate of public convenience and . . . the District Court shall have unlimited original jurisdic- necessity cannot acquire by contract, or is unable to agree with tion of all justiciable matters, except as otherwise provided in the owner of property to the compensation to be paid for, the this Article, and such powers of review of administrative action necessary right-of-way to construct, operate, and maintain a pipe as may be provided by statute. . . . line or pipe lines for the transportation of natural gas, and the 55. Okla Const. art. 10, §21(A), see note 7, supra. necessary land or other property, in addition to right-of-way, for 56. Title 68 O.S. 2001 §2881(E) provides: the location of compressor stations, pressure apparatus, or other In all instances where the notice of assessed valuation certi- stations or equipment necessary to the proper operation of such fied by the State Board of Equalization has been permitted to pipe line or pipe lines, it may acquire the same by the exercise of become final, such notice shall have the same force and be sub- the right of eminent domain in the district court of the United ject to the same law as a judgment not subject to further appeal. States for the district in which such property may be located, or 57. Title 68 O.S. 2001 §2886, see note 25, supra. in the State courts. . . . 58. U.S. Const. amend. 14, §1, see note 19, supra. 72. Title 52 O.S. 2001 §27 provides: 59. Okla. Const. art. 2, §7, see note 19, supra. Every domestic pipeline company in this state is hereby 60. Hartford Steam Boiler Inspection & Ins. Co. v. Harrison, 301 given authority to build, construct, lay and maintain gas pipe- U.S. 459, 461, 57 S.Ct. 838, 81 L.Ed. 1223 (1937); Suglove v. Oklahoma lines, over, under, across, or through all highways, bridges, Tax Comm’n, 1979 OK 168, ¶17, 605 P.2d 1315. streets or alleys in this state or any public place under the super- 61. Hillborough v. Cromwell, 326 U.S. 620, 623, 66 S.Ct. 445, 90 L. vision of the Corporation Commission as to where and how in Ed. 358 (1946); Williams Nat. Gas Co. v. State Bd. of Equalization, see said highways, bridges, streets, alleys and public places said note 50, supra at ¶15. pipelines shall be laid. Provided the right to lay gas pipelines in 62. Regan v. Taxation With Representation of Wash., see note 50, cities shall be acquired as now provided by law, and subject to supra; Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 359, 93 the responsibility as otherwise provided by law for any negligent S.Ct. 1001, 35 L.Ed.2d 351 (1973); Williams Nat. Gas Co. v. State Bd. of injury thereby caused. All persons, natural or artificial, except Equalization, see note 50, supra. foreign corporations, shall have the right of eminent domain, 63. Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 and any right or privilege hereby conferred, when necessary to (1992); Williams Nat. Gas Co. v. State Bd. of Equalization, see note 50, make effective the purposes of this act and the rights thereby supra. conferred. Foreign corporations organized under the laws of any 64. Allegheny Pittsburgh Coal Co. v. County Comm’n of Webster other state or territory, or the United States, and doing or propos- County, W. Va., 488 U.S. 336, 344, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989); ing to do business in this state, and which shall have become a Brown-Forman Co. v. Kentucky, 217 U.S. 563, 573, 30 S.Ct. 578, 54 L.Ed body corporate pursuant to or in accordance with the laws of this 883 (1910). state, and which, as hereby provided, shall have registered its 65. Nordlinger v. Hahn, see note 63, supra; Williams Nat. Gas Co. acceptance of the terms hereof, shall receive all the benefits by v. State Bd. of Equalization, see note 50, supra. this act provided. 66. Williams Nat. Gas Co. v. State Bd. of Equalization, see note 50, 73. Title 15 U.S.C.A. §717(b) provides in pertinent part: supra at ¶16. The provisions of this chapter . . . shall not apply to any other 67. Okla. Const. art. 9, §34 provides in pertinent part: transportation or sale of natural gas or to the local distribution of

2464 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 natural gas or to the facilities used for such distribution or to the production or gathering of natural gas. (Emphasis added.) 74. Title 52 O.S. 2001 §27, see note 72, supra. 75. Title 52 O.S. 2001 §26 provides in pertinent part: Before any corporation, joint stock company, limited copart- nership, partnership or other persons shall have, possess, enjoy or exercise the right of eminent domain, right-of-way, right to locate, maintain or operate pipelines, fixtures or equipment thereunto belonging, or used in connection therewith, as authorized by the provisions of this act, or shall have, possess, enjoy or V exercise any right (the word “right” in this connection being olume 78 ◆ No. 35 ◆ D used in its most comprehensive legal sense) conferred by this act, ec. 22, 2007 every such corporation, joint stock company, limited copartner- ship, partnership or other person, shall file in the office of said Corporation Commission proper and explicit authorized acceptance of the provisions of this act and the Constitution of this state, in cases of pipelines a plat . . . . 76. Title 69 O.S. Supp. 2004 §1401(A-B) provides in pertinent part: Any public utility, or cable television system, not otherwise authorized to do so, lawfully operating or doing business in the State of Oklahoma shall have the right to use the public roads and highways of this state, including the right-of-way and all easements pertaining thereto, as provided for in this section . . . [T]he boards of county commissioners may grant to any citizen the right to lay pipes and conduits under the surface of any road or highway under their jurisdiction, subject to such rules, regulations and conditions as shall be prescribed by the board of county commissioners. . . . 77. Title 69 O.S. Supp. 2004 §1401(D) provides: “Public utility” and “cable television systems” as used in this section and in Sections 1402 and 1403 of this title shall be defined Court Ma as a person, corporation, association, limited liability company terial or partnership, company, or any other form of entity organized and existing or domesticated under the laws of this state, and whose users lie within the State of Oklahoma. Such terms as used in this section and Sections 1402 and 1403 of this title specifically shall not apply to persons, corporations, associations, limited liability companies or partnerships, companies, or any Print or other form of entity which obtains status through the Corpora- tion Commission as a public utility, but whose end users are not within the State of Oklahoma. Electronic? Title 17 O.S. 2001 §152(A) provides: The Commission shall have general supervision over all public utilities, with power to fix and establish rates and to pre- You now have a choice. scribe and promulgate rules, requirements and regulations, affecting their services, operation, and the management and Continue receiving your printed Oklahoma conduct of their business; shall inquire into the management of the business thereof, and the method in which same is conduct- Bar Journal court issues (two ed. per month) in the mail – or receive an e-mail 78. Title 52 O.S. 2001 §10 provides: Every gas pipeline corporation or individual in this state is with a link to the electronic version instead. hereby given authority to build, construct and maintain gas Mailed copies stop. There’s no dues reduc- pipelines, over, under, across or through all highways, bridges, streets, or alleys in this state, or any public place therein, under tion, but you save some trees. the supervision of the inspector of oil and gas as to where and how in said highways, bridges, streets, alleys and public places If you want the electronic version of the said pipe lines shall be laid, subject to the control of the local municipalities as to how the business of distribution in that court issues and didn’t indicate that on municipality shall be conducted, and subject to responsibility as your dues statement go online to http:// otherwise provided by law; provided, however, that whenever any gas pipeline crosses the land or premises of anyone outside my.okbar.org/Login and sign in. Click on of a municipality, said corporation shall, by request of the owner of said premises, connect said premises with a pipe line and “Roster Info” to switch to electronic. Be sure furnish gas to said consumer at the same rate as charged in the your e-mail address is current. nearest city or town. 79. Title 52 O.S. 2001 §8 provides: Before any gas pipeline corporation shall acquire any right- of-way, or exercise the right of eminent domain within this state, or construct any pipelines for the transportation of gas, it shall Want the print version? file in the office of the Corporation Commission a plat showing in detail the points in this state between which and the route No need to do anything. along which its trunk line is proposed to be constructed, the intended size and capacity thereof, and the location and capacity of all pumping stations, gate valves, check valves and connections of all kinds on said trunk lines; and upon the demand of the Corporation Commission, it shall file a plat showing in detail all the lines owned or operated by it, with full information as to their capacity and size, location and capacity of its pumping station, gate valves, check valves and connections of all kinds in existence. 80. Zeier v. Zimmer, see note 39, supra at ¶31.

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2465 OBA/CLE Presents

Writing to Win: Legal Writing that Creatively, Persuasively, and Successfully Wins Cases

Tulsa Oklahoma City DATES & October 29, 2008 October 30, 2008 LOCATIONS: Renaissance Hotel Oklahoma Bar Center 6808 S. 107th E. Ave. 1901 N. Lincoln Blvd.

CLE CREDIT: This course has been approved by the Oklahoma Bar Association Mandatory Continuing Legal Education Commission for 7 hours of mandatory CLE Credit, including 1 hour of ethics.

TUITION: $225 for early-bird registrations received with payment at least four full business days prior to the seminar date; $250 for registrations received within four full business days of the seminar date. Register online at www.okbar.org/cle. No discounts.

CANCELLATION Cancellations will be accepted at any time prior to the seminar date; however, a $25 POLICY: fee will be charged for cancellations made within four full business days of the seminar date. Cancellations, refunds, or transfers will not be accepted on or after the seminar date.

William Bernhardt Mr. Bernhardt is the New York Times-bestselling author of over twenty mystery-thrillers that have sold more than ten million copies worldwide, most recently Capitol Conspiracy.

W illiam Bernhardt loves his work and it shows. Library Journal has called him the "master of the courtroom drama" and his twenty-three books have sold more than ten million copies worldwide. The Vancouver Sun dubbed him "the American equivalent of P.G. Wodehouse and John Mortimer." He is also the author of The Code of Buddyhood, a coming-of-age novel described by The West Coast Review of Books as "a powerful and sophisticated novel about the nature of friendship," and a biography for young adults, Equal Justice: The Courage of Ada Sipuel.

His twenty-three books have been translated and published in more than two dozen countries and have sold more than ten million copies worldwide. Four have been on the New York Time's Best Seller List. He has twice won the Oklahoma Book Award for Best Fiction, in 1995 and 1999, and in 1998 he received the Southern Writers Guild's Gold Medal Award. In 2000, he was honored with Oklahoma State University’s H. Louise Cobb Distinguished Author Award, which is given "in recognition of an outstanding body of work that has profoundly influenced the way in which we understand ourselves and American society at large." That same year, he was presented with a Career Achievement Award at the 2000 Booklovers Convention in Houston. In 2001, he began holding annual writing workshops and soon became one of the most acclaimed and in-demand writing instructors in the country.

2466 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 Program: This program helps litigators (and other lawyers appearing before judges or mediators) improve their writing skills to win more cases. The topics addressed include: finding the theme of the case, giving your pleadings and briefs focus and direction, spotting the weaknesses in your opponent’s case, setting a winning tone from the first sentence, the critical importance of tight editing for clarity and impact creating a compelling story the best represents your client, and supporting critical positions with arguments.

All examples are graphically illustrated on PowerPoint. The lawyers will be asked to work on exercises which are also displayed on PowerPoint, so they can see the editing evolve from the sample problem to the improved final product. This technique allows participants to readily grasp the point, see the improvement, and leave the seminar ready to implement these winning techniques.

8:30 a.m. Registration & Continental Breakfast 9:00 Session 1 (includes 10-minute break) 12:10 p.m. Networking lunch (included in registration) 12:40 Session 2 (includes 10-minute break) 3:40 Adjourn

Writing to Win: Legal Writing that Creatively, Persuasively, and Successfully Wins Cases

G Tulsa October 29, 2008 Full Name______Firm ______G Oklahoma City Address ______October 30, 2008 City ______State ______Zip______Phone ( ) ______E - Mail ______Are you a Member of OBA? Yes No OBA Bar#______

Make Check payable to the Oklahoma Bar Association and mail entire page to: CLE REGISTRAR, P.O. Box 53036 Oklahoma City, OK 73152

For Visa or Master Card Fax (405) 416-7092, Phone or Mail •(405) 416-7006

Credit Card# Exp.date______

Authorized Signature

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2467 OBA/CLE presents Show Me the Money: Damages in Oklahoma

Oklahoma City Tulsa DATES& December 12, 2008 December 19, 2008 LOCATIONS: Oklahoma Bar Center Renaissance Hotel 1901 N. Lincoln Blvd. 6808 S. 107th East Ave.

CLE CREDIT: This course has been approved by the Oklahoma Bar Association Mandatory Continuing Legal Education Commission for 6 hours of mandatory CLE credit, including 0 hours of ethics.

TUITION: $150 for early-bird registrations with payment received at least four full business days prior to the seminar date; $175 for registrations with payment received within four full business days of the seminar date. Register online at www.okbar.org/cle. The Oklahoma City program will be webcast. For details go to www.legalspan.com/okbar/webcasts.asp. CANCELLATION POLICY: Cancellations will be accepted at any time prior to the seminar date; however, a $25 fee will be charged for cancellations made within four full business days of the seminar date. Cancellations, refunds, or transfers will not be accepted on or after the seminar date.

Program Planner/Moderator Margaret Clarke, Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., Tulsa

8:30 a.m. Registration & Continental 11:10 Deposing and Cross-Examining Breakfast Experts: How to Prepare for Examination of Expert 9:00 What is Your Case Worth? David Russell, Rodolf & Todd, Tulsa Evaluating Whether or Not to Take the Case 12:10 Networking lunch (included in Oklahoma City Program registration) Jennifer DeAngelis, Brewster & DeAngelis, Tulsa 12:40 How to Bust the Punitive Damage Tulsa Program Cap Without Getting Busted on Guy Fortney, Brewster & DeAngelis, Appeal Tulsa TBA

10:00 Break 1:40 Break

10:10 Defending Economic Damages in 1:50 Defending the Daubert Employment Kerry Lewis, Rhodes, Hieronymus, Steve Broussard, Hall, Estill, Hardwick, Jones, Tucker & Gable, Tulsa Gable, Golden & Nelson, P.C., Tulsa 2:50 Adjourn

Show Me the Money! Damages in Oklahoma Full Name______Firm ______G Oklahoma City December 12, 2008 Address ______City ______State ______Zip______G Tulsa December 19, 2008 Phone ( ) ______E - Mail ______Are you a Member of OBA? Yes No OBA Bar#______G Materials only $80 Make Check payable to the Oklahoma Bar Association and mail entire page Pub # 362 to: CLE REGISTRAR, P.O. Box 53036 Oklahoma City, OK 73152 For Visa or Master Card Fax (405) 416-7092 Phone •(405) 416-7006 or Mail Credit Card# Exp.date______Authorized Signature

2468 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 104th Annual Meeting • Nov. 19-21, 2008 104th OBA Annual Meeting Sheraton Hotel, Oklahoma City Nov. 19-21, 2008 All events will be held at the Sheraton Hotel unless otherwise specified.

TUESDAY, NOVEMBER 18 OU College of Law Alumni Reception and Luncheon ...... 11:15 a.m. – 1:30 p.m. OBA Registration ...... 4 – 8 p.m. OUTSTANDING SENIOR LAW SCHOOL STUDENT AWARD Oklahoma Fellows of Blake Pinard the American Bar Foundation ...... 6:30 – 9:30 p.m. TU College of Law Alumni Luncheon ...... 11:30 a.m. – 1:30 p.m. WEDNESDAY, NOVEMBER 19 OUTSTANDING SENIOR LAW SCHOOL STUDENT AWARD Oklahoma Fellows of the American Bar Melissa Taylor Foundation ...... 8 – 9 a.m. OCU College of Law Art Show Registration ...... 8 a.m. – 5 p.m. Alumni Luncheon ...... Noon – 1:30 p.m. OUTSTANDING SENIOR LAW SCHOOL STUDENT AWARD OBA Hospitality Area ...... 8 a.m. – 5 p.m. Melissa Peros

OBA Registration ...... 8 a.m. – 5 p.m. Criminal Law Section Luncheon ...... Noon – 1:30 p.m. Board of Bar Examiners ...... 8:30 – 11:45 a.m. Board of Governors Meeting ...... 2 – 4 p.m.

OBA/CLE Seminar ...... 8:30 a.m. – 5 p.m. Legal Intern Committee ...... 2:30 – 3:30 p.m. See seminar program for speakers and complete agenda Friends of Bill W...... 5 – 6 p.m. Criminal Law Family Law Work/Life Balance Law Day Committee ...... 5 – 6:30 p.m. Nuts & Bolts

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2469 Featuring: President’s Reception – Life’s a Beach ...... 7 – 9 p.m. (Free for everyone with meeting registration) Rita Murray Kick back, relax and enjoy a day at the beach with Leadership coach President Bill Conger. Each attendee receives two free drink tickets.

ENTERTAINMENT: Chuck Allen Floyd

American Idol - OBA Style ...... 9 – 11 p.m. Topic: A Perfect Storm of Opportunity: Communicating across the Generations ENTERTAINMENT: Watch fellow OBA members BARRISTER SPONSOR: compete for the title of OBA Idol OBA Litigation Section in this entertaining spin off of the hit TV show, American Idol. ESQUIRE SPONSOR: Oklahoma Attorneys Mutual Insurance Co. Admission is free.

Access to Justice THURSDAY, NOVEMBER 20 Committee ...... 9:15 – 10:45 a.m.

Pro Bono Breakfast ...... 7:30 – 9 a.m. OBA Rules and By-Laws Committee ...... 10 – 10:30 a.m.

American College of Trust and Estate Counsel ...... 8 – 9:30 a.m. Estate Planning, Probate and Trust Section ...... 10 – 11:45 a.m.

Professionalism OBA Bench and Bar Committee Breakfast ...... 8 – 9 a.m. Committee ...... 10 – 11:45 a.m.

American College of OBA Resolutions Trial Lawyers ...... 8 – 9 a.m. Committee ...... 10:45 – 11:45 a.m.

OBA Hospitality Area ...... 8 a.m. – 5 p.m. OBA Annual Luncheon for Members, Spouses and Guests ...... Noon – 1:45 p.m. OBA Registration ...... 8 a.m. – 5 p.m. ($30 with meeting registration)

Oklahoma Association OBA ARTIST OF THE YEAR for Justice ...... 8:30 a.m. – 4 p.m. (to be announced at the luncheon) JUDICIAL EXCELLENCE AWARD Credentials Committee ...... 9 – 9:30 a.m. Judge Doyle Argo, Oklahoma City Judge Vicki Robertson, Oklahoma City

LIBERTY BELL AWARD OBA/CLE Plenary Central Oklahoma Association of Legal Assistants Session ...... 9 – 11:40 a.m. (COALA)

EARL SNEED AWARD Julie Simmons Rivers, Oklahoma City

2470 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 JOE STAMPER DISTINGUISHED SERVICE AWARD Andrew R. Turner, Conner & Winters, Bob E. Bennett, Ada Tulsa

ALMA WILSON AWARD Mark A. Craige, Morrell Saffa Craige, Renee DeMoss, Tulsa Tulsa Judge Richard A. Woolery, Sapulpa Topic: SemCrude: Status of Bankruptcy Case FERN HOLLAND COURAGEOUS LAWYER AWARD and Rights of Producers Robert McCarthy, Oklahoma City (Approved for 2 hours CLE credit) GOLDEN GAVEL AWARD OBA Work/Life Balance Committee, Melanie Jester, Chair Real Property Section ...... 2 – 4 p.m.

NEIL E. BOGAN PROFESSIONALISM AWARD Judy Hamilton Morse, Oklahoma City Law Office Management and Technology Section ...... 2 – 4 p.m. JOHN E. SHIPP AWARD FOR ETHICS Ronald Main, Tulsa 2008-2009 OBA Featuring: Leadership Academy...... 2 – 5 p.m.

Oklahoma Bar Foundation Board of Trustees ...... 2:30 – 5:30 p.m. Jeffrey Toobin Law, media and OBA/CLE and Lawyers political analyst Helping Lawyers Assistance Program Present Framing the Questions/Finding the Answers: Mental Health and the OBA ...... 3 – 4:15 p.m. (OBA Annual Meeting Jeffrey Toobin Book Signing ...... 2 – 3 p.m. registration not required (Books available for purchase) for admission) Program: Women in Law Committee ...... 2 – 3:15 p.m. What’s Happening with Mental Health Services in Oklahoma? Oklahoma Criminal Defense Lawyers Association ...... 2 – 4 p.m. How is the OBA Addressing Member Mental Health Issues? How Should OBA Members Address Alternative Dispute Lawyer Mental Health Issues? (ethics) Resolution Section ...... 2 – 3 p.m. Moderator:

Bankruptcy and Clif Gooding, The Gooding Law Firm PC, Reorganization Section ...... 2 – 4 p.m. Oklahoma City Speakers: Speakers: Steven W. Bugg, McAfee & Taft, Terri White, Oklahoma Department of Oklahoma City Mental Health and Substance Abuse Services, Oklahoma City Judy Hamilton Morse, Crowe & Dunlevy, Oklahoma City Mike Stewart, Bradford Health Services, Alabama Gary M. McDonald, Doerner Saunders Daniel & Anderson, Tulsa John Albert, Mike Arnett & Associates, Oklahoma City

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2471 Gina Hendryx, OBA Ethics Counsel, Oklahoma City FRIDAY, NOVEMBER 21

Diversity Committee Forum ...... 3 – 4:30 p.m. President’s Prayer Breakfast ...... 7:30 – 9 a.m. ($20 with meeting registration) Board of Editors ...... 3:30 – 5 p.m. Featuring: Financial Institutions Section ...... 3:30 – 4:30 p.m.

Mineral Law Section ...... 4 – 6 p.m. Dr. Robert Gorrell Church of the Servant, Oklahoma City Diversity Committee Reception ...... 4:30 – 5:30 p.m.

Topic: Living an Epic Life Workers’ Compensation Section ...... 5 – 7:30 p.m. YLD Fellows Breakfast ...... 7:30 – 9 a.m. Health Law Section ...... 5 – 7 p.m. OBA Registration ...... 8 – 10 a.m. OBF Reception ...... 6 – 7:30 p.m. Oklahoma Bar Association General Assembly ...... 9 – 10 a.m. Just Desserts ...... 7:30 – 9 p.m. (Free for everyone TRAILBLAZER AWARD with meeting registration) Judge Thomas S. Landrith, Ada

Satisfy your sweet tooth with a divine selection of OUTSTANDING COUNTY BAR AWARD desserts and coffee. Cleveland County Bar Association ENTERTAINMENT: Jazz entertainer Justin Echols Pontotoc County Bar Association HICKS EPTON LAW DAY AWARD YLD Casino Night ...... 9 p.m. – Midnight Bryan County Bar Association (Free for everyone Tulsa County Bar Association with meeting registration) OUTSTANDING YOUNG LAWYER AWARD Christopher L. Camp, Tulsa

SPONSOR: OBA YOUNG LAWYERS DIVISION OUTSTANDING SERVICE TO THE PUBLIC AWARD S. Douglas Dodd, Tulsa

OUTSTANDING PRO BONO SERVICE Jim Webb, Oklahoma City

MAURICE MERRILL GOLDEN QUILL AWARD Sarah J. Glick, Oklahoma City Phil R. Richards, Tulsa

PRESIDENT’S AWARDS (to be announced)

2472 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 ______

General Assembly Indian Law Section ...... 10 a.m. – Noon Speakers: Chief Justice Oklahoma Bar Association James R. Winchester House of Delegates ...... 10 a.m. – Noon Oklahoma Supreme Court

Jon K. Parsley President-Elect, Presiding

Presiding Judge Gary L. Lumpkin Oklahoma Court of Criminal Appeals Ballot Committee ...... 11 – 11:30 a.m.

2008-2009 OBA Leadership Academy...... 1 – 6 p.m. To include your event in the OBA Annual Meeting, fax your meeting room J. William Conger reservation form to OBA Administration President Director Craig Combs at (405) 416-7089 and e-mail detailed program material to OBA Communications Specialist Melissa Brown at [email protected].

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2473 OBA/CLE Annual Meeting 2008 November 19, 2008 • Sheraton Hotel DAY 1 Family LawCriminal Law Work/Life Nuts & Bolts Balance

WEDNESDAY Program Planner/ Program Planner/ Program Planner/ Program Planners/ Registration Moderator Moderator Moderator Moderators 8 - 9 a.m. Amy E. Wilson Ben Brown Leslie Lynch Lindsey Andrews Melanie J. Jester Eric Schelin

Session 1 Cocktail Party Family Perceptions from the Substance Abuse - Maneuvering 9 - 9:50 a.m. Law Tips for the Other Side Spotting the Signs in Through DPS Non-Family Law Attorney Our (Friends and) and the DUI Case Charles Sifers Colleagues and Tips on Rees Evans David Prater What to Do to Protect David Ogle David Echols Judge Virgil C. Black Our Practice (and Eileen Echols Catherine Burton Their Lives) Marny Hill Carol Iski Glenn Mirando

Session 2 Legislative Update Representing Your How to Pay Those Law Commencing the 10 - 10:50 a.m. Client before the School Loans (and Estate Administration Noel Tucker Oklahoma Pardon & Other Debts) while Process Julie Rivers Parole Board Saving For the Future Jack L. Brown Mike Arnett Melinda Olbert Susan Loving J.D. Daniels

Session 3 Parenting Coordinator Digital Forensic Find Joy in Life - To How to Play Nice in Basics: How to Get a Information from Make Bad Days the Sandbox: Tips on 11 - 11:50 a.m. PC Appointed, PC Cameras and Practicing Law a Little Professionalism, Authority, and Reading Cell Phones More Tolerable Civility and Etiquette PC Reports (ethics) Mark R. McCoy Linda King Jerry Perigo Ryan Cunningham Members of YLD Rodney Cook

12-2 p.m. LUNCH (On your own)

Session 4 The New Child Representing Clients What to Do When Getting to Know Support Guidelines: before the Department Your Case Goes to Hell Discovery: Tips for 2 -2:50 p.m. What You Need of Public Safety… (ethics) Civil, Family, and to Know About What Lawyers General Practice Changes to the Should Expect? Gina Hendryx Guidelines Statute Judge Edward Cunningham John Echols Wellon Poe Amy Howe Amy E. Wilson Deann Taylor Matt McDevitt

2474 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 OBA/CLE Annual Meeting 2008

Family LawCriminal Law Work/Life Nuts & Bolts cont’d Balance

Session 5 Best Web Sites for Prosecutorial Navigating the The Basics of Family Lawyers Misconduct/Ineffective Intersection of Work Implementing (and 3 - 3:50 p.m. Assistance of & Life - Charting Keeping) a Guardian Jim Calloway Counsel… Organizational and Ad Litem What To Avoid? Individual Success David Echols Chris Blair Jannine Rupp Eileen Echols Ellen Ostrow

Session 6 Family Law Ethics DNA Analysis Updates Life Goes to Hell - But What Your Clients 4 - 4:50 p.m. Players (ethics) and Changes the Law Goes On Need to Know About Employment Law Donelle Ratheal Mary Long Jim Chastain Jay Buxton Jim Calloway Erica Anne Dorwart Rees Evans Joe Ashbaker Phil Tucker Noel Tucker Eileen Echols

4:50 p.m. ADJOURN November 20 DAY TWO

THURSDAY Registration 8 - 9 a.m.

Featured Speaker: Rita Murray Topic: OBA/CLE Workforce demographic, A Perfect Storm cultural and socioeconomic Plenary of Opportunity: events are colliding to produce Session Communicating the biggest business changes Across the ever experienced in the United States, Canada and many other 9 - 11:40 a.m. Generations developed countries. Using a provocative and insightful look at the successful business diversity initiatives in the legal profession, this presentation will provide practical ideas you can put to work now.

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2475 2008 Annual Meeting Registration Form Please complete a separate form for each registrant. h Annua ______104t l Meeting • N Name ______ov. 19-21, 2008 ______E-mail ______Bar No. ______Badge Name (if different from roster) ______Address ______Phone ______City ______State ______Zip ______Name of Non-Attorney Guest ______❑ Yes ❑ No Please change my OBA roster information to the information above. Check all that apply: ❑ Judiciary ❑ OBF Fellow ❑ OBF Past President ❑ OBA Past President ❑ YLD Ofﬁ cer ❑ YLD Board Member ❑ YLD Past President ❑ Board of Bar Examiner ❑ 2008 OBA Award Winner ❑ Delegate ❑ Alternate ❑ County Bar President: County ______

❑ YES! Register me for the 2008 Annual Meeting, November 19, 20 & 21, in Oklahoma City. Events will be held at the Sheraton Hotel. Registration fee includes continental breakfast in hospitality area, President’s Reception ticket(s), Just Desserts reception, convention gift, Vendors Expo, Art Contest and Viva Las Vegas Casino Night. ■ MEMBER: ❑ $50 through Oct. 24; $75 after Oct. 24 ...... $ ______■ NEW MEMBER (Admitted after Jan. 1, 2008): ❑ Free through Oct. 24; $15 after Oct. 24 ...... $ ______■ LAW STUDENT DIV. ❑ $25 through Oct. 24; $35 after Oct. 24 ...... $ ______❑ I will submit an entry (or entries) in the Art Contest. (Submit art registration form by Oct. 24. Entry fee included in meeting registration.)

I will be attending/participating in the following ticketed events in addition to my registration fee for Annual Meeting: ❑ WED. & THURS.: CLE Multitrack ( ___ [0 or 1] ticket @ $150 through Oct.24; $175 after Oct. 24; and Plenary $50 for new members through Oct. 24, $75 after Oct. 24) ...... $ ______❑ THURSDAY: CLE Plenary only ( ___ [0 or 1] ticket @ $75 through Oct. 24; $100 after Oct. 24; $25 for new members through Oct. 24, $50 after Oct. 24)...... $ ______❑ THURSDAY: Annual Luncheon ( ___ number of tickets @ $30 each) ...... $ ______❑ FRIDAY: President’s Prayer Breakfast ( ___ number of tickets @ $20 each) ...... $ ______❑ Please check here, if under the Americans with Disabilities Act you require speciﬁ c aids or services during your visit to the OBA Annual Meeting. ❑ Audio ❑ Visual ❑ Mobile (Attach a written description of your needs.)

I will be attending the following ticketed events that do NOT require Annual Meeting registration: ❑ WEDNESDAY: Law School Luncheon – (check one) ❑ OCU ❑ OU ❑ TU ( ___ number of tickets @ $30 each ...... $ ______TOTAL $ ______YS TO REGISTER THREE WA PAYMENT OPTIONS: ■ MAIL this registration form with payment ❑ Check enclosed: Payable to Okla. Bar Association or credit card info to: Credit card: ❑ VISA ❑ Mastercard OBA Annual Meeting P. O . Box 53036 Card #______Okla. City, OK 73152 Exp. Date______FAX this registration form with credit card Authorized Signature information to: (405) 416-7092. ______.okbar.org ■ ONLINE at www HOTEL ACCOMMODATIONS: Full refunds ■ CANCELLATION POLICY Fees do not include hotel accommodations. For reservations contact: Sheraton will be given through Nov. 7. No refunds Hotel at (405) 235-2780. Call by Oct. 26 and mention hotel code: OK BAR will be issued after deadline. for a special room rate of $94 per night. For hospitality suites, contact Craig Combs at (405) 416-7040 or e-mail: [email protected].

2476 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 OBA Annual Meeting Event Wednesday, Nov. 19, 2008 9 – 11 p.m. • Perform one song to wow celebrity judges • Prizes for first, second & third places • Limited to15 individuals American or groups American • Groups must include at least 1 OBA member – OBA Style • Participants provide IdolIdol background music on CD • OBA performers must register for the meeting

Fill out the form below and submit. or print and mail to: American Idol – OBA Style, OBA, P.O. Box 53036, OKC 73152 Fax to: 405.416.7089 • Scan & e-mail to: [email protected]

Name of act: ______Your Name: ______OBA #:______E-mail address: ______

If group, names of other performers: ______OBA # (if applicable) ______OBA # (if applicable) ______OBA # (if applicable) ______OBA # (if applicable) ______

Questions: E-mail [email protected]

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2477 2008 OBA ATTORNEY ART SHOW REGISTRATION FORM 2008 The following Deadline: Oct. 24, categories of art (No registrations will be accepted after this deadline) will be judged: Return form with ation fee to: • Oil Painting Annual Meeting registr City, OK 73152 • Acrylic Oklahoma Bar Association • P.O. Box 53036 • Oklahoma • Watercolor Name ______• Black and White OBA Number ______Drawing *E-mail ______mation and forms) • Color Drawing (*Must be submitted to receive additional infor • Black and White Address ______Photograph City ______State ______Zip ______• Color Photograph Phone ______Fax ______• Three Dimensional hich are described below. pieces of art, each of w (sculptures, I will enter ___ ch equested below. Please atta woodwork, etc.) detail all information r s exceeding the For each entry, complete in required information for entrie • Craft (tile work, an additional sheet with all the stained glass, space provided. needlepoint, etc.) • Mixed Media (screenprint, enhanced photographs, etc.)

Watercolor Photography Pottery Stained glass

Name of Piece Size/Weight Date Category Created

2478 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 BAR NEWS

2009 OBA Board of Governors Vacancies Nominating Petition Deadline was 5 p.m. Friday, Sept. 19, 2008 OFFICERS Summary of Nominations Rules President-Elect Not less than 60 days prior to the Annual Meeting, Current: Jon K. Parsley, Guymon 25 or more voting members of the OBA within the Mr. Parsley automatically becomes OBA president Supreme Court Judicial District from which the Jan. 1, 2009 member of the Board of Governors is to be elected (One-year term: 2009) that year, shall file with the Executive Director, a Nominee: Allen M. Smallwood, Tulsa signed petition (which may be in parts) nominating a candidate for the office of member of the Board of Vice President Governors for and from such Judicial District, or one Current: Michael C. Mordy, Ardmore or more County Bar Associations within the Judicial (One-year term: 2009) District may file a nominating resolution nominating Nominee: Linda S. Thomas, Bartlesville such a candidate. Not less than 60 days prior to the Annual Meeting, BOARD OF GOVERNORS 50 or more voting members of the OBA from any or Supreme Court Judicial District One all Judicial Districts shall file with the Executive Current: Brian T. Hermanson, Ponca City Director, a signed petition nominating a candidate to Craig, Grant, Kay, Nowata, Osage, Ottawa, the office of Member-At-Large on the Board of Gov- Pawnee, Rogers and Washington counties ernors, or three or more County Bars may file appro- (Three-year term: 2009-2011) priate resolutions nominating a candidate for this Nominee: Charles W. Chesnut, Miami office. Not less than 60 days before the opening of the Supreme Court Judicial District Six Annual Meeting, 50 or more voting members of the Current: Robert S. Farris, Tulsa Association may file with the Executive Director a Tulsa County signed petition nominating a candidate for the office (Three-year term: 2009-2011) of President-Elect or Vice President or three or more Nominee: Martha Rupp Carter, Tulsa County Bar Associations may file appropriate Supreme Court Judicial District Seven resolutions nominating a candidate for the office. Current: Alan Souter, Bristow See Article II and Article III of OBA Bylaws for Adair, Cherokee, Creek, Delaware, Mayes, complete information regarding offices, positions, Muskogee, Okmulgee and Wagoner counties nominations and election procedure. (Three-year term: 2009-2011) Nominee: Charles D. Watson Jr., Drumright Vacant positions will be filled at the OBA Annual LouAnn Moudy, Henryetta Meeting Nov. 19-21. Terms of the present OBA officers and governors listed will terminate Dec. 31, Member-At-Large 2008. Current: Julie E. Bates, Oklahoma City (Three-year term: 2009-2011) Nominee: Steven Dobbs, Oklahoma City

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2479 Get Involved — Volunteer for an OBA Committee ne of my first duties as your president next year is to keep the momentum of our committees going by appointing new members. And this year I’d like to make a special appeal to those Oof you who have never served on a committee before. We need you. We need your fresh ideas; we need your involvement to keep the direction of our committees moving forward. We became lawyers to make a difference, and committee work is a way we can enhance our practice and our profession in so many ways. Videoconferencing equipment in Tulsa makes it convenient to be linked with Oklahoma City and saves so much time (if you don’t live in Guymon). Indicate your willingness to serve — or to be reappointed — by logging onto www.okbar.org and under Other News, click 2009 Committee Sign Up. Another option is to complete the form below and return it to me by Dec. 12, 2008, by mail, fax or e-mail.

Jon Parsley, President-Elect

–––––––––––––––––––––––––––––––– Standing Committees –––––––––––––––––––––––––––––––– • Access to Justice • Group Insurance • Professionalism • Awards • Law Day • Rules of Professional • Bar Association Technology • Law-related Education Conduct • Bar Center Facilities • Law Schools • Solo and Small Firm • Bench and Bar • Lawyers Helping Lawyers Conference Planning • Civil Procedure Assistance Program • Strategic Planning • Clients’ Security Fund • Lawyers with Physical • Unauthorized Practice • Communications Challenges of Law • Disaster Response • Legal Intern • Uniform Laws and Relief • Legislative Monitoring • Women in Law • Diversity • Member Services • Work/Life Balance • Evidence Code • Paralegal Note: No need to sign up again if your current term has not expired. Check www.okbar.org/members/committees/ for terms

Please Type or Print Name ______Telephone ______Address ______OBA # ______City ______State/Zip______FAX ______E-mail ______

Committee Name Have you ever served If so, when? on this committee? How long? 1st Choice ______❑ ❑ ______2nd Choice ______Yes No ❑ Yes ❑ No ______3rd Choice ______❑ Yes ❑ No ______❑ Please assign me to only one committee. ❑ I am willing to serve on (two or three - circle one) committees. Besides committee work, I am interested in the following area(s): ______Mail: Jon Parsley• c/o Oklahoma Bar Association • P.O. Box 53036 • Oklahoma City, OK 73152-3036 • Fax: (405) 416-7001 • E-Mail: [email protected]

2480 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 BOARD OF BAR EXAMINERS

New Attorneys Take Oath oard of Bar Examiners Chairperson Douglas W. Sanders, Jr. of Poteau announces that 303 applicants who took the Oklahoma Bar Examination on July 29-30 were admitted to the BOklahoma Bar Association on Thursday, September 25, 2008 or by proxy at a later date. Oklahoma Supreme Court Chief Justice James R. Winchester administered the Oath of Attorney to the candidates at a swearing-in ceremony at the State Capitol. A total of 339 applicants took the examination. Other members of the Oklahoma Board of Bar Examiners are Donna West Smith, Vice-Chairper- son, Miami; Peggy B. Cunningham, Yukon; Tom A. Frailey, Chickasha; Frank H. Jaques, Ada; Stephanie C. Jones, Clinton; Sally Mock, Oklahoma City; Loretta F. Radford, Tulsa; and J. Ron Wright, Muskogee. New admittees are: Christi Mae Alcox Andrew McAfee Bowman Cody Wayne Carr Jonathan Mark Allen Reagan Edward Bradford Christopher Lance Carter Mary Ellen Armstrong Zachary Kyle Bradt Paul Mario Catalano Candace Lanise Arnold Nicole Pauline Brandi Eric James Cavett Jason Todd Arnold Corbin Clark Brewster Michelle Marie Cecilia Nicholas Charles Atwood Trent Odell Bridges Jesse Charles Chapel Scott A. Backus Matthew Wayne Brockman Robert Allen Childers Breea Diane Bacon Meredith Rivas Brockman Linsey Elizabeth Chitwood Linda Robinson Bailey Clayton Barrett Bruner Rebecca Jann Clampet Bill John Baker II Daniel Joseph Brunsman Eric Lee Clark James Darrell Banks III Divina Chavez Bruss Briana Jayne Clifton Scott Austin Barnes John Andrew Buckley Cassandra Lynn Coats Keith Brian Bartsch James Ronald Bullard Jodi Catherine Cole Brian Christopher Beatty Leah Kay Bunney Ryan Nathaniel Cole Christine Linda Bergman Julia Beth Buratti Sandra DiAnne Cooper Marsha Berry Kathy Lynn Burch Emily Rae Coughlin Jacob Wade Biby Jacqueline Burgos-Garritson Anthony Thomas Craiker Brandon Craig Bickle Elizabeth Amy Burris Garner Clark Warfield Crapster Amber Jean Bighorse-Suitor Gus Hamilton Buthman Elizabeth Jean Crawford Hilary Dianne Bird Travis Lee Cagle Kacie Renee Cresswell Lisa Marie Blair Cortnie Cain Paul Donahue Crocker Nicole Leigh Blair Andre’ Brandon Caldwell David Wayne Crossley Susie Lynn Bolin Jason Craig Carney Kevin Howard Cunningham Austin Patterson Bond Marc Greco Carns Chace William Daley

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2481 Irena Damnjanoska Tiffany Nicole Graves Samuel Hart Kennon Thomas Gregory Dark Marina Kathryn Greek Rachel Marie Kirk Charles Eric Davis Katy Lynn Green Tommy David Klepper Francis Thomas Dean Thomas Alsop Griesedieck Robin Diane Knightly Rachel Rhea Dennis Rachel Elizabeth Gusman Gursunny Singh Koonjul Shephard Barbara Kaye Gwinn Claudia White Kovar Lee Anne Dickens Kimberly Marie Hanlon Jarred Ross Kubat Shannon Dodd Molly Elizabeth Hanna Justin Ryan Landgraf Bobbak Dolatabadi Jason Michael Harley Darcie Kathryn Laue Emily Gayle Dolina Steven Max Harris G.T.V. David Le Brian Thomas Downing James Brandon Harvey Alyssa Montene Lee David Franklin DuVall Byron Earl Harvison Katherine Victoria Lewis Raella Dawn Dyke Clayton Thomas Hasbrook Meredith Dibert Lindaman Stephen Robert Eck Ryan Wilson Hearne Ashley Lynn Little Thomas Hugh Ellis Rebecca Brooke Heatherman Ryan Lee Lobato Burl Oscar Estes Elizabeth Marie Hedges Ivan Laurence London Jay Duane Evans Jeffrey Alan Hensley Andrew Scott Long Kyle David Evans Megan Dawn Henson Geoffrey Dane Long Melissa Fair Robert Van Henson Laura Jo Long William Edward Farrior Jason Michael Hicks Randall Edwin Long Jordan Kyle Field Vanessa Anne Hicks Jean Carlos Lopez Danielle Patricia Fielding Frank Arthur Hinton Velia Lopez Steven Robert Foster Tracy Anita Hird Kaylan Hughes Lytle Minon Marie Frye Brandon Thomson Hollis Keith Dwain Magill Elizabeth Daly Fucci Julie Michelle Holmes Juan Jose’ Maldonado Sharon Elizabeth Fuller Brent Scott Howard Ambar Iqbal Malik Boone Kristin Leigh Huffaker Aharon Manley Jillian Marie Fuqua Michon Lynn Hughes Tyler Joseph Mantooth Minal Gahlot Cheryl Lynn Husmann Michael Paul Martin Christopher Michael Gault Tiffany Anne Huss Michael Richard Matthews Blake Gibson Brandy Lynn Inman Stephen Eugene Matthews Bruce Jeffrey Gilbert Thomas Knowlton Ishmael Whitney Renee Mauldin Ryan Patrick Gilmore Robert Spencer Jackson Joseph Dale Maxey Trent Anderson Glasgow Teresa Kay Jones Ashley Elden Mayfield Heather Dawn Glaze Adam David Kallsnick Matthew Garrett McDonald Amber Marie Godfrey Lauren Elizabeth Karim Martin Taylor McLawhorn Daniel Eduardo Gomez Jeffrey Neal Karns Raven Virginia Kurt Wayne Goodwin Teena Sultana Kauser McNeal-Noumane Paul M. Gouge Christopher Brian Keim Carrie Beth Kim McNeer Eric Wade Grantham Julie Diane Kelley Jason Heath Meadows

2482 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 Christopher Keith Miller Timothy J. Pickens Courteney Rebecca Douglas Michael Miller Sterling Elmore Pratt Thompson Sterling Cameron Ming David Gregory Prentice Corey Montell Tisdale Kelsey Dawn Moore Dulin Elizabeth Anne Price Suzette Loraine Tomlin Angeline Suzanne Morris David Dale Proctor II Christina Francesca Toon Stephanie Elaine Shelley Renae Ramsey Jennifer Anderson Tupps Moser Goins Ryan Andrew Ray Monika Nichole Turek Maurice Mark Myles Ryan Jacob Reaves Joshua Steven Turner Emily Denise Nash Billy Todd Reedy Le’Shawn Reneé Turner Lance William Neagle Gregory Patrick Reilly Jessica McKenzie Underwood Lane Rudder Neal Rebecca Ann Richardson Laura Ann Van Tuyl Mary Elizabeth Nesser Kimberly Michelle Richey Evan Grant Ellis Vincent Chrissi Renae Nimmo Jeff Michael Roberts Reagan Leigh Vincent Michael James O’Malley Karolina Dobosz Roberts Jeffrey Blake Virgin Jennifer Elizabeth O’Steen Jason Eric Robinson Collin Robert Walke Jill Marie Ochs-Tontz Whitney Denise Robison Laura Liebert Walters Jeremy Daniel Oliver Abby Carol Rogers Charis Lee Ward Mary Ann Olson Timothy Lee Rogers Kyle Braden Wasson Matthew Robert Orendorff Kurt Mark Schneiter Kasey Elizabeth Watson Elaina Marie Osteen Jennifer Clark Schnell Jane Ann Webb Robert Thurman Owen III Justin David Scroggs Joshua Daniel Wells Jennifer Renee Owens Matthew Thomas Sears Keely Lynae West Ryan Christner Owens Frank Seddigh Tammy Sue Westcott Benjamin J. Oxford Andrew Addison Shank John David White Andrea Lynn Painter Christopher Eric Shephard Jeana Rae Wiley Jennifer Paige Palmer Lauren Grace Short Bryon Jay Will Matthew Steven Panach Richard Christopher Simons Christopher Randall Wilson Adam Reed Panter Kristin Marie Simpsen Lauren Marie Wilson Christopher Colby Papin Carson Cameron Smith Brittany Littleton Woodard Kenneth Russell Park David Wayne Smith II James Wilder Wylie Matthew Bartlett Patterson Jamie Virginia Smith Carolyn Sue Yoder Rooney Elizabeth Patterson Reginald O. Smith Joshua James Young Justin Wade Payne Sean Patrick Snider James Matthew Zarones Chance Lynn Pearson Joshua Wayne Solberg Micah Tal Zomer Gregory Archibald Peck Amanda Marcella Stankus Sara Mata Zuhdi Trevor Scott Pemberton June Anne Stanley Katie Lynn Peters-Larson Daniel Edwin Stringer Jon Michael Peyton Niles Eugene Stuck Carrie DeAnn Pfrehm Charles Robert Swartz Daniel Mathew Phillips Jeffrey Bryant Taylor

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2483 2484 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 Disposition of Cases Other Than by Published Opinion

COURT OF CRIMINAL APPEALS concur in results; A. Johnson, J., concur; Lewis, SUMMARY OPINIONS J., concur. Wednesday, October 15, 2008 F-2007-826 — Kevin Dewayne Winchester, C-2008-206 — Petitioner Danny Merle Bouzi- Appellant, was tried by jury for the crime of den was charged by Amended Information First Degree Murder in Case No. CF-2006-6275 with twenty-one (21) counts of Child Sexual in the District Court of Oklahoma County. The Abuse, one count of misdemeanor Domestic jury returned a verdict of guilty and recom- Abuse – Assault and Battery and fifteen (15) mended as punishment Life Imprisonment counts of Possession of Child Pornography, in Without the Possibility of Parole. The trial the District Court of Kingfisher County, Case court sentenced accordingly. From this judg- No. CF-2007-17. On October 25, 2007, Petitio- ment and sentence Kevin Dewayne Winchester ner entered a plea of no contest to the charges has perfected his appeal. The Judgment and before the Honorable Susie Pritchett, Associate Sentence of the district court is AFFIRMED. District Judge. On January 16, 2008, a senten- Opinion by A. Johnson, J.; Lumpkin, P.J., con- cing hearing was held before the Honorable curs; C. Johnson, V.P.J., concurs; Chapel, J., Ronald G. Franklin, District Judge. Petitioner concurs in part and dissents in part; Lewis, J., was sentenced to a life sentence for each of the concurs in results. twenty-one (21) counts of child sexual abuse; F-2007-424 — Appellant, Jeffrey Adle Evans, one year in the county jail for the count of was convicted of First Degree Murder in viola- Domestic Abuse; and twenty (20) years impri- tion of 21 O.S.2001, § 701.7, in the District Court sonment for each count of possession of child of Love County, Case No. CF-2006-75, before pornography. All sentences were ordered to the Honorable John H. Skaggs, District Judge. run consecutively. On January 25, 2008, Petitio- Judge Skaggs sentenced Evans to life imprison- ner filed a Motion to Withdraw Plea. At a hea- ment, in accordance with the jury verdict. ring held on February 13, 2008, the motion to Evans has perfected his appeal to this Court. withdraw was denied. It is that denial which is AFFIRMED. Opinion by Lewis, J.; Lumpkin, P. the subject of this appeal. The order of the dis- J., concur s ; C. Johnson, V.P.J., concurs; Chapel, trict court denying Petitioner’s motion to J., concurs; A. Johnson, J., concurs. withdraw plea of guilty is AFFIRMED and CERTIORARI IS DENIED. Opinion by Lum- Friday, October 17, 2008 pkin, P.J.; C. Johnson, V.P.J.: concur in part/dis- M-2007-204 — Jason Kyle Whitaker, Appel- sent in part; Chapel, J.; concur in result; A. lant, appealed from his misdemeanor Judg- Johnson, J.; concur in part/dissent in part; ment and Sentence in Case No. CM-2006-2432 Lewis, J.; concur. in the District Court of Cleveland County. Thursday, October 16, 2008 Appellant was convicted in the Municipal Court of the City of Norman, Case No. N06- RE-2007-584 — Ryan Nelson, Appellant, 3308, of the offense of Public Intoxication and entered a guilty plea to Second Degree Rape in was sentenced to a fine. Appellant filed an Muskogee County District Court Case No. CF- appeal from the Judgment and Sentence of the 2006-205. Appellant was sentenced to five Municipal Court not of record, pursuant to 11 years incarceration, all suspended, pursuant to O.S.Supp. 2007, § 27-129. A non-jury trial de terms and conditions of probation. Appellant’s novo was had before the Honorable Rodney D. suspended sentence was subsequently revoked Ring, Special Judge, in Cleveland County Dis- in full by the Honorable Mike Norman, District trict Court Case No. CM-2006-2432 and Appel- Judge. From this order of revocation, Appellant lant was found guilty of Public Intoxication has perfected his appeal. The District Court’s and sentenced him to a $100 fine. Appellant’s order revoking Appellant’s suspended misdemeanor Judgment and Sentence in Case sentences is AFFIRMED. Opinion by Lumpkin, No. CM-2006-2432 in the District Court of P.J.; C. Johnson, V.P.J., concur; Chapel, J., Cleveland County is AFFIRMED. Opinion by:

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2485 C. Johnson, V.P.J.; Lumpkin, P.J., Concurs in AFFIRMED Opinion by Lewis, J.; Lumpkin, P. Results; Chapel, J., Recuse; A. Johnson, J., Con- J., concur in results ; C. Johnson, V.P.J., concur; curs; Lewis, J., Concurs. Chapel, J., concur; A. Johnson, J., concur. S-2007-1088 — The State of Oklahoma F-2007-1053 — Jim D. Wooten, Appellant, appeals an adverse ruling by the District Court was tried by jury for the crime of False Claim of Oklahoma County, Case No. CF-2006-4442. for Insurance in Case No. CF-2006-06, in the Appellee, Ann Seibel, was indicted by the District Court of Muskogee County. The jury Multi-County Grand Jury for Workers Com- returned a verdict of guilty and recommended pensation Fraud. A preliminary hearing was as punishment One (1) year imprisonment, held and Appellee was bound over for trial as suspended, and a $1,000 fine. The trial court charged. Appellee filed a “Demurrer to the sentenced accordingly. From this judgment Indictment and Motion to Quash.” The State and sentence Jim D. Wooten has perfected his filed a response, and Appellee filed a reply. The appeal. AFFIRMED Opinion by Chapel, J.; Honorable Kenneth C. Watson, District Judge, Lumpkin, P.J., concur in results; C. Johnson, V. heard argument from the parties on the motion P.J., concur; A. Johnson, J., concur; Lewis, J., and issued an order sustaining both the demur- concur. rer to the indictment and the motion to quash. The State’s appeal from adverse ruling in Okla- COURT OF CIVIL APPEALS homa Court District Court Case No. CF-2006- (Division No. 1) 4442 is DISMISSED. Opinion by C. Johnson, Thursday, October 16, 2008 V.P.J.; Lumpkin, P.J., recuse; Chapel, J., concurs; 105,244 — Olinghouse Steel Unlimited and A. Johnson, J., concurs; Lewis, J., concurs. Republic Fire & Casualty Company, Petition- Monday, October 20, 2008 ers, vs. Edward Prince and The Workers’ Com- pensation Court, Respondents. Proceeding to F-2007-1247 — Vincent Wayne McGee, Review an Order of The Workers’ Compensa- Appellant, was charged by information in tion Court. Honorable Tom Leonard, Judge. Stephens County District Court, Case No. CF- Employer seeks review of the trial court’s order 2007-38, with two counts Trafficking in Illegal granting benefits for temporary total disability Drugs (cocaine base) in violation of (TTD) to Claimant. In this proceeding, Employ- 63 O.S.Supp.2005, § 2-415 (Counts 1 and 8); er challenges the trial court’s award as contrary five counts Distribution of a Controlled to law and the clear weight of the evidence, Dangerous Substance (cocaine base) in violation arguing the evidence demonstrated Claimant of 63 O.S.Supp.2005, § 2-401 (Counts 2-5 and 9); performed the duties of his employment with- one count Unlawful use of a Surveillance out restriction prior to his departure, and his Camera in violation of 21 O.S.Supp.2003, § abandonment of the employment. Claimant 1993 (Count 6); one count Unlawful use of a testified he left the employment because his Police Radio in violation of 21 O.S.2001, § 1214 supervisor told him there was no work for him, (Count 7); and one count Possession of a and Claimant’s testimony constitutes compe- Firearm after former conviction of a felony in tent evidence to support an award of benefits violation of 21 O.S.Supp.2005, § 2183 (Count for TTD, notwithstanding the termination of 10). The court bifurcated the trial and tried the employer-employee relationship. SUS- Count 10 in the second stage. Jury trial was TAINED. Opinion by Joplin, J.; Adams, P.J., held before the Honorable Joe H. Enos, District dissents, and Hansen, J., concurs. Judge. The jury found Appellant guilty as charged and recommended life imprisonment 105,763 — J. Lynn Bock, Individually and as and $50,000 fine Count 1; fifteen (15) years and Trustee of the J. Lynn Bock 1994 Revocable $50,000 fine each on Counts 2-5; three (3) years Trust; Ann M. Bock, Individually and as Trust- and $5,000 fine Count 6; one (1) year and $2,500 ee of the Ann M. Bock 1994 Revocable Trust; fine Count 7; life and $100,000 fine Count 8; C.A. Vose 1971 Trust for the Benefit of C.A. thirty (30) years and $100,000 fine Count 9; and Vose, III; C.A. Vose 1971 Trust for the Benefit of ten (10) years Count 10, all in DOC custody. Lisa Vose Combs; C.A. Vose, Jr., Myval Trust B, The trial court ordered the sentences for Counts M.H. Vose Trust, C.A. & M.H. Vose 1976 f/b/o 2-7 run concurrently, with all remaining counts C.A. Vose, III; C.A. & M.H. Vose 1976 f/b/o to run consecutive to Counts 2-7 and to one Lisa Vose Combs; L.C. Vose 1965 Trust; and another. From this judgment and sentence, 1991 Investment Company, Plaintiff/Appel- Vincent Wayne McGee has perfected his appeal. lants, vs. Robert E. Slater, Jr.; Sylvia Slater;

2486 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 Southern Hospitality, Inc.; and Does I-X, Defen- doctrine applied only in disputes as to title, dant/Appellees, and Woodward Hotel Corpo- possession, or interest in the property. The ration, an Oklahoma Corporation d/b/a relief requested by the Bocks would affect Northwest Inn of Woodward, Oklahoma; Char- Slater’s power to convey or encumber the real lottesville Hotel Corporation an Oklahoma property. Therefore, the real property is argu- Corporation; Charlottesville Hotel Fund Lim- ably involved in the action and affected by it. ited Partnership, an Oklahoma Limited Part- The trial court did not address this question nership, f/d/b/a Doubletree Hotel, Charlot- and must do so in order to cancel the lis pen- tesville, Virginia; Cocoa Beach Hotel Corpora- dens. In order to discharge the notice of lis tion; Cocoa Beach Hotel Fund Limited Partner- pendens, the court must also balance the equi- ship, an Oklahoma Limited Partnership, d/b/a ties to determine whether the application of the Doubletree Hotel Cocoa Beach and Howard doctrine of lis pendens is harsh or arbitrary Johnson Express, Cocoa Beach, Florida; Fort and whether the cancellation of lis pendens Smith Hotel Corporation, an Oklahoma Corpo- would result in prejudice to the Bocks. The ration; F.S. Hotel Limited Partnership, an Okla- court must take testimony to ascertain the homa Limited Partnership; Phoenix Metrocen- exact nature and extent of any possible preju- ter Hotel Corporation, an Oklahoma Corpora- dice that could result from the release of notice, tion; Phoenix Metrocenter Hotel Limited Part- and if appropriate, safeguard the threatened nership, an Oklahoma Limited Partnership, f/ rights by other available means less drastic in d/b/a Ramada Inn, Phoenix, Arizona; Augusta character. The order discharging the lis pen- Hotel Corporation, an Oklahoma Corporation; dens is reversed and this matter is remanded Augusta Hotel Limited Partnership, an Okla- for further proceedings. REVERSED AND homa Limited Partnership f/d/b/a Radisson REMANDED. Opinion by Hansen, J.; Adams, Suites Inn, Augusta, Georgia; Columbia Hotel P.J., concurs in part, dissents in part, andJoplin, Corporation, an Oklahoma Corporation; J., concurs. Columbia Hotel Limited Partnership, an Okla- 105,874 — Brian Lee Wilson, Plaintiff/Appel- homa Limited Partnership f/d/b/a Holiday lant, vs. Carl Daniel Webb, Brent Stapp, Defen- Inn Northeast, Columbia, South Carolina; Novi dant/Appellees. Appeal from the District Court Hotel Corporation, an Oklahoma Corporation; of Stephens County, Oklahoma. Honorable G. Novi Hotel Fund Limited Partnership, an Okla- Brent Russell, Trial Judge. In this action sound- homa Limited Partnership f/d/b/a Doubletree ing in conversion, Appellant (Wilson) appeals Hotel, Novi, Michigan; Union City Hotel Cor- from the trial court’s orders [1] denying his poration, an Oklahoma Corporation; Union Motion to Reconsider summary judgment City Hotel Fund Limited Partnership, an Okla- granted in favor of Appellees (Webb and Stapp), homa Limited Partnership f/d/b/a Radisson [2] granting attorney fees and costs in favor of Hotel, Union City, California; Diamond Bar Webb, [3] denying his Motion to Refund Costs, Hotel Corporation, an Oklahoma Corporation; and [4] granting Webb’s Motion to File Dis- Diamond Bar Hotel Fund Limited Partnership, positive Motion Out of Time. Wilson purports an Oklahoma Limited Partnership, f/d/b/a to appeal from various other of the trial court’s Holiday Inn Select, Diamond Bar, California; preliminary rulings, but we need not consider Lake Buena Vista Village Hotel LLC, an Okla- these rulings in view of our disposition. Wilson homa Limited Liability Company; Lake Buena filed his motion to reconsider without having Vista Village Hotel Fund Limited Partnership, his counsel of record join him. The Oklahoma an Oklahoma Limited Partnership f/d/b/a Supreme Court has held, in Watson v. Gibson Doubletree Club Hotel, Lake Buena Vista, Capital, L.L.C., 2008 OK 56, ___ P.3d ___, that Florida, Nominal Defendants. Appeal from the pleadings filed by parties without the signa- District Court of Oklahoma County, Oklahoma. tures of their counsel of record are “utterly Honorable Patricia G. Parrish, Trial Judge. ineffective.” Where, as here, the motion for Appellants (Bocks) seek review of the trial new trial is, as a matter of law, ineffective, time court’s interlocutory order granting the motions for commencement of an appeal is calculated of Appellees (Slater) to dismiss Bock’s claim for from the date the judgment is filed, and the constructive trust and to discharge and cancel time for appeal is not extended. The Order the notices of lis pendens. The court discharged Granting Summary Judgment was filed on the notice of lis pendens not based on a balanc- February 4, 2008. Wilson’s Petition in Error was ing of the equities after taking evidence, but not filed until May 20, 2008, which was not based on its ruling as a matter of law that the within the statutory thirty day period neces-

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2487 sary to give this Court jurisdiction over the was five or six years old and A.R.O. had judgment. Wilson’s objection to Webb’s Motion formed a strong parental bond with the adop- for Attorney Fees and costs suffers from the tive parents at a critical time for forming such same fatal facial ineffectiveness as his Motion relationships. The trial court’s decision was to Reconsider. Wilson’s appeal of the trial supported by the requisite clear and convinc- court’s denial of his Motion to Refund Costs ing evidence. The natural father also com- was untimely. In view of our findings that plained that he should have been afforded the aspects of Wilson’s appeal dealing with the right to jury trial, claiming adoption without trial court’s [a] judgment, [b] pre-judgment rul- consent effectively terminates his relationship ings, and [c] denial of Wilson’s Motion to with his child. The Oklahoma Supreme Court Refund Costs, are untimely, those portions of has said this proceeding does not sever the par- the appeal are dismissed. That portion of the ent-child relationship. Jury trial for eligibility appeal concerning the trial court’s granting of of adoption without consent does not give rise Webb’s Motion for Attorney Fees is timely, but to a right to jury trial. The trial court’s order because that issue was not properly presented holding A.R.O. is eligible for adoption without to the trial court, the order granting attorney’s the natural father’s consent is AFFIRMED. fees is affirmed. DISMISSED IN PART, Opinion by Joplin, J.; Adams, P.J., and Hansen, AFFIRMED IN PART. Opinion by Hansen, J.; J., concur. Adams, P.J., andJoplin, J., concur. (Division No. 2) 105,908 — In the Matter of the Adoption of Thursday, October 16, 2008 A.R.O., Alexander Roysel Ortiz, Sr., Appellant, 104,621 (companion w/No. 105,278) — First vs. Adoptive Parents, Appellees. Appeal from State Bank Noble, Oklahoma, Plaintiff/ the District Court of Stephens County, Okla- Appellee, vs. Fidelity Appraisal and Inspection homa. Honorable Brent Russell, Judge. Appel- Services, Inc., Defendant/Appellant, and lant Alexander Ortiz, Sr., natural father of the Charles A. Ozan, an individual, Defendant. minor child, A.R.O., seeks review of the trial Appeal from an Order of the District Court of court’s order determining the child eligible for Cleveland County, Hon. William Hetherington, adoption without his consent. In this appeal, Trial Judge. Appellant Fidelity Appraisal and the natural father complains the trial court Inspection Services, Inc., seeks review of an erred in severing the parent/child bond with- order of the district court granting judgment out a trial by jury, and the trial court’s judg- against it and in favor of Appellee First State ment is not supported by the requisite clear Bank on two promissory notes and security and convincing evidence. The Adoptive Par- agreements. The facts plead in First State ents sought adoption of A.R.O. without the Bank’s petition were sufficient to provide natural father’s consent, based upon the natu- Fidelity with fair notice of the issues raised at ral father’s ten year incarceration for his sec- trial. The district court correctly construed the ond felony offense. 10 O.S. 2001 §7505-4.2(K). notes, security agreements and schedules, The trial court properly considered the factors which were executed at the same time and for applicable under 10 O.S. 2001 §7505-4.2(K). The the same purpose, as one instrument. The trial court noted the father had an opportunity district court’s award of attorney fee was not for reunification with A.R.O. in 2006, before he supported by sufficient evidence pursuant to committed his second felony offense, and the Burk v. City of Oklahoma City, 1979 OK 115, 598 commission of his second crime derailed the P.2d 659. We reverse the award of attorney fees State’s reunification efforts for A.R.O. and his and remand the matter for further proceedings natural parents. The court considered this as a consistent with this opinion. AFFIRMED IN demonstration of the natural father’s complete PART, REVERSED IN PART AND REMANDED disregard for his relationship with his son, as FOR FURTHER PROCEEDINGS. Opinion from he chose to commit the felony knowing it Court of Civil Appeals, Division II, by Fischer, would seriously compromise the parent/child J.; Goodman, P.J., and Wiseman, J., concur. relationship. The court also noted that the father had failed to maintain any significant 105,100 — Keller, Keller & Dalton, Petition- relationship or positive contact with A.R.O. er/Appellant, v. Jason Edwin Reed, Chaparral since the child’s infancy. The court also heard Energy, Inc., d/b/a Bison Drilling, LLC, Okla- evidence regarding how the child would likely homa Property & Casualty Insurance Guaranty be harmed by a reunification with his natural Association (NLC), and The Workers’ Com- father, as he would be in prison until the child pensation Court, Respondents/Appellees. Pro-

2488 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 ceeding to review an order of a three-judge mitted without appellate briefing. Although it panel of the Workers’ Compensation Court, retained the right to purchase less than the Hon. H. Thomas Leonard, Trial Judge, finding minimum services guaranteed by the Service that it lacked jurisdiction over the issue of Agreement, CVS was required to renegotiate deposition expenses. In July 2001, the Oklaho- the price for those services if the reduction in ma Insurance Commissioner placed Petrosur- the scope of work was material. Its failure to do ance Casualty Company under supervision. In so would constitute a violation of the terms of November 2001, Claimant initiated this work- the Service Agreement. Consequently, CVS is er’s compensation claim against Chaparral not entitled to judgment as a matter of law. The Energy, Inc., d/b/a Bison Drilling, LLC. Appel- judgment of the district court is reversed, and lant represented Chaparral and Petrosurance this case is remanded for further proceedings in Claimant’s case. Keller, an attorney with consistent with our interpretation of the Ser- Appellant, took Claimant’s deposition in Feb- vice Agreement as stated in this Opinion. ruary 2002 as part of the workers’ compensa- REVERSED AND REMANDED FOR FUR- tion claim. Petrosurance was liquidated in THER PROCEEDINGS. Opinion from Court of March 2002, and September 20, 2002, was the Civil Appeals, Division II, by Fischer, J.; deadline for submitting pre-liquidation claims Goodman, P.J., and Wiseman, J., concur. to the receiver. Oklahoma Property & Casualty (Division No. 3) Insurance Guaranty Association (OPCIGA) Friday, October 17, 2008 assumed the defense of Claimant’s claim and substituted new counsel in place of Keller. 105,057 — Multiple Injury Trust Fund, Peti- Keller demanded payment for the deposition tioner, vs. Billy Alston and the Workers’ Com- costs from OPCIGA. The trial court ordered pensation Court, Respondents. Proceeding to OPCIGA to pay the costs. The three-judge Review an Order of a Three-Judge Panel of the panel vacated the trial court’s decision. We Workers’ Compensation Court. While working sustain the panel’s decision. Appellant is not for Snelling Temporary Services (Snelling) Sep- asking the Workers’ Compensation Court to tember 8, 1998, Respondent (Alston) sustained determine the liability of the employer and its an accidental personal injury to his back, left insurance carrier towards Claimant. Appellant knee, and right knee. It is undisputed his inju- is requesting reimbursement for deposition ries arose out of and in the course of his costs from OPCIGA who took over the defense employment. Having suffered prior work- of Claimant’s claim after Claimant’s employ- related injuries, Alston sought benefits from er’s insurance carrier was placed in receiver- Petitioner (MITF) as well. The trial court con- ship. Claimant’s interests are not implicated in cluded Alston is permanently totally disabled any manner by Appellant’s request. Appel- (PTD) as a result of his combined injuries and lant’s redress is with the district court where directed MITF to begin paying him the PTD Petrosurance was placed in receivership and rate of $213 per week once Snelling completes not with the Workers’ Compensation Court. its payment obligations, and to continue pay- SUSTAINED. Opinion from the Court of Civil ing that amount until Alston reaches age sixty- Appeals, Division II, by Wiseman, J.; five. MITF claims it cannot be responsible for Goodman, P.J., and, Fischer, J., concur. any increase in disability over and above that caused by Alston’s latest injury because the Friday, October 17, 2008 joint petition between Alston and Snelling 105,602 — Harry (“Pip”) Blue and Brenda declared Alston PTD, and there is no degree of Blue d/b/a P.B.R. Equipment Sales & Service, disability greater than that. Pursuant to 85 O.S. an Oklahoma corporation, Plaintiffs/Appel- Supp. 1994 §172(A), MITF is liable for any lants, vs. CVS Pharmacy, Inc., a foreign corpo- material increase in disability resulting from ration, doing business in Oklahoma, Defen- the employee’s pre-existing and current impair- dant/Appellee. Appeal from an Order of the ments in combination, over and above the District Court of Johnston County, Hon. Robert degrees of disability directly and specifically M. Highsmith, Trial Judge, granting the motion attributable to the pre-existing impairment and for summary judgment filed by Appellee CVS the current injury standing alone. Being PTD, Pharmacy, Inc. The appeal has been assigned to Alston is entitled under 85 O.S. Supp. 1994 the accelerated docket pursuant to Oklahoma §172(B) to receive full compensation for his Supreme Court Rule 1.36(b), 12 O.S. Supp. combined disability with Snelling responsible 2007, ch. 15, app. 1, and the matter stands sub- only for the degree of percent of disability

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2489 which would have resulted from the latter months subsequent to the courtroom incident. injury if there had been no preexisting impair- Claimant received care from a chiropractor ment. The $95,000 Snelling agreed to pay to who opined that Claimant sustained a work- settle Alston’s claim against it represents Snel- related injury to her shoulder in the courtroom ling’s liability – not for Alston’s PTD status – incident and was need of further medical care but for “the degree of percent of disability” including surgery per the recommendation of directly and specifically attributable to the Dr. Hargrove. Employer criticizes the opinion latest injuries he suffered while a Snelling of the chiropractor on the basis of an inade- employee. Thus, the trial court properly ordered quate history in that his report contains no MITF to begin paying Alston $213 per week reference to the painful shoulder incident once Snelling completes its PPD payments. Claimant experienced at home in December SUSTAINED. Opinion by Mitchell, V.C.J.; 2004 or January 2005. We find that even if Buettner, P.J., and Bell, J., concur. Claimant’s medical history provided to the 105,090 — Total Plant Services, Inc., a Wyo- chiropractor was incomplete, no error was ming corporation, Plaintiff/Appellee, vs. Sin- found in the medical history that would invali- clair Oil Corporation, a Wyoming corporation, date his medical opinion stating an on-the-job Defendant/Appellant. Appeal from the Dis- accident was the cause of Claimant’s injury. trict Court of Tulsa County, Oklahoma. Honor- The reports of Claimant’s chiropractor are able Rebecca Brett Nightingale, Judge. Defen- competent and probative to support the deter- dant/Appellee Sinclair Oil Corporation appeals mination that Claimant’s sustained an injury to from judgment entered on a jury verdict as her right shoulder arising out of and in the well as the trial court’s award of attorney fees course of her employment. SUSTAINED. to Plaintiff/Appellee Total Plant Services, Inc. Opinion by Mitchell, V.C.J.; Buettner, P.J., and (TPS). Sinclair claims the parties entered an Hansen, J., (sitting by designation), concur. oral settlement agreement a year before trial which the trial court failed to enforce. Sinclair Monday, October 20, 2008 further claims the trial court erred in the 105,911 — Good Shepherd Hospice and amount of fees awarded to certain counsel Amity Care, L.L.C., Own Risk #14907, Petition- employed by TPS. The undisputed facts show the parties did not enter a binding settlement ers, vs. Carla Collett and the Workers’ Com- agreement and we affirm the trial court’s pensation Court, Respondents. Carla Collett, denial of Sinclair’s Motion to Enforce. The trial Claimant/Respondent (Claimant/Collett) filed court did not abuse its discretion in making the a Form 3 March 20, 2007, alleging cumulative attorney fees award and that order is also injury to her neck and back as a result of her affirmed. AFFIRMED. Opinion by Buettner, employment with Petitioner Good Shepherd P.J.; Mitchell, V.C.J., and Bell, J., concur. Hospice, L.L.C. (Good Shepherd Hospice). On May 16, 2007, Good Shepherd Hospice filed a 105,231 — Cleveland County Sheriff’s Depart- Form 13 Motion to Dismiss on the ground of ment and CompSource Oklahoma, Petitioners, statute of limitations. At a hearing held Febru- vs. Deborah Johnson and the Workers’ Com- ary 25, 2008, the parties agreed that the only pensation Court, Respondents. Proceeding to issue before the Workers’ Compensation Court Review an Order of a Three-Judge Panel of the was “jurisdiction” as it related to the statute of Workers’ Compensation Court. Petitioner limitations defense. Dollett testified but no (Employer) seeks review of the order directing Employer to provide Respondent (Claimant) medical or expert evidence was introduced. with reasonable and necessary medical care The trial court found that Collett suffered with Dr. Hargrove, an orthopedic surgeon, cumulative trauma and ordered that Good which included surgery for the injury to her Shepherd Hospice select a treating physician right shoulder (aggravation of a pre-existing pursuant to 85 O.S.Supp 2005 §14(A)(1) and condition) arising out of and in the course of (B). A three-judge panel of the Workers’ Com- Claimant’s employment. Claimant testified she pensation Court unanimously upheld the injured her right shoulder in November 2004 in essence of the order, except that it made the a courtroom incident involving a combative specific ruling denying the statute of limita- 17-year-old juvenile offender. Employer argues tions defense. We vacate. VACATED. Opinion the cause of her shoulder injury is non work- by Buettner, P.J.; Mitchell, V.C.J., and Adams, J., related trauma, i.e., an incident at home several (sitting by designation), concur.

2490 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 (Division No. 4) Investments Limited Partnership; Robert P. Wednesday, October 15, 2008 Hall; and Daniel J. Gamino, (Defendants) and against Hoaglin in this premises liability action. 104,449 — Wendy Love, now Beberstein, Hoaglin filed this action, alleging she sustained Petitioner/Appellant, vs. Jimmie Delbert Spiva, injuries when she slipped and fell while on Jr., Respondent/Appellee. Appeal from an Defendants’ premises. Hoaglin argues on Order of the District Court of Muskogee Coun- appeal that the trial court erred in granting ty, Hon. Norman D. Thygesen, Trial Judge, summary judgment in favor of Defendants and denying Mother’s Motion to Reduce Arrear- against her because there were material facts in ages to Judgment. Mother argues on appeal dispute that precluded the grant of summary that the trial court erred in applying the doc- judgment. Based on a review of the record, this trine of laches and thereby denying her request Court finds that reasonable people might reach to reduce past arrearages to judgment. The trial differing conclusions from the undisputed facts court correctly recognized that there was not a concerning the issue of Hoaglin’s status and memorialized judgment from the 1996 and the proper duty of care the Defendants owed 2002 modification proceedings that was her. Thus, Hoaglin’s status presented a disput- enforceable. However, the court failed to ed issue of fact that precluded summary judg- acknowledge that a trial court’s judgment or ment. Viewing the facts and inferences in a order is operative from the moment the trial light most favorable to Hoaglin, as this Court court announces it. Depuy v. Hoeme, 1989 OK must do when reviewing the grant of summary 42, ¶ 9, 775 P.2d 1339, 1344. Here, the trial judgment, this Court finds that the issue of court’s denial of Mother’s arrearage claim whether the sidewalk defect constituted an based on the doctrine of laches was premature open and obvious hazard presents a question because the trial court failed to follow the pro- for the trier of fact. Thus, there are questions of cedures set forth in Hoeme, for memorializing material fact for a jury, and this Court con- the two prior judgments The trial court is cludes the trial court erred in granting sum- required to first memorialize the judgments to mary judgment in favor of Defendants and determine the amount of arrearage, if any. The against Hoaglin. REVERSED AND REMAND- trial court may then address the issue of how ED FOR FURTHER PROCEEDINGS. Opinion and whether the arrearage can be collected from Court of Civil Appeals, Division IV, based upon the facts and evidence. REVERSED by Rapp, C.J.; Gabbard, P.J., and Barnes, J., AND REMANDED FOR FURTHER PRO- concur. CEEDINGS. Opinion from Court of Civil Appeals, Division IV, by Rapp, C.J.; Barnes, Friday, October 17, 2008 J., concurs, and Gabbard, P.J., concurs 104,622 — In the Matter of Betty J. Houck specially. Revocable Trust, dated April 26, 1998. David 105,585 — Sharon Hoaglin, Plaintiff/Appel- Frederick and Noel Smith, Successor Co-Trust- lant, vs. Jackson, Robert A., Trustee, Jackson ees of the Betty J. Houck Revocable Trust, Janice M., Trustee, Robert A. Jackson and Janice Counterclaimants/Appellees, vs. Terri Eves, M. Jackson Living Trust; Charles R. Johnson; Raynette Marascola, and Anthony “Butch” Michael K. Kirk, D.D.S., Inc.; Ramadan Dental Marascola, Petitioners/Counterclaim Defen- Group, Inc./dba The Dental Spa; Daniel J. dants/Appellants. Appeal from an Order of Gamino & Associates, P.C.; Henderson Mann the District Court of Tulsa County, Hon. Linda Claunch Gamino & Muehleisen; Gary L. Blevins G. Morrissey, Trial Judge. Trial court petition- & associates, P.C.; 63rd Street Investments Lim- ers, Terri Eves (Eves) and Reynette Marascola ited Partnership, an Oklahoma Limited Part- (Marascola), (collectively Contestants) appeal nership; Hugh R. Burch, P.C.; Jackson Hall & the trial court’s Final Journal Entry of Judg- Associates; Robert A. Jackson, Individually; ment finding Contestants failed to establish Robert P. Hall, Individually; and David P. that (1) the Betty J. Houck Revocable Trust, Henry, Individually, Defendants/Appellees. Restatement dated November 22, 2004, should Appeal from an Order of the District Court of be set aside for undue influence and (2) Betty J. Oklahoma County, Hon. Patricia G. Parrish, Houck lacked capacity to execute the Novem- Trial Judge, granting summary judgment in ber 2004 Trust Restatement. The trial court cor- favor of defendants, Robert A. Jackson, Trustee rectly concluded that Betty possessed testa- of the Robert A. Jackson and Janice M. Jackson mentary capacity, was not unduly influenced Living Trust; Charles R. Johnson; 63rd Street in the making of her November 2004 Trust

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2491 Restatement, and received independent legal Bowers Foundation, a private foundation; advice in the preparation and execution of the BancFirst, a National Banking Association; November 2004 Trust Restatement. This Court John C. Duty, an individual; Michael A. Bick- finds the trial court did not err in finding that ford, an individual; Personal Nursing Care, Contestants failed to establish that the Novem- Inc., an Oklahoma Corporation, Defendant/ ber 2004 Trust Restatement should be set aside Appellees. Appellee’s Petition for Rehearing is on the grounds of undue influence, lack of DENIED. independent counsel in preparation of the trust 105,655 — William H. Jenkins, Petitioner, vs. document, or on the grounds that Betty J. Idabel Stone Company &/or United States Fire Houck lacked testamentary capacity. The Final Insurance Company, and the Workers’ Com- Journal Entry of Judgment is therefore affirmed. pensation Court, Respondents, and Martin AFFIRMED. Opinion from Court of Civil Marietta Materials, Inc., and Pacific Employers Appeals, Division IV, by Rapp, C.J.; Gabbard, Insurance Company, Petitioners, vs. William P.J., and Goodman, J. (sitting by designation), H. Jenkins, Idabel Stone Company, United concur. States Fire Insurance Company and the ORDERS DENYING REHEARING Workers’ Compensation Court, Respondents. (Division No. 3) Petitioner’s Petition for Rehearing is DENIED. Wednesday, October 15, 2008 Friday, October 17, 2008 105,356 — Patricia Bowers Edwards, Indi- vidually and as natural mother and Next 104,560 — Gregory Scott Farnik, Plaintiff/ Friend of Robert Drew Bowers, an Incapacitat- Appellant, vs. Jill Elaine Wilcox Farnik, ed person, Plaintiff/Appellant, vs. Rex Urice, Defendant/Appellee. Appellant’s Petition for an individual; The Robert S. Bowers and Eloise Rehearing is DENIED.

Annual OU Law Alumni Luncheon

OBA Annual Meeting SAVE THE DATE! Oklahoma City, Oklahoma Petroleum Club

Wednesday, November 19, 2008 Reception at 11:15 (cash bar) Luncheon at Noon, $30.00 Please send luncheon payment to OBA.

The University OF Oklahoma COLLEGE OF LAW

Questions: Karen Housley 300 Timberdell • Norman, OK 73019-5081 SAVE THE DATE! SAVE (405) 325-0501 • [email protected] • Registration for OBA meeting is not required for luncheon •

2492 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2493 OKLAHOMA COUNTY CRIMINAL DEFENSE LAWYER’S ASSOCIATION REQUEST FOR NOMINATIONS 2008 BARRY ALBERT AWARD FOR EXCELLENCE IN ADVOCACY To honor Barry Albert and the standard of excellence which he set for all advocates, the Oklahoma County Criminal Defense Lawyer’s Association (OCCDLA) is seeking nominations for the 2008 Barry Albert Award for Excellence in Advocacy. CRITERIA The recipient of this award must be an Oklahoma attorney who practices in the Oklahoma County Criminal Courts and is recognized as a zealous advocate in the spirit of Barry Albert: — One who has consistently represented the criminally accused with great passion, tenacity, and courage; — One who has consistently put the best interest of the client first; — One who has shown superior skill in the courtroom whether before judge, jury, or appellate court; — One who has shown by example what it means to be a committed and true advocate for the criminally accused. Please submit nominations to OCCDLA, ATTN: John Michael Smith, 2008 Barry Albert Award Committee Chairman, 434 N.W. 11th Street, Oklahoma City, Oklahoma 73103 or FAX: (405) 525-8127 by November 1, 2008 with a letter explaining why you believe the nominated individual is deserving of the award. Nominations must be postmarked or faxed by November 1, 2008. Nominations received after that date will not be considered. Voting by the entire OCCDLA membership will commence in November 2008 and ballots must be returned no later than December 1, 2008. Ballots received after that date will not be counted. The winner will be announced at the OCCDLA Annual Christmas Party in December.

2494 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT OF JAMI LYNN STEWART, SCBD #5444 TO MEMBERSHIP IN THE OKLAHOMA 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 Jami Lynn Stewart 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 Friday, December 5, 2008. 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

Got e-mail? Check your official mailing address & add your e-mail address Go to http://myokbar.org/Login .okbar.org/Login • Use your new OBA number & PIN • Go to http://my number to enter number this password-protected & PINd- • Useportion your new of theOBA OBA’s Web’s Website number to portionenter this of thepasswor OBA protected • OBA member e-mailsite addresses are for thedresses exclusive use of the association• OBAand aremember not for e-mail sale adto outside sources nor are they consideredare for to the be exclusive public erecord not use fo ofr thesale to association and ar e they ces nor ar ecord outside sourto be public r Vol. 79 — No. 28 — 10/25/2008 considered The Oklahoma Bar Journal 2495 NOVEMBER 20, 2008Í DURING THE 104TH ANNUAL MEETING THE OKLAHOMA BAR ASSOCIATION DIVERSITY COMMITTEE PRESENTS:

3:00 P.M. – 4:30 P.M. ND RED CARPET ROOM Í 2 FLOOR SHERATON HOTEL, OKC Join Us for a Lively Panel Discussion and Refreshments!

2496 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 The University of Tulsa College of Law Invites you to a Luncheon for Alumni and Friends at the OBA Annual Meeting

Honored Alumni Leslie Shelton, JD ’85, Outstanding Senior Alumna Briana Ross, JD ’06, Outstanding Junior Alumna A Wednesday, November 19, 2008 • 12:00 – 1:30 p.m. The Red Carpet Room, The Sheraton Downtown Oklahoma City, Oklahoma Reservations Required, Tickets $30 RSVP by November 12, 2008 to (918) 631-3723 BEING A MEMBER Speaker The Honorable Carlos J. Chappelle, JD ’81 HAS ITS PERKS “Stories From The Bench: Hollywood Couldn’t Script This Stuff ” ❑ Newly Admitted Members — receive free Annual Meeting The University of Tulsa is an EEO/AA Institution. registration. Register online at www.okbar.org.

❑ Online CLE — quality OBA/CLE online programming, plus online seminar programs from other state bar associations. It’s a convenient way to get up to three hours MCLE credit.

❑ Practice management/ technology hotline service — free telephone calls to the Management Assistance Program (MAP) staff and the OBA Director of Information Systems for brief answers about practical management and technology Your one-click issues, such as law office software, understanding computer jargon, resource to all staff and personnel problems, software training opportunities, the information time management and trust account management. Call you need. (405) 416-7008.

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2497 2498 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 CLASSIFIED ADS

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Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2499 POSITIONS AVAILABLE POSITIONS AVAILABLE

BUSY PERSONAL INJURY ATTORNEY WITH MULTIPLE ATTORNEY needed for small OKC firm. Must be OFFICES SEEKS ATTORNEY TO HANDLE HEAVY CASE reliable and self motivated. This position involves LOAD with a minimum of two years experience as research, writing, motion practice and trial attendance. plaintiff or defense counsel. The position requires experi- Interest in family law and personal injury preferred. ence in personally handling a mimimum of 10 to 15 trials Significant opportunity for motivated candidate. 1 to 2 as plaintiff or defense council. A competitive compensa- years experience. Please send resume and transcript to tion package commensurate with experience with poten- Box “AA,” Oklahoma Bar Association, P.O. Box 53036, tial of great income in a short time. All contacts kept Oklahoma City, OK 73152. confidential. Send resume to Box ”I,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. Legal Secretary/Legal Assistant NW OKC Firm Concentrating in Plaintiff Personal Injury, Worker’s Com- pensation and Insurance Defense has opening LEGAL ASSISTANT for Experienced Legal Secretary/Assistant to Senior Part- CompSource Oklahoma is seeking a qualified ner. “Experience Required” Must have excellent organiza- individual to fill a Legal Assistant vacancy in tional skills, word processing, file management and Oklahoma City. Applicants must have successfully billing proficiency. Submit resumes to Box “X,” Oklahoma completed an ABA approved legal assistant program Bar Association, P.O. Box 53036 Oklahoma City, OK 73152. and have two (2) years of experience as a legal assistant or an equivalent combination of education OKC A.V. FIRM OF MEE MEE HOGE & EPPERSON and experience, substituting thirty (30) semester PLLP seeks associate with 3+ years experience in civil hours of college course work for each year of the litigation. Corporate law, estate planning experience required experience. May consider hiring less and/or transactional law a plus, but not required. qualified individual at a lower level position. Salary Benefits include health insurance and 401K. Please $29,000 to $35,000 per year. Excellent benefit email resume with salary requirements to ddd@ package includes paid vacation and sick leave, paid meehoge.com. holidays and health, dental and life insurance. EEO/ AA Employer. To apply, please submit your resume HEROUX & POLLARD has immediate need to add and cover letter to: CompSource Oklahoma Attn: two lawyers in Tulsa: one with 2+ years experience in Anna Jacks — Human Resources PO BOX 53505 real estate, business transactions and litigation; and Oklahoma City OK 73152-3505 OR you may one with 5+ years experience in commercial real estate fax your resume to (405) 962-3597 or e-mail to transactions, M&A and/or oil & gas transactions. [email protected]. Send CV to [email protected].

ASSISTANT HR DIRECTOR, INTERNATIONAL CLASSIFIED INFORMATION FACULTY AND STAFF SERVICES. The University of Oklahoma is searching for highly-motivated and enthusiastic candidates for the position of Assistant CLASSIFIED RATES: One dollar per word per Human Resources Director, International Faculty and insertion. Minimum charge $35. Add $15 surcharge Staff Services. The position serves three campuses in per issue for blind box advertisements to cover Oklahoma City, Norman, and Tulsa. Duties include forwarding of replies. Blind box word count must include “Box ____ , Oklahoma Bar interpreting immigration laws and regulations Association, P.O. Box 53036, Oklahoma City, affecting non-immigrant faculty and staff, counseling OK 73152.” Display classiﬁ ed ads with bold administrators; designing training programs and headline and border are $50 per inch. See www.okbar. workshops for department administrators and faculty; org for issue dates and Display Ad sizes and rates. developing policies and procedures. Candidates must have a Juris Doctorate; previous management DEADLINE: Tuesday noon before publication. Ads must be prepaid. Send ad (e-mail preferred) in experience; expert knowledge of US immigration writing stating number of times to be published to: laws and relevant technical regulations and administrative processes; experience filing H, O, TN Jeff Kelton, Oklahoma Bar Association and Permanent Residency petitions. University P.O. Box 53036, Oklahoma City, OK 73152 experience is preferred. Apply online at http://jobs. E-mail: [email protected] ou.edu/applicants Central?quickFind=62351. Publication and contents of any advertisement is not to be deemed an endorsement of the views expressed AV-RATED TULSA INSURANCE DEFENSE FIRM therein, nor shall the publication of any advertisement seeking attorneys with 0-7 years experience. Litiga- be considered an endorsement of the procedure or tion experience or excellent writing skills a plus. Send service involved. All placement notices must be clearly non-discriminatory. resume to Richards & Connor, 525 S. Main St., 12th Fl., Tulsa, OK 74103.

2500 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 • AV® Martindale-Hubbell Rating, the highest rating for ethics and competency • 38 years experience in handling only personal injury cases • Practice limited to Catastrophic Injuries • Many successful multi-million dollar verdicts and settlements • Recognized on national television in the U.S. and Great Britain • Recognized in Time, Star, TWA in Flight, and other magazines • Recognized in newspapers in the U.S., Japan, and other countries • Licensed to practice in Oklahoma, Texas, Michigan and Pennsylvania • Member Oklahoma Trial Lawyers Association and American Association for Justice (formerly Association of Trial Lawyers of America)

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2501 OBA/CLE Presents

Indian Gaming Practice in Oklahoma

Tulsa DATE & November 13, 2008 LOCATION: Renaissance Hotel 6808 S. 107th E. Ave.

CLE CREDIT: This course has been approved by the Oklahoma Bar Association Mandatory Continuing Legal Education Commission for 7 hours of mandatory CLE Credit, including 0 hours of ethics.

TUITION: $150 for early-bird registrations received with payment at least four full business days prior to the seminar date; $175 for registrations received within four full business days of the seminar date. Register online at www.okbar.org/cle. The Oklahoma City program will be webcast. For details go to www.legalspan.com/okbar/webcasts.asp.

CANCELLATION Cancellations will be accepted at any time prior to the seminar date; however, a $50 POLICY: fee will be charged for cancellations made within four full business days of the seminar date. Cancellations, refunds, or transfers will not be accepted on or after the seminar date.

Program Planner/Moderator D. Michael McBride, III, Chair, Indian Law & Gaming Practice Group, Crowe & Dunlevy, P.C., Tulsa

8:30 Registration and Continental Breakfast

9:00 Introduction of Speakers and Overview of Indian Gaming in Oklahoma D. Michael McBride, III

9:15 Nations as Local Governments in Oklahoma - Basic Organizational and Legal Issues Geoffrey Standing Bear, Esq, Law Offices of Geoffrey Standing Bear, Pawhuska

9:40 How to Transact with Tribal Governments and their Entities Klint A. Cowan, Esq., Hobbs, Straus, Dean & Walker, LLP, Oklahoma City

10:00 Break

10:10 Representing Casino Tort and Prize Claimants: The Plaintiff’s Perspective O. Joseph Williams, Esq., Pitchlynn & Williams, P.C., Norman

10:40 Representing Tribal Governments in Tort and Prize Disputes: The Defense Perspctive Gerald L. Jackson, Crowe & Dunlevy, P.C., Tulsa

11:05 Clash of the Jurisdictions: Pending Cases Before the Oklahoma Supreme Court Regarding State Jurisdiction over Tribal Casino Tort Claims Mark H. Ramsey, Esq., Taylor, Burrage, Foster, Mallett, Downs & Ramsey, P.C., Claremore Dennis W. Arrow, Professor, Oklahoma City University School of Law, Oklahoma City

11:55 Networking lunch (included in registration)

2502 The Oklahoma Bar Journal Vol. 79 — No. 28 — 10/25/2008 12:30 Tribal Gaming Commissioners Panel: How Not to Practice Before Tribal Gaming Commissions and Administrative Bodies Barbara Kyser-Collier, Gaming Commissioner, Quapaw Tribe of Oklahoma, Chair, Oklahoma Tribal Gaming Regulator’s Association Richard Chissoe, Gaming Commissioner, Osage Nation

1:15 Break

1:25 Indian Lands: Building the Reservation, Transacting and Financial Issues Michael S. Laird, Esq., Crowe & Dunlevy, P.C., Oklahoma City

1:50 Business Entities and Strategies for Tribal Gaming Economic Development Michael M. Stewart, Esq., Crowe & Dunlevy, P.C., Oklahoma City

2:15 Effective Strategies for Advising Casino Human Resource Managers Randall J. Snapp, Esq., Crowe & Dunlevy, P.C., Tulsa

2:40 Betting on Your Employees: Providing Benefits Plans for Casinos, Hotels and Tribal Governments Kevin D. Gordon, Esq., Crowe & Dunlevy, P.C., Oklahoma City

3:05 Break

3:15 Litigating and Defending Tribal Casino Interests: Special Considerations Jimmy K. Goodman, Esq., Crowe & Dunlevy, P.C., Oklahoma City

3:40 Recent Developments in Gaming Regulations: The Class II Conundrum G. Dean Luthey, Jr., Esq., Hall, Estill, Hardwick, Gable, Golden & Nelson, Tulsa

4:05 Adjourn

Indian Gaming Practice in Oklahoma

G Tulsa November 13, 2008 $150

G Materials only $80 Pub # 354B Full Name______Firm ______Address ______

City ______State ______Zip______Register online at www.okbar.org Phone ( ) ______E - Mail ______Are you a Member of OBA? Yes No OBA Bar#______

Make Check payable to the Oklahoma Bar Association and mail entire page to: CLE REGISTRAR, P.O. Box 53036 Oklahoma City, OK 73152 For Visa or Master Card Fax (405) 416-7092 Phone or Mail •(405) 416-7006 Credit Card# Exp.date______Authorized Signature

Vol. 79 — No. 28 — 10/25/2008 The Oklahoma Bar Journal 2503 OBA/CLE Presents The Winner’s Circle An Evening of Ethics, Food, and Racing Fun! October 31, 2008 Remington Park

Registration at 4:00 Program at 4:30 Dinner at 5:20 Race at 6:30 (open bar and tip sheet included) Register at www.okbar.org/cle

1 hour of mandatory CLE Credit, including 1 hour of ethics. $100 for early-bird registrations received with payment at least four full business days prior to the seminar date; $125 for registrations received within four full business days of the seminar date. Guest with CLE registrant will be charged $65.00. * Anyone wearing short shorts, t-shirts, ragged jeans or abbreviated wear of any type will not be allowed into the Penthouse Suites or Eclipse Restaurant. If there are any questions regarding the manner of a person’s dress, Remington Park management reserves the right to make the final decision.