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ALSO INSIDE: Leadership Academy OBA & Diversity Awards • Sovereignty Symposium Volume 88 — No. 14 — 5/20/2017 Join Linda Thomas for a 2017 OBA President’s CRUISE to CUBA DEADLINE EXTENDED Experience Three Vibrant Cuban Cities Havana Cienfuegos Santiago de Cuba JULY 5: ARRIVE IN MONTEGO BAY, JAMAICA JULY 7 - 14: SAIL TO CUBA Guests may go to Montego Bay prior to July 5 or stay after July 14 at an additional cost. CONTACT [email protected] FOR MORE INFORMATION! 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 SHANNON L. PRESCOTT LAURA STONE 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).
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