Opinions from Oklahoma & the Northern District

Gibberish

2008-10-31T10:56:00.003-05:00

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

2008-10-16T09:22:00.003-05:00

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 The Court concluded that the testimony was "not sufficiently reliable" because the expert's work had "not been peer reviewed or published."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

2008-08-05T21:05:00.006-05:00

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

2008-08-02T21:44:00.001-05:00

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

2008-08-02T20:54:00.010-05:00

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

2008-07-31T10:07:00.004-05:00

"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

2007-12-26T19:02:00.000-06:00

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

2007-12-22T10:48:00.001-06:00

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?

2007-11-27T14:04:00.000-06:00

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"

2007-08-26T10:32:00.000-05:00

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).

Bifurcation

2007-08-23T20:15:00.000-05:00

Courts have broad discretion to bifurcate claims pursuant to Federal Rule of Civil Procedure 42(b). In a recent case, the defendant requested that the District Court for the Northern District of Oklahoma bifurcate plaintiff's breach of contract claim from the bad faith claim. The defendant claimed the bifurcation would conserve judicial resources and avoid prejudice to the defendant. The plaintiff did not object to the request.

Nevertheless, in a written opinion, the Court denied the request to bifurcate. The Court noted that it frequently conducts trials involving such claims and that, absent extraordinary circumstances, the Court does not bifurcate contract claims from bad faith claims during the liability/compensatory damages phase. And, the Court found no compelling reason to diverge from its general policy. The Court noted that it would bifurcate the liability/compensatory damages phase from the punitive damages phase, if necessary.

It should be noted that, in the state court system, the trial court (absent unusual circumstances) has no authority to bifurcate the contract claim from the bad faith claim. One Court has noted in an opinion that such "theories are connected and . . . should not be bifurcated." It appears that a state trial court has no discretion in this regard. "[T]he issue of whether the insureds had a legal right to recover from the uninsured motorist was not separable from the question of whether the insurer had a good-faith belief that it had a justifiable reason for withholding payment under the policy." See Newport v. USAA, 2000 OK 59, ¶ 26, 11 P.3d 190, 198

Summary Judgment to Non-Moving Party

2007-08-22T08:21:00.001-05:00

An interesting opinion was issued by the Northern District of Oklahoma recently. Interesting on several fronts, actually. The case involved a "devout Muslim" who followed the tenets of Islam that "purport to advise followers to use Muslim prayer oils to enhance the spiritual value of their five daily prayers." The Department of Corrections had enacted a rule that, with a few exceptions, banned the sale of Muslim prayer oils in prison canteens and banned the in-cell possession and use of such oils by inmates. The plaintiff sued, claiming a violation of the First Amendment right to freely exercise his religion. Several years ago, the Northern District granted summary judgment to the defendant. The Tenth Circuit affirmed the Northern District's decision with respect to the First Amendment claim, noting that the defendant's policy was "rationally related to a legitimate penological interest." (The Tenth Circuit's opinion can be found here.) The Court remanded for purposes of allowing the district to consider whether the plaintiff -- who was pro se -- had adequately stated a claim under the "Religious Land Use and Institutionalized Persons Act" or "RLUIPA." (RLUIPA can be found here and is discussed here.)

Following remand to the Northern District, the Court found that the plaintiff had stated a RLUIPA claim and, thereafter, the plaintiff moved for summary judgment. Instead of granting summary judgment to the plaintiff, the Court found that the defendant was entitled to summary judgment, even though the defendant had not formally filed a Rule 56 motion. In its order, the Court noted that "[t]he weight of authority is that summary judgment may be rendered in favor of the opposing party even though he has made no formal cross-motion under rule 56." According to the court, summary judgment in favor of the non-moving party is appropriate where "the Court can determine that the non-moving party is entitled to a judgment as a matter of law and if there is no procedural prejudice to the moving party. No procedural prejudice results if the court finds that the parties had the opportunity to present and did present all of the applicable facts concerning the parameters of their positions."

And the Court found that the parties had a "full opportunity to explore the scope of their positions." Applying a strict scrutiny analysis, the Court found that summary judgment was appropriate in favor of the DOC because the DOC had "demonstrated that the compelling state interest in maintaining security and order in a hostile penal system outweighs [the plaintiff's] interest in having the prayer oils in his cell and that limiting access to the prayers [sic] oils to that stored in the chapel or other facility is the least restrictive means of furthering the state's interests."

"Proffer" vs. "Establish" or "Show"

2007-08-08T22:39:00.000-05:00

The Tenth Circuit issued a new opinion today in an ADEA case. The district court granted summary judgment to the defendant, finding that the plaintiff had failed to bring forth sufficient evidence to create a jury question as to whether the defendant's alleged nondiscriminatory reason for terminating her was actually a pretext for age discrimination. The Tenth Circuit affirmed.

The case discusses the McDonnell Douglas burden-shifting analysis with respect to summary judgment standards, finding that the well-known analytical framework applies even during summary judgment determinations. "In the employment discrimination context, there is no need for a trial if one party has failed to produce sufficient evidence to carry its burden of persuasion. It is therefore appropriate for a court to reference the burdens of proof articulated by McDonnell Douglas in determining whether the parties have come forward with sufficient evidence to make a trial necessary."

Interestingly, the Court also discussed the nature of the burdens placed on the parties during the summary judgment stage. The burden is one of "production." The Court noted that cases had often described the burden of production in general terms like "establish" or "show." The Court noted that a nonmovant is only required to "bring forth evidence tending to establish or show the material fact at issue." With respect to the defendant's obligation to produce evidence of a legitimate nondiscriminatory reason for the adverse action, the Court stated that the proper terminology would be "proffer." Likewise, at the summary judgment stage, the plaintiff must "proffer some probative evidence that would be sufficient to sustain her burden of persuasion at trial, but she need not offer conclusive proof to the court in order to withstand summary judgment."

Word choice appears to matter in this context.

Teacher Discharge: Lessons on Standard of Review

2007-07-26T08:59:00.000-05:00

In the recent case of Weston v. Indep. School Dist. No. 35 of Cherokee County, 2007 OK 61, the parties received a lesson in the vagaries of appellate "standard of review" in a teacher discharge case. In that case, a "career" teacher was dismissed by the board of education for the Tahlequah Public School system for "institutional ineffectiveness" and "unsatisfactory teaching performance."

The teacher had apparently been approached by the principal regarding his teaching methods; the principal told the teacher of his plans to "make him a better teacher." The principal had reviewed some of the teacher's previous test scores, and had some concerns, even though the teacher was not shown the test scores in question. The principal suggested that the teacher inprove his particular methodology by instituting a methodology known as "Teaching for Internalization." The method apparently involves: stating objectives, reviewing learned material, involving the learners, restating the objectives, restating the lesson's relevance to past learning and sutdents' experiences, and then summarizing.

Even though the teacher's teaching methods thereafter received satisfactory ratings, the principal recommended that he not be rehired. The superintendent gave him additional time to complete his efforts to improve, but subsequently concurred in the principal's recommendation. The school board agreed, and dismissed the teacher on the grounds of unsatisfactor teaching performance and institutional ineffectiveness.

The teacher petitioned for a new trial before a district court pursuant to 70 O.S. sec. 6-101.27. The section provides for de novo review of the school board's decision; no deference is given to the school board's findings and conclusions. The trial court found that the teacher had substantially complied with the principal's recommendations, and that the test results from students in his class were not substantially different than those of students in other classes.

The Court of Civil Appeals, however, found that the issue was not whether the teacher had complied with the plan of improvement, but whether his teaching was unsatisfactory or ineffective, and that the school board had made an appropriate decision.

(Interestingly, the district court failed to memorialize its findings in a journal entry, but merely read them into the record. After all of the appellate briefing was complete, the Court of Civil Appeals ordered the trial court to enter written findings of fact and conclusions of law, and thereafter supplement the appellate record with the findings. After the new findings were included in the appellate record, the Court of Civil Appeals allowed the parties to submit supplemental briefing related to the written findings. On certiorari, the Oklahoma Supreme Court held this to be an appropriate procedure.)

The Supreme Court of Oklahoma reversed and found that the appellate standard of review effectively prevented the Court of Civil Appeals from reversing the trial court's de novo review of the school board's decision. The Court noted that the standard before the court on appeal is "whether there is any compentent evidence to support the trial court's decision." The appellate court is prohibited from weighing the evidence. Only if the decision was clearly erroneous as a matter of law may the trial judge's findings not be accepted.

The Court also noted the importance of the teacher tenure law, finding that it "was intended to give job security to competent and qualified teachers and to protect them from dismissal or non-renewal for political, personal, arbitrary or discriminatory reasons." Tenure status grants teachers "substantive rights in their continued position." The Court ultimately held that the standard of review required affirmance of the trial court's decision:

There was testimony on Mr. Weston's behalf from a number of former students and their parents. Eighteen parents and students testified, in almost one-hundred pages of testimony, praising Weston's teaching and his effectiveness as a teacher. Students testified that they were not bored in class, that they had worked on special projects and had worked in groups, etc., in contradiction to the assertions of the administration. Those parents and students who were asked why they came to testify for Mr. Weston responded, variously, that it was because he was a good teacher, they did not believe that he should have been fired and they were surprised to learn that he had been fired. School District attempted to discredit their testimony because all of the students who testified made As and Bs in Mr. Weston's classes, suggesting that they were not representative. The burden, however, was on the School Board, who could have called as witnesses students or parents of students who felt adversely affected by Weston's teaching, which was one of the charges leveled at Weston.

The trial judge weighs the evidence and determines the credibility of witnesses and the weight to be given to their testimony. The trial judge applied the correct standard under the Teacher Due Process Act and found that the school district had failed to prove by a preponderance of the evidence that the teacher should be dismissed on the grounds of instructional ineffectiveness and unsatisfactory teacher performance. Because there was competent evidence supporting the trial judge's decision, it will be affirmed on appeal.

Discharge of HEAL Loans in Bankruptcy

2007-07-24T19:48:00.000-05:00

The Tenth Circuit issued an interesting decision today regarding discharge of certain student loans known as "HEAL" Loans (more fully known as "Health Education and Assistance Loans"). Such loans are available only for education expenses incurred in the pursuit of a degree in the field of health or medicine. The particular debtor had obtained the loans for purposes of completing a chiropractic degree. Ultimately, he never completed the degree. Later in life, he sought to discharge the loans in a Chapter 7 bankrutpcy. School loans are apparently not normally dischargeable in bankruptcy and, specifically, a HEAL loan is not dischargeable unless the bankruptcy court finds (among other things) that the "nondischarge of such debt would be unconscionable." 42 U.S.C. sec. 292f(g). The bankruptcy court had entered an order finding the debt to be dischargeable. The Bankruptcy Appellate Panel affirmed.

The Tenth Circuit Court of Appeals, in an opinion by Judge Ebel, reversed. The Court held that the unconscionability standard "is a heavy one and is placed squarely on the debtor." The proper standard for analyzing this issue is one of the "totality of the circumstances" -- "bankruptcy courts should examine the totality of the facts and circumstances surrounding the debtor and the obligation to determine whether nondischarge of the obligation would be unconscionable."

The Court listed several factors for bankruptcy courts to consider in analyzing the "unconscionability" issue: (1) the debtor's income, earning ability, health, educational background, dependents, age, accumulated wealth, and professional degree, (2) the debtor's claimed expenses and standard of living, (3) whether the debtor's condition is likely to continue or improve, including whether the debtor has attempted to maximize his income by seeking or obtaining stable employment and whether the debtor is capable of supplementing his income through secondary part-time or seasonal employment, (4) whether the debtor's dependents are, or could be, contributing financially to their own support, (5) the amount of debt and the rate at which interest accrues, and (6) the debtor's good faith. The key question is whether nondischarge would be "shockingly unfair, harsh, or unjust, or otherwise unconscionable." Given the stringency of the standard, the Court was content that, in all but the most difficult cases, the question "will be obvious."

The Court analyzed each of the factors with respect to this particular debtor and found that the debt should not be discharged, determining that the bankruptcy court's findings to the contrary were "clearly erroneous." Judge Ebel, for the Court, concluded:

The above factors paint a picture of Mr. Woody as a man who has struggled to earn a decent income for much of his life, but who has in recent years found employment that utilizes his skills and provides him with a reasonable income. He has lived a relatively frugal existence, but has also chosen to devote a portion of his income to certain expenses that were not necessary to maintain his standard of living. While he was aware of the significant debts he had accrued in educational loans, he made very little effort to address these obligations and has effectively allowed them to languish for more than two decades . . . . Mr. Woody now finds himself approaching retirement age, making a decent income for the time being but concerned about his lack of retirement savings and the potential for expensive health problems in the future . . . . Under these circumstances — in particular, Mr. Woody’s present level of income and his lack of effort to make payments toward his educational loans despite the apparent availability of funds from which he could have done so — nondischarge of his HEAL loan debt would not be “excessive” or “exorbitant,” nor would it “[lie] outside the limits of what is reasonable or acceptable,” or be “shockingly unfair, harsh, unjust,” or “outrageous.”

While we do not doubt that Mr. Woody faces financial difficulty in the future based on his age, health, and lack of significant retirement savings, we cannot ignore the fact that he has gained steady, full-time professional employment and yet has failed to confront in good faith the obligation that he assumed when he accepted a HEAL loan, a failure that persisted even as he put away money for his own retirement and undertook voluntary expenses such as furniture storage, union membership, charitable contributions, and excess life insurance . . . We do not think that Congress intended the discharge provision of sec. 292f(g) to allow a debtor to spend decades without making loan payments, even after having worked full time for several years, then to receive a discharge of his HEAL loan obligations because his health begins to fail as he approaches retirement age.

A Record Pace for Civil Lawsuit Filings

2007-07-21T21:02:00.000-05:00

For good or ill, the filing of civil lawsuits is on the upswing. (See here and here.) Between January and June of 2007, 9,522 civil lawsuits were filed in Tulsa County District Court. For the same time last year, only 8,077 civil lawsuits were filed. According to the article, a large portion of the increase was due to the filing of lawsuits requesting money damages not exceeding $10,000.00. There was a only a modest increase in the number of lawsuits requesting more than $10,000.00 in damages. The article, which quotes Judge Russell Hass, indicates that part of the increase may relate to migration of small claims to the middle tier docket. Others blame the recent bankruptcy reform laws, which have apparently made it more likely that debtors will be sued. The article indicates that Tulsa County's record for total number of cases filed (in one year) was in 2003, when 17,082 civil lawsuits were filed.

The website for the Tulsa County District Court can be found here. You can search the Tulsa County District Court Docket here.

Football and the Courts

2007-07-21T13:51:00.000-05:00

There was interesting article in the Tulsa World today (here and here), wherein the world of grade school football (yes, grade school football) intersected with the state and federal court system. A third grade football player and his father sought a court order forcing the Indian Nations Football Conference to allow the boy to enter the third-grade football draft or, alternatively, to hold the draft until the question of the child's residency could be settled. The child and his family live in the Union school district, but had made plans to move into the Jenks school district. The lawsuit apparently had a unique sense of urgency because the draft is scheduled for Sunday, July 22, 2007.

The boy and his father initially filed their petition in state court (to be heard by District Judge Gordon McAllister). They had also requested an emergency restraining order. However, the Indian Nations Football Conference filed a Notice of Removal, requesting that a federal judge hear the case. The conference argued that the plaintiffs were pursing a federal claim under 42 U.S.C. sec. 1983.

The federal case was initially assigned to Judge G. Frizzell, but, because of a conflict, the case was re-assigned to Judge C. Eagan. The case did not last long in federal court. In a sua sponte Order, Judge Eagan remanded the case back to state court. The Court found that the plaintiff had not pursued a federal claim in his petition. The plaintiffs' counsel had apparently informally told the defendant that he planned to file a claim under the 14th Amendment. However, the Court found this oral statement between counsel insufficient for purposes of federal question subject matter jurisdiction. "[A]n intent to revise a petition does not meet the 'face of the well-pleaded complaint rule.'"

The remand order sent the case back to state court, where both sides appeared before Judge McAllister. Judge McAllister apparently urged the parties to work out an agreement. And they did. The boy will be placed into a "blind draft" to determine which Jenks team he will be on, and his family must move into a house in the Jenks district. According to the article, the football conference, which includes Jenks, Union and 29 other districts, requires players to live in the districts in which they are playing. The rule is in place to prevent recuiting.

A New Pleading Standard

2007-07-18T22:27:00.000-05:00

Rule 8 of the Federal Rules of Civil Procedure requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." And, for years, the federal standard for dismissal of a complaint for failure to state a claim was that "a complaint should not be dismissed . . . unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45-45 (1957).

Well, things have changed. Maybe. In Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), the U.S. Supreme Court appears to have adopted a different -- more amorphous -- standard. The Court stated that, while a complaint need not contain detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than "labels and conclusions . . . Factual allegations must be enough to raise a right to relief above the speculative level." The threshold requirement of Rule 8(a)(2) is that the "plain statement" possess enough heft to "show that the pleader is entitled to relief." The Court described the requirement as one of "plausibility." The factual allegations must plausibly state a claim. The Court laid Conley to rest:

On such a focused and literal reading of Conley's “no set of facts,” a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some “set of [undisclosed] facts” to support recovery . . . . It seems fair to say that this approach to pleading would dispense with any showing of a “ ‘reasonably founded hope’ ” that a plaintiff would be able to make a case . . .

We could go on, but there is no need to pile up further citations to show that Conley's “no set of facts” language has been questioned, criticized, and explained away long enough. To be fair to the Conley Court, the passage should be understood in light of the opinion's preceding summary of the complaint's concrete allegations, which the Court quite reasonably understood as amply stating a claim for relief. But the passage so often quoted fails to mention this understanding on the part of the Court, and after puzzling the profession for 50 years, this famous observation has earned its retirement. The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.

Yet, in an opinion issued subsequent to Twombly, the U.S. Supreme Court held that the Tenth Circuit improperly dismissed a sec. 1983 claim for failure to state a claim. See Erickson v. Pardus, 127 S. Ct. 2197 (2007). Citing Twombly, the Court stated that "[s]pecific facts are not necessary; the statement need only 'give the defendant faire notice of what the claim is and the grounds upon which it rests.'" The Court held that the plaintiff had adequately stated a claim by alleging that his medication had been withheld and that prison officials were refusing treatment. The plaintiff, who was pro se, had also attached certain documents to his complaint.

Aside from Erickson, the Tenth Circuit Court of Appeals has already latched on to the Twombly standard. In The Ridge at Red Hawk, L.L.C v. Schneider, 2007 WL 1969681 (10th Cir. 2007), the Court (via Judge Kelly), recognized the new Twombly standard. Quoting Twombly, the Court noted that a complaint must contain "enough facts to state a claim to relief that is plausible on its face." In other words, the plaintiff must "nudge his claims across the line from conveivable to plausible."

Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.

In another case, the Tenth Circuit discussed the Twombly and Erickson cases, and re-emphasized that the standard was one of "plausibility" -- courts should look at the "specific allegations in the complaint to determine whether they plausibly support a legal claim for relief." See Alvarado v. KOB-TV, L.L.C., 2007 WL 2019752, 7 n.2 (10th Cir. 2007); see also Nasious v. Two Unknown BICE Agents, 2007 WL 1895877 (10th Cir. 2007) ("After all, these are, very basically put, the elements that enable the legal system to get weaving -- permitting the defendant sufficient notice to begin preparing its defense and the court sufficient clarity to adjudicate the merits."); White v. Ockey, 2007 WL 1600483 (10th Cir. 2007) (affirming dismissal of Fair Housing Act claim because "the complaint [was] so bare of pertinent factual allegations"). Notably, Judge Payne from the Northern District of Oklahoma has applied Twombly in a recent decision.

An aside: the new Twombly standard does not apply in the state court system. Oklahoma state courts follow what one might call a hyper-Conley standard. A petition filed in state court cannot be dismissed for failure to state a claim "unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle him to relief." See Fanning v. Brown, 2004 OK 7, 85 P.3d 841. The Fanning Court did state that a plaintiff's pleading burden consisted of providing notice of the claim and "the grounds upon which they rest," implying that some factual recitation would be appropriate.

Educational Funding: Standing and Political Questions

2007-07-16T21:48:00.000-05:00

Despite the Oklahoma Supreme Court's willingness to exercise its muscle to strike down certain recent legislation, (see here), the Court has also recently held that it could not review a particular lawsuit because it presented a non-justiciable political question. In Oklahoma Education Ass'n v. State ex re. Oklahoma Legislature, 2007 OK 30, 158 P.3d 1058, the Oklahoma Education Association and three school districts (Foyil, Western Heights, and Jenks) sued the Oklahoma legislature, including certain individual senators and representatives, arguing that the state legislature had failed in its duty to provide funding for common education. The plaintiffs alleged that the legislature thereby deprived school children of a constitutional right to a uniform opportunity to receive a "basic, adequate education according to standards set by the legislature, and deprived school districts of the ability to fulfill their constitutional and statutory duties to meet "contemporary educational standards established for every child."

The plaintiffs sought a declaration that the unfunded cost of meeting stautory education standards "exceeds one billion dollars" and that the unfunded capital needs of Oklahoma school districts "exceeds three billion dollars." The plaintiffs requested the Court order the legislature to design, formulate, adopt and fund a comprehensive system of educational funding, and to retain jurisdiction until the legislature had implemented the system.

The Court held that dismissal of the lawsuit was appropriate for two reasons: standing and justiciability.

Standing. The Court held that the OEA did not have standing to advocate on behalf of Oklahoma students. The OEA did not establish that any of its members were students. "As the OEA's members cannot vicariously assert injury to the constitutional rights of Oklahoma's students, neither can the OEA." The Court also held that the school district-plaintiffs failed "to allege facts which support[ed] their standing to assert the rights of all Oklahoma students." The Court noted that it is hesitant to address the constitutionality of a legislative act until presented with a proper case "in which it appears the complaining person has been or is about to be denied a right or privilege to which the person is lawfully entitled." The Court also disposed of the school district's argument that their standing could be based on their duty to comply with unfunded or partially-funded legislative mandates or risk sanctions or other penalties. The Court held that the Oklahoma Constitution imposed on the Legislature the duty to fund the school system, and that school districts and their boards are "but the vehicles which the Legislature uses to carry out this constitutional duty." The constitutional provisions impose no duty on local school districts, school boards, or school employees to maintain or establish public schools. Their standing arguments could therefore not be found in the state's unfunded mandates.

Political Question. The Court also held that it would be futile to allow Plaintiffs to amend their petition, and that dismissal with prejudice was therefore appropriate. This is because, even if the plaintiffs had standing to pursue their claims, the case presented a non-justiciable political question.

The Court noted that the Oklahoma Constitution charges the Legislature -- not the Courts -- with the duty to establish a public school system. The "Legislature has few constitutional restraints in carrying out its duty to establish and maintain a free public educational system." Fiscal policy is exclusively within the Legislature's power. The Court held that the plaintiffs were "attempting to circumvent the legislative process by having this Court interfere with and control the Legislature's domain of making fiscal-policy decisions and of setting educational policy by imposing mandates on the Legislature and by continuing to monitor and oversee the Legislature. To do as the plaintiffs ask would require this Court to invade the Legislature's power to determine policy. This we are constitutionally prohibited from doing."

Update on State Constitutional Challenges

2007-07-14T09:18:00.001-05:00

A previous post discussed the Oklahoma Supreme Court's decision to strike down part of the state's workers compensation laws. In that case, the Court found that the law inappropriately limited the worker's compensation court's ability to consider certain evidence in assessing the degree of a claimant's disability. (According to the Court, the law inappropriately [and unconstitutionally] restricted the worker's compensation court's determination of "impairment" and "disability" to the range of opinions provided by the treating physician and the independent medical examiner.)

The Court's momentous decision has apparently had a significant political response. The decision is the subject of an article in the Tulsa World, (available here and here), where certain lawmakers have "vowed to respond to the opinion." In the article, the paper quotes the Senate Democratic Leader (Mike Morgan) as saying that the legislature will respond in a positive manner in the next legislative session. Sen. James Williamson, who co-chairs the Senate Judiciary Committee, believes the ruling will negatively impact the state's ability to recruit businesses, and said it was a "key factor in the workers comp reform bill." Williamson was critical of the Court's decision to strike the statute, noting that "every time we make one step forward the Supreme Court puts us two steps back."

Welcome to Picher, Oklahoma

2007-07-14T01:38:00.004-05:00

This billboard sits directly in front of City Hall in Picher, Oklahoma, located in the far northeast corner of the state. For those unfamiliar, the Picher mines supplied a large percentage of the zinc and lead used to manufacture bullets from World War II through early Vietnam.

Working the mines left behind enormous piles of chat that perpetually dust the surrounding community of 20,000 with a residue laden with zinc, lead and cadmium.

From the most recent EPA report (June, 2007): "[T]he percentage of children with elevated blood lead levels remains well above state and national averages." The full report can be found here.

The New Five-Part "Garcetti-Pickering" Test

2007-07-12T21:46:00.000-05:00

Following a recent Supreme Court case, Garcetti v. Cebalis, 126 S.Ct. 1921 (2006), freedom of speech retaliation claims are now governed by a new five-part test. In Garcetti, the Court held that speech by a public official is only protected if it is engaged-in as a private citizen, not if it is expressed as part of the official's public duties. (An audio recording of the oral argument for Garcetti can be found here.)

Prior to Garcetti, courts charged with evaluating such free-speech claims used a test called the "Pickering-Connick" test. However, in the aftermath of Garcetti, the test has been referred to as the "Garcetti/Pickering" analysis. And, the Courts have added an additional step to the traditional four-part test.

In evaluating retaliation claims, the district court now asks the following questions:

(1) Does the governmental employee speak "pursuant to his official duties"? If so, there is no constitutional protection because the restriction on speech "simply reflects the exercise of employer control over what the employer itself has commissioned or created." Garcetti, 126 S. Ct. at 1960.

(2) If the employee does not speak pursuant to his official duties, but instead speaks as a citizen, is the subject of the speech is a matter of public concern? If the speech is not a matter of public concern, the speech is not protected.

(3) If the employee speaks as a citizen on a matter of public concern, does the employee's interest in commenting on the issue outweigh the interest of the state as employer?

(4) Assuming the employee's interest outweighs the state's interest, was the employee's speech a "substantial factor or motivating factor in a detrimental employment decision"? The employee has the burden of showing this.

(5) Finally, if the employee established that his speech was such a factor, would the employer have taken the same action against the employee in the absence of the protected speech? The employer has the burden of showing this.

The first three steps are to be resolved by a court, and the last two are ordinarily for the trier of fact.

The Tenth Circuit has recently discussed these factors -- in the context of the new 5-part Garcetti-Pickering test -- in the case of Brammer-Hoetler v. Twin Peaks Charter Academy, 2007 WL 2007546 (10th Cir. July 12, 2007). In that case, several former teachers sued a school district claiming they were terminated and retaliated against for exercising certain first amendment rights. The Court reversed a summary judgment in part, but found that a large portion of the plaintiffs' First Amendment claims were barred by the new Garcetti analysis.

The Brammer-Hoetler court struggled to refine the analysis related to determining when an employee speaks pursuant to his official duties. Garcetti declined to articulate a formula for such determinations. After Brammer-Hoetler, it is clear that speech relating to tasks within an employee's "uncontested employment responsibilities" is not protected from regulation (even if such speech relates to an aspect of the job that is not part of the employee's everyday functions). This includes speech that is "generally consistent with the type of activities the employee was paid to do."

An employee's official job description is not conclusive. Speech may relate to official duties even if it deals with activities the employee is not expressly required to perform. If an employee engages in speech during the course of performing an official duty and the speech contributes to the employee's performance of the official duties, the speech is made pursuant to the employee's official duties. Yet, not all speech that occurs at work is made pursuant to the employee's official duties. Rather, the court takes "a practical view of all the facts and circumstances surrounding the speech and the employment relationship."

In Brammer-Hoetler, the Court found nearly all of the speech related to the teacher's "duties as teachers," including: (1) the school's expectations of student behavior, (2) the school's curriculum and pedagogy, and (3) the school's expenditures on instructional aids, furniture and classroom computers. The Court nevertheless held that certain matters were not made pursuant to their official duties, including (1) the resignations of other teachers, (2) whether the school's code of conduct restricted their freedom of speech, (3) staffing levels, (4) the school's expenditures on salaries and bonuses, (5) criticisms of the school board, (6) the visibility of the superintendent and the school board at events, and others.

However, through application of the remainder of the 4 steps of the Garcetti-Pickering test, the Court narrowed plaintiffs' claim to four discrete areas of speech: (1) discussions regarding whether the code of conduct restricted their freedom of speech, (2) matters related to the superintendent's restrictions on speech and association, (3) speech concerning whether the school charter should be renewed, and (4) comments regarding the upcoming board elections. "Speech concerning potential illegal conduct by government officials is inherently a matter of public concern . . . The prospect that the Acadamy's charter might not be renewed is of public concern . . . [and] political speech regarding upcoming Board elections is undoubtedly a matter of public concern." The matter was remanded to the district court for additional proceedings, including the issue of whether the superintendent was entitled to qualified immunity.

Judge Easterbrook, from the Seventh Circuit, has stated that public employers must be able to react to events -- including statements -- that reveal whether employees are faithfully performing their job functions:

Public employers must be able to change assignments in response to events (including statements) that reveal whether employees will be faithful agents of the decisions made by the politically accountable managers. It promotes rather than undermines first amendment values when those who make decisions, and are held accountable for them at the polls, can ensure their implementation within the bureaucracy. Chief Gulledge was entitled to insist that his subordinates not play the “Yes, Minister” game and undermine his directions. The power of transfer is essential if the top of the bureaucracy is to see its decisions through.

See Mills v. City of Evansville, Ind., 452 F.3d 646, 658 (7th Circ. 2006) (cited in Brammer-Hoetler). Further cases will undoubtedly refine the Garcetti-Pickering analysis.

Frontline Justice

2007-07-10T21:44:00.000-05:00

The Tulsa World recently published an article devoted to the 70+ attorneys who volunteer their time for the benefit of the public and the Court. The article by David Harper can be found here.

When stripped of television and anecdotal stories of runaway juries, law and justice in the United States is typically doled out in the conference rooms of America. The overwhelming majority of cases filed are ultimately disposed by settlement or Court order. In this regard, adjunct settlement judges serve as the legal surrogate to Article III of our Constitution.

Considering the framers only provided for one court - the Supreme Court - there is little doubt they placed confidence in the wisdom of future courts to fashion these unique dispute resolution systems.

Initiative Petitions

2007-07-09T20:41:00.000-05:00

Oklahoma is unique in that it allows citizens the right of iniative petition. The purpose is to allow the people to propose laws and, following a petition process, attempt to enact them into law through a vote at the polls. The right is anchored in the Oklahoma Constitution, Art. 5, sec. 1, which generally provides "the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature."

The Oklahoma Supreme Court has stated that this "fundamental and precious right is zealously protected," but that the right is not absolute. In re Initiative Petition 379, 2006 OK 89, 155 P.3d 32. Any citizen can protest the sufficiency of the initiative petition, and the Supreme Court must review the petition to ensure it complies with the rights and restrictions established by the legislature and the Courts.

And, of the three initiative petitions proposed this year, the Supreme Court has nullified each one. In a well-publicized opinion, the Court struck the "TABOR" petition, which would have set limits on the growth of state spending and would have required that surplus funds be placed in a constitutional emergeny fund. See In re Initiative Petition No. 379, 2006 OK 89. The Court held that the petition had to be stricken because of the mass involvement of out-of-state circulators in the signature-gathering process. The Court found a pervasive pattern of wrongdoing and fraud sufficient to strike the entire petition. The Court was obviously concerned that the TABOR initiative was not an Oklahoma petition, circulated by Oklahomans interested in changing Oklahoma law; rather, the Court found it was a campaign funded primarily by out-of-state organizations. (It is notable that the Court issued an early order in the case striking the petition, see 2006 OK 60, and later issued its lengthy opinion, see 2006 OK 89.)

In In re Initiative Petition No. 384, 2007 OK 48, the petition proposed a new law requiring school districts to expend 65% of their "operational expenditures" on "classroom instructional expenditures." In a 5-4 opinion, the Court struck the petition because it failed to contain an adequate "gist." The "gist" is a short statement placed at the top of each signature page (of the petition) attempting to describe the proposed legislation. The language of the "gist" was somewhat detailed, yet the Court found it insufficient because it failed to adequately describe the sanctions contained in the law for a particular school district's failure to comply with the proposed law.

Finally, in Terry v. Bishop, 2007 OK 29, the Court struck an initative petition which sought to rezone property to a single family residential district for a period of 10 years. The property had previously been zoned to allow the development of a new hospital. The district court refused to order the question be placed on the ballot, and the Supreme Court affirmed. The Court held that the petition was legally insufficient because it unconstitutionally sought to bind the city from exercising its legislative power to rezone.

It is clear that the Court has no qualms with striking an initiative petition when the petition appears to violate constitutional provisions; this is true, even where the initiative petitions are highly political in nature.

Qualified Immunity and the "Order-of-Battle"

2007-07-07T21:22:00.000-05:00

Do you like your Constitution raw or well done? The recent Supreme Court decision in Scott v. Harris, 127 S.Ct. 1769 (2007),* contains a concurrence by Justice Breyer questioning the Saucier framework in civil rights cases for deciding qualified immunity by requiring that courts find a constitutional violation before proceeding to an immunity analysis. As argued by Justice Breyer, this leads courts to issuing more and unnecessary opinions on constitutional questions.

Saucier itself is a two pronged analysis: was a constitutional right violated, and, if so, were the contours of the right sufficiently clear that a reasonable person would know their conduct violated clearly established law? If reasonable minds could differ, then qualified immunity applies. (Other cases describe qualified immunity as protecting all but the “plainly incompetent,” or “those who knowingly violate the law”).

In Scott, Justice Breyer complained that Saucier forces district courts to issue unnecessary constitutional decisions before disposing of cases on immunity grounds: “the order-of-battle rule violates that older, wiser judicial counsel not to pass on questions of constitutionality ... unless such adjudication is unavoidable.” Scott, 127 S.Ct. at 1780 (citations omitted).

Bolstering his critique, Justice Breyer points out that Saucier’s “order-of-battle,” “may immunize an incorrect constitutional ruling from review,” id, where a case is disposed on the second prong. Justice Breyer further argues that “order-of-battle” “will spawn constitutional rulings in areas of law so fact dependent that the result will be confusion rather than clarity.” Id.

And Justice Breyer is not alone. Joined by 28 States which filed amici briefs, and, most likely by Justices Ginsberg and Stevens, (if you accept the concurrence in Saucier as evidence), there is some momentum for change.

Of course, this momentum does not swing one way only. Saucier itself grounded the wisdom of resolving constitutional questions in principle building, or the establishment of legal guide posts for subsequent courts:

“In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law's elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case.” Saucier v. Katz, 533 U.S. 194, 201 (2001).

The contrast between Saucier and Justice Breyer could not be more clear, which gets back to the initial question: how do you like your Constitution, raw or well done?

*(The Scott decision is noteworthy as the first opinion in which the Court embeded a web link, which in this case directs the user to a video of the car chase at issue. The video can be found here).

State Constitutional Challenges

2007-07-07T11:32:00.000-05:00

The Oklahoma Supreme Court has, of late, been amenable to challenges of state statutes as violative of the Oklahoma Constitution. For instance, in the recent case of Conaghan v. Riverfield Country Day School, 2007 OK 60, (which is available here), the Court analyzed a worker's compensation statute that created a rebuttable presumption in favor of the treating physician's determination of the extent of the claimant's disability. (The statute allowed the employer to select the treating physician.) One subsection of the statute, however, allowed the presumption to be rebutted only where the opinion of an independent medical examiner showed the opinion of the treating physician was not supported by "objective medical evidence." In such a case, the statute directed the worker's compensation court to follow the opinion of the independent medical examiner, the opinion of the treating physician, or establish its own opinion "within the range of opinions of the treating physician and the Independent Medical Examiner."

The Court first rejected a constitutional challenge to the rebuttable presumption, finding it did not "change the value or weight of the evidence," but merely imposed upon the opposing party "the duty to offer evidence to the contrary." The Court, nevertheless, was troubled by the subsection limiting the scope of evidence available in rebutting the presumption. The Court held that the language of the statute impermissibly encroached on the powers of the judicial branch of government (in conflict with Oklahoma Constitution, art. 4, sec. 1) by attempting to "predetermine the range of the adjudicative facts" and improperly invaded "the judiciary's exclusive constitutional prerogative of fact-finding." In other words, the subsection gave determinative effect to the opinions of the medical examiner and the treating physician, even in situations where such opinions were not supported by objective medical evidence. The Court severed the offending subsection from the remainder of the worker's compensation act, and remanded the case.

In another recent case, Zeier v. Zimmer, Inc., 2006 OK 98, 152 P.3d 861, (which is available here), the Court addressed the constitutionality of a statute requiring that a plaintiff's attorney file an affidavit which established that an expert agreed that a patient’s medical malpractice lawsuit had merit. The Oklahoma Supreme Court found the affidavit requirement was unconstitutional pursuant to the section of the Oklahoma constitutition (Article 5, sec. 46) which proscribes certain "special laws." The Court held that the affidavit law was a "special law" that was prohibited by the Oklahoma constitution because it treated medical malpractice cases differently than all other negligence cases. In addition, the Court found that the affidavit requirement was an unconstitutional "barrier to the access to courts" in violation of Article 2, sec. 6. The Court held that medical malpractice plaintiffs cannot be forced to incur the cost of consulting with an expert witness at the cost of between $500 and $5,000 before they may file their lawsuit.

Conaghan and Zeier may indicate that the Court is more amenable to accepting, or at least considering, challenges to state statutes on state constitutional grounds. (It should be noted that the Court has probably rejected a similar number of constitutional challenges. For instance, see here, here, and here).

Brown v. Creek County, 2007 OK 56

2007-07-05T21:01:00.000-05:00

In answering certain certified questions from the District Court for the Northern District of Oklahoma, the Oklahoma Supreme Court faced the question of whether the time limitations contained in the Oklahoma Governmental Tort Claims Act ("GTCA") or the statute of limitations contained in 12 O.S. sec. 95(A)(11) applied to the plaintiff's claim. The GTCA generally requires that any action brought under the GTCA be filed within 180 days after the claim is denied or deemed denied. The statute of limitations, on the other hand, appeared to require that certain prisoner-lawsuits be brought within one year of "accrual."

HELD: The Court first addressed the date on which a GTCA claim "accures." While recognizing disparate case law on the issue, the Court ultimately concluded that a review of the more "prevalent" articulations "leads one to the inescapable conclusion that a cause of action does not accrue until the claim may be maintained." In the case of a GTCA claim, a claim cannot be maintained until the claim has been denied (or until the claim has been "deemed" denied). This is because the plaintiff has no access to the courts while awaiting the political subdivision's decision.

Once the GTCA claim has "accrued," the GTCA itself governs the time limit within which the action must be filed. The statute of limitations contained in 12 O.S. sec. 95(A)(11) apparently has no application in such a situation. The language of the GTCA compelled this result, as did the principle that, in the case of a conflict, the specific controls the general.
Opinion

Miller Dollarhide, P.C., v. Moshe Tal, 2007 OK 58

2007-07-05T20:15:00.000-05:00

The plaintiff had, on several occasions, requested that the trial judge recuse from the case on the basis of "bias." The trial judge refused. While the plaintiff pursued several remedies related to the recusal issue, the trial court entered a default judgment against the plaintiff. The plaintiff later attempted to have the judgment vacated in light of the pending recusal proceedings, but the trial judge denied his request.

HELD: The trial court erred in continuing to entertain proceedings during the pendency of the disqualification process. "When a Rule 15 proceeding to seek disqualification of a trial judge is initiated, the trial court must refrain from presiding over the case until the disqualification ruling is memorialized and the movant has, at the movant's option, exhausted the Rule 15 procedure." In fact, the trial court has no discretion in this regard; it must refrain from further participation, lest a party's right to due process of law be violated.

The Court also held that the trial court abused its discretion in refusing to disqualify on the basis of "bias." The Court cited certain dialogue between the trial judge and the plaintiff, and held that "although the trial court may have believed himself to be unprejudiced, unbiased and impartial, circumstances . . are of such a nature at to cause doubts as to the impartiality. . . [E]rror, if any, should be made in favor of disqualification."
Opinion

Williams v. CSC Credit Serv's, 07-255-CVE

2007-07-05T18:19:00.000-05:00

Williams filed suit under both the Oklahoma Consumer Protection Act, (OCPA) (15 O.S. 751 et seq.), and the Fair Credit Reporting Act, (FCRA) (15 U.S.C. 1681 et seq), alleging Defendant credit reporting agency wilfully and maliciously refused to correct his credit report.

HELD: Willaims' FRCA claim is regulated by the Federal Trade Commission. The OCPA, in turn, exempts all claims that are regulated by other agencies. Therefore, because the FTC regulates Williams' FRCA claim, he cannot proceed under the OCPA.

Opinion

Claims of Deliberate Indifference

2007-07-05T10:58:00.000-05:00

The June 2007 issue of For the Defense contains an article regarding civil rights claims of deliberate indifference in the correctional context. The article provides a framework for litigaitng such cases as well as practical defense considerations.

DRI Article - Section 1983 Claims - Deliberate Indifference to Serious Medical Needs

Haven v. Famous Footwear, 06-516-JHP

2007-07-04T12:08:00.000-05:00

Employee filed suit alleging reverse gender discrimination under Title VII. Defendant issued written discovery, and counsel for Employee filed to withdraw from the case. Court stayed case to allow Employee to associate with new counsel, or enter an appearance pro se; Employee did neither. By Employee's failure, Court struck new scheduling conference set for the benefit of Employee's as-yet-to-be-named counsel.

HELD: Employee's failure to associate with new counsel, or otherwise enter appearance pro se (1) frustrated Defendant from obtaining discovery; (2) interfered with the judicial process by causing Court to strike scheduling conference; and (3) undermined authority of Court by failing to abide with various orders. Court found Employee's failure resulted from wilful or inexcusable neglect and therefore the efficacy of lesser sanctions was outweighed by conclusion that anything less than dismissal would result in serial and escalating sanctions.
Opinion

Happy Fourth of July

2007-07-04T10:01:00.000-05:00

The following excerpts come from the Supreme Court opinion protecting flag burning as expressive activity under the First Amendment. The case is Texas v. Johnson, 491 U.S. 397 (1989):

"the constitutionally guaranteed ‘freedom to be intellectually ... diverse or even contrary, and the right to differ as to things that touch the heart of the existing order,’ encompass the freedom to express publicly one's opinions about our flag, including those opinions which are defiant or contemptuous. Nor may the government, we have held, compel conduct that would evince respect for the flag. To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind." Texas v. Johnson, 491 U.S. 397, 414 (1989) (citations omitted);

"We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag-and it is that resilience that we reassert today.

The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. And, precisely because it is our flag that is involved, one's response to the flag burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by-as one witness here did-according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents." Texas v. Johnson, 491 U.S. 397, 419-420 (1989) (citations omitted) (emphasis added).
Opinion

Graubart v. So. Hills Veterinary Hospital, Inc., 06-347-JHP

2007-06-30T23:18:00.000-05:00

Former veterinary employee claimed employer interfered with leave under the FMLA and did not provide reasonable accommodation under the ADA.

HELD: Vet did not employ the minimum number of employees (15) determined necessary to handle the "many nuanced requirements" of the statutes.

Opinion

O’Neal v. Fidelity, 06-184-TCK

2007-06-30T23:16:00.000-05:00

Employee of an Arkansas survey company made UM claim on the company policy after being struck by car while looking through his survey glass. Insurance Co. denied the claim on grounds that Employee was not using the covered vehicle at the time of the accident.

HELD: Connection between Employee vehicle use and accident was too remote to be considered a covered use. That Employee was looking through his survey glass at the time precludes argument that vehicle was in play.

Opinion