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OFFICERS & BOARD OF GOVERNORS Allen M. Smallwood, President, Tulsa Deborah Reheard, President-Elect, Eufaula Mack K. Martin, Vice President, Oklahoma City Jon K. Parsley, Immediate Past President, Guymon Jack L. Brown, Tulsa Martha Rupp Carter, Tulsa Charles W. Chesnut, Miami Glenn A. Devoll, Enid Steven Dobbs, Oklahoma City W. Mark Hixson, Yukon Jerry L. McCombs, Idabel Lou Ann Moudy, Henryetta David A. Poarch, Norman Ryland L. Rivas, Chickasha Susan S. Shields, Oklahoma City James T. Stuart, Shawnee Molly Aspan, Tulsa, Chairperson, OBA/Young Lawyers Division

BAR Center Staff

John Morris Williams, Executive Director; Gina L. Hendryx, General Counsel; Donita Bourns Douglas, Director of Educational Programs; Carol A. Manning, Director of Communications; Craig D. Combs, Director of Administration; Travis Pickens, Ethics Counsel; Jim Calloway, Director of Management Assistance Program; Beverly Petry Lewis, Administrator MCLE Commission; Jane McConnell, Coordinator Law-related Education; John Burchell, Information Services Manager; Loraine Dillinder Farabow, Debbie Maddox, Ted Rossier, Assistant General Counsels; Katherine Ogden, Staff Attorney, Tommy Butler, Sharon Orth, Dorothy Walos and Krystal Willis, Investigators Nina Anderson, Manni Arzola, Debbie Brink, Melissa Brown, Brenda Card, Morgan Estes, Johnny Marie Floyd, Matt Gayle, Susan Hall, Brandon Haynie, Suzi Hendrix, Misty Hill, Debra Jenkins, Amy Kelly, Jeff Kelton, Durrel Lattimore, Debora Lowry, Heidi McComb, Renee Montgomery, Wanda Reece-Murray, Tracy Sanders, Mark Schneidewent, Robbin Watson, Laura Willis & Roberta Yarbrough

EDITORIAL BOARD Editor in Chief, John Morris Williams, News & Layout Editor, Carol A. Manning, Editor, Melissa DeLacerda, Stillwater, Associate Editors: P. Scott Buhlinger, Bartlesville; Dietmar K. Caudle, Lawton; Sandee Coogan, Norman; Emily Duensing, Tulsa; Thomas E. Kennedy, Enid; Pandee Ramirez, Okmulgee; James T. Stuart, Shawnee; Leslie D. Taylor, Oklahoma City; January Windrix, Poteau

events Calendar JULY 2010 OBA Young Lawyers Division Board of Directors Meeting; 10 a.m. Oklahoma Bar Center, Oklahoma City; Contact: Molly Aspan (918) 594-0595 27 – 30 OBA Bar Examinations; Oklahoma Bar Center, Oklahoma City; Contact: Oklahoma Board of Bar Examiners (405) 416-7075 29 OBA Lawyers Helping Lawyers Assistance Program Men’s Support Group Meeting; 5:30 p.m.; The Oil Center, West Building, 1st Floor Conference Room; Please RSVP; Contact: Stephanie Alton (405) 840-0231 30 OBA Lawyers Helping Lawyers Assistance Program Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Tom Riesen (405) 843-8444

OBA Strategic Planning Committee Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Deb Reheard (918) 689-9281 24

AUGUST 2010 4

OBA Women in Law Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Renee DeMoss (918) 595-4800

OBA Technology Task Force Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Deborah Reheard (918) 689-9281

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OBA Diversity Committee Meeting; 11 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Marvin Lizama (918) 742-2021

11

OBA Government and Administrative Law Practice Section Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Jami Fenner (405) 844-9900

12

OBA Budget Committee Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Craig Combs (405) 416-7040

13

OBA Family Law Section Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Kimberly K. Hays (918) 592-2800

16

OBA Alternative Dispute Resolution Section Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Andrea Braeutigam (405) 640-2819 For more events go to www.okbar.org/calendar

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The Oklahoma Bar Journal (ISSN 0030-1655) is published three times a month in january, February, March, April, May, August, September, October, November and December and bimonthly in June and July. by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, OK. POSTMASTER: Send address changes to THE OKLAHOMA BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscriptions are $55 per year except for law students registered with the Oklahoma Bar Association, who may subscribe for $25. Active member subscriptions are included as a portion of annual dues. Any opinion expressed herein is that of the author and not necessarily that of the Oklahoma Bar Association, or the Oklahoma Bar Journal Board of Editors.

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Oklahoma Bar Association

table of

contents July 24, 2010 • Vol. 81

• No. 19

page 1547 Events Calendar 1550 Index to Court Opinions 1551 Supreme Court Opinions 1587 Court of Criminal Appeals Opinions 1610 OBA Board of Governors Vacancies and Nominating Petitions

1614 Disposition of Cases Other Than by Publication

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Index To Opinions Of Supreme Court 2010 OK 44 IN THE MATTER OF OKLAHOMA SUPREME COURT RULES, Part I Rules of General Application Rule 1.1 Title, Citation, Scope, Effective Date of Rules and Unsettled Procedure SCAD No. 2010-37................................................................................ 1551 2010 OK 58 STATE OF OKLAHOMA ex rel. W. A. “DREW” EDMONDSON, ATTORNEY GENERAL OF OKLAHOMA Appellant, v. NATIVE WHOLESALE SUPPLY, a Corporation chartered by the Sac and Fox Tribe of Oklahoma, Appellee Case No. 107,241............ 1554 2010 OK 55 CITY OF STILLWATER, OKLAHOMA, a Municipal Corporation, Plaintiff/ Appellant, v. INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 2095, Defendant/Appellee. No. 107,477................................................................................................... 1565 2010 OK 56 State of Oklahoma ex rel. Oklahoma Department of Public Safety, Petitioner, v. District Judge Noma Gurich, Repondent, and Bobbie Castleberry, Individually and as Widow of Kent Castleberry, Deceased, Real Party in Interest. No. 107,740......................... 1569 2010 OK 57 Gregory Ray, Debora Ray, and E.R., a minor, Appellants, v. Broken Arrow Police Department, A. Mauch, City of Broken Arrow, Appellees, and V.P., a minor, and Paula Priebe, Defendants. No. 106,051................................................................................... 1576 IN THE MATTER OF THE SUSPENSION OF MEMBERS OF THE OKLAHOMA BAR ASSOCIATION FOR NONPAYMENT OF 2010 DUES SCBD No. 5654.................................... 1577 2010 OK 54 IN RE: APPLICATION OF RANDY EDWARD PHIPPS, 1724 CONRIDGE DR., EDMOND, OK 73034 FOR SPECIAL TEMPORARY PERMIT TO PRACTICE LAW IN OKLAHOMA UNDER THE PROVISIONS OF RULE TWO, SECTION 5, OF THE RULES GOVERNING ADMISSION TO THE PRACTICE OF LAW IN OKLAHOMA SCBD No. 5645.................................................................................................... 1581 2010 OK 53 IN THE MATTER OF THE SUSPENSION OF MEMBERS OF THE OKLAHOMA BAR ASSOCIATION FOR NON-COMPLIANCE WITH MANDATORY CONTINUING LEGAL EDUCATION REQUIREMENTS FOR THE YEAR 2009 SCBD No. 5655............................................................................................................................................... 1582

Index To Opinions Of Court of Criminal Appeals 2010 OK CR 15 STATE OF OKLAHOMA, Appellant, vs. TORREZ CEASAR, Appellee No. S-2009-366............................................................................................................................................ 1587 2010 OK CR 14 ALFRED BRIAN MITCHELL, Appellant -vs- STATE OF OKLAHOMA, Appellee Case No. D-2008-57........................................................................................................... 1589

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Supreme Court Opinions Manner and Form of Opinions in the Appellate Courts; See Rule 1.200, Rules — Okla. Sup. Ct. R., 12 O.S. Supp. 1996 (1997 T. 12 Special Supplement)

2010 OK 44 IN THE MATTER OF OKLAHOMA SUPREME COURT RULES, Part I Rules of General Application Rule 1.1 Title, Citation, Scope, Effective Date of Rules and Unsettled Procedure SCAD No. 2010-37. June 8, 2010 ORDER Rule 1.1 of Oklahoma Supreme Court Rules is hereby amended by adding thereto subdivision (d). As so amended the Rule is stated below. It shall be effective from this date. (a) Title and Citation. These rules shall be known as the Oklahoma Supreme Court Rules, and may be cited “Okla.Sup.Ct.R. [Rule Number].” (b) Scope and Effective Date. These rules govern proceedings in the Oklahoma Supreme Court and in the Oklahoma Court of Civil Appeals. These rules also have application to certain proceedings in lower tribunals which are incident to appeal or review from decisions of such tribunals.

The rules of general application, Part I of these Rules, shall apply to all proceedings before the Court of Civil Appeals and the Supreme Court.

These rules shall govern all proceedings commenced in the Oklahoma Supreme Court on and after January 1, 1997. In proceedings pending on the effective date, the parties shall comply with these rules to the extent possible. (c) Unsettled Procedure. Any point of practice or procedure which stands unsettled by statutory or decisional law and is not specifically addressed by these rules will be resolved by the Supreme Court as the orderly administration of legal process may require.

dockets posted on the World Wide Web, such as on www.oscn.net or www.odcr. com, in order to enhance the court’s ability to inquire into and protect its jurisdiction.

The court’s present-day capacity to conduct an exploratory review of district court records does not diminish one iota the parties’ duty to provide for this court an adequate record for corrective relief by appeal or otherwise to comply with these Rules.

This order shall be published three times in the Oklahoma Bar Journal and shall be included in the official publication of statutes.

DONE BY THE SUPREME COURT IN CONFERENCE THIS 7TH DAY OF JUNE, 2010. /s/ James E. Edmondson CHIEF JUSTICE Edmondson, C.J., Taylor, V.C.J., Hargrave, Opala, Kauger, Winchester, Colbert and Reif, JJ., concur Watt, J., not voting 2010 OK 59 IN THE MATTER OF A.L.F, N.W.S, AND, J.L.S., ALLEGED DEPRIVED CHILDREN: STATE OF OKLAHOMA, Appellees, v.

JAMES L. SPARKS AND LISA M. SPARKS, Appellants.

No. 106,831. July 6, 2010 ON CERTIORARI TO THE COURT OF CIVIL APPEALS DIVISION III ¶0 Termination of Parental Rights matter in which the trial court determined that there was clear and convincing evidence that parental rights should be terminated as a result of the Parents failure to correct the condition leading to the deprived adjudication. Court of Civil Appeals disagreed and reversed trial court’s findings.

(d) Review of Online District Court Dockets The court may review information found on Oklahoma district court appearance Vol. 81 — No. 19 — 7/24/2010

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OPINION OF THE COURT OF CIVIL APPEALS VACATED AND RULING OF TRIAL COURT AFFIRMED. Heather J. Russell Cooper, Assistant District Attorney., Ardmore, Oklahoma, for Appellee.

Gordon R. Melson, Seminole, Oklahoma, for Appellants.

HARGRAVE, J. ¶1 In May 2006, the State of Oklahoma filed a petition to have the children, A.L.F., N.W.S., and J.L.S. adjudicated deprived. The children’s parents are James and Lisa Sparks. The State sought adjudication on the grounds that the children did not have proper parental care of guardianship and that the Parents’ home was an unfit place for Children due to Parents’ neglect and abuse. More specifically, the State alleged: (1) Children were found living in an unsanitary and unhealthy home without proper furnishings for Children: (2) Father had engaged in inappropriate sexual activity with the child A.L.F.; (3) Father had used inappropriate physical discipline with the child A.L.F.; (4) James Sparks abuses alcohol affecting his ability to properly care for his children; (5) Parents have engaged in domestic violence in front of the Children; and (6) Children are at risk of harm if left in the custody of Parents. ¶2 Parents stipulated to the allegations and waived the adjudication hearing. The trial court entered an Order of Adjudication ordering the Children adjudicated wards of the court as deprived. The Department of Human Services filed an individualized service plan with the trial court. In August 2006, the trial court entered an Order of Disposition wherein it ordered: That the parents shall demonstrate that they have corrected the conditions which caused the children to become deprived by, at a minimum abiding by the following standards of conduct, the failure of which may result in the termination of their parental rights: a. Provide a home that is safe stable, and hygienic, with furniture and appliances suitable to meet the basic needs of the children; b. Demonstrate the ability to provide a stable family environment that combine 1552

the appropriate support, nutrition, education, protection and nurturing; c. Maintain employment that will provide sufficient income to meet the needs of the parents and the wards; d. Complete a substance abuse assessment approved by said Department and complete such course of substance abuse treatment as may be directed by said Department as a result of said assessment and not use unlawfully or abuse controlled dangerous substances, nor associate with those that do and submit to random testing for use of controlled dangerous substances at the request of said Department; e. Complete a course or courses of counseling approved by said Department designed to teach the following: 1. The impart of improper sexual contact with an adult on a child, the role of a parent to prevent the improper contact and how to avoid that improper contact and demonstrate that they can be put into practice that which they have learned; and 2. the impact of domestic violence by adults on children, how to eliminate domestic violence from relationships and demonstrate that they can put into practice that which they have learned.

The trial court also ordered reasonable visitation times between Parents and Children and ordered Parents each to contribute $100.00 per month for Childrens’ support. ¶3 In September 2008, pursuant to 10 O.S. 2001 §7006-1.1, the State filed an Application for Termination of Parental Rights seeking termination of Parents’ parental rights to N.W.S. and J.L.S., alleging Parents had failed to correct the condition leading to the deprived adjudication (§7006-1.A.15); that Children had been in foster care for 15 of the last 22 months (§70061.A.15); and that termination was in the best interest of the Children. A.L.F., was the Father’s stepdaughter. Mother voluntarily relinquished her parental rights to A.L.F. prior to trial. ¶4 Following a December 2008 Bench trial, the trial court entered two separate orders, terminating each Parent’s parental rights to the son, N.W.S. and their daughter J.L.S. At the time of this bench trial N.W.S. was eleven years old and J.L.S. was eight years old. In those orders, the trial court found that the Children’s

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deprived adjudication was caused by or contributed to by the acts or omissions of the Parent; that Parents failed to show the conditions which led to the adjudication of the Children have been corrected, although they have been given more than three months to do so; that the Children have been in foster care for 15 months of the most recent 22 months; and termination of Parents’ parental rights is in the best interest of the children. ¶5 Pursuant to 12 O.S. 2001 §651, The Parents filed a motion to reconsider and motion for new trial based on the grounds that the trial court’s decision was not sustained by sufficient evidence or is contrary to law. The trial court overruled the Parent’s motion to reconsider and the Parents appealed. Court of Civil Appeal reversed finding of the trial court and certiorari was granted to review their opinion. ¶6 In proceedings to terminate parental rights, the paramount consideration is the Health, safety or welfare and best interest of the child. 10 O.S.2001 §7006-1.1(A), Renumbered as 10A O.S. § 1-4-904 by Laws 2009, HB 2028, c. 233, § 263, emerg. eff. May 21, 2009.

Because the presumption is that the child’s best interest lie with family integrity, The State must show by clear and convincing evidence that the child’s best interest is served by termination parental rights. In the Matter of C.G. 1981 OK 131, ¶ 17, 637 P.2d 66. This Court held that appellate courts must canvas the record on review to ascertain whether the trial court’s finding rest on clear-and-convincing proof. In re S.B.C., 2002 OK 83, ¶ 6, 64 P.2d3 1080. Furthermore, clear and convincing evidence is defined as “that measure of degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegation sought to be established.” In re C.G. 1981 OK 131 n.12 637 P.2d 66, 71 citing In re Sherol A.S. 1978 OK 103, 581 P.2d 884. ¶7 After canvassing the record in the instant matter to determine if the trial court’s finding rest on the clear-and-convincing standard, we find sufficient evidence exists to terminate Parents’ parental rights. Evidence was presented that Mr. Sparks engaged in activity that could be considered sexual abuse on A.L.F., the daughter/step daughter to whom Mrs. Sparks voluntarily relinquished her rights. Mr. Sparks also maintained that he committed no acts of domestic violence, however, both Parents admitted that Mr. Sparks slapped A.L.F. in the face and the D.H.S. worker testified that the Vol. 81 — No. 19 — 7/24/2010

slap had broken the child’s nose. Mrs. Sparks characterized this slap as a spanking on the face. Although, all parental rights to this child were relinquished prior to the bench trial, these events bear on the question of the fitness of the parents. ¶8 Evidence was presented at trial that Mr. Sparks is mentally unstable. He has been civilly committed to a mental health facility three times in the three years prior to the bench trial, and once arrested for public intoxication. In one such instance, he was committed after climbing a tree at 1 a.m. with a rope around his neck, threatening to kill himself and a neighbor. He claims not to remember the incident, or any other incidents which resulted in his commitment. In court, he attributed this behavior to post-traumatic stress disorder brought on by the removal of his children, however, he told his D.H.S. caseworker that he has been diagnosed with bipolar disorder. He admits that he is undergoing mental health treatment, but that sometimes he decides not to take his medication. ¶9 The home from which the children were removed was filthy and unfit for children. A D.H.S. worker testified that N.W.S. suffers from encopresis, which is a tendency to smear his feces on wall, clothing, and himself. He also has a habit of urination on his clothing and possessions and has defiant behaviors of anger.

He exhibited encopresis before he was removed from the home and the Parents did not recognize it as a problem. Because of these difficulties, N.W.S. remains in therapeutic foster care.

J.L.S. cannot currently be placed with N.W.S. because of his need for therapeutic foster care. ¶10 The evidence favoring the Parents show that for three months they have secured an acceptable three bedroom house. They are both employed and only a few payments behind on child support. Mrs. Sparks has completed her domestic abuse counseling. Mr. Sparks has nearly completed his sex offender counseling.

A few neighbors and acquaintances testified that the Sparks were basically good people.

The sex offender counselor testified that according to his test results, which are largely based on self-reporting, Mr. Sparks does not have an alcohol dependency problem nor does he show any sexual deviance toward children. ¶11 All of this evidence is overwhelmed by the State’s evidence. The Parents have not maintained the same home for any meaningful

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length of time. They were not current on their child support. They moved from job to job and were fired from some of these jobs for nonattendance. Whether or not Mr. Sparks has a dependence on alcohol, it is clear that when Mr. Sparks does consume alcohol, he behaved extremely erratically. Mr. Sparks is mentally ill and has been civilly committed three times in three years. Whether or not he has tendency towards child sexual abuse, the incident with A.L.F. is very disturbing, coupled with his and Mrs. Sparks attitude toward domestic violence. ¶12 The State must prove by clear and convincing evidence that the child’s best interest are served by terminating the parent’s parental rights, after having shown that the child is deprived because of the acts or omissions of the parent and that the parent has failed to correct the conditions which lead to the adjudication of the child is deprived. 10 O.S.2001 §70061.1(A), Renumbered as 10A O.S. § 1-4-904 by Laws 2009, HB 2028, c. 233, § 263, emerg. eff.

May 21, 2009; in re Matter of S.B.C., 2002 OK 83, ¶5, 64 P.3d 1080. The State has met this burden and the trial court did not err by issuing the order of termination.

OPINION OF THE COURT OF CIVIL APPEALS VACATED AND RULING OF TRIAL COURT AFFIRMED. ¶13 ALL JUSTICES CONCUR.

Commerce Clause, depriving the trial court of subject matter jurisdiction. Both parties appealed. Upon the State’s motion, the matter stands retained for this court’s disposition.

THE TRIAL COURT’S JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS TO BE CONSISTENT WITH THIS OPINION. E. Clyde Kirk, Assistant Attorney General, Oklahoma City, OK, for Appellant Robert N. Sheets and Marc Edwards, PHILLIPS MURRAH P.C., Oklahoma City, OK, for Appellee1 OPALA, J. ¶1 This appeal presents two dispositive issues for the court’s resolution: (1) Is an Oklahoma court a constitutionally sanctioned forum for the exercise of personal jurisdiction to adjudicate an alleged violation of a state statute by Native Wholesale Supply, a nonresident corporation that claims to have no minimum contacts with Oklahoma? and (2) Does federal law bar Oklahoma from enforcing the Complementary Act against Native Wholesale Supply, a tribally-chartered corporation wholly owned by an individual of Native-American ancestry?

We answer the first question in the affirmative and the second in the negative.

2010 OK 58

I

STATE OF OKLAHOMA ex rel. W. A. “DREW” EDMONDSON, ATTORNEY GENERAL OF OKLAHOMA Appellant, v.

NATIVE WHOLESALE SUPPLY, a Corporation chartered by the Sac and Fox Tribe of Oklahoma, Appellee

THE ANATOMY OF LITIGATION

Case No. 107,241. July 6, 2010 ON APPEAL FROM THE DISTRICT COURT IN OKLAHOMA COUNTY ¶0 The State of Oklahoma brought this proceeding against Native Wholesale Supply, a cigarette importer and distributor, alleging violations of the Oklahoma Master Settlement Agreement Complementary Act. Native Wholesale Supply moved to dismiss the suit for lack of personal and subject matter jurisdiction. The District Court, Bryan C. Dixon, trial judge, denied the motion as to personal jurisdiction, but entered judgment for defendant upon finding that enforcement of the Complementary Act against defendant would violate the Indian 1554

¶2 On 23 November 1998 forty-six states, including Oklahoma, entered into an agreement with the four largest American tobacco product manufacturers settling litigation brought by the settling states to recoup from the manufacturers health care expenses incurred by the states as a result of cigarette smoking. The terms of this agreement (the “Master Settlement Agreement” or “MSA”) require each participating tobacco product manufacturer to make an annual payment to each settling state computed in relation to that manufacturer’s volume of cigarette sales in the state. In return, the MSA requires the states to release past, present and certain future claims against the manufacturers. ¶3 In order to prevent tobacco manufacturers not participating in the MSA from gaining a cost advantage over the settling manufacturers and to provide the states with a source of

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money from which to recover tobacco-related health care costs attributable to the sales of cigarettes by non-participating manufacturers, the MSA calls for each settling state to enact and enforce a statute (a “qualifying statute”) requiring all tobacco manufacturers not participating in the MSA who sell cigarettes in a state to make annual payments into an escrow account based on the manufacturer’s relative market share in such state.2 ¶4 Soon after passage of their qualifying statutes, it became clear to the states that non-participating cigarette manufacturers were evading their escrow obligation. Oklahoma, along with several other states, responded to this noncompliance by enacting complementary enforcement legislation. Known as the Master Settlement Agreement Complementary Act (“Complementary Act”)3, this legislation obligates all tobacco product manufacturers whose products are sold in Oklahoma to provide the Attorney General’s office with an annual certification that the manufacturer has either signed on to participate in the MSA or is fully compliant with the qualifying statute’s escrow requirement.4 The Complementary Act requires the Attorney General’s Office to publish on its website an annual list of all non-participating tobacco product manufacturers who have complied with the certification requirement5 and met their escrow obligation.6 This information is thus in the public domain and readily available. ¶5 The Complementary Act also makes it unlawful for any person to “sell or distribute . . . or acquire, hold, own, possess, transport, import, or cause to be imported cigarettes that the person knows or should know are intended for distribution or sale in the State in violation of the Complementary Act.”7 Upon finding a violation of the Complementary Act, a court may order “any profits, gain, gross receipts, or other benefit from the violation to be disgorged and paid to the State Treasurer for deposit in the Tobacco Settlement Endowment Trust Fund.”8 The State, if victorious, is also entitled to recover costs and a reasonable attorney’s fee.”9 ¶6 The Attorney General brought this proceeding against Native Wholesale Supply in the District Court, Oklahoma County, alleging that the Company violated the Complementary Act when it sold, distributed, acquired, held, owned, possessed, transported, imported, or caused to be imported for sale in Oklahoma Seneca brand cigarettes knowing (a) that they Vol. 81 — No. 19 — 7/24/2010

were intended for distribution or sale in the state and (b) their manufacturer was not listed on the Attorney General’s Directory of manufacturers who have complied with the requirements of the Complementary Act. ¶7 Native Wholesale Supply moved for dismissal based on lack of personal and subject matter jurisdiction. The trial court ruled that Native Wholesale Supply had sufficient “minimum contacts” with the State of Oklahoma to warrant the exercise of personal jurisdiction, but dismissed the proceeding on the grounds that enforcement of the Complementary Act against Native Wholesale Supply would violate the Indian Commerce Clause of the United States Constitution. ¶8 Native Wholesale Supply has appealed from the trial court’s decision on personal jurisdiction; the Attorney General has appealed from the trial court’s ruling on subject matter jurisdiction. On motion by the State, the appeals stand retained for this court’s disposition. We now affirm the trial court’s decision as to personal jurisdiction, reverse its ruling as to subject matter jurisdiction, and remand the cause for further proceedings to be consistent with this opinion.

II STANDARD OF REVIEW ¶9 The dispositive issues to be decided are both questions of law. They call for a legal conclusion to be governed by a de novo standard of appellate review.10 When reexamining a trial court’s legal rulings, an appellate court exercises plenary, independent and non-deferential authority.11 III IN PERSONAM JURISDICTION OVER A NON-RESIDENT DEFENDANT ¶10 We begin by addressing whether Native Wholesale Supply has a sufficient affiliation with this State to support her courts’ exercise of personal jurisdiction over it. In personam jurisdiction refers to the power of the court to render a binding judgment against a defendant.12 To establish personal jurisdiction over a non-resident defendant, both the State’s longarm statute13 and the requirements of federal due process14 must be satisfied. We have interpreted our long-arm statute as extending the jurisdiction of the Oklahoma courts to the outer limits of due process.15 The jurisdictional

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analysis therefore comes down to a single determination of whether the exercise of personal jurisdiction comports with federal due process. The outer limits of due process for this purpose have been established by the United States Supreme Court.16 ¶11 The Due Process Clause precludes the issuance of a binding judgment in a forum with which a defendant has established no meaningful contacts, ties, or relations.17 There must be “minimum contacts” between the outof-state defendant and the forum so that litigation in the forum does not offend traditional notions of fair play and substantial justice.18 A nonresident corporation must purposefully direct its activities toward forum residents, thereby invoking on behalf of those activities the benefits and protections of the forum’s laws.19 This requirement “ensures that a defendant will not be haled into a jurisdiction’s courts solely as a result of random, fortuitous, or attenuated contacts”20 or based on “the unilateral activity of another party or a third person.”21 Whether due process is satisfied depends upon the quality and nature of the defendant’s alleged activity in the forum considered in the context of the fair and orderly administration of the laws.22 ¶12 A court’s jurisdiction to render a binding personal judgment historically required the person’s physical presence within the territorial jurisdiction of the court.23 While state lines remain relevant for jurisdictional purposes, the Supreme Court has gradually relaxed the limits placed on state jurisdiction by the Due Process Clause. It has done so explicitly in recognition of the increasingly interstate character of commerce and technological innovations in transportation and communication that make defense of a suit in a foreign jurisdiction less burdensome.24 ¶13 Illustrative of this relaxation is the stream-of-commerce theory of personal jurisdiction, first pronounced by the Supreme Court’s dictum in World-Wide Volkswagen Corp. v. Woodson.25 Under the stream-of-commerce analysis, a state does not violate the precepts of due process if it asserts personal jurisdiction over a corporation that engages in conduct outside the forum that results in goods moving in the stream of commerce into the forum.26 As the Court in Woodson explained, “The forum State does not exceed its powers under the Due Process Clause if it 1556

asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.”27 ¶14 Woodson did not present facts calling for the application of the stream-of-commerce analysis and when the Court next addressed the requirements of the theory in Asahi Metal Industry Co., Ltd. v. Superior Court of California,28 it was unable to agree on precisely what conduct by a defendant would suffice to support a forum’s exercise of personal jurisdiction under the stream-of-commerce analysis. Justice O’Connor and three other justices, delivering the judgment of the Court, opined that “a defendant’s awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State.”29 A plaintiff must show additional conduct by the defendant directed toward the forum to support the exercise of jurisdiction consistent with the Due Process Clause.30 ¶15 Four other justices in a separate writing authored by Justice Brennan saw no need to require additional conduct from a defendant once that defendant intentionally placed a product into the stream of commerce because the metaphorical notion that there is a stream in which commerce flows embodies the idea of purposefulness. “The stream of commerce refers not to unpredictable currents or eddies, but to the regular and anticipated flow of products from manufacture to distribution to retail sale.”31 A participant in this process who is aware that the product with which he or she is connected will be marketed in the forum state cannot claim surprise when summoned to court in that forum or claim that he or she is being subjected to a burden in the forum without a corresponding benefit.32 ¶16 Still another writing in Asahi, authored

by Justice Stevens, declared that, although it was unnecessary to reach the question of minimum contacts, it was their considered opinion that a regular course of dealing that results in deliveries of a large quantity of a product annually over a period of several years would satisfy the “purposeful availment” requirement.33 Because Justice Stevens could discern “no unwavering line . . . between ‘mere awareness’ that a component will find its way into the forum State and ‘purposeful availment’ of

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the forum’s market,” he advocated that the volume, the value, and the inherent dangerousness of the product be taken into account in determining whether a defendant’s conduct amounted to purposeful availment of the forum.34 ¶17 The Asahi decision has created significant confusion in lower courts over the constitutional standard for minimum contacts under the stream-of-commerce theory.35 Most courts that have addressed this problem have approached it as a choice between Justice O’Connor’s “stream-of-commerce plus” version of the analysis and Justice Brennan’s less rigorous standard. Generally overlooked is the fact that between the Brennan-and Stevens-authored writings, five justices in Asahi rejected Justice O’Connor’s view. We have not heretofore chosen between these conflicting versions of the stream-of-commerce theory and we need not wade into that swamp today because Native Wholesale Supply has engaged in conduct that satisfies even the rigorous criterion advocated

by Justice O’Connor. If the Company’s conduct meets that test, then by definition it must exceed the conduct required by the other five justices in Asahi to satisfy due process. ¶18 In assessing Native Wholesale Supply’s conduct under the O’Connor approach in Asahi, it is important to keep in mind that the underlying claim in Asahi was the liability of Asahi Metal, a Japanese manufacturer, for personal injuries allegedly caused by a defective motorcycle tire manufactured by a Taiwanese corporation using a part supplied by Asahi Metal.

Asahi Metal had no contacts, directly or indirectly, with anyone in the forum state, it did not sell the component part in the United States apart from the finished product manufactured by another party, and it played no part in the distribution or sale of the finished product in the forum state. On these facts, Justice O’Connor indicated that there was nothing to tie Asahi Metal to the forum state beyond the mere happenstance that the stream of commerce had swept the finished product into the forum state in response to the actions of an independent third party. Justice O’Connor suggested that Asahi Metal might have had sufficient contacts with the forum state if it had created, controlled, or even just employed the distribution system that brought the product into the forum state.36 It did not do even this, leaving Justice O’Connor to conclude that it had not purposeVol. 81 — No. 19 — 7/24/2010

fully availed itself of the market in the forum state.37 ¶19 Native Wholesale Supply imports Seneca brand cigarettes from Grand River Enterprises Six Nations, LTD, a tribally-owned, Canadianchartered tobacco product manufacturer that conducts operations in Canada. The imported cigarettes are stored in several locations in the United States, including the Free Trade Zone in Las Vegas, Nevada. Native Wholesale Supply then sells the cigarettes to tribal entities in the United States. One such tribal entity is Muscogee Creek Nation Wholesale in Oklahoma.38 ¶20 According to the president and sole shareholder of Native Wholesale Supply, a sales transaction between it and Muscogee Creek Nation Wholesale begins when the latter places an order with Native Wholesale Supply.

Native Wholesale Supply then releases the cigarettes from storage and participates in arranging for their shipment by truck to the business location of Muscogee Creek Nation Wholesale, who then resells the cigarettes to tribal retailers. The Attorney General does not dispute that some of these retailers are located on tribal land of the Muscogee Creek Nation, but he has alleged that large quantities of Seneca cigarettes have been found for sale at smoke shops located off the tribal land. In any event, the retailers sell Seneca cigarettes to the general public in Oklahoma. ¶21 The State alleges that over a fifteenmonth period more than one hundred million cigarettes worth more than eight million dollars were sold into the Oklahoma market through this process. The evidentiary material tendered by the Attorney General supports this allegation, at least up to several million cigarettes, and Native Wholesale Supply does not dispute that it markets a high volume of Seneca cigarettes to Muscogee Creek Nation Wholesale as part of an on-going business relationship between the two entities. The expected demand for cigarettes by members of the Muscogee Creek Nation, according to national statistics provided by the Attorney General in the petition, is a small fraction of the number of cigarettes sold by Native Wholesale Supply to Muscogee Creek Nation Wholesale. Native Wholesale Supply does not dispute the veracity of these statistics. ¶22 Native Wholesale Supply claims it is not directing these millions of cigarettes at the Oklahoma market at all. It argues that it intends

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for all the cigarettes it sells to the tribal wholesaler to be sold only to reservation Indians and that it demonstrates this intent by placing a stamp on each package of Seneca cigarettes that says “for reservation sales only.” If cigarettes happen to be sold by the tribal wholesaler to off-reservation retailers or if cigarettes are made available by tribal retailers to the general public in Oklahoma, those acts are not attributable to Native Wholesale Supply as acts by it purposefully directed at the Oklahoma cigarette market. ¶23 Whereas Justice O’Connor in Asahi was evaluating the contacts of a component parts manufacturer whose only relevant relationship was with another manufacturer in Taiwan, we are looking here at a distributor of a finished product — cigarettes — who causes the product to be delivered to an entity in this state in such quantities that its ultimate destination can only be the general public in this state. While the entity with which Native Wholesale Supply directly deals may operate on tribal land, that tribal land is not located in some parallel universe. It is geographically within the State of Oklahoma. Both entities are engaged in an enterprise whose purpose is to serve the Oklahoma market for cigarettes. ¶24 This is not a case where the defendant is merely aware that its product might be swept into this State and sold to Oklahoma consumers. The sheer volume of cigarettes sold by Native Wholesale Supply to wholesalers in this State shows the Company to be part of a distribution channel for Seneca cigarettes that intentionally brings that product into the Oklahoma marketplace. Native Wholesale Supply is not a passive bystander in this process. It reaps a hefty financial reward for delivering its products into the stream of commerce that brings it into Oklahoma. To claim, as Native Wholesale Supply does, that it does not know, expect, or intend that the cigarettes it sells to Muscogee Creek Nation Wholesale are intended for distribution and resale in Oklahoma is simply disingenuous. ¶25 In short, Native Wholesale Supply does not “merely set its products adrift on a stormy sea of commerce which randomly [sweeps] the products into” Oklahoma.39 They arrive here by the purposeful collective acts of the Company and the tribal wholesalers with whom it does business. We hence hold that the minimum contacts segment of due process analysis is satisfied.

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¶26 The presence of minimum contacts does not end the due process inquiry. “Once it has been decided that a defendant purposefully established minimum contacts within the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.’”40 In determining whether the exercise of jurisdiction comports with “fair play and substantial justice,” we must evaluate the following factors: (1) the burden on the defendant of mounting a defense in the forum State, (2) the interests of the forum State, (3) the plaintiff’s interest in obtaining relief, and (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies and the shared interest of the several States in furthering fundamental substantive social policies.41 Considering Native Wholesale Supply’s contacts with the State in light of these factors, we conclude that the exercise of personal jurisdiction in Oklahoma satisfies due process. ¶27 First, the interest of the State in adjudicating this matter in Oklahoma is obviously very strong. The integrity of the Master Settlement Agreement depends on the ability of the State to enforce its terms. A decision adverse to the state on this issue would permit cigarette manufacturers and wholesalers to evade the MSA by setting up distribution networks whose participants pose as fully independent entities engaging in carefully structured transactions that ostensibly take place outside of the State.

In this way, tobacco manufacturers and merchants could purposefully, albeit indirectly, target cigarettes at Oklahoma, reaping the economic benefit of engaging in the tobacco industry while evading the public policy embodied in the MSA and the Complementary Act of shifting the burden of tobacco-related health care costs from the State to the entities who profit from the smoking enterprise. ¶28 Second, defending this suit in Oklahoma does not present an undue burden on Native Wholesale Supply. Any burden upon Native Wholesale Supply from mounting a defense in Oklahoma is clearly minimal in light of the State’s uncontroverted allegation that the Company reaps millions of dollars from the sale of Seneca cigarettes to Oklahoma consumers. ¶29 Finally, the states have a collective interest in the efficient resolution of controversies and in furthering fundamental substantive social policies. The courts of this State and only

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the courts of this State offer the most efficient and rational forum for the resolution of a controversy over the meaning and effect of State statutes governing the allocation of the financial and health-care costs associated with smoking between the public and private sectors.

IV THE INDIAN COMMERCE CLAUSE DOES NOT BAR ENFORCEMENT OF THE COMPLEMENTARY ACT AGAINST NATIVE WHOLESALE SUPPLY ¶30 Native Wholesale Supply is a corporation chartered by the Sac and Fox Nation. Its president and sole shareholder is a person of Native-American ancestry. The trial court ruled that the Indian Commerce Clause bars the relief sought by the State against this company.

That decision could rest on the doctrine of tribal immunity from suit or, alternatively, it could rest on the Indian Commerce Clause as a bar to the application of the state’s substantive law to Native Wholesale Supply. The former goes to whether the state has a remedy against Native Wholesale Supply for violation of the Complementary Act; the latter goes to whether the state has a right to enforce Native Wholesale Supply’s compliance with state law.42 ¶31 Suits against Indian tribes are barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation.43 This immunity from suit extends to a tribe’s commercial as well as to its governmental activities44 and protects the tribe or tribal entity regardless of whether its activities take place on or off a reservation.45 Despite the breadth of this immunity, several courts have held that it does not automatically extend to every business that happens to be tribally chartered or owned by individuals of Native-American ancestry. It has thus been held that an enterprise is clothed with a tribe’s sovereign immunity from suit only if it operates as an extension of a tribe.46 The question is “whether the entity acts as an arm of the tribe so that its activities are properly deemed to be those of the tribe.”47 In assessing the relationship of an enterprise to a tribe, incorporation under tribal law is one factor to be considered, but it is not the only factor. Also important are whether the business is managed by tribal officials, whether it is operated to further tribal governmental objectives, and whether the business’s property is owned by the tribe.48 Vol. 81 — No. 19 — 7/24/2010

¶32 We find persuasive the reasoning of those authorities that would restrict tribal immunity from suit to tribal entities that operate as an arm of the tribe. Individual Native Americans acting for their own purposes are no more entitled to the immunity from suit afforded a tribe than a private state citizen engaging in his or her own business is entitled to the State’s sovereign immunity. Tribal freedom from suit is an attribute of Indian sovereignty and may not and should not be extended to cover private entities operating for private gain based solely on the ethnicity of their owners. ¶33 Having so decided, we hold that Native Wholesale Supply is not clothed with tribal immunity from suit. Although Native Wholesale Supply is chartered by the Sac and Fox Nation, it does business on the tribal land of a different tribe; it is not managed by tribal officials of either tribe; and it is not operated to further the governmental objectives of any tribe. It operates solely as a private business for the personal profit of its owner who happens to be a Native American belonging to the Seneca Nation. The Company simply does not have a sufficiently close affiliation with any tribe to share in that tribe’s sovereign immunity from suit. ¶34 Just because Native Wholesale Supply is not entitled to tribal immunity from suit does not automatically mean that it is subject to the State’s substantive law. Indian sovereignty rights are broader than just immunity from suit. In suits where Native-American tribes and individuals have initiated the litigation, thereby removing from consideration the question of tribal immunity from suit, a body of law has developed governing the conditions under which the principle of Indian Sovereignty bars the application of substantive state law to tribes and individual Indians. ¶35 The Indian Commerce Clause invests in Congress the power to “regulate Commerce… with the Indian tribes.”49 From these few words has emerged almost two centuries of United States Supreme Court jurisprudence aimed at reaching an acceptable accommodation between the claim of Native Americans to tribal sovereignty on their own land and the competing claim of the states that they have a right to assert their authority over all persons living within their borders. Not surprisingly, the contours of this accommodation have fluctuated over time in ways that reflect the chang-

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ing relationship between Native Americans and the broader American society. ¶36 In the early nineteenth century, the notion of Indian communities as semi-independent nations led the Court to deny to the states the right to play any role within a reservation’s boundaries.50 That bright line of separation has long since disappeared.51 In White Mountain Apache Tribe v. Bracker,52 the United States Supreme Court noted that there is no longer a rigid rule “by which to resolve the question whether a particular state law may be applied to an Indian reservation or to tribal members.”53 In Bracker, the Court synthesized various strands of its Indian law jurisprudence into a two-part test to determine which state laws may be enforced in Indian country without congressional consent.54 This two-part test consists of two independent but related barriers to the assertion of state authority on Indian land: (a) preemption by federal law and (b) impermissible infringement on the right of reservation Indians to make their own laws and be ruled by them.55 ¶37 While either barrier standing alone may be “a sufficient basis for holding state law inapplicable to activity undertaken on the reservation or by tribal members,”56 the two barriers are related in important ways. The tradition of tribal self-government requires the application to federal enactments regulating Indian tribes standards of preemption different from those used in other areas of law.57 “The tradition of Indian sovereignty over the reservation and tribal members must inform the determination whether the exercise of state authority has been pre-empted by operation of federal law.”58 That tradition “is reflected and encouraged in a number of congressional enactments demonstrating a firm federal policy of promoting tribal self-sufficiency and economic development.”59 Preemption may therefore be found even in the absence of an express congressional statement of preemptive intent60 and ambiguities in federal enactments must be construed in light of traditional notions of sovereignty and the federal policy of encouraging tribal independence.61 At the same time, the applicable regulatory interest of the State must be taken into account to see if it outweighs the federal and tribal interests at stake.62 In short, Bracker established a test that balances the federal, tribal, and state interests in determining when a state may exercise authority on tribal land.

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¶38 The conflict between Indian sovereignty and state authority has most often been played out in the area of state taxation of tribes and tribal members. Applying the foregoing principles to state taxation of on-reservation conduct involving only Indians, the Court has held that, absent congressional consent, there is a “categorical bar” to state tax levies whose legal incidence falls directly upon tribes or tribal members for conduct that takes place wholly on tribal land.63 “[I]n the special area of state taxation, absent cession of jurisdiction or other federal statutes permitting it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activities carried on within the boundaries of the reservation, and . . . such taxation is not permissible.”64 This is so, the Court has explained, because the federal interest in encouraging tribal self-government in such cases is at its strongest and any state interest is correspondingly weak.65 ¶39 Where the legal incidence of a tax falls on a non-tribal entity engaged in a transaction with a tribe or tribal members on the reservation, no categorical bar operates to bar the tax,66 but the Court has urged caution in inferring congressional permission to impose such a tax from the absence of an express Congressional statement of preemptive intent.67 In this area of taxation, the Bracker interest balancing test requires a court to engage in “a particularized inquiry into the nature of the state, federal, and tribal interests at stake . . . to determine whether. . . the exercise of state authority would violate federal law.”68 Applying the Bracker test, the Court has not only held it permissible to impose a state sales tax upon the on-reservation sales of goods by Indians to non-Indians,69 but has also held that sales by members of a reservations’s governing tribe to members of another tribe are amenable to state taxation.70 This is so because when state interests outside the reservation are implicated, states may regulate the activities even of tribe members on tribal land.71 ¶40 Also valid under the Bracker balancing test are regulations imposed on tribal wholesalers and retailers that are reasonably necessary to assess and collect a valid tax imposed on others.

Thus, a tribal retailer can be required to pre-collect a valid state tax imposed on non-tribal members for sales made on the reservation,72

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and may also be required to keep records of exempt and non-exempt sales reasonably necessary to prevent fraudulent transactions.73 Similarly, to assist in the collection of a sales tax validly imposed on sales to non-tribal members, a non-Indian wholesaler of cigarettes can be required to keep detailed records and comply with quantity limitations on the number of cigarettes it sells to a tribal retailer.74 And a state may seize a product en route to a reservation when the tribe refuses to fulfill its validly-imposed collection and remittance obligation.75 ¶41 The Bracker interest balancing test is also brought to bear when a state seeks to apply a non-discriminatory, non-tax-related state law to an on-reservation activity. “Our cases make clear that the Indians’ right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation’s border.”76 If the state’s assertion of authority touches upon an on-reservation activity that is recognized by the federal government as a means for the tribe to achieve selfsufficiency and economic development77 or if there is a historical tradition of Indian control of the activity,78 the activity will be held to be preempted from state regulation unless the State is able to offer a justification for asserting its authority that outweighs the asserted federal or tribal interests.79 Accordingly, the Court has held that a tribal liquor retailer could be required to obtain a state liquor license for the sale of alcohol for off-premises consumption because there was no historical tradition of tribal control of alcohol licensing and distribution and the state had a strong interest in regulating the activity.80 But because there was a clear federal policy of promoting tribal gaming as a means of Indian economic development, the state of California could not regulate tribally-operated bingo games.81 ¶42 Finally, unless expressly prohibited by federal law, activities conducted by Native Americans off the reservation or the off-reservation activities of non-Indians or nonmember Indians doing business with reservation Indians are generally held to be subject to non-discriminatory state laws.82 Resort to the Bracker interest balancing test in such a case is unnecessary.83 Thus, hunting and fishing rights exercised by members of two Alaska Indian communities who had no reservation or other designated tribal land were subject to state conservation laws because state authority Vol. 81 — No. 19 — 7/24/2010

under those circumstances “does not impinge on treaty-protected reservation self-government.”84 A state tax can be levied on off-reservation activity by a tribe such as operating a ski resort off the reservation.85 A state may also tax income earned by a tribal member employed by the tribe on the reservation if the tribal member resides off the reservation, provided that no federal law or treaty prohibits it.86 And a state motor fuel tax can be imposed on nonIndian distributors who sell fuel to on-reservation tribal fuel retailers where the tax is imposed on the distributors for receipt of the fuel off the reservation.87 ¶43 Native Wholesale Supply argues that transactions between Native Americans — “tribal to tribal transactions” — are beyond the reach of state regulatory power.88 While Native Wholesale Supply does not say so expressly, it seems to be arguing that there is a dormant or negative aspect to the Indian Commerce Clause analogous to that found in the Interstate Commerce Clause. By granting to Congress the power to regulate Indian commerce, the Company implies, the Indian Commerce Clause forbids states to regulate such commerce. We see no support for such an interpretation of the Indian Commerce Clause in the jurisprudence of the United States Supreme Court, whose decisions clearly establish that the Indian Commerce Clause does not “of its own force” automatically bar all state regulation of Indian commerce.89 Rather, each state assertion of authority over tribal land and tribal members must be examined in light of the Indian sovereignty principles developed by the Supreme Court for conformity to federal law. ¶44 Even accepting for the sake of argument that Native Wholesale Supply’s transactions with Muscogee Creek Nation Wholesale take place on the Seneca Cattaraugus Indian Territory in New York because the business is located and accepts orders there, the Company’s argument that enforcement of the Complementary Act against it violates the Indian Commerce Clause is clearly wrong. There is no blanket ban on state regulation of inter-tribal commerce even on a reservation. The Supreme Court has ruled precisely on that point by allowing state taxation of retail sales made onreservation by tribal retailers to Native Americans who are not members of the governing tribe.90 The transactions at issue in this case are between a Sac and Fox chartered corporation operating on the tribal land of another tribe

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with a third tribe, the Muscogee Creek Nation.

Such transactions are not beyond the reach of state authority.

tection of the public treasury, defense of public health, and in the interest of maintaining the integrity of the Master Settlement Agreement.

¶45 In reality, Native Wholesale Supply’s transactions with Muscogee Creek Nation Wholesale extend beyond the boundaries of any single “reservation.” The cigarettes at issue are manufactured in Canada, shipped into the United States, and stored in a Free Trade Zone in Nevada. Muscogee Creek Nation Wholesale places orders for cigarettes from its “reservation” located within the territorial boundaries of this State to Native Wholesale Supply at the latter’s principal place of business on another “reservation” in another State. Delivery of the cigarettes to Muscogee Creek Nation Wholesale requires shipment of the cigarettes from Nevada to the purchaser’s tribal land in Oklahoma. The entire process comprising these sales thus takes place in multiple locations both on and off different tribal lands. This is not on-reservation conduct for purposes of Indian Commerce Clause jurisprudence, but rather off-reservation conduct by members of different tribes. Therefore, Oklahoma’s enforcement of the Complementary Act against Native Wholesale Supply passes muster without even evaluating it under the Bracker interest balancing test. “Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens of the State.”91 The Complementary Act is a law of general application and there is no evidence that it is applied to NativeAmerican cigarette wholesalers in a discriminatory manner.

¶47 Native Wholesale Supply relies instead on the general policy of the federal government to encourage economic development and self-sufficiency on the part of Indian tribes and tribal members92 and urges that because the Complementary Act interferes with its ability to engage in commerce with Muscogee Creek Nation Wholesale, the Act is preempted by federal law. We disagree. There is no federal jurisprudence pronouncing Indian sovereignty in the area of cigarette distribution and sales, nor have we been directed to any congressional enactments reflecting and encouraging tribal self-sufficiency and economic development through the distribution and sale of cigarettes.

¶46 Even if we were required to apply the Bracker interest balancing test for on-reservation activity by tribal members, the State’s interest in enforcing the MSA through the Complementary Act would outweigh any interest the tribe or federal government might have in prohibiting its enforcement against Native Wholesale Supply. Neither the underlying MSA-imposed escrow obligation of the tobacco manufacturer nor the equitable relief sought against Native Wholesale Supply is a tax. The latter is a method adopted by the State to regulate the distribution and sale of tobacco products in the Oklahoma market. Native Wholesale Supply has failed to cite any federal enactment that expressly prevents the State of Oklahoma from regulating tobacco product distribution and sales in Oklahoma for the pro1562

¶48 The State of Oklahoma, on the other hand, has an exceedingly strong interest in enforcing compliance with the terms of the MSA. These interests have been set out by the legislature in the MSA and the Complementary Act. They include (a) shifting the costs of medical care for Oklahomans with smoking-related health care issues from the state to those in the business of manufacturing tobacco products and (b) preventing tobacco manufacturers who are not part of the MSA from gaining a cost advantage over their MSA-participating competitors.93 The Complementary Act is a reasonably necessary, non-preempted means of carrying out these policies.

V SUMMARY ¶49 Native Wholesale Supply, a triballychartered, Native-American owned corporation that distributes cigarettes to tribal entities in the United States seeks to avoid the strictures and incidence of state law regulating the distribution and sale of cigarettes. We hold that the State has personal jurisdiction over the defendant based on the Company’s purposeful availment of the Oklahoma cigarette marketplace and has jurisdiction over the subject matter of this suit, the Native-American identity of the participants in the distribution channel notwithstanding. ¶50 THE TRIAL COURT’S JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART AND THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS TO BE CONSISTENT WITH THIS OPINION.

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¶51 EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, OPALA, WATT, WINCHESTER and COLBERT, JJ., concur ¶52 KAUGER, J., concurs in the court’s answer to the first question and concurs in result in the court’s answer to the second question ¶53 REIF, J., concurs in result 1. Identified herein are only those counsel for the parties who have entered an appearance in this cause (as required by Okla. Sup. Ct. Rule 1.5(a), 12 O.S.2001, Ch. 15, App.1) or whose names appear on the appellate paperwork.

2. See the provisions of 37 O.S. Supp. 2003 §600.23 for the terms of Oklahoma’s qualifying statute, which is part of the Prevention of Youth Access to Tobacco Act, 37 O.S. 2001 §600.1 et seq.

3. See the provisions of 68 O.S. Supp. 2004 §360.1 et seq.

4. See the provisions of 68 O.S. Supp. 2004 §360.4(A)(1) which state: “Every tobacco product manufacturer whose cigarettes are sold in this state, whether directly or through a distributor, retailer or similar intermediary or intermediaries, shall execute and deliver on a form or in the manner prescribed by the Attorney General a certification to the Oklahoma Tax Commission and Attorney General, no later than April 30 of each year, certifying under penalty of perjury that, as of the date of certification, the tobacco product manufacturer either: (a.) is a participating manufacturer, or (b.) is in full compliance with the provisions of Sections 600.21 through 600.23 of Title 37 of the Oklahoma Statutes.”

The provisions of 37 O.S. Supp. 2003 §600.23, which set out the obligations underlying the certification requirement, state in pertinent part: “A. Any tobacco product manufacturer selling cigarettes to consumers within the state, whether directly or through a distributor, retailer or similar intermediary or intermediaries, after July 1, 1999, shall do one of the following: 1. Become a participating manufacturer, as that term is defined in Section II(jj) of the Master Settlement Agreement, and generally perform its financial obligations under the Master Settlement Agreement; or 2. Place into a qualified escrow fund, by April 15 of the year following the year in question, the following amounts, as such amounts are adjusted for inflation: . . .”

5. See the provisions of 68 O.S. Supp. 2004 §360.4(B)(1), which state: “Not later than ninety (90) calendar days after this act takes effect, the Attorney General shall develop and publish on its website a directory listing all tobacco product manufacturers that have provided current and accurate certifications conforming to the requirements of [this section].

6. Id. at §360.4(B)(3), which states: “Neither a tobacco product manufacturer nor brand family shall be included or retained in the directory if the Attorney General concludes, in the case of a nonparticipating manufacturer, that: a. any escrow payment required pursuant to Section 600.23 of Title 37 of the Oklahoma Statutes for any period for any brand family, whether or not listed by the nonparticipating manufacturer, has not been fully paid into a qualified escrow fund governed by a qualified escrow agreement that has been approved by the Attorney General, . . .”

7. See the provisions of 68 O.S. Supp. 2004 §360.7(E), which state: “1. It shall be unlawful for a person to: a. sell or distribute cigarettes, or b. acquire, hold, own, possess, transport, import, or cause to be imported cigarettes that the person knows or should know are intended for distribution or sale in the state in violation of the Master Settlement Agreement Complementary Act. A violation of the act shall be a misdemeanor.”

8. See the provisions of 68 O.S. Supp. 2004 §360.8(G), which state: “If a court determines that a person has violated the Master Settlement Agreement Complementary Act, the court shall order any profits, gain, gross receipts, or other benefit from the violation to be disgorged and paid to the State Treasurer for deposit in the Tobacco Settlement Endowment Trust Fund. Unless otherwise expressly provided, the remedies or penalties provided by the Master Settlement Agreement Complementary Act are cumulative to each other and to the remedies or penalties available under all other laws of this state.”

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9. See the provisions of 68 O.S. Supp. 2004 §360.8(F), which state: “In any action brought by the state to enforce the Master Settlement Agreement Complementary Act, the state shall be entitled to recover the costs of investigation, expert witness fees, costs of the action, and reasonable attorney fees.”

10. Booth v. McKnight, 2003 OK 49, ¶12, 70 P.3d 855, 860.

11. Id., citing Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶14, 859 P.2d 1081, 1083 (stating that “[i]ssues of law are reviewable by a de novo standard and an appellate court claims for itself plenary, independent, and non-deferential authority to reexamine a trial court’s legal rulings” and citing Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S. Ct. 1217, 1221, 113 L. Ed.2d 190 (1991)).

12. Gilbert v. Security Finance Corp. of Okla., Inc., 2006 OK 58, ¶16, 152 P.3d 165, 173; Conoco Inc., V. Agrico Chemical Co., 2004 OK 83, ¶16, 115 P.3d 829, 834.

13. See the provisions of 12 O.S. 2001 §2004(F), which state: “A court of this state may exercise jurisdiction on any basis consistent with the Constitution of this state and the Constitution of the United States.”

14. The Due Process Clause of the United States Constitution, U.S. Const. amend. XIV, §1, provides that no state shall . . . “deprive any person of life, liberty, or property, without due process of law; . . .”

15. Conoco Inc., supra note 12 at ¶17, at 834 (“The intent of our long-arm statute is to extend the jurisdiction of the Oklahoma courts to the outer limits permitted by the Oklahoma Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.”).

16. Id. 17. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-72, 105 S. Ct. 2174, 2181, 85 L. Ed.2d 528 (1985).

18. Conoco, supra note 12 at ¶18, at 834-35, citing Int’l Shoe Co. v.

Washington., 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945).

19. Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct.1228,1240, 2 L. Ed.2d 1283 (1958).

20. Burger King, supra note 17 at 475, 105 S. Ct. at 2183 (internal quotation marks omitted).

21. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 417, 104 S. Ct. 1868, 1873, 80 L. Ed.2d 404 (1984).

22. Int’l Shoe, supra note 18 at 319, 66 S. Ct. at 160.

23. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L. Ed. 565 (1877).

24. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 293, 100 S. Ct. 559, 565, 62 L. Ed.2d 490 (1980), quoting McGee v. International Life Ins. Co., 355 U.S. 220, 222-23, 78 S. Ct. 199, 201, 2 L. Ed.2d 223 (1957).

25. See supra note 24.

26. Id. at 297-98, 100 S. Ct. at 567.

27. Id. 28. 480 U.S. 102, 107 S. Ct. 1026, 94 L. Ed.2d 92 (1987).

29. Id. at 112, 107 S. Ct. at 1032. Joining Justice O’Connor in the portion of the opinion dealing with minimum contacts were Chief Justice Rehnquist and Justices Powell and Scalia.

30. Id. 31. Id. at 117, 107 S. Ct. at 1034 (Brennan, J., concurring in part and concurring in judgment, joined by White, Marshall and Blackmun, JJ.).

32. Id. 33. Id. at 122, 107 S. Ct. 1037 (Stevens, J., joined by Justices White and Blackmun, concurring in part and concurring in judgment).

34. Id. 35. Commissariat A L’Energie Atomique v. Chi Mei Optoelectronics, 395 F.3d 1315, 1322 ( C. A. Fed. 2005) (recognizing that the circuit courts of appeal have not agreed on the proper due process standard under the stream-of-commerce analysis; comparing Bridgeport Music, Inc. v. Still N the Water Publ’g, 327 F.3d 472, 479-80, (6th Cir.2003) (adopting Justice O’Connor’s “stream-of-commerce ‘plus’ “theory) with Dehmlow v. Austin Fireworks, 963 F.2d 941, 947 (7th Cir.1992) (applying Justice Brennan’s approach because a majority of the Court has never rejected it) and Barone v. Rich Bros. Interstate Display Fireworks Co., 25 F.3d 610, 614 (8th Cir. 1994) (same).

36. Id. 37. Id. 38. Because no evidentiary material was tendered showing the tribal identity of Muscogee Creek Nation Wholesale or the location of its business operation, we are left to infer those facts from the tribal wholesaler’s use of the Muscogee Creek Nation in its name and from the affidavit of Native Wholesale Supply’s president in which he says that Native Wholesale Supply does business solely with tribal entities on tribal land.

39. Dehmlow v. Austin Fireworks, 963 F.2d 941, 948 (7th Cir. 1992).

40. Burger King Corp. v. Rudzewicz, supra note 17 at 476, 105 S. Ct. at 2174, citing Int’l Shoe, supra note 18 at 320, 66 S. Ct. at 160.

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41. Asahi, supra note 28 at 113, 107 S. Ct. at 1033.

42. See Okla. Tax Comm’n v. Citizen Band Potawatomie Indian Tribe of Okla., 498 U.S. 505, 111 S. Ct. 905, 112 L. Ed.2d 1112 (1991) in which the United States Supreme Court held that the defendant tribe was not immune from the obligation to collect taxes on sales of cigarettes to nonmembers, but enjoyed immunity from suit by the state to enforce the obligation.

43. Kiowa Tribe of Okla. v. Manufacturing Technologies, Inc., 523 U.S. 751, 754, 118 S. Ct. 1700, 1702, 140 L. Ed.2d 981 (1998); Citizen Band Potawatomi Indian Tribe of Okla., supra note 42 at 509, 111 S. Ct. at 909; Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S. Ct. 1670, 1677, 56 L. Ed.2d 106 (1978).

44. Kiowa Tribe, supra note 43 at 760, 118 S. Ct. 1705; Native American Distributing v. Seneca-Cayuga Tobacco Co., 546 F.3d 1288, 1293 (10th Cir. 2008) (holding that sovereign immunity extended to a corporate enterprise of the tribe).

45. Kiowa Tribe, supra note 43 at 760, 118 S. Ct. at 1705.

46. Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006) (“When the tribe establishes an entity to conduct certain activities, the entity is immune if it functions as an arm of the tribe.”), cert. denied, 549 U.S. 1231, 127 S. Ct. 1307, 167 L. Ed.2d 119 (2007); Hagen v. SissetonWahpeton Cmty. College, 205 F.3d 1040, 1043 (8th Cir. 2000); Ramey Constr. Co., Inc., v. Apache Tribe of the Mescalero Reservation, 673 F.2d 315, 320 (10th Cir.1982) (holding that an inn which was “a sub-entity of the Tribe rather than a separate corporate entity” enjoyed tribal immunity); Trudgeon v. Fantasy Springs Casino, 71 Cal. App.4th 632, 642, 84 Cal. Rptr.2d 65 (1999) (recognizing sovereign immunity of for-profit corporation formed by a tribe to operate the tribe’s casino); City of New York v. Golden Feather Smoke Shop, Inc., 2009 WL 705815 (E. D. N.Y. 2009); Parks v. Tulalip Resort Casino, 2010 WL 1727972 (W.D. Wash. 2010); Somerlott v. Cherokee Nation Distributors Inc., 2010 WL 1541574, *3 (W.D. Okla. 2010) (reviewing the authorities supporting the “arm of the tribe” inquiry and adopting it after finding broad support for its method of analysis). See also F. Cohen, Handbook of Federal Indian Law, §7.05(1)(a), at 636 (2005 ed.) stating, “Although immunity extends to entities that are arms of the tribes, it apparently does not cover tribally chartered corporations that are completely independent of the tribe.”).

47. Allen, supra note 46 at 1046.

48. See e.g., Gristede’s Foods, Inc. v. Unkechuage Nation, 660 F. Supp.2d 442, 477 (E. D. N.Y. 2009).

49. U.S. Const. art. 1, §8.

50. Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515, 8 L. Ed. 483 (1832).

51. Williams v. Lee, 358 U.S. 217, 219, 79 S. Ct. 269, 270, 3 L. Ed.2d 251 (1959)(“Over the years this Court has modified these principles in cases where essential tribal relations were not involved and where the rights of Indians would not be jeopardized, . . .”).

52. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 100 S. Ct. 2578, 65 L. Ed.2d 665 (1980).

53. Id. at 142, 100 S. Ct. at 2583.

54. Id. (stating that the semi-independent status accorded Indian tribes together with the broad power of Congress to regulate tribal affairs under the Indian Commerce Clause has produced “two independent but related barriers to the assertion of state regulatory authority over tribal reservations and members”).

55. Id. 56. Id. at 143, 100 S. Ct. at 2583.

57. Id. 58. Id. 59. Id. at 143, 100 S. Ct. 2583-84.

60. Id. at 144, 100 S. Ct. at 2584.

61. Id. at 143-44, 100 S. Ct. at 2584.

62. Id. at 144, 100 S. Ct. at 2584.

63. See, e.g., McClanahan v. State Tax Comm’n of Arizona, 411 U.S. 164, 165-66, 93 S. Ct. 1257, 1258-59,36 L. Ed.2d 129 (1973) (tax on income earned on reservation by tribal members residing on reservation invalid); Moe v. Confederated Salish and Kootenai Tries of the Flathead Reservation, 425 U.S. 463, 480, 96 S. Ct. 1634, 1645, 48 L. Ed.2d 96 (1976) (holding invalid (in the absence of congressional consent) property tax on personal property located within the reservation, vendor license fee as applied to a reservation Indian conducting a cigarette business for the Tribe on reservation land, and cigarette sales tax as applied to on-reservation sales by Indians to Indian members of the governing tribe, but valid as to non-Indian purchasers); Bryan v. Itasca County, 426 U.S. 373, 96 S. Ct. 2102, 48 L. Ed.2d 710 (1976) (tax on Indian-owned personal property situated in Indian country invalid in absence of congressional consent); Okla. Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 115 S. Ct. 2214, 132 L. Ed.2d 400 (1995) (where legal incidence of motor fuel excise tax fell on Indian-owned retailers

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selling fuel on tribal trust land the tax was invalid in the absence of congressional consent).

64. Cabazon Band of Mission Indians, 480 U.S. 202, 216, n. 17, 107 S. Ct. 1083, 1092, n. 17, 94 L. Ed. 2d 244 (1987).

65. Id. (“We have repeatedly addressed the issue of state taxation of tribes and tribal members and the state, federal, and tribal interests which it implicates. We have recognized that the federal tradition of Indian immunity from state taxation is very strong and that the state interest in taxation is correspondingly weak. Accordingly, it is unnecessary to rebalance these interests in every case.”). Despite such statements in earlier cases, the Court has recently said that in the special area of state taxation of tribes and tribal members on tribal land, it has not applied the balancing test at all. See Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 110, 126 S. Ct. 676, 686, 163 L. Ed.2d 429 (2005) (“We have applied the balancing test articulated in Bracker only where ‘the legal incidence of the tax fell on a nontribal entity engaged in a transaction with tribes or tribal members [citation omitted] on the reservation.”).

66. Decisions holding a tax on a non-Indian to be preempted: Warren Trading Post Co. v. Arizona State Tax Comm’n, 380 U.S. 685, 85 S. Ct. 1242, 14 L. Ed.2d 165 (1965) (Indian Trader Statutes preempted state tax on the gross receipts of a non-Indian federally licensed retailer who operated a store on an Indian reservation); Central Machinery Co. v.

Arizona State Tax Comm’n, 448 U.S. 160, 100 S. Ct. 2592, 65 L. Ed.2d 684 (1980) (Indian Trader Statutes preempt the field of retail transactions with Indians on Indian reservations so that non-federally licensed retailer residing off-reservation but conducting business with Indians on their reservation is immune from state’s transaction privilege tax on on-reservation sale of tractor to tribal enterprise); Bracker, supra note 52 at 148-49, 100 S. Ct. 2586-87 (holding that motor carrier license and use fuel taxes imposed on a non-Indian-owned logging company’s use of federally built, maintained, and policed roads located solely within an Indian reservation was invalid because Congress had enacted a comprehensive federal law regulating the harvesting of Indian timber and the State had not been able to identify any legitimate regulatory interest served by the taxes sought to be imposed).; Ramah Navajo School Bd. v. Bureau of Revenue, 458 U.S. 832, 102 S. Ct. 3394, 73 L. Ed.2d 1174 (1982) (a comprehensive federal regulatory scheme for the education of reservation Indian children preempted a state tax on the gross receipts of a non-Indian contractor who constructed a school building for Indian children on their reservation).

Decisions holding state tax on non-Indian to be valid: Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 109 S. Ct. 1698, 104 L. Ed.2d 209 (1989) (Mineral Leasing Act of 1938 did not preempt a state severance tax on non-Indian oil and gas producer whose operations were located on an Indian reservation and tax was valid where it imposed no economic burden on the tribe); Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, supra note 63 at 481-82, 96 S. Ct. 1645 (state may impose non-discriminatory sales tax on non-Indian customers of Indian retailers doing business on the reservation even if the tax seriously disadvantages the Indian retailer’s business with non-Indians); Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 161, 100 S. Ct. 2069, 2085, 65 L. Ed.2d 10 (1980) (state may impose a nondiscriminatory tax upon on-reservation sales to Indians who are not members of the reservation’s governing tribe “for the simple reason that nonmembers are not constituents of the governing tribe” with a say in tribal affairs or a significant share in tribal disbursements).

67. Bracker, supra note 52 at 150-51, 100 S. Ct. at 2587.

68. Bracker, supra note 52 at 145, 100 S. Ct. at 2584.

69. Moe, supra note 63 at 481-82, 96 S. Ct. at 1645 (state may impose non-discriminatory sales tax on non-Indian customers of Indian retailers doing business on the reservation even if the tax seriously disadvantages the Indian retailer’s business with non-Indians).

70. Colville, supra note 66 at 161, 100 S. Ct. at 2085 (state may impose a nondiscriminatory tax upon on-reservation sales to Indians who are not members of the reservation’s governing tribe “for the simple reason that nonmembers are not constituents of the governing tribe” with a say in tribal affairs or a significant share in tribal disbursements).

71. Nevada v. Hicks, 533 U.S. 353, 362, 121 S. Ct. 2304, 2311, 150 L. Ed.2d 398 (2001).

72. Moe, supra note 63 at 483, 96 S. Ct. at 1646 (“State’s requirement that the Indian tribal seller collect a tax validly imposed on non-Indians is a minimal burden designed to avoid the likelihood that in its absence non-Indians purchasing from the tribal seller will avoid payment of a concededly lawful tax.”).

73. Confederated Tribes of Colville Indian Reservation, supra note 66 at 160, 100 S. Ct. at 2084.

74. Dept. of Taxation and Finance of New York v. Milhelm Attea & Bros., Inc., 512 U.S. 61, 114 S. Ct. 2028, 129 L. Ed.2d 52 (1994) (Indian

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Trader Statutes did not preempt regulations imposed on federally licensed wholesalers who were required to keep detailed records and comply with limitations on the quantity of cigarettes they could sell to on-reservation retailers where the regulations were reasonably necessary to enforce the assessment and collection of a valid state tax imposed on non-Indian and nonmember Indian purchasers of cigarettes from reservation retailers).

75. Confederated Tribes of Colville Indian Reservation, supra note 66 at 161-62, 100 S. Ct. at 2085.

76. Nevada v. Hicks, supra note 71 at 361, 121 S. Ct. at 2311 (holding that “tribal authority to regulate state officers in executing process related to the violation, off reservation, of state laws is not essential to tribal self-government or internal relations” while the “State’s interest in execution of process is considerable, and even when it relates to Indian-fee lands it no more impairs the tribe’s self-government than federal enforcement of federal law impairs state government”). Id. at 364,121 S. Ct. at 2313.

77. Cabazon Band of Mission Indians, supra note 65 at 216, 107 S. Ct. at 1092 (“The inquiry is to proceed in light of traditional notions of Indian sovereignty and the congressional goal of Indian self-government, including its “overriding goal” of encouraging tribal self-sufficiency and economic development.”).

78. Rice v. Rehner, 463 U.S. 713, 719-20, 103 S. Ct. 3291, 3296, 77 L. Ed.2d 961 (1983) (“When we determine that tradition has recognized a sovereign immunity in favor of the Indians in some respect, then we usually are reluctant to infer that Congress has authorized the assertion of state authority in that respect . . . . If, however, we do not find such a tradition, or if we determine that the balance of state, federal, and tribal interests so requires, our pre-emption analysis may accord less weight to the “backdrop” of tribal sovereignty.”).

79. Cabazon Band of Mission Indians, supra note 65 at 216, 107 S. Ct. 1092, quoting New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334, 103 S. Ct. 2378, 2386, 76 L. Ed.2d 611 (1983) ( “State jurisdiction is pre-empted ... if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority.”).

80. Rice v. Rehner, supra note 78 at 725, 103 S. Ct. at 3299.

81. Cabazon Band of Mission Indians, supra note 65 at 221-22, 107 S. Ct. at 1094-1095.

82. Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S. Ct. 1267, 1270, 36 L. Ed.2d 114 (1973) (“Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens of the State.”); Bracker, supra note 52 at 144, n. 11, 100 S Ct. at 2584, n. 11.

83. Wagnon v. Prairie Band Potawatomi Nation, supra note 65 at 112-13, 126 S. Ct. at 688, (rejecting the tribe’s argument that an off-reservation tax imposed on the manufacture or sale of goods imported by the tribe or one of its members must be subjected to the interest balancing test)..

84. Organized Village of Kake v. Egan, 369 U.S. 60, 75-76, 82 S. Ct. 562, 571, 7 L. Ed.2d 573 (1962); Puyallup Tribe v. Dept. of Game, 391 U.S. 392, 398, 88 S. Ct. 1725, 1728, 20 L. Ed.2d 689 (1968).

85. Mescalero Apache Tribe v. Jones, supra note 82 at 157-58, 93 S. Ct. at 1275.

86. Okla. Tax Comm’n v. Chickasaw Nation, supra note 63 at 465, 115 S. Ct. at 2224 (rejecting Treaty of Dancing Rabbit Creek as preempting the tax). The Court declined to consider whether the tax might constitute an interference with tribal self-governance because the tribe failed to raise the issue either below or on certiorari. Id. at 465, n. 14, 115 S. Ct. at 2223.

87. Wagnon, supra note 65 at 115, 126 S. Ct. at 689.

88. Native Wholesale Supply characterizes its reliance on the Indian Commerce Clause as a challenge to the state court’s subject matter jurisdiction. Because the inquiry under the Indian Commerce Clause is based on a type of federal preemption, that characterization may be inaccurate. Federal preemption is ordinarily an affirmative defense that may result in a lawsuit’s dismissal for failure to state a claim. That decision is within the subject matter jurisdiction of a state court. See e.g., BLAB T.V. of Mobile, Inc. v. Comcast Cable Communications, Inc., 182 F.3d 851, 855 (11th Cir.1999) (“. . . ordinary preemption operates to dismiss state claims on the merits and may be invoked in either federal or state court.”). See also, Reeds v. Walker, 2006 OK 43, ¶14, 157 P.3d 100, 109 (distinguishing between the complete preemption doctrine of federal jurisdiction and the affirmative defense of ordinary preemption).

89. See e.g. Confederated Tribes of the Colville Indian Reservation, supra note 66 at 154-62, 100 S. Ct. at 2069; Milhelm Attea & Bros., Inc., supra note 74 at 75, 114 S. Ct. at 2028; Ward v. New York, 291 F. Supp.2d 188, 199-200 (W. D. N.Y. 2003).

90. Id.

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91. See Mescalero Apache Tribe v. Jones, supra note 82.

92. See e.g. Cabazon Band of Mission Indians, supra note 36 and Rice v. Rehner, supra note 78.

93. See the provisions of 37 O.S. 2001 §600.21

2010 OK 55 CITY OF STILLWATER, OKLAHOMA, a Municipal Corporation, Plaintiff/Appellant, v. INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 2095, Defendant/Appellee.

No. 107,477. July 6, 2010 APPEAL FROM THE DISTRICT COURT OF PAYNE COUNTY, STATE OF OKLAHOMA, HONORABLE DONALD L. WORTHINGTON, DISTRICT JUDGE ¶0 The firefighters employed by the City of Stillwater chose the International Association of Fire Fighters, Local 2095, AFL-CIO/CLC, the appellee, to represent them in collective bargaining with the City. The Union and the City entered into a collective bargaining agreement on July 16, 2007, which covered from July 1, 2007 through June 30, 2009, two fiscal years.

The agreement fixed a formula for compensation to the firefighters during that term. During the second year, the formula called for a wage increase of 6.1 percent, but the City appropriated funds for a 3 percent raise that was rejected by the Union, which would accept only a 6.1 percent raise. The matter was submitted to arbitration and the opinion of the Arbitration Board, granted December 10, 2008, entitled the firefighters to the 6.1 percent wage increase.

The district court granted summary judgment to the Union and denied the City’s petition to vacate the arbitration decision. The City appealed.

REVERSED AND REMANDED WITH INSTRUCTIONS. John E. Dorman, City Attorney, Chanda R. Graham, Assistant City Attorney, Stillwater, Oklahoma, for plaintiff/appellant.

Steven R. Hickman, FRASIER, FRASIER & HICKMAN, LLP, Tulsa, Oklahoma, for defendant/appellee.

WINCHESTER, J. ¶1 The essential issue before this Court is whether a contractual term regarding an increase in salary in the second year of a two-year collective bargaining agreement between the City of Stillwater and the Union representing the City’s firefighters is void because it violates Article 10,

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§ 26, of the Oklahoma Constitution. We hold that the contractual term increasing the salary of the firefighters in the second year violates the constitution of this state.

I. FACTS AND PROCEDURE ¶2 The City of Stillwater, the appellant, and the International Association of Fire Fighters, Local 2095, the appellee, brought to arbitration a dispute over a collective bargaining agreement dated July 26, 2007. After the arbitrators heard the matter, the Opinion and Award of the Board, granted December 10, 2008, found the firefighters were entitled to a 6.1% wage increase. The City petitioned the District Court of Payne County to vacate the arbitration decision and both parties moved for summary judgment. The court granted the motion of the Union and denied the motion of the City. ¶3 The district court made findings of fact in its order dated July 29, 2009. Those facts include the following. The collective bargaining agreement covered two fiscal years, from July 1, 2007 through June 30, 2009. It contained a formula for fixing a salary scale based on the average salary paid to firefighters by certain named cities located in Oklahoma. In the first year, the firefighter’s compensation was fixed and paid according to the formula. The agreement provided for a new survey of the cities in January 2008, the second year of the contract, and that the agreement be reopened in 2008 “for the sole purpose of this wage adjustment”.

If the City failed to appropriate funds by June 30, 2008, for the fiscal year 2008-2009, the City and Union were to immediately enter into good faith bargaining for the 2008-2009 contract year on monetary issues only. ¶4 Under the formula found in the agreement, the January 2008 wage survey indicated an average wage increase of 6.1%. However, the City appropriated funds for a 3% raise for the fiscal year. The Union declined that raise, but countered with an offer to accept a 6.1% raise. After the City declined the Union’s offer, the matter was submitted to arbitration. The arbitration board awarded the Union the 6.1 % raise, the City appealed and this Court granted the City’s motion to retain the cause.

II. COLLECTIVE BARGAINING AGREEMENT ¶5 In the City’s Petition to Vacate Arbitration Decision the City asserts the arbitration board rendered a decision that does not draw its 1566

essence from the collective bargaining agreement, exceeds the board’s authority and violates public policy. More specifically, the City argues that the decision (1) is based on general considerations of fairness and equity rather than the express terms of the agreement; (2) does not give effect to the express terms of the agreement; (3) imposes legislative requirements on the City that are not expressly provided in the agreement; and (5) commands a result that violates Oklahoma’s constitution.

The City relies on Wyatt-Doyle & Butler Engineers v. City of Eufaula, 2000 OK 74, 13 P.3d 474.

That case held that a municipality cannot create an obligation one year that results in a debt in a succeeding year without violating Article 10, § 26 of Oklahoma’s constitution. WyattDoyle & Butler Engineers, 2000 OK 74, ¶ 14, 13 P.3d at 479. ¶6 The Union answered in a motion to dismiss. It asserted that the dispute taken before the arbitration board was interest arbitration and not grievance arbitration. “Grievance” arbitration involves interpreting a collective bargaining agreement and subsequently resolving a dispute between the public employer and the public employee. “Interest” arbitration involves the resolution of an impasse in collective bargaining over the terms of a new contract. City of Bethany v. Public Employees Relations Board,1995 OK 99, ¶ 1, n. 3, 904 P.2d 604, 607, n. 3. ¶7 The Union argued that when the City rejected the second year of the two-year agreement, the rejection reopened the monetary issues. As authority, the Union cites 11 O. S.Supp.2009, § 51-108.1 The title page of the Opinion and Award of Board of Arbitration states “Interest Arbitration - Wages” and states the years as 2008-2009. Page two of the opinion in the General Background states: “The parties have negotiated a wage reopener for the second year of their two-year contract. It is the wage reopener that results in this dispute.”

The issue as articulated by the board of arbitration is “Whether IAFF Local 2095 employees are legally entitled to a 6.1% across the board pay raise, effective July 1, 2008, by virtue of their CBA with the City”. The board of arbitration stated that the parties had each stipulated its “last best offer”, 3% for the City and 6.1% for the Union.2 The board addressed the constitutional argument that an obligation had been created in one year which would be paid in the next year, and rejected City’s asser-

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tion that the obligation had been created in a previous year. ¶8 However, the board concluded in making its award that the Union is “legally entitled to a 6.1% wage adjustment as negotiated by the parties pursuant to contract.” In a dissenting opinion, one of the members of the board observed that the parties made a two-year agreement, and that to make the agreement legal the parties inserted language recognizing that any wage increases in year two of the agreement would be awarded only if funds were appropriated by the City Council. He continued in his dissent that the parties had a lengthy history of collective bargaining and the Union knew or should have known of the limitations on the city’s funding abilities. Article 14, § 1 entitled “Wages/Hours” in the collective bargaining agreement included the sentence “Salary movement is subject to the appropriation of funds by the City Commission.”

The majority of the board of arbitration construed that language to reach a result favorable to the Union.

III. DISCUSSION ¶9 The board and the Union characterize this dispute as interest arbitration, but the board’s opinion constantly referred to and construed the previous year’s agreement between the City and the Union. The board used the formula provided in the previous year’s agreement to set the salary of the firefighters and to bind the City to honor that agreement. Even though the agreement did not set the actual amount of their salaries in the previous year, the obligation is created in the previous year. ¶10 The method the City attempted to use to keep the contract from violating Oklahoma’s constitution was to insert the wording that the salary increase would be “subject to the appropriation of funds by the City Commission” but when the City Commission agreed to an increase of only 3%, the board determined that the disputed language was a “mere recognition that the funds are to be appropriated by the City Commission once the deal [was] made, a condition subsequent.”3 The board construed the contract, explained its construction and made a determination in favor of the Union based on the two-year contract. This it is forbidden to do. ¶11 Article 10, § 26 of the Oklahoma Constitution provides in pertinent part: Vol. 81 — No. 19 — 7/24/2010

“Except as herein otherwise provided, no county, city, town, township, school district, or other political corporation, or subdivision of the state, shall be allowed to become indebted, in any manner, or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year without the assent of threefifths of the voters thereof . . . .” ¶12 The Union, in their claim that the issue before the board of arbitration was merely interest arbitration, urges that such arbitration is permitted pursuant to 11 O.S.Supp.2009, § 51108, and therefore does not violate the constitution. This Court has held that this statute does not, on its face, violate Article 10, § 26 of the Oklahoma Constitution, but that statute could be unconstitutional as applied. Fraternal Order of Police v. City of Choctaw, 1996 OK 78, ¶ 26, 933 P.2d 261, 268. When the board of arbitration construes a previous year’s agreement to explain its decision in favor of the Union, that explanation reveals that the parties’ appearance before the board involved grievance arbitration, not interest arbitration. We reject the Union’s characterization of the arbitration as interest arbitration. ¶13 Our previous cases are consistent that a previous year’s agreement cannot be used to set subsequent year’s salaries of municipal employees because the municipality cannot create an obligation one year that results in a debt in a succeeding year. Wyatt-Doyle & Butler Engineers, 2000 OK 74 ¶ 14, 13 P.3d at 479. Our state constitution forbids the City of Stillwater from becoming indebted “in any manner” when that debt is created in a previous year.

Using a formula agreed to in a previous year to obligate the city to a pay scale the succeeding year is prohibited. The city through such an agreement cannot be obligated to make such a payment established by a previous-year’s formula because it would constitute a charge against municipal funds beyond the fiscal year covered by the expired agreement. See, City of Tulsa v. Public Employees Relations Bd., 1990 OK 114, ¶ 1, 845 P.2d 872, 873. The purpose behind the constitutional provision is to force cities and municipalities to operate on a cash basis, and to prevent indebtedness payable out of tax revenues from extending beyond one year. City of Del City v. FOP, Lodge No. 114, 1993 OK 169 ¶ 5, 869 P.2d 309, 311. ¶14 In the City of Tulsa one question answered by the Court was whether a municipality was obligated to continue paying its employees

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under a wage provision in an expired collective bargaining agreement until a new agreement is reached, and the Court answered that the city was not obligated. City of Tulsa, 1990 OK 114, ¶ 1, 845 P.2d 872, 873. The board of arbitration and the district court had imposed this rule on the City of Tulsa through a legal concept known as the “dynamic status quo”, which would prohibit unilateral changes made by an employer during negotiations for a new collective bargaining agreement. City of Tulsa, 1990 OK 114, ¶ 16, 845 P.2d 872, 876-877. The Court held that a city’s contract is not valid if it constitutes a charge against municipal funds beyond the fiscal year. City of Tulsa, 1990 OK 114, ¶ 22, 845 P.2d 872, 878. ¶15 In a similar case, the City of Del City, the Court addressed a legislative attempt to accomplish the same result as the judicially created dynamic status quo. The issue in that case was the constitutionality of the “Evergreen” clause as it appeared in the Oklahoma Fire and Police Arbitration Act, 11 O.S.1991, § 51-105. The terms of that statute would have continued an existing collective bargaining agreement with a city beyond its stated date of expiration, and into the future “until a new agreement [was] reached”. City of Del City, 1993 OK 169 ¶ 1, 869 P.2d 309, 310. The Court held that the Evergreen Clause violated the Oklahoma Constitution and referenced the previous City of Tulsa holding. City of Del City, 1993 OK 169 ¶¶ 6, 37, 869 P.2d 309, 311, 318. Citing In Protest of Kansas City So. Ry. Co., 1932 OK 328, 11 P.2d 500, the Court observed that the limitations are binding not only on the municipality, but also on the legislature. City of Del City, 1993 OK 169 ¶ 20, 869 P.2d 309, 314. ¶16 As in Wyatt-Doyle & Butler, the Uniform Arbitration Act,4 12 O.S.Supp.2009, §§ 18511881, does not prohibit review of the issue by this Court. Wyatt-Doyle & Butler, 2000 OK 74, ¶ 1, 13 P.3d 474, 475. The order of the District Court is reversed. The cause is remanded with instructions to enter judgment for the City of Stillwater in a manner consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS. CONCUR: EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, OPALA, WATT, WINCHESTER, REIF, JJ. CONCURS IN RESULT: COLBERT, J. 1568

NOT VOTING: KAUGER, J. 1. 2004 O.S.Laws, ch. 126, § 1, Article LI - FIRE AND POLICE ARBITRATION, § 51-108. Hearing - Opinions: “A. 1. The arbitration board acting through its chair shall call a hearing to be held within ten (10) days after the date of the appointment of the chair and shall, acting through its chair, give at least seven (7) days’ notice in writing to each of the other two arbitrators, the bargaining agent and the corporate authorities of the time and place of such hearing.

“2. At least seven (7) days before the date of the hearing the corporate authorities and the bargaining agent shall submit to each other and to the arbitration board members a written arbitration statement listing all contract terms which the parties have resolved and all contract issues which are unresolved. Each arbitration statement shall also include a final offer on each unresolved issue. The terms and offers contained in the arbitration statements shall be known collectively as each party’s last best offer.

“3. The hearing shall be informal and the rules of evidence prevailing in judicial proceedings shall not be binding. Any and all documentary evidence and other data deemed relevant by the arbitrators may be received in evidence. The arbitrators shall have the power to administer oaths and to require by subpoena the attendance and testimony of witnesses, the production of books, records, and other evidence relative or pertinent to the issues presented to them for determination. A hearing shall be concluded within twenty (20) days from the time of commencement.

“4. Within seven (7) days after the conclusion of the hearing, a majority of the arbitration board members shall select one of the two last best offers as the contract of the parties. The criteria to be used by the board in determining which offer to select shall be limited to paragraphs 1 through 5 of Section 51-109 of this title. The arbitration board may not modify, add to or delete from the last best offer of either party.

Written notice of the selection decision shall be mailed or delivered to the bargaining agent and the corporate authorities.

“B. If the city’s last best offer is not selected by the arbitration board, that party may submit the offers which the parties submitted to the arbitration board to the voters of the municipality for their selection by requesting a special election for that purpose. The request for an election must be filed with the clerk of the municipality within ten (10) days of the date of the written decision of the arbitration board.

Written notice of the filing of the request shall be given to the bargaining agent. If a request for an election is not filed in a timely manner, the board’s selection decision shall be final, and the last best offer it selected shall constitute the agreement of the parties.

“C. Upon receiving a request for an election pursuant to the provisions of this section, the clerk shall notify the mayor and governing body of the request. Within ten (10) days of such notification the municipal authorities shall call for a special election. The election shall be governed by the state laws on special municipal elections. Only residents of the municipality shall be eligible to vote in said election.

The ballot shall inform the voters that they must choose either the last best offer of the bargaining agent or the last best offer of the corporate authorities. Within twenty (20) days of the date of the decision to call for the election, the municipal authorities and the bargaining agent shall agree on a ballot. If no agreement is reached within that time, each party shall present a proposed ballot to the arbitration board. The parties shall present their ballot to the board no later than seven (7) days after the aforementioned twenty-day period. The board shall consider the proposed ballots and shall select one or the other within seven (7) days of the date of receipt of the parties’ proposed ballots.

The last best offer receiving a majority of the votes shall become the agreement of the parties.

“D. Concerning issues relating to money, such ballot shall clearly state the total dollar amount of the offer from the corporate authority and the total dollar amount of the offer from the bargaining agent.

Such ballot shall also disclose the percentage of increase or decrease both offers have over or under the last contract of the two parties.

“E. Agreements which are reached as a result of selection by the arbitration board or by election shall be effective on the first day of the fiscal year involved regardless of the date of the final selection.”

2. Opinion and Award of Board of Arbitration, 8.

3. Opinion and Award of Board of Arbitration, 8.

4. Previously codified at 15 O.S.2001, §§ 801-818..

2010 OK 56 State of Oklahoma ex rel. Oklahoma Department of Public Safety, Petitioner, v.

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District Judge Noma Gurich, Repondent, and Bobbie Castleberry, Individually and as Widow of Kent Castleberry, Deceased, Real Party in Interest.

trial court that would entitle it to extraordinary relief. That request is therefore denied.

No. 107,740. July 6, 2010

¶2 On November 9, 2005, Kent Castleberry was a passenger in a car driven by a family friend. He was killed when the friend’s car was struck by a car traveling at a high rate of speed which was being pursued by an Oklahoma Highway Patrol (OHP) trooper.

APPLICATION TO ASSUME ORIGINAL JURISDICTION AND PETITION FOR EXTRAORDINARY RELIEF ¶0 Widow of a bystander killed during a police pursuit sought redress in the District Court alleging tortious conduct by a state trooper in pursuing and continuing to pursue the fleeing driver whose vehicle struck the vehicle in which decedent was a passenger. The District Court refused to grant summary judgment to the State of Oklahoma. The State seeks extraordinary relief arguing that it is immune from liability and that the trooper’s actions were not the cause of the collision.

ORIGINAL JURISDICTION PREVIOUSLY GRANTED; EXTRAORDINARY RELIEF DENIED. Kevin McClure, John D. Hadden, Assistant Attorneys General, Oklahoma Attorney General’s Office, Oklahoma City, Oklahoma, for Petitioner, State of Oklahoma ex rel. Department of Public Safety.

Peter J. Ram, Scott B. Hawkins, Norman & Edem, P.L.L.C., Oklahoma City, Oklahoma, for Real Party in Interest, Bobbie Castleberry.

COLBERT, J. ¶1 This Court assumed original jurisdiction to resolve important issues of public safety involving injuries to bystanders in police pursuits. The publici juris nature of those issues combined with the pressing need to resolve this matter and another matter which is pending on certiorari review1 is sufficient to invoke this Court’s discretionary review. See Edmondson v. Pearce, 2004 OK 23, ¶ 11, 91 P.3d 605, 613.

Today’s opinion explains governmental immunity in the context of police pursuits, analyzes causation when a bystander is injured in a police pursuit, and identifies the applicable standard of care required by the drivers of emergency vehicles involved in such pursuits.

This matter demonstrates the current confusion concerning bystander claims brought against the State and its political subdivisions arising from police pursuits. However, the State has not demonstrated any action by the Vol. 81 — No. 19 — 7/24/2010

FACTS AND PROCEDURAL HISTORY

¶3 Just prior to the pursuit, the OHP identified a stolen, green, 2005, Ford Expedition (SUV) which was parked outside an apartment complex. Troopers watched a woman drive the SUV away from the complex and they began to follow her. They observed a smaller white car that appeared to be following the SUV and radioed trooper Nelson to ask him to stop the white car and conduct a field interview of the driver. ¶4 Trooper Nelson followed the white car until it began driving recklessly. He activated his lights and siren and pursued the fleeing driver for several miles at high rates of speed in moderate to heavy traffic through mixed residential and business areas of Oklahoma City. The pursuit ended when the white car struck the car in which decedent was a passenger with such force that it rolled. The driver of the fleeing vehicle attempted to flee on foot. He was apprehended and arrested. Eventually, he pleaded guilty to a charge of first degree manslaughter. The driver of the SUV, who was never involved in the pursuit, was pulled over and arrested without incident several miles away from the scene of the collision. ¶5 Decedent’s widow brought the underlying action in District Court pursuant to the Governmental Tort Claims Act (GTCA), Okla.

Stat. tit. 51, §§ 151-200 (2001 & Supp. 2009). The State moved for summary judgment arguing that it and its political subdivisions are exempted from liability by certain provisions of the GTCA, that the police pursuit was not a cause of the bystander’s death as a matter of law, and in the alternative, the trooper’s pursuit did not as a matter of law rise to the level of reckless disregard for the safety of others so as to impose liability on his employer. The trial court denied the motion thus precipitating this original action and today’s pronouncement concerning the legal issues presented.

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STANDARD OF REVIEW ¶6 The applicability of a GTCA immunity provision presents an issue of law. See Salazar v. City of Oklahoma City, 1999 OK 20, ¶¶ 24-35, 976 P.2d 1056, 1065-68. The existence of a duty also presents a question of law. Delbrel v.

Doenges Bros. Ford, Inc., 1996 OK 36, ¶ 7, 913 P.2d 1318, 1320. Issues of law are reviewed de novo. See Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084.

POLICE PURSUITS AND THE GOVERNMENTAL TORT CLAIMS ACT ¶7 The State argues that it enjoys absolute immunity for the actions of its officers while engaged in police pursuits under several exemptions to liability enumerated in section 155 of the GTCA. Precedent, however, holds to the contrary. ¶8 Exemption 4 of section 155 retains the immunity of the State or a political subdivision for a claim resulting from the “[a]doption or enforcement of or failure to adopt or enforce a law, whether valid or invalid, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy.” Similarly, exemption 5 extends immunity to the “[p]erformance of or the failure to exercise or perform any act or service which is in the discretion of the state or political subdivision or its employees.” Finally, exemption 6 exempts from liability “[c]ivil disobedience, riot, insurrection or rebellion, or the failure to provide, or the method of providing, police, law enforcement or fire protection.” ¶9 The State argues that these exemptions collectively or individually prohibit any “claims against law agencies when a fleeing suspect injures an innocent bystander.” Under the State’s view, any “discretionary decision” made by a law enforcement agency or its employee in order to provide police protection is not subject to an action in tort. The State reads the exemptions much too broadly. ¶10 This Court has recognized that “[a]lmost all acts of government employees involve some element of choice and judgment.” Nguyen v.

State, 1990 OK 21, ¶ 4, 788 P.2d 962, 964. Therefore, “the government retains its immunity with respect to formulation of policy, but is subject to liability for routine decisions and daily implementation of the policy or planning level decisions.” Id., ¶ 5, 788 P.2d at 965. “Statutory immunity for providing protective servic1570

es (police or fire) is not co-extensive with a blanket immunity from common-law negligence for carrying out law enforcement duties.”

Salazar, 1999 OK 20, ¶ 27, 976 P.2d at 1066.

Negligent performance of a law enforcement function is not shielded from immunity under the GTCA. Id. ¶11 Exemptions 4, 5, and 6, when read together with this Court’s explanations, define clearly the scope of statutory immunity concerning law enforcement. The State and its political subdivisions enjoy immunity for the choice to adopt or enforce a law, the formulation of law enforcement policy, and the method by which policy is implemented. The exemptions do not apply to tortious acts of government servants in the daily implementation of policy. The blanket immunity the State seeks concerning police pursuits does not exist in Oklahoma’s statutory law or jurisprudence.2 CAUSATION ¶12 The State contends that the trooper’s pursuit did not cause the fatal collision between the fleeing vehicle and the vehicle in which the decedent was a passenger. It argues that legal causation can be found only if the emergency vehicle made direct contact with the bystander vehicle or with the fleeing vehicle causing it to alter its course. The State asserts that such a rule of causation has been codified in the exemption of liability found at section 155(18) of the GTCA. Exemption 18 provides immunity when a claim results from “[a]n act or omission of an independent contractor or consultant or his or her employees, agents, subcontractors or suppliers of a person other than an employee of the state or political subdivision at the time the act or omission occurred.” The State reasons that because the fleeing driver was “other than an employee of the state or political subdivision” the GTCA exempts the actions of the pursuing officer from tort claims. ¶13 The State’s understanding of exemption 18 is simply incorrect. The provision does not speak to causation, it states that the State or its political subdivisions are exempt from liability only for the acts of government employees and not the acts of other enumerated persons, including independent contractors and their employees. The rules of causation that apply to this matter are found in this Court’s precedent. ¶14 “An essential element of the plaintiff’s cause of action for negligence, or for that matter for any other tort, is that there be some

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reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered.” W. Page Keeton et al., Prosser and Keeton on Torts 263 (5th ed.

1984). This reasonable connection is one of “proximate cause” or “direct cause” as that term is used in the following jury instruction: Direct cause means a cause which, in a natural and continuous sequence, produces injury and without which the injury would not have happened. For negligence to be a direct cause it is necessary that some injury to [the property of] a person in [Plaintiff’s] situation must have been a reasonably foreseeable result of negligence.

Oklahoma Uniform Jury Instructions (OUJI) (Civil) No. 9.6. “[T]he question of proximate cause is generally one of fact for the jury. It becomes one of law only when there is no evidence from which a jury could reasonably find a causal nexus between the act and the injury.”

Jackson v. Jones, 1995 OK 131, ¶ 8, 907 P.2d 1067, 1072-73 (footnotes omitted). ¶15 “There may be more than one direct cause of an injury. When an injury is the result of the combined negligence of two or more persons, the conduct of each person is a direct cause of the injury regardless of the extent to which each contributes to the injury.” OUJI (Civil) No. 9.7. “For example, when a cause merely combines with another act to produce injury, or several events coincide to bring about a single injurious result, each negligent actor may be held accountable.” Jackson, 1995 OK 131, ¶ 9, 907 P.2d at 1073. The chain of causation may be broken by an intervening event, also known as a superseding or supervening cause. Id. However, to actually sever the chain of causation the event must be (1) independent of the original negligent act, (2) adequate in itself to produce the injury, and (3) reasonably unforeseeable. Thompson v. Presbyterian Hosp., Inc., 1982 OK 87, ¶ 15, 652 P.2d 260, 264; OUJI (Civil) No. 9.8. The issue of whether the consequences of the original act could have been reasonably foreseen is one of fact. Jackson, 1995 OK 131, ¶ 9, 907 P.2d at 1073. ¶16 The dissenting opinion acknowledges that the statutory privilege of the driver of an emergency vehicle to disregard certain traffic laws under certain conditions is subject to the duty to refrain from doing so in a manner that demonstrates “reckless disregard for the safety of others.” The dissent would hold, however, Vol. 81 — No. 19 — 7/24/2010

that “a driver who maintains control of the emergency vehicle and does not harm anyone with the vehicle, remains within the privilege, breaches no duty, and commits no tort as a matter of law.” That conclusion fails to give effect to the common law rules of causation discussed in this opinion; namely that there may be more than one direct cause of an injury and that several events may coincide to cause injury. Thus, the view expressed in the dissenting opinion would create an exception to direct causation and concurrent causation for an officer’s decision to initiate and continue a pursuit no matter how reckless the decision or how recklessly the officer drives so long as the emergency vehicle remains in the driver’s control. As explained below, the privilege to disregard certain traffic laws does not extend to reckless behavior which injures others. ¶17 In this matter, this Court cannot say that there was no evidence from which a jury could find a causal nexus between the trooper’s decision to pursue and remain in pursuit of the fleeing driver. The relevant facts are in dispute and the trier of fact must determine whether the collision which took decedent’s life was a foreseeable consequence of the trooper’s actions. Those actions must be measured under the applicable standard of care owed by the operator of an emergency vehicle involved in a police pursuit.

DUTY OF CARE ¶18 This Court has not addressed the duty of care owed to a bystander who is injured by a police pursuit. In fact, the last published appellate opinion addressing the issue was the Court of Civil Appeals’ decision in 1990 of Kelly v.

City of Tulsa, 1990 OK CIV APP 30, 791 P.2d 826 (no pet. for cert.). For the reasons set forth, this Court determines that Kelly does not accurately state the applicable standard of care and it is therefore disapproved. This opinion articulates that standard and addresses the legal issues that surround its application. ¶19 In Kelly, the Court of Civil Appeals relied on a Kansas Supreme Court decision in order to draw a distinction between the “operation of an emergency vehicle itself” and the “decision to initiate and continue police pursuit.” Id., ¶¶ 11-12, 791 P.2d at 828. It held that the duty of care provided by Oklahoma’s emergency vehicle statutes apply only to the former. Id., ¶ 12, 791 P.2d at 828 (citing Okla.

Stat. tit. 47 §§ 11-106 & 11-405). It then declared

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that the standard that applied to the decision to pursue or continue to pursue was whether the pursuit was conducted in a manner “so extreme or outrageous as to pose a higher threat to public safety than ordinarily incident to high-speed police pursuits.” Id., ¶ 14, 791 P.2d at 829. It further held that, as a matter of law, “the benefit of apprehending [fleeing law violators] outweighs the ordinary risks inherently involved in such pursuit.” Id. Thus, Oklahoma became one of only four jurisdictions in which a distinction was recognized between the physical operation of an emergency vehicle and the decision to pursue or continue the pursuit of a fleeing driver. See Thorton v. Shore, 666 P.2d 655 (Kan. 1985); Robinson v. City of Detroit, 613 N.W.2d 307 (Mich. 2000); Estate of Cavanaugh v. Andrade, 550 N.W.2d 103 (Wis. 1996). In 2007, the Kansas Supreme Court revisited the distinction and overruled it in Robbins v. City of Wichita, 172 P.3d 1187 (Kan. 2007). ¶20 The Robbins court noted that the weight of authority is presently against making an arbitrary distinction between the duty of care owed while operating an emergency vehicle and a duty of care owed while pursuing a fleeing driver. Id. at 1193. Like the Kansas Supreme Court, this Court recognizes that “the act of driving involves both the mental and physical components” and that a decision to begin or discontinue a police pursuit is indistinguishable from the method of pursuing. Id. at 1195.

This Court holds that the standard of care which the operator of an emergency vehicle owes to the public is found in the provisions of title 47 of the Oklahoma Statutes concerning emergency vehicles. ¶21 In 1961, the Oklahoma Legislature adopted certain “Rules of the Road” as part of the Model Uniform Vehicle Code. See 1961 Okla.

Sess. Laws 373 (current version codified at Okla. Stat. tit. 47, §§ 11-101 through 11-1405 (2001 & Supp. 2009)). Most states patterned their provisions concerning emergency vehicles after the Model Uniform Vehicle Code although “jurisdictions vary considerably as to their degree of conformity with the uniform code.” 10 Am. Jur. Proof of Facts 3d 203, 213 (1990). ¶22 Section 11-106 of title 47 grants certain exemptions from the Rules of the Road to the driver of an authorized emergency vehicle3 when responding to an emergency call or fire alarm. Such a driver may: 1572

1. Park, or stand, irrespective of the provisions of this chapter; 2. Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation; 3. Exceed the maximum speed limits so long as speeding does not endanger life or property; 4. Disregard regulations governing direction of movement; and 5. Disregard regulations governing turning in specified directions.

Okla. Stat. tit. 47, § 11-106(B). These exemptions “apply only when the driver is properly and lawfully making use of an audible signal or of flashing red or blue lights or a combination of flashing red and blue lights.” Id. at § 11-106(C). However, exemptions 3 (speed) and 5 (turning) are granted to a law enforcement officer operating an emergency vehicle without the use of audible and visual signals if the officer is following a suspect and has probable cause to believe that: 1. Knowledge of the presence of the officer will cause the suspect to: a. destroy or lose evidence of a suspected felony, b. end a suspected continuing felony before the officer has obtained sufficient evidence to establish grounds for arrest, or c. evade apprehension or identification of the suspect or the vehicle of the suspect; or 2. Because of traffic conditions, vehicles moving in response to the audible or visual signals may increase the potential for a collision.

The exceptions granted in this subsection shall not apply to an officer who is in actual pursuit of a person who is eluding or attempting to elude the officer in violation of Section 540A of Title 21 of the Oklahoma Statutes.

Id. at § 11-106(D). In any event, “[t]he provisions of this section shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of reckless disregard for the safety of others.” Id. at § 11-106(E).

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¶23 Although the text of section 11-106(E) was taken directly from the Model Uniform Vehicle Code and is shared in some form by most states it “has created much confusion and varying results in the courts. In fact, practically every state has said something different about the [provision].” Patrick T. O’Connor & William L. Norse, Police Pursuits: A Comprehensive Look at the Broad Spectrum of Police Pursuit Liability and Law, 57 Mercer L. Rev. 511, 516 (2006). Some states have read “due regard for the safety of others” to impose a negligence standard and apparently regard the “reckless disregard” clause to be surplusage.

See, e.g, Stenberg v. Neel, 613. P.2d 1007, 1010 (Mont. 1980). See also Robbins, 172 P.3d at 1195-96 (citing cases applying an ordinary negligence standard). Many other states have held that their version of the provision imposes a standard of recklessness or willful and wanton conduct.4 See Robbins, 172 P.3d at 1196-97.5 ¶24 This Court’s search for legislative history indicating the intent of the provision has been fruitless. However, several important policy considerations have been identified by courts which apply a standard higher than mere negligence. They persuade this Court to adopt “reckless disregard for the safety of others” as the duty of care an emergency vehicle driver owes to the public while operating pursuant to section 11-106. ¶25 First, the “reckless disregard” clause of section 11-106(E) cannot be considered surplusage. “The Legislature is not presumed to have done a vain or useless act in the promulgation of a statute.” Comer v. Preferred Risk Mut. Ins. Co., 1999 OK 86, ¶ 18, 991 P.2d 1006, 1014 (footnote omitted). “Statutes must be read to render every part operative and to avoid rendering it superfluous or useless.” Id., ¶ 19 n.35, 991 P.2d at 1014 n.35 (citation omitted).

The text of section 11-106(E) establishes “reckless disregard” as “the standard of care for evaluating whether the driver of an emergency vehicle breached the duty to ‘drive with due regard for the safety of all persons.’” Robbins, 172 P.3d at 1197. ¶26 Second, public policy demands a standard higher than mere negligence for situations involving emergency vehicles. That is particularly true for the split-second life and death decisions involved in police pursuits. A police pursuit is “one of the most volatile, dangerous, and unpredictable tasks of police work.” Andrew G. Cooley & Brock Gavery, Vol. 81 — No. 19 — 7/24/2010

Police Pursuit and High-Speed Driving Lawsuits, The Police Chief, Oct. 2006 at 26, 28. As such, liability should be reserved only for those who recklessly disregard the risks to the public created by the decision to commence or continue a police pursuit. ¶27 Third, any decision to pursue or continue a pursuit involves striking a balance between law enforcement effectiveness and the risk of injury to the public. That balancing is reflected in the pursuit policy of the OHP which acknowledges that “[t]he decision to terminate a pursuit may be the most rational means of preserving the lives and property of . . . the public” and that a “[p]ursuit shall be immediately terminated [when] the danger posed by continued pursuit to the public . . . is greater than the value of apprehending the suspect(s).” A standard of “reckless disregard” is more consistent with the balancing of benefit and risk required by a typical police policy than is a standard of mere negligence.6 As the Kansas Supreme Court observed, “the duty of protecting the public is coextensive with the duty of apprehending suspected criminals.” Robbins, 173 P.3d at 1199.

CONCLUSION ¶28 Today, this Court gives effect to the Oklahoma Legislature’s choice of reckless disregard as the standard of care required of the operator of an emergency vehicle. The exemptions from liability found in the GTCA do not apply to a law enforcement officer’s decision to pursue or maintain pursuit of a fleeing driver. Whether an officer’s conduct meets the standard of care and whether the officer’s actions were the cause of a bystander’s injury are questions to be determined in a manner consistent with this pronouncement.

ORIGINAL JURISDICTION PREVIOUSLY GRANTED; EXTRAORDINARY RELIEF DENIED. CONCUR: Edmondson, C.J.; Opala, Kauger, Watt, Winchester, Colbert, JJ. DISSENT: Taylor, V.C.J.; Hargrave, Reif, JJ. 1. Some of the same issues are pending in Gregory Ray, Debora Ray, and E.R., a minor, v. Broken Arrow Police Department; A. Mauch, City of Broken Arrow, No. 106,051 (certiorari granted January 19, 2010). This decision will resolve most of the issues presented by that matter.

2. The fact that police pursuits do not fall within the exemptions from liability stated in the GTCA in no way diminishes the effect of section 154 which limits the extent of government liability for claims brought pursuant to the Act. See Okla. Stat. tit 51, § 154.

3. Emergency vehicles are:

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A. When equipped as prescribed in subsection B of this section: 1. Vehicles of fire departments; 2. Ambulances or vehicles specified pursuant to subsection B of Section 1-2512 of Title 63 of the Oklahoma Statutes of licensed ambulance service providers; 3. State vehicles of law enforcement agencies; 4. County vehicles of sheriffs and full-time commissioned deputies and vehicles designated by the sheriff for support of the sheriff’s office including privately owned vehicles driven by the sheriff and full-time, part-time and reserve commissioned deputies; provided the audible sirens and flashing red lights equipped on such privately owned vehicles are used only in a law enforcement capacity and in the course of duty; 5. Municipal vehicles of police departments; 6. Vehicles owned and operated by the United States Marshals Service or the Federal Bureau of Investigation; 7. Vehicles of Oklahoma National Guard units designated by the Adjutant General for support to civil authorities; or 8. Vehicles owned and operated by any local organization for emergency management as defined by Section 683.3 of Title 63 of the Oklahoma Statutes, are authorized emergency vehicles.

B. All vehicles prescribed in subsection A of this section shall be equipped with sirens capable of giving audible signals as required by the provisions of Section 12-218 of this title and flashing red lights as authorized by the provisions of Section 12218 of this title.

Okla. Stat. tit. 47, § 1-103.

4. As Professor Prosser noted: [t]he words “willful,” “wanton,” or “reckless,” are customarily applied; and sometimes, in a single sentence, all three. Although efforts have been made to distinguish them, in practice such distinctions have consistently been ignored, and the three terms have been treated as meaning the same thing, or at least as coming out at the same legal exit. They have been grouped together as an aggravated form of negligence, differing in quality rather than in degree from ordinary lack of care.

Prosser, supra at 212. Oklahoma’s Uniform Jury Instructions define both “willful and wanton” conduct and “reckless disregard of another’s rights” to be conduct that is “unreasonable under the circumstances, and also there must have been a high probability that the conduct would cause serious harm to another person.” OUJI (Civil) Nos. 5.6 & 9.17. Because such conduct differs in kind from conduct constituting ordinary negligence, a “jury must be instructed that while ordinary negligence of the plaintiff may be used as a defense against [negligence or] gross negligence, it may not be considered as a defense against any form of conduct found to be willful and wanton or intentional.” Graham v. Keuchel, 1993 OK 6, ¶ 52, 847 P.2d 342, 363 (emphasis omitted).

5. To establish a Fourteenth Amendment substantive due process claim in federal courts, the pursuing officer’s actions must demonstrate more than deliberate or reckless conduct, “only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation.” Sacramento v. Lewis, 523 U.S. 833, 836 (1998).

6. As one commentator has noted: There are two widely adopted styles of pursuit policy. A restrictive policy limits the crimes for which a pursuit may be initiated.

Common restrictive policies may limit pursuits to those cases where there is a violent felony. In contrast, a discretionary policy gives the officer basic guidance about when to initiate, and discretion about how to conduct and terminate a pursuit.

Cooley, Police Pursuit, supra at 29 (footnote omitted). In either style the balancing of risk versus benefit occurs, the difference is whether the officer’s employer makes the determination in advance or guides the officer’s discretion.

REIF, J., with whom TAYLOR, V.C.J. and HARGRAVE, J., join, dissenting. ¶1 The majority opinion holds that law enforcement officers and their government entity employers can be liable to third parties for harm caused by drivers who are fleeing apprehension by the officers. The majority finds support for such liability in the statute governing the operation of emergency vehicles when in pursuit of an actual or suspected violator — 47 1574

O.S. Supp. 2004 § 11-106. The majority points out that the statute expressly provides that its “provisions [do not] protect the driver of an emergency vehicle from the consequences of reckless disregard for the safety of others.” The majority concludes that this language applies not only to the officer’s operation of his vehicle, but also to the officer’s decisions to commence and to continue pursuit. I respectfully dissent from this interpretation because the text of section 11-106 as a whole indicates that the “reckless disregard” language relates to the driving or operation of an emergency vehicle. ¶2 It should be first noted that subsection (A) of section 11-106 extends a “privilege” to the driver an emergency vehicle to operate the vehicle in ways that would otherwise violate certain traffic laws and constitute negligence per se. A privilege is a rule that relieves an actor from liability for conduct which, under ordinary circumstances, would subject the actor to liability. Restatement (Second) of Torts § 10(1) (1965). A privilege may be based upon the fact that its exercise is necessary for the protection of some interest of the public which is of such importance as to justify the harm caused or threatened by its exercise. Id. at § 10(2)(b). If the acts are done for the purpose of protecting or advancing the interest, the privilege protects the actor from liability. Id. at cmt. d. ¶3 Under subsection (A) of section 11-106, the driver of an authorized emergency vehicle may exercise the privilege set forth therein “[1] when responding to an emergency call or [2] when in the pursuit of an actual or suspected violator of the law or [3] when responding to . . . a fire alarm.” These are public interests protected by the privilege. Clearly, the decision that the driver of an emergency vehicle should act for the purpose of protecting or advancing these public interests has been made by the Legislature. ¶4 To balance the protection of these specific interests, with a more general interest of public safety, the Legislature made exercise of the emergency vehicle privilege subject to certain conditions. These conditions deal with the operation of the emergency vehicle. In subsection (B)(2), the Legislature authorizes the driver of an emergency vehicle to “[p]roceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation.” (Emphasis added.) Subsection (C) generally requires the driver of an emergency vehicle to make use of an audible signal or

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flashing red or blue lights or combination thereof. Subsection (E) further provides “[t]he provisions of this section shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons.” (Emphasis added.) ¶5 The language that the provisions of section 11-106 shall not protect the driver “from the consequences of reckless disregard for the safety of others,” is simply another condition on the exercise of the privilege. That is, a driver of an emergency vehicle who acts (drives) with reckless disregard loses the protection of the privilege. Conversely, a driver who maintains control of the emergency vehicle and does not harm anyone with the vehicle, remains within the privilege, breaches no duty, and commits no tort as a matter of law. ¶6 The view in this dissent that liability arising under section 11-106 arises only from the operation of the emergency vehicle was first expressed by the Court of Civil Appeals in the case of Kelly v. City of Tulsa, 1990 OK CIV APP 30, 791 P.2d 826. In Kelly, the Court of Civil Appeals rejected the plaintiff’s contention that liability could be imposed under section 11-106 for an officer’s decision to initiate and continue a pursuit. The Court of Civil Appeals correctly observed that the decision to pursue is not the consideration addressed by section 11-106. ¶7 In the case of Taylor v. City of Oklahoma City, 1995 OK CIV APP 133, 914 P.2d 1073, the Court of Civil Appeals would again consider the scope of section 11-106. The Court of Civil Appeals followed Kelly and concluded the duty of care created by the emergency vehicle statutes applies only to the operation of the emergency vehicle itself and cannot be the basis for governmental liability absent evidence that the emergency vehicle itself was being driven in an unsafe manner. ¶8 While Kelly and Taylor are not binding precedent, they are published opinions by an appellate court of this State that construe a statute of significant public concern. Since Kelly and Taylor were decided, the Legislature has amended section 11-106 four times, the most recent amendment occurring in 2004. If the Legislature had disapproved of the interpretation of section 11-106 in Kelly and Taylor, it would surely have expanded the privilege and its conditions to include the decision to initiate and continue a pursuit. By not doing so, the Vol. 81 — No. 19 — 7/24/2010

Legislature has tacitly approved of the interpretation in Kelly and Taylor. ¶9 As concerns the issue of “concurrent causes,” a law enforcement officer who initiates a pursuit of a violator does an act that public policy encourages and protects. The initiation of pursuit simply cannot be a legal wrong that can operate concurrently with the wrong of the violator. In addition, once a pursuit is commenced, section 11-106 governs the action of the pursuing officer. The initiation of a pursuit and its continuation in compliance with section 11-106 creates nothing more than a condition for harm caused by the violator being pursued. ¶10 In summary, the Legislature created the emergency vehicle privilege in section 11-106, provided the conditions for its exercise and specified the conditions under which the driver of an emergency vehicle would incur liability.

The current text of section 11-106, as well as Oklahoma appellate court interpretations of section 11-106, indicate that the privilege and any liability thereunder extend to the driving or operation of an emergency vehicle, and not the decision to pursue a violator or to respond to emergency calls. In setting public policy, the Legislature has decided that the public benefit to be achieved by pursuit of violators outweighs any potential harm caused by the violators being pursued, who are under a duty to stop pursuant to 47 O.S.2001 §§ 11-103 and 11405, and if they attempt to allude, commit a crime under 21 O.S.2001 § 540A. Additionally, section 540A(C) addresses the issue of accidents caused by violators who attempt to allude pursuit by law enforcement; in cases where such accidents result in great bodily injury, the Legislature has provided a felony penalty for the violator being pursued. If the Legislature has believed victims of such accidents should have some remedy from the pursuing law enforcement agency, it could have also provided such a remedy in section 540A(C) but did not do so. In my opinion, any change in the status quo of the laws governing the emergency vehicle privilege of section 11-106 should be made by the Legislature and not by this Court. ¶11 I respectfully dissent.

2010 OK 57 Gregory Ray, Debora Ray, and E.R., a minor, Appellants, v. Broken Arrow Police Department, A. Mauch, City of Broken

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Arrow, Appellees, and V.P., a minor, and Paula Priebe, Defendants.

No. 106,051. July 6, 2010 CERTIORARI TO THE COURT OF CIVIL APPEALS Division III ¶0 Family, injured when a vehicle which was being pursued by a police vehicle crashed into their home, brought this action against the pursuing officer, the police department, the city, the fleeing driver, who was a minor, and the minor’s guardian. The trial court, Honorable Deborah C. Shallcross, granted summary judgment to the city based on an exemption from liability in the Governmental Tort Claims Act. CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; TRIAL COURT REVERSED; CAUSE REMANDED. Eric W. Quandt, Darrel R. Paul, Tulsa, Oklahoma, for Appellants.

Beth Ann Wilkening, R. Hayden Downie, Broken Arrow, Oklahoma, for Appellee, City of Broken Arrow.

COLBERT, J. ¶1 Certiorari was previously granted to consider this matter with the original proceeding in State ex rel. Department of Public Safety v.

Gurich, 2010 OK 56, decided today. The Gurich opinion announces the duty of care owed to the public by a law enforcement officer who pursues the driver of a fleeing vehicle. It addresses causation in such instances and certain statutory exemptions from liability contained in the Governmental Tort Claims Act (GTCA), Okla. Stat. tit. 51, §§ 151-200 (2001 & Supp. 2009). ¶2 This matter addresses the single dispositive issue raised on appeal; the applicability of the exemption from liability for “[a]cts or omissions done in conformance with then current recognized standards.” Id. at § 155(29). This Court holds that the exemption does not apply to these facts and that the trial court erred in granting summary judgment on that ground.

FACTS AND PROCEDURAL HISTORY ¶3 On October 29, 2005, V.P.’s grandmother called 911 emergency services to report that her fifteen-year-old granddaughter was driving 1576

her parents’ Jeep Cherokee without permission and without a license, and was observed driving in Broken Arrow, Oklahoma. Later that day, officer Angela Mauch of the Broken Arrow Police Department recognized the vehicle as being stolen, performed a U-turn and began pursuit. While fleeing from the officer, V.P. drove into a residential area where she lost control of the vehicle and into a residence occupied by the Ray family (Plaintiffs) causing physical injury to Plaintiffs and damage to their property. ¶4 There is some dispute regarding the pursuit. According to the officer, she initially attempted to pull V.P.’s car over, stopped, and began to exit her police car, when V.P. began to flee again and the officer was forced to reinitiate the chase, which eventually ended in the crash into Plaintiffs’ home. Witnesses to the chase claim that no such attempted stop by the officer took place. There is dispute also regarding whether the officer properly engaged her emergency lights and siren and at what point she did so during the chase. ¶5 Plaintiffs brought this action against the officer, the Broken Arrow Police Department, the City of Broken Arrow (City) asserting that the officer was negligent in pursuing V.P. and that City was vicariously liable for the officer’s acts performed within the scope of her employment with the Broken Arrow Police Department. Additionally, Plaintiffs asserted V.P.’s negligence and a claim for negligent entrustment of the Jeep Cherokee against V.P.’s mother. Only the claim against City is at issue in this matter because the claims against each of the other defendants were dismissed prior to the appeal. V.P. eventually entered a plea to several counts relating to the events of October 29, 2005 and spent time in juvenile custody as a result. ¶6 City moved for summary judgment attaching the affidavit of a supervisor for the City of Tulsa Police Department who described his expertise in police pursuits and opined that the officer’s actions were not “negligent, grossly negligent or shocking to the conscience” and that “the pursuit was done in conformance with recognized law enforcement standards, and within the Policies established by the Broken Arrow Police Department.” The trial court granted summary judgment holding that “the Officer acted in conformance with recognized standards and the City is immune from liability pursuant to the Governmental Tort Claims Act.”

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¶7 On appeal, Plaintiffs asserted only that the trial court erred in its immunity determination. Rather than addressing that issue, however, the Court of Civil Appeals became focused on the duty of care owed by the officer. That court announced “reckless disregard for the safety of others” to be the standard by which the officer’s conduct would be judged and then held that Plaintiffs failed to foresee and plead the standard which it had just pronounced.

This Court granted certiorari to address the single issue presented on appeal regarding immunity.

ANALYSIS ¶8 This Court has not addressed directly whether the exemption from liability for “[a]cts or omissions done in conformance with then current recognized standards” applies to a law enforcement officer’s decision to pursue or continue to pursue a fleeing driver. However, this Court has held that the exemptions from liability which are enumerated in the GTCA do not abridge or enlarge tort law. See McCathern v. City of Okla. City, 2004 OK 61, ¶ 17, 95 P.3d 1090, 1097. Further, torts arising from the performance of a law enforcement function are not shielded by the GTCA immunity provided when the State or a political subdivision negligently provides protective service. Salazar v.

City of Okla. City, 1999 OK 20, ¶ 27, 976 P.2d 1056, 1066. ¶9 The GTCA does not prescribe the duty of care regarding an officer’s pursuit of a fleeing driver. That duty is stated in title 47, section 11-106(E), of the Oklahoma Statutes which requires that an officer not act in “reckless disregard for the safety of others” while pursuing a fleeing driver as explained in today’s decision in Gurich, 2010 OK 56, ¶ 22. “The standard of care prescribes how a person must act or not act in order to satisfy the duty of care.” Morales v. City of Okla. City, 2010 OK 9, ¶ 22, 230 P.3d 869, 878. Thus, the question in this matter is whether the officer’s conduct was consistent with the duty imposed. That determination depends on the circumstances and therefore it presents an issue for the trier of fact. See Id., ¶ 28, 230 P.3d at 881.

CONCLUSION ¶10 The exemption from liability stated in title 47, section 155(29), does not apply to this matter and the trial court erred by applying it as a shield of immunity. This matter is remanded to the trial court for proceedings consistent Vol. 81 — No. 19 — 7/24/2010

with this opinion and with the holdings in Gurich.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF CIVIL APPEALS VACATED; TRIAL COURT REVERSED; CAUSE REMANDED. CONCUR: Edmondson, C.J.; Opala, Kauger, Watt, Winchester, Colbert, JJ. DISSENT: Taylor, V.C.J.; Hargrave, Reif, JJ. REIF, J., with whom Taylor, V.C.J. and Hargrave, J. join, dissenting: I respectfully dissent for the reasons stated in my dissent in the case of State of Oklahoma ex rel. Oklahoma Department of Public Safety, v. District Judge Noma Gurich, 2010 OK 56, _____P.3d _____. 2010 OK 52 IN THE MATTER OF THE SUSPENSION OF MEMBERS OF THE OKLAHOMA BAR ASSOCIATION FOR NONPAYMENT OF 2010 DUES SCBD No. 5654. July 1, 2010 ORDER OF SUSPENSION This matter comes on before this Court for consideration of the Recommendation for Suspension for Nonpayment of Dues submitted by the Board of Governors of the Oklahoma Bar Association, for suspension of members from membership in the Association and from the practice of law in the State of Oklahoma, for failure to pay their dues as members of such Association for the year 2010, as provided by the Rules Creating and Controlling the Oklahoma Bar Association.

The Court having considered said Recommendation finds that the members of the Oklahoma Bar Association, named in Exhibit A, attached hereto, should be and are hereby suspended from membership in the Association and from the practice of law in the State of Oklahoma for failure to pay membership dues for the year 2009, as provided by the Rules Creating and Controlling the Oklahoma Bar Association.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE ON THIS 1st DAY OF JULY, 2010. /s/ James E. Edmondson CHIEF JUSTICE ALL JUSTICES CONCUR

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Exhibit “A” (2010 Dues Suspension) Soo-Kyung Ahn, OBA No. 19631 3826 Welwyn St. Vancouver Canada V5N 3Y9, FO 00001

Michael Dean Clay, OBA No. 13624 6538 Collins Ave., #102 Miami, FL 33141 John Arthur Coates, OBA No. 18323 P. O. Box 33136 Tulsa, OK 74153

Dan Glynn Allen, OBA No. 15444 7060 S. Yale Ave., Ste. 706 Tulsa, OK 74136

Judi A. Coover, OBA No. 13492 503 Collins Ave. P. O. Box 433 Portland, PA 18351

Todd Allen Baum, OBA No. 13927 365 1/2 Garcia St., # 2 Santa Fe, NM 87501-2779 Robert Allen Benningfield, OBA No. 716 10912 East 11a Place Tulsa, OK 74128

Nathan David Corbett, OBA No. 21633 1919 Beaumont Dr., Apt. G Norman, OK 73071

James John Bergman, OBA No. 13542 P. O. Box 128 Moline, IL 61265

William M. Covington III, OBA No. 16917 Perry & Covington PA 2110 20th St. Gulfport, MS 39501

Walter Franz Brandhuber, OBA No. 1075 28 Old Brompton R, Ste. 3 London UK SW7 3SS, FO 00001

H. Buckmaster Coyne Jr., OBA No. 17252 1404 Evans St. Morehead City, NC 28557-4028

Edward Newman Brandt III, OBA No. 14189 805 N E 42nd Street Oklahoma City, OK 73105

Brian J. Davis, OBA No. 20931 3001 Expressway Dr., Ste. 400 Islandia, NY 11749

Patrick James Brandt, OBA No. 19415 1905 E. Abram St., Suite B Arlington, TX 76010

Michael Riley Davis, OBA No. 2217 128 Redbud Ln. Pottsboro, TX 75076-4756

Kelly L. Bratcher, OBA No. 16812 502 West Sixth Street Tulsa, OK 74119

Timothy Charles Edwards, OBA No. 19451 1123 S. Florence Pl. Tulsa, OK 74104

Michael Keith Brookreson, OBA No. 18264 2445 N. Westwood Blvd., # 101 Poplar Bluff, MO 63901-2336

Robert Scot Erickson, OBA No. 11825 5330 E. 31st St., Ste. 100 Tulsa, OK 74135

Sheryn Lee Anne Bruehl, OBA No. 15490 8868 S. Wood Creek Dr., Apt. 9 Oak Creek, WI 53154-1314

Geoffrey Allan Evans, OBA No. 20200 197 Crogan St., Ste. 202 Lawrenceville, GA 30046

John Max Burnett Jr., OBA No. 1338 P. O. Box 3508 Albuquerque, NM 87190-3508

Diane Pylant File, OBA No. 2901 2300 N.W. 121st Oklahoma City, OK 73120-7416

Donald Lee Cathey, OBA No. 16821 4200 S.E. 41st St. Del City, OK 73115

W. Thomas Finley, OBA No. 2922 3232 McKinney Ave., #1400 Dallas, TX 75204-2429

David Alan Cherry, OBA No. 1644 2820 White Tail Ct. McKinney, TX 75070

Hershel Leon Franklin, OBA No. 3098 360 Living Springs Goldsby, OK 73093

Jerald Keith Churchill, OBA No. 1686 453777 Tara Trl. Rt. 2 Afton, OK 74331

Jennifer Joy Gideon, OBA No. 18066 550 Autumn Crest Cir., Unit A Colorado Spgs, CO 80919-8166

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Kirk Joseph Girrbach, OBA No. 14414 1280 S.W. 36th Ave., Ste. 201 Pompano Beach, FL 33069

Gerri Anne Inman, OBA No. 17878 3105 E. Skelly Dr., Ste. 620 Tulsa, OK 74105

George David Gordon Jr., OBA No. 13284 7633 E. 63rd Pl., Ste. 210 Tulsa, OK 74133

Daniel Edward James, OBA No. 14642 2036 Windmill Summit Dr. Imperial, MO 63052

Patrick A. Guile, OBA No. 20989 7224 Walnut Creek Dr. Oklahoma City, OK 73142

Paulette Locke Johnson, OBA No. 18907 P. O. Box 2927 Fayetteville, AR 72702

Christian Rollow Haave, OBA No. 19665 305 E. Main St. Edmond, OK 73034-4539

Rhonda Jean Jones, OBA No. 16099 114 Butler Anna, TX 75409-7686

Robert Karl Hammack, OBA No. 3768 556 Jefferson St., Ste 500 Lafayette, LA 70501

Mariatu Kargbo, OBA No. 20514 7720 Wisconsin Ave., Suite 215 Bethesda, MD 20814

Kim Stacy Hand, OBA No. 13361 2605 Henning St. Amarillo, TX 79106-4923

Ronald Christopher Kaufman, OBA No. 17657 803 N. 2nd St. Bellaire, TX 77401

Margaret Ann Hartzog, OBA No. 423 P. O. Box 676 Hobart, OK 73651-0676 Carlyle Ronald Hatfield, OBA No. 15015 217 N. Harvey, Ste. 506 Oklahoma City, OK 73102 Todd Harvie Higgins, OBA No. 15787 P. O. Box 1942 Stillwater, OK 74076 J. Kaye Hildebrandt, OBA No. 10850 3648 S. Campbell Springfield, MO 65807 Kristen Anne Hilty, OBA No. 21214 2301 Alameda Plaza Norman, OK 73071 Gary Lee Hobaugh, OBA No. 4244 7035 E. 77th Tulsa, OK 74133 Amber Dawn Huffman-Sanderson, OBA No. 21705 1224 N.E. 8th St. Moore, OK 73160

John Larth Kienzle, OBA No. 11659 2207 N. Kickapoo Ave. Shawnee, OK 74804-2731 Richard Chilton Labarthe, OBA No. 11393 1621 N. Classen Blvd.

Oklahoma City, OK 73106 Jana Kay Leavey, OBA No. 17885 111 E. Comanche Norman, OK 73069 Heather Kaylie Little, OBA No. 21265 P. O. Box 2731 Oklahoma City, OK 73101 Matthew George Livingood, OBA No. 5473 6211 S. Jamestown Ave. Tulsa, OK 74136-1424 Christopher R. Martin, OBA No. 18764 1435 S. Carson Ave. Tulsa, OK 74119-3417 Matthew Scott Martin, OBA No. 18288 1752 E. 56th St. Tulsa, OK 74105

D. Joel Hulett, OBA No. 10661 P. O. Box 35799 Tulsa, OK 74153-0799

Michael D. Martin, OBA No. 5736 2322 Westpark Dr. Norman, OK 73069

James D. Hurley, OBA No. 4506 2144 Boe Circle Thousand Oaks, CA 91362

Trecia Annette McElroy, OBA No. 18421 P. O. Box 1252 Jenks, OK 74037-1252

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William Martin McLaughlin, OBA No. 12779 1502 S. Main St. Stillwater, OK 74074

Pamela Lewis Shaw, OBA No. 22009 7915 S. Yale Ave., Apt. B Tulsa, OK 74136

Susan L. Michaels, OBA No. 6174 Tunick Bld. 1336 Beltjen Rd., Ste. 202 St Thomas, VI 00802

Gary Todd Skidmore, OBA No. 16308 2662 S. Urbana Ave. Tulsa, OK 74114-4847

Harry Lowell Moore Jr., OBA No. 10551 1850 Arroya St. Colorado Springs, CO 80906

Kyle Austin Smith, OBA No. 17902 MD 32C-613 1025 Eldorado Blvd.

Broomfield, CO 80021 Jeffrey C. Stabler, OBA No. 8529 2114 N.W. Dearborn Ave. Lawton, OK 73507

Corrine Lynn O’Day, OBA No. 19900 P. O. Box 676 221 W. Broadway St. Muskogee, OK 74401-6608 Phillip Windom Offill Jr., OBA No. 10426 6440 Avondale Dr., Ste. 200 Nichols Hills, OK 73116 Pamela Kay Padley, OBA No. 6851 8834 N. Rockwell Dr. Oklahoma City, OK 73132

Mary M. Stitt, OBA No. 14326 P.O. Box 282 Conroe, TX 77305 Lynn Ellen Szymoniak, OBA No. 8812 4371 Northlake Blvd., #366 Palm Beach Gardens, FL 33410-6253 Herbert Randolph Taylor, OBA No. 12869 1885 FM 514 Yantis, TX 75497

Dorothy C. Parker, OBA No. 13554 2966 Berwick Claremore, OK 74017 Donald Mark Pearson, OBA No. 11603 4657 S. Saint Louis Ave. Tulsa, OK 74105-4817

Shelley Beth Thomas, OBA No. 17351 2108 N. Vancouver Ave. Tulsa, OK 74127

Robert Samuel Pestinger, OBA No. 17207 400 E. Royal Ln., Ste. 290 Irving, TX 75039

Machelle Yvonne Thompson, OBA No. 19213 521 Vega Dr. Columbia, SC 29223-5423

Hilary Grace Phillips, OBA No. 18294 5727 N. 25th Rd. Arlington, VA 22103

Kelly Finan Tomlinson, OBA No. 22014 5455 Tibbs Rd. Brownsville, TN 38012-7329

Jason Craig Pitcock, OBA No. 19911 100 I Street S.E., Apt. 504 Washington, DC 20003-4858

Kaci Jo Walker, OBA No. 21856 1379 Saint Paul St., Apt. 203 Denver, CO 80206-2565

Stephen D. Powell, OBA No. 7264 6107 Boca Raton Dallas, TX 75230

Paul Robert Weinstein, OBA No. 9445 1314 Texas Ave., Ste. 1309 Houston, TX 77002

Elisabeth M. Randahl, OBA No. 20726 203 Choctaw Rd. Louisville, KY 40207-1652

Gary Frank Weltmann, OBA No. 21074 30 W. Gude Dr., Ste. 450 Rockville, MD 20850

James T. Robinson, OBA No. 13552 328 Wewoka Drive Norman, OK 73071-7210

Stephanie Marie Westhuis, OBA No. 19595 7705 S. Yale Ave., #807 Tulsa, OK 74136

Steven Rudolph Rodriguez, OBA No. 12838 P. O. Box 460738 San Antonio, TX 78246-0738

Elvis L. Wheaton, OBA No. 10151 21234 E. 39th Pl. Broken Arrow, OK 74014

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Richard Paul Wickes, OBA No. 9584 19th Fl. Linklater 1345 Avenue of the Americas New York, NY 10105 Che Brack Wilbur, OBA No. 20893 19201 Canyon Creek Pl. Edmond, OK 73012-3153 Rhett Henry Wilburn, OBA No. 13127 14249 S. Glenn St. Glennpool, OK 74033 Jon David Wyatt, OBA No. 18883 Tulsa, OK 2010 OK 54 IN RE: APPLICATION OF RANDY EDWARD PHIPPS, 1724 CONRIDGE DR., EDMOND, OK 73034 FOR SPECIAL TEMPORARY PERMIT TO PRACTICE LAW IN OKLAHOMA UNDER THE PROVISIONS OF RULE TWO, SECTION 5, OF THE RULES GOVERNING ADMISSION TO THE PRACTICE OF LAW IN OKLAHOMA SCBD No. 5645. July 1, 2010 ORDER It appears from the Report and Recommendation of the Board of Bar Examiners of the State of Oklahoma that Randy (“Rand”) Edward Phipps has heretofore submitted a Petition for a Special Temporary Permit to practice law in the State of Oklahoma, as provided by Rule Two, §5, of the Rules Governing Admission to the Practice of Law in the State of Oklahoma.

It further appears that the petitioner is employed by Mustang Fuel Corporation, that full time employment is devoted to said employer, and that the petitioner receives full compensation from such employment. No compensation for legal services is received from any source other than the said Mustang Fuel Corporation by which petitioner is employed. Petitioner was admitted to the Nebraska State Bar Association on November 27, 1981 and is an active member in good standing.

Pursuant to such Report and Recommendation, and for good cause shown, it is ORDERED that Randy (“Rand”) Edward Phipps be granted a special temporary permit to practice law in the State of Oklahoma for the purpose of serving in the capacity above stated. Said permit will be valid for so long as petitioner is so Vol. 81 — No. 19 — 7/24/2010

employed and devotes full time employment to Mustang Fuel Corporation and receives compensation for legal services from no source other than the said employer. The right of Randy (“Rand”) Edward Phipps to practice law in the State of Oklahoma shall ipso facto cease and terminate upon the termination of such employment or upon transfer outside the State of Oklahoma. It is the petitioner’s obligation to advise the Oklahoma Bar Association if the employ of said office is terminated or is transferred by said employer out of the State of Oklahoma. The Special Temporary Permit shall be subject to Rule Ten which revokes the permit if petitioner takes the Oklahoma bar examination and fails the examination.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE this 1st day of July, 2010. /s/James E. Edmondson Chief Justice Edmondson, C.J., Opala, Kauger, Winchester, Reif, JJ. - concur Watt, J. - Concurs in part - dissents in part Taylor, V.C. J., Hargrave, Colbert, JJ. - Dissent WATT, J., Concurring in part, dissenting in part: ¶1 I concur in the approval of the application for special temporary permit pursuant to Rule 2, Section 5 of the Rules Governing Admission to the Practice of Law in Oklahoma. Mr. Phipps has met the requirements of that section for the renewal of the permit which is necessary to retain his employment with his current employer, Mustang Fuel Corporation. ¶2 However, my concurrence should not be interpreted as my approval of Mr. Phipps’ stated purpose of then applying for admission by motion pursuant to Rule 2. His affidavit and the Report and Recommendation submitted by the Board of Bar Examiners both clearly show that he has never practiced law in a reciprocal state which is a requirement for admission upon motion. His limited practice for employers in Oklahoma, allowed pursuant to Rule 2, Section 5, will not fulfill the requirements of Rule 2, Section 1, of having “engaged in the actual and continuous practice of law for at least five of the seven years immediately preceding application for admission under this Rule.” Compliance with this time requirement may only be shown by proof of practice in a reciprocal state. It may not be fulfilled by practice in Oklahoma. Rule 2

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clearly refers to practice in a “reciprocal state.”

See Section 4 of Rule 2.1 ¶3 For decades, our rules have clearly stated that the only means available to attain full membership in the Oklahoma Bar Association is taking the bar examination. The only exception is the reciprocity provision under Rule 2.

We have been advised that Mr. Phipps will take the MPRE in August, 2010. However, he should also be required to register for the February, 2011 bar examination, pursuant to Rule 4 [Admission by examination]. The reciprocity provisions of Rule 2, Section 1, are not available to him. Otherwise, he will have become an active member of the Bar by using his special temporary permit to obtain legal experience in Oklahoma to avoid the requirement which we expect from all Oklahoma lawyers, i.e., taking the bar examination. This was not the intended purpose of Rule 2. ¶4 The record before us also shows that this petitioner was administered the oath of attorney and was issued a Bar card with an OBA number in 1986, both of which contravene the rules in effect then and those which continue in effect to this day. I would therefore require the petitioner to surrender his Bar card and that his name be stricken from the roll of attorneys until such time as he has successfully passed the Oklahoma Bar Examination and the MPRE. I therefore respectfully dissent.

1. Section 4. It is the purpose of this rule to grant reciprocity to qualified judges and lawyers from other jurisdictions and to secure for Oklahoma judges and lawyers like privileges. If the former jurisdiction of the applicant does not grant to Oklahoma judges and lawyers the right of admission on motion, then this Rule shall not apply and the applicant must, before being admitted to practice in Oklahoma, comply with the provisions of Rule Four [Admission by examination]. If the former jurisdiction of the applicant permits the admission of Oklahoma judges and lawyers upon motion but the Rules are more stringent and exacting and contain other limitations, restrictions or conditions of admission and the fees required to be paid are higher, the admission of applicant shall be governed by the same Rules and shall pay the same fees which would apply to an applicant from Oklahoma seeking admission to the bar in the applicant’s former jurisdiction.

2010 OK 53 IN THE MATTER OF THE SUSPENSION OF MEMBERS OF THE OKLAHOMA BAR ASSOCIATION FOR NON-COMPLIANCE WITH MANDATORY CONTINUING LEGAL EDUCATION REQUIREMENTS FOR THE YEAR 2009 SCBD No. 5655. July 1, 2010 ORDER OF SUSPENSION This matter comes on before this Court for consideration of the Recommendation for Suspension submitted by the Board of Governors 1582

of the Oklahoma Bar Association, for suspension of members from membership in the Association and from the practice of law in the State of Oklahoma, as provided by the Rules of the Supreme Court for Mandatory Continuing Legal Education for failure to comply with such rules for the year 2009.

And the Court, having considered said Recommendation, finds that each of the members of the Oklahoma Bar Association named on the Exhibit A, attached hereto, should be and are hereby suspended from membership in the Association and from the practice of law in the State of Oklahoma, as provided by the Rules of the Supreme Court for Mandatory Continuing Legal Education, for failure to comply with such rules for the year 2009.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE ON THIS 1ST DAY OF JULY, 2010. /s/ James E. Edmondson CHIEF JUSTICE EDMONDSON, C.J., TAYLOR, V.C.J., HARGRAVE, KAUGER, WINCHESTER, COLBERT, REIF, JJ. - Concur WATT, J. - Concurs in part, dissents in part OPALA, WATT, JJ. - Not participating EXHIBIT A (MCLE SUSPENSION FOR 2009 FAILURE) Mike Aston, OBA No. 13241 3242 E. 30th Pl. Tulsa, OK 74114 Kelly L. Bratcher, OBA No. 16812 502 West Sixth Street Tulsa, OK 74119 John Max Burnett Jr., OBA No. 1338 P.O. Box 3508 Albuquerque, NM 87190-3508 Nina Ann Cherian, OBA No. 19315 9702 Valley Lake Court Irving, TX 75063 Nathan David Corbett, OBA No. 21633 1919 Beaumont Dr., Apt G Norman, OK 73071 H. Buckmaster Coyne, OBA No. 17252 1404 Evans Street Morehead City, NC 28557-4028

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D’Arwyn Keith Daniels, OBA No. 22037 5214 Pine Arbor Houston, TX 77066

Alyssa Montene Lee, OBA No. 22207 2013 Oak Drive Moore, OK 73170

Michael Kerry Dekruif, OBA No. 22350 47 Box Canyon Rd. Canoga Park, CA 91304

Heather Kaylie Little, OBA No. 21265 P.O. Box 2731 Oklahoma City, OK 73101

Timothy Charles Edwards, OBA No. 19451 1123 S. Florence Pl. Tulsa, OK 74104

Matthew George Livingood, OBA No. 5473 6211 S. Jamestown Ave. Tulsa, OK 74136-1424

Robert Scot Erickson, OBA No. 11825 5330 E. 31st St., Ste. 100 Tulsa, OK 74135

Traci Lynn Maggia, OBA No. 21016 Bldg. C, Ste. 211 1818 West Lindsey Street Norman, OK 73069

Jennifer Joy Gideon, OBA No. 18066 Unit A 550 Autumn Crest Cir. Colorado Springs, CO 80919-8166

Christopher R. Martin, OBA No. 18764 1435 S. Carson Ave. Tulsa, OK 74119-3417

George David Gordon Jr., OBA No. 13284 7633 E. 63rd Pl., Ste. 210 Tulsa, OK 74133

Matthew Scott Martin, OBA No. 18288 1752 E. 56th St. Tulsa, OK 74105

Patrick A. Guile, OBA No. 20989 7224 Walnut Creek Dr. Oklahoma City, OK 73142

Gloyd Lynn McCoy, OBA No. 5924 600 Skyridge Trl. Noble, OK 73068-8117

Todd Harvie Higgins, OBA No. 15787 P.O. Box 1942 Stillwater, OK 74076

Trecia Annette McElroy, OBA No. 18421 P.O. Box 1252 Jenks, OK 74037-1252

Gary Lee Hobaugh, OBA No. 4244 7035 E. 77th Tulsa, OK 74133

Corrine Lynn O’Day, OBA No. 19900 P.O. Box 676 221 W. Broadway St. Muskogee, OK 74401-6608

Amber Dawn Huffman-Sanderson, OBA No. 21705 1224 N.E. 8th St. Moore, OK 73160

Phillip Windom Offill Jr., OBA No. 10426 6440 Avondale Dr., Ste. 200 Nichols Hills, OK 73116

D. Joel Hulett, OBA No. 10661 P.O. Box 35799 Tulsa, OK 74153-0799

Dorothy C. Parker, OBA No. 13554 2966 Berwick Claremore, OK 74017

Gerri Anne Inman, OBA No. 17878 3105 E. Skelly Dr., Ste. 620 Tulsa, OK 74105

Elisabeth M. Randahl, OBA No. 20726 203 Choctaw Rd. Louisville, KY 40207-1652

Paulette Locke Johnson, OBA No. 18907 P.O. Box 2927 Fayetteville, AR 72702

Jonna Lynn Reynolds, OBA No. 21336 1408 South Denver Tulsa, OK 74119

Jack Michael Kozak, OBA No. 21438 1002 Timbercreek Dr. Allen, TX 75002

Shaun Thomas Riley, OBA No. 21887 228 Robert S. Kerr, Ste. 100 Oklahoma City, OK 73102

Richard Chilton Labarthe, OBA No. 11393 1621 N. Classen Blvd.

Oklahoma City, OK 73106

James T. Robinson, OBA No. 13552 328 Wewoka Drive Norman, OK 73071-7210

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David P. Rowland, OBA No. 7795 P.O. Box 1436 Bartlesville, OK 74005-1436

Elvis L. Wheaton, OBA No. 10151 21234 E. 39th Pl. Broken Arrow, OK 74014

Ted Lee Ryals, OBA No. 20107 4301 N. MacArthur, Ste. 105 Oklahoma City, OK 73122

Che Brack Wilbur, OBA No. 20893 19201 Canyon Creek Pl. Edmond, OK 73012-3153

Gary Todd Skidmore, OBA No. 16308 2662 S. Urbana Ave. Tulsa, OK 74114-4847

Rhett Henry Wilburn, OBA No. 13127 14249 S. Glenn St. Glennpool, OK 74033

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Court of Criminal Appeals Opinions 2010 OK CR 15 STATE OF OKLAHOMA, Appellant, vs.

TORREZ CEASAR, Appellee No. S-2009-366. July 19, 2010 OPINION C. JOHNSON, PRESIDING JUDGE: ¶1 On July 25, 2008, Appellee Ceasar was charged with Count 1, First Degree Manslaughter in the commission of a misdemeanor, to wit, Driving while Privilege Suspended, and Count 2, Leaving the Scene of an Accident Resulting in Death, both after former conviction of two or more felonies, in Oklahoma County Case No. CF-2008-4264. Ceasar’s preliminary hearing was conducted on March 3 and March 31, 2009. At the conclusion of the March 3, 2009 hearing, the State amended Count 1 to charge Ceasar with First Degree Manslaughter in the Commission of a Misdemeanor, to wit, “Driving while Privilege Revoked”, and amended Count 2 to allege that Ceasar left the scene of a non-fatal injury. The Honorable D. Fred Doak, Special Judge, requested that the parties re-appear on March 31, 2009, prepared to answer the question whether Ceasar should be charged with some lesser offense if the misdemeanor with which he was charged “was wholly unrelated to the death of the victim.” Judge Doak stated that Ceasar’s driving was the cause of the victim’s death, not “the lack of an effective piece of paper in his wallet”. ¶2 The parties appeared on March 31, 2009, and the State moved to further amend the information to include the alternative Count 1 of Leaving the Scene of a Fatality Accident.

After hearing argument from the parties, Judge Doak sustained Ceasar’s demurrer finding that the predicate misdemeanor in this case bore no causal relationship to the incident which resulted in the victim’s death. The State appealed the ruling to the District Court, and on April 20, 2009, the District Court of Oklahoma County, the Honorable Ray C. Elliott, District Judge, affirmed the magistrate’s ruling, finding that as a matter of law, the misdemeanor of Driving While Privilege Revoked cannot be used as the predicate misdemeanor in a Misdemeanor Vol. 81 — No. 19 — 7/24/2010

Manslaughter charge. From this ruling, the State appeals. ¶3 This case raises the single issue of whether the District Court erred in ruling that as a matter of law the offense of Driving While Privilege Revoked cannot be used as a predicate misdemeanor for the crime of misdemeanor manslaughter. We REVERSE the District Court’s ruling and REMAND the matter for further proceedings consistent with this opinion. ¶4 On July 8, 2008, Jasmine Lee and Rosemary Taylor were struck by a 2000 Green Chevrolet Impala while crossing the street. Ms. Lee was killed, Ms. Taylor was severely injured, and the driver of the vehicle fled the scene. The day after the accident, Ceasar’s girlfriend noticed that his vehicle — a 2000 Green Chevy Impala — had a cracked windshield and a dented hood. Subsequent investigation of the accident revealed pieces of the vehicle recovered from the accident scene matched missing pieces on Ceasar’s vehicle. Ceasar was ultimately arrested and charged based on additional information establishing his identity as the vehicle’s driver. At the time of this offense, Ceasar had three prior felony convictions. ¶5 On February 14, 2005, approximately 3½ years prior to the accident, Ceasar’s license was revoked following felony convictions for Possession of a Controlled Dangerous Substance in Oklahoma County Case Nos. CF2004-953 and CF-2004-1749. Preliminary hearing testimony established, circumstantially, that Ceasar was driving the vehicle that hit the victims, resulting in the death of one of the women and severe injury of the other. Ms. Taylor testified that she and Ms. Lee were crossing the street after waiting for the light to change when they were struck by a vehicle, subsequently identified as belonging to Ceasar. The State admitted evidence at preliminary hearing establishing that Ceasar’s license was revoked and had not been reinstated at the time of the accident.1 ¶6 At the conclusion of the initial portion of the preliminary hearing, Judge Doak asked the parties to brief the issue of whether the misdemeanor manslaughter charge was proper, considering that Ceasar’s driving without “an

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effective piece of paper in his pocket” was not the cause of the victim’s death. Judge Doak, citing to this Court’s 1929 decision in Logan v.

State, 42 Okl. Cr. 294, 298, 275 P. 657, 658(1929), ultimately concluded the State had failed to show that Ceasar’s driving while privilege revoked was the “direct and proximate cause” of Ms. Lee’s death. Judge Elliott affirmed that ruling, finding that as a matter of law, Driving While Privilege Revoked cannot serve as the predicate offense for a charge of misdemeanor manslaughter. ¶7 We respectfully disagree with the district court’s conclusion. Misdemeanor manslaughter is codified at 21 O.S.2001, §711(1). A homicide is misdemeanor manslaughter when it is perpetrated without a design to effect death by a person engaged in the commission of a misdemeanor. Bell v. State, 2007 OK CR 43, ¶ 3, 172 P.3d 622, 623-624. As this Court noted in Bell, the statute does not distinguish among the type or category of misdemeanor which can be used as the underlying offense in a misdemeanor manslaughter charge. Id. It is clear that the misdemeanor of Driving While Privilege Revoked can be used as the underlying offense in a misdemeanor manslaughter charge. Judge Elliott’s ruling, finding otherwise, was error. ¶8 We also find it was error for Judge Doak to conclude that there was no causation between the underlying misdemeanor and Ms. Lee’s death. Characterizing Ceasar’s actions as nothing more than driving without an “effective piece of paper” ignores the gravity of the revocation sanction imposed against him. ¶9 Driving is a privilege, not a right. “The Oklahoma state government regulates the activity of driving on the state’s highways in the interest of the public’s safety and general welfare.” Kane v. State, 1996 OK CR 14, ¶ 15, 915 P.2d 932, 937. The act of revoking the privilege to drive is a determination that the individual is not fit to participate in the regulated activity of operating an automobile. The revocation of an individual’s privilege to drive based upon the conviction of a drug offense serves the legitimate interest of protecting the public from the dangers presented by potentially impaired drivers. See Kane, 1996 OK CR 14, ¶ 16, 915 P.2d at 937 (suspension of individual’s privilege to drive based upon failure of a chemical test for blood alcohol serves the legitimate interest of protecting the public from the dangers presented by drunk driving). Driving while the privilege is revoked is much 1588

more than just operating a vehicle “without an effective piece of paper.” ¶10 This Court has recently seen several cases requesting guidance regarding application of the misdemeanor manslaughter statute.

Those inquiring seek the establishment of some hard and fast rule regarding the application of this intentionally broad statute, asking for a check list of sorts denoting which misdemeanors can and cannot serve as the basis for a misdemeanor manslaughter charge. That issue was addressed by this Court in Bell, and the scope of the statute is apparent from the plain language written into it by the legislature. By design, the statute does not distinguish among the type or category of misdemeanor which can be used as the underlying offense in a misdemeanor manslaughter charge, providing that any misdemeanor satisfies the initial step in charging misdemeanor manslaughter. See, 21 O.S. 2001 §711(1); Bell, 2007 OK CR 43, ¶3, 172 P.3d at 623-624. ¶11 Instead, the focus should be on whether the underlying misdemeanor offense was causally related to the decedent’s death. A single test of casual relation, often referred to as “proximate cause,” is applied to all types of criminal homicide, and focuses on whether the defendant’s conduct was a substantial factor in bringing about the victim’s death. OUJI-CR 2nd No. 4-60; see also Chandler v. State, 79 Okl.Cr. 323, 333, 146 P.2d 598, 603 (1944); Logan v. State, 43 Okl.Cr. 294, 298, 275 P. 657, 658 (1929). That other factors may have contributed to the death does not necessarily absolve the defendant of criminal liability for homicide in the commission of a misdemeanor. See Eby v. State, 1985 OK CR 80, ¶ 4, 702 P.2d 1047, 1049; Porter v. State, 50 Okl.Cr. 136, 137-38, 297 P. 305, 306 (1931). ¶12 This Court has previously recognized that proximate cause would be absent where a defendant unintentionally and otherwise without culpability struck and killed a person while driving without a vehicle license tag. See Logan, 43 Okl.Cr. at 298, 275 P. at 658. Likewise, proximate cause would be absent where a defendant struck and killed a person who had intentionally thrust himself into the path of the defendant’s automobile while the defendant was driving at an excessive rate of speed. Id. In short, review of the facts supporting the underlying misdemeanor and causation between misdemeanor and the resulting death is necessary to avoid a miscarriage of justice. Once all the facts are fleshed out, the defendant’s actions

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may or may not have constituted a substantial factor in the victim’s death. ¶13 The assumption in this case was that Ceasar’s revoked license was merely a missing piece of paper. Review of the underlying facts reveals that Ceasar was involved in an offense against the public safety and welfare. Had Ceasar not been driving, safely or unsafely, Ms. Lee would still be alive and Ms. Taylor would not have been injured. Ceasar’s conduct —driving a vehicle while the privilege was revoked — was a substantial factor in bringing about Ms. Lee’s death and Ms. Taylor’s injuries.

DECISION ¶14 The order of the District Court of Oklahoma County in Case No. CF-2008-4264 is REVERSED and the matter is REMANDED to the District Court for further proceedings consistent with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2010), the MANDATE is ORDERED issued upon the deliver and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE RAY C. ELLIOTT, DISTRICT JUDGE APPEARANCES AT TRIAL Emilie Kirkpatrick, Jacqui Ford, Assistant Public Defender, 320 Robert S. Kerr, Room 611, Oklahoma City, OK 73102, Counsel for Appellant Jennifer Chance, Assistant District Attorney, 320 Robert S. Kerr, Suite 505, Oklahoma City, OK 73102, Counsel for the State APPEARANCES ON APPEAL Emilie Kirkpatrick, Jacqui Ford, Assistant Public Defender, 320 Robert S. Kerr, Room 611, Oklahoma City, OK 73102, Counsel for Appellant Jennifer Chance, Assistant District Attorney, 320 Robert S. Kerr, Suite 505, Oklahoma City, OK 73102, Counsel for the State OPINION BY: C. Johnson, P.J.; A. Johnson, V.P.J., concur; Lumpkin, J., concur; Lewis, J., concur.

1. State’s Exhibit 10, admitted at preliminary hearing, was a certified copy of a report from the Department of Public Safety verifying the current status of Ceasar’s driver’s license which indicated that the license was revoked (mandatory) for a violation on February 14, 2005, and had never been reinstated.

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2010 OK CR 14 ALFRED BRIAN MITCHELL, Appellant -vsSTATE OF OKLAHOMA, Appellee Case No. D-2008-57. July 01, 2010 OPINION LUMPKIN, JUDGE: ¶1 Alfred Brian Mitchell, Appellant, was tried by a jury in June 1992 and convicted of First-Degree Malice Aforethought Murder, in violation of 21 O.S. 1991, § 701.7; Robbery with a Dangerous Weapon, in violation of 21 O. S.1991, § 801; Larceny of an Automobile, in violation of 21 O.S.1991, § 1720; First-Degree Rape, in violation of 21 O.S.1991, §§ 1111, 1114; and Forcible Anal Sodomy, in violation of 21 O.S.1991, § 888; in the District Court of Oklahoma County, Case No. CF-91-206. In the sentencing phase, the jury recommended a death sentence for the murder after finding: 1) the murder was “especially heinous, atrocious, or cruel”; 2) the murder was “committed for the purpose of avoiding or preventing a lawful arrest or prosecution”; and 3) there was a “probability that [Appellant] would commit criminal acts of violence that would constitute a continuing threat to society.” See 21 O.S.1991, § 701.12(4), (5) and (7), respectively. In accordance with the recommendations of the jury, the trial court sentenced Appellant to death for the murder and to imprisonment for a total of 170 years for the other felonies. ¶2 Appellant appealed to this Court, and we affirmed his convictions and his sentences.

Mitchell v. State, 1994 OK CR 70, 884 P.2d 1186 (hereinafter referred to as Mitchell I). This Court denied Appellant’s petition for rehearing, and the United States Supreme Court denied his petition for certiorari. Mitchell v.

Oklahoma, 516 U.S. 827, 116 S.Ct. 95, 133 L. Ed.2d 50 (1995). Appellant then sought postconviction relief in this Court, which was denied. Mitchell v. State, 1997 OK CR 9, 934 P.2d 346 (hereinafter referred to as Mitchell II). The Supreme Court again denied Appellant’s petition for certiorari. Mitchell v. Oklahoma, 521 U.S. 1108, 117 S.Ct. 2489, 138 L.Ed.2d 996 (1997). ¶3 Appellant then pursued federal habeas corpus relief in the United States District Court for the Western District of Oklahoma. Mitchell v. Ward, 150 F. Supp.2d 1194 (W.D. Okla. 1999).

The federal district court granted habeas relief on Appellant’s convictions for rape and sod-

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omy, vacating those convictions but leaving his other convictions and sentences intact. ¶4 Appellant appealed to the United States Court of Appeals for the Tenth Circuit. In Mitchell v. Gibson, 262 F.3d 1036 (10th Cir.2001),1 the Tenth Circuit upheld Appellant’s firstdegree murder conviction, but vacated his death sentence and ordered a new capital sentencing proceeding. Pursuant to 21 O.S.2001, § 701.10a, a new jury was impaneled for the resentencing trial, which was held October 2131, 2002. This time the jury found two aggravating circumstances: 1) the murder was “especially heinous, atrocious, or cruel”; and 2) the murder was “committed for the purpose of avoiding or preventing a lawful arrest or prosecution.” See 21 O.S.1991, § 701.12(4) and (5), respectively. The jury again recommended the death penalty, and the trial court so ordered.

Appellant appealed to this Court. Mitchell v.

State, 2006 OK CR 20, 136 P.3d 671 (hereinafter referred to as Mitchell III). This Court reversed Appellant’s death sentence and remanded the case to the District Court for resentencing. ¶5 A second re-sentencing trial was held on November 26 – December 6, 2007. The jury found the existence of the aggravating circumstance “especially heinous, atrocious, or cruel” and recommended the sentence of death. See 21 O.S.1991, § 701.12(4). On January 16, 2008, the trial court sentenced Appellant in accordance with the jury’s verdict. From this judgment and sentence, Appellant appeals.2 ¶6 The facts of this case were summarized in this Court’s opinion on direct appeal, which is incorporated herein by reference. See Mitchell I, 1994 OK CR 70, ¶¶ 2-3, 884 P.2d at 1191-92. The evidence presented at the second re-sentencing trial was sufficiently the same as that presented at the first re-sentencing so that we may rely on the brief summary of facts set forth in our earlier opinion: Briefly stated, on January 7, 1991, Alfred Brian Mitchell found Elaine Scott alone at the Pilot Recreation Center in Oklahoma City. The evidence presented at the resentencing established that Mitchell first attacked Scott near the Center’s library, where a spot of blood, one of Scott’s earrings, and a sign that she had been hanging were later found on the floor. Scott apparently ran for the innermost room of the Center’s staff offices — as she had told her mother she would if she ever found herself 1590

in a dangerous situation at the Center — where there was a phone and a door that she could lock behind her. She almost made it. Although the exact sequence of events is unclear, the State established that Scott’s clothing was taken off and that a violent struggle ensued, in which Mitchell beat and battered Scott, using his fists, a compass, a golf club (which ended up in pieces), and a wooden coat rack. The forensic evidence — including the condition of Scott’s nude, bruised, and bloodied body — established that she was moving throughout the attack, until the final crushing blows with the coat rack, which pierced her skull and ended her life.

2006 OK CR 20, ¶ 6, 136 P.3d at 676-677. ¶7 Appellant raises eighteen (18) propositions of error in this appeal. These propositions will be addressed in the order in which they arose at trial.

JURY SELECTION ¶8 Appellant asserts in his fourth proposition of error that the trial court abused its discretion in denying the use of juror questionnaires and individual sequestered voir dire.

Appellant argues that as he was denied the benefit of individual questioning, either through individual in person questioning or questionnaires, the jury selection process did not comport with due process and undermines the reliability of the capital sentence imposed. ¶9 In support of his claim, Appellant directs us to responses by three potential jurors during the court’s initial questioning. Prospective Jurors R.M. and A.K. stated they remembered reading about Appellant’s case in the newspapers. Prospective Juror R.L. stated his wife had been murdered, her murderer was on death row, and the process had been unpleasant for him. Appellant argues that if questionnaires or individual voir dire had been allowed the jury pool would not have been exposed to the highly inflammatory responses of the three potential jurors. ¶10 The manner and extent of voir dire is within the discretion of the trial court whose rulings will not be disturbed on appeal absent a clear abuse of discretion. Eizember v. State, 2007 OK CR 29, ¶ 67, 164 P.3d 208, 228. No abuse of discretion will be found so long as the voir dire is conducted in a manner which affords

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the defendant a jury free of outside influence, bias or personal interest. Id. ¶11 The purpose of voir dire examination is to ascertain whether there are grounds to challenge prospective jurors for either actual or implied bias and to facilitate the intelligent exercise of peremptory challenges. Warner v.

State, 2006 OK CR 40, ¶ 15, 144 P.3d 838, 858.

To that end, this Court has recently encouraged, but not mandated, the use of juror questionnaires. See Eizember, 2007 OK CR 29, ¶ 40, 164 P.3d at 221, n. 6.; Jones v. State, 2006 OK CR 17, ¶ 16, 134 P.3d 150, 156. Whether to conduct individual voir dire is within the trial court’s discretion. Eizember, 2007 OK CR 29, ¶ 69, 164 P.3d at 228. Although a defendant may request individual voir dire, he has no automatic right to such a request. Stouffer v. State, 2006 OK CR 46, ¶ 12, 147 P.3d 245, 257. “Individual voir dire is appropriate where the record shows jurors were not candid in their responses about the death penalty, or that responses were tailored to avoid jury service.” Id. quoting Hanson v.

State, 2003 OK CR 12, ¶ 5, 72 P.3d 40, 46. ¶12 Prospective Jurors R.M. and A.K. stated they remembered reading about Appellant’s case in the newspapers approximately 16 or 17 years earlier. No details of what they remembered reading were given. Both stated they could set aside what they remembered reading and decide the case on the evidence presented at trial. ¶13 Because of the obvious difficulty in reviewing juror candidness, we must rely and place great weight upon the trial court’s opinion of the jurors. See Eizember, 2007 OK CR 29, ¶ 41, 164 P.3d at 221 (“[d]eference must be paid to the trial judge who sees and hears the jurors”, quoting Wainwright v. Witt, 469 U.S. 412, 425, 105 S.Ct. 844, 853, 83 L.Ed.2d 841 (1985)). Here, the trial court, who saw the prospective jurors and heard their responses firsthand, found no need to conduct individual voir dire. We find the record supports that conclusion as there is nothing in their responses that indicate the proposective jurors were anything less than candid. ¶14 Prospective Juror R.L., after giving the previously cited testimony regarding the murder of his wife, and at the request of defense counsel, was sequestered from the remainder of the jury pool and individual voir dire was conducted. At the end of which, he was excused for cause. Appellant has failed to show how Vol. 81 — No. 19 — 7/24/2010

this prospective juror’s statements about his personal experiences, bereft of any personal opinions, impacted the remainder of the jury pool. ¶15 A recurring theme in Appellant’s challenges to jury selection is that he was not given enough information to intelligently exercise his peremptory challenges. He claims the jury selection process was conducted in an “expedient manner” and that prospective jurors were not told what the law requires, but asked if they could follow it nonetheless. ¶16 The record reflects a very thorough voir dire was conducted spanning two and half days. Prior to the start of questioning, prospective jurors were informed of their purpose — to decide punishment — and given the three possible punishments. The trial judge explained the Bill of Particulars, the role of aggravating circumstances and mitigating evidence, the State’s burden of proof, the process involved in finding the existence of an aggravating circumstance, the weighing of that evidence against the mitigating evidence and the determining of the appropriate sentence. The judge indicated the jury would receive all of this information in written instructions at the close of the evidence.

The judge further informed the prospective jurors that a juror needed to be fair and impartial, able to listen to all of the evidence, and consider all three possible punishments. ¶17 The record in this case shows that the trial court did not rush through voir dire. There is no indication in the record that defense counsel was prevented from asking any questions pertinent to exercising peremptory challenges. Appellant used all nine peremptory challenges. However, nowhere in the record or appellate brief does he request additional challenges or specify which sitting jurors he would excuse if given additional challenges. Based upon this record, we find the trial court did not abuse its discretion in refusing the requests for questionnaires and individual sequestered voir dire. This proposition of error is denied. ¶18 In his fifth proposition of error, Appellant challenges the trial court’s sua sponte removal for cause, over defense objections, of nine prospective jurors. Appellant asserts these removals were in violation of Witherspoon v.

Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) as the trial court failed to properly determine that these prospective jurors could

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not follow the law and consider all possible punishments.

would convince her to change her mind. (Tr. Vol. I, pgs. 71-72).

¶19 The decision whether to disqualify a prospective juror for cause rests in the trial court’s sound discretion. Grant v. State, 2009 OK CR 11, ¶ 24, 205 P.3d 1, 13. The trial court’s decision will not be overturned unless an abuse of discretion is shown. Id. Once again, we generally defer to the impressions of the trial court, which can better assess whether a potential juror would be unable to fulfill his or her oath. Id.

¶23 Despite the court’s decision to excuse her, defense counsel was allowed to voir dire P.M. further. In response to defense counsel’s questions, P.M. said the death penalty was the penalty option she was not able to give meaningful consideration. She indicated she understood when defense counsel told her that she was still entitled to be a juror if she was able to put that personal opinion aside and follow the instructions of the court, that the court would never tell her she had to return a death verdict and just because she might have religious scruples against the death penalty, she could still sit as a juror. When asked if she was “in a position to be able to set your beliefs aside and follow the instructions of the court and listen to the evidence”, P.M. replied, “I am against the death penalty and I would never vote for anyone’s life to be taken.” (Tr. Vol. I, pgs. 73-74).

¶20 “This Court has repeatedly recognized that the standard for capital juror acceptability in Oklahoma is whether, in a case where the law and facts make a defendant eligible for the death penalty, each juror will be willing to consider each of the three authorized punishments: the death penalty, life imprisonment without the possibility of parole, and life imprisonment (with the possibility of parole).” Mitchell III, 2006 OK CR 20, ¶ 39, 136 P.3d at 688-89 (emphasis in original). This Court will look to the entirety of the juror’s voir dire examination to determine if the trial court properly excused the juror for cause. Eizember, 2007 OK CR 29, ¶ 42, 164 P.3d at 222. ¶21 Prospective Juror F.F. initially told the court “it was kind of hard to say” whether he could give meaningful consideration to all three punishments. (Tr. Vol. I, pg. 66). Upon further questioning by the court, it became clear the potential juror’s knowledge of facts in an unrelated upcoming criminal trial would affect his ability to listen to the case against Appellant and make a decision. Despite the court’s decision to excuse the juror, defense counsel was granted additional in-camera questioning. As a result, the prospective juror said that because of his knowledge of the other case, he could not be fair to either side in Appellant’s case. Over defense counsel’s objection, the court excused the juror, stating “he’s got something external affecting him . . . it’s something that affects him from something else that would affect his ability to give both sides a fair trial.” (Tr. Vol. I, pg. 70). ¶22 When asked if she could consider all three possible punishments or “are you excluding one or the other”, Prospective Juror P.M. replied, “I would have to exclude one of the three.” P.M. said her answer was unequivocal, she had felt that way for “quite a while”, and there was nothing the trial judge could say that 1592

¶24 In making her record concerning the excusal of P.M., defense counsel complained in part that the defense was entitled to know which punishment option a juror could not consider. The trial judge agreed to include that inquiry in his questioning of the remaining veniremen. ¶25 Prospective Juror S.A. told the court she had a “serious” problem considering all three punishments, that she was against the death penalty in all circumstances and that she was unequivocal in her decision. (Tr. Vol. I, pgs. 81).

The following colloquy then occurred: THE COURT: Can you set that decision aside and render a verdict and decide the issues in this case based on the law and the evidence: PROSPECTIVE JUROR S.A.: I can decide a verdict.

THE COURT: Pardon me?

PROSPECTIVE JUROR S.A.: Decide a verdict?

THE COURT: I’m sorry.

PROSPECTIVE JUROR S.A.: I’m sorry.

THE COURT: Okay, can you set aside your opinion and set it aside and not consider it any more and decide the issues in this case or are you period, no death penalty, no matter what.

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PROSPECTIVE JUROR S.A.: No matter what.

(Tr. Vol. I, pgs. 81-82). ¶26 Prospective Jurors N.B., K.D., K.B., and M.W. each said in turn that they could not give meaningful consideration to all three punishments, that they could not follow the court’s instructions to consider all three punishments, and that their answers were unequivocal. ¶27 Prospective Juror J.W. said he could not give meaningful consideration to the death penalty and the life without parole option. He said there was no set of facts the court could give him that he could envision giving the death penalty or life without parole. J.W. said he was unequivocal in his determination that he could not consider those two punishment options, even if the court’s instructions told him to give consideration to all three punishments. ¶28 Prospective Juror J.P. initially said he could not consider the death penalty because of religious scruples. Upon further questioning by the court, the prosecutor and defense counsel, the court found the juror had been equivocal in his answers regarding consideration of the death penalty. During an individual, sequestered voir dire, where he was questioned extensively by the court, the prosecutor and defense counsel, J.P. clarified his views and stated he could not consider all three punishments. In excluding J.P. for cause, the court noted that from observing him closely in chambers, J.P. was allowing matters outside the law and evidence, to influence his ability to consider to all three punishments. ¶29 As illustrated above, six of the challenged veniremen, N.B., K.D., K.B., M.W., J.W., and P.M. were unequivocal in their responses that they could not consider all three punishments. Because these prospective jurors could not consider all of the punishments provided by law, they could not discharge their duties as jurors. Accordingly, we find no abuse of discretion in their removal for cause. Grant, 2009 OK CR 11, ¶ 25, 205 P.3d at 13; Patton v. State, 1998 OK CR 66, ¶ 18, 973 P.2d 270, 282. ¶30 Any ambiguity in S.A.’s responses was cleared up by additional questioning from the trial court. In the potential juror’s last recorded answer, she was unequivocal in her decision that she could not consider all three punishments. Therefore, we find no abuse of the trial court’s discretion in excusing her for cause.

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¶31 Appellant finds error in the trial court’s refusal to allow the defense to further question the potential jurors. However, “[w]hen the proper questions have been asked by the trial court to determine whether prospective jurors can sit in the case, it is not error to deny defense counsel an opportunity to rehabilitate the excused jurors.” Littlejohn v. State, 2004 OK CR 6, ¶ 49, 85 P.3d 287, 301-302. The initial question to each prospective juror was whether the juror could give meaningful consideration to all three possible punishments — life, life without parole and death. If the prospective juror indicated they could not consider all three punishments, in most cases the court went on to ask whether the juror could set aside their opinion and decide the issues in this case on the evidence and/or could the juror follow the court’s instructions to consider all three punishments.3 These were appropriate questions to ask the potential jurors. In the face of such unequivocal responses as in the present case, no further questioning was necessary. When the court received equivocal responses, such as those from F.F. and J.P. further questioning was conducted. ¶32 Appellant further challenges the death qualification questions asked by the trial court, arguing the court did not follow the uniform jury instructions. The record reflects that in his initial questioning, the trial judge followed the questions set out in Oklahoma Uniform Jury Instruction - Criminal (OUJI-CR 2d) 1-5. However, in further questioning, the court used the terms “meaningful consideration” and “equivocal”, language not contained in the uniform instruction. The record reflects the term “meaningful consideration” was used interchangeably with “consideration” or “consider” by the court, the prosecutor and defense counsel.

While in a footnote to Mitchell III, we cautioned court’s against attempts to define or further explain the term “consider”, 2006 OK CR 20, ¶ 40, 136 P.3d at 690, n. 97, we find no error in the use of the term here. See Powell v. State, 2000 OK CR 5, ¶ 28, 995 P.2d 510, 520-521 (no error found in the trial court asking potential jurors if they could give “equal consideration” to the three sentencing options). There is no indication the term caused any confusion among the potential jurors. ¶33 Also in a footnote to Mitchell III, this Court “agree[d] with the trial court’s initial approach of avoiding the word “unequivocal” when questioning prospective jurors” finding

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“the term could confuse many jurors.” 2006 OK CR 20, ¶ 41, 136 P.3d at 690, n. 99. In the record before us, we find no indication the use of the term caused any confusion. ¶34 Contrary to Appellant’s claim that all the jurors now challenged were excused due to their views on capital punishment, the record shows that F.F. and J.P. were properly excused due to the influence of outside matters affecting their ability to sit as fair and impartial jurors. As the trial court was able to directly observe and evaluate the nine potential jurors discussed in this proposition, we find no abuse of discretion in their dismissal for cause. ¶35 In Proposition VI, Appellant contends that limitations placed on counsel during voir dire hindered his intelligent exercise of peremptory challenges and denied him due process of law under the federal and state constitutions.

Specifically, Appellant complains the trial court erred in: 1) refusing his request to introduce the prosecution’s crime scene photographs and publish them to the venire; 2) refusing to advise the jury of the aggravating circumstances alleged and give a definition of mitigating evidence, and 3) limiting the questions he could ask concerning the jurors’ views on the death penalty. ¶36 In denying the defense requests, the trial court noted, “you can’t try the case in voir dire.”

(Tr. Vol. I, pg. 356). While we have previously noted that an important aspect of voir dire is to educate the jury on what will be asked of them under the law, Eizember, 2007 OK CR 29, ¶ 40, 164 P.3d at 208, it has long been recognized that a party is not to present evidence or argue the law during voir dire. In Scott v. State, 1982 OK CR 108, ¶¶ 15-16, 649 P.2d 560, 562, quoting Kephart v. State, 93 Okl.Cr. 451, 229 P.2d 224, 229 (1951) this Court stated: However the attorneys are not permitted to make statements of the law and seek to get a statement in advance of the trial as to how the jurors would decide the case on a given set of facts.

In the examination of a venireman ... neither party has the right to assume the facts of the case in detail, and assume that the court will instruct the jury in a particular way ...

See also Jones v. State, 20 Okl.Cr. 154, 201 P. 664 (1921).4 1594

¶37 In the present case, the crime scene photographs had not been admitted into evidence at the time defense counsel sought to show them to the jury. Therefore the trial court appropriately denied the defense’s request.

The defense was able to address the issue of the photographs as both the State and the defense were permitted to ask the potential jurors if they could be fair despite gruesome photographs of the crime scene. ¶38 The trial court sufficiently informed the potential jurors of the role of aggravating circumstances in a capital trial, the State’s burden to prove those aggravators beyond a reasonable doubt, the role of mitigating evidence and the jury’s duty to weigh the evidence in aggravation against that in mitigation. The trial court did not abuse its discretion in preventing defense counsel from discussing the specific aggravators alleged in this case as that would have been a premature entry into the specific facts of the case. ¶39 In support of his argument that the trial court improperly limited his questioning of potential jurors concerning their views on the death penalty, Appellant directs us to the questioning of potential juror J.W. Defense counsel asked for the juror’s viewpoint on capital punishment. This inquiry brought an objection from the prosecutor. A lengthy bench conference ensued in which judge, prosecutor, and defense counsel discussed questions designed to elicit a potential juror’s view on the death penalty. One of defense counsel’s suggestions was that a numerical scale be used to gauge the jurors’ support of the death penalty. After an objection from the prosecutor, defense counsel admitted she was not trying to elicit views on issues this Court has found inappropriate, e.g., the deterrent effect and cost effectiveness of the death penalty. The trial court advised counsel the most effective question was, “are you in favor of the death penalty” or “are you not opposed to the death penalty?” (Tr. Vol. II, pgs.

418-427). Defense counsel objected and noted the questions she sought to ask the potential jurors. The trial judge explained that defense counsel’s questions were “phrased in such a way as to open up the door to all kinds of things not admissible.” (Tr. Vol. II, pgs. 426427). Counsel then asked each potential juror which of two phrases better fit their viewpoint on capital punishment — “I am in favor of capital punishment as a sentencing option” or

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“I am not opposed to capital punishment as a sentencing option.” (Tr. Vol. II, pgs. 428).

Issues Relating to the Sentencing Stage of Trial

¶40 The trial court may properly restrict questions on voir dire that are repetitive, irrelevant or regard legal issues upon which the trial court will instruct the jury. Patton, 1998 OK CR 66, ¶ 9, 973 P.2d at 280. The trial court’s limitations in the present case did not deprive the defense of information necessary to intelligently exercise peremptory challenges. Appellant’s constitutional rights were not violated when the trial court restricted the questioning on voir dire as an impartial jury was seated without the specific inquiries sought by Appellant. Appellant’s reference to the questioning of prospective juror D.F. as an example of the need for additional questioning actually supports the conclusion that the trial court granted additional questioning when necessary. Despite saying he could be fair and impartial, potential juror D.F.’s answers were equivocal on whether he could consider the mitigating evidence.

Defense counsel’s request for additional questioning was granted. The additional questioning showed the prospective juror would not be able to listen and consider all of the mitigating evidence. Therefore, he was properly excused for cause.

¶43 Appellant asserts in his first proposition of error that upon remand from the Tenth Circuit Court of Appeals he was entitled to a new trial on guilt/innocence rather than merely resentencing under 21 O.S.2001, § 701.10a.

Appellant argues that § 701.10a provides only for resentencing when prejudicial errors are found in the sentencing stage of trial, and that as the Brady5 violation found in his case was a first stage error, he is entitled to a new guilt/ innocence trial irrespective of the Tenth Circuit’s remand for resentencing only.

¶41 A review of the record shows the trial court did not abuse its discretion in the manner in which voir dire was conducted. The record clearly shows defense counsel was allowed sufficient voir dire to determine if there were grounds to challenge a particular juror for cause and to intelligently exercise peremptory challenges. In many instances, defense counsel’s request for individual voir dire was granted. ¶42 Now on appeal, Appellant has not stated how he would have used his peremptory challenges differently given additional information nor has he cited to any sitting juror with any prejudices against him. Our review of the record shows a jury free of outside influence, bias and personal interest was selected to hear Appellant’s case. Therefore, given the traditionally broad discretion accorded to the trial judge in conducting voir dire, and our inability to discern any possible prejudice from not allowing further general questioning, we find Appellant’s constitutional rights were not violated by voir dire. Appellant’s challenges to jury selection are hereby denied.

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¶44 Appellant first raised his Brady claim to the United States District Court for the Western District of Oklahoma. He argued the rape and sodomy convictions should be found invalid as the State did not disclose exculpatory information regarding the rape and sodomy charges, and that his death sentence was therefore tainted and unreliable and should be vacated.

Mitchell v. Ward, 150 F. Supp.2d at 1220-21. The Western District found a Brady violation had occurred and that such error undermined the confidence in the rape and sodomy verdicts.

Habeas relief as to those convictions was granted. Id. 150 F. Supp.2d at 1229, 1263. However, the Court found sufficient evidence supported the three aggravating circumstances, even without the rape and sodomy convictions, and upheld the death sentence. Id. 150 F. Supp.2d at 1230. The Western District denied habeas relief on all challenges to the murder conviction, thus leaving the conviction intact. Id. ¶45 On appeal to the Tenth Circuit Court of Appeals, Appellant argued the invalid rape and sodomy convictions required vacation of the death sentence. Mitchell v. Gibson, 262 F.3d at 1060. The Tenth Circuit found that Appellant had shown that absent the Brady violation, there was a reasonable probability the result of the sentencing proceeding would have been different. Id. 262 F.3d at 1066. Therefore, the Tenth Circuit granted habeas relief on the claim that Appellant’s sentence violated his right to due process and ordered Appellant be resentenced. Id. 262 F.3d at 1066. Habeas relief was denied on all challenges to the murder conviction and that conviction was upheld. Id. ¶46 Appellant now attempts to recast his Brady argument as an attack on the validity of the murder conviction, despite the fact he has never previously argued the error touched

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upon the reliability of his murder conviction.6 Under the doctrine of res judicata, “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 414, 66 L.Ed.2d 308 (1980). Res judicata precludes the relitigation of any issue that was “necessarily decided” in a prior proceeding. U.S. v. Howe, 590 F.3d 552, 556 (8th Cir.2009). To determine what was “necessarily decided”, we look to the record of the prior proceeding. Id. ¶47 In determining whether Appellant’s current Brady claim is res judicata, we find the history of the proceedings in this case shows that two different federal courts have decided that the prosecution’s suppression of exculpatory evidence relating to the rape and sodomy charges did not cast doubt on the validity of the murder conviction. In reaching this conclusion, the record shows the Western District and Tenth Circuit did not consider the Brady violation in a vacuum, but adjudicated the error in context of the overall trial.7 The record shows the federal courts fully considered every dimension of the Brady violation, including its possible effect on Appellant’s murder conviction. In upholding the validity of the murder conviction, the Western District and Tenth Circuit impliedly, if not explicitly, concluded the Brady violation had no effect on the underlying murder conviction. Whether Appellant was entitled to a new guilt/innocence trial on the murder conviction was necessarily decided by the federal courts. Therefore, his current challenge to the validity of that conviction is barred by the doctrine of res judicata. See Pickens v. State, 2001 OK CR 3, ¶ 16, 19 P.3d 866, 875.8 See also Wells v. Sheriff, Carter County, 1968 OK CR 109, ¶ 20, 442 P.2d 535, 540 (full faith and credit must be accorded a final judgment of a foreign state or the federal courts so long as it is sufficiently shown that such court possessed jurisdiction to determine the issues involved). This proposition of error is denied. ¶48 In Proposition II, Appellant contends he should have been accorded a Jackson v. Denno9 hearing at his resentencing trial. Appellant’s custodial statements have repeatedly been found voluntary. See Mitchell I, 1994 OK CR 70, ¶¶ 12-14, 884 P.2d at 1194-119510; Mitchell v.

Ward, 150 F. Supp.2d at 121311; Mitchell v. Gibson, 262 F.3d at 1060.12 Appellant did not seek a petition for rehearing or rehearing en banc before the Tenth Circuit nor a petition for a writ 1596

of certiorari in the United States Supreme Court to challenge the denial of his involuntary statement claim. ¶49 The admissibility of Appellant’s previously determined voluntary statements is specifically permitted under 21 O.S.2001, § 701.10a(4) (“[a]ll exhibits and a transcript of all testimony and other evidence properly admitted in the prior trial and sentencing shall be admissible in the new sentencing proceeding”). ¶50 The only new argument raised by Appellant is that at the second resentencing trial, Detective Maddox testified that Appellant was a suspect when the interviews with police began on September 8, 1991, while in 1992 Detective Maddox testified that Appellant was not a suspect when the interviews began and did not become a suspect until later that day.

Contrary to Appellant’s claim, this change in testimony does not cast the entire police interview in a different light. Detective Maddox testified in 1992 and in 2007 that Appellant was Mirandized13 prior to the beginning of the police interview on September 8, 1991. Mitchell I, 1994 OK CR 70, ¶ 5, 884 P.2d at 1192. Maddox’s 2007 testimony at most shows a witness with a faulty memory. The trial court’s failure to hold a second Jackson v. Denno hearing is not grounds for relief. This proposition is denied. ¶51 In his third proposition of error, Appellant asserts the trial court erred in admitting his testimony from his first trial claiming its admission violated the due process guarantees of the federal and state constitutions. Relying on Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968) and Littlejohn v. State, 2004 OK CR 6, 85 P.3d 287, Appellant argues it was error to admit his prior testimony because his testimony was induced by the false and misleading evidence given by state’s witness Joyce Gilchrist. Appellant asserts that but for Ms. Gilchrist’s testimony in the first trial, that the semen she found on rectal and vaginal swabs were consistent with Appellant, he would not have testified to specifically deny the rape and sodomy charges. ¶52 In Littlejohn, this Court stated: In Harrison, 392 U.S. at 222, 88 S.Ct. at 2010, the Supreme Court recognized the general evidentiary rule that a defendant’s testimony at a former trial is admissible in evidence against him in later proceedings. “A defendant who chooses to testify waives his privilege against compulsory self-

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incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.” Id. However, where a defendant, like in Harrison, is compelled to testify to rebut inadmissible confessions sponsored by the State, later use of the defendant’s former testimony against him is prohibited. Id. 2004 OK CR 6, ¶ 31, 85 P.3d at 298. ¶53 Appellant’s argument focuses on a small portion of his trial testimony; his responses to three questions by the prosecutor in which he unequivocally denied raping or sodomizing the deceased. Appellant concedes that the remainder of his testimony was cumulative to that of other witnesses. ¶54 In Mitchell III, this Court stated that based upon the evidence, the prosecution was prohibited from arguing that Appellant raped the deceased but the State could argue that Appellant attempted to rape the deceased. 2006 OK CR 20, ¶ 32, 136 P.3d at 687, n.82. Reading the challenged testimony in context, no reference is made to the filing of any criminal charges against Appellant for rape or sodomy. Appellant’s responses negate any implication of having committed either offense. His brief denials were the only testimony addressing the tainted Gilchrist evidence. The record shows that the reason Appellant took the witness stand in his first trial was to explain why he had given so many different stories to the police, both before and after he was arrested, and to exculpate himself and inculpate “C. Ray.” In light of testimony from witnesses at the scene placing Appellant there both before and after the murder, and evidence of his shoe print found in the deceased’s blood, Appellant’s claim that but for the Gilchrist testimony he would not have testified is untenable. ¶55 Even if this brief portion of Appellant’s prior trial testimony should have been excluded, any error stemming from its admission was harmless beyond a reasonable doubt and did not contribute to the death sentence. Evidence of Appellant’s attempted rape of the deceased was presented in support of the “avoid arrest” aggravator. That aggravator was rejected; the jury finding the evidence sufficient to establish the existence of only the “heinous, atrocious or Vol. 81 — No. 19 — 7/24/2010

cruel” aggravator. As discussed later in this opinion, this aggravator was supported by sufficient evidence, separate and apart from evidence of any sexual assault of the deceased.

Therefore, Appellant’s request to vacate his death sentence due to the introduction of this limited portion of his trial testimony is denied. ¶56 In his seventh proposition of error, Appellant challenges the admission of photographs of the deceased and the crime scene. He claims that fourteen (14) crime scene photographs showing the deceased’s partially nude, beaten body; eleven (11) autopsy photographs and thirty (30) general crime scene photographs were gruesome and unfairly prejudicial because the State did not publish them to the jury at the time of their introduction but waited until closing argument. Defense counsel’s objection at trial has properly preserved the issue for appellate review. ¶57 The admissibility of photographs is a matter within the trial court’s discretion and absent an abuse of that discretion, this Court will not reverse the trial court’s ruling. Warner, 2006 OK CR 40, ¶ 167, 144 P.3d at 887. Photographs are admissible if their content is relevant and their probative value is not substantially outweighed by their prejudicial effect. Id. The probative value of photographs of murder victims can be manifested in numerous ways, including showing the nature, extent and location of wounds, establishing the corpus delicti, depicting the crime scene, and corroborating the medical examiner’s testimony. Id. ¶58 Many of the photographs in this case were introduced during the testimony of Tom Bevel and illustrated his theory of blood spatter and blood transfer evidence. Bevel testified that the deceased had been stabbed in the neck with the school compass14 that was found underneath her. He also testified the blood smear and blood transfer evidence showed that the deceased was moving during the attack and that the attack was particularly violent and brutal. Photographs illustrating this testimony aided the jury in understanding the nature of the attack on the deceased and helped explain the final location of her body. ¶59 Autopsy photographs supported the testimony of the medical examiner and aided the jury in understanding the nature of the wounds suffered by the deceased. The photographs were relevant to support the State’s allegation

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of the existence of the “heinous, atrocious or cruel” aggravator as they showed the deceased suffered serious physical abuse prior to her death. ¶60 Appellant’s argument that the photographs were unduly prejudicial because the manner of death was not disputed has been previously rejected by this Court. See Patton, 1998 OK CR 66, ¶ 59, 973 P.2d at 290. Likewise, Appellant’s argument that the photographs were unduly prejudicial because his guilt was not contested fails. Title 21 O.S.2001, § 701.10a specifically provides that “[a]ll exhibits and a transcript of all testimony and other evidence properly admitted in the prior trial and sentencing shall be admissible in the new sentencing proceeding[.]” See Fitzgerald v. State, 2002 OK CR 31, ¶ 11, 61 P.3d 901, 905. ¶61 Further, Appellant’s argument that the photographs were unduly prejudicial because they were gruesome does not warrant relief. In Patton, we said: The fact that the photographs may be gruesome does not of itself cause the photographs to be inadmissible. “Gruesome crimes result in gruesome pictures.” McCormick v. State, 845 P.2d 896, 898 (Okl.Cr.1993).

There is no requirement that the visual effects of a particular crime be down played by the State. Id. “The only consideration to be made is whether the pictures are unnecessarily hideous, such that the impact on the jury can be said to be unfair”. Id. 1998 OK CR 66, ¶ 60, 973 P.2d at 290. ¶62 As neither the manner of death nor Appellant’s guilt is disputed, “[w]e are unable to sympathize with Appellant when he complains that the photos are graphic and are somewhat confused that he would expect them to be otherwise.” Smallwood v. State, 1995 OK CR 60, ¶ 35, 907 P.2d 217, 228. ¶63 Appellant’s complaint about the volume of photographs also does not warrant relief. In Mitchell III, this Court was troubled by the admission of photographs of the crime scene as well as a videotape of the crime scene showing the deceased’s body. 2006 OK CR 20, ¶ 53, 136 P.3d at 695. This Court found much of the evidence was admissible, but the trial court had abused its discretion by failing to properly constrain the State in its presentation of the evidence, much of which was cumulative. Id. The record of this second resentencing reflects that 1598

the trial court was well aware of this Court’s rulings in Mitchell III, and worked hard not to commit the same errors. The crime scene videotape was not admitted into evidence in the second resentencing and the number of photographs admitted was reduced. While there was some duplication in the images reflected in the photographs, Appellant has failed to meet his burden of showing the repetition was needless or inflammatory. Warner, 2006 OK CR 40, ¶ 168, 144 P.3d at 887. ¶64 Finally, Appellant finds error in the prosecution’s publication of some of the photographs during closing argument, instead of when they were introduced during a witnesses’ testimony. Defense counsel argued at trial that withholding the photographs throughout trial until closing argument was so inflammatory as to violate due process and fundamental fairness. Denying Appellant’s objection, the trial court found the photographs had been admitted into evidence therefore they could be published to the jury and the jury could take them to deliberations. The judge noted that many of the photographs had been cropped and cut down and that the total number of admissible photographs had been reduced. ¶65 Appellant does not cite any authority requiring that all exhibits admitted into evidence be published prior to closing argument.

Further, he has failed to show any prejudice resulting from the timing of the admission of the photographs. ¶66 Having found the photographs relevant, they may still be excluded from evidence if the probative value of the photographs is outweighed by their prejudicial impact on the jury. 12 O.S.2001, § 2403. “In reviewing the prejudicial impact of photographs this Court has said that ‘[w]here the probative value of photographs . . . is outweighed by their prejudicial impact on the jury that is, the evidence tends to elicit an emotional rather than rational judgment by the jury then they should not be admitted into evidence.’” Short v. State, 1999 OK CR 15, ¶ 27, 980 P.2d 1081, 1094.

Applying that standard to this case, we find the photographs introduced were probative and that probative value was not outweighed by any prejudicial impact. The evidence overwhelmingly supported the “heinous, atrocious or cruel” aggravator and there is no indication the jury’s verdict was an emotional response rather than a rational judgment based on the evidence.

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¶67 Based upon our review of the photographic evidence introduced in this case, we find the errors committed in the first resentencing concerning admission of this evidence were not repeated in this case. The trial court properly “constrained” the State’s presentation of this evidence and did not abuse its discretion in the admission of the photographs. This proposition of error is denied. ¶68 In his eighth proposition of error, Appellant argues that the crime scene reconstruction testimony of Tom Bevel was unnecessary and usurped the fact finding function of the jury.

As in the 2002 resentencing trial, Bevel’s crime scene reconstruction testimony was used to help establish the various events involved in Appellant’s attack upon the deceased and the most likely sequence of those events. In Mitchell III, this Court summarized Bevel’s testimony at Appellant’s 2002 resentencing trial: Bevel testified extensively about what the physical evidence at the crime scene — including the bloodstain patterns, the position of Scott’s body, the location of various objects, etc. — suggested about the “weapons” Mitchell used to attack Scott (including his hands, a golf club, a compass, and a coat rack) and the order in which they were used. Bevel also testified about the likelihood of some type of sexual attack upon Scott prior to her death. He noted hip bruises consistent with someone exerting pressure in this area, and also that the lack of significant blood on her clothing was inconsistent with a scenario in which the clothing was removed after her death.

2006 OK CR 20, ¶ 68, 136 P.3d at 700-01, n.150. ¶69 Bevel’s testimony in the 2007 resentencing was substantially the same. In Mitchell III, this Court found Bevel’s testimony establishing the various events involved in Appellant’s attack upon the deceased and the most likely sequence of those events relevant to the jury’s determination regarding the “heinous, atrocious, or cruel” aggravating circumstance. Id. 2006 OK CR 20, ¶ 68, 136 P.3d at 701. We do so again. ¶70 Appellant also argues Bevel’s testimony was unreliable as he could not say how long the entire event lasted from start to finish, and his theory that it all happened in at most five minutes was simply impossible. The starting point for the sequence of events which included the deceased’s murder was the departure of Vol. 81 — No. 19 — 7/24/2010

Carolyn Ross from the Pilot Center and ended with the arrival of Allen Briggs at the Center.

Both Ms. Ross and Mr. Briggs gave approximate times for their departure and arrival.

Bevel testified that due to these approximate times, he did not have sufficient information to say exactly how long the assault inside the Pilot Center lasted. The weight and credit to be given Bevel’s testimony was within the province of the jury. See Bland v. State, 2000 OK CR 11, ¶ 29, 4 P.3d 702, 714. ¶71 Relying on 12 O.S.2001, § 2403, Appellant also argues Bevel’s testimony was needlessly cumulative to that of Carolyn Ross and Captain Vance Allen. Section 2403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, needless presentation of cumulative evidence, or unfair and harmful surprise. When measuring the relevancy of evidence against its prejudicial effect, the court should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value. Mayes v. State, 1994 OK CR 44, ¶ 77, 887 P.2d 1288, 1310. ¶72 Ms. Ross and Captain Allen testified to events occurring immediately before and after Appellant’s assault on the deceased. Bevel’s expert testimony was based in part on evidence provided by Ross and Allen. His testimony exceeded that given by Ross and Allen and his references to their testimony showed how the various accounts of that day were interconnected. Contrary to Appellant’s argument, the order in which the events of January 7, 1991, occurred was relevant in the resentencing proceeding as it showed that the deceased suffered serious physical abuse prior to her death thus establishing the aggravator of “especially heinous, atrocious or cruel.” Appellant was not denied a fair sentencing by the admission of the crime scene reconstruction testimony. This proposition is denied. ¶73 In Proposition IX, Appellant asserts the DNA evidence should have been suppressed as the State failed to prove the chain of custody.

Specifically, he complains that no evidence was introduced to indicate where samples sent by Joyce Gilchrist to Brian Wraxall came from and at what point Ms. Gilchrist obtained them.15 Appellant raised this objection before the trial court and has therefore properly preserved the issue for appellate review.16

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¶74 The purpose of the chain of custody rule is to guard against substitution of or tampering with the evidence between the time it is found and the time it is analyzed. Alverson v. State, 1999 OK CR 21, ¶ 22, 983 P.2d 498, 509.

Although the State has the burden of showing the evidence is in substantially the same condition at the time of offering as when the crime was committed, it is not necessary that all possibility of alteration be negated. Id. If there is only speculation that tampering or alteration occurred, it is proper to admit the evidence and allow any doubt to go to its weight rather than its admissibility. Id. ¶75 Mr. Wraxall testified that in 1992 he performed DNA analysis on evidence received from the Oklahoma City Police Department Laboratory. In a further analysis conducted in 2002 he extracted a sperm cell from a sample of semen found on the deceased’s body. He compared the DNA found therein to the DNA in a known blood sample from Appellant and discovered the DNA profiles matched with the odds of anyone else having the same DNA as 1 in 9 trillion. ¶76 On cross-examination, Mr. Wraxall said that all of the samples he tested he had received from Ms. Gilchrist. He said he did not know how the samples were collected or where they had been before he received them. Ms. Gilchrist was not a witness in this resentencing proceeding. ¶77 Evidence at the resentencing established that Appellant admitted to masturbating on or near the deceased’s body and that the semen found on the deceased’s body could have only come from ejaculate onto the deceased’s body or the sheet in which her body was carried from the crime scene. Appellant offers only speculation that some sort of tampering or substitution of evidence occurred prior to the time Gilchrist sent the evidence to Wraxall. Therefore, any doubts about the credibility of the evidence went to its weight not its admissibility. This proposition is denied. ¶78 In Proposition XI, Appellant contends that as he was only two weeks past his eighteenth birthday when he killed the deceased, the proscription against capital punishment of juvenile murderers set forth in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), should be extended to him in light of the mitigating evidence he presented. Appellant’s motion to dismiss the Bill of Particulars 1600

on this ground was overruled by the trial court. ¶79 This is an issue of first impression for this Court. In Roper, the United States Supreme Court declared it unconstitutional under the Eighth Amendment for a state to execute any individual who was under the age of eighteen (18) at the time of the offense. Noting that a majority of states have rejected the imposition of the death penalty on juveniles under 18, the Court found evidence sufficient to demonstrate a “national consensus”.17 543 U.S. at 564, 125 S.Ct. at 1192. “The evidence of national consensus against the death penalty for juveniles is similar, and in some respects parallel, to the evidence Atkins held sufficient to demonstrate a national consensus against the death penalty for the mentally retarded.” Id. In justifying the prohibition of the death penalty on those less than 18 years of age, the Supreme Court noted three general differences between juveniles under 18 and adults which demonstrated that juvenile offenders cannot with reliability be classified among the worst offenders. These three factors were lack of maturity and an underdeveloped sense of responsibility, vulnerability to outside influences, and that a juvenile’s character is not as well formed as that of an adult. 543 U.S. at 569, 125 S.Ct. at 1195. Appellant recognizes the application of Roper but asserts his lack of maturity and an underdeveloped sense of responsibility, his vulnerability to outside influences, and character deficiencies exclude him from the death penalty. ¶80 In Bowling v. Commonwealth of Kentucky, 224 S.W.3d 577 (Ky. 2006), the appellant argued for an extension of Roper to offenders who committed murder while their mental age was less than 18 years. The appellant argued that the three factors relied on in Roper applied to him because his mental age was below 18 years due to his mental retardation. In rejecting the appellant’s argument, the Bowling Court noted that Roper had established a “bright line demarcation”, stating, “[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest.” Id. 224 S.W.2d at 580. The Bowling Court held that “[t]he plain language of Roper compels the conclusion that its prohibition is limited to ‘the execution of an offender for any crime committed before his 18th birthday....’” Id., at 583 quoting Roper, 543

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U.S. at 588, 125 S.Ct. at 1206, 161 L.Ed.2d at 38 (O’Connor, J. dissenting). ¶81 The Bowling Court noted it was not unaware of the concept of juvenile mental age as a basis to preclude the death penalty as discussed in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Id. However, finding no language in Roper to support such a conclusion and that the Supreme Court “would have explicitly adopted mental age as a criterion had it wished to do so,” the appellant’s failure to cite any published authority prohibiting the death penalty based upon “juvenile mental age,” and his failure to demonstrate a national consensus that mental age should be a criterion by which to exclude the death penalty, the Bowling Court concluded that Roper only prohibited the execution of those offenders whose chronological age was below eighteen at the time of the commission of the offense.

Bowling, 224 S.W.3d at 584. ¶82 We find the Bowling decision well reasoned and persuasive. Appellant has not cited any authority to the contrary. The U.S. Supreme Court has drawn a bright line at eighteen (18) years of age for death eligibility and we therefore reject Appellant’s argument that being two weeks beyond his eighteenth birthday at the time of the murder exempts him from capital punishment. Under the plain language of Roper, the prohibition against capital punishment is limited to the execution of an offender for any crime committed before his 18th birthday. ¶83 Appellant further argues Roper prohibits the use of juvenile adjudications to support aggravating circumstances. The trial court overruled Appellant’s motion to preclude use of his juvenile adjudication of rape pursuant to Roper. Again, this is a case of first impression for this Court. ¶84 This Court has consistently held that evidence of unadjudicated bad acts, non-violent bad acts and juvenile offenses are admissible in a capital case to prove a defendant constitutes a continuing threat to society. Douglas v. State, 1997 OK CR 79, ¶¶ 85-87, 951 P.2d 651, 675-76 and cases cited therein. Nothing in the language of Roper suggests that the State is prohibited from relying on prior juvenile adjudications to support an aggravating circumstance. ¶85 This conclusion is not novel. In Lowe v.

State, 2 So.3d 21, 46 (Fla.2008) the appellant claimed that his death sentence was unconstitutional because the State used prior convicVol. 81 — No. 19 — 7/24/2010

tions which arose from crimes committed by Lowe before he was eighteen years of age to establish an aggravating factor, and that the use of the juvenile convictions is in violation of the Eighth Amendment and Roper v. Simmons.

The Florida Supreme Court rejected the argument stating “Roper does not stand for this proposition.” Id. ¶86 In United States v. Wilks, 464 F.3d 1240 (11th Cir. 2006) the appellant argued that Roper prohibited the use of his youthful offender convictions for sentence enhancement. In rejecting this argument, the Eleventh Circuit Court of Appeals stated: Our conclusion that youthful offender convictions can qualify as predicate offenses for sentence enhancement purposes remains valid because Roper does not deal specifically — or even tangentially — with sentence enhancement. It is one thing to prohibit capital punishment for those under the age of eighteen, but an entirely different thing to prohibit consideration of prior youthful offenses when sentencing criminals who continue their illegal activity into adulthood. Roper does not mandate that we wipe clean the records of every criminal on his or her eighteenth birthday.

464 F.3d at 1243. ¶87 We find nothing in Roper to support Appellant’s claim of exclusion from the death penalty and no abuse of discretion in the trial court’s admission of Appellant’s prior juvenile adjudication to support the “continuing threat” aggravator. Further, Appellant has failed to show any resulting prejudice by the admission of his juvenile adjudication as the jury rejected both the “continuing threat” and the “avoid arrest” aggravators that relied on the evidence.

This proposition is therefore denied.

Jury Instructions ¶88 In Proposition XII, Appellant contends the trial court erred in failing to instruct the jury to give consideration to any questions it might have concerning Appellant’s guilt of first degree murder. His claim is based on a note received from the jury during deliberations asking whether Appellant had been convicted of premeditated murder. Appellant asserts the note indicates that at least one juror harbored some doubt regarding the murder conviction. We review only for plain error as this objection is being raised for the first time

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on appeal. Bernay v. State, 1999 OK CR 37, ¶ 49, 989 P.2d. 998, 1012. ¶89 Resentencing proceedings should not be viewed as a second chance at revisiting the issue of guilt. Rojem v. State, 2006 OK CR 7, ¶ 56, 130 P.3d 287, 299. Evidence relating to residual doubt is “not relevant to the defendant’s character, record, or any circumstance of the offense.” Id. quoting Bernay, 1999 OK CR 37, ¶ 50, 989 P.2d at 1012. To tell the jury as defense counsel did in opening statement that Appellant had been convicted of first degree murder, yet later tell them to consider residual doubt as mitigation evidence would be inconsistent and confusing. Rojem, 2006 OK CR 7, ¶ 55, 130 P.3d at 298. We find no plain error in the trial court’s failure to instruct the jury on residual doubt.

Victim Impact Evidence ¶90 In his thirteenth proposition of error, Appellant raises three challenges to the victim impact evidence; 1) it focused solely on the emotional aspect of the family’s loss and described the Scott’s family life prior to the homicide, 2) it operates as a super aggravator under Oklahoma’s death penalty scheme and has no place in our weighing system, and 3) OUJI-CR (2d) 9-45 improperly instructed the jury as to the scope of victim impact evidence. ¶91 Three victim impact witnesses testified at the re-sentencing – the deceased’s father, mother, and brother. This testimony comprised only eleven pages out of the 1,664 pages of transcript. The victim impact statements appear to be substantially the same as those given in the first re-sentencing trial. Cognizant of our review of the evidence presented in the first resentencing proceeding, the trial court reviewed the statements in camera and significantly pared them down. Having thoroughly reviewed the victim impact statements given in this case, we find they did not focus too much on the emotional aspects of the decedent’s death or her family’s life prior to her death. Therefore, the evidence did not violate due process or deprive Appellant of a fair sentencing proceeding. ¶92 Appellant’s claim that victim impact evidence acts as a “super aggravator” is res judicata as the same claim was raised and rejected by this Court in Mitchell III, 2006 OK CR 20, ¶ 76, 136 P.3d at 703. We will not consider the issue further.

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¶93 The uniform jury instruction on victim impact evidence, OUJI-CR (2d) 9-45, states in pertinent part: The prosecution has introduced what is known as victim impact evidence. This evidence has been introduced to show the financial, emotional, psychological, or physical effects of the victim’s death on the members of the victim’s immediate family. It is intended to remind you as the sentencer that just as the defendant should be considered as an individual, so too the victim is an individual whose death may represent a unique loss to society and the family. ¶94 Appellant initially requested this instruction be given to the jury. Later, Appellant again included the “unique loss to society” language in proposed instructions. However, during the settling of the instructions at the close of evidence, Appellant objected to the term “society” being included in the instruction arguing the term made the instruction broader than the statute which addresses the impact of the crime on the family. The trial court overruled the defense objection as the instruction given was the uniform instruction. ¶95 In his appeal to the first re-sentencing, Appellant raised the same objection to the “loss of society” language. This Court stated in part: [V]ictim impact evidence suggesting that a particular victim was a uniquely valuable member of his or her community and our society is not per se inadmissible in a capital sentencing proceeding. Furthermore, we conclude that the single reference to the “loss to society” within our uniform jury instruction is constitutional and is also appropriate under Oklahoma law. Hence this portion of Mitchell’s victim impact claim is rejected.

2006 OK CR 20, ¶ 80, 136 P.3d at 703-04. ¶96 Appellant’s current challenge to the instruction is res judicata and we will not revisit the issue further.

Prosecutorial Misconduct ¶97 Appellant asserts in his fourteenth proposition of error that four areas of prosecutorial misconduct deprived him of a fair sentencing proceeding. In reviewing this claim, we evaluate the alleged misconduct within the context of the entire trial, considering not only the pro-

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priety of the prosecutor’s actions, but also the strength of the evidence against the defendant and the corresponding arguments of defense counsel. Hanson, 2009 OK CR 13, ¶ 18, 206 P.3d at 1028. We are mindful that parties have great latitude in making arguments and drawing inferences from the evidence; we will not grant relief unless a defendant is deprived of a fair trial and is prejudiced by improper argument. Id. ¶98 Appellant first argues that from voir dire through closing argument, the prosecutor improperly equated justice with the death penalty and gave her personal opinion that death was the only just verdict. We review only for plain error as none of the remarks now challenged were met with contemporaneous objections at trial. Bland, 2000 OK CR 11, ¶ 89, 4 P.3d at 726. ¶99 A review of the comments made in voir dire does not support Appellant’s argument.

None of the comments equate justice with the death penalty or express the prosecutor’s personal opinion on the death penalty. At most, the prosecutor got the prospective jurors to agree that the trial should be a search for the truth and that the result should be justice. Other comments suggested that justice might be a sentence other than death. We find no plain error in the prosecutor’s voir dire comments. ¶100 As for closing arguments, the prosecutor’s arguments were based on the evidence and focused on the jurors’ duty to apply the law and the evidence and return the appropriate verdict. The comments did not convey the message that the jury had to vote for the death penalty or that they were to decide the case based on emotional reaction. See Moore v. State, 1987 OK CR 68, ¶ 33, 736 P.2d 161, 167. We find no plain error. ¶101 Next, Appellant asserts the State presented testimony of and repeatedly referred to the initial rape charges against Appellant despite this Court’s opinion in Mitchell III prohibiting such evidence and argument.

Appellant admits that some incidents were inadvertent but argues that other instances were purposeful, and regardless, the statements were “particularly prejudicial”. ¶102 In Mitchell III, this Court found “that the evidence at the crime scene is sufficient for the State to argue that Mitchell attempted to rape Scott. . . ” 2006 OK CR 20, ¶ 32, 136 P.3d at 687. Further, this Court concluded that “a completed ‘rape’ is not a legally permissible inferVol. 81 — No. 19 — 7/24/2010

ence that the State can argue.” Id., at n. 82.

Therefore, in the second re-sentencing proceeding, evidence that Appellant had attempted to rape the deceased then killed her because she could identify him was properly presented and argued in support of the “avoid lawful arrest” aggravator. ¶103 Twice during closing argument, the prosecutor said “rape” instead of “attempted rape.” In the first instance, the prosecutor immediately corrected herself. Defense counsel objected, and the trial court admonished the jury that the prosecutor “stumbled over some of the evidence and incorrectly stated something. Please disregard that part.” (Tr. Vol. IX, pgs. 1547-1550). ¶104 After the second reference to a “rape,” defense counsel objected and the prosecutor told the court it was inadvertent, that she meant to say “attempted rape.” The trial court overruled the defense objections and admonished the prosecutor not to do it again. Thereafter, the prosecutor referred to the evidence of the “sexual assault”. ¶105 The prosecutor’s references to rape instead of attempted rape were minimal and appear to be inadvertent. Even if the references were intentional, Appellant has failed to show any prejudice. The improper term was used only twice in a closing argument covering 26 pages of transcript. The evidence was introduced to support the “avoid arrest” aggravator; however the jury did not find that aggravator was supported by the evidence. Appellant has failed to show any resulting prejudice or impact on the sole aggravator found by the jury as the “heinous, atrocious, or cruel” aggravator was supported by sufficient evidence, apart from any reference to a sexual assault.

We are not convinced that the prosecutor’s improper remarks rendered Appellant’s resentencing trial unfair. ¶106 Appellant also argues the State introduced needless cumulative evidence about the crime scene and the homicide in an attempt to strengthen the evidence supporting the “heinous, atrocious, or cruel” aggravator. Specifically, Appellant asserts the admission of the photographs and cumulative testimony of Ms. Ross, Capt. Allen and Mr. Bevel went beyond what was necessary for the limited purpose of re-sentencing. ¶107 As addressed in Proposition VII, herein, admission of the photographic evidence and

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presentation to the jury was proper and not needlessly cumulative or unduly prejudicial.

In Proposition VIII, herein, we found the crime scene reconstruction testimony of Mr. Bevel relevant and not cumulative. Appellant has not presented any new arguments in this proposition which cause us to reconsider our conclusions. Therefore, the presentation of the evidence and arguments to the jury were not indicative of prosecutorial misconduct. This proposition is denied.

Aggravating Circumstances ¶108 Appellant argues in Proposition X that the trial court erred in instructing the jury on the “continuing threat” aggravator when his prior re-sentencing jury had failed to unanimously find the aggravator beyond a reasonable doubt. We have previously rejected this argument in Hogan v. State, 2006 OK CR 19, ¶¶ 52-59, 139 P.3d 907, 926-930 and Harris v. State, 2007 OK CR 28, ¶ 13, 164 P.3d 1103, 1110.

Appellant’s arguments to the contrary are not persuasive. ¶109 Further, Appellant’s request for relief is unavailing as the jury rejected the “continuing threat” aggravator in this second re-sentencing proceeding finding only the existence of the “heinous, atrocious or cruel” aggravator. As addressed in our mandatory sentence review, sufficient evidence was presented to support the aggravator found by the jury. This proposition is denied. ¶110 In Proposition XV, Appellant asserts the “heinous, atrocious, or cruel” aggravator is unconstitutionally vague and overbroad as applied, and that the evidence was insufficient to support the aggravator. The first part of Appellant’s argument is res judicata as he has previously challenged the constitutionally of the aggravator. In Mitchell III, we said: In Proposition XIV, Mitchell argues that the “heinous, atrocious, or cruel” aggravating circumstance is “unconstitutionally vague and applied in an overbroad manner.” We have repeatedly rejected the claim that this aggravator, as narrowed by this Court, is unconstitutionally vague. In addition, we have recently addressed the argument that this aggravator is “overbroad as applied” and explained that an aggravating circumstance does not become “overbroad” based upon the manner it is applied to particular cases.

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2006 OK CR 20, ¶ 104, 136 P.3d at 711. ¶111 In challenging the sufficiency of the evidence to support the aggravator, Appellant again argues that certain evidence was improperly admitted. Specifically he refers to the crime scene reconstruction testimony of Tom Bevel, and the crime scene photographs. We have previously found both the crime scene reconstruction testimony and the crime scene photographs properly admitted. See Propositions VII and VIII herein. ¶112 Appellant further argues that absent the improperly admitted evidence there is insufficient evidence to support the “heinous, atrocious or cruel” aggravator. This same argument was raised and rejected in Mitchell III, wherein this Court found the supporting evidence “simply compelling”, noting in footnote 223, “[t]he properly admitted evidence overwhelmingly established ‘serious physical abuse’ by Mitchell, resulting in ‘conscious physical suffering’

by Scott”. 2006 OK CR 20, ¶ 105, 136 P.3d at 711, n.223.18 ¶113 On habeas review of the original judgment and sentence, the United States District Court for the Western District found the evidence presented at trial sufficient to support the aggravator stating: Given the horrific nature of the assault on Ms. Scott prior to her death, including the evidence of struggle which was introduced at trial, there is absolutely no question that the heinous, atrocious and cruel aggravator is well-supported in this case.

150 F. Supp.2d at 1230. ¶114 The evidence supporting the aggravator presented at the second re-sentencing appears to be the same as that presented at the first re-sentencing and at the initial trial. The summary of the supporting evidence contained in footnote 54 of the Western District’s opinion appropriately summarizes the evidence presented to the jury at the second re-sentencing.

For example: Ms. Scott’s clothes were laying beneath a bulletin board which had been knocked off the wall. The phone cord had been yanked from the phone so that the phone would not work. Blood and brain matter were spattered around Ms. Scott’s body, down her back, on the door frame and door, and six and one-half to seven feet up the wall. According to the

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medical examiner, Ms. Scott’s brain could be seen on external exam and the “brain was massively torn. There were a lot of wood ... splinters in the wound, in the hair.

One of the wood splinters had literally been driven into [sic] the-through the brain and into the internal part of the skull. There was a massive skull fracture which ran across the skull from ear to ear on the inside part of the skull.” Id. at 878. These wounds were caused by approximately four or five blows with a wooden coat tree.

Id. at 878-79. Ms. Scott also had a laceration to her scalp which could have been made with a golf club which was found at the scene, broken. Id. at 879-80. In addition, Ms. Scott had various abrasions and lacerations to her face, as well as a fractured nose and chipped tooth, all caused by a blunt force such as a blow from the golf club. Id. at 880-81. There were also five puncture wounds around Ms. Scott’s neck which could have been caused by a compass which was found beneath Ms. Scott’s body.

Id. at pp. 882-83. There were multiple bruises on her arms, left shoulder, knees, pelvic area and legs. Id. at 885-86. There were also scratches and abrasions on Ms. Scott’s back and buttocks, as well as her fingers. Id. Finally, two of Ms. Scott’s ribs were fractured. Id. Id. at n. 54 (internal citations to the record omitted). ¶115 Although the Western District’s opinion was ultimately overruled and Appellant’s case was eventually sent back for re-sentencing, the finding that the “heinous, atrocious or cruel” aggravator was supported by sufficient evidence has remained unchanged. ¶116 When the sufficiency of the evidence of an aggravating circumstance is challenged on appeal, this Court reviews the evidence in the light most favorable to the State to determine if any rational trier of fact could have found the aggravating circumstance beyond a reasonable doubt. Jones v. State, 2009 OK CR 1, ¶ 78, 201 P.3d 869, 889. To prove the “especially heinous, atrocious or cruel” aggravator, the State must show that the murder of the victim was preceded by torture or serious physical abuse, which may include the infliction of either great physical anguish or extreme mental cruelty. Id. After making the above determination, the attitude of the killer and the pitiless nature of the crime can also be considered. Id. Vol. 81 — No. 19 — 7/24/2010

¶117 The decedent was first assaulted by Appellant in the Center’s library and in a desperate attempt to get away from him, ran for the innermost room of the Center’s staff office where she could lock the door behind her and phone for help. However, before she could secure herself behind the locked door, Appellant forced his way into the office and a violent struggle ensued. The decedent’s clothing was removed and she was beaten by Appellant using his fist, a school compass, a golf club and a wooden coat rack. The decedent moved and attempted to defend herself throughout the attack until Appellant inflicted the final blow to her head with the coat rack. This evidence clearly shows the decedent’s conscious physical suffering as a result of Appellant’s repeated physical assaults to her body. Further, her great mental anguish is evident as she surely realized her options for getting past Appellant and out of the office to safety were dwindling. ¶118 Considering the unprovoked manner of the killing in this case, the conscious suffering of the decedent, both physically and mentally, and the attitude of the killer as evidenced by Appellant’s attacks upon a victim whom he clearly overpowered and who did not have the means to adequately defend herself, the jury’s finding of the “heinous, atrocious or cruel” aggravator was supported by sufficient evidence. This proposition is denied.

Issues Raised in Previous Appeals ¶119 In his sixteenth proposition of error, Appellant asks this Court to reconsider its prior rulings on nine different issues, noting that he is raising these claims in order to preserve them for the purpose of further review in any subsequent proceedings. ¶120 Appellant first complains that the sentencing phase jury instructions seriously diminished the effect of the mitigating evidence by instructing the jury that evidence in mitigation is that which “may be considered as extenuating or reducing the degree of moral culpability or blame.” Appellant asserts this permissive language contained in OUJI-CR (2d) 4-78 improperly allowed the jury the option of ignoring mitigating circumstances altogether. ¶121 Having thoroughly reviewed the jury instructions in this case, we do not find any which contain the language now objected to by Appellant. A modified version of 4-78 was given which instructed the jury in part that “mitigating circumstances are those which, in

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fairness, sympathy and mercy, may extenuate or reduce the degree of moral conduct or blame.” (O.R. 1359). ¶122 Appellant next complains that Instruction No. 10 (OUJI-CR (2d) 4-76), erroneously implies that a life sentence is appropriate only if the jury failed to find the existence of an aggravating circumstance. This allegation was rejected in Bryson v. State, 1994 OK CR 32, ¶ 64, 876 P.2d 240, 262-63. Appellant has not convinced us to revisit the issue. ¶123 Appellant next challenges Instruction No. 15 (OUJI-CR (2d) 4-80) instructing the jury how to weigh the mitigating evidence and the aggravating circumstances. Appellant concedes the uniform instruction has been approved by the Court but argues the procedure it provides contravenes the heightened need for reliability in death penalty cases. This claim was raised and rejected in Welch v. State, 1998 OK CR 54, ¶¶ 76-77, 968 P.2d 1231, 1250-51 (approving OUJI-CR No. 440, the predecessor to OUJI-CR (2d) 4-80). Appellant has not convinced us to reconsider the issue. ¶124 Appellant’s challenge to the constitutionality of the death penalty is res judicata as this claim was raised and rejected in his first direct appeal. See Mitchell I, 1994 OK CR 70, ¶ 47, 884 P.2d at 1203. ¶125 Appellant’s next three claims, that Oklahoma’s death penalty scheme is unconstitutional because it requires special findings of fact, trial court error in overruling his request for an instruction on the presumption of life, and his request for allocution and to argue last were rejected in Duckett v. State, 1995 OK CR 61, ¶¶ 54-60, 63, 91, 919 P.2d 7, 20-22, 27. We will not consider these issues further. ¶126 Appellant also argues that Oklahoma’s use of lethal injection is cruel and unusual punishment. He contends that the protocol leaves discretion with the Warden for decisions surrounding the actual administration of the chemicals, except for the dosage and sites for IVs, the identities of the executioner themselves are kept confidential, there is no “back up plan” should a doctor be unavailable to assist in the execution, and the IV is inserted by the person recruited by the Warden, not specifically a doctor. These same arguments were raised and rejected in Malicoat v. State, 2006 OK CR 25, ¶¶ 2-11, 137 P.3d 1234, 1235-39. Appellant offers nothing new to support his claim; therefore, we will not revisit the issue.

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¶127 Appellant contends the sentencing proceeding was fundamentally flawed because the jury was not instructed that it must find that any aggravating factor[s] must outweigh the mitigating circumstances beyond a reasonable doubt in violation of the Sixth, Eighth and Fourteenth Amendments of the United States Constitution. This argument was rejected in Torrres v. State, 2002 OK CR 35, ¶¶ 5-7, 58 P.3d 214, 216, and we do so again here.

Cumulative Error ¶128 In Proposition XVII, Appellant contends that even if no individual error merits reversal, the cumulative effect of such errors warrants either reversal of his conviction or a modification of his sentence. A cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Eizember, 2007 OK CR 29, ¶ 158, 164 P.3d at 245. However, when there have been numerous irregularities during the course of a trial that tend to prejudice the rights of the defendant, reversal will be required if the cumulative effect of all the errors is to deny the defendant a fair trial. Id. ¶129 We have reviewed each of Appellant’s claims for relief and the record in this case and conclude that although his resentencing trial was not error free, any errors and irregularities, even when considered in the aggregate, do not require relief because they did not render his resentencing trial fundamentally unfair, taint the jury’s verdict, or render his sentencing unreliable. Any errors were harmless beyond a reasonable doubt, individually and cumulatively. Therefore, no modification of sentence is warranted and this proposition of error is denied.

Mandatory Sentence Review ¶130 In Proposition XVIII, Appellant contends that sentencing relief is warranted under our mandatory sentence review. Pursuant to 21 O.S.2001, § 701.13(C), we must determine (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and (2) whether the evidence supports the jury’s finding of the aggravating circumstances as enumerated in 21 O.S.2001, § 701.12. Appellant recognizes our limited considerations under § 701.12, but argues that allegations of error raised previously in this appeal showed his resentencing trial was fundamentally flawed. He further asserts that as he has lived more years on

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Oklahoma’s Death Row than he lived prior to the conviction, there is “no penological justification” for carrying out a death sentence after so many years against a defendant who has twice been found not to be a continuing threat to society. ¶131 Each allegation of error raised by Appellant has been thoroughly addressed in this opinion and none have been found to warrant relief. His passage of time complaint also does not warrant relief as the United States Supreme Court has twice declined the opportunity to review Eighth Amendment passage of time claims. Elledge v. Florida, 525 U.S. 944, 119, S.Ct. 366, 142 L.Ed.2d 303 (1998) (23 years on death row); Lackey v. Texas, 514 U.S. 1045, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995) (17 years on death row). Further, the fact that two juries could not unanimously find he was a continuing threat beyond a reasonable doubt does not warrant sentencing relief. In each instance, the “continuing threat” aggravator was not the sole aggravating circumstance alleged and in each instance, the jury found the existence of another aggravator sufficient to support the death penalty. ¶132 Turning to the second portion of our mandate under § 701.12, the jury found the existence of the “heinous, atrocious or cruel” aggravating circumstance. See 21 O.S.2001, § 701.12(4).

As discussed in Proposition XV, this aggravator was supported by sufficient evidence. ¶133 Appellant presented twenty-four witnesses in mitigation. These witnesses testified generally that Appellant had just turned 18 years old at the time of the homicide; Appellant grew up in poverty in a high crime and violent neighborhood and in a house shared by many other siblings and family members; his father drew disability; his mother received Aid to Families with Dependent Children; his parents drank during his early developmental years; one of his teachers believed that his parents neglected Appellant and his siblings; his mother and father would often have violent physical fights in front of Appellant and his siblings and it would make him feel helpless and scared; his growth years were marred by a dysfunctional family where physical, emotional, and verbal abuse were common along with the abuse of alcohol; Appellant’s low income and violent neighborhood contributed to the amount of violence he was exposed to and had a negative impact on his growth; exposure to domestic violence in his home had Vol. 81 — No. 19 — 7/24/2010

a very negative impact on Appellant’s development and later manifested in violent outbursts toward others; Appellant was sexually molested as a child and the effect had a negative impact on his growth and development; at Rader juvenile center, Appellant expressed concerns to staff about his anger and problems controlling it and even though he had made little progress, and his prognosis was not good, he was released at 18 instead of being held for another year until his 19th birthday; he has been in prison for more than 15 years and has never received a misconduct or disciplinary report of any kind; Appellant’s behavior in prison demonstrates that he has the strength of character to live a peaceful, productive life within the structured environment of a prison; the Department of Corrections has no record that Appellant has ever been threatening or caused harm to anyone while in the Department of Corrections; after more than 16 years since the crime, Appellant is an older and more mature person that he was in 1991 at the time of the homicide; Appellant has family and friends who love and care for him and his life has meaning and significance to them; Appellant cares about his family and sends them cards and letters and tries to encourage family members to better themselves and stay out of trouble; and Appellant has been and is a positive influence on the younger members of his family. This evidence was summarized and presented to the jury in Instruction No. 14 along with any other mitigating evidence the jury might find existed. ¶134 Upon our review of the record and careful weighing of the aggravating circumstance and the mitigating evidence, we find the sentence of death to be factually substantiated and appropriate.19 Based upon the record before this Court, we cannot say the jury was influenced by passion, prejudice, or any other arbitrary factor contrary to 21 O.S.2001, § 701.13(C), in finding that the aggravating circumstance outweighed the mitigating evidence. Accordingly, we find no error warranting sentence modification DECISION ¶135 The SENTENCE of death is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

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AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE VIRGIL C. BLACK, DISTRICT JUDGE APPEARANCES AT TRIAL Mitch Solomon, Gina Walker, Assistant Public Defenders, 320 Robert S. Kerr, Ste. 611, Oklahoma City, OK 73102, Counsel for Appellant David Prater, District Attorney, Sandra Elliott, Suzanne Lister, Assistant District Attorneys, 320 Robert S. Kerr, Ste. 505, Oklahoma City, OK 73102, Counsel for the State APPEARANCES ON APPEAL Andrea Digilio Miller, Assistant Public Defender, 320 Robert S. Kerr, Ste. 611, Oklahoma City, OK 73102, Counsel for Appellant W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whitaker, Assistant Attorney General, 313 N.E. 21st St., Oklahoma City, OK 73105, Counsel for the State OPINION BY: LUMPKIN, J. C. JOHNSON, P.J.: CONCUR CHAPEL, J: NOT PARTICIPATING20 LEWIS, J.: CONCUR TAYLOR, S.J.21: CONCUR 1. The State did not appeal the district court’s grant of relief on the rape and sodomy convictions. Id. 262 F.3d at 144, n.2. The robbery and larceny convictions were not addressed in Appellant’s habeas appeal and are therefore final adjudications that are not at issue. Id. at 1044, n.1.

2. Appellant’s Petition in Error was filed in this Court on July 17, 2008. His brief was filed on February 24, 2009, and the State’s brief was filed on July 31, 2009. Mitchell’s reply brief was filed on August 27, 2009. Oral argument was held on December 8, 2009.

3. In Mitchell III, this Court said that the standard for determining a potential juror’s willingness to consider the death penalty does not “require that a juror be willing to state that he or she can think of some situation in which he or she will actually vote to impose or recommend a death sentence.” 2006 OK CR 20, ¶ 39, 136 P.3d at 690. In the present case, various forms of the question whether the juror could envision a set of circumstances where the juror could give the death penalty were posed by the trial court. However, that question was almost always followed by an inquiry into whether the juror could follow the court’s instructions to consider all three punishments. Any error in asking the “set of circumstances” question was cured by the court’s question referencing its instructions and the juror’s ability to follow such.

4. In Jones, 201 P.2d at 668, this Court said: It is generally held that a party examining a venireman has no right to assume the facts of the case on trial, and to ascertain the juror’s opinion on them in advance; and that a hypothetical question put to a venireman, calling for his decision on a question of law and for a statement by him as to the party in whose favor he would decide it in a supposed state of the evidence, calls for a prejudgment of the case, and that the sustaining of an objection to such a question is not error.

5. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

6. This includes Appellant’s failure to raise the issue in the direct appeal of his first resentencing, despite having every opportunity to do so.

7. Following oral argument, this Court directed supplementation of the record, pursuant to Rule 3.11, Rules of the Oklahoma Court of

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Criminal Appeals, Title 22, Ch.18, App. (2009), with the briefs filed by Appellant in both the Western District and the Tenth Circuit. Upon review of those briefs, we find those courts appropriately adjudicated the propositions of error as raised.

8. On February 4, 1990, Pickens committed first degree murder and robbery in Creek County. Five days later, he committed another murder in Tulsa County. Approximately one month later, he confessed to the crimes committed in both counties. In Pickens v. State, 1993 OK CR 15, 850 P.2d 328 (referred to as Pickens I), this Court affirmed the conviction and death sentence for crimes committed in Tulsa County. This Court rejected Pickens’ claim that his confession was taken in violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). 1993 OK CR 15, ¶¶ 11-17, 850 P.2d at 333-334. In Pickens v. State, 1994 OK CR 74, 885 P.2d 678, overruled in part on other grounds, 1996 OK CR 19, 917 P.2d 980 (hereinafter referred to as Pickens II), this Court reversed and remanded for a new trial the convictions from Creek County. On re-trial, Pickens was again convicted and sentenced to death. This Court affirmed the judgment and sentence in Pickens v.

State, 2001 OK CR 3, 19 P.3d 866, 875. In that appeal, Pickens asserted his statement to Creek County law enforcement was improperly admitted because he had previously invoked his right to counsel during his interrogation on the Tulsa County charges. This Court held that as it had been determined in Pickens I that the Tulsa confession was not obtained in violation of Pickens’ Fifth Amendment rights, his subsequent challenge to the confession was barred by the doctrine of res judicata. 2001 OK CR 3, ¶ 16, 19 P.3d at 875.

9. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

10. This Court stated in part: Mitchell’s argument must finally fail because he cites no instances of coercion, relying only on a picture of a pitifully confused defendant. Even were this description correct, any confession is voluntary absent coercion. Mitchell’s worst accusation here appears to be continued interrogation. This simply is not coercion and cannot be used to support this claim.

1994 OK CR 70, ¶ 14, 884 P.2d at 1195.

11. The Western District stated in part: This Court cannot say, and, in fact, Petitioner does not argue, that the Court of Criminal Appeals’ decision [regarding the voluntariness of his statements] is contrary to, or involves an unreasonable application of, Federal law as determined by the Supreme Court.

150 F. Supp.2d at 1213.

12. “We see nothing in the totality of the circumstances to show that any factor undermined the voluntariness of his statements.” 262 F.3d at 1060.

13. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

14. Websters II New Riverside University Dictionary 289 (1984) defines compass as “a v-shaped device for drawing circles or circular arcs, having a pair of rigid, end-hinged, and continuously separable arms, one of which is equipped with a writing implement and the other with a sharp point providing a central anchor or pivot about which the drawing arm is turned.”

15. Ms. Gilchrist worked in the Oklahoma City Police Department Laboratory. Mr. Wraxall was the Executive Director and Chief Forensic Serologist of the Serological Research Institute in Richmond, California.

16. The trial court denied the objection based on the defense’s failure to make a written demand for every person in the chain of custody to be presented, pursuant to 22 O.S.2001, § 751.1(C) (2).

17. While I cannot find a legal basis in either the federal or Oklahoma constitution for the use of polls in the interpretation of a constitutional right, I accede to the fact this “national consensus” mantra is a part of the federal death penalty jurisprudence.

18. While I continue to adhere to the rule that matters contained in footnotes are dicta, See Cannon v. State, 1995 OK CR 45, 904 P.2d 89, 108 (Lumpkin, concur in results) citing Wainwright v. Witt, 469 U.S. 412, 422, 105 S.Ct. 844, 851, 83 L.Ed.2d 841 (1985), I acknowledge that from time to time there is slippage in the rule.

19. This fact is further substantiated through the verdicts of three separate juries over a span of fifteen (15) years, each determining that death was the appropriate sentence for this crime.

20. While Judge Chapel was present for the Oral Argument in this case on December 8, 2009, he retired from the Court on March 1, 2010, and is not participating in the final decision in this case.

21. The Honorable Steven W. Taylor, sitting by assignment in lieu of Judge Arlene Johnson, who recused.

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NOTICE: JUDICIAL ELECTION COMPLAINTS Please take notice that the Professional Responsibility Panel on Judicial Elections is available to receive complaints concerning candidates running for judicial office in the upcoming elections. In the event that you believe that a candidate has violated the Judicial Canons or other rules applying to Judicial Elections, please forward your written, verified complaint with any supporting documentation to the following address: Professional Responsibility Panel on Judicial Elections c/o William J. Baker P.O. Box 668 Stillwater, OK 74076

NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT OF marylinn m. gravis, SCBD #5642 TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION

Notice is hereby given pursuant to Rule 11.3(b), Rules Governing Disciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A, that a hearing will be held to determine if Marylinn M. Gravis should be reinstated to active membership in the Oklahoma Bar Association.

Any person desiring to be heard in opposition to or in support of the petition may appear before the Professional Responsibility Tribunal at the Oklahoma Bar Center at 1901 North Lincoln Boulevard, Oklahoma City, Oklahoma, at 9:30 a.m. on Thursday, August 12, 2010.

Any person wishing to appear should contact Gina Hendryx, General Counsel, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, Oklahoma 73152, telephone (405) 416-7007, no less than five (5) days prior to the hearing.

Vol. 81 — No. 19 — 7/24/2010

PROFESSIONAL RESPONSIBILITY TRIBUNAL

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BAR NEWS

2011 OBA Board of Governors Vacancies Nominating Petition Deadline: 5 p.m. Friday, Sept. 17, 2010

OFFICERS

Summary of Nominations Rules

President-Elect Current: Deborah Reheard, Eufaula Ms. Reheard automatically becomes OBA president Jan. 1, 2011 (One-year term: 2011) Nominee: Cathy Christensen, Oklahoma City

Vice President Current: Mack K. Martin, Oklahoma City (One-year term: 2011) Nominee: Reta M. Strubhar, Piedmont

BOARD OF GOVERNORS Supreme Court Judicial District Two Current: Jerry L. McCombs, Idabel Atoka, Bryan, Choctaw, Haskell, Johnston, Latimer, LeFlore, McCurtain, McIntosh, Marshall, Pittsburg, Pushmataha and Sequoyah Counties (Three-year term: 2011-2013) Nominee: Gerald C. Dennis, Antlers Supreme Court Judicial District Eight Current: Jim T. Stuart, Shawnee Coal, Hughes, Lincoln, Logan, Noble, Okfuskee, Payne, Pontotoc, Pottawatomie and Seminole Counties (Three-year term: 2011-2013) Nominee: Vacant Supreme Court Judicial District Nine Current: W. Mark Hixson, Yukon Caddo, Canadian, Comanche, Cotton, Greer, Harmon, Jackson, Kiowa and Tillman Counties (Three-year term: 2011-2013) Nominee: Vacant Member-At-Large Current: Jack L. Brown, Tulsa (Three-year term: 2011-2013) Nominee: Renée DeMoss

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Not less than 60 days prior to the Annual Meeting, 25 or more voting members of the OBA within the Supreme Court Judicial District from which the member of the Board of Governors is to be elected that year, shall file with the Executive Director, a signed petition (which may be in parts) nominating a candidate for the office of member of the Board of Governors for and from such Judicial District, or one or more County Bar Associations within the Judicial District may file a nominating resolution nominating such a candidate.

Not less than 60 days prior to the Annual Meeting, 50 or more voting members of the OBA from any or all Judicial Districts shall file with the Executive Director, a signed petition nominating a candidate to the office of Member-At-Large on the Board of Governors, or three or more County Bars may file appropriate resolutions nominating a candidate for this office.

Not less than 60 days before the opening of the Annual Meeting, 50 or more voting members of the Association may file with the Executive Director a signed petition nominating a candidate for the office of President-Elect or Vice President or three or more County Bar Associations may file appropriate resolutions nominating a candidate for the office.

If no one has filed for one of the vacancies, nominations to any of the above offices shall be received from the House of Delegates on a petition signed by not less than 30 delegates certified to and in attendance at the session at which the election is held.

See Article II and Article III of OBA Bylaws for complete information regarding offices, positions, nominations and election procedure.

Vacant positions will be filled at the OBA Annual Meeting Nov. 17-19. Terms of the present OBA officers and governors listed will terminate Dec. 31, 2010. Nomination and resolution forms can be found at www.okbar.org.

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BAR NEWS

OBA Nominating Petitions (See Article II and Article III of the OBA Bylaws)

BOARD OF GOVERNORS Member-at-Large Renée DeMoss, Tulsa Nominating Petitions have been filed nominating Renée DeMoss for election of Member-at-Large of the Oklahoma Bar Association Board of Governors for a three-year term beginning January 1, 2011.

A total of 123 signatures appear on the petitions.

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Supreme Court Judicial District No. 2 Gerald C. Dennis, Antlers Nominating Petitions have been filed nominating Gerald C. Dennis for election of Supreme Court Judicial District No. 2 of the Oklahoma Bar Association Board of Governors for a three-year term beginning January 1, 2011. Twenty-five of the names thereon are set forth below: Charles D. “Buddy” Neal Jr., Eric D. Janzen, Emily M. Herron, James T. Branam, Pat Phelps, Emily Redman, Whitney Kerr, Matt Mickle, David W. Kelly, Jeremy Elliott, Harold Witcher, Kenneth Farley, Thomas Hadley, Shantell D. Phillips, John K. Bounds, Donald R. Shaw, Tim Ragland, Kevin T. Sain, Jerry Elizabeth Griffith, Larry G. Grant, Jeff Belote, Maria Tasi Blakely, Ronald D. Cox, Robert S. Settles and Sean K. Huffman.

A total of 33 signatures appear on the petitions.

Nominating Resolutions have been received from the following counties: Atoka, Bryan, Choctaw and McCurtain

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NOTICE OF REAPPOINTMENT OF INCUMBENT MAGISTRATE JUDGE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OKLAHOMA The current term of office for United States Magistrate Judge Frank H. McCarthy at Tulsa, Oklahoma, will expire on April 9, 2011. The United States District Court is required by law to establish a panel of citizens to consider the reappointment of a magistrate judge to a new eight-year term.

The duties of this position are demanding and wide-ranging. Such duties include, but are not limited to: (1) conducting preliminary proceedings in criminal cases; (2) trial and disposition of misdemeanor cases; (3) conducting various pretrial matters and evidentiary proceedings on delegation from the judges of the District Court; and (4) trial and disposition of civil cases upon consent of the litigants.

Comments from members of the bar and the public are invited as to whether the incumbent magistrate judge should be recommended by the panel for reappointment by the Court. All comments should be directed to Phil Lombardi, United States Court Clerk, 333 W. 4th Street, Room 411, Tulsa, Oklahoma 74103.

Comments must be received by September 20, 2010.

Oklahoma Supreme Court Rules on Legal Internship ATTENTION!!!

ATTENTION!!!

ATTENTION!!!

The Legal Intern Committee approved and Adopted the following rule interpretation on May 6, 2010 by unanimous decision.

New Interpretation 2010 -1 For the purpose of Rules 7.4, 7.5, 7.6 and 7.7, the terms “pleading, motion or brief” do not include forms, orders or other documents that memorialize proceedings in which a supervising attorney need not be present.

You may email comments or questions to Terrell Monks, Chair of the Committee at TerrellMonks@Gmail.com

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Vol. 81 — No. 19 — 7/24/2010

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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS Wednesday, June 30, 2010 PCD-2005-143 — Tremane Wood, Petitioner, was convicted by jury of First Degree Felony Murder (Count 1), Robbery with Firearms, After Former Conviction of a Felony (Count 2), and Conspiracy to Commit a Felony, After Former Conviction of a Felony (Count 3) in Case No. CF-2002-46 in the District Court of Oklahoma County. The jury recommended as punishment the death penalty on Count 1, and life imprisonment on Counts 2 and 3. The trial court sentenced accordingly and ordered the sentences to be served consecutively. This Court previously affirmed Wood’s Judgment and Sentence and the United States Supreme Court has denied certiorari. Wood is before the Court on his Application for Post-Conviction Relief. Wood’s Application for Post-Conviction Relief is DENIED. Because his claims can be disposed of on the materials provided, his motions for discovery and an evidentiary hearing are DENIED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs.

Thursday, July 1, 2010 F-2008-1189 — Sir Tramane Antoine Neal, Appellant, was tried by jury and found guilty of aggravated attempting to elude a police officer, in violation of 21 O.S. 2001, § 540A(B), after former conviction of two or more felonies, in the District Court of Oklahoma County, Case No. CF- 2007-2747. The jury sentenced Appellant to twenty five (25) years imprisonment.

The Honorable Tammy Bass-Lesure, District Judge, imposed judgment in accordance with the verdict. From this judgment and sentence, Sir Tramane Antoine Neal has perfected his opinion. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs.

F-2009-93 — Appellant, Jeremy Christopher Anderson, was tried by jury and found guilty of murder in the second degree, a violation of 21 O.S.2001, § 701.8(2), in the District Court of Oklahoma County, Case No. CF-2007-417. The jury sentenced Appellant to thirty five (35) 1614

imprisonment. The Honorable Ray C. Elliott, District Judge, pronounced judgment and sentence accordingly. From this judgment and sentence, Jeremy Christopher Anderson has perfected his appeal. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs in Results.

F-2009-263 — Brandon Lee Brown, Appellant, was convicted of, count one, first degree (heat of passion) manslaughter in violation of 21 O.S.Supp.2002, § 711, after former conviction of one felony, count two, possession of a firearm after a felony conviction in violation of 21 O.S.Supp.2007, § 1283, and count three, carrying a weapon where alcohol is served in violation of 21 O.S.2001, § 1272.1, after former conviction of one felony, in the District Court of Tulsa County, case number CF-2007-4862, before the Honorable Dana Kuehn, Associate District Judge. The jury set punishment at thirty-five (35) years imprisonment on count one, six (6) years imprisonment on count two, and nine (9) years imprisonment on count three. Judge Kuehn sentenced Brown accordingly and ordered that the sentences be served consecutively. The trial court sentenced accordingly. From this judgment and sentence, Brandon Lee Brown has perfected his appeal.

AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs; Lumpkin, J., Concurs in Results.

Friday, July 2, 2010 F-2009-535 — Joseph Lander Smith, Appellant, was tried by jury for the crime of Distribution of Controlled Dangerous substance (Cocaine base), After Former Conviction of a Felony in Case No. CF-208-429, in the District Court of Garfield County. The jury returned a verdict of guilty and recommended as punishment twenty-five (25) years imprisonment to run consecutively with Case No. CF-1999-266.

The trial court sentenced accordingly. From this judgment and sentence Joseph Lander Smith has perfected his appeal. The Sentence of the District Court is MODIFIED to seventeen (17) years imprisonment. Opinion by: Per Curi-

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am; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lumpkin, J., concur; Lewis, J., concur in results.

Wednesday, July 7, 2010 F-2008-547 — Diana Rallo, Appellant, was tried by jury in a bifurcated trial for the crime of Trafficking in Illegal Drugs in Case No. CF2007-120 in the District Court of Washington County. The jury returned a verdict of guilty and recommended as punishment Life Imprisonment Without the Possibility of Parole and a $150,000 fine. The trial court sentenced accordingly. From this judgment and sentence Diana Rallo has perfected her appeal. The Judgment and Sentence of the District Court is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs in results; Lewis, J., concurs.

PCD-2008-356 — In this post-conviction application, Petitioner Alfred Brian Mitchell, seeks relief from his convictions for FirstDegree Malice Aforethought Murder; Robbery with a Dangerous Weapon and Larceny of an Automobile and sentences of death and imprisonment for thirty (30) years and twenty (20) years, respectively, in Case No. CF-91-206 from the District Court of Oklahoma County. Petitioner’s Application for Post-Conviction Relief and Application for an Evidentiary Hearing are DENIED. Opinion by Lumpkin, J.; Johnson, P. J., concur in result; A. Johnson, V.P.J., recused; Lewis, J., concur; Taylor, S.J.1, concur.

1. The Honorable Steven W. Taylor, sitting by assignment in lieu of Judge Arlene Johnson, who recused.

F-2009-610 — Shawn Lee Vandergriff, Appellant, was tried by jury for the crime of Child Abuse by Injury after two or more former felony convictions in Case No. CF-2008-66, in the District Court of Greer County. The jury returned a verdict of guilty and recommended as punishment twenty (20) years imprisonment. The trial court sentenced accordingly.

From this judgment and sentence Shawn Lee Vandergriff has perfected his appeal. AFFIRMED. Opinion by: Per Curiam; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lumpkin, J., concur; Lewis, J. concur in results.

Thursday, July 8, 2010 F-2009-316 — Kenneth Dwayne Webber, Appellant, was tried by jury for the crime of Second Degree Forgery, After Conviction of Two or More Felonies, in Case No. CF-20076554 in the District Court of Oklahoma County.

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The jury returned a verdict of guilty and recommended as punishment eighteen years imprisonment. The trial court sentenced accordingly. From this judgment and sentence Kenneth Dwayne Webber has perfected his appeal.

AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur.

Friday, July 9, 2010 C-2009-931 — On September 23, 2009, Petitioner, Jong Hyun Pae, entered guilty pleas in two cases in Comanche County District Court, before the Honorable Mark R. Smith, District Judge. In Case No. CF-2009-212, Pae plead guilty to Robbery with a Firearm in violation of 21 O.S.Supp, 2007, § 801; in Case No. CF-2009229, Pae pled guilty to First Degree Robbery (by force and fear) in violation of 21 O.S.Supp.2007, § 797. Judge Smith accepted the pleas and sentenced Pae to ten years, with the last three years suspended on each case and ordered that the sentences be served concurrently. Pae, through counsel, filed motions to withdraw pleas, in both cases and a hearing on the motions was held on October 15, 2009. At the conclusion of the hearing, the trial court denied Pae’s motions. From this judgment and sentence, Jong Hyun Pae has perfected his appeal. Pae’s petition for a writ of certiorari is DENIED, and the trial court’s order denying Pae’s motion to withdraw plea is AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concurs; A. Johnson, V.P.J., Concurs in Results; Lumpkin, J., Concurs.

F-2009-257 — Appellant, Harold J. Threet, was tried by jury and ound guilty of arson in the first degree, a violation of 21 O.S.2001 § 1401, after former conviction of two (2) or more felonies, in the District Court of Tulsa County, Case No. CF-2007-6477. The jury sentenced Appellant to twenty-five (25) years imprisonment and a $250,000.00 fine. The Honorable Daman Cantrell, District Judge, pronounced judgment and sentence accordingly. From this judgment and sentence, Harold J. Threet has perfected his appeal.

AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., concurs; A. Johnson, V.P.J., concurs.; Lumpkin, J., concurs.

Tuesday, July 13, 2010 RE-2008-936 — Paul C. McKinstry, Appellant, entered a plea of nolo contendere to two counts of Sodomy in Wagoner County Case No. CF-2002-163. Appellant was sentenced to

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seven years for each count, all suspended, with the sentences to be served consecutively. On May 13, 2008, Appellant’s suspended sentence for Count 2 was revoked, in part, and he was sentenced to two years, with the remainder of his seven year sentence suspended. From this judgment and sentence, Appellant appeals.

The partial revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., concurs; Lumpkin, J., concurs; Lewis, J., concurs.

F-2009-669 — Hillary Burks, Appellant, was tried by jury for the crime of Distribution of Controlled Substance (cocaine base), after former conviction of two or more felonies in Case No. CF-08-644, in the District Court of Tulsa County. The jury returned a verdict of guilty and recommended as punishment eighteen (18) years imprisonment and a fine of $500.00.

The trial court sentenced accordingly. From this judgment and sentence Hillary Burks has perfected her appeal. AFFIRMED. Opinion by: Per Curiam; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur in Results.

Friday, July 16, 2010 F-2008-1110 — Appellant, Cetto-Mekko Tecumseh, represented by counsel, entered guilty pleas in Okmulgee County District Court Case No. CF-2004-55 to Driving Under the Influence, Count I, and Driving Under Suspension, Count II. Pursuant to a plea agreement, execution of Tecumseh’s sentences was delayed conditioned upon his successful completion of the Okmulgee County Drug Court Program.

Under the terms of Tecumseh’s plea, upon successful completion the Drug Court Program, his sentences would be suspended, but if not, his sentences would be executed. On October 16, 2008, the State filed an application to terminate Tecumseh from Drug Court participation.

A hearing was held on the State’s application on October 7, 2008, before the Honorable Duane A. Woodliff, Special Judge. At the conclusion of the hearing, Tecumseh was terminated from the program and his sentences were imposed.

From this order of termination, Tecumseh has perfected his appeal. The District Court’s order terminating Tecumseh from the Okmulgee County Drug Court Program and imposing sentence in CF-2004-55 is AFFIRMED. Opinion

by C. Johnson, P.J.; A. Johnson, V.P.J.: Concur; Lumpkin, J.: Concur; Lewis, J.: Concur.

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F-2009-335 — Appellant, Jermaine Darnell Jeffery, was tried by jury and convicted of First Degree Felony Murder (Count I); Shooting With Intent to Kill After Former Conviction of a Felony (Count II); Feloniously Pointing a Firearm After Former Conviction of a Felony (Count III); Leaving the Scene of an Accident With Injury After Former Conviction of Felony (Count IV); Possession of a Firearm After Former Conviction of a Felony (Count V); and Eluding a Police Officer After Former Conviction of a Felony (Count VII) in the District Court of Tulsa County, Case Number CF-20074861. The jury recommended as punishment life imprisonment in Count I; twenty years imprisonment on Count II; ten years imprisonment on Count III; four years imprisonment and a fine in the amount of $1,000 in Count IV; five years imprisonment in Count V; and five years imprisonment and a fine in the amount of $1,000 in Count VII. The trial court sentenced accordingly; ordering the sentences in count I and II to run concurrently but consecutive to the remaining sentences. It is from this judgment and sentence that Appellant appeals.

The judgment and sentences for First Degree Felony Murder, Feloniously Pointing a Firearm After Former Conviction of a Felony, Leaving the Scene of an Accident With Injury After Former Conviction of Felony, Possession of a Firearm After Former Conviction of a Felony, and Eluding a Police Officer After Former Conviction of a Felony are hereby AFFIRMED. The judgment and sentence for Shooting With Intent to Kill is REVERSED and REMANDED to the District Court with instructions to DISMISS. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J., concur in result.

RE-2009-1030 — Appellant, Steven Alan Nunley, pled guilty February 10, 2006, in the District Court of Muskogee County, Case No. CF-2005-996, to Count 1 — Trafficking in Illegal Drugs and Counts 2 and 3 — Unlawful Possession of Controlled Drug with Intent to Distribute. He was sentenced to ten years suspended on each count with rules and conditions of probation. The sentences were ordered to run concurrently. The State filed a motion to revoke Appellant’s suspended sentences on August 20, 2009, alleging Appellant committed the new crime as alleged in Muskogee County District Court Case No. CF-2009-712.

Following a revocation hearing November 2, 2009, the Honorable Mike Norman, District

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Judge, revoked five years of Appellant’s ten year suspended sentence in each case, with rules and conditions of probation. Appellant appeals from the revocation of his suspended sentences. The revocation of Appellant’s suspended sentences is AFFIRMED. Opinion by C. Johnson, P. J.; A. Johnson, V.P.J., concur; Lumpkin, J., concur; Lewis, J.: Concur.

Monday, July 19, 2010 F-2009-462 — Christopher Borneman, Appellant, was tried by jury for the crime of Eluding a Police Officer, After Former Conviction of Two or More Felonies, in Case No. B-CF-2008296 in the District Court of Creek County. The jury returned a verdict of guilty and recommended as punishment twelve years imprisonment. The trial court sentenced accordingly.

From this judgment and sentence Christopher Borneman has perfected his appeal. AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur.

Tuesday, July 20, 2010 F-2009-284 — Appellant Donald Hudson was tried by jury for First Degree Murder (Count I); Conspiracy to Commit Assault and Battery with a Deadly Weapon (Count II), and Assault and Battery with a Deadly Weapon (Counts III, IV and V) (21 O.S.Supp.2007, § 652(C), Case No. CF-2007-4072, in the District Court of Oklahoma County. In Count I, the jury returned a guilty verdict for Second Degree Murder and recommended a sentence of forty (40) years imprisonment. In Counts II – V, Appellant was found guilty as charged and the jury recommended imprisonment for ten (10) years in Count II and fifteen (15) years in each of Counts III, IV, and V. The trial court sentenced accordingly, ordering the sentences to be served consecutively. It is from this judgment and sentence that Appellant appeals.

AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur in part/dissent in part; A. Johnson, V.P.J., concur; Lewis, J., concur.

ACCELERATED DOCKET Wednesday, June 30, 2010 J-2010-166 — K.B., Appellant, age seventeen at the time of his alleged offenses, was charged

by Information in the District Court of Oklahoma County, Case No. CF-2009-6407, with two counts of Robbery with a Firearm, one count of Attempted Robbery with a Firearm, and one count of Attempted Escape from Custody. The State filed a “Motion for Imposition Vol. 81 — No. 19 — 7/24/2010

of an Adult Sentence,” and following a preliminary hearing and hearings on the State’s Motion, the Honorable Larry D. Shaw, Special Judge, sitting as magistrate, found probable cause on the charges and on February 19, 2010, sustained the State’s Motion. From that final order, Appellant appeals. AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concurs; Lumpkin, J., Not Participating; Lewis, J., Concurs in Result.

COURT OF CIVIL APPEALS (Division No. 1) Friday, July 2, 2010 106,587 — (Cons. w/107,169) In Re the Marriage of: Sonya Major, Petitioner/Appellant/ Counter Appellee, vs. Jonathon C. Major, Respondent/Appellee/Counter Appellant.

Appeal from the District Court of Tulsa County, Oklahoma. Honorable Carl Funderburk, Trial Judge. In this divorce proceeding, Wife contends the trial court abused its discretion in its division of Husband’s bonus plans, a LongTerm Incentive Plan [LTIP] and a Cash Bonus Plan, by dividing only one-half of their value for 2007, instead of dividing their entire value for 2007, because the parties separated in June 2007. The date of separation is the date joint industry ceased. There is evidence in the record that joint industry ceased in June 2007. Husband was employed with T.D. Williamson (TDW), a global pipeline services company.

Since neither party had access to TDW’s financial performance records for the entire year of 2007, this Court cannot say the trial court’s decision to divide the 2007 LTIP and Cash Bonus Plan awards based on performance for the entire year was against the weight of the evidence. Wife also complains the trial court abused its discretion in awarding her an inadequate amount of support alimony. Husband argues Wife’s list of expenses was not supported by any documentation she had incurred the expenditures she claimed. The court awarded support alimony based on the amount of need demonstrated by Wife and the ability to pay of Husband, the length of the marriage, the disparity in earning ability, the historical lifestyle of the parties and the factors enumerated in Bowman v. Bowman, 1981 OK CIV APP 7, n.8, 639 P.2d 1257. The trial court did not abuse its discretion by not awarding Wife a larger amount of support alimony. In his counterappeal, Husband contends the court abused its discretion in denying his application for attorney fees and granting Wife’s application for

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attorney fees. He argues Wife’s actions made the litigation more complex than necessary. In the light of the complicated nature of the matter, the actions of Wife do not qualify as vexatious conduct. The trial court did not abuse its discretion in denying Husband’s attorney fees.

There was evidence Wife refinanced the marital home for the equity in order to pay her attorney fees. Husband was under no hardship. The disparity of incomes is an overriding factor in balancing the equities. The trial court did not abuse its discretion in awarding Wife her attorney fees. Both parties request appealrelated attorney fees. The request of both parties is denied. The judgment of the trial court is AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur.

107,013 — Krista Lowery, Individually and as Mother, Natural Guardian and Next Friend of C.E., a Minor, Plaintiff/Appellee, vs. Al Thi Steele, Defendant/Appellant. Appeal from the District Court of Oklahoma County, Oklahoma.

Honorable Barbara G. Swinton, Trial Judge.

Appellant leased a rent house to Joy Howard with a provision there would be no dogs, cats or other domestic animals on the premises.

Paul Anderson, another resident of the home, owned a pit bull that escaped from the back yard and attacked C.E., a minor who was playing in the street in front of the house. Appellee, filed this action against Howard, Anderson and Appellant for damages for personal injuries to C.E. Appellee contends Appellant was negligent in allowing the fence to be in disrepair allowing the dog to escape. Appellant argues she owed no duty to children to keep the fence in repair in order to prevent animals to escape. We agree. Appellant owed no duty to Appellee and there can be no negligence without a duty. REVERSED AND REMANDED WITH DIRECTIONS. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur.

107,093 — Jim Curl, Plaintiff/Appellee, vs.

Michael Andra, Defendant/Appellant. Appeal from the District Court of Kay County, Oklahoma. Honorable Leslie D. Page, Trial Judge.

Appeal of small claims judgments based on Plaintiff/Appellee Curl’s forcible entry and detainer affidavit and subsequent affidavit for damages, award of attorney fees and costs, and denial of Defendant/Appellant Andra’s motion for new trial. Andra alleges two propositions of error: (1) pursuant to the statute of frauds, 15 O.S.Supp.2003 § 136, the trial court erred by allowing appellee to harvest and receive part 1618

of a milo crop planted by him in June of 2008 because at the time no written contract or agreement existed between the parties, and (2) pursuant to the Oklahoma Landlord Tenant Act, 41 O.S. Supp.2001 § 8, a notice to quit served on Curl was sufficient to terminate the tenancy at the end of 2007. HELD: Andra has neither demonstrated the trial court’s judgments resulted from any error of law nor that its judgments are so clearly against the weight of the evidence as to be an abuse of discretion.

AFFIRMED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur.

107,261 — Mary Lou Hummer, Plaintiff/ Appellant, and Barney Lehmbeck, Trustee of the Oneta Swaim Lehmbeck Living Trust and the Bryon L. Lehmbeck Living Trust; and Anne M. Swaim, Independent Executrix of the Estate of Fred M. Swain, Plaintiffs, vs. State of Oklahoma ex rel. Oklahoma Board of Agriculture, Oklahoma Department of Agriculture, Food and Forestry, and Land O’Lakes, Inc., Defendant/Appellees. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Noma D. Gurich, Trial Judge. Appellant (Protestant) seeks review of the district court’s order affirming the decision of Appellee (Board) to grant a license to Appellee, Land O’Lakes, Inc. (Applicant), to construct and operate a concentrated swine feeding operation as a swine nursery pursuant to the Oklahoma Swine Feeding Operations Act (OSFO), 2 O.S.Supp.2007 §§201 to 20-29. At issue is whether the Board erred in granting the license when Applicant intended to sell the nursery to another operator. The OSFO does not prohibit an applicant from seeking a license when the applicant intends to sell the operation after constructing the facility.

We find no error in the Board’s consideration of Applicant’s license application when Applicant intended to sell the nursery to another operator. The notice given to affected property owners gave accurate information as to who would be licensed to own, operate, and manage the proposed facility and gave property owners the opportunity to be heard. Protestant’s right to due process was not violated by the notice given. We affirm the district court’s order, leaving the Board’s order in effect.

AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur.

107,948 — (Comp. w/107,550) In the Matter of the Estate of Bill J. Eisenhour, Deceased: Janice M. Boyne, Petitioner/Appellant, vs. Heritage Trust Company, Respondent/Appellee.

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Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Bill Graves, Trial Judge. This appeal is a companion appeal to Boyne v. Heritage Trust Company, Case No. 107,550 (Mar. 5, 2010), in which we reversed the trial court’s order denying the motion of Appellant Janice M. Boyne (Beneficiary) to dismiss the petition of Appellee Heritage Trust Company (Trustee) to determine title to certain certificates of deposit (CDs). We held the CDs, which were designated payable on death to Beneficiary, were not subject to disposition in probate pursuant to 6 O.S.Supp.2006 §901(B)(1).

The present case is an appeal from the trial court’s judgment determining title to the CDs. Our ruling in the companion case is the settled law of the case on the issue of the trial court’s power to dispose of the CDs in probate. The trial court erred in determining title to the CDs. Accordingly, its judgment is REVERSED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur.

107,962 — Antone Lamandingo Knox, Plaintiff/Appellant, vs. Crysta Ley-Pink-Robbins, Amy Thomas, Neamyra Riddle, Jessica Smith, Keith Sherwood, Justin Jones, Bobby Boone, Vera Robertson, Harry Reading, Sgt. Gibson, and Randall Workman, Defendants/Appellees. Appeal from the District Court of Pittsburg County, Oklahoma. Honorable James D. Bland, Trial Judge. Appeal filed by pro se inmate Plaintiff/Appellant Knox following the trial court’s grant of a motion to dismiss his petition for damages due to alleged actions by correction personnel causing property loss, damage and/or destruction. HELD: Even after taking as true all of the challenged pleading’s allegations and all reasonable inferences which may be drawn from them, the claims in Knox’s petition were time-barred by the Oklahoma Governmental Tort Claims Act. Knox presents no facts which would entitle him to the relief requested and the trial court was correct in finding his petition legally insufficient. We AFFIRM. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur.

Friday, July 9, 2010 106,752 — Carl E. Beavers and Myrtle B. Beavers, Plaintiffs/Appellees, vs. Harold E. Byers, Defendant/Appellant. Appeal from the District Court of LeFlore County, Oklahoma. Honorable Jeff Mixon, Judge. Harold E. Byers (Byers) appeals a trial court order in favor of Carl and Myrtle Beavers (the Beavers) finding Vol. 81 — No. 19 — 7/24/2010

Byers breached their contract to purchase personal property and awarding the Beavers damages and attorneys fees. Byers’ Petition in Error seeking corrective relief from the trial court’s disposition of all of the parties’ claims and damages, which was filed September 24, 2008, not December 31, 2008 as indicated in his Petition, came too late and is ordered DISMISSED. Byers’ appeal of the trial court’s attorney fee award was timely and that judgment is AFFIRMED. The Beavers’ request for appealrelated attorney fees is GRANTED. The case is REMANDED for determination of appealrelated attorney fees. DISMISSED IN PART, AFFIRMED IN PART AND REMANDED WITH DIRECTIONS. Opinion by Hetherington, J.; Buettner, P.J., concurs, and Hansen, J., concurs in part, dissents in part with opinion.

106,854 — Sucher Energy, Inc., Plaintiff/ Appellant, and Diane Sucher, Escrow Agent, Plaintiff, vs. John J. Culbertson, Defendant/ Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Daniel R. Owens, Judge. Plaintiff Sucher Energy Inc. (SEI) received a jury verdict in its favor on its breach of contract claim against Defendant John Culbertson, which judgment was not appealed and became final. SEI’s appeal is brought from a post-trial order denying its application for pre-judgment interest, costs and attorney fees and awarding Culbertson attorney fees, however SEI only raises error with the trial court’s denial of prejudgment interest. Based on the appellate record SEI submitted, it has failed to demonstrate the trial court erred, as a matter of law, by determining SEI was not entitled to prejudgment interest.

The trial court’s order is affirmed in all respects.

AFFIRMED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur.

107,027 — In Re the Marriage of: Bobby Bryan Newcomb, Petitioner/Appellee, vs.

Kerri Lorraine Newcomb, Respondent/Appellant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Barry Hafar, Judge. The parties were married July 11, 1998 and a decree of dissolution of marriage was entered December 18, 2008. Appellant/Respondent Kerri Lorraine Newcomb (Kerri/Wife) contends, inter alia, the trial court erred by failing to include any of Petitioner/ Appellee Bobby Bryan Newcomb’s (Bryan/ Husband) retirement benefits in the marital property division. The trial court’s order states: “However, given that no evidence was

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presented to establish the amount of contributions, any attempt by this Court to quantify the benefit would in essence negate the terms of the Antenuptial Agreement.” We agree and affirm. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur.

107,057 — Clinton Wayne Roberts, Petitioner/Appellee, vs. Jennifer Maria Roberts, Respondent/Appellant. Appeal from the District Court of Pittsburg County, Oklahoma.

Honorable Jim D. Bland, Trial Judge. Appellant (Mother) seeks review of the trial court’s order modifying the decree of divorce to terminate joint custody and to place primary custody of the parties’ two minor sons (Children) with Appellee (Father). Mother contends the trial court failed to properly weigh the evidence or in weighing the evidence abused its discretion in finding Children’s best interests were served by awarding custody to Father. The trial court had before it conflicting evidence and was entitled to choose which evidence to believe.

We find no abuse of discretion. Mother next contends the court erred by refusing to make specific findings of fact upon her attorney’s request. After the trial court pronounced its decision, Mother’s attorney asked whether there were any specific findings. The court replied, “Best interest.” We cannot construe this question as a request for separately stated findings of fact pursuant to 12 O.S. 2001 §611.

Mother also contends the court erred by not directing Children’s counselor to offer her opinions as a licensed counselor to the court, arguing it was relevant to the determination of whether Children should remain in joint custody. Both parties sought to terminate joint custody; therefore, whether joint custody should be terminated was not in dispute. We see no abuse of discretion. The order of the trial court is AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur.

computation and we therefore remand for recalculation of the child support order using the amount of Mother’s income on which the parties agree. AFFIRMED AND REMANDED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur.

107,092 — Lea Stallings, Petitioner/Appellee, vs. Ray McGlocklin, Respondent/Appellant. Appeal from the District Court of Johnston County, Oklahoma. Honorable Robert M. Highsmith, Judge. Respondent/Appellant Ray McGlocklin (Father) appeals from the trial court’s Journal Entry on Motion to Modify.

Father sought to modify custody from Petitioner/Appellee Lea Stallings (Mother) to joint custody. The record does not include evidence of a permanent, substantial and material change of conditions and we affirm. Mother concedes that the trial court erred in the child support

107,808 — J.D. Branscum and Amelia J. Branscum, individually and as Trustees of The J.D. and Amelia J. Branscum Family Revocable Trust, Dated 3-27-2000, Plaintiffs/Appellants, vs. Mildred Kirby, William Bailey Cook, III, and Wm. Bailey Cook, III, P.C., an Oklahoma corporation, Defendants/Appellees. Appeal from the District Court of Pontotoc County, Oklahoma. Honorable Timothy Olsen, Judge.

Plaintiffs/Appellants J.D. Branscum and Amelia J. Branscum, Individually and as Trustees of the J.D. and Amelia J. Branscum Family Revocable Trust, Dated 3-27-2000, appeal from sum-

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107,325 —In the Matter of the Estate of Maxine Price: Jo Anna (Rudder) Dimsdle; Gary Lynn Rudder; and Terry Bruce Rudder, Plaintiff/Appellants, vs. Billy Jo Price, Individually, and Billy Jo Price, as Personal Representative of the Estate of Maxine Price, Defendant/ Appellees. Appeal from the District Court of Pushmataha County, Oklahoma. Honorable Gary L. Brock, Trial Judge. Appellants are grandchildren of Maxine Price, deceased. They are the children of Maxine’s deceased daughter. Appellee is Maxine’s son. Appellants contend Carolyn Dyke, one of the three witnesses to the execution of the will, was Appellee’s common law wife who stood to inherit Maxine’s estate under the will and that the will was obtained through fraud and/or deceit. The trial court found Dyke is not Appellee’s common law wife and as a result Maxine was not acting under duress, fraud, or undue influence when she executed her will. Appellants also argue that Maxine did not own the property in fee simple. In a 1948 quiet title action, the trial court entered an order finding Maxine and her husband (Harvie) were the joint owners of the property. Upon the death of Harvie, Maxine filed a termination of joint tenancy. As the surviving joint tenant, she conveyed by warranty deed to Appellee, all the property, except minerals reserved by prior owners, minus one acre.

She later conveyed that one acre to Appellee and reserved a life estate for herself. The trial court’s judgment that Appellee is the owner of the property is not against the clear weight of the evidence. AFFIRMED. Opinion by Hansen, J.; Buettner, P.J., and Hetherington, J., concur.

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mary judgment granted in favor of Defendants/Appellees Mildred Kirby, William Bailey Cook, III, and Wm. Bailey Cook, III, P.C. After the Branscums entered a contract to sell real property, Kirby filed a lien against the property, and the Branscums responded with a quiet title action seeking to remove the lien. Kirby, represented by Cook, then sued the Branscums to recover a real estate commission that Kirby claimed the Branscums owed to her. The trial court found the lien was invalid and Kirby dismissed her suit against the Branscums. The Branscums then filed this action for malicious prosecution and abuse of process, claiming that Cook and Kirby knew that Kirby’s suit against the Branscums had no legal basis. The Branscums also claimed that Cook threatened to inform the IRS about possible tax fraud that Cook discovered during depositions. The trial court denied the Branscums’ request to add additional claims in the pretrial conference.

The facts which are material to the Branscums’ claims are not in dispute; they show Cook was entitled to judgment as a matter of law. We further find no abuse of discretion in the trial court’s denial of the Branscums’ request to add claims at the pretrial conference. The trial court did not abuse its discretion in denying the Branscums’ motion to reconsider. Finally, we find no error in the award of costs. We therefore AFFIRM the orders on appeal. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur 107,989 — National Benevolent Association, Inc., and The Oklahoma Christian Home, Inc., Plaintiff/Appellants, vs. Andrew Hoelscher, M.D., and Mercy Health Center, Inc., Defendant/Appellees, and Arthur H. Conley, M.D., Defendant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Patricia G. Parrish, Trial Judge. In the original lawsuit, the Personal Representative (PR) of the Estate of Ruth Cather sought damages from Appellants (collectively NBA) for the wrongful death of Ms. Cather. In this appeal, Appellants are seeking contribution from Appellees (Dr. Hoelscher and Mercy Health Center). Ms. Cather, an eighty-seven year old woman, fell on more than one occasion while a resident of NBA. In her last fall from her wheelchair she broke her pelvis and her neck.

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Appellees as defendants in her action because she believed all Ms. Cather’s injuries were caused by the negligence of NBA. The trial court granted summary judgment to Appellees. Appellants appeal that judgment. The court based its ruling on its finding the neurologist’s opinion was not supported by the facts in evidence and he was not qualified to give his opinion on the issue of causation. The 10th Circuit Court of Appeals has stated merely possessing a medical degree is not sufficient to permit a physician to testify concerning any medical-related issue. We find no abuse of discretion by the trial court. AFFIRMED. Opinion

by Hansen, J.; Buettner, P.J., concurs, and Hetherington, J., dissents with opinion.

Thursday, July 15, 2010 107,096 — In Re: The Marriage of Deanna Moslander, Petitioner/Appellant, vs. Allen Lee Moslander, Respondent/Appellee. Appeal from the District Court of Canadian County, Oklahoma. Honorable Gary D. McCurdy, Trial Judge. Appellant (Mother) seeks review of the trial court’s order terminating the joint custody of the parties’ minor children. The court awarded Appellee (Father) custody of the children and found Father not guilty of indirect contempt of court due to insufficient evidence.

Mother contends Father did not support his testimony with documentary evidence, his testimony was not credible, and that her testimony indicated her involvement with the children’s educational needs was superior to Father’s involvement. Mother provided no citation of authority to indicate Father must support his testimony with documentary evidence. In addition, Mother did not support her testimony with any documentary evidence.

Mother did not meet her burden of demonstrating the trial court’s decision is contrary to the children’s best interests. Awarding Father custody of the children is not against the clear weight of the evidence. AFFIRMED. Opinion

by Hansen, J.; Buettner, P.J., and Hetherington, J., concur.

107,211 — In Re the Marriage of: James Michael Willbanks, Plaintiff/Appellee, vs.

Karen Denise Willbanks, now Denner, Defendant/Appellant. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Geary L. Walke, Judge. Defendant/ Appellant Karen Denise Willbanks, now Denner (Wife) contends that the trial court erred when it assessed attorney fees against

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her in favor of Plaintiff/Appellee James Michael Willbanks (Husband), based on Wife’s lawyer’s conduct. Specifically, Husband filed a Motion to Settle Journal Entry April 11, 2008, to which Wife responded with a Motion for Sanctions April 24, 2008. The May 14, 2009 Order with respect to the parties’ motions denied Wife’s Motion for Sanctions, but granted Husband’s Motion for Attorney Fees. The Order stated, in particular: “As to Plaintiff’s request for the recovery of attorney fees, the Court is going to grant an attorney fee. The Court finds that counsel for the Defendant did not behave in a genteel, professional manner.”

Considering all of the circumstances, we find this is sufficient ground to satisfy an award pursuant to 43 O.S.Supp.2003 §110.

AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur.

107,374 — Lynn Schreck, Plaintiff/Appellant, vs. John Eugene Miller, Elk Supply Co. and KDP Enterprises, LLC, Defendants, Oren Slade Tennery and Alicia L. Tennery, Intervenors/Appellees. Appeal from the District Court of Beckham County, Oklahoma. Honorable Charles L. Goodwin, Judge. Plaintiff/ Appellant Lynn Schreck appeals from a Judgment dening Schreck’s claim of boundary by acquiescence and quieting title in the Intervenor/Appellees Oren Slade Tennery and Alicia L. Tennery. The parties dispute whether a fence is the boundary line between their properties. Between the fence and the government survey line lies an adverse tract of land in which both parties sought to quiet title. The trial court’s decision is against the weight of the evidence and we reverse. REVERSED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur.

107,682 — Steve York, Plaintiff, Mike Burris and Adam Welliver, individually and on behalf of all persons similarly situated, Plaintiffs/ Appellants, vs. Lester, Loving & Davies, P.C. and Shannon F. Davies, Defendants/Appellees. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Vicki Robertson, Judge. Plaintiffs/Appellants Mike Burris and Adam Welliver (Clients) appeal summary judgment entered in favor of Defendants/Appellees Lester, Loving & Davies, P.C. and Shannon F. Davies (Lawyers). Lawyers represented Clients in a lawsuit against Clients’ employer. Clients sued Lawyers claiming legal negligence committed because Lawyers failed to timely file a notice of appeal follow1622

ing a verdict for Clients’ employer. The record on appeal shows Clients failed to present evidence of a dispute on the material element that Clients’ appeal would have been successful but for Lawyers’ negligence. Lawyers were entitled to judgment as a matter of law and we affirm. AFFIRMED. Opinion by Buettner, P.J.; Hansen, J., concurs in result, and Hetherington, J., concurs.

(Division No. 2) Friday, July 2, 2010 107,512 — Flex-N-Gate Oklahoma, LLC, Own Risk, Petitioner, vs. Ella Mae Daffern and The Workers’ Compensation Court, Respondents.

Proceeding to review an Order of a three-judge panel of the Workers’ Compensation Court, Hon. John M. McCormick, Trial Judge. Employer seeks review of an order of a Workers’ Compensation Court three-judge panel, which, after modifying the trial court’s order, found that Claimant had sustained a change of condition for the worse and awarded her benefits for continuing medical treatment in the form of prescription medications for the aggravation of her preexisting condition of depression. The record in this case supports the finding that Claimant’s pursuit of benefits, by reopening proceeding, for aggravation of her preexisting psychological condition was not barred by res judicata or the statute of limitations. The panel’s order finding that Claimant sustained “a change in physical condition for the worse for consequential aggravation of a preexisting condition of depression” is supported by competent lay and medical testimony. SUSTAINED. Opinion from Court of Civil Appeals, Division II by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur.

Wednesday, July 7, 2010 107,634 — Henryetta Medical Center, Petitioner, v. Peggy L. Roberts, and The Workers’ Compensation Court, Respondents. Proceeding to review an order of the Workers’ Compensation Court, Hon. Clarence Kent Eldridge, Trial Judge, awarding Claimant permanent partial disability (PPD) benefits. The issue on appeal is whether the trial court improperly considered functional loss when assessing Claimant’s PPD. The trial court awarded PPD finding Claimant suffered accidental personal injury to her neck, lumbar back, left and right shoulders, and consequential psychological overlay, all of which arose out of and in the course of her employment with Employer.

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Employer claims that 85 O.S. § 3, as amended in 2005, no longer allows a functional abnormality to be considered when assessing a claimant’s permanent impairment. We reject Employer’s argument. The Legislature did not change the fact that a rating physician must rely on, and in fact may not deviate from, the Guides in evaluating impairment. Because the Guides clearly incorporate both anatomical and functional loss in evaluations for impairment, functional abnormality and loss must still be considered in evaluating a claimant’s impairment. We find no error by the trial court in considering functional loss in its award of PPD benefits. SUSTAINED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur.

Monday, July 12, 2010 107,775 — Patricia Lusk, Petitioner/Appellant, v. Community Care HMO, Inc. and The Workers’ Compensation Court, Respondents/ Appellees. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court, Hon. Eric W. Quandt, Trial Judge.

Petitioner/Appellant seeks review of a threejudge panel’s order affirming in part and modifying in part the trial court’s order. Based on our review of the record and applicable law, we find that the three-judge panel’s order lacks the requisite definiteness and certainty for meaningful judicial review regarding two of Claimant’s three alleged injuries. We sustain in part as to Claimant’s knee injury, and vacate in part and remand this case to the three-judge panel to clarify its decision regarding Claimant’s alleged injuries to her left hip and lower back. SUSTAINED IN PART, VACATED IN PART, AND REMANDED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur.

Thursday, July 15, 2010 106,916 — Jason Everett Adams, Plaintiff/ Appellee, v. Martha Louella Adams, Respondent, and Daryl Provost, Intervenor/Appellant. Appeal from an order of the District Court of Oklahoma County, Hon. Allen J. Welch, Jr., Trial Judge. Daryl Provost, former stepparent of a minor child, appeals the trial court’s order, denying his motion to intervene for purposes of seeking court-ordered visitation and/or custody of the minor child. The biological parents of the minor child are divorced and care for their child under an agreed joint custody plan.

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S.Ct. 2054 (2000) and Barber v. Barber, 2003 OK 52, 77 P.3d 576, we find the trial court properly denied his motion to intervene. AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur.

Friday, July 16, 2010 106,456 — Merritt (“Bud”) Johnson, Plaintiff/Appellant, v. Career Technology Center, No. 46 V-11 a/k/a Northeast Technology Centers, Defendant/Appellee. Appeal from the District Court of Mayes County, Hon. J. Dwayne Steidley, Trial Judge. Plaintiff was a career teacher at Northeast Technology Center (NTC). Plaintiff appeals the trial court’s order sustaining his dismissal from NTC and the trial court’s denial of his motion for new trial.

The trial court based its decision on a finding, by a preponderance of the evidence, of willful neglect of duty pursuant to 70 O.S. Supp. 2006 § 6-101.22(A)(1). After a review of the record and applicable law, we find that the trial court erred in not requiring NTC to provide a new admonishment and plan for improvement and that the trial court’s order is not supported by competent evidence. Therefore, we reverse the trial court’s order and its denial of the motion for new trial. Pursuant to 70 O. S.2001 § 6-101.27(D), we direct NTC to “reinstate [Plaintiff] with full employment status and benefits….” REVERSED WITH DIRECTIONS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., concurs, and Fischer, P.J., dissents.

(Division No. 3) Friday, July 2, 2010 105,673 — In the Matter of G.C.H., a Deprived Child: The State of Oklahoma, Petitioner/ Appellee, vs. Donald Clyde Haggard, Respondent/Appellant. Appeal from the District Court of Pittsburgh County, Oklahoma. Honorable Bill Layden, Jr., Judge. Appellant (Father) appeals an order terminating his parental rights to his minor child, G.C.H., upon a finding that he failed to correct the conditions leading to the adjudication of the child’s deprived status pursuant to 10 O.S. 2001 §7006-1.1(A)(5). Father contends he was not given notice of the adjudication of his child as deprived, or the treatment plan he was ordered by the trial court to complete. While the Department of Human Services investigator testified she made several attempts to locate and contact Father to give him notice G.C.H. had been removed from the home, the

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record provides no evidence written notice was provided to Father. The record similarly contains no evidence a copy of the Notice, Summons or Petition for adjudication was mailed to Father at his last known address in accordance with 10 O.S. 2001 §7003-3.5(A)(2). The record reflects notice by publication of the hearing on May 31, 2007, but no evidence exists to suggest Father received notice of any other hearings regarding G.C.H. The fact Father was aware of the proceedings as to Mother does not equate to valid notice of the proceedings against him.

Father cannot be charged with failing to correct conditions which led to the adjudication of G.C.H. as deprived if he had no notice of the steps he was required to take to prevent termination of his parental rights. REVERSED AND REMANDED. Opinion by Mitchell, J.; Joplin, P.J., dissents; Bell, V.C.J., specially concurs.

106,800 — Tulsa Spine Hospital, L.L.C., Plaintiff/Appellant, vs. Shelley D. Green, Defendant, and Central Health Services, L.L.C., Garnishee/Appellee, vs. Banc First, Garnishee.

Appeal from the District Court of Tulsa County, Oklahoma. Honorable Russell P. Hass, Judge. Appellant (Hospital) seeks review of the trial court’s denial of its Motion to Vacate the court’s November 13, 2008 Order Granting Motion to Vacate Default Judgment in favor of Appellee (Garnishee). The court vacated the underlying default judgment on the basis that it had been “irregularly obtained” without actual notice to Garnishee of the proceedings and in violation of procedural due process. The court determined the default judgment void for lack of jurisdiction. The essential question here is whether Garnishee had notice of the garnishment. The record shows that Garnishee’s employee who signed the return receipt failed (possibly through no fault of her own) to deliver it to an officer of Garnishee. Garnishee’s principals thus never received actual notice of the proceedings and could not have responded to the garnishment Affidavit. We are mindful of the disfavor in which default judgments are held and the fact that a trial court always should exercise its discretion so as to promote the ends of justice. Moreover, the abuse of discretion threshold is significantly higher when, as here, a trial court has set aside a default judgment. Garnishee had no notice of the garnishment proceeding at the time the court entered default judgment and Garnishee was denied its day in court. Hospital makes no argument concerning what, if any, delay or 1624

harm it suffers by the court’s setting aside the default judgment–particularly where Hospital argues it is on a “quest for substantive justice.”

Under the facts presented, the trial court’s order granting Garnishee’s Motion to Vacate Default Judgment causes no substantial delay or harm to Hospital, but its denial would be an injustice to Garnishee. We find no abuse of discretion in setting aside the default judgment previously entered against Garnishee upon a finding that the judgment was obtained without actual notice. Nor do we find any abuse of discretion in the denial of Hospital’s Motion to Vacate, which we construe as the functional equivalent of a Motion to Reconsider.

AFFIRMED. Opinion by Mitchell, J., Joplin, P.J., and Bell, V.C.J., concur.

107,098 — In the Matter of the State of Oklahoma in the est of J.M.N, Terri Dawn Baker, Appellant, vs. State of Oklahoma, Appellee.

Appeal from the District Court of Rogers County, Oklahoma. Honorable Terrell S. Crosson, Judge. Appellant (Mother) appeals from the trial court’s order terminating her parental rights to her minor child. Father’s rights were terminated and he does not appeal. The child is an Indian child under the Oklahoma Indian Child Welfare Act, 10 O.S. 2001 §40 et seq., and the Federal Indian Child Welfare Act of 1978, 25 U.S.C.A. §1901 et seq. (jointly referred to as ICWA). The Cherokee Nation was notified of and appeared at the proceeding and recommended the termination of Mother’s parental rights. We affirm the trial court’s termination of Mother’s parental rights, but vacate the order and remand with instructions to correct certain deficiencies in the termination order. The order fails to contain the finding required by 25 U.S.C. §1912(f) that Mother’s continued custody of the child is likely to result in serious emotional or physical damage to the child. The order also fails to identify the state statutory grounds relied upon for termination. These findings are mandatory. Because there appears to be evidence supportive of these underlying facts and the jury was properly instructed as to the state statutory grounds and the required finding under the ICWA, we vacate the order and remand the case to the trial court with instructions to take such action as is necessary to correct these deficiencies in the final termination order. AFFIRMED IN PART, VACATED IN PART AND REMANDED WITH INSTRUCTIONS. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur.

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Thursday, July 8, 2010 104,665 — Virginia Mathis, an individual, Plaintiff/Appellant, vs. Clynell Hibbs, an individual, Defendant/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma.

Honorable Daniel Owens, Judge. Appellant (Mathis) seeks review of the trial court’s denial of her Motion to Reconsider the court’s dismissal of her negligence action for failure to issue summons within ninety days of the filing of the petition pursuant to Rule 9 of the Rules for District Courts. This case arises out of a motor vehicle accident with personal injuries, which occurred in September 2002. In September 2004, this case was originally filed and service was made on the Appellee (Hibbs). For reasons unclear from the record, Mathis voluntarily dismissed the action on February 28, 2005, then refiled the case one year later, pursuant to the savings statute, 12 O.S. 2001 §100, but failed to issue a summons. There is no explanation or excuse for the delay of over six months from the filing of the Petition to issuance of a summons in this case. Mathis’ plea is simply a claim of prejudice without any explanation other than “inadvertence” which might justify vacation of the Rule 9 dismissal. Mathis has pointed out no law or facts from which we can conclude the trial court abused its discretion.

AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., concurs; Bell, V.C.J., dissents.

106,542 — Rhonda Robertson, Petitioner/ Appellee, vs. Jacklyn Ellis, Respondent/Appellant. Appeal from the District Court of Beckham County, Oklahoma. Honorable Floyd Douglas Haught, Judge. This is an appeal from a proceeding to modify an existing grandparent visitation order. Appellant (Mother) is the natural mother and custodial parent of the minor child, K.M. Mother appeals from the trial court’s judgment modifying and implicitly denying Mother’s motion to terminate the visitation rights of Appellee, the paternal Grandmother. The father of the child, is not a party to nor a participant in this proceeding. A grandparent’s right to visitation is not co-equal with the parent’s rights. To the extent there is any conflict between a parent’s fundamental, constitutional right to care for her child as she sees fit and the statutorily created right of grandparental visitation, that conflict must be reconciled in favor of the preservation of the parent’s constitutional rights. The relationship between parent and child must be held paramount.

There is no dispute Mother is a fit parent.

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Additionally, Mother does not wish to subject the child to court-ordered grandparent visitation in excess of what she believes is appropriate. She contends such visitation is not in the child’s best interests and the original reason for the grandparent visitation (father’s criminal case) has been extinguished. Instead of courtordered grandparent visitation, Mother desires that Grandmother exercise her visitation with the child when father, the non-custodial parent, applies for and exercises his visitation. The trial court abused its discretion when it modified Grandmother’s visitation and implicitly denied Mother’s request to terminate the grandparent visitation. The trial court’s order is reversed and this matter is remanded to the trial court to enter an order terminating Grandmother’s visitation rights. REVERSED AND REMANDED. Opinion by Bell, V.C.J.; Joplin, P.J., concurs; Mitchell, J., dissents.

(Division No. 4) Friday, June 25, 2010 106,904 — In re the Marriage of: Tanya D. Parnell, Petitioner/Appellee, vs. Jerry M. Parnell, Respondent/Appellant. Appeal from Order of the District Court of Seminole County, Hon. Gary Snow, Trial Judge. Husband challenged trial court’s award of child support, support alimony, and division of property in a divorce case. The trial court was correct in imputing Husband’s income based on his earning potential where the evidence showed Husband had given up a higher paying job in order to avoid paying child support; however, the court used an incorrect amount for determining Husband’s gross imputed income and the judgment will be modified to reflect a child support obligation based on the correct income.

The trial court did not err in using Husband’s imputed income, or “earning capacity,” as the basis for determining support alimony, nor was there error in its division of property.

AFFIRMED AS MODIFIED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating.

107,047 — Andrew J. Orcutt, Petitioner/ Appellant, v. Lloyd Richards Personnel Service &/or Compsource Oklahoma and The Workers’ Compensation Court, Respondents/Appellees.

Claimant appeals the trial court’s order denying his claim for compensation for injury to his left knee while playing basketball in Employer’s warehouse. He challenges the statute that

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excludes benefits for injuries that are the result of engaging in recreational activity claiming (1) the statute is unconstitutionally vague and overbroad, (2) the limit on the type of compensable injury results in unintended consequences, and (3) The Legislature cannot limit benefits conferred by the Workers’ Compensation Laws.

We find Claimant’s arguments without merit and sustain the order under review. SUSTAINED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating.

107,159 — Fonda “Nikki” Quarles, Plaintiff/ Appellant, vs. Jayesh Panchal, M.D., Defendant/Appellee. Appeal from Order of the District Court of Oklahoma County, Hon. Noma Gurich, Trial Judge, entering judgment on a jury verdict in favor of Defendant in Plaintiff’s action based on claims of medical negligence and lack of informed consent. Although Plaintiff failed to make timely objection to the jury instructions and verdict forms, fundamental error occurred because the instructions and verdict forms as given make no provision for Plaintiff’s claim of lack of informed consent.

Once the jurors considered Plaintiff’s claim for negligence, found in favor of Defendant, and filled out the general verdict form in favor of Defendant, they were given no choice but to conclude that it was unnecessary or improper to consider Plaintiff’s claim for lack of informed consent. The instructions and general verdict forms as a whole were misleading, and Plaintiff was substantially prejudiced thereby.

REVERSED AND REMANDED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs; and Rapp, J., not participating.

107,375 — Monty D. Payne, Plaintiff/Appellant, vs. Board of County Commissioners of Seminole County, Defendant/Appellee. Appeal from Order of the District Court of Seminole County, Hon. George Butner, Trial Judge, granting summary judgment in favor of Defendant County on Plaintiff’s claim of negligence based on the manner in which County closed a road leading up to A bridge that had been shut down. The evidence failed to establish that County is exempt from liability under the Oklahoma Governmental Tort Claims Act in the circumstances presented, and also demonstrated that material facts are in dispute as to whether County was negligent in the manner in which it closed the road. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. 1626

Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating.

107,786 — Homeland Stores, Inc. and Associated Wholesale Grocers, Inc. (Own Risk #19048), Petitioners/Appellants, v. Robert Shane Box and The Workers’ Compensation Court, Respondents/Appellees. Employer appeals from the three judge panel’s order affirming the order of the trial court, Hon. Bob Lake Grove, Trial Judge, which found Claimant suffered a compensable work-related injury.

Employer argues the claim should have been denied because Claimant was participating in a scuffle with a co-worker when he was injured.

The trial court, after taking testimony and weighing the evidence, found Claimant an innocent victim of horseplay and therefore entitled to benefits. We find competent evidence exists to sustain the trial court’s order.

SUSTAINED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating.

Monday, June 28, 2010 107,904 (cons. w/ Case No. 107,950) — Christopher Jay Smith, Plaintiff/Appellant, vs. City of Lawton and Greg Province, Defendants/Appellees. Appeal from Order of the District Court of Comanche County, Hon. Gerald F. Neuwirth, Trial Judge, dismissing a petition for declaratory judgment by Plaintiff, a an inmate sentenced to life in prison. Plaintiff asserted the invalidity of a City of Lawton ordinance under which he was arrested and that, because his arrest was unlawful the evidence used at his trial was unlawful and there was insufficient evidence otherwise to support his murder conviction. Plaintiff failed to support his contention that the ordinance is unconstitutional with authority. He also failed to demonstrate that his action was anything other than a collateral attack on his judgment and sentence in a criminal case. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating.

Tuesday, June 29, 2010 108,003 — First National Bank, Lindsay, Oklahoma, Plaintiff/Appellee, v. James E. Rolen, an Individual, Defendant/Appellant. James E. Rolen (Borrower) appeals an order from the District Court of Garvin County, Hon. Candace L. Blalock, Trial Judge, granting summary judgment to First National Bank, Lindsay, Oklahoma

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(Bank) on its petition to foreclose on a promissory note. Bank sought foreclosure after Borrower sold the collateral he had pledged for a promissory note. After no agreement was reached for substitute collateral, Bank determined the note was under-collateralized and in default pursuant to the terms of the promissory note. Borrower denied the note was in default because he had not missed any monthly payments and the due date on the note had not yet arrived. The trial court correctly ruled as a matter of law that Bank was entitled to judgment, and we affirm. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Fischer, P.J. (sitting by designation), concurs; Rapp, J., not participating.

107,107 — Walbert D. Boelman, Petitioner, v.

Contractor Services, Inc. and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court, Hon. William R. Foster, Trial Judge, affirming in part and modifying in part the workers’ compensation trial court’s order. Here, the three-judge panel had a concurring vote, a concur-in-result vote, and a dissent. This does not constitute a majority vote as required by Title 85 O.S.2001, § 3.6.

Although this Court is mindful of the importance of reaching a resolution for the parties in this workers’ compensation claim, we have no jurisdiction to review anything but an appealable order by the three-judge panel. Thus, this Court must vacate the three-judge panel’s Order on Appeal Affirming in Part and Modifying in Part the Decision of the Trial Court and remand the matter for immediate review and entry of a decision consistent with the requirements set forth by the Supreme Court and this Decision.

VACATED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Fischer, J., concur.

107,463 — Chris Cook, Richard Bercher, Tony Newsom and Derick Pickard, individually, and all other similarly situated police officers, Plaintiffs/Appellants/Counter-Appellees, v. City of Edmond, Defendant/Appellee/Counter-Appellant. Appeal from an order of the District Court of Oklahoma County, Hon. Carolyn R. Ricks, Trial Judge. Counter-Appellees, City of Edmond (City) appeals the trial court’s final judgment which granted Police Officers’ Chris Cook, Richard Bercher, Tony Newsom, and Derick Pickard (collectively “Officers”) Title 40 O.S.2001 Vol. 81 — No. 19 — 7/24/2010

and Supp. 2005, § 165.1 et seq. wage claim. Officers also appeal, asserting the trial court applied the incorrect statute of limitation. Officers filed the petition asserting a claim for unpaid wages authorized by Title 40 and based on their Collective Bargaining Agreement (CBA) with the City. Based on our review of the record and applicable law, we find the trial court erred in granting Officers’ summary judgment. Accordingly, we reverse and remand to the trial court to determine whether Officers are entitled to wages pursuant to Title 40 consistent with the arbitrator’s pretation of the CBA. REVERSED AND REMANDED WITH DIRECTIONS. Opinion from the Court of Civil Appeals, Division IV,

by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating.

Wednesday, July 7, 2010 107,290 — Linville Shockey, et al., Plaintiffs, v. Chevron USA Inc., Defendants, and H. Blanton Brown, individually, and H. Blanton Brown & Associates, P.C., Appellants/Interested Parties, v. Susman Godfrey, L.L.P., Bradley D. Brickell, and Brickell & Assocates, P.C., Apppellees/Interested Parties. Appeal from the District Court of Washita County, Hon. Christopher S. Kelly, Trial Judge. Attorneys Susman Godfrey and Brown sought an attorney’s fee and costs after they successfully obtained restitution on behalf of class action plaintiffs for an over-payment of legal fees to co-counsel in the underlying case. Because the trial court lacked legal, statutory, or equitable authority to grant an attorney’s fee under these facts, its order doing so is reversed. REVERSED. Opinion from the Court of Civil Appeals, Division IV,

by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating.

106,866 — Ann Marie Lopez, Plaintiff/Appellee, v. Fernando Lopez, Defendant/Appellant.

Appeal from the District Court of Jackson County, Hon. Clark E. Huey, Trial Judge. Fernando Lopez appeals the trial court’s order denying his motion for change of custody of his children after they were moved to Texas by his ex-wife. The trial court found that Mother met her burden of proof to show her move was in good faith pursuant to § 112.3 of Oklahoma’s relocation statute and Father failed to prove relocation was not in the best interest of the children. We agree and affirm. AFFIRMED. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating.

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107,456 — In Re: Protest to the Certificate of Title Brand Issued to AAAA Wrecker Service, Inc. on a 2004 Toyota DBS, VIN # 5TBDT44154S460009. AAAA Wrecker Service, Inc., Appellant, v. Oklahoma Tax Commission, Appellee. Appeal from the Oklahoma Tax Commission, Kris D. Kasper, Administrative Law Judge. Appellant AAAA Wrecker (AAAA) seeks review of the Oklahoma Tax Commission’s (OTC) order finding that AAAA was only entitled to obtain a “junk” vehicle title rather than a “salvage” vehicle title pursuant to§ 1105(O) of the Oklahoma Vehicle License and Registration Act. We find the OTC’s choice to issue a junk title under the facts of this case is erroneous as a matter of law, and we reverse. REVERSED AND REMANDED WITH DIRECTIONS. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating.

108,116 — W.B. Johnston Grain Company, Plaintiff/Appellee, vs. Jerry D. Friess a/k/a J.D. Friess, individually and d/b/a Friess Farms, Defendant/Appellant. Appeal from Order of the District Court of Garfield County, Hon. Tom L. Newby and Ronald G. Franklin, Trial Judges, granting summary judgment in favor of Plaintiff on its claim for breach of contract for the sale of wheat. Under both the Uniform Commercial Code and the trade rules of the National Grain and Feed Association, Seller’s inability to deliver grade one hard red winter wheat by the end of the shipping period on its invoice amounted to a breach of contract as a matter of law. Because there was no substantial dispute that Seller breached the contract, the trial court properly entered summary judgment finding Seller liable. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating.

Friday, July 9, 2010 107,017— Brittney Anne Sprowles, Petitioner/ Interested Party, v. Timothy Chad Thompson, Respondent/Appellant, and State of Oklahoma Department of Human Services Child Support Services, Appellee/Interested Party. Appeal from the District Court of Tulsa County, Hon. Kyle B. Haskins, Trial Judge, denying Appellant’s challenge to an acknowledgment of paternity and granting DHS’ motion to dismiss. DHS argued the statute of limitations under the Uniform Parentage Act (UPA), 10 1628

O.S. Supp. 2006, § 7700-308, barred Appellant’s challenge. We find § 7700-308 is a statute of repose affecting Appellant’s substantive law rights. The trial court therefore erred in applying the section retroactively and in granting DHS’ motion to dismiss on that basis. Likewise, the trial court erred in holding Appellant’s challenge was time barred by pre-UPA law as the controlling statue prior to the UPA, 10 O.S.2001 and Supp. 2002, § 70, contained no time limitation. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPININION. Opinion from the Court of Civil Appeals, Division IV, by Goodman, J.; Gabbard, P.J., concurs; Rapp, J., not participating.

Monday, July 12, 2010 107,070— Noel Osborn, by and through his Legal Guardians, Rick Osborn and Terry Osborn, Plaintiffs/Appellees, vs. Brookdale Senior Living, Inc.; Brookdale Senior Living, Inc., d/b/a Alterra Sterling House of Edmond; and Bill Godwin, Defendants/Appellants. Appeal from Order of the District Court of Oklahoma County, Hon. Carolyn R. Ricks, Trial Judge. The district court defendants appeal the district court’s Order Denying Motion To Compel Arbitration pursuant to 12 O.S. Supp. 2009 § 1879(A)(1).

Although the facility operated by Alterra in this case is an assisted living center, it is, nonetheless, a residential care home. Alterra’s facility is, therefore, subject to the provisions of section 11939 of the Nursing Home Care Act. 63 O.S.2001 and Supp. 2006 §§ 1-1900.1 et seq. Consequently, the analysis in Bruner v. Timberlane Manor Ltd. P’ship, 2006 OK 90, ¶¶ 46-47, 155 P.3d 16, 32, controls, and the arbitration provision in the Osborn/Alterra Residency Agreement is unenforceable. Because the arbitration agreement is unenforceable, it is unnecessary to discuss the remainder of the issues raised by the parties in this appeal. AFFIRMED. Opinion from Court of Civil Appeals, Division IV by Fischer, J., Gabbard, P.J., concurs, and Rapp, J., dissents.

Wednesday, July 14, 2010 107,265 — In re the Guardianship of L.R.P., a minor child. Tatiana Combee, natural mother, Plaintiff/Appellant, vs. Imogine Pointer, Clarence Pointer, and Aldon Pointer, Defendants/ Appellees, and Dalon Pointer, natural father, Appellee. Appeal from Order of the District Court of Comanche County, Hon. C. William Stratton, Trial Judge, refusing natural Mother’s request to remove the co-guardians of Mother’s

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child and terminate the guardianship. Evidence supports the trial court’s decision to deny Mother’s motion. Though Mother presented evidence that she no longer has a substance abuse problem and is no longer homeless, there are other impediments that militate against granting her full custody of her child, and which support the trial court’s exercise of discretion in refusing to terminate the guardianship. The trial court’s decision was not against the clear weight of the evidence.

AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Gabbard, P.J.; Goodman, J., concurs, and Rapp, J., not participating.

Tuesday, July 20, 2010 107,944 — S & L Woodworks and Dallas National Insurance, Co., Petitioners, v. Larry Dean Fryar and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of The Workers’ Compensation Court, Hon. John M. McCormick, Trial Judge, affirming the workers’ compensation trial court’s finding that Claimant, Larry Dean Fryar, was an employee of S & L Woodworks and awarding him temporary total disability benefits and medical treatment. The fundamental issue of this appeal is whether the workers’ compensation court erred in finding Claimant to be an employee of S & L Woodworks rather than an independent contractor. If Claimant is not an employee of S & L Woodworks, he is not entitled to workers’ compensation benefits. Coleman v. J.C. Penney Co., 1993 OK 21, ¶ 8, 848 P.2d 1158, 1160. After considering the facts peculiar to the case in relation to the Page v. Hardy, 1958 OK 283, 334 P.2d 782 factors, this Court finds the workers’ compensation court correctly analyzed the factors and determined Claimant to be an employee of S & L Woodworks. Thus, this Court finds the three-judge panel did not err in affirming the order of the workers’ compensation trial court. This Court further finds that the workers’ compensation court’s order is supported by competent evidence. The order of the three-judge panel affirming the workers’ compensation trial court’s order is sustained. SUSTAINED. Opinion from Court of Civil Appeals, Division IV, by Rapp J.; Gabbard, P.J., and Goodman, J., concur.

ORDERS DENYING REHEARING (Division No. 1) Friday, June 18, 2010

Friday, June 25, 2010 106,829 — Cheryl Orange, Plaintiff/Appellant, vs. Cajun Operating Company, a Delaware Corporation; d/b/a Church’s Fried Chicken, Inc. and Church’s Chicken, Defendant/Appellee. Plaintiff/Appellant’s Petition for Rehearing filed June 14, 2010 is DENIED. 107,313 — In the Matter of the Adoption of Baby H., a minor child: Tommy Daniel and Tara Daniel, Appellants, vs. Shawn E. Corley, Appellee. Appellants’ Petition for Rehearing filed June 10, 2010 is DENIED. Friday, July 2, 2010 106,893 — Oklahoma Turnpike Authority, a body corporate and politic, Plaintiff/Appellee, vs. Mary E. Dobbins, Personal Representative of the Estate of Keith Dobbins, Defendant/ Appellant, and The Board of County Commissioners of the County of Tulsa; the Treasurer of Tulsa County, Oklahoma; and Their Successors, Defendants. Appellant’s Petition for Rehearing filed June 18, 2010 is DENIED. 107,931 — H&R Block, Plaintiff/Appellant, vs. Michael Chad Hawkes and Chasma R. Hawkes, Husband and Wife; Bank of Oklahoma, N.A.; and Security Bank, Defendants, and Bank of Oklahoma, N.A., Defendant/ Cross-Claimant, and Hawkes Auto Group, L.L.C., an Oklahoma Limited Liability Company; Michael Chad Hawkes and Chasma R. Hawkes, Husband and Wife; Thomas B. Caldwell; and, Security Bank, Defendants, and First Pryority Bank, a State Banking Association, Intervenor/Appellee. Plaintiff/Appellant’s Petition for Rehearing filed June 4, 2010 is DENIED. (Division No. 2) Tuesday, May 25, 2010 107,341 — Arturo Medina, Petitioner, v. Juan Martinez d/b/a Aztec Custom Framing, Estate Properties Development LLC, and The Workers’ Compensation Court, Respondents. Petitioner’s Petition for Rehearing is hereby DENIED. Friday, July 16, 2010

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and The Workers’ Compensation Court, Respondents. Petitioners’ Petition for Rehearing filed June 9, 2010 is DENIED.

106,107 — City College, Inc., Plaintiff/Appellee, v. Moore Sorrento, L.L.C., Defendant/

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Appellant. Appellant’s Petition for Rehearing is DENIED. (Division No. 3) Monday, June 14, 2010 107,198 — Tracy R. Smith, Plaintiff/Appellant, vs. Robert F. Hines, M.D.; Robert F. Hines, M.D., Inc.; Oklahoma Sports Science & Orthopaedics, PLLC, Defendants/Appellees, and St. Anthony Ambulatory Surgical Center, LLC; Phillip A. Isaac, M.D.; and Phillip Isaac, M.D., FRCA, Inc., Defendants. Appellant’s Petition for Rehearing and Brief in Support, filed June 3, 2010, is DENIED. Tuesday, June 22, 2010 107,177 — Douglas Potthoff and Stephanie Potthoff, Plaintiffs/Appellants, vs. Jerome G. Deines and Delores Deines, Husband and Wife; David W. Deburger and Carla J. Deburger, Husband and Wife; John M. Crabtree and Betty Jo Crabtree, Husband and Wife; Brent Baker; Carol Ann Rains; Harold McCurley; Sheri Lynn Hilmes and Deanna Kay Carter; Randal Kevin Baker; KAL Drilling, LLC and Susan Carroll, Defendants/Appellees. Appellant’s Petition for Rehearing and Brief in Support, filed May 14, 2010, is DENIED. Wednesday, June 23, 2010 106,291 — Angela Edwards, individually and on behalf of Johnny G. Edwards, an incapacitated person, Plaintiff/Appellee, vs. Ardent Health Services, L.L.C., a Delaware corporation authorized to conduct business in the State of Oklahoma; AHS Wagoner Hospital, L.L.C., d/b/a Wagoner Community Hospital; and AHS Tulsa Regional Medical Center, L.L.C., d/b/a Tulsa Regional Medical Center, Defendants, and Oklahoma Health Care Authority, Defendant/Appellant. Angela Edwards’ Petition for Rehearing, filed May 27, 2010, is DENIED. Friday, June 25, 2010 107,113 — Marcia Holbrook, Plaintiff/Appellant, vs. Dr. Mark Argo, d/b/a Owasso Dental Care, Defendant/Appellee. The Motion for Rehearing filed by Appellant, Marcia Holbrook, on June 18, 2010, and which will be treated as a Petition for Rehearing, is DENIED. Tuesday, July 13, 2010 107,016 — Ray Dean Rittenhouse as Trustee of the Ray Dean Rittenhouse Trust, Plaintiff/Appel-

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lee, vs. Timothy B. King and Sherry L. King, Husband and Wife, Defendants/Appellant.

Appellant’s Petition for Rehearing and Supporting Brief, filed July 8, 2010, is DENIED. (Division No. 4) Tuesday, June 1, 2010 106,381 — Janet Karner, individually, and as surviving spouse of Kenneth Karner, deceased, Logan Karner, and Lynette Nelson, individually and as mother and next friend of Eric Nelson, a minor, Plaintiffs/Appellants, v. Jeremy Webster, Defendant/Appellee, and Steven Redd, Defendant. Appellee Webster’s Petition for Rehearing is hereby DENIED. 107,247 — In the Matter of the Estate of Kay McCollum Switzer, Stephen L. Lookadoo, Appellant, vs. Gregory L. Switzer, Katherine Switzer Miller and Douglas K. Switzer, Appellees. Appellees’ Petition for Rehearing is hereby DENIED. Wednesday, June 16, 2010 106,875 — Harry G. Scoufos IV and Jennifer Christine Scoufos, husband and wife, Michael A. Daffin, and Denise F. Daffin, husband and wife, J.L. Benitscheck, a married woman, Appellees, v. Sequoyah County Conservation District, an Oklahoma Domestic Conservancy District, Appellant. The Petition for Rehearing is DENIED. Friday, June 25, 2010 104,922 — Betty Marie Manek, Petitioner/ Appellee, v. John Robert Manek, Respondent/ Appellant. Apellee’s Petition for Rehearing is hereby DENIED. 105,685 — Marty Daggs, Individually and on behalf of all others similarly situated, Plaintiff/ appellant, v. BFS Retail & Commercial Operations, LLC, et al., Defendant/Appellee. Appellant’s Petition for Rehearing is hereby DENIED. 106,022 — David Anderson and Hanh Anderson, Plaintiffs/Appellants, v. Giong Van Nguyen and Mylinh Nguyen, Defendants/Appellees.

Appellant’s Petition for Rehearing is hereby DENIED. 107,046 — In Re the Marriage of: Anna M. Leslie, Petitioner/Appellee, v. Kevin Leslie, Respondent/Appellant. Appellant’s Petition for Rehearing is hereby DENIED.

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107,562 — J. Lynn Bock, et al., Plaintiffs/ Appellees, v. Robert E. Slater, Jr., et al., Defendants/Appellants, -and- Woodward Hotel Corporation, An Oklahoma Corporation d/b/a Northwest Inn of Woodward, Oklahoma, et al., Nominal Defendants/Appellants, -and- Charlottesville Hotel Corporation, et al., Nominal Defendants. Appellee’s Petition for Rehearing is hereby DENIED. Tuesday, June 29, 2010 106,409 — Lumber 2, Inc., Plaintiff/Appellee, v. Illinois Tool Works, Inc. d/b/a Hobart Welders and Miller Electric Mfg. Co., Defendants/ Appellants, and Don Massie Company, Inc. d/b/a Premier Sales, Defendant. Appellee’s Motion to File a Supplemental Brief in Reply to the Response filed by Appellants to Appellee’s Petition for Rehearing is DENIED. 107,355 — Oscar Leroy Phillips, Respondent/Appellant, v. Craig Phillips and Becky Phillips, on behalf of minor family members, MP & GP, Petitioners/Appellees. Appellant’s Petition for Rehearing is hereby DENIED.

Assistant Federal Public Defender

FEDERAL HABEAS CORPUS DEATH PENALTY DIVISION FEDERAL PUBLIC DEFENDER ORGANIZATION WESTERN DISTRICT OF OKLAHOMA The Federal Public Defender is accepting applications for the position of Assistant Federal Public Defender (AFPD) in the Capital Habeas Unit.

The Unit represents death sentenced prisoners in federal habeas corpus litigation proceedings throughout Oklahoma. This is a full time position located in Oklahoma City, Oklahoma.

The person will serve as an Appellate Specialist. The successful applicant is expected to be engaged in, inter alia, tailoring issues for potential appeal, selection of appellate issues, appellate brief writing and co-ordination, and presenting oral argument. Strong research and writing skills are absolutely necessary. Experience as an appellate law clerk or as an academic specializing in appellate practice are highly desired. Applicants must possess a commitment to poverty law or indigent criminal defense, and no less than five years experience. Capital Habeas experience desirable but not required. The position requires travel.

Salary commensurate with experience and education, equivalent to salaries for Assistant U.S. Attorneys with similar experience.

Qualified persons may apply by forwarding a letter of interest, resume, representative writing sample of the applicant’s work product, and three professional references to: Gary Farris, Administrative Officer Office of the Federal Public Defender Western District of Oklahoma 215 Dean A. McGee, Suite 109 Oklahoma City, Oklahoma 73102 Application packages must be received no later than 6 August 2010.

The Federal Public Defender Organization for the Western District of Oklahoma is an Equal Opportunity Employer.

Men Helping Men Location: The Oil Center – West Building 1st Floor Conference Room 2601 NW Expressway Oklahoma City, OK 73112 * Food and drink will be provided! * Meetings are free and open to male OBA members. * Reservations are preferred. (We want to have enough space and food for all.)

For further information and to reserve your spot, please email stephaniealton@cabainc.com.

Title of meeting: The

Loneliness of Law

5:30-7:00 p.m.

These meetings will be led by men on the LHL Committee and are intended to provide an intimate setting for the group leaders and participants to ask questions, provide support and share information with fellow men of the bar.

L AW YERS HELPING L AW YERS A SSISTA NCE PROGR A M Vol. 81 — No. 19 — 7/24/2010

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HOUSE of DELEGATES

Deadline for Delegate Submission SEPTEMBER 1, 2010 Dear County Bar Presidents: Thank you to the County Bar Presidents of: Alfalfa, Beckham, Bryan, Cherokee, Choctaw, Cleveland**, Coal, Cotton, Creek, Custer, Garvin, Grant, Harper, Jackson, Jefferson, Johnston, Kingfisher, Mayes, McClain, McCurtain, Muskogee, Oklahoma**, Pittsburg, Pontotoc, Pushmataha, Roger Mills, Seminole, Tulsa, Washington and Washita counties for submitting your Delegate and Alternate selections for the upcoming OBA Annual Meeting. (**Reported, awaiting election) Listed below are the counties that have not sent their Delegate and Alternate selections to the offices of the Oklahoma Bar Association. Please help us by sending the names of your Delegates and Alternates now. In order to have your Delegates/Alternates certified, mail or fax Delegate certifications to OBA Executive Director John Morris Williams, P.O. Box 53036, Oklahoma City, OK 73152-3036, or Fax: (405) 416-7001.

Adair Atoka Beaver Blaine Caddo Canadian Carter Cimarron Comanche Craig Delaware Dewey

Ellis Garfield Grady Greer Harmon Haskell Hughes Kay Kiowa Latimer LeFlore Lincoln

Logan Love Major Marshall McIntosh Murray Noble Nowata Okfuskee Okmulgee Osage Ottawa

Pawnee Payne Pottawatomie Rogers Sequoyah Stephens Texas Tillman Wagoner Woods Woodward

In accordance with the Bylaws of the Oklahoma Bar Association (5 OS, Ch. 1, App. 2), “The House of Delegates shall be composed of one delegate or alternate from each County of the State, who shall be an active or senior member of the Bar of such County, as certified by the Executive Director at the opening of the annual meeting; providing that each County where the active or senior resident members of the Bar exceed fifty shall be entitled to one additional delegate or alternate for each additional fifty active or senior members or major fraction thereof. In the absence of the elected delegate(s), the alternate(s) shall be certified to vote in the stead of the delegate. In no event shall any County elect more than thirty (30) members to the House of Delegates.”

“A member shall be deemed to be a resident, … of the County in which is located his or her mailing address for the Journal of the Association.”

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A Day with the Judiciary August 13, 2010 – Oklahoma State University Oklahoma City 900 N. Portland Ave -Student Union Bldg.

8:30 Registration & Continental Breakfast

1:30 p.m. Judge Patricia Parrish Oklahoma District Court Observations from the Bench. What does and does not work in the Courtroom?

9 a.m. Chief Judge Vicki Miles-LaGrange Western District of Oklahoma (ethics) 1 hr

2:20 p.m. — Break

9:50 a.m. — Break

2:30 p.m. Judge Niles Jackson Western District of Oklahoma Bankruptcy Court How to Stay out of Trouble in the Bankruptcy Court

10 a.m. Judge Tammy Bass LeSure Oklahoma County District Court Taking a Criminal Case Beginning to End

3:20 p.m. — Break

10:50 a.m. — Break 11 a.m. Judge David Lewis Oklahoma Court of Criminal Appeals – Updates in the Oklahoma Court of Criminal Appeals

3:30 p.m. Judge Steven Hendrickson Tuttle Municipal Court City Violation and Defending our Client

11:50 a.m. — Lunch Break CLE Credit (pending) 6 hours of MCLE Credit including 1 hour of ethics. (pending) Tuition $150 of ABL members- $175 for non members with payment received at least four (4) full business days prior to the seminar, an additional $25 for registrations at the door. Please make payment to the ABL and send c/o Kysha M. Williams of the Williams Law Office P.C. at P.O. Box 66, OKC, OK 73101. Cancellation: Cancellations will be accepted before the seminar date but a $25 fee will be applied within four business days of the seminar. No refunds on or after the seminar date.

Vol. 81 — No. 19 — 7/24/2010

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CLASSIFIED ADS SERVICES

SERVICES

BUSINESS VALUATIONS: Marital Dissolution * Estate, Gift & Income Tax * Family Limited Partnerships * Buy-Sell Agreements * Mergers, Acquisitions, Reorganization & Bankruptcy * SBA/Bank Required. Dual Certified by NACVA and IBA, experienced, reliable, established in 1982. Travel engagements accepted. Connally & Associates, P.C. (918) 743-8181 or bconnally@ connallypc.com.

Want To Purchase Minerals AND OTHER OIL/GAS INTERESTS. Send details to: P.O. box 13557, Denver, CO 80201.

HANDWRITING IDENTIFICATION POLYGRAPH EXAMINATION Board Certified Diplomate — ABFE Life Fellow — ACFE

Court Qualified Former OSBI Agent FBI National Academy

Arthur D. Linville (405) 636-1522 INTERESTED IN PURCHASING PRODUCING & NON-PRODUCING Minerals; ORRI; O & G Interests.

Please contact: Patrick Cowan, CPL, CSW Corporation, P.O. Box 21655, Oklahoma City, OK 73156-1655; (405) 755-7200; Fax (405) 755-5555; E-mail: pcowan@cox.net.

OF COUNSEL LEGAL RESOURCES — SINCE 1992 — Exclusive research & writing. Highest quality: trial and appellate, state and federal, admitted and practiced U.S. Supreme Court. Over 20 published opinions with numerous reversals on certiorari. MaryGaye LeBoeuf (405) 728-9925, marygaye@cox.net.

EXPERT WITNESSES • ECONOMICS • VOCATIONAL • MEDICAL Fitzgerald Economic and Business Consulting Economic Damages, Lost Profits, Analysis, Business/ Pension Valuations, Employment, Discrimination, Divorce, Wrongful Discharge, Vocational Assessment, Life Care Plans, Medical Records Review, Oil and Gas Law and Damages. National, Experience. Call Patrick Fitzgerald. (405) 919-2312.

Brief Writing, Appeals, Research and Discovery Support. Fifteen years experience in civil litigation. Backed by established firm. Neil D. Van Dalsem, Taylor, Ryan, Schmidt & Van Dalsem P.C. (918) 749-5566, nvandalsem@trsvlaw.com.

FREELANCE BOOK LAWYER — with highest rating and with 25+ years’ experience on both sides of the table is available for strategic planning, legal research and writing in all state and federal trial and appellate courts and administrative agencies. Admitted and practiced before the United States Supreme Court. Janice M. Dansby, 405-833-2813, jdansby@concentric.net.

Appeals and litigation support — Expert research and writing by a veteran generalist who thrives on wide variety of projects, big or small.

Cogent. Concise. Nancy K. Anderson, (405) 682-9554, nkanderson@hotmail.com.

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HELPING YOU DELIVER WRITTEN MESSAGES: http://www.mywritingandeditingcoach.com. Individual tutorials and group workshops to foster consistency and excellence in written messages from you or your firm. References posted on website.

TRAFFIC ACCIDENT RECONSTRUCTION INVESTIGATION • ANALYSIS • EVALUATION • TESTIMONY

25 Years in business with over 20,000 cases. Experienced in automobile, truck, railroad, motorcycle, and construction zone accidents for plaintiffs or defendants. OKC Police Dept. 22 years. Investigator or supervisor of more than 16,000 accidents.

Jim G. Jackson & Associates Edmond, OK (405) 348-7930

OKC ATTORNEY HAS CLIENT INTERESTED in purchasing producing and non-producing, large or small, mineral interests. For information, Contact Tim Dowd, 211 N. Robinson, Suite 1300, OKC, OK 73102, (405) 2323722, (405) 232-3746 – fax, timdowd@eliasbooks.com.

OFFICE SPACE DOWNTOWN OKC OFFICE SPACE across street from Oklahoma County Courthouse available. Reception/ waiting area, conference room, kitchen, copy machine, internet access, fax machine and receptionist. $1,000/ month. Contact Sharon (405) 232-8887.

ATTORNEY IN NORMAN LEAVING OFFICE that is furnished, equipped and fully operational. Current lease may be assigned. Beautifully designed, with two secretarial positions, master and associate’s offices and conference room. Small kitchen area and bathroom.

Walk-out balcony and all glass rear walls. Located in Riverside Building, 2600 Van Buren, Norman, OK (I-35 and SH 9 East). Purchaser could take possession and commence business immediately. Cell: (405) 401-5201.

Evening: (405) 573-1913.

POSITIONS WANTED ATTORNEY WITH EXPERIENCE IN SOCIAL SECURITY DISABILITY CLAIMS seeks to join small to mid-size firm in Northeast Oklahoma with diverse practice. Please respond via e-mail: tulsassdiattorney@gmail.com.

POSITIONS AVAILABLE PARALEGAL WITH EXPERIENCE handling social security disability cases needed for busy Tulsa office. Pay commensurate with experience. Bonus for bilingual ability. Send resume to “Box E,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152. All replies kept confidential.

The Oklahoma Bar Journal

Vol. 81 — No. 19 — 7/24/2010

POSITIONS AVAILABLE

POSITIONS AVAILABLE

STATE OF OKLAHOMA, DEPARTMENT OF HUMAN SERVICES Child Support Services Announcement # 10C051BU: Oklahoma Child Support Services has an opening for a full-time attorney, preferably with experience in child support enforcement. This position will be located at the OKDHS-OCSS Claremore Office serving Craig, Mayes and Rogers Counties. The position involves preparation and trial of cases in child support related hearings in district and administrative courts.

Duties will also include consultation and negotiation with other attorneys and customers of the Division. The position will assist office staff with preparation of legal documents and ensure their compliance with ethical considerations. Active membership in the Oklahoma Bar Association is required. This position is a Child Support Enforcement Attorney IV (beginning salary $4669.79 monthly) and may be under-filled as a Child Support Enforcement Attorney III (beginning salary $4067.52 monthly), a Child Support Enforcement Attorney II (beginning salary $3711.05 monthly) or as a Child Support Enforcement Attorney I (beginning salary $3354.59 monthly). Interested individuals must send a cover letter noting announcement number 10-C051BU, resume, and a copy of current OBA card to: Department of Human Services, Attn.: Human Resource Management Division, P.O. Box 25352, Oklahoma City, OK 73125. Application must be received no earlier than 8 a.m. Friday, July 23rd, 2010 and no later than 5 p.m. on Wednesday, August 11, 2010. For additional information, please contact Faye Scott at faye.scott@okdhs.org. The state of Oklahoma is an equal opportunity employer.

DOWNTOWN OKC AV FIRM HAS IMMEDIATE OPPORTUNITY for 7+ year attorney with experience in real property purchase and sale, leasing and related loan transactions. Compensation commensurate with skill set. Strong communication skills, academics and writing skills are a must. Must be a motivated selfstarter with good organizational and people skills. All replies held in confidence. Please send resume to “Box Y,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

STATE OF OKLAHOMA, DEPARTMENT OF HUMAN SERVICES Oklahoma Child Support Services Announcement # 10-C048BU: Oklahoma Child Support Services has an opening for a full-time Managing Attorney with experience in our Claremore Child Support Services Office. This office will service Rogers, Craig and Mayes Counties. This position is the lead legal management position, which must oversee office legal systems and ensure that office staff complies with high standards for quality customer service and ethical guidelines. It requires an in-depth legal knowledge of child support and family law and will be expected to try cases in child support related hearings in district and administrative courts. Duties include consultation and negotiation with other attorneys and customers.

Law office management and child support enforcement experience are preferred. Active membership in the Oklahoma Bar Association is required. The Child Support Enforcement Attorney V, 4224 is the Managing Attorney for the Claremore office (beginning salary $61,571.52 annually) Interested individuals must send a cover letter noting the announcement number 10C048BU, resume, three reference letters, and a copy of current OBA card to: Department of Human Services, Human Resource Management Division, Attn.: HRMD SERVICES, P.O. Box 25352, Oklahoma City, OK 73125.

Applications must be received no earlier than 8 a.m. Friday, July 23, 2010 and no later than 5 p.m. Wednesday, August 11, 2010. For additional information, please contact Faye Scott at faye.scott@okdhs.org. The state of Oklahoma is an equal opportunity employer.

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HALL ESTILL IS ACTIVELY SEEKING A CORPORATE PARALEGAL in its Oklahoma City office. Ideal candidate will have 5-6 years transactional/corporate paralegal experience with real estate and/or banking transactions in a law firm or corporate/banking legal department. Candidate must possess excellent legal research skills, superior proofreading and organizational skills. Strong client service values, writing, analytical and strategic thinking skills required. Must have the ability to setup, organize and maintain all loan collateral files; gather signed documents and prepare closing notebooks for clients; form Oklahoma corporations, prepare filings, draft resolutions and prepare minutes, including those related to annual meetings of shareholders, directors, etc.; and determine corporate/partnership status and locate pertinent information regarding corporations as requested.

Attention to detail is imperative. This is an excellent opportunity to work for a great law firm with competitive salary and bonuses. Qualified applicants, please respond to: kgiddings@hallestill.com.

DIRECTOR OF COURT SERVICES: OKLAHOMA COUNTY is seeking a Director of Court Services Programs, including the Own Recognizance Bond, Conditional Bond Release, and Community Service programs. Candidates should be knowledgeable of the Oklahoma District Court system, and have experience managing a large client base of offenders. This position reports to the three member Board of County Commissioners. Requirements of the job include a BS/BA degree in Criminal Justice or related field, law enforcement, or equivalent combination of education and experience. Experience in the criminal law field or social services dealing with risk assessments are highly desired. Candidates should have excellent communication and presentation skills, with experience in managing a diverse workforce. Proficiency in MS Office applications required. Compensation package includes competitive pay, excellent benefits, and employer paid retirement plan. Pay range is $55,000 - $70,000 dependent on experience. To be considered for this position an Oklahoma County Application must be completed and submitted with resume. Applications will be accepted thru July 30, 2010. You may apply online at www.oklahomacounty.org, or applications can be downloaded and mailed to: Director of Human Resources, Oklahoma County HR Department, 320 Robert S. Kerr, Suite 222, OKC, OK 73102. Oklahoma County is an Equal Opportunity Employer.

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POSITIONS AVAILABLE

POSITIONS AVAILABLE

DOWNTOWN TULSA AV RATED FIRM SEEKS ASSOCIATE with 3 to 10 years civil litigation experience.

Firm offers an excellent compensation package. Salary is commensurate with experience. Strong academic record required. Please send resume, references, writing sample and law school transcript to “Box Z,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

NORTHEAST OKLAHOMA: 3 ATTORNEY AV RATED LAW FIRM is seeking associate with 1 to 10 years of experience. Duties will include work in all areas of the civil law practice. Salary commensurate with experience. Send reply in confidence to “Box I,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, Oklahoma 73152.

KIRK & CHANEY, A MIDSIZE AV DOWNTOWN OKC FIRM, seeks experienced attorney to assist with commercial litigation, family law and insurance defense practice. 4 - 7 years experience required. Some prior experience in insurance defense is essential. Salary is commensurate with experience. Please send resume, law school transcript and two recent writing samples to Kirk & Chaney, attn: Ms. Chris Leigh, 101 Park Avenue, Suite 800, Oklahoma City, OK 73102.

STAFF ATTORNEY – WEATHERFORD: Legal Aid Services of Oklahoma is seeking an attorney for its Weatherford Law Office, serving Alfalfa, Beaver, Beckham, Blaine, Cimarron, Custer, Dewey, Ellis, Harper, Major, Roger Mills, Texas, Washita, Woods, and Woodward counties. The attorney will be responsible for cases involving general law issues. Applicants are required to have a J.D. from an accredited law school and have been admitted to practice in Oklahoma for at least 3 years.

Prefer interest in working with indigent individuals. Salary is according to Legal Aid’s salary administration plan. Compensation includes generous benefits including health, dental, life, pension and more. Applicants MUST complete Legal Aid’s application and should attach a resume to the online application, fax or mailed application. Online submissions are preferred. Review materials needed for the online application or print the application for submission by mail or fax at this link: http://www.oklaw.org/link.cfm?2879. Submissions of your completed application and a resume by mail or fax: Bud Cowsert, Director of Operations, 2915 Classen Blvd., Suite 500, Oklahoma City, OK 73106 or fax to (405) 488-6111.

ASSOCIATE WITH 5-8 YEARS CIVIL DEFENSE LITIGATION EXPERIENCE needed by AV-rated Tulsa firm.

Insurance defense a plus. Very busy, fast-paced, expanding office offering competitive salary, health/life insurance, 401k, etc. Send resume and writing sample (10 pg. max) in confidence via email to legalhrmgr@aol.com.

RHODES, HIERONYMUS, JONES, TUCKER & GABLE has positions for lawyers with 2+ years of insurance defense or significant trial experience. We offer a multistate practice, competitive compensation and a positive team-centered work environment. If you are ready to work with cases that will challenge you to be your very best, we would like to meet you. Contact Kerry Lewis, klewis@rhodesokla.com, (918) 582-1173, Ste 400 Oneok Plaza, Tulsa, OK 74103.

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ANGELA D. AILLES & ASSOCIATES, In-House counsel for State Farm Insurance Companies, has openings for an attorney, paralegal and legal secretary. Attorney candidates must have a minimum of 5 years personal injury litigation experience; insurance defense litigation is preferred. Candidates must have prior jury trial experience, be motivated to improve and learn new skills, and exhibit strict adherence to professionalism and ethical behavior. Paralegal job duties include legal research, drafting legal documents in complex cases, researching and investigating medical issues, responding to discovery requests, proactively identifying new areas of discovery and applying knowledge of medical terminology, injuries and treatment, and assisting attorneys with trial preparation. Legal secretary candidates must have prior civil litigation experience, excellent organizational skills, high level of familiarity with Microsoft Word and Adobe, strong written and verbal communication skills, strong grammar, punctuation, proofreading skills, and ability to work in high paced, time-sensitive environment. All candidates must be able to work efficiently and effectively with an electronic docketing system and paperless office, and in a team environment. State Farm offers an excellent salary and benefits package. If interested, please go to www.statefarm.com/careers - Become a State Farm Employee, search for Job #22227, 22228, 22229, and submit your online application. EOE. CORPORATE ATTORNEY: OUR CORPORATE LAW TEAM has an immediate opening in Oklahoma City for an attorney with 3-5 years experience in contract negotiation and preparation. A qualified candidate has knowledge of insurance, administrative and agency law. Skill requirements include analytical and problemsolving skills, legal research and writing skills; ability to meet deadlines, work independently and effectively with internal and outside clients. Please send resume, references and law school transcript to “Box B,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

THE MASON AND OLSON LAW FIRM seeks a fulltime attorney. Responsibilities will include preparing briefs, motion practice, discovery support and conducting legal research. Firm has general civil practice in state and federal courts with an emphasis on personal injury (representing both plaintiffs and defendants) and eminent domain litigation. 1 - 3 plus years experience. Salary and bonuses commensurate with experience. Submit resume and writing samples containing a Motion for Summary Judgment, Motion In Limine and/or Motion to Compel to: Jennifer Bruner, jbruner@masonolsonlaw.com, 2516 Northwest Expressway, Oklahoma City, OK, 73139, (405) 600-9300.

The Oklahoma Bar Journal

Vol. 81 — No. 19 — 7/24/2010

POSITIONS AVAILABLE

POSITIONS AVAILABLE

THE LAW FIRM OF LOVE, BEAL & NIXON, P.C. is accepting resumes for an associate attorney position for the firm’s Northwest Oklahoma City practice. The practice is primarily creditor rights/collection related.

Please send resumes and salary requirements to resumes@lbnlegal.com.

ASSOCIATE ATTORNEY SOUGHT – Broken Arrow firm seeking associate attorney with broad interests and experience, especially family law. Compensation terms are flexible and commensurate with experience.

Send resume and references to Ross & Eudey, 106 North Main, Broken Arrow, OK 74012.

EXPERIENCED PERSON NEEDED for Office Mgr.\ Bookkeeper\Legal Asst.\Runner for small downtown law office. Must know TABS billing, $25,000-$30,000 plus benefits. Send resume to Joaniehome@cox.net.

CLASSIFIED INFORMATION

BUSINESS LITIGATION ATTORNEY-OKLAHOMA CITY: Well established OKC firm seeks 10+ years or more exp. stand-up trial attorney; Commercial Litigation, Jury trials, Federal Court exp. required. Very lucrative comp. plan. Please e-mail Word resume, trial exp. and salary requirements to: tamar@tmsrecruiting.com.

FRED BOETTCHER LAW HAS AN OPENING for a social security disability assistant for their north Oklahoma City office. Assistant will handle a broad range of secretarial duties and must be adept at working with a wide variety of clients. Must have experience in Microsoft Office products. Ability to comprehend medical records a plus. Salary is commensurate with experience, benefits included. All inquiries will be kept confidential. Please e-mail resume and references to katherine@boettcherlawoffice.com.

Vol. 81 — No. 19 — 7/24/2010

CLASSIFIED RATES: One dollar per word per insertion. Minimum charge $35. Add $15 surcharge per issue for blind box advertisements to cover forwarding of replies. Blind box word count must include “Box ____ , Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.” Display classified ads with bold headline and border are $50 per inch. See www.okbar.org for issue dates and Display Ad sizes and rates.

DEADLINE: Tuesday noon before publication. Ads must be prepaid. Send ad (e-mail preferred) in writing stating number of times to be published to: Jeff Kelton, Oklahoma Bar Association P.O. Box 53036, Oklahoma City, OK 73152 E-mail: jeffk@okbar.org Publication and contents of any advertisement is not to be deemed an endorsement of the views expressed therein, nor shall the publication of any advertisement be considered an endorsement of the procedure or service involved. All placement notices must be clearly nondiscriminatory.

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The Oklahoma Bar Journal

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