Brown v. Creek County, 2007 OK 56

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

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

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

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

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

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

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

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