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930 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 Theme: pg. 983 Constitutional Law Leadership Editor: Erin Means Academy contents May 20, 2017 • Vol. 88 • No. 14 Departments 932 From the President 947 Editorial Calendar 997 From the Executive Director 999 Law Practice Tips 1003 OBA Board of Governors Actions 1006 Oklahoma Bar Foundation News 1008 Young Lawyers Division 1010 For Your Information 1012 Bench and Bar Briefs 1014 In Memoriam 1019 In Memoriam Anthony ‘Tony’ Massad 1020 What’s Online 1024 The Back Page

About the Cover: U.S. Supreme Court Building pg. 991 Features New Lawyers 935 Suing on Shifting Sands: The Oklahoma Constitution, Retroactive Legislation and the Scramble for Clarity By Mbilike Mwafulirwa Plus 943 Hate Speech 979 OBA Awards: Do You Know Someone Who By Rick Tepker Deserves to be Honored? By Jennifer Castillo 949 Citizens United or Citizens Undone? By Micheal Salem 982 Diversity Awards: Nominations Due July 14 959 An Appellate Practice Pointer 983 Leadership Academy: Search for Future Bar from Citizens United Leaders Underway By Micheal Salem By Linda S. Thomas 963 First Amendment, Equal Protection 984 Legislative Report and Invisible Children By Angela Ailles Bahm By Richard J. Goralewicz 986 Law Day Contributors Recognized 975 Debatable or Not Debatable: A Clearer 987 Sovereignty Symposium XXX Test of Qualified Immunity 991 New Lawyers Take Oath By Clark Crapster

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 931 FROM THE PRESIDENT

14th Amendment Guarantees Are Vital By Linda S. Thomas

The 14th Amendment is arguably the most important We need to educate the public on the amendment to the U.S. Constitution and is among the benefits of the JNC, to warn them of the most often cited and most litigated of constitutional provi- potential ill effects of reintroducing poli- sions. The amendment prohibits states from depriving tics into our judicial selection process any person of life, liberty or property without “due pro- and promote the public’s understanding cess of law” and requires states to afford “equal protection of the importance of separation of pow- of the law” to all. Simply put, the 14th Amendment is ers, both central and essential in a repre- based on the principle that citizens shall not be deprived sentative democracy. While the judicial of life, liberty or property without appropriate legal proce- branch is often referred to as the “third” dures and safeguards. It guarantees all citizens the same branch of government, nonetheless it is rights, privileges, protections and fair treatment through coequal with the executive branch and the judicial system. the legislative branch. Because of the 14th Amendment, indi- LEARNING FROM vidual rights are balanced with the power It is the perfect time THE PAST of the government. Absent due process The JNC was created in and equal protection, I can imagine that for the OBA to 1967 after a bribery scan- the other rights afforded to us in the U.S. focus on the fair dal involving three Okla- and Oklahoma constitutions would have homa Supreme Court little effect. Even the very basic freedoms and impartial justices became the focus – freedom of religion and speech, right to administration of the nation. Prior to the jury trial and freedom from unreasonable 1960s, all Oklahoma searches and seizures – would all fall by of justice for the judges, including appel- the wayside without the 14th Amend- benefit of all late judges, were like ment guarantee of due process of law and every other politician – equal protection under the law. Oklahoma citizens. raising money, cam- The gatekeeper of paigning and running for those 14th Amend- office in contested parti- ment guarantees is a fair and impar- san elections. The bribery scandal sur- tial judiciary. Absent an independent faced in 1965 after it was revealed the judiciary, “due process” and “equal three justices accepted bribes to rig votes protection” would be an elegant ves- on decisions before the court. Oklahoma sel that holds little water. With 2017 gained national attention with Newsweek bringing the 50th anniversary of the magazine calling Oklahoma’s system creation of merit selection of Okla- “cash and carry justice,” and Time maga- homa judges utilizing the Judicial zine proclaiming “little in U.S. judicial Nominating Commission (JNC), it is history comes close to matching this the perfect time for the OBA to focus scandal,” referring to the quality of jus- on the fair and impartial administra- tice in our state as the “best money can President Thomas tion of justice for the benefit of all buy.” practices in Bartlesville. Oklahoma citizens. [email protected] cont’d on page 985 918-336-6300

932 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Associa- tion. All rights reserved. Copyright© 2017 Oklahoma Bar Association. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Volume 88 – No. 14 – 5/20/2017 Board of Governors, Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service JOURNAL STAFF BOARD OF EDITORS offered by any advertisement is intended or implied by publication. Advertisers are solely JOHN MORRIS WILLIAMS MELISSA DELACERDA responsible for the content of their ads, and Editor-in-Chief Stillwater, Chair the OBA reserves the right to edit or reject [email protected] any advertising copy for any reason. LUKE ADAMS, Clinton Legal articles carried in THE OKLAHOMA CAROL A. MANNING, Editor RENÉE DEMOSS, Tulsa BAR JOURNAL are selected by the Board of [email protected] Editors. Information about submissions can PATRICIA A. FLANAGAN be found at www.okbar.org. MACKENZIE MCDANIEL Yukon Advertising Manager BAR Center Staff AMANDA GRANT, Spiro [email protected] John Morris Williams, Executive Director; C. SCOTT JONES, Gina L. Hendryx, General Counsel; Joe Balken- LACEY PLAUDIS Oklahoma City bush, Ethics Counsel; Jim Calloway, Director Communications Specialist of Management Assistance Program; Craig D. [email protected] ERIN MEANS, Moore Combs, Director of Administration; Susan LAURA STONE SHANNON L. PRESCOTT Damron, Director of Educational Programs; Okmulgee Beverly Petry Lewis, Administrator MCLE Communications Specialist Commission; Carol A. Manning, Director of [email protected] MARK RAMSEY, Claremore Communications; Robbin Watson, Director of LESLIE TAYLOR, Ada Information Technology; Loraine Dillinder Far- abow, Tommy Humphries, Debbie Maddox, Katherine Ogden, Steve Sullins, OFFICERS & Assistant General Counsels Les Arnold, Gary Berger, Debbie Brink, BOARD OF GOVERNORS Tony Blasier, Melody Claridge, Cheryl Corey, LINDA S. THOMAS, President, Bartlesville; Nickie Day, Ben Douglas, Dieadra Florence, JENNIFER CASTILLO, Vice President, Oklahoma City; Johnny Marie Floyd, Matt Gayle, Marley KIMBERLY HAYS, President-Elect, Tulsa; GARVIN A. ISAACS, Harris, Suzi Hendrix, Darla Jackson, Debra Immediate Past President, Oklahoma City; JOHN W. COYLE III, Jenkins, Rhonda Langley, Jaime Lane, Durrel Lattimore, Mackenzie McDaniel, Renee Oklahoma City; MARK E. FIELDS, McAlester; JAMES R. Montgomery, Lacey Plaudis, Tracy Sanders, GOTWALS, Tulsa; KALEB K. HENNIGH, Enid; JAMES R. HICKS, Mark Schneidewent, Laura Stone, Jan Tulsa; ALISSA HUTTER, Norman; JAMES L. KEE, Duncan; Thompson, Krystal Willis, Laura Willis JIMMY D. OLIVER, Stillwater; SONJA R. PORTER, Oklahoma & Roberta Yarbrough City; ROY D. TUCKER, Muskogee; JOHN M. WEEDN, Miami; Oklahoma Bar Association 405-416-7000 BRYON J. WILL, Yukon; LANE R. NEAL, Oklahoma City, Chair- Toll Free 800-522-8065 person, OBA Young Lawyers Division FAX 405-416-7001 Continuing Legal Education 405-416-7029 The Oklahoma Bar Journal (ISSN 0030-1655) is published three Ethics Counsel 405-416-7055 times a month in January, February, March, April, May, August, General Counsel 405-416-7007 September, October November and December and bimonthly in June and July by the Oklahoma Bar Association, 1901 N. Lincoln Lawyers Helping Lawyers 800-364-7886 Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage Mgmt. Assistance Program 405-416-7008 paid at Oklahoma City, Okla. Mandatory CLE 405-416-7009 Board of Bar Examiners 405-416-7075 Subscriptions $60 per year except for law students registered with Oklahoma Bar Foundation 405-416-7070 the OBA and senior members who may subscribe for $30; all active members included in dues. Single copies: $3 www.okbar.org Postmaster Send address changes to the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152-3036.

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 933 934 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 Constitutional LAW Suing on Shifting Sands The Oklahoma Constitution, Retroactive Legislation and the Scramble for Clarity By Mbilike M. Mwafulirwa It is a principle which has always been held sacred in the United States, that laws by which human action is to be regulated, look forwards, not backwards; and are never to be construed retrospectively unless the language of the act shall render such construction indispensable. De Niz Robles v. Lynch1 magine that it is July of 2014, and you have finally achieved notoriety in life. You’re a celebrity lawyer. Then, unexpectedly, Ia “friend” publishes a tell-all video on social media maligning you. You are accused of being an incompetent and unethical law- yer, with specific instances outlined as examples (all false, of course). The allegations make rounds in the media and have dev- astating effects on your practice and reputation. You decide to take swift action. Within 30 game. Your opponent disagrees; she argues the days, you file suit against your friend, assert- statute merely outlines new civil procedures, ing various reputational torts. While the suit is as such, like any other rule of civil procedure, pending, the legislature passes a new law that it should apply to your case. affects reputational tort claims like yours. The This hypothetical situation raises a pr ofound law provides that within 60 days, the defen- constitutional question: Can legislation with dant can move to dismiss the case by merely the same design and effects as that outlined showing that the case relates to First Amend- above apply retroactively to an active case con- ment protected speech (e.g., a matter of public sistent with Okla. Const. Art. 5, §§52-54? This concern) or that a defense applies. As soon as question has arisen several times under vari- the defense motion is filed, all discovery tools ous Oklahoma statutes, and most recently, the are automatically stayed. Oklahoma Citizens Participation Act (OCPA),2 To keep your case alive, you have the burden a statute with the same design and effect as the of proving by clear and specific evidence each one in the hypothetical, that came into effect on and every element of your case, without the Nov. 1, 2014. Our courts have held that the benefit of discovery (unless the court allows OCPA and similar statutes cannot apply retro- you). If you lose, you are taxed costs and attor- actively. This article will flesh out the various ney fees automatically. Your opponent imme- legal and policy considerations that underlie diately files her defense motion based on the those holdings and lay out some bright lines to new statute. You object to the new statute guide the Oklahoma legal practitioner to effec- applying to your case because, in your view, it tively address retroactive statutes in civil cases. moves the goal posts in the middle of the

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 935 THE OKLAHOMA CITIZENS to the maximum extent permitted by law …”15 PARTICIPATION ACT – AN OVERVIEW The OCPA’s reach is very broad – it applies to The OCPA is among a class of statutes com- any action that “is based on, relates to or is in monly referred to as anti-SLAPP laws that response to a party’s exercise of the right of 3 free speech, right to petition or right of associa- came into effect on Nov. 1, 2014. The acronym 16 “SLAPP” stands for “Strategic Lawsuits tion.” The “right of association” is defined as Against Participation,” a phrase first coined by “communication between individuals who join 4 together to collectively express, promote, pursue professors George W. Pring and Susan Canan. 17 In essence, a SLAPP lawsuit is one that is filed or defend common interests.” The “right of free speech” captures communications “made in with the clear purpose of “deter[ing] public 18 participation in decision-making forums … connection with a matter of public concern.” [by] intimidat[ing] the petitioners into drop- The “right to petition,” on the other hand, per- ping their initial petitions due to the expense tains to communications in judicial proceed- 5 ings, public meetings and most of other public and fear of extended litigation.” Anti-SLAPP 19 statutes are legislative responses aimed at proceedings. “[C]ommunication” captures the “making or submitting of a statement or docu- curbing SLAPP lawsuits. Indeed, anti-SLAPP 20 statutes draw their inspiration from two semi- ment in any form or medium …” nal United States Supreme Court decisions, The main striking point of the OCPA is its Eastern Railroad Presidents Conference v. Noerr summary dismissal procedures.21 During the Motor Freight Inc.6 and United Mine Workers of sufficiency stage of the proceedings, within 60 America v. Pennington.7 days of the date of service of the case, and The two cases underscore emphatically the without the benefit of discovery, a defendant First Amendment’s Petition Clause’ guarantee can move to summarily dismiss the case on the that the government “shall make no law … merits by merely showing by a preponderance abridging … the right of the people … to petition of the evidence that either the case relates to protected speech or that a defense applies.22 In the Government for a redress of grievances.”8 The Petition Clause is the full embodiment of “the contrast, in order to keep his case alive, a plain- tiff must establish by “clear and specific evidence very idea of a government, republic in form.”9 In a prima facie case for each essential element of the first of the two cases referenced above, Noerr 23 Motor Freight, trucking companies and their the claim in question.” In making a determi- trade association sued competitor railroads nation whether to dismiss a suit, the court under the antitrust laws because they had con- “shall consider the pleadings and supporting and opposing affidavits …”24 Arguably, the OCPA spired to engage in petitioning conduct that 25 had deleterious effects on the trucking indus- contemplates a trial on the pleadings. try.10 The district court, after a trial, entered The OCPA also imposes sanctions. The OCPA judgment in favor of the trucking companies.11 provides that when a motion to dismiss is sus- The Supreme Court reversed and held that tained, the court “shall” award the moving “the Sherman Act does not prohibit … persons party reasonable attorney fees and costs.26 On from associating … in an attempt to persuade the other hand, if a defendant’s motion to dis- the legislature or the executive to take particu- miss is deemed “frivolous or solely intended to lar action with respect to a law that would delay,” a court “may” award plaintiff costs and produce a restraint or a monopoly.”12 In the attorney fees.27 The district court has discretion, other case, Pennington, a case that also impli- which it may exercise upon motion or sua cated antitrust concerns, the court extended its sponte, to order limited discovery.28 earlier holding in Noerr to emphasize that the OKLAHOMA CONSTITUTIONAL great deference accorded to the right to peti- FRAMEWORK FOR RETROACTIVE tion “shields from the Sherman Act a concerted LEGISLATION effort to influence public officials regardless of intent or purpose.”13 Oklahoma law presumes that unless the words in a statute expressly indicate that it Against this background, the OCPA should applies retroactively, it should ordinarily be be considered beginning with the words of the presumed to only apply prospectively.29 How- statutory text.14 The OCPA professes to “encour- ever, the same is not true of purely procedural age and safeguard the constitutional rights of statutes: they apply retroactively.30 There are, persons to petition, speak freely, associate however, “constitutional limitations on this freely and otherwise participate in government

936 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 general rule.”31 Oklahoma law remains deeply defendants filed OCPA motions to dismiss, and committed to the constitutional principle that pursuant to 12 O.S. Supp. 2015 §1433,42 the trial later-enacted statutory changes cannot make court was required to set a hearing within 60 substantive changes to existing claims.32 In per- days but no later than 90 days.43 After failing to tinent part, Okla. Art. 5, §52 provides: hold a hearing within 60 days and no later than 90 days, the trial court issued an order that The Legislature shall have no power to defendants’ motion had been denied auto- revive any right or remedy, which may matically as a matter of law.44 The case was have become barred by lapse of time, or by appealed, and it was assigned to Court of any statute of this State. After suit has been Civil Appeals (COCA) Division IV. While the commenced on any cause of action, the Legisla- case was pending, Anderson filed a motion to ture shall have no power to take away such dismiss the appeal because, in her view, the cause of action, or destroy any existing defense OCPA did not apply to the case, as such, the to such suit.33 appellate court lacked jurisdiction.45 Also worthy of note on this subject is Okla. The appeal set the stage for three difficult Art. 5, §54. In pertinent part, it provides: questions: 1) Could the trial court ignore an The repeal of a statute shall not revive a explicit statutory command to hold a hearing statute previously repealed by such stat- within the specific time frames set by the stat- ute, nor shall such repeal ute? 2) Considering that the affect any accrued right, or trial court had failed to hold a penalty incurred, or proceed- hearing and issue a ruling, was ings begun by virtue of such In this case, there a final appealable order to repealed statute.34 trigger the appellate court’s the appellate court jurisdiction? And finally, 3) The Oklahoma Supreme Court even if the trial court could be addressed these provisions in reasoned that the trial 35 ordered to conduct the OCPA Cole v. Silverado Foods Inc. In court had a mandatory hearing that it should have held Cole, retroactive workers’ com- in the first place, how could pensation legislation attempted duty to hold a hearing that be reconciled with 12 O.S. to shorten the time period with- Supp. 2015 §1433(A) that in which an injured worker within a specified expressly provides that “in no could present accrued claims event shall the hearing occur 36 timeframe, but it had from five to three years. The more than ninety (90) days after court held that later-enacted leg- failed to do so. service of the motion to dis- islation could not alter accrued miss”? substantive rights (decreasing the time to present claims from Division IV gave interesting five to three years).37 The court reasoned that responses to these vexing questions. The court later-enacted legislation is “subject solely to pro- elected to address the questions in reverse spective application,”38 if it re-fashions an exist- order – the jurisdiction question first.46 The ing remedial scheme “into a different and more court noted that “in the absence of any pro- extensive liability-defeating mechanism … [and] ceedings in the district court,”47 there was no destroys the claimant’s right to present her claim appealable decision to review on appeal.48 As free from being subjected to new and more the court explained, appellate courts in Okla- extensive instruments of destruction.”39 homa do not usurp the trial court’s role in addressing legal questions in the first instance.49 JUDICIAL REVIEW OF THE OCPA – DIFFICULT QUESTIONS The lack of an appealable order, however, UNRAVELED did not end the court’s analysis. The OCPA’s Oklahoma courts have so far issued a num- appellate provision – 12 O.S. Supp. 2015, §1437(B) – has two components, “appeal or ber of published opinions on the OCPA. The 50 first of these cases was Anderson v. Wilken.40 In other writ.” Division IV reasoned that even Anderson, the plaintiff, who was at the time the though this case failed to trigger §1437(B)’s clerk of Rogers County, sued the Claremore appeal component, there had to be a situation Daily Progress and its reporter for publications in which the “writ” portion of the provision that she alleged placed her in a false light.41 The was triggered; otherwise, that portion of the statute would be redundant.51 In this case, the

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 937 appellate court reasoned that the trial court the original defendants, arguably accrued had a mandatory duty to hold a hearing within before the OCPA came into effect.66 That would a specified timeframe, but it had failed to do in effect preclude the OCPA retroactively so.52 The failure to discharge a mandatory duty, applying to those claims.67 Even then, what Division IV reasoned, was a basis for the issu- about the claims against the newly added ance of a writ in this case.53 The trial court was defendants? When did those claims accrue? ordered to hold a hearing “no later than 60 days One possibility is that those claims accrued the after the date of service of the motion unless same time as the original because Oklahoma docket require a later hearing … but in no law does not recognize tolling of claims against event shall the hearing occur more than 90 unknown tortfeasors (or simply because a days after service of the motion to dismiss.”54 plaintiff does not know all the people respon- The court declined to address other issues.55 sible for bringing about his injuries).68 In that The question of the OCPA’s retroactivity was case, the law applicable should have been that still open. predating the OCPA, regardless of an amend- 69 THE OCPA’S RETROACTIVE ment. Another possibility, like Division I APPLICATION FINALLY ADDRESSED found, is that the newly added claims accrued after the OCPA came into effect, meaning it The Oklahoma Supreme Court squarely could apply to the case.70 The Oklahoma addressed this question in the twin cases Anag- Supreme Court granted certiorari in Anagnost nost v. Tomacek56 and Steidley v. Singer.57 We on Oct. 24, 2016, to address these issues.71 address each case in turn. The court held that the OCPA does not apply Anagnost v. Tomacek retroactively.72 To begin with, the court rea- In Anagnost, the Oklahoma Board of Medical soned that the statute contained no express Licensure and Supervision (board) commenced “indication that the Legislature intended for 73 an investigation against doctor-plaintiff, on the OCPA to operate retrospectively.” In addi- allegations that he rendered below par treat- tion, the court reasoned that even if the OCPA ment to patients, among other alleged infrac- was intended to apply retroactively, by its tions.58 Plaintiff, in turn, filed multiple legal design and effect, it was substantive; as such, it proceedings challenging the board proceed- could not apply to existing claims.74 As the ings, and also filed claims against a number of court explained, the OCPA creates a new doctors and their entities. On Dec. 12, 2014, the defense – a new expedited motion to dismiss plaintiff filed an amended pleading adding without the guarantee of discovery – for claims additional claims.59 After the amendment, that implicate First Amendment rights.75 As the while the suit was underway, the defendants court had earlier explained in Cole, later-enact- filed OCPA motions to dismiss, a year after the ed legislation is subject solely to prospective suit had originally been filed.60 The trial court application if it refashions an existing remedial held that since the amended pleading was filed scheme “into a different and more extensive after the OCPA came into effect, it applied to liability-defeating mechanism … [and] destroys this case. The trial court sustained defendants’ the claimant’s right to present her claim free motions and dismissed the case.61 As relevant from being subjected to new and more exten- here, the COCA affirmed.62 The court reasoned sive instruments of destruction.”76 Further- that the OCPA applies to any “legal action” more, the court explained that because the without qualification, including the case at OCPA creates a new remedy for damages “by hand.63 providing [an] award of attorney fees, costs and other reasonable expenses as well as sanc- Division I’s conclusion raised very interest- tions,” in line with existing Oklahoma law, it ing and potential conflicts with prior OCPA should only apply prospectively.77 appellate rulings for multiple reasons: 1) Okla- homa law is fully committed to the view that The court also addressed the interplay the law in effect at the time a claim accrues between the OCPA and amended pleadings. applies throughout its lifespan,64 2) Division I The court held that as long as an amended held in Steidley v. Community Newspapers Inc., a pleading relates back to the original pleading month before Anagnost, that the OCPA is a sub- under 12 O.S. §2015(C) the OCPA “is inconse- stantive law that cannot constitutionally apply quential.”78 In Anagnost, the court left it to the retroactively to an accrued claim65 and 3) the trial court to make a definitive determination plaintiff’s claims in Anagnost, at least against on the relation back issue.79

938 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 Steidley v. Singer 5) decreases the benefits or awards due to the plaintiff/claimant.94 On the same day that Anagnost was decided, the court also issued its opinion in Steidley, 1. De Niz Robles v. Lynch, 803 F.3d 1165, 1169 (10th Cir. 2015). which also held that the OCPA cannot apply 2. 12 O.S. Supp. 2015 §§1430, et seq. 80 3. See Laws 2014, HB 2366, c. 107, §1, eff. Nov. 1, 2014. retroactively. Janice Steidley, the former dis- 4. See George W. Pring & Penelope Canan, SLAPPs: Getting Sued for trict attorney for Rogers, Mayes and Craig Speaking Out 2-3 (1996). counties, together with her two assistants, sued 5. Laura Long, “Slapping Around the First Amendment: An Analy- sis of Oklahoma’s Anti-SLAPP Statute and Its Implications on the several individuals for allegedly publishing Right to Petition,” 60 Okla. L. Rev. 419, 420 (2007). deliberate and reckless falsehoods in the body 6. 365 U.S. 127 (1961). 81 7. 381 U.S. 657 (1965). of a grand jury petition. The district court 8. U.S. Const. amend. I (emphasis added). approved the grand jury petition on Aug. 29, 9. United States v. Cruikshank, 92 U.S. 542, 552 (1876). 82 10. Noerr Motor Freight, 365 U.S. at 129. 2013. On Oct. 16, 2013, plaintiffs filed their 11. Id. at 132-133. initial petition alleging defamation.83 Plaintiffs 12. Id. at 136. The court refused to read the Sherman Act in such a way as to compromise the people’s constitutional right to petition the filed an amended petition in November of government for redress. See id. at 138. 84 2013. While the suit was pending, a year later, 13. Pennington, 381 U.S. at 370 (emphasis added). the OCPA came into effect; defendants filed 14. State ex rel. Macy v. Freeman, 1991 OK 59, ¶8, 814 P.2d 147, 153. 85 15. 12 O.S. Supp. 2015 §1430. their OCPA motion to dismiss. 16. Id. §1432(a). 17. Id. §1431(2). The lower courts held that the OCPA does 18. Id. §1431(3). not apply retroactively. The trial court denied 19. Id. §§1431(4)(a)-(9)(e). 20. Id. §1431(1). defendants’ motion to dismiss, implicitly hold- 21. 12 O.S. Supp. 2015 §1432. ing that the OCPA was not retroactive.86 COCA 22. See 12 O.S. Supp. 2015 §§1432, 1434. 23. Id. §1434(C) (emphasis added). “[C]lear and specific evidence” affirmed, holding that the statute is not retroac- has no discernable definition under Oklahoma law. tive because it is substantive.87 The Oklahoma 24. 12 O.S. Supp. 2015, §1435(A) (emphasis added). 25. See id. (trial court must consider conflicting evidentiary presen- Supreme Court granted certiorari on Dec. 13, tations and render decision). 2016, to consider the OCPA’s applicability. 26. 12 O.S. Supp. 2015 §1438(A)(1-2) (emphasis added). 27. Id. §1438(B)(emphasis added). The court held that the OCPA is not retroac- 28. Id. §1435(B). 29. Trinity Broad. Corp. v. Leeco Oil Co., 1984 OK 80, ¶6, 692 P.2d tive, citing Anagnost. Because the OCPA is sub- 1364, 1366. stantive, Okla. Const. Art. 5, §54 prohibits its 30. Okla. Bd. of Med. Licensure and Supervision v. Okla. Bd. of Examin- 88 ers in Optometry, 1995 OK 13, ¶6, 893 P.2d 498, 499 (“no one has a retroactive application. vested right in any particular procedure.”). 31. Robinson v. Clark, 2009 OK CIV APP 56, ¶9, 217 P.3d 155, 158 CONCLUSION (Approved for publication by the Oklahoma Supreme Court). 32. See Okla. Const. Art. 5, §§52 & 54. A retroactive “procedural” Oklahoma law – Okla. Const. Art. 2, §6 – amendment that in fact makes substantive changes to existing claims attempts to guarantee every litigant his fair is impermissible. Bertland v. Laura Dester Cntr., 2013 OK 18, ¶¶14-15, 300 P.3d 1188, 1192. day in court. Retroactive legislation, however, 33. Okla. Const. Art. 5, §52 (emphasis added). upsets settled expectations. That is why Okla- 34. Id. §54 (emphasis added). 35. 2003 OK 81, 78 P.3d 542. homa law only tolerates retroactive legislation 36. Id. ¶1, 78 P.3d at 544. when it makes purely procedural changes to 37. Id. 38. Id. ¶13, 78 P.3d at 548. existing procedures because “no one has a 39. Id. (emphasis added); see also Thomas v. Cumberland Operating Co., 89 vested right in any particular procedure.” 1977 OK 164, ¶10, 569 P.2d 974, 977 (newly created right to damages was substantive, so restricted to prospective application); see also Hammons v. Distinguishing between purely procedural Muskogee Med. Cntr. Auth., 1985 OK 22, ¶¶6-7, 697 P.2d 539, 542 (finding that amendment that provided new protections from suit to defendants and substantive legislative changes is very dif- was a substantive change limited to prospective application). ficult. However, this article – from its survey of 40. 2016 OK CIV APP 35, 377 P.3d 149, cert. denied (May 9, 2016). Oklahoma case law – has laid out some bright 41. Id. ¶2, 377 P.3d at 150. 42. Id. ¶7, 377 P.3d at 151-152. lines to guide the Oklahoma legal practitioner. 43. 12 O.S. 2015 §1433. Thus far, a law is generally substantive if it 44. Anderson, 2016 OK CIV APP 35, ¶2, 377 P.3d at 150. 45. Id. either 1) attempts to give one party a defense 46. Id. ¶6, 377 P.3d at 151. and/or immunity it did not have before, or to 47. Id. 90 48. Id. ¶10, 377 P.3d at 152. take away a defense in the middle of a case, 2) 49. Anderson, 2016 OK CIV APP 35, ¶10, 377 P.3d at 152. creates a new right to damages or substantially 50. 12 O.S. Supp. 2015 §1437(B). 91 51. Anderson, 2016 OK CIV APP 35, ¶7, 377 P.3d at 151-152. increases existing damages, 3) creates a new 52. Id. ¶11, 377 P.3d at 152. right to attorney’s fees or costs for the prevail- 53. Id.; see also City of Tulsa v. State ex rel. Okla. Tax Comm’n, 2001 OK ing party,92 4) attempts to change the standard 23, ¶3, 20 P.3d 144, 147 (refusal to perform mandatory legal duty is 93 basis for writ of mandamus). of review on appeal for a particular claim or 54. Anderson, 2016 OK CIV APP 35, ¶13, 377 P.3d at 153 (emphasis in original). 55. Id.

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 939 56. 2017 OK 7, 390 P.3d 707. 83. Id. ¶0 (Syllabus by the court), 389 P.3d 1117. 57. 2017 OK 8, 389 P.3d 1117. 84. Steidley, 2017 OK 8, ¶0 (Syllabus by the court), 389 P.3d 1117. 58. Anagnost, 2017 OK 7, ¶2, 390 P.3d at 708. 85. Id. ¶7, 389 P.3d 1119. 59. Id. ¶3, 390 P.3d at 708-709. 86. Id. ¶6, 389 P.3d 1119. 60. Id. ¶4, 390 P.3d at 709. 87. Id.; see also Steidley v. Singer, No. 114534, at *10 (Okla. Ct. Civ. 61. Id. App. Aug. 16, 2016) (unpublished). 62. Anagnost v. Tomacek, No. 113748, at *8 (Okla. Ct. Civ. App. Feb. 88. Steidley, 2017 OK 8, ¶8, 389 P.3d 1119-1120. 5, 2016) (unpublished). 89. Okla. Bd. of Med. Licensure and Supervision, 1995 OK 13, ¶6, 893 63. Id. P.2d at 499. 64. See Williams Companies Inc. v. Dunkelgod, 2012 OK 96, ¶¶14-18, 90. Cole, 2003 OK 81, ¶13, 78 P.3d at 548 (shortening of statute of 295 P.3d 1107, 1111-1115; Cole, 2003 OK 81, ¶13, 78 P.3d at 548. limitations was substantive). 65. 2016 OK CIV APP 63, 383 P.3d 780, cert. denied (Oct. 3, 2016). 91. Thomas, 1977 OK 164, ¶10, 569 P.2d at 977 (newly created provi- 66. See 12 O.S. §2015(C) (details relation back principles). sion of damages); Sudbury, 2001 OK 10, ¶19, 19 P.3d 856, 860 (same). 67. Dunkelgod, 2012 OK 96, ¶¶14-16, 295 P.3d at 1111-1115 (the law 92. Anagnost, 2017 OK 7, ¶17, 390 P.3d 712-713. in effect at the time a claim accrues applies throughout its lifespan) 93. Dunkelgod, 2012 OK 96, ¶¶14-16, 295 P.3d at 1111-1115. (collecting cases). 94. Id. ¶¶29-31, 295 P.3d 1115-1116 (retroactively capping claimant’s 68. Dotson v. Rainbolt, 1995 OK 39, ¶¶18-19, 894 P.2d 1109, 1113- injury benefits to 300 weeks); see also Bertland, 2013 OK 18, ¶¶14-15, 300 1114. P.3d at 1192 (depriving injured worker of mileage reimbursement). 69. Cf. id. (holding that there is no relation back for claims against John Doe defendants). 70. Anagnost, No. 113748, at ¶8. 71. Anagnost, 2017 OK 7, ¶6, 390 P.3d. at 709. About The Author 72. Id. ¶19, 390 P.3d. at 713. 73. Id. ¶16, , 390 P.3d. at 712. 74. Id. ¶17, 390 P.3d. at 712. Mbilike M. Mwafulirwa is an 75. Anagnost, 2017 OK 7, ¶16, 390 P.3d. at 712. associate at Brewster & De- 76. 2003 OK 81, ¶13, 78 P.3d at 548; see also Walls v. Am. Tobacco Co., 2000 OK 66, 11 P.3d 626 (same); Hammons, 1985 OK 22, ¶¶6-7, 697 P.2d Angelis PLLC. Mr. Mwafulirwa’s at 542. practice focuses on general civil 77. Anagnost, 2017 OK 7, ¶17 n. 26, 390 P.3d. at 712 n. 26 (citing litigation, civil rights defense and Sudbury v. Deterding, 2001 OK 10, ¶18, 19 P.3d 856; Thomas, 1977 OK 164, ¶10, 569 P.2d at 977). appellate law. He is a 2012 gradu- 78. Anagnost, 2017 OK 7, ¶18, 390 P.3d. at 713. ate of the TU College of Law. 79. Id. 80. 2017 OK 8, ¶8, 389 P.3d 1119-1120. 81. Id. ¶2, 389 P.3d 1118. 82. Id. ¶3, 389 P.3d 1118.

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940 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 941 942 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 Constitutional LAW

Hate Speech By Rick Tepker he First Amendment is an idea resting on an old, familiar faith. As expressed by James Madison, “Knowledge will Tforever govern ignorance.”1 Indeed, “A people who mean to be their own governors, must arm themselves with the power knowledge gives. A popular government without popular infor- mation or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both.” The First Amendment reflects the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.”2 The First Amendment demands a tolerance of “verbal tumult, discord, and even offensive utterance,” as “necessary side effects of … the process of open debate.”3

America is a culture that is more committed ton asked a question that courts were forced to to tolerance of extremist speech than any other answer, though it took a century and a half to in the history of the world. And many citizens begin the interpretive process. “What signifies do not understand why bigotry, hate, threaten- a declaration that ‘the liberty of the press shall ing rhetoric, racism, misogyny, homophobia, be inviolably preserved?’ What is the liberty of xenophobia and other “thoughts we hate” the press? Who can give it any definition which deserve any respect, much less constitutional would not leave the utmost latitude for eva- protection. sion?”4 In brief, courts went through several stages of evolving law. First, judges deferred But we, the people, learn – slowly, at times – on a theory that free speech was not an excep- from “extremist” speech, even hate speech. We tion to the principle of majority rule.5 Then, can sense anger and frustration among the sensing the potential for executive, legislative disaffected and marginalized. We can perceive and prosecutorial abuse, the courts struggled threats of impending violence. Hopefully, we to develop manageable, enforceable principles can learn that bigotry and paranoia offer noth- to protect expressive liberty.6 Finally, the ing that serves the welfare of the United States. courts settled on a consensus approach that A (VERY) BRIEF HISTORY OF EVOLVING defined a categorical hostility to government DOCTRINE discrimination against ideologies, philoso- phies and viewpoints.7 A comprehensive history of doctrine is impossible in a short article designed to dis- The first stage of deference is illustrated by cuss one continuing free expression problem, Beauharnais v. Illinois.8 A black man had pub- but history is an essential preface. lished a vehement denunciation of white cul- ture and racism. Mr. Beauharnais’s remarks fell When resisting a bill of rights on the theory afoul of a state statute that banned words that that it would do little good, Alexander Hamil-

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 943 “portray[ed] depravity, .. or lack of virtue of a without any “ifs” or “buts” or “whereas- class of citizens, or any race, color, creed or es.” Whatever the danger, if any, in such religion.” In short, as applied to this case, it public discussions, it is a danger the Found- was not nice to denounce or condemn white ers deemed outweighed by the danger people, even for the sins of racism. It was also incident to the stifling of thought and against the law. Truth was not a defense to this speech. The Court does not act on this view “group defamation.” The trial judge refused to of the Founders. It calculates what it deems allow the jury to consider historical facts tend- to be the danger of public discussion, holds ing to support the defendant’s views. The the scales are tipped on the side of state judge also declined to narrow the sweep of the suppression, and upholds state censorship. statute; he refused to instruct the jury that the … If there be minority groups who hail this jury must find that the publication “was likely holding as their victory, they might con- to produce a clear and present danger of seri- sider the possible relevancy of this ancient ous substantive evil that rises far above public remark: “Another such victory and I am inconvenience, annoyance or unrest.” The undone.”11 defendant was convicted. In the great Ameri- Later, a consensus approach emerged as doc- can tradition, he took his case to the U.S. trine in such cases as New York Times v. Sullivan,12 Supreme Court, which split along ideological, Brandenburg v. Ohio13 and Cohen v. California.14 methodological and personal lines. Justice Together these cases taught lessons summarized Felix Frankfurter, in the opinion of the court well by Dean John Hart Ely: holds, Beauharnais’ rants fell into the category of unprotected “group defamation.” If ... history ... teaches us anything, it is that attempts to evaluate the threat posed by In the face of … extreme racial and reli- the communication of an alien view inevi- gious propaganda, we would deny experi- tably become involved with the ideological ence to say that the Illinois legislature was predispositions of those doing the evaluat- without reason in seeking ways to curb ing, and certainly with the relative confi- false or malicious defamation of racial and dence or paranoia of the age. If the First religious groups, made in public places Amendment is even to begin to serve its and by means calculated to have a power- central function of assuring an open politi- ful emotional impact.9 cal dialogue and process, we must seek to The opinion was dominated by Frankfurter’s minimize assessment of the dangerousness conviction that the judicial duty was to defer, of the various messages people want to com- defer, defer – unless there was no other choice. municate. [When] state officials seek to “[I]t would be out-of-bounds for the judiciary to silence a message because they think it’s deny the legislature a choice of policy, provided dangerous, ...we insist that the message fall it is not unrelated to the problem and not forbid- within some clearly and narrowly bounded den by some explicit limitation.”10 category of expression we have designated in advance as unentitled to protection.15 Justice Black, dissenting, upheld a libertarian view of the First Amendment. His analysis bet- One issue that remained was whether some- ter reflects the attitudes of the federal judiciary thing called “hate speech” would be added to – in a later era. Black saw the Illinois law as vin- the list of categories unprotected by free speech dicating an expansive censorship. The publica- principles. tion was not directed as personal insults MODERN DOCTRINE addressed to an individual; they were not “fight- ing words.” Justice Black of Alabama, a former After years of evolving doctrine, Justice member of the Ku Klux Klan, must have drawn Antonin Scalia wrote an opinion of the court in on his knowledge of history – and hate speech the most important case discussing “hate – to remind fellow countrymen: speech”: R.A.V. v. City of St. Paul.16 A city ordi- nance prohibited the display of a burning I do not agree that the Constitution leaves cross, a Nazi swastika and any other symbol freedom of petition, assembly, speech, which would “arouse anger, alarm or resent- press or worship at the mercy of a case-by- ment … on the basis of race, color, creed, reli- case, day-by-day majority of this Court. … gion or gender.” A state Supreme Court opin- I think the First Amendment, with the ion offered an authoritative interpretation that Fourteenth, “absolutely” forbids such laws the ordinance was confined to the unprotected

944 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 category of “fighting words.” So, despite the Justice Stevens thought Justice Scalia’s expla- apparent meaning of the ordinance’s text, the nations and hypotheticals were a journey state law punished use of fighting words that through a “doctrinal wonderland.” Like Justice used racially inflammatory words as the vehi- Frankfurter, Justice Stevens resists categorical cle for provoking violent retaliation. The ordi- approaches and formal rules. They sacrifice nance could not be constitutionally overbroad: “subtlety for clarity.”20 He argued the First it was confined to the unprotected category of Amendment allows some careful regulation.21 fighting words. But the ordinance punished some fighting words – not all. And the stan- R.A.V. holds that hate speech is not a catego- dards used to distinguish between punishable ry of unprotected expression. But the First fighting words and unregulated fighting words Amendment does not bar carefully crafted, were problematic. narrowly tailored statutes that target hateful words that are also incitement to lawless action, Justice Scalia’s analysis was detailed, extend- fighting words designed to provoke brawls ed, complicated and – regrettably – professori- and lawless retaliation or threats. One illustra- al. It was – and is – a “tough read,” quite tive case, Virginia v. Black,22 seems designed to unlike Justice Scalia’s best writing (usually in confuse the average citizen with common dissenting opinions). The issue was whether sense. R.A.V. struck down an ordinance pun- government may use constitutionally-suspect, ishing cross burning but in Black, the court content-based or viewpoint- indicated that state statutes based standards for underinclu- against cross burning were per- sive regulation of otherwise fectly acceptable if narrowly unprotected expression. The The issue was tailored to ban only “true majority answered the question threats,” a category of unpro- in the negative. whether the First tected expression. Why? “[T]he ordinance is Amendment prevents The case involved two cross- facially unconstitutional in that burning cases. In one, a cross it prohibits otherwise permitted a state from punishing was burned at a KKK rally. In a speech solely on the basis of the second case, a cross was burned 17 the burning of a subjects the speech addresses.” at the private home of a family By punishing racially inflamma- cross with intent to that had complained about a tory “fighting words,” the ordi- neighbor’s firing guns in the nance becomes a censorship of intimidate. The residential area. Both cases re- racial talk. Governments may answer was ‘no.’ sulted in convictions of all ban only most patently offensive defendants. Virginia’s statute obscenity, but it may not ban read, in part: only obscenity in just democrat publications, or just republican publications, or It shall be unlawful for any person or per- just “alt-right” publications. Governments may sons, with the intent of intimidating any ban particularly important threats (e.g., against person or group of persons, to burn, or the president), but it may not ban only threats cause to be burned, a cross on the property for policy-related motives (e.g., a president’s of another, a highway or other public place. position on inner cities, war, etc.). The court Any person who shall violate any provi- sought to protect federal law against sexual sion of this section shall be guilty of a class harassment, described by Justice Scalia as “sex- 6 felony. 18 ually derogatory ‘fighting words.’” The court’s analysis of the “hate speech” In sum, what was wrong with the St. Paul issues serve to clarify R.A.V. The issue was ordinance? First, in “its practical operation … whether the First Amendment prevents a state the ordinance goes even beyond mere content from punishing the burning of a cross with discrimination, to actual viewpoint discrimina- intent to intimidate. The answer was “no.” Jus- tion.” Second, the ordinance had the effect, and tice O’Connor explained that a state may ban perhaps the purpose, of rigging poitical dis- “true threats,” which are “statements designed course. “St. Paul has no such authority to to communicate an intent to commit an act of license one side of a debate to fight freestyle, unlawful violence to a particular individual or while requiring the other to follow Marquis of group of individuals.” Virginia may “outlaw Queensbury Rules.”19 cross burnings done with the intent to intimi-

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 945 date because burning a cross is a particularly (g) engage in conduct that the lawyer virulent form of intimidation.” So far so good, knows or reasonably should know is according to the court’s opinion. But the Vir- harassment or discrimination on the basis ginia statute included an additional provision, of race, sex, religion, national origin, eth- “Any such burning of a cross shall be prima nicity, disability, age, sexual orientation, facie evidence of an intent to intimidate a per- gender identity, marital status or socioeco- son or group of persons.” This feature violated nomic status in conduct related to the prac- due process, it improperly shifted the burden tice of law. This paragraph does not limit of proof from the state’s duty to prove guilt to the ability of a lawyer to accept, decline or a defendant’s duty to disprove guilty intent. withdraw from a representation in accor- The law all but required defendants to testify dance with Rule 1.16. This paragraph does and to persuade a jury that the accused had no not preclude legitimate advice or advocacy intent to intimidate. consistent with these Rules.28 Justice O’Connor and Justice Scalia seemed Sanctions for discriminatory conduct by law- to agree that a ban on burning crosses with a yers would seem to pose as little danger to proven intent to intimidate was “fully consis- expressive liberty as ordinary anti-discrimina- tent with our holding in R.A.V.”23 The Virginia tion statutes that apply to schools, workplaces statute did not single out speech directed toward and retail enterprises. Nevertheless, the pro- “specified disfavored topics.” Justice Thomas posed revision provoked criticism. For exam- dissented, but underscored his own view that ple, the attorney general of Texas issued an Virginia’s “statute prohibits only conduct, not opinion letter concluding: “A court would expression.”24 The threat of violence – and the likely conclude that Model Rule 8.4(g) infring- violence of the act of threatening – is the focus of es upon the free speech rights of members of the statute; not ideology or viewpoint.25 the State Bar.”29 But this opinion rests on specu- ‘GOOD COUNSELS’ AND OTHER lation. The Texas attorney general suggested REMEDIES FOR THE THOUGHTS WE HATE that a lawyer at a bar meeting on police use of excessive force could be sanctioned for “saying When rigorous principles of free thought ‘Blue lives [i.e., police] matter’ and we should and expressive liberty are to be applied to pro- be more concerned about black-on-black tect thoughts and messages of hate – bigotry, crime.”30 He assumed that the rule would result misogyny, racism, xenophobia, anti-Semitism in sanctions of “candid dialogues about illegal and other religious bias, homophobia and the immigration, same-sex marriage, or restric- like – the case for tolerance and expressive lib- tions on bathroom usage.” The opinion letter erty must allow some remedy. What is to be offers little to explain how the text of the new done to resist the many hatreds of humanity? rule would allow state bar authorities to impose The answer for bad speech is more speech, sanctions for mere expression of opinion. It is better speech, speech calling on the “better difficult to see how candid talk could be deemed angels of our nature.”26 The logic leads to the to be “conduct that … is harassment or dis- conclusion that the “fitting remedy for evil crimination.” Also, the rule includes a scienter counsels is good ones.”27 Of course, much more requirement. The rule focuses only on miscon- needs to be done. duct “that the lawyer knows or reasonably should know is harassment or discrimination.” Again, the immense difference between Comment 331 also seems to prevent overbroad speech and conduct is the key. Viewpoints and or intrusive interpretations by specifying that opinions are protected; discriminatory conduct “the substantive law of antidiscrimination and is not. The need for a remedy and also for care anti-harassment statutes and case law may in formulation of a remedy is illustrated by guide application of paragraph (g).” In sum, revised Rule 8.4(g) of the American Bar Asso- the rule’s text does not contain even a hint of ciation Model Rules of Professional Conduct. potential for ideological regimentation by state The new rule focuses on “conduct that … is bar authorities. If the rule was – somehow – harassment or discrimination.” Specifically, the misinterpreted, there is little to suggest that revised Model Rule 8.4 now reads: federal courts would approve. It is professional misconduct for a lawyer In sum, a dominant consensus supports a to: libertarian theory of expressive liberty. Existing … doctrine developed over the past half-century

946 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 stands in the way of overzealous regulation. 26. Abraham Lincoln, First Inaugural Address (March 4, 1861). 32 27. Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., con- Our law protects the thoughts we hate, includ- curring). ing thoughts of hate. 28. See also, Peter Geraghty, ABA adopts new anti-discrimination Rule 8.4(g) (September 2016) [www.americanbar.org/publications/ youraba/2016/september-2016/aba-adopts-anti-discrimination-rule- 1. James Madison, Letter to W.T. Barry, (Aug. 4, 1822). 8-4-g--at-annual-meeting-in-.html] 2. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). 29. Letter from Ken Paxton, Attorney General of Texas to Senator 3. Cohen v. California, 403 U.S. 15, 24-25 (1971). Charles Perry (Dec. 20, 2016). See also, Letter from Edwin Meese III and 4. The Federalist, Essay No. 84. Kelly Shackelford to Patricia Lee Renfro (Aug. 5, 2016). 5. See, Dennis v. United States, 341 U.S. 494 (1951) and Gitlow v. New 30. General Paxton is relying on an example from Ronald D. York 268 U.S. 652 (1925). Rotunda, The ABA Decision to Control What Lawyers Say: Supporting 6. See, Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J., concur- “Diversity” But Not Diversity of Thought, The Heritage Foundation ring) Legal Memorandum 4 (2016). 7. See, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); Bran- 31. Comment 3 states: denburg v. Ohio, 395 U.S. 444 (1969); Cohen v. California, 403 U.S. 15, Discrimination and harassment by lawyers in violation of para- 24-25 (1971). graph (g) undermine confidence in the legal profession and the 8. 343 U.S. 250 (1952). legal system. Such discrimination includes harmful verbal or 9. 343 U.S. at 261. physical conduct that manifests bias or prejudice towards others. 10. 343 U.S. at 262. Harassment includes sexual harassment and derogatory or 11. 343 U.S. 274-75. demeaning verbal or physical conduct. Sexual harassment 12. U.S. 254, 270 (1964). includes unwelcome sexual advances, requests for sexual favors, 13. 395 U.S. 444 (1969). and other unwelcome verbal or physical conduct of a sexual 14. 403 U.S. 15, 24-25 (1971). nature. The substantive law of antidiscrimination and anti- 15. John Hart Ely, Democracy and Distrust 112 (1980). harassment statutes and case law may guide application of 16. 505 U.S. 377 (1992). paragraph (g). 17. 505 U.S. at 381. 32. United States v. Schwimmer 279 U.S. 644, 655 (1929) (Holmes, J., 18. 505 U.S. at 389. See also, Harris v. Forklift Systems Inc., 510 U.S. 17 dissenting). (1993) (upholding EEOC definition of sexual harassment); Mer-itor Savings Bank v. Vinson, 477 U.S. 57 (1986) (same). 19. 505 U.S. at 392. 20. 505 U.S. at 426 (Stevens, J., concurring). 21. “Conduct that creates special risks or causes special harms may be prohibited by special rules. … Threatening someone because of her About The Author race or religious beliefs may cause particularly severe trauma or touch off a riot, and threatening a high public official may cause substantial social disruption; such threats may be punished more severely than Rick Tepker is the Calvert chair threats against someone based on, say, his support of a particular ath- of law and liberty at OU, where letic team. There are legitimate, reasonable, and neutral justifications for such special rules.” 505 U.S. at 416 (Stevens, J., concurring). he has taught constitutional law 22. 538 U.S. 343 (2003). since 1981. He is a 1976 graduate 23. 538 U.S. at 361-62, 368. 24. 538 U.S. at 394 (Thomas, J., dissenting) (“even segregationists of the Duke University School of understood the difference between intimidating and terroristic con- Law. duct and racist expression.”). 25. See also, Wisconsin v. Mitchell, 508 U.S. 476 (1993) (Rehnquist, C.J. for a unanimous court) (holding that criminal statutes imposing enhanced punishment for prohibited conduct motivated by discrimi- natory animus do not violate the First Amendment).

OKLAHOMA BAR JOURNAL EDITORIAL CALENDAR

n September n November 2017 Issues Bar Convention Administrative Law n August Editor: Carol Manning Editor: Mark Ramsey Technology & Office n October [email protected] Management Insurance Law Deadline: Aug. 1, 2017 Editor: Amanda Grant Editor: Renée DeMoss n December [email protected] [email protected] Ethics & Professional Deadline: May 1, 2017 Deadline: May 1, 2017 Responsibility Editor: Leslie Taylor [email protected] If you would like to write an article Deadline: Aug. 1, 2017 on these topics, contact the editor.

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 947 948 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 Constitutional LAW Citizens United or Citizens Undone? The First Amendment Versus Campaign Finance Regulation By Micheal Salem

Money is the mother’s milk of politics. Jesse “Big Daddy” Unruh1 (1922-1987) California State Treasurer

esse Unruh’s observation is one definition of “political fortune.” Another might be discovering your political opponent was con- Jvicted of a serious felony. Although popular sentiment may weigh against a candidate with such a background, a felony convic- tion is not a disqualification for federal office.2 As to constitutional requirements,3 the qualifications of a person elected to Congress are judged only by the particular chamber to which the candidate was elected.4 Candidates have run for president from prison,5 and a felon was elected to the House of Representatives.6 Of course, some treat the words “felonious politicians” as a pleonasm. 7

Jesse “Big Daddy” Unruh was not really talk- ning with Buckley v. Valeo,8 one of the first post- ing about “luck.” He was talking about “bucks” Watergate campaign finance reform cases. No and money as the universal nectar and lubri- one openly disputes the necessity of criminal- cant of politics. In our nation’s history, wher- izing this kind of activity even if it might argu- ever there are candidates there are donors who ably constitute speech or expression. More want to give them money, whether because problematic are other contributions or gifts they believe in good government or want a that may not be illegal but have an appearance favor. The role money plays in our political sys- of “soft” bribery or “influence peddling” to tem can run a gamut, from campaign contribu- gain access to politicians.9 tions to candidates, to bundlers who collect With campaign finance reform, the Supreme money from donors for delivery either to candi- Court found compelling reasons for congres- dates or outside organizations, to independent sional prohibitions of transactions like corpo- expenditures by individuals or organizations to rate campaign contributions and individual promote candidates or issues. contributions over a certain amount. These The effect of money may constitute outright bans were narrowly drawn to achieve a gov- bribery in exchanges that include payment of ernmental interest in preventing actual corrup- money or other consideration for performance tion of federal candidates and officeholders or of, or agreement to perform, an “official act.” the appearance of it. Constitutionally permis- This is the “quid pro quo” model on which the sible prohibitions included bans on money Supreme Court has relied in decisions begin- contributed by corporations to political parties

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 949 that might be used to support particular candi- have carte blanche permission to editorialize dates indirectly. support for, or opposition to, an individual candidate or cause. Such editorial support A different wind now blows through the might have value exceeding the campaign lim- Supreme Court. Prohibitions on contributions its of hard cash to support or oppose a candi- by corporate donors and some limitations on date, creating an effect of influence. amounts were lifted by the Supreme Court in two decisions: Citizens United v. Federal Election From a different perspective, why should a Com’n10 and McCutcheon v. Federal Election supporter PAC be limited financially in chal- Com’n.11 Both decisions have been criticized by lenging a media corporation’s endorsement or many who think the influence of money on disapproval of a candidate or cause? Owner- political campaigns has reached a level of ship of a printing press or TV station is not a emergency. prerequisite to endorsing political candidates or political causes. Moreover, in an era of In Citizens United, the Supreme Court deter- internet websites, there seems no principled mined that statutory restrictions prohibiting difference in extending First Amendment pro- independent political expenditures by a non- tections to a lowly website operator who edi- profit corporation were not consistent with the torializes in favor of a candidate or issue, First Amendment. while at the same time muzzling a large mul- In McCutcheon, the Supreme Court held that tinational corporation that also chooses advo- statutory limits on the amount of money a cacy. The large corporation does not have to donor may contribute in aggregate to all politi- purchase a printing press, radio or TV station cal candidates or committees violated the First in order to bring its expressions of opinion Amendment. The aggregate limit restricted the within the protection of the First Amendment, political participation of some in order to nor should it be without First Amendment pro- enhance the relative influence of others. tections when it purchases radio or television time, or establishes a website. Citizens United reversed two Supreme Court decisions. Austin v. Michigan Chamber of Com- It is thus possible to defend what some say is merce had held that even though statutory indefensible. The New York Times, Washington restrictions burdened the Michigan Chamber Post, USA Today, Washington Times, Fox News of Commerce’s desire to make independent and many other media outlets may choose to expenditures in favor of an individual candi- editorialize by endorsing candidates or causes, date, the restriction was justified by a compel- or, if they choose, denigrating them. Such cover- ling state interest to prevent corruption, or the age on the editorial page or even the news pages appearance of corruption, in political races.12 can be worth millions. Realistically, restrictions on what free media coverage is provided are Citizens United also reversed a decision that impractical and inimical to the First Amend- statutory restrictions on independent corporate ment. Why should not the same freedom be expenditures, intended by Congress to plug soft- available to nonmedia corporations? money loopholes, were constitutional.13 From another viewpoint, you cannot regu- Following Buckley v. Valeo, both Citizens Unit- late expression that would directly affect the ed and McCutcheon established that regulation editorial judgment of the media. For example, of the political process must target “quid pro The New York Times estimated that through quo corruption” or its appearance: the direct March 2016, studies conducted by two differ- exchange of an official act for money. When the ent firms that track media spending showed target is other than quid pro quo corruption or that Donald Trump benefited from $1.898 bil- its appearance, the government impermissibly lion worth of “earned media”14 while spending injects itself into the debate of who should gov- no more than $10 million. Of the major candi- ern. In McCutcheon, a plurality of the court held dates at that time, Trump had no super PAC, that statutory aggregate limits did little, if any- little ground organization or staff or field thing, to combat corruption. offices. Contrast this with Jeb Bush, who spent However, whether a principled difference $82 million and essentially got nowhere for the between different corporations applies is fare. Because of choices made strictly by the unclear when commercial news media outlets media in its coverage of Donald Trump, Jeb – many of which exist in a corporate identity – Bush’s $82 million during the same time did

950 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 not even begin to act as a counterweight to states, safe for particular candidates, additional Trump’s free media coverage. money spent would be unnecessary. Both can- didates are stuck with the same state limits in The same disparity applies to noncandidates both safe and battleground states. For example, who want to get into the mix on behalf of a in Oklahoma the VAP limit is $2,950,017 while candidate or issue they support or oppose. If the straight expenditure limit is $2,268,900. they do not have access to “earned media,” Oklahoma’s presidential voting history is their message can be easily swamped unless skewed to the Republican Party, so spending money offsets the disadvantage. this amount of money would not give any While an argument can be made there are additional benefit to a Republican candidate in pragmatic reasons to allow corporations or a presidential election, where the candidate causes to get their messages out, Citizens Unit- with a majority of votes collects all the electoral ed represents consistent equality between cor- college electors. On the other hand, this spend- porations and media outlets protected by the ing limit in Oklahoma for the Democratic Party First Amendment. would probably not significantly help a Demo- cratic presidential candidate. What is the effect of this money on the politi- cal system? That may be harder to gauge A VERY BRIEF HISTORY OF CAMPAIGN although many freely speculate. Effect may FINANCE STATUTES AND LITIGATION18 logically be correlated with how much money Concern about the effect of the money and is involved, and that is a good place to start, influence of corporations first took hold in the but it does not tell the entire story. The money Progressive Era of Theodore Roosevelt,19 who involved is significant, with estimates for the pressed Congress to put limits on money and 2016 presidential campaign having been brakes on campaign activities of corporations. expected to top $5 billion, more than twice the total of the 2012 election.15 The Tillman Act20 was passed in 1907. The act prohibited corporations from making contribu- Can Influence Be Limited by Public Funding? tions to political campaigns. Because it applies Probably Not. only in very limited instances, there was not In 2016, no major party presidential candi- much enforcement under it. The act applied date was publicly funded. Public funding does only to general, not primary, elections. It pro- not usually approach the amount of private vided for fines, but no enforcement mecha- money available to major party candidates. nism. Despite its limited effect and perhaps because of it, it was upheld as recently as 2003 For example, eligibility for public funding in in Federal Election Com’n v. Beaumont,21 when a primary race for president requires agree- the court ruled that provisions and regulations ment to limit national spending to $10 million barring corporate campaign contributions to plus a COLA (post-1974 cost of living adjust- nonprofit advocacy corporations were permis- ment) calculated by the Department of Labor. sible under the First Amendment because “… A candidate can get half of the national spend- the ban was and is intended to ‘preven[t] cor- ing limit from public funds but cannot spend, ruption or the appearance of corruption.’”22 in any state, more than $200,000 plus a COLA or an amount based upon a formula of 16 cents The Federal Corrupt Practices Act (FCPA)23 per member of the VAP (voting age popula- followed the Tillman Act in 1910. The FCPA set tion). Among other limitations placed on both campaign spending limits for political parties candidates and national parties, candidates in nomination and general elections for the cannot spend more than $50,000 of their own House. It required political parties to make funds. For a general election, these numbers post-election disclosures of contributions to, double to $20 million plus COLA, except that and expenditures by, individual candidates. Its candidates are still limited to $50,000 of their effect was limited to single-state political par- own funds.16 ties and election committees. These regulations of party nominations through elections or For 2016, spending numbers worked out to other methods were struck down by the $48.07 million for the overall primary total and 17 Supreme Court when it held that the Constitu- $96.14 million for the general election. There tion did not allow Congress to regulate prima- are individual spending limits per state. An ry elections or political party nominations.24 important factor here can be that in some

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 951 The next serious foray by Congress into cam- didates could opt to decline the public financ- paign finance reform occurred approximately ing and avoid the expenditure limits it set. 40 years later, when Congress passed the Taft- Moreover, campaign finance statutes or rules Hartley Act of 194725 to amend the Wagner Act could not constitutionally limit candidates’ and ban use of money from union treasuries in spending their own money. political campaigns. The most recent campaign finance reform After these restrictions on contributions and legislation was the Bipartisan Campaign expenditures by corporations and unions, the Reform Act of 2002 (BCRA).29 The BCRA was modern era of campaign finance reform intended to control the increased use of soft emerged in the Watergate era with passage of money by political parties. Soft money is the Federal Election Campaign Act of 197126 money raised by political parties that they can (FECA) and the 1971 Revenue Act. FECA put to any use. established additional disclosure requirements The BCRA prohibited national political party for contributions in federal elections. The Rev- committees from raising or spending money enue Act began to structure public financing of not subject to federal limits, even when the presidential elections and limited expenditures purpose was state or local races or issue advo- on presidential nominees who cacy. It restricted broadcast of accepted public funds. The “issue advocacy ads” that check-off box on tax returns for named a federal candidate with- $1 to be applied to the presiden- The BCRA in 30 days of a primary or cau- tial election campaign was part cus or 60 days before a general of the law, but the check-off box election. It banned such ads 27 prohibited national did not appear until 1973. paid for by a corporation or When the enforcement mech- political party other organization, whether or anism of the 1971 act proved committees from not it was a nonprofit. That spe- unworkable, the act was amend- cific provision prompted the ed in 1974 to create the Federal raising or spending Citizens United litigation, al- Election Commission.28 It limit- money not subject to though the Supreme Court later ed campaign contributions and expanded the scope of the case expenditures. Most significant- federal limits, even from time restrictions to the ly, the 1974 amendments al- general question of First Amend- lowed corporations to establish when the purpose was ment limitations on corporate segregated funds (PACs) to state or local races or citizens. receive and hold funds and use THE CITIZENS UNITED them to make donations. The issue advocacy. DECISION 1974 amendments also set strict limits on contributions to candi- Citizens United, a nonprofit dates from individuals and PACs. The amend- advocacy organization, had an ments completed the public option for candi- unfavorable opinion about Hillary Clinton. date financing of elections. With donations received, it produced an anti- Clinton film called Hillary the Movie (the movie). FECA was amended again in 1976 in response Would unfavorable publicity about Clinton to the Supreme Court’s decision in Buckley v. curry favor with a potential Clinton rival? Pos- Valeo where certain portions of the law were sibly yes. In 2008, that arguably would have declared unconstitutional. Contribution limits included Barack Obama and scores of Republi- to individual candidates were upheld because can candidates. contribution limits prevented influence or quid pro quo. Citizens United brought a declaratory action because it wanted to make Hillary the Movie In Buckley, the court held that expenditure available for video-on-demand within the 30 limits on candidates and their committees were days prior to the 2008 primary elections. Citi- unconstitutional because they limited the zens United asked whether it would violate 2 amount of speech that was available to candi- U.S.C. §441(b) which prohibited corporate dates who had money to spend. But, the court funded independent expenditures and sub- held that expenditure limits on publicly fund- jected it to civil and criminal penalties.30 It ed candidates were constitutional because can- would also trigger a prohibition of electioneer-

952 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 ing-type advertisements within 30 days of a Times, but more importantly, she benefitted primary and 60 days of a general election from editorial and news judgments that under the statute and FEC regulations.31 attacked Donald Trump. The New York Times characterized Donald Trump’s “variations” Citizens United’s request was denied by a from the truth as “lies” in both editorials and three-judge district court which upheld the news reporting.37 statutes and regulations, relying upon McCon- nell v. Federal Election Comm’n32 and Austin v. No one could bring a successful FEC pro- Michigan Chamber of Commerce.33 The Supreme ceeding against news outlets that contributed Court granted certiorari, and after argument to Donald Trump “earned coverage.” Yet from ordered re-argument and asked the parties to a First Amendment viewpoint, why would an brief whether McConnell and Austin should be FEC proceeding be sustained against an indi- overruled. vidual or nonmedia corporation that indepen- Justice Kennedy, writing for a fractured five- dently spent money to help or hurt Trump? member majority, concluded the First Amend- ANOTHER LOOK AT THE CITIZENS ment prohibits the government from suppress- UNITED HOLDING – FINANCIAL ing political speech on the basis of the speak- er’s corporate identity (overruling Austin) and Campaign financing admittedly looks like a a federal statute which barred independent mess, but democracy is messy. A system where corporate expenditures for electioneering com- candidates rely on the assistance of billionaires munications violated the First Amendment and millionaires suggests that political and (overruling McConnell). The decision struck financial fortunes of those candidates depend down the statutes on their face. The court did upon how warmly they embrace the interests uphold public disclosure provisions of BCRA of their patrons. for sponsors of electioneering films. PACs and super PACs logically look for DEFENDING THE INDEFENSIBLE – politicians who will protect the interests of WITH THE FIRST AMENDMENT! contributors. Does this skew the results of elections? No, unless voting is rigged and/or Some critics of Citizens United characterized cheating is rampant, because election out- 34 the decision as “indefensible.” The criticism comes are the cumulative result of individual primarily relies upon factual allegations about votes. Although someone spends a great deal significant amounts of money spent for candi- of money to persuade the electorate to vote for dates and the fanciful claim that once elected, a candidate or cause, votes must still be cast the candidate could not ignore such largess. individually and in secret. For example, Newt Gingrich’s 2012 campaign was kept alive from $20 million in donations to Following the interests of the PAC or candi- a Gingrich super PAC by Sheldon Adelson of date with the most money is not necessarily Las Vegas.35 evidence that the electorate is being persuaded to one view or another. For example, the 2016 Adelson reportedly contemplated donations election season resulted in record fundraising of up to $25 million to a Donald Trump super 36 for Clinton despite her loss. In September PAC. alone, Clinton’s campaign raised more than The question is not so much what Adelson $154 million. The PAC Hillary for America contributed to a super PAC supporting Gin- raised $84 million, and the Democratic Nation- grich but whether Gingrich would feel the al Committee raised another $70 million same appreciation if the Washington Times edi- through the Hillary Victory Fund and the Hill- torialized repeatedly in Gingrich’s favor at a ary Action Fund. The average donation was cost that might eventually reach a value of $20 $56. More than 900,000 people donated to the million? While Gingrich might reap the same campaign.38 Actually, this looks good for par- or similar benefit, there is little chance the ticipatory democracy. Washington Times would be brought before the Clinton did well during the entire election FEC on a charge of “corruption” for its edito- cycle. In July 2016, FEC filings indicated that rial choices. $1.48 billion had been raised by all presidential In the most recent presidential election cycle, candidates and groups supporting them, an Hillary Clinton was clearly the beneficiary of astounding amount of money. Of this, $275 regular editorial endorsements of The New York million was attributed to Clinton’s campaign

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 953 and only $91 million to Trump’s campaign. person or corporation who makes political Trump’s war chest supposedly had 55 percent statements owns a printing press, radio or tele- of its money from his own funds, making him vision station, or other large media system. For the largest single donor to himself individually example, a “Letter from the Editor” in the Sun- and to his super PAC.39 day Oklahoman indicated that thereafter its print edition would be printed in Tulsa on Still, the FEC reported that in the 2016 presi- another paper’s press. So it appears that Okla- dential campaign cycle, a total of $1.461 billion homa’s largest metropolitan newspaper may was donated to candidates. This does not include no longer even own a printing press.42 Does PAC spending. Democrats benefitted from this mean the Oklahoman is no longer a media $799.5 million and Republicans received $639.1 company? Clearly, no. million. Clinton had $563.8 million and Trump $333.1 million.40 What are the sizes of the dona- There is little logic in statutes or regulations tions? Here is the data posted on the FEC web- that muzzle other corporations when corporate site as of March 5, 2017: media giants have significant rights under the Size of Contributions First Amendment. Constitutionally, there is lit- tle to distinguish them. The Supreme Court has $200 and Under $812,434,910 never made a distinction that gives media or the $200.01 - $499 $106,101,977 press greater rights than individual citizens. $500 - $999 $79,521,630 For example, the court has consistently $1,000 - $1999 $107,240,039 rejected a “reporters’ privilege” that would $2,000 and Over $310,434,245 allow reporters a claim of confidentiality for information they gather.43 Likewise, the media In looking over these numbers, $812.4 mil- has no privilege in gathering news to access lion is accounted for by small donations less closed locations such as a jail.44 In Houchins, than $200, while $310.4 million is in the catego- Justice White relies upon other cases, including ry greater than $2,000. Large donations are Branzburg, which support the general theory involved, but a lot of the money coming to that the press enjoys no special privilege candidates is in small donations, which can beyond that of the general public.45 only be healthy. Judge McConnell suggests that Citizens Unit- ANOTHER LOOK AT THE CITIZENS ed bears a significant resemblance to Mills v. UNITED HOLDING – LEGAL Alabama.46 In Mills, the Alabama Corrupt Prac- A fundamental legal question in Citizens tices Act “makes it a crime ‘to do any election- United is whether individuals and corporations eering or to solicit any votes * * * in support of have the same First Amendment rights as or in opposition to any proposition that is media corporations or “the press.” being voted on on the day on which the elec- tion affecting such candidates or propositions An excellent analysis of that question appears is being held.’” The Birmingham Post-Herald, a in an article in the Yale Law Journal by Michael daily newspaper, carried an editorial written McConnell, former Judge of the 10th Circuit. by the defendant, an editor, which urged “the Judge McConnell sees the result in Citizens people to adopt the mayor-council form of United as a proper application of precedents government.”47 Mills was arrested for violating even as he acknowledges the sorry state of cam- the statute by his publication. The charges paign financing. He argues there must be more were dismissed by the district court and creative methods to address the issue than reversed by the Alabama Supreme Court as a defeating the “money as speech” argument.41 proper and not unreasonable exercise of police Judge McConnell thinks Citizens United is power. best viewed as a press case where corporations Speaking for the Supreme Court, Justice not normally engaged in press activities never- Black reversed. Black found it fatal that the theless have the same protections as the press statute allowed all kinds of speech on any sub- when they choose to speak out. ject until the day of the election but did not Under Supreme Court precedents, the rule allow any responses on Election Day. “We hold should be that nonmedia corporations enjoy that no test of reasonableness can save a state the same First Amendment rights as media law from invalidation as a violation of the First corporations. It should not matter whether the Amendment when that law makes it a crime

954 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 for a newspaper editor to do no more than urge expression to corporate entities when media people to vote one way or another in a publicly entities also use corporate forms in an indistin- held election.”48 Mills involved a blackout peri- guishable manner. A media corporation pos- od of only one day and was declared unconsti- sesses no more First Amendment rights than tutional. Citizens United involved blackout other corporate citizens, and logically other periods of 30 or 60 days, which curtails even corporations should possess no fewer First more expression. Amendment rights than their media corpora- tion counterparts. A conglomerate corporation Many organizations that do not have the with multiple businesses which includes a appearance of media exercise First Amend- media outlet may, if it chooses to do so, pro- ment rights. Prominent among them might be vide unlimited support for a candidate or a the American Bar Association or state or local cause in its editorial judgment without account- bar associations, which speak on public is- ing to the FEC. sues. The ABA structure may be similar to public media, it collects money from individ- We must also regard that money is not uals and can certainly be characterized as an always primary in promoting the candidacy of advocacy group, but the ABA is not the press. persons or issues. As the most recent election Yet there is little dispute it would be allowed cycle demonstrated, a lack of money, or even the same protections as the press in its edito- organization, did not prevent the election of rial pronouncements. Donald Trump. Hillary Clinton raised $563.8 million to $333.1 million for Donald Trump. There is no confusion when large companies Bernie Sanders made a substantial impact with and industries own or purchase their own $228.2 million.50 This suggests that money may media outlets, or constitute a media conglom- not be as powerful as an “idea whose time has erate. Does General Electric’s ownership of come” whether or not we like the message.51 NBC Television, Telemundo and numerous TV stations give it alone editorial power over politi- Even so, the suggestion of the incorruptibili- cal commentary that is forbidden to other corpo- ty of billionaires because of their money is a rations? Stated differently, does a media con- cautionary tale. Money still has its effect even glomerate in its constituent parts have the right among billionaires. Nelson Bunker Hunt, son to speak, but its central governance does not? of the wealthy oil wildcatter H.L. Hunter, was said to have remarked, “Making money is the At a time when courts are extending First way you keep score in life, in business.”52 In Amendment protections to individuals and such circumstances, money never loses its sig- corporations utilizing the internet, there is no nificance to the poor or wealthy alike.53 principled reason to deny those same First Amendment protections to corporations. At It is not within the scope of this article to one time the Supreme Court took a graduated propose solutions to campaign finance abuse. approach toward new media, trying to deter- The purpose instead is to measure the cam- mine whether First Amendment protections paign finance rules pre-Citizens United against would apply and then deciding what form the First Amendment. Even so, if campaign they take. The internet seems to have broken finance reform is to be successful, and there is this procedure because when Congress attempt- still much to experiment with, perhaps it ed to impose standards against indecency should begin with disclosure laws that allow against the internet, the Supreme Court applied voters to judge the merit of campaign rhetoric a First Amendment analysis without measuring by its sources. the media and found several problems with the Disclosure should be coupled with proce- statute including vagueness, overbreadth and dures that encourage more speech by more failure to satisfy any “time, place, or manner” parties as suggested by Justice Brandeis: restrictions. The internet presented none of the justifications for restrictions imposed, for exam- If there be time to expose through discus- ple, in broadcast settings.49 sion the falsehood and fallacies, to avert the evil by the processes of education, the CONCLUSION remedy to be applied is more speech, not In a constitutional sense, Citizens United fits enforced silence. Only an emergency can comfortably within existing precedents of the justify repression. Such must be the rule if Supreme Court involving “freedom of the authority is to be reconciled with freedom. press.” We cannot deny that same freedom of Such, in my opinion, is the command of the

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 955 Constitution. It is therefore always open to sons who might be interested in the product. In return McDonnell set up meetings, hosted an event at the governor’s mansion, or called Americans to challenge a law abridging other officials on Williams’ behalf. free speech and assembly by showing that The Supreme Court unanimously reversed the convictions of both 54 McDonnell and his wife based upon the district court’s broad defini- there was no emergency justifying it. tion of an “official act.” An element of bribery is money given in exchange for an “official act.” Chief Justice Roberts said such an “offi- Even with Brandeis’ “more speech” remedy, cial act” must be a decision or action on a “question, matter, cause, suit, there are no guarantees of a fair outcome or a proceeding or controversy.” That question or matter must involve a formal exercise of governmental power, and must also be something level playing field. There is only a process specific and focused that is “pending” or “may by law be brought” which Brandeis suggests offers the best oppor- before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that question or matter, or tunity for education. A future which includes agree to do so. Setting up a meeting, talking to another official or orga- massive spending by super PACs and corpora- nizing an event, without more, does not satisfy the definition of “offi- tions and a fear this will overwhelm the voices cial act.” McDonnell v. U.S., 136 S.Ct. 2355, 2370-71 (2016). The Justice Department finally decided to dismiss charges against of those with less may not be that bleak. Tech- McDonnell and his wife. Matt Zapotosky, Rachel Weiner and Rosalind S. nology including social media has increased Helderman, “Prosecutors will drop cases against former Va. governor Robert McDonnell, wife” (Sept. 8, 2016). See: www.washingtonpost. the financial efficiency of campaign spending com/local/public safety/prosecutors-will-drop-case-against-former-va by multiplying the number of outlets and gov-rober-mcdonnell/2016/09/08/a19dc50a 6878 11e6 ba32 5a4bf5aad- 4fa_story.html (last visited March 5, 2017). availability so that even minority views can 10. 558 U.S. 310 (2010). gain broad exposure. Our trust in the First 11. 134 S.Ct. 1434 (2014) Amendment will be best realized in such a 12. Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 668-69 (1990) (“By requiring corporations to make all independent political multi-sourced information universe. expenditures through a separate fund made up of money solicited expressly for political purposes, the Michigan Campaign Finance Act 1. Lou Cannon, Ronnie & Jesse: A Political Odyssey – A Candid Bio- reduces the threat that huge corporate treasuries amassed with the aid graphy Of The Two Rival Political Champions, Ronald Reagan And Jesse of favorable state laws will be used to influence unfairly the outcome Unruh 99 (1969). See also, Mark A. Uhlig, “Jesse Unruh, A California of elections”). Political Power, Dies,” NY Times, Aug. 6, 1987, found at: www.nytimes. 13. McConnell v. Federal Election Com’n, 540 U.S. 93, 146 (2003) (“The com/1987/08/06/obituaries/jesse-unruh-a-california-political-power evidence in the record shows that candidates and donors alike have in dies.html (last visited March 5, 2017). fact exploited the soft money loophole, the former to increase their 2. See Jack Marshall, Cong. Research Serv., RL31532, Congressional prospects of election and the latter to create debt on the part of office- Candidacy, Incarceration, and the Constitution’s Inhabitancy Qualifi- holders, with the national parties serving as willing intermediaries. cation (2002) (“Once a person meets the three constitutional qualifica- Thus, despite FECA’s hard money limits on direct contributions to tions of age, citizenship and inhabitancy in the State when elected, that candidates, federal officeholders have commonly asked donors to person, if duly elected, is constitutionally ‘qualified’ to serve in Con- make soft money donations to national and state committees ‘solely in gress, even if a convicted felon.”). See: research.policyarchive.org/1486. order to assist federal campaigns,’ including the officeholder’s own”). pdf. (Hereinafter Congressional Candidacy)(last visited March 5, 2017). 14. “Earned media” is identified as “news and commentary about 3. The only requirements for federal office are specified by the his campaign on television, in newspapers and magazines, and on Constitution. States may not impose additional qualifications or dis- social media.” Nicholas Confessore and Karen Yourish, “$2 Billion abilities on congresspersons. U.S. Term Limits, Inc. v. Thornton, 514 U.S. Worth of Free Media for Donald Trump,” The Upshot (March 15, 2016). 779 (1995). States do have the right to control who is entitled to vote. See: www.nytimes.com/2016/03/16/upshot/measuring-donald trumps- Ironically, a person convicted of a felony may be eligible to run for mammoth-advantage-in-free-media.html?_r=0 (last visited March 5, 2017). federal office but be forbidden by state electoral law from voting for 15. Amie Parnes and Kevin Cirilli, “The $5 billion presidential him or herself, or anybody for that matter. Congressional Candidacy, p. campaign?” The Hill (Jan. 21, 2015, 4:54 p.m.). See: thehill.com/blogs/ 2, n. 6. ballot box/presidential races/230318-the-5-billion-campaign (last vis- 4. U.S. Const. art. I, §5, cl. 1. ited March 5, 2017). 5. Labor leader, Eugene V. Debs, ran for president as the Socialist 16. This information is found at the Federal Election Committee Party’s candidate five different times from 1900 to 1920. The last cam- website. See www.fec.gov/pages/brochures/pubfund.shtml (Last vis- paign was while Debs was in jail after conviction for opposition to ited March 5, 2017). World War I. Eric Foner and John A. Garraty, Eugene V. Debs, See: www. 17. Again, these numbers come from the Federal Election Commit- history.com/topics/eugene v debs (last visited March 5, 2017). James tee. See www.fec.gov/pages/brochures/pubfund_limits_2016.shtml A. Trificant Jr., a former member of Congress, was expelled from the (Last visited March 5, 2017). House of Representatives after convictions of bribery, filing false 18. Part of this history is on the website of the Federal Election returns and other criminal offenses. He served seven years and ran for Commission. (www.fec.gov/info/appfour.htm) (FEC App. 4) (last office from prison as an Independent but lost with only 16 percent of visited March 5, 2017). the vote. See en.wikipedia.org/wiki/James_Traficant#Post prison_life 19. In its history, the Federal Election Commission contends the (2010 run for Congress) (last visited March 5, 2017). first federal election law was passed in 1867. The law forbade federal 6. Representative Matthew Lyon was convicted of violating the officers from soliciting contributions from Navy yard workers. ibid. Sedition Act and imprisoned in his home state of Vermont, yet re- 20. Tillman Act of 1907, ch. 420, 34 Stat. 864 (now codified as elected to Congress in 1789. A Federalist offered a resolution of expul- amended at 2 U.S.C. §441b). sion which failed for a two-third’s vote. Congressional Candidacy, p. 3-4. 21. 539 U.S. 146 (2003). 7. Mark Twain reportedly said, “There is no distinctly native 22. Federal Election Com’n v. Beaumont, 539 U.S. at 154. American criminal class except Congress”; quoted by Emily Heil, “Mark 23. Federal Corrupt Practices Act, 2 U.S.C. §§241 - 248, Pub.L. Twain on Congress: idiots, criminals, dumber than fleas,” Washington 61-274, 36 Stat. 822, enacted June 25, 1910. Post (April 18, 2012). www.washingtonpost.com/blogs/in-the-loop/ 24. Newberry v. United States, 256 U.S. 232 (1921). post/mark-twain-on-congress-idiots-criminals-dumber-than-fleas/ 25. Labor Management Relations Act of 1947, 29 U.S.C. §§401 531 2012/04/18/gIQA3J4nQT_blog.html (last visited March 5, 2017). (the Taft-Hartley Act), (80 H.R. 3020, Pub.L. 80-101, 61 Stat. 136, 8. 424 U.S. 1 (1976). enacted June 23, 1947). It most likely grew out of congressional concern 9. Influence is a by-product of money and is not always illegal. An upon the end of the war, that the minority of workers who were union- example is former Virginia Gov. Bob McDonnell and his wife, who ized and who had agreed not to strike during the war might turn to were convicted in 2014 on federal bribery and Hobbs Act extortion political organization. charges for taking more than $175,000 in loans and gifts, including a 26. Federal Election Campaign Act of 1971, 52 U.S.C. §30101 et seq., Rolex watch and vacations, from a Richmond businessman, Jonnie Pub.L. 92-225, 86 Stat. 3, enacted February 7, 1972). The act was signed Williams Sr. Williams was promoting a dietary supplement and sought into law by Richard Nixon. out McDonnell’s help in gaining access to state officials to attract per- 27. FEC App.4.

956 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 28. Prior to 1974, compliance was monitored by the clerk of the access to information not available to the public generally”) (plurality House, the secretary of the Senate, and the comptroller general of the opinion). United States General Accounting Office. The Justice Department was 45. Pell v. Procunier, 417 U.S. 817, 834 (1974); Saxbe v. Washington responsible for prosecuting violations of the law. After 7,000 referrals Post, Co., 417 U.S., 843, 850 (1974). for investigations, only 100 were forwarded to the Justice Department 46. 384 U.S. 214 (1966). and few were litigated. FEC App. 4. 47. Mills, 384 U.S. at 216. 29. 2 USC 431, Public Law 107-155 (“BCRA” or “McCain- 48. Mills, 384 U.S. at 220. Feingold”). 49. Reno v. American Civil Liberties Union, 521 U.S. 844 (1997). 30. Citizens United v. Federal Election Cm’n, 558 U.S. 310, 321 (2010). 50. FEC 2016 Presidential. 31. 2 U.S.C. §434(f)(3)(A). 51. This is misattributed to Victor Hugo, but has a closer match to 32. 540 U.S. 93 (2003). Gustave Aimard’s novel, Les Francs Tireurs (1861): 33. 494 U.S. 652 (1990). … there is something more powerful than the brute force of 34. See Steven Rosenfeld, “6 Pathetic Right Wing Attempts to bayonets: it is the idea whose time has come and hour struck.” Defend the Indefensible Citizens United (Debunked),” Alternet (Feb. A reference in Wikiquotes attributes as follows: Gustave Aimard; (tr. 23, 2012), www.alternet.org/story/154274/6_pathetic_right wing_ unknown) (1861). The Freebooters. London: Ward and Lock. pp. 57. See attempts_to_defend_the_indefensible_citizens_united_(debunked) en.wikiquote.org/wiki/Victor_Hugo#cite_note 1 (Last visited March (last visited March 5, 2017). This argument has been reprinted numer- 5, 2017). ous times. Fred Wertheimer, “Five Years Later, Citizens United Wreaks 52. See www.dallasnews.com/obituaries/obituaries/2014/10/21/ Havoc on Our Democracy,” ACSblog (Jan. 21 2015), www.acslaw.org/ nelson-bunker-hunt-second-son-of-legendary-wildcatter-h.l.-hunt- acsblog/five-years-later-citizens-united-wreaks-havoc-on our-democracy? dies (last visited March 5, 2017). page=1 (last visited March 5, 2017) (“The Citizens United decision, writ- 53. Hunt was a billionaire when he and his two brothers, Lamar ten for the majority by Justice Anthony Kennedy, is based on a series and William, unsuccessfully attempted to corner the silver market in of indefensible, if not astonishing, premises”). 1979-80 resulting in personal bankruptcies. Both Nelson and William 35. Abby Phillip and Dave Levinthal, “Adelson tally to Gingrich: were fined and banned from commodities trading for their efforts. $20M,” Politico, www.politico.com/story/2012/04/gingrich-camp They also were required to pay substantial back taxes. See www. mired-in-debt 075418 (last visited March 5, 2017). nytimes.com/1989/12/21/business/2-hunts-fined-and-banned-from- 36. Peter Stone, “Sheldon Adelson to give $25m boost to Trump trades.html (last visited March 5, 2017). Super Pac,” The Guardian (Friday, Sept. 23, 2016, 13:56 EDT, Last modi- 54. Whitney v. California, 274 U.S. 357, 377 (1927) (concurring). fied on Sept. 29, 2016, 17.31 EDT): www.theguardian.com/us‑news/ 2016/sep/23/sheldon‑adelson‑trump‑super‑pac‑donation‑25‑million. 37. Susan Lehman, “Times Editor Dean Baquet on Calling Out Donald Trump’s Lies,” Times Insider (Sept. 23, 2016), www.nytimes. com/2016/09/23/insider/times-editor-dean-baquet-on-calling-out- donald-trumps-lies.html (last visited March 5, 2017); Liz Spayd, About The Author “When to Call a Lie a Lie,” The Public Editor (Sept. 20, 2016), www. nytimes.com-2016-09-20-public-editor-trump-birther-lie-liz-spayd- Micheal Salem is a solo practitio- public editor.html (last visited March 5, 2017). 38. Rebecca Morin, “Clinton campaign raises more than $154 mil- ner from Norman. His practice lion in September,” Politico (Oct. 1, 2016, 4:15 p.m. EDT) www.politico. areas are federal constitutional com-story-2016/10-hillary-clinton-september-fundraising-229004 (last visited March 5, 2017). law and civil rights, including 39. Michael Beckel, “Buying of the Presidency: Clinton outraising First Amendment law. He re- Trump by 3-1 margin in dash for cash,” Center for Public Integrity (July 21, 2016, 2:15 a.m. Updated: July 21, 2016, 11:03 a.m.): www.public ceived a Bachelor of Science in integrity.org/2016/07/21/19990/clinton-outraising-trump-3-1- electrical engineering (1971), a margin-dash-cash (last visited Oct. 4, 2016). master’s in public administration 40. FEC, 2016 Presidential Campaign Finance, www.fec.gov/ disclosurep/pnational.do (last visited March 5, 2017) (FEC 2016 Presi- (1975) and a J.D. (1975) all from dential). OU. He is the recipient of the 41. Michael McConnell, “Reconsidering Citizens United as a Press Clause Case,” 123 Yale L.J. 266-529 (November 2013). See www. Oklahoma Courageous Advocacy Award (1984), yalelawjournal.org/essay/reconsidering-citizens-united-as-a-press Golden Quill Award (2010), Fern Holland Coura- clause-case (last visited March 5, 2017). 42. Kelly Dyer Fry, “We Will Always Be Your Eyes and Ears,” Sun- geous Lawyer Award (2013) and Joe Stamper Distin- day Oklahoman, Oct. 2, 2016, at 2A. guished Service Award (2016) from the Oklahoma 43. Branzburg v. Hayes, 408 U.S. 665, 703-05 (1972). 44. Houchins v. KQED, Inc., 438 U.S. 1, 11 (1978) (“the First Amend- Bar Association. ment does not guarantee the press a constitutional right of special

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 957 958 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 Constitutional LAW An Appellate Practice Pointer From Citizens United By Micheal Salem lot of attorneys have been there. You win or lose in the dis- trict court and face an appeal. You suddenly realize you did A not raise or strongly argue a facial challenge or a particular policy argument in the lower court, choosing other points that seemed stronger than what looked on the surface like a rabbit hole. After all, facial challenges to legislative acts rarely prevail.1

In light of the lower court findings, or just a “as applied” challenge (count 3) until the plain- fresh look at the case on appeal, you realize a tiff stipulated to dismissal of count 5. new argument might turn a loser into a winner The government argued that Citizens United – or might cost you the favorable decision below. waived its facial challenge, but Justice Kenne- Will failure to fully develop the argument in dy’s majority opinion held that the Supreme the lower court be fatal? Court has the authority to reconsider any of its previous decisions and ruled that parties can Maybe not in every instance, according to Citi- urge any argument in support of a claim prop- zens United v. Federal Election Com’n.2 erly before the court because parties are not The general rule in the 10th Circuit is that “an limited to the same arguments they made below: appellate court will not consider an issue raised First, even if a party could somehow waive for the first time on appeal …”3 Issues inade- a facial challenge while preserving an as quately briefed on appeal are deemed waived.4 applied challenge, that would not prevent These resorts to waiver seem like expedients the Court from reconsidering Austin [v. that favor docket control or conservation of judi- Michigan Chamber of Commerce, 494 U.S. 652 cial resources over consideration of persuasive (1990)] or addressing the facial validity of arguments that counsel might have made earlier. §441b in this case. “Our practice ‘permit[s] Sometimes the district or intermediate appellate review of an issue not pressed [below] court grants victory on a single claim, leaving so long as it has been passed upon...’” … other claims unanswered. It seems ungrateful, [H]ere, the District Court addressed Citizens and slightly temerarious, to ask the court to also United’s facial challenge … consider the additional arguments. Yet, if a sin- gle claim victory is threatened on appeal, there is Second, throughout the litigation, Citizens no ready backup. United has asserted a claim that the FEC has violated its First Amendment right to VIABLE FEDERAL QUESTIONS ALLOW ANY POLICY ARGUMENT free speech. All concede that this claim is properly before us. And “[o]nce a federal So, does failure to fully present, or even raise, claim is properly presented, a party can issues leave you stranded? Maybe not. Citizens make any argument in support of that United brought both a facial challenge to a cam- claim; parties are not limited to the precise paign finance reform statute5 (count 5) and an arguments they made below …” Citizens

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 959 United’s argument that Austin should be the claims of the parties if the record supports overruled is “not a new claim.” Rather, it is other claims that can be sustained by the court: – at most – “a new argument to support In public law controversies, this Court is what has been [a] consistent claim: that free to decide a case on all dispositive [the FEC] did not accord [Citizens United] issues, regardless of whether they were the rights it was obliged to provide by the tendered below. Ashikian v. State ex rel. First Amendment.” Ibid. Okla. Horse Racing Comm’n, 2008 OK 64, Third, the distinction between facial and as ¶17 n.45, 188 P.3d 148; Davis v. GHS Health applied challenges is not so well defined Maint. Org., Inc., 2001 OK 3, ¶¶25-26, 22 that it has some automatic effect or that it P.3d 1204; Simpson v. Dixon, 1993 OK 71, must always control the pleadings and dis- ¶26 n.55, 853 P.2d 176. Accordingly, this position in every case involving a constitu- Court is not limited to Appellant’s claim tional challenge. The distinction is both concerning Okla. Const. art. 5, §57 if the instructive and necessary, for it goes to the record compels a conclusion that SB 642 is breadth of the remedy employed by the unconstitutional on other grounds. See Court, not what must be pleaded in a com- Simpson, 1993 OK 71, ¶26. plaint … The parties cannot enter into a “Public law controversies” may be broader stipulation that prevents the Court from than challenges to the constitutionality of a stat- considering certain remedies if those rem- ute. The Ashikian case challenged an order of edies are necessary to resolve a claim that racing stewards suspending the plaintiff for fail- has been preserved. Citizens United has ure to pay a stall rental bill when the hearing preserved its First Amendment challenge notice was sent by certified mail to the plaintiff’s to §441b as applied to the facts of its case; Texas address, but not forwarded. Ashikian ten- and given all the circumstances, we cannot dered the past due balance, obtained a reversal easily address that issue without assuming of the stewards’ order of suspension from the a premise – the permissibility of restricting district court and was granted reasonable attor- corporate political speech – that is itself in ney fees and costs. The Supreme Court reversed doubt. … (“[O]nce a case is brought, no the fee order in an opinion by Justice Opala cit- general categorical line bars a court from ing the public law controversy doctrine even as making broader pronouncements of inva- it noted, “The issue was neither urged, briefed, lidity in properly ‘as applied’ cases”); id., at nor supported by any authority for its award 1327 – 1328. As our request for supplemen- before the trial court or COCA. Ashikian asserts tal briefing implied, Citizens United’s that because the state failed to address this issue claim implicates the validity of Austin, before the trial judge, it is too late to raise it on which in turn implicates the facial validity certiorari.”9 of §441b.6 Similarly, Davis v. GHS Health Maint. Org. This may be an instance of an 800-pound involved a question of exhaustion of administra- gorilla sleeping anywhere it wants, because it tive remedies before bringing an action chal- seems the court was dead-set on reconsidering lenging a bad-faith failure to make full payment its prior precedents. Even so, taking the court at for disputed medical expenses for a penile its word, once a public policy is implicated in a implant for the plaintiff. Justice Kauger, writing claim properly on appeal, parties are not limited for the majority, addressed the sufficiency of the to their arguments in the lower court.7 statement of appeal rights in the denial notice OKLAHOMA AND THE PUBLIC POLICY even as she noted, “Although the notice issue CASE was not artfully argued, the question was raised 10 The Oklahoma Supreme Court’s treatment of in the trial court and on appeal.” This proved to public policy cases may also suggest that some be no restraint on the court’s ruling because it bets are off. determined, “… when public law issues are pre- sented, the Court may, on review, resolve them In Burns v. Cline,8 Justice Combs makes this by application of legal theories not tendered point in footnote 1 of his concurring specially below … Further, when public law issues are opinion. In public law controversies, the Okla- involved we have addressed matters dispositive homa Supreme Court has wide ranging author- of a cause sua sponte.”11 ity to resolve disputes and is not constrained by

960 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 Simpson v. Dixon12 was an election dispute. tion of judicial resources counsels against exceptions. Rubin v. Manufacturers Hanover Trust Co., 661 F.2d 979, 996 (2d Cir. 1981). Justice Opala applied Art. 3, §5 and Art. 5, §46 of Hicks 928 F.2 at 970-71. the Oklahoma Constitution as a basis to ensure 4. Utahns for Better Transp. v. U.S. Dept. of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002). More fatally, “[e]ven a capital defendant can waive an “[U]niformity in the conduct of elections for a argument by inadequately briefing an issue.” Williams v. Trammell, 782 corruption free canvass …” The respondent’s “ F.3d 1184, 1208 (10th Cir. 2015). 5. Bipartisan Campaign Reform Act of 2002, 2 USC 431, Public Law … failure explicitly to press for the applicability 107–155 (“BCRA” or “McCain-Feingold”). … is no impediment to our sua sponte invocation 6. Citizens United, 558 U.S. at 330-31 (emphasis added). As of March of the controlling constitutional commands. The 5, 2017, Westlaw notes there are 44 cases which cite West Headnote 1 of Citizens United. (“Supreme Court would consider contention of public law character of the controversy leaves us nonprofit corporation … though nonprofit corporation raised the con- totally free to change or modify the legal under- tention for the first time before the Supreme Court”). Most of these appear to be election cases. pinnings for the respondent trial judge’s deci- Headnotes 7 - 10 deal with excerpts quoted in this Practice Pointer, sion.”13 Note 55 provides additional citations: and the number of cited cases varies: Headnote 7 (“Nonprofit corpora- tion did not waive, for purposes of direct review by Supreme Court … In public law cases we are free to apply though in the district court the corporation had stipulated to the dis- missal of the count in its complaint asserting the facial challenge and that theory which correctly disposes of the had proceeded on another count asserting an as applied constitutional dispute. Reynolds v. Special Indem. Fund, challenge … ”)(110 cases); Headnote 8 (“The Supreme Court’s practice permits review of an issue not pressed below, so long as it has been Okl., 725 P.2d 1265, 1270 (1986); Burdick v. passed upon.”) (1 case); Headnote 9 (“Once a federal claim is properly Independent School Dist., Okl., 702 P.2d 48, presented on appeal, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made 54 (1985); McCracken v. City of Lawton, Okl., below.”) (6 cases); Headnote 10 (“The distinction between facial consti- 648 P.2d 18, 21 n. 11 (1982); Application of tutional challenges and as applied constitutional challenges goes to the Goodwin, Okl., 597 P.2d 762, 764 (1979); Spe- breadth of the remedy employed by the court, not what must be pleaded in a complaint.”) (85 cases). Cases citing these headnotes cial Indemnity Fund v. Reynolds, 199 Okl. might be mined for more public policy exceptions. 570, 188 P.2d 841.8. 842 (1948). 7. Except when they are; see, Leonard v. Texas, 580 U.S. ___, 137 S.Ct. 847, 850 (2017), No. 16-122, cert. den. March 6, 2017, statement of Thomas, J., respecting denial: “Unfortunately, petitioner raises her due So when you think you might be dead in the process arguments for the first time in this Court. As a result, the Texas appellate water, keep paddling. If you can couch Court of Appeals lacked the opportunity to address them in the first an argument as public policy, you may still make instance. I therefore concur in the denial of certiorari. Whether this Court’s treatment of the broad modern forfeiture practice can be justi- port with a limited, or even nonexistent, record. fied by the narrow historical one is certainly worthy of consideration in greater detail.” (slip op. at 6). 1. U.S. v. Salerno, 107 S.Ct. 2095, 2100, 481 U.S. 739, 745 (1987) (“A 8. Burns v. Cline 2016 OK 99, 382 P.3d 1048 (Sept. 4, 2016). facial challenge to a legislative Act is, of course, the most difficult chal- 9. Ashikian, 2008 OK 64, ¶17 n.45. lenge to mount successfully, since the challenger must establish that no 10. Davis v. GHS, 2001 OK 3, ¶25. set of circumstances exists under which the Act would be valid.”). 11. Davis v. GHS, 2001 OK 3, ¶¶25, 26. 2. Citizens United v. Federal Election Com’n 558 U.S. 310, 130 S.Ct. 876 12. Simpson v. Dixon 1993 OK 71, 853 P.2d 176. (2010). 13. Simpson v. Dixon, 1993 OK 71, ¶26. 3. Hicks v. Gates Rubber Co., 928 F.2d 966, 970 (10th Cir. 1991). Hicks notes narrow exceptions: Exceptions to this rule are rare and generally limited to cases where the jurisdiction of a court to hear a case is questioned, sovereign immunity is raised, or when the appellate court feels it About The Author must resolve a question of law to prevent a miscarriage of justice. [Farmers Ins v.] Hubbard, 869 F.2d [565] at 570 (10th Cir. 1989); Stahmann Farms, Inc. v. United States, 624 F.2d 958, 961 (10th Micheal Salem is a solo practitio- Cir.1980). The failure to raise the issue with the trial court pre- cludes review except for the most manifest error. Gundy v. United ner from Norman. His practice States, 728 F.2d 484, 488 (10th Cir.1984). areas are federal constitutional The matter of what questions may be addressed for the first time law and civil rights, including on appeal is within our discretion and decided on a case by case basis. Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877 First Amendment law. He re- (1976); Cavic v. Pioneer Astro Indus., 825 F.2d 1421, 1425 (10th Cir. ceived a Bachelor of Science in 1987). In determining whether an exception is warranted, we are mindful of the policies behind the general rule. The facilitation electrical engineering (1971), a accorded appellate review by having the district court first con- master’s in public administration sider an issue is important. City of Waco, Texas v. Bridges, 710 F.2d 220, 228 (5th Cir. 1983), cert. denied, 465 U.S. 1066, 104 S.Ct. 1414 (1975) and a J.D. (1975) all from (1984). In addition, our respect for the district court means “the OU. He is the recipient of the policy of declining to consider an argument not raised below is Oklahoma Courageous Advocacy Award (1984), strongest where the district judge was not aware of the argu- ment.” Richerson v. Jones, 572 F.2d 89, 97 (3d Cir. 1978). It is also Golden Quill Award (2010), Fern Holland Coura- unfair to the opponent if one party is allowed to argue an issue geous Lawyer Award (2013) and Joe Stamper Distin- not raised in the trial forum. We think such a practice leads to unfair surprise in the appellate court and would, if allowed, guished Service Award (2016) from the Oklahoma require us to frequently remand for additional evidence gather- Bar Association. ing and findings. The need for finality in litigation and conserva-

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 961 962 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 Constitutional LAW First Amendment, Equal Protection and Invisible Children By Richard J. Goralewicz The king is in legal contemplation the guardian of his people, and in that amiable capacity is entitled (or rather it is his Majesty’s duty, in return for the allegiance paid him) to take care of his subjects as are legally unable, on account of mental incapacity, whether it proceed from first nonage [children]: second, idiocy: or third, lunacy: to take proper care of themselves and their property. J. Chitty1 A Treatise on the Law of the Prerogative of the Crown hings have changed quite a bit since those days in jolly olde England which Mr. Chitty described in his history of the Tlaw of parens patriae quoted above. The doctrine, however, remains alive and is necessary to protect the child and assure well even in the absence of an actual monarch. that the best interests of the child are met.3 The doctrine of parens patriae, the Oklahoma In this context, the Oklahoma Legislature has Supreme Court tells us, “may be defined as the unwisely included and unnecessarily perpetu- inherent power and authority of the Legisla- ated a gaping, definitional wound in the body ture of a state to provide protection of the per- of the Children’s Code, to-wit: son... non sui juris, such as minors, insane, and incompetent persons.”2 Mainly through statute, Nothing in the Oklahoma Children’s Code states assume the role of the monarch, replacing shall be construed to mean a child is de- royal fiat with heuristic rules and due process prived for the sole reason the parent, legal boundaries under which courts may take pro- guardian, or person having custody or tective action on behalf of vulnerable persons. control of a child, in good faith, selects and In particular: depends upon spiritual means alone through prayer, in accordance with the Because the state has an interest in its pres- tenets and practice of a recognized church ent and future citizens as well as a duty to or religious denomination, for the treat- protect those who, because of age, are ment or cure of disease or remedial care of unable to protect themselves, it is the poli- such child.4 cy of this state to provide for the protection of children who have been abused or The second sub-paragraph of this section neglected and who may be further threat- contains an ameliorating qualification, provid- ened by the conduct of persons responsible ing, “Nothing contained in this paragraph for the health, safety, and welfare of such shall prevent a court from immediately assum- children. To this end, where family circum- ing custody of a child and ordering whatever stances threaten the safety of a child, the action may be necessary, including medical state’s interest in the welfare of the child treatment, to protect the child’s health or wel- takes precedence over the natural right and fare.”5 No Oklahoma court has yet construed authority of the parent to the extent that it this clause in a published opinion. Given the current cultural climate, in which the First

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 963 Amendment may be seen as “weaponized” or because of reliance on religious rituals polarized, and predictions, if and when this and documentation sufficient to deter- issue percolates through various trial courts, mine the cause of death. become difficult. Which of these clauses consti- Results. One hundred forty fatalities were tutes the tail and which the actual dog poses a from conditions for which survival rates significant question. In other words, does the with medical care would have exceeded judicial action clause modify the religious 90%. Eighteen more had expected survival license, or does the latter, coming first, serve as rates of >50%. All but 3 of the remainder a brake on either state or judicial intervention? would likely have had some benefit from The problem is real and substantial. For clinical help. example, as reported in a study published in Conclusions. When faith healing is used to the medical journal Pediatrics: the exclusion of medical treatment, the Participants. One hundred seventy-two number of preventable child fatalities and children who died between 1975 and 1995 the associated suffering are substantial and and were identified by referral or record warrant public concern. Existing laws may search. Criteria for inclusion were evi- be inadequate to protect children from this dence that parents withheld medical care form of medical neglect.6

UBIQUITY OF RELIGIOUS SHIELD LAWS

964 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 Shield laws in one form or another comprise church or religious denomination, for the the norm among the 50 states.7 They had their treatment or cure of disease of such child.12 genesis in the Child Abuse Prevention and The jury acquitted the Lockharts, and the Treatment Act of 1974.8 Pursuant to this act, state appealed. Affirming this result, the Court and regulations established thereunder, states seeking federal funding had to enact religious of Criminal Appeals held, “We believe that the protective laws as a prerequisite to financial statute is clear and unambiguous, and expresses aid. In the years since, the religious shield lan- a legislative intent that those parents who rely in guage had an on-again, off-again presence good faith upon the tenets of their religious through deletion, dilution and/or removal. As belief for the care and protection of their chil- it currently stands, the act provides: dren be allowed a defense to a misdemeanor charge subsequently arising from their failure to Nothing in this Act shall be construed – obtain medical assistance for their children.”13 (1) as establishing a Federal requirement Following the Lockhart trial but prior to the that a parent or legal guardian provide a appellate ruling, the Legislature changed the child any medical service or treatment statute. In its current form, the relevant amend- against the religious beliefs of the parent or ments read: legal guardian; and Nothing in this section shall be construed (2) to require that a State find, or to pro- to mean a child is endangered for the sole hibit a State from finding, abuse or neglect reason the parent, guardian or person hav- in cases in which a parent or legal guardian ing custody or control of a child, in good relies solely or partially upon spiritual faith, selects and depends upon spiritual means rather than medical treatment, in means alone through prayer, in accordance accordance with the religious beliefs of the with the tenets and practice of a recognized parent or legal guardian.9 church or religious denomination, for the So, where does this leave us? A plain reading treatment or cure of disease or remedial of the statute indicates that, despite the lip ser- care of such child; provided, that medical vice given to federal concerns for the health care shall be provided where permanent physi- and welfare of children, Congress has opted for cal damage could result to such child; and that a metaphoric hand-washing in this regard not the laws, rules, and regulations relating to entirely unlike the historical event giving rise to communicable diseases and sanitary mat- 14 that metaphor. Protective action, therefore, be- ters are not violated. comes the province of the several states. Unfor- In Funkhouser v. State:15 tunately, since the repeal of the mandate too few have done so, and then most often in reaction to Benjamin Keith Funkhouser, the appel- a particular, often avoidable tragedy. lants’ three month old son died at home from complications arising from pneumo- TRIGGERS OF CHANGE – A CHILD’S nia. The appellants, although knowing BASKET OF DEPLORABLES Benjamin was ill, did not seek medical Lockhart and Funkhouser help. Instead, the parents relied on prayer

10 and divine intervention to heal their child. In State v. Lockhart, 9-year-old Jason Lock- The parents are members of The Church of hart died of peritonitis resulting from perfora- 11 The New Born that relies on divine inter- tion of a gangrenous vermiform appendicitis. vention for healing sickness to the exclu- Following a trial brought under the misde- sion of medical assistance.16 meanor/manslaughter rule (with child endan- germent comprising the underlying misde- The jury convicted them of second-degree meanor), the trial court gave the following manslaughter. On appeal, the Funkhousers instruction: contended that 852 allowed them an absolute defense. In particular, they objected to a jury A person is justified under the law of this instruction reading: state in not providing medical treatment for his child if instead that parent in good A person may be justified under the law of faith, selects and depends upon spiritual this State in not providing medical treat- means alone through prayer, in accordance ment of his child if instead the parent in with the tenets and practice of a recognized good faith, selects and depends upon spiri-

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 965 tual means alone through prayer, in accor- may still have valid beliefs or articles of faith dance with tenets and practice of a recog- (not to mention the differing protections offered nized church or religious denomination, to children of various faiths); and d) what con- for the treatment or cure of disease of such stitutes “culpable negligence” when weighed child, provided that said treatment or cure against First Amendment considerations. As to is something which a reasonably careful this last point, the dearth of factual discussion person would do under similar circum- in Funkhouser yields few clues. stances and conditions. The Wagstaffe case18 provides an example of Compared with the Lockhart instruction, the the difficulty of the latter point. As one author instruction expresses the law in far more condi- analyzed it: tional terms, providing substantially less cover for the Funkhousers’ position. The Court of The testimony in Wagstaffe established, and Criminal Appeals affirmed the conviction, not- indeed emphasized, that the parents were ing that the instruction above accurately stated loving and attentive. “The mother,” we are the law as it currently stood. Particularly: told by a witness “devoted most of her time to it [the child],” and the father “was This instruction accurately reflected the very kind and affectionate.” The Wag- defense of good faith reliance on spiritual staffes had two other children who were means. The instruction considered by the described as “healthy and well-nourished.” jury did not provide the appellants with A witness, (who was a member of the sect), the absolute defense proposed by their the elders, and the parents had all mistaken requested instruction. The trial court prop- the deceased child’s “inflammation” for erly circumscribed the defense under a rea- teething problems.19 sonably careful person standard that is with- in the definition of culpable negligence. We The judge then took the jury through “a fine have defined culpable negligence as: casuistry of culpable conduct in the faith heal- ing context.”20 He then noted: The omission to do something which a reasonable and prudent person would [All] the reasoning in the world would not do, or the want of the usual and ordinary justify a man in starving a child to death care and caution in the performance of an [for religious reasons]. But when the jury act usually and ordinarily exercised by a had to consider what was the precise med- person under similar circumstances and ical treatment to be applied in a particular conditions. Crossett v. State, 96 Okl.Cr. case they got into much higher latitude 209, 217, 252 P.2d 150, 159 (1952). indeed. At different times people have Good faith reliance on spiritual means come to different conclusions as to what alone is not a defense to Manslaughter in might be done with a sick person … There the Second Degree. Since the evidence war- was a very great difference in neglecting a ranted the defense of good faith reliance on child with respect to food, with regard to spiritual means, the court properly allowed which there could be but one opinion, and the appellants the defense within the neglecting medical treatment as to which 21 boundaries of the definition of culpable there might be many opinions. negligence.17 Commonwealth vs. Twitchell While Funkhouser, and the statutory amend- As officially reported: ments referenced therein, constitutes a quan- tum leap forward in the protection of children, David and Ginger Twitchell appeal from the system remains flawed. The short list of their convictions of involuntary man- possible deficiencies include: a) the uncomfort- slaughter in connection with the April 8, able position of the courts determining both 1986, death of their two and one-half year what constitutes a “recognized church or reli- old son Robyn. [Note 2] Robyn died of the gious denomination”; b) no bright line test for consequences of peritonitis caused by the what constitutes action or inaction “in accor- perforation of his bowel which had been dance with that church or religions tents and obstructed as a result of an anomaly known practices”; c) the potential constitutional infir- as Meckel’s diverticulum. There was evi- mity of the distinction between members of dence that the condition could be corrected recognized and nonrecognized churches who by surgery with a high success rate.22

966 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 The Twitchells, Christian Scientists,23 sought In many ways, the Twitchell arguments reflect to take shelter under Massachusetts’ statutory some of the concerns raised under the Okla- law which provided: “A child shall not be homa discussions above. Given that the opin- deemed to be neglected or lack proper physical ion of one “authoritative official” such as the care for the sole reason that he is being provided attorney general or a court may put the affir- remedial treatment by spiritual means alone in mative defenses into play, it becomes clear that accordance with the tenets and practice of a rec- the potential for fatal mischief lies in the con- ognized church or religious denomination by a tinued existence of the statute itself. duly accredited practitioner thereof.”24 State v. Crank

In pertinent part, the Twitchells argued the 27 vagueness doctrine, particularly: In State v. Crank, Jacqueline Crank was con- victed of child neglect for failure to seek medi- The defendants argue that the failure to cal assistance for her daughter on the basis of extend the protection of the spiritual treat- her religious beliefs. The child, Jessica, suffered ment provision to them in this case would from Ewing’s Sarcoma, a rare form of cancer. be a denial of due process of law because Jessica died at the age of 15. As recited by the they lacked “fair warning” that their use of court, “Jessica ‘had a problem with her shoul- spiritual treatment could form the basis for der’ and took her first to a chiropractor and a prosecution for manslaughter. Fair warn- later to a nurse practitioner at a walk-in clinic. ing is part of the due process doctrine of Eventually, Jessica’s symptoms became more vagueness, which “requires that a penal pronounced, and the Defendant ‘knew there statute define the criminal offense with suf- was a problem’ when Jessica developed ‘a ficient definiteness that ordinary people grapefruit size tumor on her shoulder.’”28 can understand what conduct is prohibited While Ms. Crank did bring Jessica to a chiro- and in a manner that does not encourage practor, the latter advised her to get to an arbitrary and discriminatory enforcement.” emergency room immediately. Ms. Crank did Many fair warning challenges involve stat- not do so. Ultimately, the state of Tennessee utes that are unconstitutionally vague on took custody of Jessica. She received treat- their face, such as vagrancy statutes. Even ment at East Tennessee Children’s Hospital if a statute is clear on its face, there may not but was soon released to hospice care, dying be fair warning in the circumstances of par- shortly after. As to cause of death, Dr. Victoria ticular defendants. The defendants here Casteneda stated: argue that they have been denied fair warning in three different ways. They con- I can state, based upon my training, expe- tend that fair warning (1) would be denied rience and treatment of Jessica Crank, that by an unforeseeable retroactive judicial her death was a proximate result of Ewing’s interpretation that the spiritual treatment Sarcoma. A delay in the treatment of her provision does not protect them (, (2) is disease results in a more massive tumor denied by the existence of contradictory and renders the patient more symptomatic. commands in the law of the]), and (3) is While earlier treatment would not likely denied because they were officially misled have resulted in her being cured, it would by an opinion of the Attorney General of have helped in dealing with her condition the Commonwealth.25 and symptoms and positively impacted the 29 The Supreme Judicial Court of Massachu- quality of her life. setts overturned the conviction based upon the With prompt treatment beginning in February third type of vagueness. Specifically, the attor- 2002, the quality and length of her remaining life ney general had given an arguably negative would have been improved and medical person- answer to a question whether a parent may be nel would have been better able to manage her prosecuted for providing spiritual treatment pain and disability. After consenting to a bench alone. The Christian Science Church put out a trial, Ms. Crank was convicted of child neglect. legal guide based upon this construction. The Twitchells made inquiry of the church and The primary thrust on appeal focused on the relied on that construction. Therefore, the court “void for vagueness” doctrine. Upon analyz- ruled, “The issue of their reliance on advice ing the statute in question, where issue was that had origins in the Attorney General’s joined on particular statutory phrases. As dis- opinion should have been before the jury.”26 tilled in the opinion:

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 967 As noted, the spiritual treatment exemp- might serve to address any constitutional tion applies only when, “in lieu of medical deficiencies, we cannot say that our legisla- or surgical treatment,” a child is “provided ture would have enacted an exemption so treatment by spiritual means through broad that it would encompass all instanc- prayer alone in accordance with the tenets es in which a parent claims reliance upon or practices of a recognized church or reli- prayer in lieu of medical treatment for a gious denomination by a duly accredited child.32 practitioner” of the church or denomina- tion. Tenn. Code Ann. §39–15–402(c). The Although no landmark constitutional ruling Defendant asserts that several of the statu- came out of Crank, in its wake, Sen. Richard tory terms – including “treatment,” “prayer Briggs, R-Knoxville, a cardiac surgeon, and alone,” “tenets or practices,” “practitio- Rep. Andrew Farmer, R-Sevierville, a lawyer, ner,” and “recognized church or religious introduced a repeal bill, Senate Bill 1761. It won unanimous (94-0) Senate approval in denomination” – are so unclear that neither 33 individuals nor law enforcement officers March and an 85-1 vote in the House. can ascertain when the statute applies. We While good has come from the foregoing do not agree.30 cases in that substantial amendments or repeals Next came the First Amendment challenge. of religious shield laws have come about as a The court avoided any definitive statement as result (Massachusetts has also since repealed to the constitutionality of the religious shield its shield law) there is one common denomina- law either case specifically or tor. Each step forward has come as a reaction to even generally. The defendant the death or unnecessary suffer- argued both an Establishment ing of children. Clause and an Equal Protection FIRST AMENDMENT Clause violation in that certain The court OVERRIDE bona fide religions fell under the act’s coverage while others avoided any definitive In weighing competing inter- (including hers) did not. The statement as to the ests in the context of children’s state argued that, even assuming health care, we cannot gainsay a First Amendment violation, the constitutionality of the substantial governmental remedy would be to strike the interest in the health and safety exemption while enforcing the the religious shield of children. As SCOTUS ruled in remainder of the child abuse and law either case Prince v. Masssachusetts: 31 neglect statutes. The court specifically or even A democratic society rests, for agreed, holding: its continuance, upon the We must next consider generally. healthy, well-rounded growth whether the Defendant of young people into full matu- would be entitled to relief if rity as citizens, with all that we were to elide the alleg- implies. It may secure this edly unconstitutional terminology within against impeding restraints and dangers, the spiritual treatment exemption. This within a broad range of selection. Among would require the deletion of the words evils most appropriate for such action are “alone in accordance with the tenets or the crippling effects of child employment, practices of a recognized church or reli- more especially in public places, and the gious denomination by a duly accredited possible harms arising from other activi- practitioner thereof.” Eliding the statute in ties subject to all the diverse influences of this manner would extend the exemption the street. It is too late now to doubt that to any parent who “provide[s] treatment legislation appropriately designed to by spiritual means through prayer … in reach such evils is within the state’s police lieu of medical or surgical treatment.” The power, whether against the parents claim State maintains – and we agree – that elid- to control of the child or one that religious ing the statute in this way would expand scruples dictate contrary action.34 the scope of the exemption beyond what And: was intended by the General Assembly. While broadening the statutory exemption

968 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 [O]ur courts have overridden the desires of duties, noting in our jurisprudence permits or parents who refused to consent to medical endorses an assumption that parents may, with treatment and ordered such treatment to impunity, make their children martyrs to that save a child’s life.35 parent’s faith. Looked at from another perspec- tive, no child deserves exclusion from the pro- These cases, and others like them, comprise a tection of the law enjoyed by other children on portion of the progeny of Reynolds v. United the basis of a parent’s faith. Either way, the States.36 Reynolds, a Mormon, challenged the state has no compelling interest in creating constitutionality of a ban on polygamy in Utah. such an exclusion. This, he claimed, constituted an unconstitu- tional infringement upon his religious beliefs. The governmental interest in the health and Mr. Reynolds took a second wife, notwith- welfare of children is one of universal recogni- standing a living and undivorced first wife tion. Courts have uniformly treated children’s who still cohabitated with him as a spouse. welfare as a compelling state interest. Osborne With no question as to the fact of the second v. Ohio, “It is evident beyond the need for marriage, Reynolds argued he acted true to his elaboration that a State’s interest in ‘safeguard- religious beliefs. Writing for the majority in ing the physical and psychological well-being of upholding the statutes and Reynold’s convic- a minor’ is ‘compelling’”;42 Lehr v. Robertson, “the tion, Chief Justice Waite observed, in words Court has emphasized the paramount interest in seemingly prescient37 of the issue now at hand: the welfare of children”;43 Walker v. Superior Court, child health and safety is “an interest of Laws are made for the government of unparalleled significance: the protection of the actions, and while they cannot interfere very lives of California’s children.”44 with mere religious belief and opinions, they may with practices. Suppose one Both jurists and scholars have recognized the believed that human sacrifices were a nec- equal protection ramifications of marginalizing essary part of religious worship; would it a certain class of children to an unprotected be seriously contended that the civil gov- status. Some other states’ courts have recog- ernment under which he lived could not nized the conflict between a parent’s religious interfere to prevent a sacrifice? Or if a wife rights and the child’s right to equal protection. religiously believed it was her duty to burn In Brown v. Stone,45 the court invalidated the herself upon the funeral [pyre] of her dead religious exemption in Mississippi’s compul- husband; would it be beyond the power of sory immunization laws on equal protection the civil government to prevent her carry- grounds. Specifically: ing her belief into practice? [No child should] be denied the protection So here, as a law of the organization of soci- against crippling and death that immuni- ety under the exclusive dominion of the zation provides because of [parents’] reli- United States, it is provided that plural gious belief.”46 marriages shall not be allowed. Can a man Brown concludes observing as follows, “As excuse his practices to the contrary because the United States Supreme Court said in In Re of his religious belief? Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18L. To permit this would be to make the pro- Ed.2d 527 (1967): ‘Whatever may be their pre- fessed doctrines of religious belief superior cise impact, neither the Fourteenth Amend- to the law of the land, and, in effect, to ment nor the Bill of Rights is for adults alone.’”47 permit every citizen to become a law unto An Ohio decision weighed in even more himself. Government could exist only in expansively in the context of spiritual healing name under such circumstances.38, 39 practices: EQUAL RIGHTS OF CHILDREN The Fourteenth Amendment guarantees to The Oklahoma Supreme Court has long rec- all citizens “equal protection of the laws.” ognized that children are not chattel.40 In addi- As noted above, R.C. 2919.22(A) creates tion, “parents have a natural, legal, and moral one standard of behavior for parents of one right, as well as a duty, to care for and support religious belief and another standard for a their children and such rights are protected by different group of parents. It is then inherent state and federal laws as well as the Constitu- that equal protection is thus being denied to tion.”41 In this interlocking set of rights and the parents not favored by the special

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 969 exemption. Second, and more important, if eases and injuries because parents or guardians the real purpose of R.C. 2919.22(A) is to pro- refuse to seek medical treatment in furtherance tect children from parental defalcation, then of their own religious beliefs. In lieu of medical the prayer exception creates a group of chil- treatment, some choose faithfully adherence to dren who will never be so protected, through strict, and arguably extreme, religious beliefs. no fault or choice of their own.48 That, of course, is within the constitutional rights of every competent adult. At the other Our law is replete with “status offenses.” end of the spectrum, children, especially in- That is, things which children are not permit- fants, lack both the legal and the practical abil- ted to do simply because they are children and ity to decide for themselves. Unfortunately, is similarly replete with special crimes so cate- these children remain silent and invisible un- gorized because they involve children. This is a less or until their story gains media attention logical and natural extension of the concept of either as a “cause celebre” or an obituary. the legal incapacity of a minor. Why then should children not be afforded special protec- Ultimately, the resolution of this issue lies in tion by our laws, each child on an equal basis the hands of the Legislature. Meanwhile, like with every other child, where the denial of that its victims, the statute lurks beneath the sur- protection may injure or cripple the child for face. We rarely notice it until directly at issue. It life or even result in that child’s premature is incumbent upon child advocates, family death? This special protection should be guar- lawyers, judges and prosecutors to recognize anteed to all such children until they have their and understand these legal issues in order to own opportunity to make life’s important reli- provide these vital and vulnerable people the gious decisions for themselves upon attain- protection they are due. ment of the age of reason. After all, given the opportunity when grown up, a child may 1. J. Chitty, A Treatise on the Law of the Prerogative of the Crown 155 (1820), quoted in George B. Curtis, “The Checkered Career of Parens someday choose to reject the most sincerely Patriae: The State as Parent or Tyrant?”, 25 DePaul L. Rev. 895, 896 held of his parents’ religious beliefs, just as the (1976). 2. McIntosh v. Dill, 1922 OK 35, ¶28, 205 P. 917, cert. denied, 260 U.S. parents on trial here have apparently grown to 721, 43 S.Ct. 12, 67 L.Ed. 480 (1922). reject some beliefs of their parents. Equal pro- 3. Gowin v. Julius, 1954 OK 359, ¶11, 279 P.2d 954 [The state’s power then is based on its position as parens patriae, which inheres in its sov- tection should not be denied to innocent babies, ereignty to protect its infant citizens.]; see also Accord, Santosky v. whether under the label of “religious freedom” Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) [The State has or otherwise. a parens patriae interest in preserving and promoting the welfare of children.]. 4. 10A O.S. 1-1-102 (A))(3) (2014 Supp.). The equal protection analysis has received 5. 10A O.S. 1-1-105(20)(j) and 47(3)(c) (2014 Supp). support in legal scholarship as well.49 Cases 6. Seth M. Asser, and Rita Swan, “Child Fatalities From Religion- motivated Medical Neglect,” Pediatrics 1998; 101: 625-629. presenting medical treatment of children 7. Pew Research Center (as cited in illustration), “Most states should not remove children from their parents’ allow religious exemptions from child abuse and neglect laws,” care, nor fail to intervene, on a “knee jerk” www.pewresearch.org/fact-tank/2016/08/12/most-states-allow- religious-exemptions-from-child-abuse-and-neglect-laws/ (Aug. 12, basis. Careful legal and factual balancing of 2016; last accessed Dec. 15, 2016). rights and risks, where facts drive the legal 8. The Child Abuse Prevention and Treatment Act of 1974, Pub. L. No. 93-247, 88 Stat. 4 (codified as amended at 42§§5101-5119c (2003)). analysis, have become a hallmark of such 9. 42 U.S.C. 5106 (2010). cases. In In Re D.R.50 for example, the Court of 10. 1983 OK CR 76, 664 P.2d 1059. 11. 1983 OK CR 76 at Par. 2. Civil Appeals carried forward the general rule 12. Id. at Par. 1. that parents “may not make martyrs out of 13. Id. at Par. 2 their children.” However, “a state cannot order 14. 21 O.S. 852 (2011) (emphasis added); see also Laws 1983, HB 1082, c. 44, §1, eff. Nov. 1, 1983. that a child receive medical treatment over reli- 15. 1988 OK CR 109, 763 P.2d 695. gious objections of the parents where the treat- 16. 1988 OK CR 109 at Par. 2. 17. Id. op. cit. ment itself is very risky, extremely invasive, 18. Infra. notes 38-39. toxic with many side effects and/or offers a 19. Catherine Cookson, “Regulating Religion: The Courts and the 51 Free Exercise Clause,” p. 153, Oxford University Press 2001. low chance of success.” 20. Id. at 154. 21. Id. CONCLUSION 22. Commonwealth v. Twitchell, 416 Mass. 114, 115 (1993). 23. I would be remiss if I failed to mention that the Christian Sci- Religious shield laws provide maneuverabil- ence Church makes a laudable effort to apprise its members as to local ity for those wishing to pit their faith against laws and has approved of, or given valuable input, efforts in some jurisdictions to reform their laws. medical science, using the bodies of children as 24. Set forth at Twitchell, supra at 116 (note 4) (citing Mass. Gen. Law their playing field. Every year throughout the ch. 273, §1 (1992 ed.)). 25. Id. at 123-24. world, children die of treatable illnesses, dis- 26. Id. at 129.

970 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 27. 486 S.W.3d 15 (TN 2015). 40. Nasalroad v. Gayhart, 1953 OK 144, 11, 257 P.2d 299; Osburn v. 28. 486 S.W. 3d at 19. Roberts, 1946 OK 129, 3, 169 P.2d 293. 29. Id. at 20. 41. 10A O.S. 1-1-102 (2014 Supp.). 30. Id. at 26. 42. 495 U.S. 103, 109 (1990). 31. Id. at 28. 43. 463 U.S. 248, 257 (1983). 32. Id. at 29 (internal citations omitted). 44. 763 P.2d 852, 869 (Cal. 1988). 33. Richard Locker, “Tenn. lawmakers approve repeal of ‘spiritual 45. 378 So.2d 218 (Miss. 1979). treatment’ exemption,” Knoxville News Sentinel, archive.knoxnews. 46. Id. at 222. com/news/local/lawmakers-approve-repeal-of-spiritual-treatment- 47. Id. at 224. exemption-30751f43-09c1-53d5-e053-0100007f15a9-375734171.html 48. State v. Miskimens, 22 Ohio Misc.2d 43, 490 N.E.2d 931, 935-36, (April 14, 2016; last accessed Dec. 20, 2016). 22 O.B.R. 393 (Ohio Com. Pl., 1984). 34. U.S. 158, 168-69 (1944). 49. James G. Dwyer, “The Children We Abandon: Religious 35. See Parham v. J.R., 442 U.S. 584, 603, 99 S.Ct. 2493, 2504, 61 Exemptions to Child Welfare and Education Law as Denials of Equal L.Ed.2d 101, 119 (1979) (“Nonetheless, we have recognized that a state Protection to Children of Religious Objectors,” 74 N.C. L.Rev. 1321 is not without constitutional control over parental discretion in dealing (1996); Ann MacLean Massie, “The Religion Clauses and Parental with children when their physical or mental health is jeopardized.” Healthcare Decision-making for Children: Suggestions for a New (citations omitted)); Prince, supra, 321 U.S. at 166-67, 64 S.Ct. at 442, 88 Approach,” 21 Hastings Const. L.Q. 725, 771-72 (1994). L.Ed. at 652-53 (noting that state, as parens patriae, can intrude on 50. 2001 OK CIV APP 166, 21, 20 P.3d 166, 170. parental autonomy to protect child from ill health or death). 51. Id. at ¶22. 36. 98 U.S. 145 (1878). 37. Some would argue the contrary given that, in paragraph next following the quoted passages, the chief justice cites with apparent approval the English case of Regina v. Wagstaffe, 10 Cox Crim. Cases 531 [1868]. In that case, the court made a distinction between actions About The Author harmful to a child based upon parents’ religious briefs (criminal) and inaction leading to harm of a child based upon parents’ religious belief (non-criminal). I tend to doubt the current efficacy of this argument. I Rick Goralewicz graduated from also note that Wagstaffe has not been cited in any other published King’s College and the OCU American opinion. Secondly, the Wagstaffe ruling may spring from a School of Law. After 21 years in simple matter of statutory construction. Back at home in England, the response was an immediate Legislative reversal of that case, specifi- private practice, he joined the cally criminalizing culpable inaction. 31 & 32 Vict., c. 132, §37 (1868). Senior Law Project of Legal Aid 38. 98 U.S. at 166-67. 39. See also Wisconsin v. Yoder, 406 U.S. 205, 233-34 (1972), “To be Services of Oklahoma in 2003. sure, the power of the parent, even when linked to a free exercise claim, may be subject to limitation … if it appears that parental deci- sions will jeopardize the health or safety of the child.”

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: Judge of the Court of Criminal Appeals District One This vacancy is created by the retirement of the Honorable Clancy Smith effective June 1, 2017. To be appointed to the office of Judge of the Court of Criminal Appeals an individual must have been a qualified elector of the judicial district applicable, as opposed to a registered voter, for one year immediately prior to his or her appointment, and addi- tionally, must be at least 30 years of age and have been a licensed attorney, practicing law within the State of Oklahoma, or serving as a judge of a court of record in Okla- homa, or both, for five years preceding his/her appointment. Application forms can be obtained on line at www.oscn.net under the link to Programs, then Judicial Nominating Commission or by contacting Tammy Reaves, Administrative Office of the Courts, 2100 N Lincoln, Suite 3, Oklahoma City, Oklahoma 73105, (405) 556-9862. Applica- tions must be submitted to the Chairman of the Commission at the same address no later than 5:00 p.m., Friday, June 16, 2017. If applications are mailed, they must be postmarked by midnight, June 16, 2017. Deborah A. Reheard, Chair Oklahoma Judicial Nominating Commission

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 971 The 2017 Patrick A. Williams Criminal Defense Institute & OCDLA Annual Meeting June 29 & 30, 2017 Sheraton Reed Conference Center Midwest City, OK The Oklahoma Criminal Defense Lawyers Association, Oklahoma Indigent Defense System, Oklahoma County and Tulsa County Public Defender Offices proudly present the 2017 Patrick A. Williams Criminal Defense Institute & OCDLA Annual Meeting. This year the CDI will be in at the Sheraton Reed Conference Center in Midwest City, OK. Come join us for some outstanding CLE & an all-around good time. The OCDLA awards presentation dinner will take place on Thursday evening of the Institute, along with a sponsored happy hour, followed by a cash bar. OCDLA leadership will also conduct its annual meeting prior to the awards presentation.

The OCDLA Awards are as follows:

The Clarence Darrow Award: The award recognizes the efforts of an individual who has exemplified zealous criminal defense advocacy that befits the namesake of the award "Clarence Darrow". The only qualification requirement is that the merit(s) of the nomination must have taken place during the eligibility period (June 2016-June 2017).

Thurgood Marshall Appellate Advocacy Award: The Marshall Award recognizes outstanding appellate advocacy in the spirit and in the footsteps of the great attorney, judge and justice.

The Lord Thomas Erskine Award: The award is to honor a member of the criminal defense bar who has steadfastly placed the preservation of personal liberties over his or her own personal gain or reputation. The award is a cumulative year award and is not limited to any particular activities in any given year.

Cutoff date for nominations is June 2, 2017 @ 5:00pm. For more info on the awards & past award winners, please visit www.ocdlaoklahoma.com Please send nominations to: Mail: OCDLA Email: [email protected] PO Box 2272 OKC, OK 73101-2272 Fax: 405-212-5024

972 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 2017 CRIMINAL DEFENSE INSTITUTE TOPICS (FULL AGENDA AVAILABLE at www.ocdlaoklahoma.com)

Thursday, June 29, 2017 (2 Afternoon Tracks)

- Tipping the Scales In Your Favor: Pretrial Jury Selection Strategies Paul Bruno, Nashville, TN & Inese Neiders, Columbus, OH - The Art of Persuasion: Jessie Wilson Colorado Springs, CO - Reconciliation in the Felony & Capital Case: Dick Burr, TX TRACK 1 TRACK 2 - Issues With Foreign Nationals: Heather Roberts, OKC - Defending Murder Cases:Joi McClendon, OKC - Interdiction Forfeitures & Drug Dogs: Doug Parr, OKC - Case Update: Jim Hankins, OKC - Cell Phones & Stingrays: Gary Davis, Tulsa, OK - LWOP & Juveniles: Ernie Nalagan, OKC - Issues with Foreign Nationals: Heather Roberts, OKC - Motions Practice: Travis Smith, Tulsa Co PD

Friday, June 30, 2017

- Ethics & Appearing Before the OBA*: Shelia Naifeh, Tulsa - The Forensic Interview: Jamie Vogt, Tulsa - SANE Exams: Angeline Barefoot, Nashville, TN - Cannabis & DUI’s: Jay M. Tiftickjian, Denver, CO

Registration Fees (Awards Dinner Included) -OCDLA Member _____ $ 225.00 -Non Member _____ $ 300.00 -Registration after June 16th _____ $ 275.00 (OCDLA Member) _____ $ 325.00 (Non Member) -Printed Materials _____$ 40.00 -Dinner Guest _____ $ 30.00 TOTAL: ______Name: ______Bar #:______Address: ______City/State/Zip: ______Phone: ______Email: ______Credit Card Info: # ______Exp. Date______MCLE Credit

• OK - 12 Hours, includes 1 hour ethics*

Location The Sheraton Reed Center has a room rate of $98.00 for the CDI. This rate is good until June 14th. For room reservations please call 1-800-325-3535 or online @ www.sheratonmidwestcity.com. Use Group Code: reference the CDI or OCDLA or visit OCDLA website for direct link

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Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 973 974 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 Constitutional LAW Debatable or Not Debatable: A Clearer Test of Qualified Immunity By Clark Crapster

n Mullenix v. Luna,1 the United States Supreme Court tight- ened the reins on the qualified immunity test and its applica- Ition, resulting in what may be a significant alteration of qualified immunity jurisprudence in the future. The result of Mullenix is a test more in line with the original purposes of the qualified immunity doctrine, which had, over time, gradually become undermined.

QUALIFIED IMMUNITY TEST nal test as articulated in Hunter, for example, BACKGROUND AND ITS PURPOSE sometimes gave way to broader language, such The need for governmental officials to do as “fair warning in the law” as apparently being the same as “clearly established in the their jobs, to enforce the laws and to maintain 7 safety is so great that federal law does not per- law.” That ultimately gave rise to what the mit 42 U.S.C. §1983 claims against officers indi- Supreme Court, in Mullenix, would deem to be vidually unless the violation is clearly estab- too much uncertainty for officers due to some courts defining established law at too high a lished in the governing case law.2 The purpose of this is to afford some protection from civil level of generality. Understandably, the less pre- suits under §1983 to the necessary functions of cise and more malleable phraseology, like “fair warning” that developed before Mullenix, may government officials.3 This is important to pre- vent a chilling, or deterrence, effect upon have arisen as a way for courts to explain why attempts at quality law enforcement and other obviously egregious and unacceptable conduct government actions which are fundamentally is not worthy of qualified immunity protection despite the absence of precisely on-point cases. necessary to our way of life and society.4 Qual- Mullenix ified immunity was therefore intended to give But after , this type of analysis may be ample room for mistaken judgments by pro- unnecessary or even inappropriate. tecting all but the plainly incompetent or those An example is the case of Hope v. Pelzer.8 The who knowingly violate the law.5 Thus, the long officers’ conduct in Hope was so egregious that standing rule has been that governmental offi- it was beyond debate that it was a violation of cers who are sued in their individual capacities the Constitution. The officials in Hope hand- in an action under §1983 “are entitled to quali- cuffed the plaintiff to a hitching post without fied immunity unless it is demonstrated that allowing him to have water or use the restroom their conduct violated clearly established con- for seven hours. The law already indicated that stitutional rights of which a reasonable person requiring prisoners to maintain uncomfortable in their positions would have known.”6 positions for long periods of time was a viola- 9 Over the course of many years, however, the tion of the Constitution. But there did not protection of all but the plainly incompetent seem to be authority that was exactly on-point. began to gradually erode as various fact pat- The Supreme Court in Hope explained that the terns emerged. The strict language in the origi- conduct at issue in that case was a violation

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 975 under clearly established law.10 Citing to an case was Mullenix v. Luna, and the second was opinion it had issued in 1996, the court held Aldaba v. Pickens. that there was no qualified immunity as there The court issued an important opinion in the was “fair warning” under the existing case law Mullenix case, clarifying how to properly define that the conduct was violative, despite factual and apply the qualified immunity test. In distinctions.11 essence, the court explained that qualified This type of language led to what has been immunity applies unless the case law squarely called a “sliding scale” approach used by the governs such that in light of the circumstances 10th Circuit. In a 2004 qualified immunity case, there is no debate that a constitutional viola- the 10th Circuit, citing an 11th Circuit opinion, tion occurred. It reversed the 5th Circuit’s de- used the language of Hope as grounds for con- nial of qualified immunity. In the Aldaba case, cluding that a sliding scale approach should be the 10th Circuit had also denied qualified adopted.12 The premise is that some conduct is immunity, similar to the 5th Circuit in Mulle- so patently wrong and illegal that there need nix. Instead of issuing another opinion on not be a case on point.13 This premise does not qualified immunity, however, the Supreme necessarily mean, as a rule, that the more egre- Court vacated the 10th Circuit decision and gious the conduct, the less specificity is required remanded so that the 10th Circuit could decide (the “sliding scale” approach).14 But it never- whether qualified immunity should protect the theless seemed to have led to that “sliding officers in Aldaba in light of the opinion issued scale” rule. The court in Pierce described this the same day in Mullenix. The 10th Circuit concept as follows: ordered supplemental briefing shortly thereaf- ter and oral argument in May The degree of specificity 2016. Seven months later, the required from prior case law three judges on the panel agreed depends in part on the char- that qualified immunity in fact acter of the challenged con- should protect the officers in duct. The more obviously The court issued Aldaba. egregious the conduct in an important opinion light of prevailing constitu- CLARIFICATION IN tional principles, the less in the Mullenix case, MULLENIX specificity is required from The court in Mullenix clarified prior case law to clearly clarifying how to 15 the qualified immunity test in establish the violation. properly define and part by how it chose to describe The method, in turn, gave rise apply the qualified it, and how it chose not to to an opportunity for plaintiffs describe it.16 It also did so in its to try to use a less demanding immunity test. application of the test to the test. Plaintiffs were able to work facts in Mullenix.17 As to the with a hazy legal backdrop by description of the law, the court arguing that exact on-point case did not cite or reference the lan- law is not necessary. They were able to draw guage used over 10 years ago in the Hope case.18 comparisons between factually distinct cases This would later prove to be important to the and argue that it was enough to put officers on 10th Circuit panel in Aldaba in the following “fair notice” such that the claim should pro- year. ceed to the jury to determine whether there What the Supreme Court did indicate was was a violation and resulting damages. Con- that some lower courts have been applying the sequently, this has often been the nature of qualified immunity doctrine too broadly.19 The qualified immunity litigation for at least 10 to Supreme Court clarified that, for qualified im- 15 years. munity to be denied, precedent must “squarely 2015 AND 2016: REIGNING IN THE TEST govern” such that it is “beyond debate” that a constitutional violation occurred in the specific The nature of qualified immunity litigation context of the case, not in a general or broad changed in November of 2015, when the sense.20 In other words, the violation must be so Supreme Court accepted certiorari on two qual- clear in light of existing case law that any rea- ified immunity cases. By coincidence, both sonable officer would know it and there would cases involved a man who passed away, and be no room for debate on the question.21 both men had the last name of Leija. The first

976 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 How the court then applied the test was conclusion that he acted unreasonably in these informative. Mullenix involved a suspect flee- circumstances ‘beyond debate.’”28 ing police in a vehicle on a highway in the ALDABA: FOLLOWING THE plains of far west Texas, not far from Amarillo. CLARIFICATION IN MULLENIX Leija was speeding between 85 to over 100 mph.22 He called the dispatcher to say he Further application of the proper test was would fire a gun upon police if they did not demonstrated by the 10th Circuit’s revisiting of stop pursuit.23 A group of officers some miles the qualified immunity issue in a case arising away gathered at an overpass called Cemetery from the Eastern District of Oklahoma, Aldaba Road to try to stop the chase, taking position v. Pickens,29 after the Supreme Court vacated on the sides and placing spike strips on the and remanded. In its December 2016 opinion, highway under the overpass.24 One officer, the 10th Circuit explained that the deceased, Mullenix, intended, however, to use a high Leija, was at a hospital in Oklahoma being powered rifle from the top of the overpass to treated for double and severe pneumonia.30 try to shoot the engine block and disable the Although he was cooperative at first, Leija later vehicle.25 He was told to stand by and give the became aggressive and delusional.31 He had spikes an opportunity to work. But Mullenix lost the ability to make informed decisions on did not do this and fired multiple times at Lei- his own about his health.32 He was refusing the ja’s vehicle as it arrived, unfortunately striking necessary treatment and acting in a way that Leija and not the engine block.26 placed the nurses and doctors attending to him in fear of trying to physically subdue him. The Supreme Court found that, on these Thus, they called law enforcement.33 facts, Mullenix was entitled to qualified immu- nity. The reasons were that he faced circum- Three officers arrived at the scene as Leija stances that were unique from anything in the was starting to leave his hospital room.34 The existing case law on use of deadly force or use doctor explained to the officers that Leija of a firearm to disable a vehicle. It is true that would die if allowed to leave the facility.35 The Mullenix could have waited to see what hap- officers tried reasoning with Leija, but to no pened as Leija drove under Cemetery Road avail.36 Leija raised his arms and clenched his overpass. Mullenix could have decided that fists.37 He said that the blood coming from his the best choice was to wait and use the rifle empty IV portal was “his” blood, among other only as a last resort. But the court refrained statements.38 Warnings were given about the from second guessing in hindsight. The court use of a Taser but again, to no avail.39 A Taser considered information that was seemingly shot was fired, but did not work properly.40 The important to Mullenix, namely, that Leija had officers then took Leija’s arms, but his strength informed the officers he would shoot if they kept them from keeping his arms behind his did not stop pursuit. The fact was that an offi- back.41 The Taser was used on his back as the cer in Mullenix’s position could reasonably patient was against the wall, still resisting the fear that his fellow officers could be shot or officers.42 Medical staff observed. The Taser did struck by a vehicle or other debris. The Supreme not stop him. The officers were then able to Court, focusing on the circumstances and bring him to the ground on his stomach.43 As information the officers knew and faced at the they struggled to keep his arms behind his time, found that the clearly established law back, a medical employee proceeded to give actually revealed a “hazy legal backdrop,” Leija a shot of Haldol and Ativan.44 Immedi- without any case denying qualified immunity ately after the shot was administered, Leija lost under the specific circumstances of the case.27 consciousness and all attempts to resuscitate failed.45 The dissent, in hindsight, disagreed with the decision of Mullenix to use his weapon. The Judge Phillips, writing for the 10th Circuit dissent also agreed with the prior 5th Circuit panel and concluding that qualified immunity holding which had concluded that Mullinex applied, first reiterated the proper qualified should have waited until after the use of spike immunity test in light of Mullenix.46 The opin- strips before attempting a less conventional ion notes that the Supreme Court in Mullenix method. The majority opinion, however, point- might be trying to emphasize different parts of ed out that this was error, “Ultimately, what- its prior opinions.47 More specifically, the ever can be said of the wisdom of Mullenix’s Supreme Court in Mullenix seemed to be choice, this Court’s precedents do not place the emphasizing the “beyond debate” and “square-

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 977 ly governs” language.48 Importantly, the Su- 5. Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct 532 (1991). 6. Murrell v. Sch. Dist. No. 1, Denver, Co, 186 F.3d 1238, 1251 (10th preme Court in Mullenix did not cite the Hope Cir. 1999). decision’s “fair warning” language.49 The 10th 7. See Hope v. Pelzer, 536 U.S. 730, 739-40 (2002). 8. 536 U.S. 730, 739-40 (2002). Circuit therefore did not use the older sliding 9. Gates v. Collier, 501 F.2d 1291, 1305 (5th Cir. 1974). scale case law in its opinion. As the Supreme 10. Id. 11. Hope, 536 U.S. at 739-40. Court did in Mullenix, the 10th Circuit focused 12. Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004). on what the officers were told by others and 13. Id. the specific circumstances they faced.50 There 14. Id. 15. Id. at 1298. was no question that the officers had to stop 16. Mullenix v. Luna, 136 S. Ct. 305, 308-09 (2015). Leija from leaving, which is clear from Phil- 17. Id. at 308-12. 18. Id. lips’s opinion, and which was in fact found by 19. Id. at 308-09. the district court. Looking at the unique cir- 20. Id. at 308-12. 21. Id. cumstances the officers faced, the 10th Circuit 22. Id. 306-07; 310-12. held that the case law was not clearly estab- 23. Id. 306-07. 24. Id. lished such that it was beyond debate that the 25. Id. 306-07; 310-12. 51 conduct constituted a violation. The plaintiff 26. Id. had cited two very factually distinct cases 27. Id. at 309-310. 52 28. Id. at 310-311. involving egregious use of Tasers and force, 29. 844 F.3d 870 (10th Cir. 2016). but neither of the cases showed that what the 30. 844 F.3d at 874-76. 31. Id. officers in Aldaba did was a clear violation, if a 32. Id. violation at all, as they were acting according 33. Id. 34. Id. to a doctor’s urgent request and only used 35. Id. physical force after other efforts failed.53 36. Id. 37. Id. THE TEST MOVING FORWARD 38. Id. 39. Id. In light of Mullenix, it is clear that the Supreme 40. Id. 41. Id. Court requires the “beyond debate” or “square- 42. Id. ly governs” language, which more effectively 43. Id. 44. Id. protects the purposes of the qualified immu- 45. Id. nity doctrine by shielding officers from the fear 46. Id. at 876-77. 47. Id. at 874, n. 1. of personal liability when they only make a 48. Id. at 874. 54 mistake in judgment. A sliding scale should 49. Id. at 874, n. 1. not be used, and, importantly, the 10th Circuit 50. Id. at 876-77. 51. Id. at 877-80. declined to do so in Aldaba. Therefore, plain- 52. Id. at 878-80. tiffs who are trying to defeat qualified immunity 53. Id. 54. See Pearson, 555 U.S. at 231 (discussing purposes of qualified in the absence of direct on-point case law will immunity). need to show that the conduct is so facially and shockingly egregious in and of itself that it is beyond debate such that every reasonable officer About The Author would know that it was a constitutional viola- tion. The result may cause counsel suing govern- Clark Crapster is a civil litigation mental officials to spend less effort on futile and appellate attorney who prac- attempts to convert “hazy legal backdrops” into tices in both the Oklahoma and “clearly established law.” Instead, the legal back- federal appellate courts. He drop must squarely govern the circumstances argued in the 10th Circuit in the the officers in question faced. If it is a hazy legal Aldaba matter for appellant Pick- backdrop, then it will not be beyond debate, and ens and in other matters at the will not be clearly established. Tenth Circuit as well. He is at Steidley & Neal PLLC. In addi- 1. 577 U.S. ___, 136 S. Ct. 305 (2015) (per curiam). tion to defending federal and state constitutional 2. See Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 related claims, he also works on employment litiga- L. Ed. 2d 565 (2009). 3. Id. tion, legal malpractice and catastrophic injury cases. 4. See Filarsky v. Delia, 132 S. Ct. 1657 (2012).

978 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 OBA AWARDS

Do You Know Someone Who Deserves to be Honored? By Jennifer Castillo

Think about the last time someone paid awards at Annual Meeting, Nov. 1 - 3 you a compliment, whether for a profession- in Tulsa. al or personal accomplishment. Remember However, the Awards Committee is only how good that compliment made you feel? as good as the nominations we receive. To Now imagine the amplified feeling of pride encourage nominations, the Awards Com- and accomplishment from recognition by mittee has made the nomination process as your professional organization and peers. streamlined as possible. You would want to share that feeling with others, right? Of course, you I encourage you to take a look at would – especially if doing so the award categories below only took a moment and to nominate at least of your time. one deserving colleague or professional Each year at its Annu- organization for al Meeting, the Oklaho- an award. ma Bar Association proudly bestows a AWARDS UP FOR series of awards to GRABS deserving lawyers and orga- Outstanding County Bar nizations for their significant Association Award – for achievement in leadership, meritorious efforts and public service and service to activities the profession. It truly only takes a moment to nominate 2016 Winner: Creek County someone, and it could mean Bar Association and Tulsa the world to a bar colleague County Bar Association or organization that is making Hicks Epton Law Day Oklahoma a better place. Award – for individuals or organizations for noteworthy The 2012 OBA award I received Law Day activities was a momentous occasion for me. In a very cogent way, the award validated 2016 Winner: Oklahoma County Bar my hard work and dedication to the legal Association Young Lawyers Division profession and the OBA. It also gave me con- Golden Gavel Award – for OBA commit- fidence and incentive to continue those tees and sections performing with a high efforts. As chair of the OBA Awards Commit- degree of excellence tee, I have the pleasure of hearing about the 2016 Winner: OBA YLD Kick It Forward wonderful work my colleagues and profes- Committee sional organizations are doing to help pro- mote the rule of law and access to justice in Liberty Bell Award – for nonlawyers or lay Oklahoma. I can’t wait to tell you about organizations for promoting or publicizing them all when the OBA presents this year’s matters regarding the legal system 2016 Winner: Sgt. Alicia Maurer, Tulsa

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 979 Outstanding Young Lawyer Award – for a Trailblazer Award – to an OBA member member of the OBA Young Lawyers Divi- or members who by their significant, unique sion for service to the profession visionary efforts have had a profound 2016 Winner: LeAnne McGill, Edmond impact upon our profession and/or commu- nity and in doing so have blazed a trail for Earl Sneed Award – for outstanding others to follow. continuing legal education contributions 2016 Winner: Stanley L. Evans, Oklahoma 2016 Winners: Philip R. Feist, Tulsa and City Miles L. Mitzner, Edmond Award of Judicial Excellence – for excellence of character, job performance or achievement while a judge and service to the bench, bar and community 2016 Winner: Judge Carlos J. Chappelle (posthumous), Tulsa Fern Holland Courageous Lawyer Award – to an OBA member who has courageously performed in a manner befitting the highest • Anyone can submit an award nomination, and ideals of our profession anyone nominated can win. Not awarded in 2016 • The deadline is Friday, July 28, but get your nomi- nation in EARLY! Outstanding Service to the Public Award – for significant community service by an • Nominations can be as short as a one-page letter, OBA member or bar-related entity but the entire nomination cannot exceed five sin- gle-sided, 8 1/2” x 11” pages (including exhibits 2016 Winner: Juan Garcia, Clinton and support letters). Award for Outstanding Pro Bono Service • Make sure the name of the person being nominat- – by an OBA member or bar-related entity ed and the person (or organization) making the 2016 Winners: OBA Military Assistance nomination is on the nomination. Committee • If you think someone qualifies for awards in sev- Joe Stamper Distinguished Service eral categories, pick one award and only do one Award – to an OBA member for long-term nomination. The OBA Awards Committee may service to the bar association or contribu- consider the nominee for an award in a category tions to the legal profession other than one in which you nominate that person. 2016 Winner: Micheal Salem, Norman • You can mail, fax or email your nomination (pick Neil E. Bogan Professionalism Award – one). Email [email protected] (you will receive a to an OBA member practicing 10 years or confirmation reply); fax: 405-416-7089; mail: OBA more who for conduct, honesty, integrity Awards Committee, P.O. Box 53036, Oklahoma and courtesy best represents the highest City, OK 73152. standards of the legal profession • Visit www.okbar.org/news/Recent/2017/OBA 2016 Winner: John R. Woodard III, Tulsa Awards for the nomination form if you want to use one (not required), history of previous winners John E. Shipp Award for Ethics – to an and tips for writing nominations. OBA member who has truly exemplified the ethics of the legal profession either by 1) act- ing in accordance with the highest ethical About The Author standards in the face of pressure to do other- wise or 2) by serving as a role model for eth- Jennifer Castillo is an attorney with ics to the other members of the profession OG&E in Oklahoma City. She serves 2016 Winner: Gary Derrick, Oklahoma City as Awards Committee chairperson and OBA vice president. Alma Wilson Award – for an OBA mem- ber who has made a significant contribution to improving the lives of Oklahoma children 2016 Winner: Brad Davenport, Oklahoma City

980 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 INDIVIDUALS FOR WHOM AWARDS ARE NAMED

NEIL E. BOGAN — Neil Bogan, an attorney when his life was tragically taken that year in a from Tulsa, died unexpectedly on May 5, 1990, plane crash. Mr. Shipp was known for his integ- while serving his term as president of the Okla- rity, professionalism and high ethical standards. homa Bar Association. Mr. Bogan was known for He had served two terms on the OBA Profes- his professional, courteous treatment of every- sional Responsibility Commission, serving as one he came into contact with and was also con- chairman for one year, and served two years on sidered to uphold high standards of honesty and the Professional Responsibility Tribunal, serving integrity in the legal profession. The OBA’s Pro- as chief-master. The OBA’s Award for Ethics fessionalism Award is named for him as a per- bears his name. manent reminder of the example he set. EARL SNEED — Earl Sneed served the Uni- HICKS EPTON — While working as a coun- versity of Oklahoma College of Law as a distin- try lawyer in Wewoka, attorney Hicks Epton guished teacher and dean. Mr. Sneed came to decided that lawyers should go out and educate OU as a faculty member in 1945 and was praised the public about the law in general, and the for his enthusiastic teaching ability. When Mr. rights and liberties provided under the law to Sneed was appointed in 1950 to lead the law American citizens. Through the efforts of Mr. school as dean, he was just 37 years old and one Epton, who served as OBA president in 1953, of the youngest deans in the nation. After his and other bar members, the roots of Law Day retirement from academia in 1965, he played a were established. In 1961, the first of May major role in fundraising efforts for the law became an annual special day of celebration center. The OBA’s Continuing Legal Education nationwide designated by a joint resolution of Award is named in his honor. Congress. The OBA’s Law Day Award recogniz- ing outstanding Law Day activities is named JOE STAMPER — Joe Stamper of Antlers in his honor. retired in 2003 after 68 years of practicing law. He FERN HOLLAND — Fern Holland’s life was is credited with being a personal motivating force cut tragically short after just 33 years, but this behind the creation of OUJI and the Oklahoma young Tulsa attorney made an impact that will Civil Uniform Jury Instructions Committee. Mr. be remembered for years to come. Ms. Holland Stamper was also instrumental in creating the left private law practice to work as a human position of OBA general counsel to handle attor- rights activist and to help bring democracy to ney discipline. He served on both the ABA and Iraq. In 2004 she was working closely with Iraqi OBA Board of Governors and represented Okla- women on women’s issues when her vehicle was homa at the ABA House of Delegates for 17 years. ambushed by Iraqi gunmen, and she was killed. His eloquent remarks were legendary, and he is The Courageous Lawyer Award is named as a credited with giving Oklahoma a voice and a face tribute to her. at the national level. The OBA’s Distinguished Service Award is named to honor him. MAURICE MERRILL — Dr. Maurice Merrill served as a professor at the University of Okla- ALMA WILSON — Alma Wilson was the first homa College of Law from 1936 until his retire- woman to be appointed as a justice to the ment in 1968. He was held in high regard by his Supreme Court of Oklahoma in 1982 and became colleagues, his former students and the bar for its first female chief justice in 1995. She first his nationally distinguished work as a writer, practiced law in Pauls Valley, where she grew scholar and teacher. Many words have been used up. Her first judicial appointment was as special to describe Dr. Merrill over the years, including judge sitting in Garvin and McClain Counties, brilliant, wise, talented and dedicated. Named in later district judge for Cleveland County and his honor is the Golden Quill Award that is served for six years on the Court of Tax Review. given to the author of the best written article She was known for her contributions to the edu- published in the Oklahoma Bar Journal. The recip- cational needs of juveniles and children at risk, ient is selected by the OBA Board of Editors. and she was a leader in proposing an alternative school project in Oklahoma City, which is now JOHN E. SHIPP — John E. Shipp, an attorney named the Alma Wilson SeeWorth Academy. The from Idabel, served as 1985 OBA president and OBA’s Alma Wilson Award honors a bar mem- became the executive director of the association ber who has made a significant contribution to in 1998. Unfortunately his tenure was cut short improving the lives of Oklahoma children.

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 981 BAR NEWS Diversity Awards: Nominations Due July 14

The Diversity Committee is now accepting • Developed and implemented an effective nominations for the Ada Lois Sipuel Fisher equal opportunity program as demon- Diversity Awards to be strated by the organization’s commit- presented on Oct. 19. ment to the recruitment, retention and The award categories promotion of individuals of underrepre- are: members of the sented populations regardless of race, judiciary, licensed attor- ethnic origin, gender, religion, age, sexual neys and groups and orientation, disability or any other pro- entities that have cham- hibited basis of discrimination pioned the cause of • Promoted diversity initiatives that estab- diversity. All nomina- lish and foster a more inclusive and equi- tions must be received table work environment by Friday, July 14. • Demonstrated continued corporate re- Information regarding sponsibility by devoting resources for the the selection criteria and improvement of the community at large nomination process Ada Lois Sipuel Fisher • Exhibited insightful leadership to con- Photo credit: OU College of Law may be also accessed at www.okbar.org. For front and resolve inequities through stra- additional information, please contact OBA tegic decision-making, allocation of Diversity Committee Chair Tiece Dempsey at resources and establishment of priorities 405-609-5406. Two more diversity awards will be given to NOMINATIONS licensed attorneys and an additional award will be given to a member of the Oklahoma • Include name, address and contact num- judiciary who has met one or more of the fol- ber of the nominee. lowing criteria: • Describe the nominee’s contributions and • Demonstrated dedication to raising issues accomplishments in the area of diversity. of diversity and protecting civil and • Identify the diversity award category human rights (business/group/organization, licensed • Led the development of innovative or attorney or judiciary) in which the nomi- contemporary measures to fight discrimi- nee is being nominated. nation and the effects • The submission deadline is July 14. • Fostered positive communication and actively promoted inter-group relations • Nominations should not exceed five among populations of different back- pages in length. grounds • Submit nominations to diversityawards@ • Participated in a variety of corporate and okbar.org. community events that promoted mutual SELECTION CRITERIA AND respect, acceptance, cooperation or toler- NOMINATION PROCESS ance and contributed to diversity aware- ness in the community and workplace One or more diversity awards will be given to a business, group or organization that has an  • Reached out to a diverse array of attor- office in the state of Oklahoma and has met one neys to understand firsthand the expe- or more of the following criteria: riences of someone from a different background

982 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 OBA NEWS OBA Leadership Academy 2017-2018 The Search for Future Bar Leaders is Underway By Linda S. Thomas

I am proud to announce the Oklahoma Bar Association will host its sixth OBA Leadership Academy, one of the associa- tion’s premier programs designed for Oklahoma lawyers who want to learn WHO CAN APPLY? more about bar leadership and may be at a point Any Oklahoma lawyer in good standing with the where bar leadership is a way they can give back to OBA may apply. We are looking for a diverse group our association. The academy focuses its program- of lawyers who have a sincere interest in leadership ming in areas that prepare participants to serve our and invite ALL interested OBA members to apply. profession, our bar and our citizens in a variety of leadership roles. It is the perfect forum to promote WHAT IS MY COST? the goal of recognizing and celebrating lawyers who There is a $40 nonrefundable application fee, and volunteer, serve and give of themselves. you are responsible for your own travel expenses. The OBA picks up the costs for all programming, In 2007, at the direction of then OBA President Ste- food and, for participants living more than 60 miles phen Beam, the OBA hosted a two-day Leadership away, hotel accommodations. Conference, and from that event the Leadership Academy was born. Since then, five leadership class- WHEN IS THE DEADLINE TO APPLY? es have graduated from the academy – 2008-09, You must submit your application by July 1. 2009-10, 2011-12, 2013-14 and 2015-16. The Leader- ship Academy fosters the development of tomor- WHERE? row’s bar leaders, and many of today’s bar leaders The sessions will take place in Oklahoma City are graduates of the academy. with the exception of the November session that will take place in Tulsa during the 2017 OBA Annual The next Leadership Academy will begin in Sep- Meeting, Nov. 1-3. tember 2017 and run through April 2018. There will be four training sessions throughout the year with WHY SHOULD I PARTICIPATE? the graduation ceremony taking place in April. After The personal and professional benefit you will review of all applications, up to 25 qualified candi- derive through this unique experience will be dates will be chosen by a selection committee for immeasurable. You will meet and interact with bar academy membership. leaders and some of the most accomplished legal and community leaders. You will also be exposed to Participants will learn core principles of effective the legislative and judicial systems; you will interact leadership, together with the importance of servant with high-level state and local officials and judges leadership and will leave the academy with better and meet many attorneys from the private and communication skills, a more in-depth knowledge of public sectors. the inner workings of the OBA and the services HOW DO I APPLY? offered and a sincere motivation to succeed, not only in their legal career, but also in service to profession- For more information and for a copy of the appli- al, political, judicial, civic and community organiza- cation, go to www.okbar.org/members/Leadership. tions. To review the programming offered, look for Questions? Call or email OBA Educational Pro- grams Director Susan Damron at 405-416-7028, agendas at www.okbar.org/members/Leadership. [email protected].

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 983 LEGISLATIVE NEWS

Bills Passed Could Affect Your Law Practice By Angela Ailles Bahm

Sine die, or the last day of the HB 1243 Relates to investment legislative session, is May 26. of money belonging to the However, be aware that our estates of minors and incapaci- legislative session runs two tated persons. years; legislation filed this year HB 1429 Relates to the com- is subject to resurrection next mencement of an action year. As of the writing of this based on a website accessibil- article, bills included in the ity claim. April report are no longer via- ble, with the exception of SB HB 1466 Relates to the Protec- 213. It changes the judicial dis- tion from Domestic Abuse Act tricts of the Supreme Court to authorizing transfer of cell conform to the current five phone numbers under certain congressional districts and circumstances. makes four of them “at-large” positions. To provide for repre- HB 1468 Modifies the time sentation of the more “rural” limitation for prosecuting counties, two of the at-large criminal offenses for sexual justices would be selected crimes against children. from counties with popula- HB 1825 Relates to the De- tions less than 75,000. ployed Parents Custody and Another bill that has a Visitation Act; modifies defi- strong likelihood of passing Again, I urge all county nitions. and being signed by the gov- bar associations to have a HB 1894 Modifies the defi- ernor is HB 1823. The bill nition of a person legally modifies the composition of representative on the Legislative authorized to make health- judicial districts 24 and 26, Monitoring Committee. care decisions within the effective Jan. 14, 2019. This Nondiscrimination in Treat- bill was reported on during ment Act. the OBA Day at the Capitol meeting. This is an initial step to reallocate judi- HB 2247 Relates to guardians cial resources where needed. and allows for the initiation of guardianship pro- ceedings for an incapacitated minor approaching BILLS SIGNED BY THE GOVERNOR adulthood. A few bills that have been signed by the gover- HB 2275 Relates to designation of the record in nor and might affect your practice include the appeals to the Supreme Court. following: HB 2314 Relates to liens for service on personal HB 1127 Relates to the definition of sexual assault; property and changes the time allowed for re- directing courts to instruct the jury on the defini- submission of title application. tion of consent. SB 34 Prohibits lack of knowledge of the age of a victim as a defense to human trafficking of a minor.

984 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 SB 50 Modifies the duties of guardians ad litem FROM THE PRESIDENT and their written reports. cont’d from page 932 SB 64 Relates to affidavits of heirship and increas- es the amount allowable of certain transfers by Fortunately, as a result of this shameful banks or credit unions to $50,000. event, meaningful judicial reform took place, SB 322 Relates to Indian child custody proceed- and the JNC was created when the OBA House ings and modifies certain notice provisions. of Delegates approved and endorsed it in prin- ciple. Oklahoma voters overwhelmingly ap- SB 425 Creates new law allowing a cause of proved to amend the Oklahoma Constitution action by a public or private institution of higher to make the JNC selection process the law of education to pursue a third party who engages or our state. The obvious goal was to take party conspires to engage in certain conduct. politics and potential corruption out of the SB 645 Modifies the civil penalties relating to the judicial selection process as much as possible, Medicaid False Claims Act. and through the JNC, this goal was accom- plished. Again, I urge all county bar associations to have a representative on the Legislative Monitoring OBA TO CELEBRATE JNC’S Committee. Your representatives and senators 50TH ANNIVERSARY need the benefit of your insight into the laws they In 2016, the OBA House of Delegates unani- are passing. Look for the “Join a Committee” link mously adopted a resolution reaffirming the at the bottom of www.okbar.org. OBA’s commitment to the merit selection of HOW TO GET REAL-TIME INFO judges utilizing the JNC and celebrating judi- cial reform in Oklahoma. So as we celebrate Another way to get real-time information is to the JNC’s 50th anniversary, I am saddened by subscribe to the updates and news releases. For the recent loss of the principal Senate author of example, on the Senate homepage at www. the 1967 court reform bills, OBA Past President oksenate.gov, right there with President Pro Tem- Anthony M. “Tony” Massad. Without fair and pore, Sen. Mike Schulz (hint … Jackson County), impartial courts, the words of the 14th Amend- there is a button “Click to Subscribe.” Click on it ment no matter how eloquent or intellectual to input how you want to get the information and would ring hollow. input your email address or phone number. Click submit and then it takes you to another page of Likewise, absent a remarkable process to “Featured Government Updates.” It’s a whole ensure that our courts are open, fair and host of government offices from which you can staffed by capable judges, the dream of the get news releases, including the governor’s office, 14th Amendment would never be achieved. the AG, DOC, DHS, the list goes on and the House The greatest achievements attached to the 14th of Representatives. Subscribe today! Amendment are those associated with great lawyers like Tony who, from the statehouse to As always, please let me know if you have any the courthouse, ensured the hard work to questions or suggestions on how the Legislative maintain our Constitution has been repeatedly Monitoring Committee can improve and better performed. serve the bar.

About The Author

Ms. Ailles Bahm is the managing attorney of State Farm’s in-house office and also serves as the Leg- islative Monitoring Committee chairperson. She can be contact- ed at angela.ailles-bahm.ga23@ statefarm.com.

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 985 Thanks to everyone who helped us celebrate another successful Law Day! Law Day Contest winner ceremony

Ask A Lawyer hotline A special thank you to those who partnered with the OBA Law Day Committee to support Law Day PROJECTS. Chief Justice Douglas Combs Lawyers Helping Lawyers Astrud Ray-Kubier, Assistance Program massage therapist OBA President Linda Thomas LexisNexis Kim Reber, 3000 Insurance Group massage therapist McIntyre Law BlackFin IRS Solutions Roderick H. Polston, PC OETA Linda Herndon, Soup Soup Carry Out massage therapist Oklahoma County Bar & Catering Association Auxiliary Law Office of Bryce P. Harp Stigler Printing Oklahoma County Bar LawPay Association Young Tulsa County Bar Lawyers Division Association Law-related Education Committee The Oklahoman Volunteers statewide

986 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 The Sovereignty Symposium XXX RESTORATION

June 7 – 8, 2017 Skirvin Hotel u Oklahoma City, Oklahoma

Presented by The Oklahoma Supreme Court and The Sovereignty Symposium, Inc. 16 hours of CLE credit for lawyers will be awarded, including 1.5 hours of ethics. NOTE: Please be aware that each state has its own rules and regulations, including the definition of “CLE”; therefore, certain portions of the program may not receive credit in some states.

The Sovereignty Symposium was established to provide a forum in which ideas concerning common legal issues could be exchanged in a scholarly, non-adversarial environment. The Supreme Court espouses no view on any of the issues, and the positions taken by the participants are not endorsed by the Supreme Court.

THE SOVEREIGNTY SYMPOSIUM AGENDA

Wednesday, June 7, 2017 POTEET VICTORY, (Cherokee/Choctaw), Artist a.m. 4 CLE credits / 0 ethics included BRENT GREENWOOD, (Ponca/Chickasaw), Artist and Musician p.m. 4 CLE credits / 0 ethics included JOSHUA HINSON, Chickasaw Language Revitalization Program 7:30 – 4:30 Registration Honors Lounge GORDEN YELLOWMAN, (Cheyenne), Peace Chief, Assistant 8:00 – 8:30 Complimentary Continental Breakfast Executive Director of Education, Cheyenne and Arapaho Tribes 10:30 – 10:45 Morning Coffee / Tea Break 8:30 – 12:00 PANEL C: LAND, WIND AND WATER 12:00 – 1:15 Lunch on your own (THIS PANEL CONTINUES FROM 3:30 – 6:00) 2:45 – 3:00 Afternoon Coffee / Tea Break MODERATOR: PATRICK WYRICK, Justice, Oklahoma 8:30 – 12:00 PANEL A: ECONOMIC DEVELOPMENT Supreme Court (THIS PANEL CONTINUES FROM 3:30 – 6:00) GARY BATTON, (Choctaw), Chief, Choctaw Nation of Oklahoma CRYSTAL ROOM STEPHEN H. GREETHAM, Chief General Counsel, Department of MODERATOR: JAMES C. COLLARD, Director of Planning and Commerce and Special Counsel on Water, Chickasaw Nation Economic Development, Citizen Potawatomi Nation GLEN COFFEE, Special Counsel to Governor Mary Fallin, SARA WILSHAW, Consul General of Canada, Dallas, Texas Glen Coffee & Associates, Oklahoma City KEN MILLER, Oklahoma State Treasurer TAI HELTON, Professor, University of Oklahoma College of Law CHRIS BENGE, (Cherokee), Chief of Staff to Governor Mary Fallin, MATTHEW FLETCHER, Professor of Law, Michigan State Oklahoma Secretary of Native American Affairs University WAYNE GARNONS-WILLIAMS, Senior Lawyer, Principal Director, MICHAEL BURRAGE, Whitten Burrage Law Firm Garwill Law, Canada, Chair, International SARAH HILL, Senior Assistant Attorney General, Cherokee Nation Intertribal Trade and Investment Organization LAUREN KING, (Muscogee (Creek)), Foster Pepper PLLC, BILL G. LANCE, JR., Secretary of Commerce, Chickasaw Nation Appellate Judge – Northwest Intertribal Court System DAVID NIMMO, Chief Executive Officer/President, Chickasaw 8:30 – 12:00 PANEL D: TRUTH AND RECONCILIATION: Nation Industries GENERATIONAL/HISTORICAL TRAUMA AND HEALING CORNELL WESLEY, Economic Development Representative, MODERATOR: NOMA GURICH, Vice Chief Justice, Oklahoma U.S. Department of Commerce Supreme Court 8:30 – 12:00 PANEL B: SIGNS, SYMBOLS AND SOUNDS BRADFORD MORSE, Dean of Law, Faculty of Law, Thompson (THIS PANEL CONTINUES FROM 3:30 – 6:00) Rivers University MODERATOR: WINSTON SCAMBLER, Student of Native ROBERT JOSEPH, Director of the Maori & Indigenous American Art Governance Center, New Zealand KELLY HANEY, (Seminole), Artist, Former Oklahoma State ROGER RANDLE, Professor, University of Oklahoma, Department Senator, Former Chief of the Seminole Nation of Human Relations ERIC TIPPECONNIC, (Comanche), Historian, Artist, and KEITH M. HARPER, (Cherokee), Kilpatrick Townsend, Former Professor, California State University, Fullerton United States Ambassador to the United Nations Human JASON MURRAY, (Chickasaw), Independent Scholar & Professor, Rights Council Formerly of the University of South Dakota

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 987 LINDSAY ROBERTSON, Faculty Director, Center for the Study of NEIL CHAPMAN, Photographer, Former Mt. San Antonio American Indian Law and Policy, Chickasaw Nation Endowed College Photography Department Co-Chair and Professor of Chair in Native American Law, Professor, University of Photography Oklahoma College of Law HARVEY PRATT, (Cheyenne), Peace Chief, Artist/Forensic Artist ROBERT E. HAYES, JR., Methodist Bishop of Oklahoma STU OSTLER, Oklahoma State Capitol Photographer (Retired) LES BERRYHILL, (Yuchi/Muscogee), Artist GARVIN ISAACS, Immediate Past President, Oklahoma Bar KENNETH JOHNSON, (Muscogee/Seminole), Contemporary Association Jewelry Designer and Metalsmith HOMER FLUTE, Sand Creek Massacre Descendent/Litigant 3:15 – 6:00 PANEL C: LAND, WIND AND WATER DG Smalling, (Choctaw), Artist and Activist MODERATOR: PATRICK WYRICK, Justice, Oklahoma Supreme 1:15 – 2:00 OPENING CEREMONY AND KEYNOTE ADDRESS Court MASTER OF CEREMONIES: STEVEN W. TAYLOR, Justice, JULIE CUNNINGHAM, Executive Director, Oklahoma Water Oklahoma Supreme Court (Retired) Resources Board PRESENTATION OF FLAGS MARIA O’BRIEN, Modrall Sperling HONOR GUARDS: Kiowa Black Leggings Society CLAY CHRISTENSEN, Christensen Law Group SINGERS: Southern Nation KEN BELLMARD, (Kaw), Attorney CAMP CALL: GORDON YELLOWMAN, (Cheyenne), Peace Chief, CHRISTOPHER A. TYTANIC, General Counsel of M3, Adjunct Cheyenne and Arapaho Tribes Professor OU College of Law INVOCATION: ROBERT E. HAYES, JR., Methodist Bishop of DAVID WALTERS, President, Walters Power International Oklahoma (Retired) 3:15 – 6:00 PANEL D: CRIMINAL LAW WELCOME: LINDA S. THOMAS, President, Oklahoma Bar MODERATOR: ARVO MIKKANEN, (Kiowa/Comanche), Assistant Association United States Attorney for the Western District of Oklahoma WELCOME: DOUGLAS COMBS, Chief Justice, Oklahoma MARY CULLEY, Tribal Government Relations Specialist, United Supreme Court States Department of Veteran’s Affairs PRESENTATION OF AWARDS, YVONNE KAUGER, Justice, WILSON PIPESTEM, Pipestem Law Oklahoma Supreme Court MARY KATHRYN NAGEL, Pipestem Law HONOR AND MEMORIAL SONGS: SOUTHERN NATION CLOSING PRAYER: KRIS LADUSAU, Reverend, Dharma Center 6:30 PERFORMANCE BY JEROD IMPICHCHAACHAAHA TATE, of Oklahoma (Chickasaw), Composer OKLAHOMA JUDICIAL CENTER – 2100 North Lincoln Boulevard 2:00 – 6:00 ROUNDTABLE DISCUSSION WITH FORMER ASSIS- TANT SECRETARIES OF THE INTERIOR FOR INDIAN AFFAIRS 7:00 RECEPTION MODERATOR: JOHN REIF, Justice, Oklahoma Supreme Court OKLAHOMA JUDICIAL CENTER – 2100 North Lincoln Boulevard THOMAS W. FREDERICKS, FredEricks, Peebles and Morgan, LLP Thursday, June 8, 2017 ADA E. DEER, Former Assistant Secretary of the Interior for a.m. 4 CLE credits / 1 ethics included Indian Affairs p.m. 4 CLE credits / 0 ethics included NEAL MCCALEB, Chickasaw Ambassador to the United States 8:30 – 12:00 PANEL A: JUVENILE LAW AND CHILDREN’S ISSUES CARL ARTMAN, Professor, Arizona State University, College of MODERATOR: DEBORAH BARNES, Judge, Oklahoma Court of Law and Director of Tribal Economic Development Civil Appeals LARRY ECHO HAWK, Assistant Executive Director, Correlation C. STEVEN HAGER, Director of Litigation, Oklahoma Indian Department, The Church of Jesus Christ of Latter-Day Saints Legal Services 3:15 – 6:00 PANEL A: ECONOMIC DEVELOPMENT BRIAN HENDRIX, Deputy Assistant for Native American Affairs, (A CONTINUATION OF THE MORNING PANEL) Oklahoma Secretary of State CRYSTAL ROOM MARK MOORE, Associate District Judge, Blaine County, MODERATOR: JAMES C. COLLARD, Director of Planning & Oklahoma Economic Development, Citizen Potawatomi Nation ELIZABETH BROWN, (Cherokee), Associate District Judge, LYNN KNIGHT, Vice-President of Knowledge Management, Adair County, Oklahoma International Economic Development Counsel DEBORAH SHROPSHIRE, M.D., Deputy Director of Child PHIL BUSEY, SR., (Cherokee/Delaware Tribe of Oklahoma) Welfare Community Partnerships Delaware Resource Group CARMIN TECUMSEH-WILLIAMS, (Muscogee (Creek) Nation), DEREK OSBORN, Legislative Assistant to Senator Tribal Affairs Liaison for Oklahoma Department of Human James Lankford Services ROBERT ANDREW, United States Department Diplomat in PHIL LUJAN, Judge of the Seminole and Citizen Potawatomi Residence, University of Oklahoma Nations GAVIN CLARKSON, Associate Professor, College of Business, LOU STRETCH, Cherokee Nation Children, Youth and Family New Mexico State University Services, Oklahoma Indian Child Welfare Association SHANE JETT, Executive Director/CEO, Citizen Potawatomi GLORIA VALENCIA-WEBER, Emeritus Professor, University of Development Corporation New Mexico School of Law, Board Member, Legal MELOYDE BLANCETT, Oklahoma House of Representatives, Services Corporation District 78 8:30 – 12:00 PANEL B: WORKERS’ COMPENSATION 3:15 – 6:00 PANEL B: SIGNS, SYMBOLS AND SOUNDS MODERATOR: NOMA GURICH, Vice Chief Justice, Oklahoma MODERATOR: WINSTON SCAMBLER, Student of Native Supreme Court American Art ROBERT GILLILAND, Chair, Oklahoma Worker’s Compensation JEROD IMPICHCHAACHAAHA TATE, (Chickasaw), Composer Commission

988 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 BOB BURKE, Attorney, Author, Historian 1:30 – 6:00 PANEL C: GAMING WADE CHRISTENSEN, Attorney CO-MODERATORS: JAY JONES, Attorney MATTHEW MORGAN, (Chickasaw), Director of Gaming Affairs, 8:30 – 12:00 PANEL C: EDUCATION (continues from 1:30 – 5:30 p.m.) Division of Commerce, Chickasaw Nation MODERATOR: JOHN HARGRAVE, Immediate Past President, NANCY GREEN, (Choctaw), Green Law Firm, Ada, Oklahoma East Central University ERNIE STEVENS, Jr. (Oneida), Chairman, National Indian DWIGHT PICKERING, Director, American Indian Education for Gaming Association Oklahoma JONODEV CHAUDHURI, (Muscogee (Creek)), Chairman, QUINTON ROMAN NOSE, (Cheyenne), Executive Director, National Indian Gaming Commission Tribal Education Department National Assembly KATHRYN ISOM-CLAUSE, (Taos Pueblo) Vice Chair, National DAVID HOLT, (Osage), Oklahoma State Senate Indian Gaming Commission GORDON YELLOWMAN, (Cheyenne), Peace Chief, Assistant E. SEQUOYAH SIMERMEYER, (Coharie), Associate Executive Director of Education, Cheyenne and Arapaho Tribes Commissioner, National Indian Gaming Commission MELODY MCCOY, Native American Rights Fund ELIZABETH HOMER, (Osage), Homer Law Chartered MICHAEL HOENIG, General Counsel, National Indian Gaming 8:30 – 9:30 PANEL D: ETHICS ADDRESS Commission JOHN REIF, Justice, Oklahoma Supreme Court DANIEL LITTLE, Vice-President of Government Relations, 12:00 – 1:30 LUNCH FOR THE STATE, FEDERAL, TRIBAL Aristocrat Technologies Inc. JUDICIARY AND THE SOVEREIGNTY SYMPOSIUM FACULTY KYLE DEAN, Assistant Professor of Economics, Director, 1:30 – 5:30 PANEL A: THE CONCERNS OF THE JUDICIARY – A Center for Native American and Urban Studies, Oklahoma City FOCUS ON MUTUAL CONCERNS OF THE STATE, FEDERAL, University, Meinders School of Business AND TRIBAL BENCH SHEILA MORAGO, (Gila River Indian Community), Executive MODERATOR: TOM WALKER, (Wyandotte/Cherokee), Appellate Director, Oklahoma Indian Gaming Association Magistrate for the CFR Court for the Southern Plains Region of G. DEAN LUTHEY JR., GableGotwals Tribes, District Judge (Retired), Brigadier General (Retired), MICHAEL MCBRIDE III, Crowe and Dunlevy Army of the United States WILLIAM NORMAN, (Muscogee (Creek)) Hobbs, Strauss, TRICIA TINGLE, (Choctaw), Associate Director – Tribal Justice, Dean & Walker Office of Justice Services, Bureau of Indian Affairs 1:30 – 5:30 PANEL D: EDUCATION LEAH HARJO-WARE, Justice, Muscogee Nation Supreme Court MODERATOR: JOHN HARGRAVE, Immediate Past President, JARI ASKINS, Administrative Director of the Courts, Former East Central University Lt. Governor of Oklahoma, Former District Court Judge DAN LITTLE, Chairman, Board of Trustees, Oklahoma School LAUREN KING, (Muscogee (Creek)), Foster Pepper PLLC, of Science and Mathematics Appellate Judge – Northwest Intertribal Court System FRANK Y.H. WANG, President, Oklahoma School of Science WILLIAM P. BOWDEN, Major General (Retired), United States and Mathematics Air Force JABBAR BENNETT, Associate Provost for Diversity and 1:30 – 5:30 PANEL B: JUVENILE LAW Inclusion, Northwestern University MODERATOR: DEBORAH BARNES, Judge, Oklahoma Court of LEAH LYON, Director of Sponsored Programs, East Central Civil Appeals University STEVEN BUCK, Executive Director, Oklahoma Office of Juvenile PHILIP GOVER, Managing Director, Sovereign Schools Project, Affairs TEDNA FELICE HAMILTON, CIP Program Coordinator, Administrative ALEX RED CORN, Special Coordinator for Indigenous Office of the Courts Partnerships, College of Education, Kansas State University ROBERT DON GIFFORD, (Cherokee), Gungoll, Jackson, Box & PATRICK B. MCGUIGAN, Editor, CapitolBeatOK, Senior Editor, Devoll, Chief Judge, Kaw Nation The City Sentinel JAKE ROBERTS, Behavorial Health Director, White Eagle Health Center SHELDON SPOTTED ELK, Director, Casey Family Programs

The Sovereignty Symposium has been approved for 16 hours of judicial education credits, as well as 12 hours of credits for judges with juvenile dockets.

NOTICE State, tribal and federal judge training will be June 5 - 6, 8:30 a.m. - 5:00 p.m. daily, at Remington Park. Topics covered include implicit bias, Indian child welfare, violence against women, drug courts and criminal/full faith and credit of court orders. For information contact Connie Dearman at 918-758-1439. Lunch for state, federal and tribal judges and a Judiciary Mutual Concerns Panel will be held Thursday, June 8, noon - 5:30 p.m. at the Skirvin Hotel.

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 989 RESTORATION The Sovereignty Symposium XXX June 7 - 8, 2017 Skirvin Hotel u Oklahoma City, Oklahoma

Name:______Occupation:______

Address:______City:______State_____ Zip code______

Billing Address (if different from above)______City:______State_____ Zip code______

Nametag should read:______Other:______

Email address:______

Telephone: office______Cell______Fax______

Tribal affiliation if applicable:______

If Bar Association Member: Bar #______State______

16 hours of CLE credit for lawyers will be awarded, including 1.5 hours of ethics.

# of Amount Registration Fee Persons Enclosed $275.00 ($300.00 if postmarked after May 22, 2017) $175.00 June 8, 2017 only ($200.00 if postmarked after May 22, 2017) Total Amount We ask that you register online at www.thesovereigntysymposium.com. This site also provides hotel reg- istration information and a detailed agenda. For hotel registration please contact the Skirvin-Hilton Hotel at 1-405-272-3040. If you wish to register by paper, please mail this form to: THE SOVEREIGNTY SYMPOSIUM, INC. The Oklahoma Judicial Center, Suite 1 2100 North Lincoln Boulevard Oklahoma City, Oklahoma 73105-4914 www.thesovereigntysymposium.com Presented By THE OKLAHOMA SUPREME COURT and THE SOVEREIGNTY SYMPOSIUM

990 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 BOARD OF BAR EXAMINERS

New Lawyers Take Oath oard of Bar Examiners Chairperson Bryan Morris announces that 109 applicants who took the Oklahoma Bar Examination on Feb. 21-22 were admitted to the Oklahoma Bar Association on BTuesday, April 18, or by proxy at a later date. Oklahoma Supreme Court Chief Justice Douglas Combs administered the Oath of Attorney to the candidates at a swearing-in ceremony at the Oklahoma Judicial Center. A total of 142 applicants took the examination. Other members of the Oklahoma Board of Bar Examiners are Vice Chairperson Roger Rinehart, El Reno; Robert Black, Oklahoma City; Monte Brown, McAlester; Juan Garcia, Clinton; Tommy R. Dyer Jr., Jay; Robert D. Long, Ardmore; Loretta F. Radford, Tulsa; and Thomas M. Wright, Muskogee. The new admittees are:

Shar Fitzpatrick Agosto Alexis Morgan Gardner Qhaurium Keane Imagie Lisa Marie Bazzano Loader Brandon Ryan Gassaway Douglas Elliot Steven Beckelman Nikki LaShawn Godwin Catherine Rose Iwashita Larry Don Biddulph Bethany Sue Green Patrice Amber James Carl Austin Birkhead Jeremiah Brooks Gregory Nicole Elizabeth Johnson Stephanie Nicole Black Nathalie Solange Guerrero Ryan Andrew Jones Eli Coleman Bland Nicholas Lee Harness Yvonne Denise Jones Brady Matthew Brus Madelaine Ann Tack Hawkins Benjamin Edward Jury Ruth Natalie Calvillo Harmonniey Sha’Dale Cheadle Antonio Bryan Church Kaitlin Elizabeth Clarke Neil Barrett Cooley Brent Wayne Corley Kasey Ragsdale Curry Jordan Kae Dalgleish Josh Francis Desmond Sarah Elizabeth Dill Jesus Dario Elizondo A new lawyer stands as his name is called at the OU College of Law swearing-in ceremony. Marianela Estrella Schwabe Jennifer Dawn Ferguson Leslie Meltzner Hellman Zachary Mark Keen Daniel Joseph Fineberg Bryon Davis Helm Eric Svend Kroier Karl Thomas Fisher Shelby Yancy Hembree Donovan Joel Kurtz Nicholas James Foster Jessalyn Mae Hinson Joseph William Lang Jennifer Anne Franks Elise McKenna Horne Jennifer Lynn Lawmaster Stephanie Kay Fryar Nathaniel Passmore Howland Alison Bailiff Levine Jarrod Hunter Gamble Evan McQuaid Humphreys William Kevin Lewis

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 991 Abigail Michelle Patten Kelsey Rae Payton Jason Eric Pedraza Kayla Rae Petsch Kyle Reed Prince Alia Denise Ramirez Thomas Sullivan Reese Michelle Junko Reith Tiuanna Star Richards Kimberly Renee Roy Blake Andrew Sawyer Thomas Raymond Schneider Gessica Danielle Sewell Caroline Marie Shaffer Bayleigh Susannah Sharp A new attorney signs the Roster of Jimmie Floyd Shelton A new attorney displays his certificate Attorneys at the TU College of Law and Chelsea Danielle Shields at the OCU School of Law swearing-in out-of-state schools swearing-in reception. reception. Desiree Danielle Singer Kaitlin Brooke Magee Abilene Suzanne Slaton Charles L Watts Gabrielle Elyse Mandeville Matthew Lee Smothermon Danielle Suzanne Weaver Samantha J. Marchand Alexa Louise Stumpff Sean Ryan Webb Amber Lynne Masters Katherine Elizabeth Sullivan David Alan Whaley Christina Leigh McCarthy John Franklin ShawVan Mary Elizabeth Williams Telana Victoria McCullough Tjeerdsma Katie Michelle Wilson John Sheldon McMican Chandler Quinn Torbett Sheila Gayle Wilson Shana Nicole McMillan Katherine Jean Trent Samuel Bryan Withiam Kristen Marie Messina Jane Jee young Um Wyatt Evan Worden Zachary Riley Morgan Dalton Wayne Vandever Russell Earl Wrigg Courtney Morgan Najera Taylor Christian Venus Melissa Lynn York Roger Nayar Shannon Marie Walcher Courtney Lee Zamudio Patrick Carter Nichols Rachael Kathleen Want

Want to save some paper? Go online to

Volume 88 u MyOKBar and login. No. 7 u March 4, 2017 Select “Communication Preferences” and click on the empty box next to Bar Journal – Court Issue. A check mark will appear, showing you prefer the electronic edition. You’ll begin to receive an email when the issue is available online.

992 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 2017 SOLO & SMALL FIRM CONFERENCE

Thursday, June 22

3 – 6:30 p.m. Registration

6:30 p.m. Reception; 7 p.m. Dinner and Entertainment (Included in Seminar Registration Fee) Friday, June 23

7 a.m. BREAKFAST (Included in Seminar Registration Fee) Critical Technology Tools for Estate Planning for Oklahoma’s Trial of the 8:30 a.m. the Solo and Small Firm Practice Mom and Pop Century – The Crime Jim Calloway & Catherine Reach Dawn Hallman John Hersley & Larry Tongate 9:30 a.m. Break Microsoft Office 365: Improve Relocation – When Oklahoma’s Trial of the 9:40 a.m. Your Firm’s Collaboration and Harry Left Sally Century – The Crime, cont. Productivity Ginny Henson John Hersley & Larry Tongate Catherine Reach 10:40 a.m. Break Social Media – Do I Civil Discovery: Forms Oklahoma’s Trial of the 10:55 a.m. Really Have To? and Procedures Century – The Evidence Darla Jackson Cheryl Clayton Bob Burke

12 p.m. LUNCH (Included in Seminar Registration Fee) The Flexible Law Firm Navigating Tribal Oklahoma’s Trial of the Jim Calloway & Catherine Reach Court Practice Century – The Trial 1 p.m. Shannon Prescott Brian Hermanson 2 p.m. Break Extreme Makeover: Law Firm Basics of a DPS Revocation Oklahoma’s Trial of the 2:10 – Website Edition Hearing (and Update on Century – Reflections 3 p.m. Catherine Reach & Darla Jackson Recent Rulings) Retired Oklahoma Supreme Court Brian Morton Justice Steven W. Taylor

6:30 p.m. Reception; 7 p.m. Dinner and Entertainment (Included in Seminar Registration Fee)

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 993 Saturday, June 24

8:25 a.m. Remarks OBA President Linda Thomas 60 Tech Tips in 60 Minutes 8:30 a.m. Catherine Reach, Jim Calloway & Darla Jackson

9:20 a.m. Break The Ethics of Attorney-Client Contracts Trust Accounting (ethics) 9:30 a.m. and Engagement Letters (ethics) Darla Jackson Giny Hendryx & Jim Calloway

10:20 a.m. Break (Hotel check out) Solo Quick Takes Mitigating Cyber Risk The Hot Areas of Oklahoma Oil for Law Firms and Gas Legal Work in 2017 – 10:55 a.m. Heidi Shadid including a Discussion of Current Cases Mark Christiansen

LUNCH (Included in Seminar Registration Fee) 11:45 a.m. 50 Years of the Oklahoma Judicial Nominating Commission (.5 hours MCLE) Bob Burke Financial Literacy How to Read an Abstract Improve Your Legal Research 12:45 p.m. for Lawyers for Marketable Title Skills With Fastcase 7 Ted Blodgett Kraettli Epperson Jeff Asjes 1:35 p.m. Break Immersive Evidence: Virtual Reality in the Courtroom and Boardroom 1:40 p.m. Darin Fox & Kenton S. Brice

2:05 – What’s Hot & What’s Not in Law Office Management and Technology 2:30 p.m. Jim Calloway & Darla Jackson Approved for 12 Hours MCLE / 1 Hour Ethics

994 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 ONLINE REGISTRATION www.okbar.net/solo MAIL FORM CLE Registrar, P.O. Box 53036 Oklahoma City, OK 73152 FAX FORM 405-416-7092

REGISTRATION AND POLICIES

CANCELLATION POLICY HOTEL RESERVATIONS REGISTRATION, ETC. Cancellations will be accepted Call 800-788-2464 for Registration fee includes 12 at any time on or before June hotel reservations. Refer hours CLE credit, including one 8 for a full refund; a $50 fee to Oklahoma Bar hour of ethics. Includes all will be charged for Association when meals: evening buffet Thursday cancellations made on or reserving room and/or and Friday, breakfast buffet after June 9. block code 1706OBAOKL. Friday and Saturday, lunch No refunds after June 14. buffet Friday and Saturday.

REGISTRANT INFORMATION

Full Name: OBA #: Address: City/State/Zip: Phone: Fax: Email: Name and city as it should appear on badge if different from above:

GUEST INFORMATION Children participating in children’s activities must be 5 years of age or older. For children’s activities, members must register with the PDF or print form by June 8.

Adult guest name: ______

PARTICIPATING IN CHILDREN’S ACTIVITIES Child guest name : ______Age: ___ YES / NO Child guest name : ______Age: ___ YES / NO Child guest name : ______Age: ___ YES / NO Child guest name : ______Age: ___ YES / NO FORM CONTINUED ON NEXT PAGE – INCLUDE BOTH PAGES WHEN FAXING/MAILING

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 995 STANDARD RATES FOR OBA MEMBERS admitted before Jan. 1, 2015 CIRCLE ONE Early Attorney Only Registration (on or before June 8) $200 Late Attorney Only Registration (June 9 or after) $250

Early Attorney and One Guest Registration (on or before June 8) $300 Late Attorney and One Guest Registration (June 9 or after) $350

Early Family Registration (on or before June 8) $350 Late Family Registration (June 9 or after) $400 SPECIAL RATES FOR OBA MEMBERS OF TWO YEARS OR LESS admitted on or after Jan. 1, 2015 CIRCLE ONE Early Attorney Only Registration (on or before June 8) $125 Late Attorney Only Registration (June 9 or after) $150

Early Attorney and One Guest Registration (on or before June 8) $225 Late Attorney and One Guest Registration (June 9 or after) $250

Early Family Registration (on or before June 8) $275 Late Family Registration (June 9 or after) $300 CHILDREN’S ACTIVITIES supervision provided – must be 5 years of age or older

For children’s activities, members must register with the PDF or print form by June 8. Friday Morning Unlimited game play, laser tag and bowling $15 X (number of children) _____ = $______

Friday Afternoon Swimming at the Family Zone Cabanas $15 X (number of children) _____ = $______(child must be able to swim)

Friday Evening Movie (refreshments provided) $8.50 X (number of children) _____ = $______$10.50 X (number of adults 13+ yrs old) _____ = $______Saturday Morning Choctaw elders craft class of beading and storytelling $10 X (number of children) _____ = $______TOTAL FOR CHILDREN’S ACTIVITIES $______PAYMENT INFORMATION

Make check payable to the Oklahoma Bar Association and mail registration form to CLE REGISTRAR, P.O. Box 53036, Oklahoma City, OK 73152. Fax registration form to 405-416-7092. For payment using: VISA Mastercard Discover American Express Total to be charged: $ Credit Card Number: Expiration Date: Authorized Signature:

996 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 FROM THE EXECUTIVE DIRECTOR

Who Spoke at Your High School Graduation? By John Morris Williams

I ask this question more often mean to you in high school. My point is that most of life than perhaps I should. I always Invariably, about 95 percent of is like high school graduation try to ask this question when the people I ask this question speakers. They come. They go. speaking to our leadership class- recall exactly. I have even asked Even on the biggest day of your es on something more than the this question to a group of peo- young life, the person at the date the OBA was organized. ple in their 60s, and they too still front of the room giving their (We have a leadership inspired version of the class forming soon for lessons for a successful this year, so be sure to life didn’t leave an get your applications imprint. These speakers in.) I’m not too con- are like issues – they cerned about giving pop up, they get noisy away any secrets here and then they go away because I seriously to be replaced by some- doubt many of the thing else that seems generation X, Y or mil- compelling for the lennials read my col- moment. umn. Perhaps if I had The lasting impres- my own app and keep sion is not the words it down to about 144 you hear or speak. It is characters, I might the way you make peo- have a better following ple feel. It is how you and everyone would be treat them. I must con- spared the tedium of my fess I have been guilty attempts at being inter- The lasting impression is not of not remembering this esting every month for the words you hear or speak. It is valuable lesson. Think almost 14 years. about it for a minute. Okay, back to the the way you make people feel. It is Think about the people question at hand. (See, how you treat them. you care about the I got tedious already.) most, the people who When I ask who the you admire or respect. graduation speaker was, Then think about the I rarely get more than 20 percent people you avoid, disdain and of the group who can tell me. recall who was not kind to them. downright just do not like. Per- Many who remember do so In fact, I should probably warn haps the most common thread to because they were the speaker. some of you there are people your attraction or avoidance is Of course, they remember. Most who are furious, and now how these people make you feel. armed, who still have a bitter do not recall. I then follow up As lawyers, we face many with the question of who mis- taste in their mouths about that “prank” in high school. obstacles. Oftentimes our ob- treated you, bullied you or was stacles are other people. Other

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 997 lawyers, witnesses, support per- large sums of cash upon the lifetime of goodwill in an sonnel, clerks, bailiffs and even audiences, is markedly offensive instance. Being present and just judges stand in our way of or appears with an item of cloth- reciting the prepared text makes obtaining what we desire. It is a ing revealing too much, no one you a graduation speaker. Being funny thing; how you behave in will pay much attention to the anything less makes you the any given case will cast a shad- speaker and soon forget them subject of bitter remembrances ow that may last a lifetime. The altogether. No relationships will decades later. case, like a graduation speech, be formed while we check our Be kind when you can, will drift off to some unknown watches or phones to see how we could all use some good recesses in the memory of most soon it will be over. Test me out memories. involved. However, should you here. Look around the room and be exceptionally kind or excep- see how many people are actual- tionally rude, dishonest or just ly paying attention. Absent my plain ol’ nasty that will leave a three examples above, I bet lasting mark. phones are checked, watches This month some of us will looked at and children squirm To contact Executive Director attend graduations and see for it to be over. Williams, email him at johnw@ someone at the front of the room My point here is that being okbar.org. proclaiming the wisdom of the kind and making people feel ages. Unless he or she showers welcomed and liked forms a

998 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 LAW PRACTICE TIPS

Cyber-Attacks: Is It Really Not If You Will be Attacked, but When? By Jim Calloway

In last month’s column they may have a victim with winds reportedly exceeding 80 “Backing Up, Like Breaking deep pockets, the ransom mph, had temporarily Up, Is Sometimes Hard to demand will be much larger. knocked out our internet ser- Do,”1 I discussed the chal- vice, email, phone system and Ransomware is not the only lenges of having good backup access to files on the network. potential threat that might procedures. There are many good reasons come between you and your for outsourcing more systems, Recently, there were news law firm data, although it is tools and IT resources to the reports of a Providence, Rhode certainly the most rapidly cloud, but doing so renders Island, law firm that was held growing one. Hard drives fail you more dependent on inter- hostage by ransomware black- and internet outages, although net access. mailers for 90 days.2 Just imag- rare, still do occur. People make ine 90 days without There are always access to any file on lessons to be learned the law firm’s network from such a situation. or any of the individu- Some of the unique al workstations. The lessons we learned blackmailers were included: 1) if many demanding $25,000 people in the same in ransom paid in bit- area lose internet ser- coin to restore access. vice, it impacts your The news reports were mobile phone service about the law firm’s locally as many peo- litigation against its ple attempt to use insurer for not paying their phones for data a claim for $700,000 in transfers they normal- lost billing as the ly would have done firm’s 10 lawyers were with their computers left unproductive and and 2) you may inefficient. I have no doubt the mistakes and delete things they believe you can do many firm also sustained a signifi- didn’t intend to delete. Recent- things with your mobile devic- cant amount of damage to ly we have had several remind- es, but if you don’t have work- relationships with many of ers that weather issues can ing email on your mobile its clients. knock out power, which can device or VPN access you can- render computers and net- not do many of those things. The law firm’s situation works inaccessible. marks a change we have seen There were no long-term with the ransomware attacks. On Monday, May 1, employ- negative data consequences Previously the typical ransom ees of the Oklahoma Bar Asso- for the OBA. Everything was demanded was in the hun- ciation reported to work to restored by Monday afternoon dreds rather than the thou- learn that while we did have and we believe nothing was sands of dollars. Now when power, the previous power lost. Personally, I was able to the cyber criminals recognize outages caused by straight-line rely on my MiFi card which

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 999 gave me access to many files recognize that “filling out the it could be hours or days on Dropbox. Like many of my form” will not cover all of the before you are allowed back co-workers, I also took the unique and special situations into your office. opportunity to sort through, in your law firm or your cli- What is the plan? It really discard and scan/file some ents’ businesses. As a result, depends on the law firm and loose paperwork. additional contingencies may the situation. If you are using need to be addressed in your But the idea of a 10-lawyer cloud-based practice manage- plan. law firm being locked out of ment software and everything all of their files for 90 days is It is also important to recog- has been scanned into digital simply horrifying. Hopefully nize that all data breaches are client files, then the plan is to they at least had access to their not equal. A ransomware deploy people where they will calendars on their mobile attack may cripple your law have computers and internet devices. Ninety days is a lot of firm, but your response to this access. Maybe some people time for something serious to will be totally different than a can work from home or maybe go wrong. data breach that appears tar- you know a friendly local law- geted to a specific client or yer with some extra office I recently had the opportuni- matter. space. Then the next decision ty to hear my podcast team- is how and where to forward mate, Sharon Nelson, and her PREPARATION the office telephones so some- husband, John Simek, both of The literature says you one can answer them. Then Sensei Enterprises, discuss should form an incident you have to figure out how data security and data disas- response team to conduct an staff will communicate. Does ters. They cite Bruce Schneier,3 incident threat analysis before everyone have the ability to a well-regarded expert on you create your various remotely log into the office technology security who I responses for different scenari- email or will you be using a have followed for many years, os. If you are a solo or small- lot of text messages that day? as saying it is unrealistic to firm lawyer, then you will assume one can build suffi- If you don’t have informa- likely fill the role of the inci- cient IT safeguards to keep tion deployed in the cloud, dent response team. But you evildoers out of your system. have you set up a VPN or don’t have to be a cyber- A mantra to identify the other remote access for some security expert to create this threats and protect the net- or all of the office employees plan. You just have to be able work has evolved. According to log in the office computers? to identify what types of secu- to Ms. Nelson, the new frame- Will this work if the comput- rity breaches or other business work is “identify, protect, ers have not been turned on interruptions could happen. detect, respond and recover.”4 for the morning? You can seek expert guidance NOT IF, BUT WHEN if needed. If you have no way to access any of the office data from That idea that all businesses Let’s start with a simple outside of the office, then your should prepare now to re- scenario that doesn’t require primary objective will be tri- spond to a security breach much technology much exper- age. In that scenario, you need when it happens, not if it tise with technology. access to your calendar so you happens, is unsettling. This is Scenario 1: A Disturbance can reschedule office appoint- critical for all of your business in the Neighborhood ments and meet court appear- clients as well as your law ances and deadlines. If your firm. But, the idea should also You arrive for work early mobile devices have your provide motivation to take one morning and find a road- calendar on them, they will action now. block with several law become your primary tool. If enforcement officers and vehi- All businesses need an inci- you have employees who are cles and perhaps a news team dent response plan (IRP). A unable to do anything produc- or two, or you have police few internet searches will tive, then they should be sent tape all around your office. locate some form incident home with instructions to stay Whether it is a crime scene response plans that can be close to their phone to learn investigation or an active used as guidance. Some are when they will be called back tense stand-off situation, law free. Some are available for into work. enforcement informs you that purchase. It is important to

1000 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 As you can see from this quickly. Note that this would require or prefer professional exercise, the value of planning be the “hold down the power assistance. But the Windows is thinking things through and button method” for emergency recovery tools are designed making preparation during a shutdown, not the normal with the end user in mind. (Of calm and reflective time rather method. You can normally course, this assumes that the than in the middle of a frus- accept the risk of corrupting a firm is using a Windows based trating scenario. Setting up single open document to keep system. Some firms are now your IRP also means that you a workstation in operation. using Macs, which are less have accumulated much of susceptible to ransomware but Paying the ransom is prob- the needed information in may still have vulnerabilities.)6 lematic on several levels, but advance and preserved it in a many businesses will decide to Note the difference between way that you can access it do so if the amount is some- a ransomware attack and other without access to the physical what reasonable. In fact, Sha- types of malware or spyware. office. A list of contact infor- ron Nelson related that she Typically, a ransomware attack mation for all clients with had heard of a firm that has happens in real time. Someone active files whether on paper established a purse of bitcoin clicks on something or opens a or preserved digitally is very in advance for just such a sce- file and the ransomware is important. Some phone num- nario. But many law firms will released to start encrypting bers for courthouse staff may not want to take that action. files. It happens fast. That also be useful. If you don’t recall means it is likely that a backup your passwords, do you have that is a few hours old will not a password manager available contain the infection. via your mobile device or can the password for critical sys- On the other hand, a spy- tems like your practice man- That countdown ware installation or other type agement software be reset by of data breach may have using email on your mobile will generate occurred days or months phone? Do you have an exist- before. Reformatting the hard ing answering service that you incredible stress. drive and installing your back- can forward the phones to in Your law firm is up could install a “backup” of the case of an emergency and the infection. (It is also very what information is needed to effectively dead in possible that your backup pro- accomplish that? the water. vider could scan and kill the malware.) If you honestly Scenario 2: Ransomware Attack believe your system has been A computer in your office breached, it may be worth suddenly displays a graphic In theory, assuming you your time to have a digital indicating that the computer have appropriate backups and forensics expert examine the has been encrypted and dis- images, here’s how a recovery system to see what has been plays a clock counting down would take place. The hard accessed and give the system a the remaining time you have drives on computers would be digital cleaning. to pay the ransom or lose your reformatted to destroy all data. Knowing what information data forever. That countdown A system image recovery disk was compromised may inform will generate incredible stress. would then be used on each you as to what obligations you Your law firm is effectively computer to restore it to a may have either under the dead in the water. prior point in time. These sys- Oklahoma Security Breach tem image recovery disks This part of your IRP likely Notification Act or general must be created in advance will be developed with input good business principles. As I using Windows5 or another from your IT professional. For read 24 Okla. Stat. 162, notifi- third-party tool. Then your example, if one computer has cation requirements only data backup can be used to been encrypted with ransom- attach when an individual’s restore any missing data, i.e. ware, you may have a very name has been attached to a documents, billing records, short amount of time to “save” social security number, driv- calendar entries, etc. other computers by physically er’s license (or alternative state unplugging them from the Again, that is the theory. The ID in lieu of driver’s license) network or turning them off reality is that some firms may or financial account numbers,

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 1001 credit card numbers and debit lawyer with more expertise Mr. Calloway is OBA Manage- card numbers along with a than your firm regarding data ment Assistance Program direc- password or access code if breaches and perhaps even a tor. Need a quick answer to a tech applicable. I will leave the public relations firm. problem or help solving a man- question of whether, depend- agement dilemma? Contact him Once you have the plan ing on the information at 405-416-7008, 1-800-522-8065 drafted, you need to commu- breached, a lawyer’s ethical or [email protected]. It’s a free nicate with any staff who were duty to a client would create a member benefit! not involved in the creation notification duty greater than that it exists and what their that required by statute for 1. Jim Calloway, Backing Up, Like Breaking obligations are under the plan. Up, Is Sometimes Hard to Do, 88 Okla. B.J. 770 another day. If you have infor- Stress to your staff that they (2017), http://www.okbar.org/members/MAP/ mation covered by HIPAA, it MAPArticles/HotPracticeTips/BackingUp- are not official spokespersons LikeBreakingUp.aspx [https://web.archive. has its own set of breach noti- for the firm and they should org/web/20170504142923/http://www.okbar. fication requirements. org/members/MAP/MAPArticles/Hot never post about any possible PracticeTips/BackingUpLikeBreakingUp.aspx]. CONTACT INFORMATION data breach or other office 2. Stu Sjouwerman, Ransomware Causes 90-day Downtime And 700K Damages For Law IS AN IMPORTANT issue on social media. Firm Who Then Sues Their Insurer, KNOWBE4 ELEMENT (May 3, 2017), https://blog.knowbe4.com/ FOLLOWING THE PLAN ransomware-causes-90-day-downtime-and- Larger firms will want to 700k-damages-for-law-firm-who-then-sues- have contact information I can assure you that no mat- their-insurer. ter how good your plan, it is 3. About Bruce Schneier, SCHNEIER ON for various staff members SECURITY, https://www.schneier.com/blog/ involved with the plan. But all likely that things won’t go about/ [https://web.archive.org/web/20170224 according to plan. There are 173821/https://www.schneier.com/blog/ sizes of firms would benefit to about/]. have contact information for several military-based clichés 4. Link to short podcast “Passing Your IT about plans changing when Security Audit” https://soundcloud.com/ all staff, including home or legaltalknetwork/aba-techshow-2016-passing- mobile phone numbers when the battle commences. But a your-it-security-audit data breach or work stoppage 5. What are the system recovery options in available. Windows?, https://support.microsoft.com/en- of any kind is a frustrating us/help/17101/windows-7-system-recovery- You will definitely want to and emotional situation. You options [https://web.archive.org/web/ have insurance company con- 20160822044058/https://support.microsoft. will be far better off with a com/en-us/help/17101/windows-7-system- tact information as well as plan to refer to and ready recovery-options]. copies of your policy. Some access to the phone numbers 6. Claire Reilly, Apple Users, Beware: First Live Ransomware Targeting Macs Found ‘In might believe that this is a of those you might need to The Wild’, C/NET (March 6, 2016 6:28 PM good time to examine just call in for reinforcement. PST), https://www.cnet.com/news/apple- what cyber insurance you users-beware-first-live-ransomware-targeting- There is a potential addition- mac-found-in-the-wild/ [https://web.archive. have purchased and whether org/web/20160816013704/http://www.cnet. it is enough. al positive byproduct of all of com:80/news/apple-users-beware-first-live- this work. Your firm may now ransomware-targeting-mac-found-in-the- Other contact information be in a much better position to wild/]. that may be needed include advise your business clients your outside IT consultant, a about, and assist them with, digital forensics consultant, a their IRP.

1002 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 BOARD OF GOVERNORS ACTIONS Meeting Summary

The Oklahoma Bar Association County Bar Association BOARD MEMBER REPORTS Board of Governors met at the monthly meeting. Oklahoma Bar Center in Oklaho- Governor Coyle reported he REPORT OF THE ma City on Monday, March 20. attended the Oklahoma Coun- VICE PRESIDENT ty Bar Association meeting REPORT OF THE and Oklahoma Criminal Law- Vice President Castillo PRESIDENT yers Association meeting. reported she attended the new Governor Fields reported he President Thomas reported governors orientation, meeting attended the new Board of she met with Cathy Chris- with Executive Director Wil- Governors training at the bar tensen regarding the Women liams, Communications Direc- center, McCurtain County Bar in Law Conference and other tor Manning and President Association meeting and OBA issues, participated as a Thomas to discuss potential McAlester Lions Club meet- judge in the ABA Mediation speakers for the Annual Meet- ing. He presented Choctaw Competition held at the OU ing and OBF Board of Trustees County and Pushmataha College of Law, met with Exec- meeting. utive Director Williams, Com- County with their juror appre- REPORT OF THE munications Director Manning ciation plaques. Governor PRESIDENT-ELECT and Vice President Castillo Gotwals reported he attended the Tulsa County Bar Associa- regarding potential Annual President-Elect Hays report- Meeting speakers, participated tion Membership Committee ed she participated in the meeting, OBA Professionalism with other OBA members at OETA Festival, traveled to the OETA fundraising festival, Committee via his legal assis- Chicago for the ABA Bar tant, Quality Assurance Panel met with Executive Director Leadership Institute, attended Williams, Legislative Liaison meeting, inn of court pupilage the new OBA governors orien- group presentation on sentenc- Clay Taylor and Sen. Julie tation and reviewed issues for Daniels regarding proposed ing, OBA Family Law Section president-elect 2017 and meeting and law library meet- JNC bills, assisted Washington 2018 planning. County Associate District ing. He also served as a judge Judge Russell Vaclaw with a REPORT OF THE for the regional Mediation question and answer session EXECUTIVE DIRECTOR Competition held at the OU following his presentation to law school, TCBA Family Law Executive Director Williams Section meeting and a meeting the Day Break Rotary Club on reported he attended Solo & a fair and impartial judiciary as TCBF president with the Small Firm Conference Plan- TCBA executive director for in Oklahoma, worked with ning Committee meetings, Educational Programs Director planning and punch lists. Annual Meeting planning Governor Hennigh reported Damron on the 2017-2018 meetings, OETA Festival, Leadership Academy and met he attended the Garfield monthly staff celebration, County Bar Association meet- with Washington County Bar meeting with OSU landscape Association officers for a plan- ing and new board member architecture students on a orientation. Governor Hicks ning session for the Board of volunteer project, legislative Governors visit in August. She reported he attended the new meetings, new governors ori- board member orientation, attended the Communications entation, YLD board meeting, Committee meeting via Blue- Tulsa County Bar Foundation meetings with web design Golf Committee meeting and Jeans, Oklahoma Bar Founda- vendors, Legislative Monitor- tion Trustees meeting, OBA worked on TCBF matters with ing Committee meeting and a the executive director. Gov- High School Mock Trial finals meeting with President Thom- in Tulsa and the Washington ernor Hutter reported she as regarding the LSC funding attended the Cleveland letter.

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 1003 County executive meeting and discussed is an award to honor new chair of the Work/Life Legislative Monitoring Com- the late Fred Slicker, but the Balance Committee. mittee via phone. Governor OBA already has the Neil REPORT OF THE Oliver reported he attended Bogan Professionalism Award. GENERAL COUNSEL the Payne County Bar Associa- Mr. Slicker’s book will again tion monthly meeting, new be given to new lawyers. Gov- General Counsel Hendryx board member orientation and ernor Porter reported the reported she has received noti- Law Schools Committee tour Rules of Professional Conduct fication of legal action against of the TU College of Law. Committee heard a presenta- herself and three staff mem- Governor Porter reported she tion from MAP Director Jim bers, but has not yet been attended the Board of Tests for Calloway on limited scope served. A written report of Alcohol and Drug Influence representation. Governor Hut- PRC actions and OBA disci- meeting and judged the ABA ter reported the Solo & Small plinary matters for February Client Counseling Competi- Firm Conference Planning was submitted to the board tion held at the OU College of Committee is working on for its review. Law. Governor Tucker report- including family friendly ed he attended the OBA Law activities this year. Governor PROPOSED AMENDMENT Day Committee meeting, Hutter reported the Legislative TO RULES OF THE Muskogee County Bar Associa- Monitoring Committee met SUPREME COURT ON LICENSED LEGAL tion meeting and county bar and has selected a sticky note INTERNSHIP Law Day Committee meeting. pad in the shape of the USA to RULE 2.1A(1)(G) Governor Weedn reported he give to legislators. The pad attended the Ottawa County will have the email address of Legal Intern Committee Bar Association meeting.Gover- a new service the committee Chair H. Terrell Monks nor Will, unable to attend the will begin providing to legisla- reviewed the proposed meeting, reported via email he tors – free legal research on the amendment to supplement the attended the February Young impact of proposed bills. Exec- current requirement that a law Lawyers Division meeting, utive Director Williams com- student be registered with the YLD orientation and new board plimented the committee on Oklahoma Board of Bar Exam- member orientation. doing a good job and meeting iners with “or provide a crimi- REPORT OF THE YOUNG monthly. Governor Tucker nal background report from LAWYERS DIVISION asked board members to look the State of Oklahoma and the at the list of counties with no student’s prior state(s) of resi- Governor Neal reported he Law Day chairpersons and to dence, if different.” attended the YLD orientation help recruit volunteers. Work and chaired the YLD board continues on the TV show and It was explained the change meeting. He said the division promotion efforts. Governor would allow more law stu- will take on the young adult Hutter reported the Diversity dents to assist in giving legal guide as a project to review Committee will hold a CLE on advice – increasing access to for updates. prosecuting 42 U.S.C. §1983 justice. Mr. Monks said the cases, and David Lee will be Supreme Court supports the REPORT OF THE SUPREME change and encourages actions COURT LIAISON the speaker. They have sched- uled their awards presentation that would allow the amend- Justice Edmondson reported for Oct. 19 at ment to be in place for the fall the newest member of the 6 p.m. at the Oklahoma Judi- semester. The board voted to court, Justice Patrick Wyrick, cial Center. The Law School approve the amendment, to has been officially seated. Bootcamp event will take waive the member comment period and to send the amend- BOARD LIAISON REPORTS place Saturday, Oct. 21, at the bar center. Governor Hicks ment to the Supreme Court for Governor Gotwals reported reported the Access to Justice its consideration. the Professionalism Com- Committee is developing LEGISLATIVE REPORT mittee will conduct a profes- procedures for emergency sionalism symposium this VPOs and had questions about Legislative Liaison Clay year. They will revisit the pending legislation. Governor Taylor reviewed a handout committee’s mission and Weedn reported former board containing facts including five new admittee pledge. Being member John Kinslow is the bills to watch. Questions were

1004 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 asked, and discussion JUDICIAL NOMINATING Williams shared the back- followed. COMMISSION ground of legal aid clients and PROCEDURE FOR AMENDMENTS TO the great need for pro bono ELECTING LAWYER services. The board approved RULES OF PROFESSIONAL MEMBERS CONDUCT mailing the letter. OBA mem- The board approved the pro- bers will be encouraged to Rules of Professional Con- cedure used for many years to contact their U.S. legislators. duct Committee Chair Paul conduct elections of lawyer OETA FESTIVAL Middleton reviewed the pro- members to the Judicial Nomi- posals recommended by the nating Commission. President Thomas reported committee for amendments to 24 lawyers volunteered March Rule 1.18 Duties to Prospective LETTER SUPPORTING 6 to take pledges to support Client, Rule 3.8 Special CONTINUED FUNDING OETA, Oklahoma’s statewide Responsibilities of a Prosecu- FOR LEGAL SERVICES PBS TV station. A record high tor, Rule 5.3 Responsibilities CORPORATION OF of nearly $11,000 was raised in Regarding Nonlawyer Assis- AMERICA private donations from bar tants, Rule 7.1 Communica- President Thomas directed members, keeping the OBA in tions Concerning a Lawyer’s the attention of board mem- the highest donor category. Services, Rule 7.2 Advertising bers to a draft of a letter she During the evening, she was and Rule 7.3 Direct Contact plans to send to Oklahoma’s also able to promote the with Prospective Clients. The U.S. congressmen and senators upcoming Ask A Lawyer TV comments received on Rule 7.3 urging them to support fund- show that aired April 27 were reviewed. General Coun- ing for LSC, which allows on OETA. sel Hendryx said the proposed Legal Aid Services of Oklaho- NEXT MEETING amendments were published ma and Oklahoma Indian last fall. She noted the pro- Legal Services to provide free The Board of Governors met posed changes to Rule 7.2 legal services to Oklahomans April 14 in McAlester and were not substantive. The who cannot afford to pay for May 19 in Oklahoma City. A board voted to approve the legal services. She said the summary of those actions will amendments and to send them proposed federal budget for be published after the minutes to the Supreme Court for its the next fiscal year will elimi- are approved. The next board consideration. nate LSC funding that would meeting will be at 3 p.m. be devastating to our state’s Friday, June 23, at the Choctaw most vulnerable citizens. As Casino Resort in Durant in the former LASO executive conjunction with the Solo & director, Executive Director Small Firm Conference.

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 1005 BAR FOUNDATION NEWS Oklahoma Bar Foundation Announces 2017 Court Grant Awards By Candice Jones

The Oklahoma Bar Founda- tion is proud to announce its award of grants to 11 Oklaho- 2017 Grant Recipients ma district courts for 2017 District Court of Adair County – $13,890 funding. The Grants and 2 – 60” interactive display boards Awards Committee recently held interviews with judges District Court of Craig County – $5,915 and court clerks from counties Courtroom audio system across the state, more than half of whom were applying for an District Court of Garvin County – $14,490 OBF grant for the first time. Audio and visual equipment for new courtroom The Board of Trustees unani- District Court of McClain County – $1,458 mously approved the commit- Digital recording system for courtroom and tee’s recommendation to grant 2 digital transcription kits for court reporting funds to all 11 applicants, total- ing $96,564. District Court of McIntosh County – $11,133 Audio equipment for courtroom The majority of application requests were for updated District Court of Muskogee County – $7,145 audio, visual and recording Smartboard equipment used in court pro- ceedings. The need for such District Court of Pottawatomie County – $2,397 equipment stems from outdat- 3 digital recorders ed and obsolete equipment in Pottawatomie County Juvenile Division – $9,417 many courthouses and the lack 7 Microsoft Surface Pro tablets of funds to replace the equip- ment. Current systems are District Court of Okmulgee County – $11,230 beginning to malfunction and PA system in courtrooms software compatibility issues District Court of Sequoyah County – $14,919 arise. As a result, court person- 70” Smartboard nel must often use their own personal computers and equip- for courtrooms ment to get by until new equip- District Court of Woodward County – $4,570 ment can be purchased. 100” fixed-screen projector with accessories The Court Grant Fund was established in 2008 and has since made awards to 53 of the court grant process we get About The Author closer to achieving this goal.” 77 district courts in Oklahoma. Candice Jones is “It is a priority of the OBF Funding of court grants is director of devel- Board of Trustees to provide made possible by generous opment and com- funding to courts in every Cy Pres Awards designating munications for county of the state,” said the Oklahoma Bar Foundation the Oklahoma Patrick O’Hara, Grants and as the recipient. Bar Foundation. Awards Committee chairman. “With each cycle of our yearly

1006 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 Your support changes lives!

FELLOWS PROGRAMS – Join one of the Fellows Giving Programs.

Fellows – for individuals $100/year Sustaining Fellow $200/year Contributing Fellow $300/year Benefactor Fellow $500/year Leadership Fellow $1,000/year Governing Fellow

Community Fellows – for organizations or businesses $1,000/year Community Partner $2,500/year Community Supporter $5,000/year Community Champion $7,500/year Community Pillar $10,000/year Community Cornerstone

MEMORIALS & TRIBUTES – Make a tribute or memorial gift in honor of someone. OBF will send a handwritten tribute card to them or their family.

UNCLAIMED TRUST FUNDS – Unclaimed trust funds can be directed to the OBF. Please include the client name, case number and as much detailed information as possible about the funds on your company letterhead with the enclosed check. Give online at www.okbarfoundation.org/donate INTEREST ON LAWYER TRUST ACCOUNTS (IOLTA) – OBF Prime Partner Banks give at higher interest rates, so more money is Mail checks to OBF, P.O. Box 53036, Oklahoma City, OK 73152 available for OBF Grantees to provide legal services. Select a Prime Partner Bank when setting up your IOLTA account: BancFirst, Bank Schedule a presentation for of Oklahoma, MidFirst Bank, The First State Bank, Valliance Bank, your group or business by First Oklahoma Bank Tulsa, City National Bank of Lawton, Citi- contacting Candice Jones, at zens Bank of Ada, First Bank & Trust Duncan. [email protected].

Contact the OBF office at CY PRES AWARDS – Leftover monies from class action cases and 405-416-7070 or email other proceedings can be designated to the OBF’s Court Grant Fund [email protected]. or General Fund as specified.

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 1007 YOUNG LAWYERS DIVISION

Hope and Promise With Future Generations By Lane R. Neal

Last month, I had the privi- lege of participating in the swearing-in ceremonies for the February bar passers. I wish all lawyers would attend these ceremonies periodically throughout their careers. It really is a great experience. The faces of our new col- leagues were full of so much hope and promise as they recited the Oath of Attorney. I am excited to see where they go and the things they do throughout their careers. Following each of the three ceremonies, the YLD hosted a reception for the new admi- tees, their families and friends. I would like to take this opportunity to give a special thank you to Brittany Byers and Melanie Christians, co- chairs of the YLD New Attor- ney Orientation Committee, for putting on a great event. This was the first swearing-in ceremony for both board TU College of Law 3L students get ready for a mock bar exam with breakfast members in their roles as com- provided by the YLD. mittee co-chairs. They did a fantastic job! Also, the event took a mock multistate bar back, it is something we may was supported by Jordan exam. This event was headed develop with the other Okla- Haygood and Brandi No- by Brad Brown, YLD board homa law schools in the com- wakowski, YLD Executive member from Tulsa. Mr. ing years. Brown facilitated the entire Committee members. We look The YLD has also started breakfast, which was well forward to doing it again in working on a new project. As attended. It was a great the fall. some of you may know, the opportunity to speak with 3Ls OBA has published a young In April, the YLD also spon- who will soon be joining our adult guide to provide to high sored a breakfast for 3Ls at the ranks. This was a first for the school students and young TU College of Law before they YLD and, based on the feed-

1008 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 people. The guide provides Lastly, if you have not information about the rights signed up for the YLD Mid- and responsibilities associat- year Meeting/Solo & Small ed with turning 18. The Firm Conference, it is not too young adult guide has not late. The dates are June 22-24 been updated in several and it will be held at the years and is in need of revi- Choctaw Casino Resort in sion. The YLD has created a Durant. It will be a great event new committee co-chaired with many opportunities to by Nathan Richter and network and learn. I hope to Blake Lynch to bring the see you there! young adult guide up to date. Once it’s updated, About The Author we will be looking at re- establishing the mobile app. Lane R. Neal prac- This will hopefully increase tices in Oklahoma its availability and use. City and serves Switching from a publica- as the YLD chair- tion to a mobile app would YLD Chair Lane Neal speaks to new lawyers person. He may also have the benefit of sav- at the spring swearing-in ceremony. be contacted at ing on publishing costs and [email protected]. make it easier to update in taking but will provide a great Keep up with the the future. This is a big under- resource for young people YLD at www.facebook.com/obayld. across Oklahoma.

FREE MEMBER BENEFIT

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 1009 FOR YOUR INFORMATION

Courthouse Complex Named for Retired Justice Taylor The Pittsburg County Board of County Com- missioners passed a resolution officially naming the Pittsburg County Courthouse and the Pitts- burg County Courthouse Annex as the Justice Steven W. Taylor Courthouse Complex. The resolution specifies that “The Pittsburg County Courthouse and the Pittsburg County Courthouse Annex will remain the same when referred to alone, but will be considered the Jus- tice Steven W. Taylor Courthouse Complex when referring to both buildings.” “It’s unbelievable – and I am very humbled by it,” Justice Taylor said. “I will continue to live my life in such a way as to earn this.” Surprising Retired Justice Steven Taylor (right) with the The request to name the complex in Justice announcement of naming the courthouse complex in his Taylor’s honor came from District 18 District honor are 2011 OBA President Deborah Reheard and Judge James Bland who conferred with mem- District Judge James Bland. Ms. Reheard holds a drawing of the memorial, and Justice Taylor’s portrait will be bers of the Pittsburg County Bar Association displayed in the complex. The presentation took place at and other attorneys as to the best way to honor the Pittsburg County Bar Association Law Day banquet. Justice Taylor.

OBA Law Day Committee Wraps Up Another Successful Year The OBA Law Day Committee would like to thank everyone who helped make Law Day 2017 a success! This year 219 lawyers in 28 different counties volunteered to par- ticipate in the Ask a Lawyer community service where legal questions were answered for free by phone and email. Nearly 1,500 phone calls were received and more than 365 email questions were answered. Thirty-three county bar associa- tions also planned and hosted activities including contests for school children, Law Day banquets, mock trials, courthouse tours and much more. Law Day Committee members Richard Vreeland, Allison Roso and Katheryn Bell answer email questions during the Ask A Lawyer event on April 27.

Bar Journal Takes Summer Break The Oklahoma Bar Journal theme issues are taking a short break. The next issue, devoted to “Technology and Office Management” will be published Aug. 19. You’ll still receive issues containing court material twice a month in June and July. Have a safe and happy summer!

1010 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 OBA Member Resignations The following members have resigned as members of the association and notice is hereby given of such resignation: Richard Douglas Agnew Stephen Mark Hill Oishy Reza OBA No. 21912 OBA No. 4210 OBA No. 32659 Agnew & Foster PLLC 75-5782 Kuakini Hwy #507 190 Silo Hill Road P.O. Box 302551 Kailua-kona, HI 96740 Madison, AL 35758 Austin, TX 78703 Robert Blake Lee Matthew Brady Welde Morris D. Bernstein OBA No. 21448 OBA No. 30290 OBA No. 16087 P.O. Box 939 16254 S.W. Holland Lane 1712 S. Owasso Ave. Joplin, MO 64802 Sherwood, OR 97140 Tulsa, OK 74120 Kyme A.M. McGaw OBA No. 20135 1700 7th Avenue, Suite 2100 Seattle, WA 98101

LHL Discussion Group Hosts Important June Meeting Upcoming Dates “Work/Life Balance” will be the topic of the June 1 meeting of the Don’t forget the Lawyers Helping Lawyers monthly discussion group. Each meeting, Oklahoma Bar Center always the first Thursday of the month, is facilitated by committee will be closed Monday, members and a licensed mental health professional. The group meets May 29, and Tuesday, from 6 to 7:30 p.m. at the office of Tom Cummings, 701 N.W. 13th St., July 4, in observance Oklahoma City. of Memorial Day and There is no cost to Independence Day. attend and snacks Remember to register will be provided. and join us for the RSVPs to Lori King, 2017 Solo & Small LoriKing@CABA Firm Conference in inc.com, are Durant June 22-24, and encouraged to be sure to docket the ensure there is OBA Annual Meeting food for all. to be held in Tulsa Nov. 1-3.

OBA Member Reinstatements Join the New Immigration Law Section The following members suspended for nonpay- ment of dues or noncompliance with the Rules for In light of ever more complex immigra- Mandatory Continuing Legal Education have tion and nationality laws and evolving complied with the requirements for reinstatement, enforcement priorities, the OBA is excited and notice is hereby given of such reinstatement: to announce the creation of the Immigra- Jason Heath Meadows tion Law Section. OBA members interest- OBA No. 22236 ed in joining are invited to attend the first 4902 E. Thomas Road section meeting Tuesday, May 23, at noon Apt. 178 at the Oklahoma Bar Center. Lunch will Phoenix, AZ 85018 not be provided. If you would like to join the section but are unable to attend the Duane Norman Rasmussen meeting, you can email Jasmine Majid at OBA No. 7420 [email protected]. Dues are $20 1800 Lincoln Way, Suite 100 per year. Coeur d’Alene, ID 83814-2570

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 1011 BENCH & BAR BRIEFS

victim services unit, or her eedham and Associates designee; Bob Ravitz, chief NPLLC announced the public defender of Oklahoma opening of its Tulsa office, County; and Trent Baggett, where Cara Collinson Wells executive coordinator of the and Amber Howard Corne- Oklahoma District Attorneys lius joined the firm as part- obert Don Gifford and Council, or his designee. Gov. ners. Ms. Wells’ practice Christina Vaughn have R Fallin also announced the focuses on probate, trust, been selected by the Ameri- appointment of Retired Dis- estate administration and can Indian Chamber of Com- trict Judge C. Allen McCall planning and adult and child merce to be part of Leader- to the Oklahoma Pardon and guardianship. Ms. Cornelius’ ship Native Oklahoma. The Parole Board, the appoint- practice focuses on oil and program meets each month to ment of former state Sen. gas law. learn about politics, business, Clark Jolley to the Oklahoma economic development and Casey Davis joined the Tax Commission. The Okla- legislative issues affecting Oklahoma City-based homa Senate confirmed the D. Oklahoma tribes. firm Jacquelyn Ford Law as appointment by Gov. Fallin of an associate partner. He ike Voorhees has been Gary W. Farabough of Ard- focuses his practice on crimi- elected to serve as vice more to serve a nine-year M nal defense. president of governmental term as a member of the affairs for the South Oklaho- Board of Trustees for the Uni- ravis Fulkerson and Nick ma City Chamber of Com- versity Center of Southern TCrews announce the merce for 2017. Mr. Voorhees Oklahoma. opening of Fulkerson Crews. is a member of the south The Tulsa firm represents the Oklahoma City law firm interests of businesses and Voorhees Voorhees & Byers. insurance companies in work- ers’ compensation matters, lizabeth Kerr, legal coun- employment disputes and sel for the University of E general liability claims. Central Oklahoma, received the 2017 Sustainer of the Year aniel X. Resendez joined Award given by the Junior Dthe Oklahoma City law League of Oklahoma City. ary L. Maddux was firm Crain & Associates PLLC named shareholder of the as an associate attorney. He avid A. Trissell was pub- G Tulsa-based law firm Barber practices in the areas of estate lished in Law and the D & Bartz. He obtained his J.D. planning, probate, real estate, Management of Disasters – from the TU College of Law. landlord-tenant and business The Challenge of Resilience. Mr. planning. Trissell’s chapter focuses on abrielle E. Mandeville the role of resilience strategy Gjoined the Tulsa law firm Derek Hardberger and in the United States and how Atkinson, Haskins, Nellis, J. Garry L. Keele II joined governments and the law can Brittingham, Gladd & Fiasco McAfee & Taft in the firm’s incentivize resilience practices as an associate. She graduat- environmental law practice at and behavior. ed from the TU College of the Oklahoma City office. Law in 2016. Alex Duncan joined the ov. Mary Fallin firm’s litigation group at announced the formation ichael Scoggins joined G the Tulsa office. of the Oklahoma Task Force MGableGotwals as an on Sexual Assault Forensic associate in the firm’s Tulsa avid V. Jones joined Evidence. The task force will office. His primary practice DAkerman LLP as a part- include Lesley March, the will focus on transactional ner in its San Antonio office. chief of the attorney general’s business law. He joined the firm’s litigation

1012 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 team and will practice in the attorney. Mr. Barrett’s prima- Adams, Dean Luthey, Brad areas of insurance, commer- ry areas of practice include all Welsh, Tammy Barrett and cial and products liability law. aspects of estate planning, Adam Doverspike. business law and planning, illiam Andrew “Drew” om C. Vincent II spoke probate and oil and gas law. WEdmondson joined T to the Tulsa County Bar the Oklahoma City-based ichael R. Ford, Michael Association Paralegal Section firm of Riggs, Abney, Neal, MS. Booze and Jared R. in March on “Practical Cyber- Turpen, Orbison & Lewis as Ford joined Hall Estill’s Okla- security: The First Line of of counsel. homa City office. Mr. Ford Defense.” joins the firm as a sharehold- avid H. Herrold and ick Noulles was a pre- er. Mr. Booze joins Hall Estill Danny C. Williams Sr. senter on recent develop- D as special counsel. Mr. Ford R joined Conner & Winters LLP ments in energy litigation at joins the firm as an associate. in the firm’s Tulsa office. Mr. the Tulsa County Bar Associa- Herrold’s practice focuses on achel A. Fields joined tion Energy & Mineral Law complex civil and commercial RSteidley & Neal PLLC as Section meeting. cases, directors and officers associate. She practices in the raig Regens and Sid coverage and errors and firm’s Tulsa office in all Swinson spoke to the omissions coverage liability, aspects of civil litigation. C Oklahoma Society of CPAs at creditors’ rights and bank- avid F. Howell of Mid- their Oil & Gas Conference ruptcy litigation. Mr. Williams west City has been regarding oil and gas compa- practices commercial litiga- D named municipal judge of ny Chapter 11. tion particularly in the area of Midwest City. eminent domain. hris Thrutchley spoke esse Chapel was elected to numerous human auri Nautiyal and Justin C as a shareholder of the resources groups including Grose joined Ogletree J G Oklahoma City-based firm the Tulsa EEO Coordinator’s Deakins as associates and Andrews Davis. He practices Association on best practices Andre Caldwell as of counsel in the firm’s tax, estate plan- for avoiding wrongful dis- in the firm’s Oklahoma City ning, business and banking charge claims. office. Ms. Nautiyal focuses departments. her practice on advising man- teve Adams and Ryan agement in all aspects of SPittman presented new employment-related matters. developments in energy law Mr. Grose focuses his practice to the Pittsburg County Bar on representing and counsel- Association. ing employers in labor and hilip Hixon spoke to the employment legal matters, OSU medical staff regard- including discrimination and P ing physician response to harassment. Mr. Caldwell subpoenas and testimony focuses his practice on repre- arty Ludlum spoke to preparation. senting and counseling Mseveral classes at Arcada employers on labor and University in Helsinki. His eborah Shallcross hosted employment legal matters. presentations were titled Da Connecting Circle for “Changes to International Leadership Level Donors of ov. Mary Fallin Trade since the 2016 Election” the Tulsa Area United Way announced that former G and “Intercultural Trade Women’s Leadership Coun- state Sen. James Williamson Issues.” sel. She presented on how will serve as her general the work environment for counsel. He has been in pri- arbara Moschovidis coor- women has changed over vate practice since 1975 and is dinated a presentation for B the past 50 years and what a former legislator, having the Tulsa Global Alliance’s women can do to mentor served 18 years in Oklaho- U.S. State Department Inter- other women who are start- ma’s Legislature. national Visitor Leadership ing their careers. Program on Oklahoma ener- rian J. Barrett joined the gy law and policymaking. How to place an announce- Edmond-based law firm B Remarks were given by Steve ment: The Oklahoma Bar Journal Evans & Davis as associate

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 1013 welcomes short articles or associations are encouraged editing, and printed as space news items about OBA mem- to submit short stories about permits. bers and upcoming meetings. upcoming or recent activities. Submit news items via email to: If you are an OBA member and Honors bestowed by other Lacey Plaudis you’ve moved, become a part- publications (e.g., Super Law- Communications Dept. ner, hired an associate, taken yers, Best Lawyers, etc.) will not Oklahoma Bar Association on a partner, received a promo- be accepted as announcements. 405-416-7017 tion or an award, or given a (Oklahoma-based publications [email protected] talk or speech with statewide are the exception.) Information or national stature, we’d like selected for publication is Articles for the Aug. 19 issue to hear from you. Sections, printed at no cost, subject to must be received by July 19. committees, and county bar

IN MEMORIAM

obert Wright “Bob” Amis from Monte Cassino School in 1949 graduate of Weleetka Rdied Feb. 25. He was born 1983. She then received her High School. He continued April 10, 1936. He graduated bachelor’s degree in philoso- his education and obtained from St. Marks School of phy from TU in 1989. In 1994, his bachelor’s degree in busi- Texas in 1954, obtaining his she received her J.D. from ness from East Central Uni- B.S. in geology from OU in the OU College of Law and versity and a J.D. from the 1958. He was a member of passed the bar exam the same OCU School of Law. Mr. Sigma Alpha Epsilon Fraterni- year. She was a recipient of Brown was a veteran of the ty. Mr. Amis continued his the first Ada Lois Sipuel Fish- U.S. Air Force, serving dur- education at the University of er Scholarship Award. While ing the Korean War. He was Texas School of Law, earning at OU, she was awarded a fel- honorably discharged in Octo- his J.D. in 1961. He primarily lowship to study at the Facul- ber 1954. Following his mili- practiced civil litigation. He ty of Law in the University tary service, he joined Farm- practiced as a sole practitioner of Oxford in England. She ers Insurance Group, retiring and with Pierce Couch, Reyn- served as an assistant district after 32 years as a branch olds & Ridings and Garrett, attorney for former Tulsa Dis- claim manager in San Anto- Pool, Amis, & Coldiron. Over trict Attorney Bill LaFortune nio. He was an active member his career, he served as the from 1996 to 1997. She was of the First Baptist Church. He assistant county attorney of admitted to practice in Texas was an avid reader, enjoyed Denton County, Texas, and in 1998 while working with volunteering and enjoyed city judge of Lewisville, Texas, the Houston-based Wickliff & watching and feeding birds. as well as an adjunct profes- Hall. She later joined the City rian Nathaniel Buie died sor of commercial law at the of Houston’s Legal Depart- March 24 in Tulsa. He was OCU School of Law. In 1995, ment. She left active court- B born June 12, 1976, in Camp he relocated his practice to room practice to work for LeJeune, North Carolina. In Collin and Dallas counties Mayer, Brown, Row & Maw 1994, he graduated from Red where he practiced until in Houston. She returned to Bank High School in Chatta- retirement. His greatest loves Tulsa to practice with her nooga, Tennessee. He then were his family and music. father at Goodwin & Good- went on to graduate from the Donations in his honor may win. Donations in her name University of Tennessee with be made to Highland Park can be made to the Mental a degree in political science. United Methodist Church Health Association Oklahoma, In 2010, he graduated from Beyond Campaign or to your 1870 South Boulder Ave., the TU College of Law. Mr. favorite charity. Tulsa, 74119. Buie worked as an immigra- nna Maria Goodwin harles Edward Brown tion attorney for the Law ABenn died April 11 in Cdied Sept. 12, 2014, in Offices of Mawby & Litz. He Tulsa. She was born Aug. 5, Tulsa. He was born Sept. 3, served on the board of the 1965, in Tulsa. She graduated 1931, in Weleetka. He was a Coalition of Hispanic Organi-

1014 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 zations and participated in In 1949, he founded, along Law’s Chapter of the Black community events such as with his mentor Draper Grigs- Law Student Association hon- health and immigration by, the law firm Foliart, Huff, ored him and changed its forums. He was an avid col- Ottaway & Bottom. His mem- name to the “John E. Green lector of comic books and berships included the Ameri- Black Law School Student action figures. He enjoyed can College of Trial Lawyers, Association.” Donations in his going to the movies with his the Federation of Insurance & honor may be made to South- family to see the latest action Corporate Counsel, Interna- western Urban Foundation, flick. tional Academy of Trial Bar- John E. Green Community risters and the International Fund, P.O. Box 17533, Okla- oleman Bartow Fite died Academy of Trial Lawyers, all homa City, 73136. April 19 in Muskogee. He C of which he served as fellow. was born Aug. 21, 1959, in hilip D. Hart died April He was particularly proud of Denver. He graduated from 12 in Oklahoma City. He his membership in the Okla- P Muskogee High School in was born Sept. 16, 1936. He homa County Bar Association. 1977, OSU in 1981 and the OU received a B.A. in government Donations in his honor may College of Law in 1984. He from OU in 1958 and his LL.B be made to the Oklahoma was a proud member of in 1960. After completing law Historical Society, 800 Nazih Sigma Alpha Epsilon Fraterni- school, he worked for Hogan Zuhdi Dr., Oklahoma City, ty. Mr. Fite was a municipal & Hartson in the Washington, 73105. judge for the City of Musk- D.C. area. He later joined the ogee from 1998 to 2017 and a ohn Green died March 21. JAG Corps, where he served municipal judge for the town JHe was born March 2, 1929, as a captain in the U.S. Army of Okay from 1985 to 2017. In in Wright City. He graduated from 1962 to 1964. In 1964, he addition, he was a tribal pros- from Booker T. Washington moved to Oklahoma City to ecutor for the Cherokee High School in 1944 and work for the Kerr Davis Law Nation and became a district Morehouse College in Atlanta Firm before joining the Fowler judge there in 2001. He was in 1949. He then served in the Rucks Law Firm. The firms instrumental in the inception Korean conflict and was eventually merged into what of the Cherokee Nation’s drug awarded a Combat Infantry- today is known as McAfee & court. He also enjoyed his man Badge and Bronze Star. Taft. For more than 55 years, involvement with the adop- After returning to the U.S., he he worked in oil and gas liti- tion process of the nation. Mr. graduated from the OU Col- gation. He was an adjunct Fite was a member of the lege of Law in 1957. After professor of law at the OCU Muskogee Bar Association. passing the bar, Mr. Green School of Law for 48 years, He also served on the Musk- began practicing with the primarily teaching oil and ogee Medical Foundation Bruce and Rowan Law Firm. gas. He enjoyed everything Board of Directors. Donations In 1963, he began his career in from fine clothes and art in his honor may be made to the Office of the United States museums to country music Grace Episcopal Church, 218 Attorney, Western District of and Oklahoma diner food. North 6th Street, Muskogee, Oklahoma, serving as assis- He greatly enjoyed reading. 74401. tant U.S. district attorney, first Donations in his honor may assistant U.S. assistant attor- be made to All Souls’ Episco- im Foliart died April 8. He ney, federal prosecutor and pal Church, Free to Live. was born Oct. 29, 1919, in J acting United States attorney. McAlester. He graduated high am H. Johnson died April He was a member of the Fed- school in Enid in 1936. He 11 in Norman. He was eral Bar Association, Ameri- S received a full scholarship for born Nov. 2, 1937, in Mang- can Bar Association, Board of debate to Northwestern Okla- um. He was a 1955 graduate Governors, Oklahoma County homa State University. In of Mangum High School. Mr. Bar Association, Oklahoma 1940, he pursued his law Johnson continued his educa- City Association of Black degree, graduating with an tion at OU, graduating with Lawyers, and OU College of LL.B in 1948. His educational his B.A. in journalism in 1959. Law Board of Visitors. He was studies were interrupted He earned his J.D. from the also an adjunct faculty mem- when he entered the Army OU College of Law in 1963. ber of the OCU School of Law. Air Corps as a cadet in 1943. He moved to Lawton in 1963 In 2013, the OCU School of

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 1015 and began practicing law with Church as chalice bearer and Throughout his career, he Art Cavanaugh. He practiced lay reader for many years. He worked for several law firms, law in Lawton until 2008 was also an avid golfer and in addition to the former First when he retired and moved loved musical theater. Dona- National Bank and Trust to Norman. He received his tions in his honor can be Company of Oklahoma City 50-year OBA membership rec- made to Iron Gate Tulsa or as general counsel. He even- ognition in 2013. He was also to the Juvenile Diabetes tually went into private prac- a member of the Comanche Research Foundation. tice and then completed his County Bar Association. Mr. working career as general ugh Alan Manning of Johnson was an avid fan of all counsel for the Oklahoma Spencer died March 9 in OU athletics and the Pride of H State and Education Employ- Oklahoma City. He was born Oklahoma. Memorial contri- ees Group Insurance Board. July 7, 1953, in Dallas. He butions may be made to the Donations in his honor may received his bachelor’s degree charity of the donor’s choice. be made to City Rescue Mis- from Drury College in Spring- sion of Oklahoma City or the enneth Earl Limore died field, Missouri, in 1976, a Young Women’s Christian March 14 in Tulsa. He master’s degree in Criminal K Association of Oklahoma City. was born Aug. 5, 1955, in Justice Administration from Tahlequah. He was a graduate OCU in 1978 and graduated ommy McConnell died of Stilwell High School and from the OCU School of Law TMarch 21 in Norman. He attended Conners State Col- in 1980. Mr. Manning was an was born March 8, 1942, in lege. He received his bache- assistant attorney general for Stratford. He graduated from lor’s degree in education and both Jan Eric Cartwright and Wynnewood High School in master’s degree in education Mike Turpin. He was an assis- 1959. After high school, he administration at Northeast- tant general counsel for the attended East Central Univer- ern State University. Mr. Oklahoma Tax Commission sity studying acting before Limore received his Standard and an assistant district attor- serving in the United States School Superintendent Certifi- ney for Oklahoma County. In Peace Corps between 1961- cation from TU in 1991. He 1992, he began working for a 1963. Upon returning, he received his J.D. from the Uni- law firm that later became graduated from OU with a versity of Iowa College of Baker, Baker, Tait & Manning. degree in English literature in Law in 1998. From 2007 to In 1999, he opened his own 1965. Mr. McConnell enlisted 2013 he served as administra- law firm, Manning & Associ- in the U.S. Army in 1966 and tive law judge for the Chero- ates. He enjoyed flying, scuba was awarded a Bronze Star. kee Nation, as well as super- diving, traveling and golfing. After his military service, he intendent at Greasy Public earned a master’s degree in ohn Richard McCandless School. He also held a private education from East Central died April 8 in Oklahoma law practice in Stilwell. J University. He served as the City. He was born April 15, Walker Center coordinator at ohn “Jack” Livingston died 1935. He was a 1953 graduate OU from 1971 to 1972. He April 23. He was born April of Hobart High School and a J then received his J.D. from the 23, 1936, in Tulsa. He graduat- 1957 graduate of OU. He OU College of Law in 1976. ed from Central High School received his J.D. from the After teaching and working as in 1954 and went on to earn OU College of Law in 1963. a principal, he later became his undergraduate degree Between undergraduate and superintendent at Morrison from OU. He received his J.D. law school, he served three and Copan and assistant from the University of Michi- years in the Counter-Intelli- superintendent at Oklahoma gan Law School. He practiced gence Corps, Fort Holabird, City’s Metro Technology Cen- law for more than 50 years. Baltimore, Maryland. He was ters. He also taught at OU and Mr. Livingston served in the active in politics and served Central State College. He U.S. Army at the beginning as a state delegate to the served as a legal counsel for of the Vietnam War. He was a Democratic National Conven- countless Oklahoma public 32-degree Mason and member tion in 1968 and 1972. Mr. schools and was a proud of the Shrine Oriental Band. McCandless also served as a founder of the Oklahoma He proudly served his campaign manager to former Rural Schools Association. beloved Trinity Episcopal U.S. Sen. Fred Harris. Donations in his name may be

1016 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 made to the Norman Youth Tulsa. He graduated from Ski- favorite hobbies and he Baseball Academy, P.O. Box atook High School in 1963. He enjoyed going to horse races to 720848, Norman, 73070. attended Oklahoma Military watch his horses run. He was a Academy on football scholar- member of the Church of the evin Hunter Pate of Nor- ship, later transferring to Cen- Nazarene in Holdenville. man died April 5. He was K tral State College (now OCU) born July 17, 1960, in Fayette- usan Gail Seamans died to receive his B.A in 1967. In ville, Arkansas. He earned a March 11 in Tanzania. She 1970, he received his J.D. from S bachelor’s degree in criminal was born June 13, 1948, in the OU College of Law. Mr. justice from Northeastern Postville, Iowa. She was a Pointer worked in the public State University in 1986 and a graduate of Chickasha High sector in various capacities for J.D. from the OU College of School, Smith College and two years after admission to Law in 1989. He worked as an the OU College of Law. She the bar, after which he had a attorney for the Oklahoma served as associate general successful 45-year private Indigent Defense System for counsel at the OU Health Sci- practice. He was also involved 19 years. He then entered into ences Center from 1979 until in Oklahoma’s petroleum private practice, where he her retirement in 2006. Ms. industry for many years continued helping clients Seamans was active in the beginning in the 1970s. He even from his hospital bed. Oklahoma City Master Cho- served as a director of the Mr. Pate was actively rale and the Smith College Oklahoma Criminal Defense involved in Girl Scouts and Alumnae Chorus. She was Lawyers Association since Boy Scouts of America for also a faithful supporter of the 1991. Throughout his tenure many years. He greatly OU women’s basketball team. as director he achieved sever- enjoyed being there for his Her lifelong love of the arts al distinguished awards children through scouting. and travel had recently taken including the Clarence Dar- her to France, Italy, Scandina- illy Ray Perceful of Po- row Award and the Lord Ers- via, Cuba and Tanzania. teau died Jan. 17 in Fort kine Award. He also served as B Donations in her honor may Smith, Arkansas. He was born a member of the Federal be made to Steed Elementary, March 8, 1956, in Troy, Ohio. Criminal Justice Panel. Dona- 2118 Flannery Drive, Midwest He graduated from Carl tions in his honor may be City, 73110, and the Oklahoma Albert State College in 1976 made to Autism Oklahoma, Choral Association, P.O. Box with an A.S. He went on to Second Chance Animal Sanc- 20545, Oklahoma City, 73156. earn a B.A. from OCU in 1979 tuary or charity of your and a J.D. from the University choice. ark Walker of Tulsa died of Arkansas School of Law in March 21. He was born ictor W. Pryor Jr. of Hold- M 1982. He was licensed to prac- Jan. 18, 1954. He graduated enville died April 5. He tice in all Oklahoma state V from Tulsa Central High was born July 2, 1935, in courts and administrative School in 1972. After graduat- Holdenville. He graduated agencies, Oklahoma Federal ing from high school, he from Holdenville High School Court of Appeals, Arkansas moved to New Orleans to in 1953. Mr. Pryor then gradu- Federal Court and the United attend Tulane University. He ated from OU with a degree States 10th Circuit Court of returned to Oklahoma in 1974 in petroleum engineering. He Appeals. Some of his awards to attend OU. He went to later received his J.D. from the include Tribune of Delta Theta work for BNSF Railroad for OU College of Law in 1965. Phi legal fraternity, Arkansas six years before going back to He began a lifetime career in Law School Dean’s Honor school and receiving his B.A. the oil and gas industry at Roll, LeFlore County Law in philosophy from TU in Victor Pryor Oil Company. He Day chair, Oklahoma Bar 1983. In 1987, he received his had a law practice for many Association Pro Bono Lawyer J.D. from the TU College of years and owned several of the Year (1999) and Adjunct Law. He worked as a geo- banks around the country. He College Professor of the Year chemical surveyor and field was a member of the Society (1999). supervisor for Harvest of Geological Engineers and Resources, practiced oil and ack Dempsey Pointer Jr. of the Big O Club at OU. Own- gas law for Birdwell and Norman died March 27. He ing race horses and working J Associates in Oklahoma City was born Feb. 14, 1945, in on his ranch were some of his

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 1017 and was in private practice ames Matthew Williams commissioned to the U.S. Air for a few years. Mr. Walker Jdied April 3. He was born Force in 1960. Mr. Van Meter went back to the railroad as Feb. 21, 1968, in Oklahoma was a Vietnam War veteran, an engineer for SKOL Rail- City. He spent his early years Air War College graduate road, where he worked for playing baseball, football, bas- and was the recipient of the over 20 years. He loved read- ketball and running track. He Distinguished Flying Cross ing, music, roller coasters and graduated from Christian and Meritorious Service going to concerts and movies. Heritage Academy in 1986 Medal. He returned to OU in and from OU in 1990 with a 1969 and completed his J.D. in hett Henry Wilburn of B.A. in political science. Mr. 1972. He then moved to Law- RGlenpool died April 16. Williams also received his J.D. ton where he practiced law. He was born Dec. 19, 1961, in from the OU College of Law He was a member of the Tulsa. He graduated from in 1993. He was an avid Soon- Texas Bar Association. Mr. Jenks High School. After high er fan and attended as many Van Meter also served as a school, he graduated from OU OU sporting events as he Lawton city councilman. He with a B.S. in business and could. In 2013, he founded relocated to Wichita Falls in then obtained his J.D. from a local small business. 1992 where he worked in civil the TU College of Law. Mr. service for the JAG office at onald Edward Van Meter Wilburn practiced civil law Shepherd Air Force Base. of College Station, Texas, with the Wilburn & Master- D After retiring from the Air died March 1. He was born son Law Firm for many years. Force and from civil service, Sept. 7, 1937, in Kansas City, He liked to spend time out- he continued to practice law Missouri. After graduating doors fishing, skiing and in the role of a mediator. He from Bowlegs High School, he camping with his boys. He was a Freemason for 45 years. was also an avid rock climber graduated from OU and was and jet skier.

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1018 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 IN MEMORIAM

1989 OBA President Tony Massad 1928 - 2017

1989 OBA President Anthony “Tony” He received M. Massad of Frederick died April 9. many awards He was born June 15, 1928, in Shidler. during his He attended Oklahoma Military Acade- career. Most my (Rogers State University). He was recently, he was awarded a 60-year an All-American in football. His football service pin by the Oklahoma Bar jersey, number 13, was retired in his Association and the Sovereignty honor. He graduated from OU in 1949 Symposium Award by the Oklahoma earning a B.A. in psychology. Supreme Court. He was also the recipi- ent of the Distinguished Service Award Mr. Massad was commissioned as a from the Oklahoma Bar Foundation second lieutenant in the Army in 1949. (1989), Neil Bogan Professionalism He was called to active duty during Award (1990), Oklahoma Bar Center the Korean War, serving with the 2nd Award (1991), Governor’s Award, Armored Division between 1950 and Citation for Service (2003) and Award 1952. After returning home, he attended of Merit from the Oklahoma Supreme law school and earned his J.D. from the Court (2004). He was especially proud OU College of Law in 1955. Shortly of his 1998 selection by the governing after passing the bar, he began practic- body of the Cherokee Nation and the ing at Wilson & Wilson in Frederick. U.S. Secretary of Interior to form and Four years later he was named partner chair a committee charged with propos- at the firm. Throughout his career he ing solutions to address the internal practiced civil and criminal law. strife of the Cherokee Nation.

In 1959, he was admitted to practice He was a dedicated Frederick citizen, in the U.S. District Court for the West- serving several terms on the Frederick ern District of Oklahoma. From 1959 to City Council and as attorney for the 1965 he served as assistant county attor- City of Frederick and Tillman County ney of Tillman County. He was elected and Frederick Public Schools. He also to the Oklahoma Senate in 1966, where served several terms as president of the he played a significant role in the draft- Frederick Chamber of Commerce. ing and passage of the Judicial Reform Act of 1968.

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 1019 WHAT’S ONLINE

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1020 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 CLASSIFIED ADS

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Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 1021 POSITIONS AVAILABLE POSITIONS AVAILABLE

ESTABLISHED OKLAHOMA CITY LAW FIRM SEEK- DOWNTOWN OKLAHOMA CITY PERSONAL INJU- ING ATTORNEY(S) WITH INSURANCE DEFENSE RY FIRM SEEKS AN ASSOCIATE with minimum 3 to 5 LITIGATION EXPERIENCE. Great problem solving years’ experience in general civil litigation. Individual and writing skills. Compensation and benefits negotia- must be able to draft pleadings, prepare discovery re- ble. Please submit cover letter, resume and writing sponses and handle scheduling. Trial and deposition sample to “Box KK,” Oklahoma Bar Association, P.O. experience preferred. Please send your resume with Box 53036, Oklahoma City, OK 73152. salary requirements to [email protected]. FENTON FENTON SMITH RENEAU & MOON, AN AV SMALL DOWNTOWN OKLAHOMA CITY FIRM OF RATED DEFENSE FIRM IS SEEKING AN ATTORNEY DEFENSE ATTORNEYS WITH OFFICES IN DALLAS with one to five years of experience to assist in its civil SEEKS AN ASSOCIATE with 4 to 6 years’ experience in litigation department. 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The duties of this position require a strong page cover letter to [email protected]. litigation background as well as effective writing and communication skills to provide legal representation, PARRISH DEVAUGHN INJURY LAWYERS IS SEEK- advice and training in employment matters affecting ING TO ADD AN ASSOCIATE with a passion for per- the largest state governmental agency. Salary is based sonal injury cases to our team. Applicants must have on qualifications and experience. Excellent state bene- 1-3 years’ experience in handling personal injury fits. Send resume, references and a recent writing sam- cases or insurance defense. Visit our website at ple (less than 1 year old) to Judithjudi.abrams@okdhs. parrishdevaughn.com to learn more about us. Please org or mailed to Judi Abrams, Operations Manager, email your resume to [email protected]. Legal Services, Dept. of Human Services, P.O. Box THE GARFIELD COUNTY DISTRICT ATTORNEY’S 25352, Oklahoma City, OK 73125-0352. OFFICE SEEKS AN ASSISTANT DISTRICT ATTOR- PRAY WALKER, PC, A FULL-SERVICE TULSA FIRM, NEY with 0-5 years’ experience (including May 2017 SEEKS AN ASSOCIATE ATTORNEY with one to three graduates). Successful applicant will be responsible for years of experience for its energy practice group. The prosecuting primarily a general misdemeanor case- primary focus of the position will be preparation of oil load. Felonies and other responsibilities may also be and gas title opinions. Experience in rendering the same assigned depending on successful applicant’s experi- and/or comparable landman work required. Qualified ence and interest. Applicants should submit a cover let- candidates should submit cover letter, resume and law ter, resume and references to Mike Fields, District At- school transcript to [email protected]. torney, 114 West Broadway, Enid, OK 73701 or by email to [email protected]. FRANDEN, FARRIS, QUILLIN, GOODNIGHT AND ROBERTS a mid-size, Tulsa AV, primarily defense liti- gation firm seeks a lawyer with 5-8 years’ experience. If interested, please send confidential resume, references and writing samples to [email protected].

1022 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 POSITIONS AVAILABLE EXPANDING LAW FIRM SEEKS ENTREPRENEUR- IAL-MINDED ATTORNEYS with experience in the fol- lowing practice areas: HR/employment; estate plan- ning; healthcare/regulatory; personal injury/insurance defense and/or trucking/transportation litigation. We are looking for resourceful individuals who want to be part of a unique team of lawyers and work on a wide variety of business consulting and litigation. Experi- enced with a book of business? Young and hungry? We have room for all. Tired of working long hours for just a salary? Our compensation package allows flexibility with regard to income and work load. We have a great origination policy, too. Send resume and cover letter/ video correspondence clip outlining practice area expe- rience and why you are ready to work in a different kind of firm, to [email protected]. LEGAL SECRETARY NEEDED FOR SMALL LAW FIRM IN JENKS. 4 ½ days per week. Salary based on experi- ence. Please send resume to [email protected]. POSITION WANTED ATTORNEY WITH 14 YEARS OF EXPERIENCE IS WANTING TO RELOCATE and is looking for an office sharing or of counsel opportunity. Practice areas in- clude employment discrimination, estate planning, probate, guardianship, adoption, contracts, corporate and banking law. Please contact Law Office at P.O. Box 890780, Oklahoma City, OK 73189 or call or text 405- 802-7055, with details.

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REGULAR CLASSIFIED ADS: $1.25 per word with $35 mini- mum per insertion. Additional $15 for blind box. Blind box word count must include “Box ___,” Oklahoma Bar Associa- tion, PO Box 53036, Oklahoma City, OK 73152.” DISPLAY CLASSIFIED ADS: Bold headline, centered, border are $60 per inch of depth. DEADLINE: See www.okbar.org/members/BarJournal/ advertising.aspx or call 405-416-7084 for deadlines. SEND AD (email preferred) stating number of times to be published to: [email protected], or Mackenzie McDaniel, Oklahoma Bar Association, PO Box 53036, Oklahoma City, OK 73152. Publication and contents of any advertisement are not to be deemed an endorsement of the views expressed therein, nor CONTACT MARGARET TRAVIS shall the publication of any advertisement be considered an en- dorsement of the procedure or service involved. All placement 405-416-7086 notices must be clearly nondiscriminatory. [email protected] DO NOT STAPLE BLIND BOX APPLICATIONS. OR SIGN IN TO MYOKBAR

Vol. 88— No. 14 — 5/20/2017 The Oklahoma Bar Journal 1023 THE BACK PAGE

File Retention Blues By R. Steven Haught

Years ago when I was a brand dusty, dirty and sagging. I swore saved a trial exhibit from a feder- new associate, managing partner I wouldn’t open a box because al trial in which I successfully Phil Daugherty asked me if I the dust aggravated my asthma represented a major oil company wanted to go to the warehouse but, like Mr. Daugherty, I could in a pollution case. with him to retrieve a closed file. not resist. The plaintiff alleged that my I did not understand why he was There was a box of law books client had transformed his farm going himself instead of sending purchased when life seemed so into a moonscape. I had commis- someone. Although I had little promising, evoking fond law sioned a professional photogra- interest in going, I could not turn school memories, and then pher to take lovely photographs down his request. It reminded of the property, me of when my my favorite grandfather asked being a very me to go to the large photo- hardware store graph of a sun- with him to pick flower, beauti- up nails or screws. ful and perfect, I had no interest in a Van Gogh it but always felt sunflower more compelled to go. at home in When we arrived Arles, France, at the old weath- than Healdton, ered, wooden stor- Oklahoma. That age building near sunflower the railroad tracks saved my client in downtown and saved me Oklahoma City, his from the file eyes lit up. He was retention blues. excited to show me I hired a com- the rows of files pany to take the dating back to the 1930s. As we another box revealing deposi- files and destroy them in compli- walked the rows, he reminisced tions, awakening forgotten imag- ance with ethical practices. about various cases and clients. I es of witnesses, opposing coun- The driver loaded all of the thought it was silly to sentimen- sel, the court reporter. I knew I cardboard boxes and then the talize old files in cardboard had to stop or I would be there large sunflower photo. My eyes boxes. all day. Pleasant memories studiously followed the truck as morphed into a disquieting Recently I came to understand it left the storage yard and soon realization that I had spent that moment. I received a call all I could see was the largest my whole life filling cardboard from a storage site to inform me sunflower in the world towering boxes with paper. the lock on my storage unit was above the mountain of white gone, and I needed to rush over A sense of melancholy passed cardboard boxes that contained there to secure my unit. For the over me. The decomposing boxes my life’s work. first time in many years I raised were coincident with my own Mr. Haught practices in Oklaho- the door. I found that nothing decay. The files had aged as my ma City. was missing and gazed upon a body had atrophied. One sight great mass of cardboard boxes – rescued me from the abyss. I had

1024 The Oklahoma Bar Journal Vol. 88— No. 14 — 5/20/2017 FEATURED LIVE WEBCAST 1/0 Connecting in the Courtroom

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