Gibberish

Judge McConnell dismissed an appeal today as frivolous. Not only was the appeal frivolous, but the Court noted: "Appellant's Brief is gibberish."

The definition of gibberish is: meaningless or unintelligible talk or writing.

Chicken Litter Case: Denial of State's Motion for Preliminary Injunction

Judge Frizzell heard extended arguments and evidence on the State of Oklahoma's Motion for a Preliminary Injunction in the chicken litter case. The Court recently issued a surprisingly short order denying the State's motion. The Court's ruling can be found here.

Notably, the Court disregarded certain testimony of the State's experts under Daubert. The Court concluded that the testimony was "not sufficiently reliable" because the expert's work had "not been peer reviewed or published." The Court then found that, at this juncture, the State had failed to meet its burden of establishing that the bacteria levels at issue could be "traced to the application of poultry litter."

Newspaper articles about the Court's ruling can be found here, here, and here.

Ten Commandments and the Seven Aphorisms of Summum

In an unusual order, the Tenth Circuit divided equally in a decision over whether to rehear a case en banc. The equally-divided order means the request to rehear the case was denied and the panel opinion was affirmed. The Court's specific holding will be addressed below, but a bit of background appears to be in order.

The panel opinion involved a request by "Summum" -- a religious organization -- to post a monument containing the "Seven Aphorisms of Summum" in a city park. The panel's opinion does not provide any detail regarding the tenets of Summum, but one website indicates that the philosophy/religion stems from its founder's (Claude "Corky" Nowell) encounter with beings he describes as "Summa Individuals." According to Nowell, these beings "presented him with concepts regarding the nature of creation, concepts that have always existed and are continually reintroduced to humankind by advanced beings who work along the pathways of creation." The Seven Summum Principles are known as Pscychokinesis, Correspondence, Vibration, Opposition, Rhythm, Cause and Effect, and Gender.

Well, among other things, the followers of Summum also believe that Moses was given both a "lower" and "higher" knowlege from a divine being. The lower knowledge refers to the more widely known "Ten Commandments," while the higher knowledge refers to the "Seven Aphorisms." Apparently, when Moses first descended from Mount Sinai, he had with him the higher law -- a law the Israelites were unable to understand because of their under-developed condition. Moses therefore returned to Mount Sinai and descended with the lower law, which was much easier for the Israelites to understand. The Summum website indicates that "many people are not ready to understand the aphorisms carved on those first tablets."

The panel's decision involves a free speech issue only -- whether a City violated the Summans' free speech rights when it refused it the opportunity to post the Seven Aphorisms in a city park, when the City had otherwise allowed the posting of the Ten Commandments.

The Court was forced to address whether the city park was a "public forum" for purposes of free speech analysis. Following an exhaustive analysis, the Court found that the city park was a "traditional public forum," and, therefore, restrictions on speech were subject to strict scrutiny and "content-based restrictions are presumptively invalid." Only if the government shows that the restriction is necessary to "serve a compelling state interest and that it is narrowly drawn to achieve that end" will it survive strict scrutiny." The city had failed to justify the restriction under that standard. The city's desire to "promote its own history" was insufficient -- the city can promote that goal by a number of means, but not by restricting access to a public forum traditionally committed to public debate and the free exchange of ideas.

The City sought rehearing en banc, which was denied on an equally divided vote. Judge McConnell, who was widely regarded as a potential Supreme Court candidate upon the death of Chief Justice Rehnquist and resignation of Justice O'Connor, dissented from the denial of rehearing en banc. He stated that "neither the logic nor the language of these Supreme Court decisions suggests that city parks must be open to the erection of fixed and permanent monuments expressing the sentiments of private parties. By their policies or actions, governments may create designated public forums with respect to fixed monuments, but -- contrary to these opinions -- the mere status of the property as a park does not make it so." Judge Lucero likewise dissented, but on different grounds. He argued that the park was a "limited public forum." In those situations, local governments are permitted to make "content-based determinations about what monuments to allow in such space, but may not discriminate as to viewpoint."

Two other recent appointees to the Court -- Judges Gorusch and Holmes -- also would have reheard the case en banc.

The issues at stake apparently caught the Supreme Court's eye, because they have elected to review the Tenth Circuit's opinion, granting certiorari on March 31, 2008. The Court will hear oral arguments on the case on November 12, 2008. More information on the case can be found here and here.

3 Random New Decisions

In Snyder v. Maldonado, the Supreme Court reversed a defense verdict in a trucking case, finding that the trial court erred in submitted a contributory negligence jury instruction. The defendant claimed that the passenger-plaintiff was contributorily negligent because she failed to react and/or warn the driver that the driver was crossing the center line. The Court however found that there was a "complete absence of direct evidence that the passenger was negligent." The Court created new law by stating that the "realities of modern driving are such that a passenger cannot safely be an active participant under normal circumstances . . . A passenger's duty is fulfilled under ordinary circumstances by determining, before becoming a passenger, whether there are any conditions that warrant a heightened level of responsibility. Having done so, however, passengers should be permitted to relax and look around, read, or even sleep, unless something changes in the interim that would alert a reasonable passenger to exercise greater vigilance." The Court reversed for a new trial.

In Bray v. St. John, the Supreme Court reversed a summary judgment in a premises liability case. There, the plaintiff was a business invitee of St. John, and was abducted from the defendant's hospital garage and raped. The Supreme Court found that there were questions of fact regarding whether the precautions St. John undertook were adequate to provide reasonable protections to the business invitee. St. John maintained security monitoring of the garage, but questions existed about whether the security system was adequate in that (1) St. John only had one monitor dedicated to the garage at the time the assailant circled the garage unnotice with his tag obscured by duct tape, and (2) St. John had several incidents occuring in parking lots and garages during the year previous to the abduction and rape, including assault, battery, abduction, robbery by force and/or armed robbery. The Court adopted all of comment f to section 344 of the Restatement (Second) of Torts, finding that a possessor of lands may have a duty to prevent criminal conduct when "past experience" shows that there is a likelihood of such conduct occuring on the premises.

In Stipe v. State, the Court found that Senator Gene Stipe was entitled to his retirement benefits, even though he pled guilty to (1) conspiracy to violate the Fedearl Election Campaign Act (misdemeanor), (2) conspiracy to obstruct a federal election commission investigation (felony), and (3) perjury (felony). The Court held that the crimes to which Stipe pled guilty "do not facially constitute a violation of Stipe's oath of office." Because the crimes were unrelated to his oath of office, he was entitled to full retirement benefits.

Mutilation and Evisceration

In a recent case decided by the Oklahoma Supreme Court, the minority accused the majority of "mutilating" and "eviscerating" the standards normally applied to cases that reach the appellate court.

In Oklahoma Goodwill Industries, Inc., v. State ex rel. Oklahoma Employment Security Commission, the Goodwill industries argued that they did not have to pay certain unemployment taxes on consumers receiving rehabilitative or remunerative training while providing services at Tinker Air Force Base and in Oklahoma state offices pursuant to federal and state contracts mandating that individuals with severe handicaps or disabilities be utilized in performing contract services. The trial court agreed with Goodwill. The Oklahoma Employment Security Commission (OESC) appealed, arguing for the first time on appeal that Goodwill should be bound by the OESC's long-standing (30 year) interpretation of the relevant statute (which was, not unsurprisingly, that such employees were covered employees for purposes of unemployment taxes).

Justice Opala wrote the majority opinion, and was joined by Justices Hargrave, Edmonson, Kauger, Taylor and Reif. The majority threw the OESC a bone. The Court determined that the record was not sufficiently clear to allow for a decision on appeal, and (contrary to normal appellate standards) allowed the OESC -- the appellant -- to return to the trial court proceedings and re-argue its case. The Court directed OESC to present its argument on its "long-standing" practice and even suggested that its "long-standing construction" would not be "cast aside without cogent reason."

This outcome was met with a fierce dissent drafted by Justice Watt. Justice Watt argued that the majority opinion eviscerated and mutilated the normal rule that issues not presented to the trial court would not be considered on appeal. Justice Watt suggested that the Court was basically giving the OESC "overs" or a "second bite at the apple" by allowing the OESC to develop theories first asserted in the appellate court. In each of the cases supporting Justice Watt's view, the justice was certain to make it clear that Justice Opala was violating Opala's own holdings in other cases. Justice Watt would have decided the merits of the appeal, and would have held that Goodwill was not required to pay unemployment taxes for the consumers at issues in the case.

Some of the dissent's concerns may be legitimate, in light of the fact that the appeal had been pending in the Supreme Court since August of 2005. A review of the court's docket reveals that the Court took almost two years to decide the case after all the appellate briefing had been accomplished. (Here is an interesting article on the Court's current caseload.)

A petition for rehearing has been filed by Goodwill, so the majority opinion still remains subject revision, alteration or even reversal.

Sua Sponte Remittitur

"Sua sponte" is Latin for "of one's own accord." Well, in a recent order (available here), Judge Ronald White of the Eastern District of Oklahoma, made a sua sponte finding that a multi-million dollar judgment should be remitted by almost seven million dollars.

Apparently, in March of this year, a jury awarded the plaintiff a judgment in the amount of $21,141,975.00. Yes, you read that right. The trial apparently involved an alleged violation of the Packers and Stockyards Act. Following the verdict and judgment, the defendants (for a variety of reasons) filed a motion for a new trial. Judge White rejected all such arguments proffered by the defendants. The defendants apparently did not request that the the judgment be reduced (or remitted). Nevertheless, the Court, on its own motion, reduced the judgment to $14,511.935 -- an amount that was apparently stated in the jury instructions. If the plaintiffs do not consent to the remittiur, the Court stated it would order a new trial as to damages.

As an aside, the Court's comments were interesting regarding the parties' expert testimony. In particular, the Court stated:

This is not to say that the court found persuasive the testimony of either parties’ expert witness. Admittedly not itself an expert in economics, the court found Defendants’ expert’s testimony to have a number of research gaps and found the Plaintiffs’ expert’s testimony to be little more than gussied up wealth redistributive theory of probable Marxist origin. Nevertheless, because the court believed these flaws went more to the credibility of the experts’ testimony than to its admissibility, the jury was allowed to hear it.

The Fact of Removal

In Waters v. Continential Insurance Co., 07-282, Judge Kern denied Plaintiff's Motion for Remand citing evidence in the Notice of Removal that Plaintiff's claims aggregated to more than $75,000.

Plaintiff raised three theories of recovery arising from a bad faith medical claim: 1) Breach of Contract; 2) Tort; and 3) Punitive damages. In the Petition, Plaintiff cited the perfunctory statutory language for each claim, e.g. "damages in excess of $10,000." Defendant, in turn, attached an affidavit from a claims handler incorporating approximately $58,000 in medical bills claimed by Plaintiff in support of the Contract claim.

With the affidavit in hand, the Court proceeded to hold that Defendant had, "by a preponderance of evidence," established the jurisdictional threshold of $75,000. As Judge Kern pointed out, adding a $58,000 Contract claim, plus two additional claims valued at the statutory minimum aggregates in excess of $75,000 and, therefore, the Court retained diversity jurisdiction.

In a separate Order, Judge Eagan arrived at different conclusion. In Madlock v. Farmers Insurance Co., 07-703, the Court held the Defendant failed to support Removal with any "economic analysis" of Plaintiff's claims based upon the "underlying facts." See also Laughlin v. K-Mart Corp., 50 F.3d 871 (10th Cir. 1995).

Unlike the Waters defendant, Farmers simply concluded that invocation of punitive damages alone should suffice to establish the jurisdictional minimum. Of course, Judge Eagan pointed out that conclusory assertions that damages exceed $75,000 will not suffice, nor will reliance upon "the mere invocation of state law limits on punitive damages." Given the absence of any economic analysis of Plaintiff's claims based upon the "underlying facts," Judge Eagan granted the Motion for Remand.

Declaratory Actions Are Not Retalitory

In Shero v. City of Grove, --- F.3d --- (10th Cir. 2007), the Tenth Circuit held, as a matter of law, that "being properly named as a defendant in a declaratory judgment suit, however styled, would not chill a person of ordinary firmness from continuing to engage in constitutionally protected activity."

Shero's plight began when City denied his requests for "Council Packets" in advance of city council meetings. After Shero initially received the packets, the City changed course and began denying his requests. Shero, in turn, threatened suit under the Oklahoma Open Records Act, prompting City to file its own declaratory action against Shero, ostensibly seeking clarification regarding the applicability of the Act to the packets.

Shero eventually prevailed in state court. He then filed suit in federal court arguing, among other things, that City filed the declaratory action in retaliation for Shero exercising his First Amendment right to speak out against the City.

In a 2-1 decision, the Tenth Circuit disagreed. In doing so, the Court held that declaratory actions, even if filed with retaliatory animus, are not actionable under the First Amendment because “'[t]he nature and purpose of a declaratory judgment is to declare rights,' not to attack the opposing party." In support, the Tenth Circuit cited the fact that under Oklahoma's Declaratory Judgment Act, "the state court was prohibited from awarding damages against Mr. Shero."

The dissent argued that such a position might give cold comfort to citizens untrained in the procedural niceties of litigation. For example, the dissent pointed to the fact that litigation forced Shero to expend time and effort in defense of the action utilizing his own assets until awarded attorney's fees. This, argued the dissent, "may alone be enough to dissuade a person from continuing to engage in constitutionally protected speech."

Although litigation may be a "significant matter for private citizens," the Court ultimately concluded the specter of a declaratory action is not significant enough to rise above a de minimus injury and, as such, cannot be actionable under the First Amendment.

At least under federal law, the decision appears to give Oklahoma municipalities a green light to pursue declaratory actions against citizens without fear of violating the First Amendment.

A Right to A Hearing?

In a number of opinions issued in 2007, the Oklahoma Supreme Court has determined that trial courts have abused discretion in refusing to hold evidentiary hearings related to disputed fact issues, or where certain fundamental rights are at issue. For instance:

Oklahoma Oncology, 2007 OK 12, 160 P.3d 936 (finding that when motions and briefs raise disputed fact questions, and in the absence of a stipulation settling facts, Rule 4(c) requires a court to grant a party’s request for evidentiary hearing, noting that it "comports with notions of procedural due process").

White v. White, 2007 OK 86 (in child custody proceeding, finding that child custody proceeding implicates a "fundamental right protected by the federal and state constitutions" and parents are entitled to "an adversary hearing" regarding the existence of a material chance in circumstances and a "considered determination of the best interests of the child") ("The best interests of the child can be determined only by the evidence actually presented in an evidentiary hearing.").

In the Matter of the Guardianship of Holly, 2007 OK 53, 164 P.3d 137 (noting that certain oral arguments related to a ward’s proposed change in guardian was not a hearing, as the trial court "refused to allow them to present any evidence" in support of the proposed change) ("Unsworn, in-court statements by attorneys acting as advocates are not evidence.").

Crest Infiniti v. The Honorable Barbara G. Swinton, 2007 OK 77, 2007 WL 2937460 (when a trial court is considering a motion involving disputed facts, the facts "must be determined by the finder of fact at a hearing"; here, trial court failed to adjudicate the putative deponent’s corporate status for purpose of the motion to quash/motion for protective order).

Personal Dress and the Freedom to "Express"

The Sunday edition of the Tulsa World contains an article by Ben Braun detailing the varying style of dress donned by various courthouse players, from civil clients and criminal defendants to the "young" attorney caught without a tie on "causal" day at the office. The full article can be found here.

Reading the article brought to mind the seminal First Amendment, freedom of expression case, Cohen v. California, 430 U.S. 15 (1971) (A decision also famous for Justice Harlan's quote, "One man's vulgarity is another's lyric"). For background:

"On April 26, 1968, [Cohen] was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words ‘F**k the Draft’ which were plainly visible. There were women and children present in the corridor. [Cohen] was arrested. [Cohen] testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft." (Omission added).

Although not addressed by the Tulsa World article, the battle between dress and protest continues to rankle both government and citizen.

Take, for example, the case of Nicole and Jeffery Rank, who, in July of 2004 purchased tickets to attend a speech by President Bush. The tickets "provided that patrons would be seated on a first come, first served basis, without regard to either political affiliation or affinity with the President or his policies."

On July 4, 2004, the Ranks entered the area designated for the speech. While waiting for the President to arrive, the Ranks removed their outer shirts to display t-shirts that bore the international “no” symbol (a circle with a diagonal line across it) superimposed over the word “Bush.” Both shirts also displayed on the left sleeve a small photograph of President Bush with the international “no” symbol superimposed over it, and on the right sleeve a “Kerry” button. The message on the back of Nicole Rank's t-shirt was “Love America, Hate Bush.” On the back of Jeffrey Rank's shirt was the message “Regime Change Starts at Home.”

A short time later, the Ranks were approached by White House Event Staff Members who informed the Ranks that they could not remain on the grounds while wearing t-shirts critical of the President. When the Ranks refused to remove the shirts, they were arrested for trespassing by law enforcement officers who had previously been told that “White House Staff had the authority to revoke any person's ticket....”

On August 16, 2007, the government paid the Ranks $80,000 to dismiss their claim in what the ACLU described as, "a real victory not only for our clients but for the First Amendment."

Given the settlement, it is unknown how courts would decide the issue presented by the Ranks. On the one hand, the Ranks argue the First Amendment protects their expression from governmental intrusion. On the other hand, well-settled First Amendment jurisprudence clearly stands for the proposition that expressive freedoms are not "absolute," i.e., appropriate time, place and manner restrictions may apply depending upon the type of forum in which the expression occurred, in addition to other, content-based restrictions, e.g., the First Amendment does not protect fighting words or words intended to incite others.

Because content-based restrictions are the most loathsome restriction on free expression, and because the Ranks' t-shirts articulated a purely political message, unburdened by patently offensive language, the government would likely argue the President's speech was not an open forum. In other words, by requiring attendees to purchase a ticket, the nature of the forum at issue was materially altered by the terms and conditions of the ticket itself. As such, the government could impose content-neutral time, place and manner restrictions.

In the Ranks' case, it appears they were singled out because of the message appearing on their shirts, and not for any other reason. As such, it is difficult to fathom a content-neutral "time, place, manner," restriction that would govern the Ranks' personal dress to the exclusion of their corresponding freedom of expression.

(A more detailed analysis of First Amendment time, place and manner jurisprudence in the Northern District of Oklahoma, in the context of city council meetings, can be found here).