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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 5

OBA Closed – Independence Day Observed

7

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

9

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

14

OBA Appellate Practice Section Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Allison Thompson (405) 840-1661

15

OBA Access to Justice Committee Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Kade A. McClure (580) 248-4675

OBA Legal Intern Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact: H. Terrell Monks (405) 733-8686

16

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

17

OBA Title Examination Standards Committee Meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Kraettli Epperson (405) 848-9100

19

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

21

Oklahoma Council of Administrative Hearing Officials; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Carolyn Guthrie (405) 271-1269 Ext. 56212

22

OBA Bench & Bar Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Jack Brown (918) 581-8211

OBA Board of Governors Chinese Delegation Reception; 6:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: John Morris Williams (405) 416-7000 For more events go to www.okbar.org/calendar

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Oklahoma Bar Association

table of

contents July 3, 2010 • Vol. 81

• No. 18

page 1483 Events Calendar 1486 Index to Court Opinions 1487 Supreme Court Opinions 1520 Court of Criminal Appeals Opinions 1522 OBA Board of Governors Vacancies and Nominating Petitions

1526 Oklahoma Legislative Report 1530 Disposition of Cases Other Than by Publication

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Index To Opinions Of Supreme Court 2009 OK 29 IN THE MATTER OF THE APPLICATION FOR REINSTATEMENT OF: JAMI LYNN STEWART a/k/a JAMI WATTS, TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS SCBD 5444.

SCAD 2010-46..................................................................................................................................... 1487 2010 OK 49 IN THE MATTER OF THE APPLICATION FOR REINSTATEMENT OF: DAVID WALTER DEAL, TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS SCBD No. 5597................................................... 1487 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................................................................................................................ 1487 2010 OK 50 JORDAN J. JOBE, Plaintiff/Appellee v. STATE OF OKLAHOMA ex rel DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant No. 106,504.............................. 1488 2010 OK 48 Johnny and Patty Lafalier and Missy Beets, individually and on behalf of residents and property owners and former residents and property owners of Picher, Oklahoma, Plaintiffs/Appellants, v. The Lead-Impacted Communities Relocation Assistance Trust, Defendant/Appellee. No. 107,833.................................................................... 1492 2010 OK 47 EAGLE BLUFF, L.L.C., Plaintiff/Appellee, v. PATRICK TAYLOR and MARSHALETA M. TAYLOR, Defendants/Appellants. No. 105,982.................................................. 1504 2010 OK 51 Rural Water Sewer and Solid Waste Management, District No.1, Logan County, Oklahoma, an agency and legally constituted authority of the State of Oklahoma, Plaintiff/Counter-Defendant/Appellee, v. City of Guthrie, an Oklahoma Municipality; the Guthrie Public Works Authority, a public trust, Defendants/Counter-Claimants/Third-Party Plaintiffs/Appellants, v. Department of Agriculture, Third-Party Defendant/Appellee, and Community Program Loan Trust 1987A, a Massachusetts Business Trust, Third-Party Defendant. No. 107,468......................................... 1509

Index To Opinions Of Court of Criminal Appeals 2010 OK CR 13 JACK AARON LOGSDON, Appellant, v. STATE OF OKLAHOMA, Appellee, Case No. F-2008-78........................................................................................................... 1520

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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)

2009 OK 29 IN THE MATTER OF THE APPLICATION FOR REINSTATEMENT OF: JAMI LYNN STEWART a/k/a JAMI WATTS, TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS SCBD 5444. SCAD 2010-46. June 23, 2010 ORDER Pursuant to the authority of Article VII § 6 of the Oklahoma Constitution and 20 O.S.2001 §1104B, the Chief Justice makes the following assignment.

Active Retired Justice, Robert E. Lavender is hereby assigned to sit by designation as Special Justice on the Supreme Court in lieu of Justice Rudolph Hargrave who certified his disqualification.

The Clerk of the Supreme Court shall file this Order on the Supreme Court’s Administrative Docket, and in Okla. Sup. Ct. No. SCBD 5444.

DONE BY ORDER OF THE SUPREME COURT THIS 23rd DAY OF JUNE, 2010. /s/ James E. Edmondson CHIEF JUSTICE 2010 OK 49 IN THE MATTER OF THE APPLICATION FOR REINSTATEMENT OF: DAVID WALTER DEAL, TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION AND TO THE ROLL OF ATTORNEYS SCBD No. 5597. June 24, 2010

1. Petitioner has met all the procedural requirements necessary for reinstatement in the Oklahoma Bar Association as set out in Rule 11 of the Rules Governing Disciplinary Proceedings, 5 O.S. 2001, ch. 1, app. 1-A; 2. Petitioner has established by clear and convincing evidence that he possesses the good moral character which entitles him to be admitted to the Oklahoma Bar Association; 3. Affidavits were presented showing that the petitioner has not engaged in the unauthorized practice of law in the State of Oklahoma during the period of his resignation; 4. Petitioner possesses the competency and learning in the law required for admission to practice law in the State of Oklahoma. ¶2 IT IS THEREFORE ORDERED that the Petition for Reinstatement be granted. ¶3 IT IS FURTHER ORDERED that Petitioner shall pay the costs associated with this proceeding in the amount of $361.02.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 24TH DAY OF JUNE, 2010. /s/ James E. Edmondson CHIEF JUSTICE ALL JUSTICES CONCUR 2010 OK 44

ORDER ¶1 The petitioner, David Walter Deal, was stricken from the roll of attorneys in January 2009, pursuant to Applicant’s request and not as a result of any form of disciplinary action.

The petitioner seeks reinstatement to the Oklahoma Bar Association by Petition for Reinstatement filed January 4, 2010. The Trial Panel recommended in their report that reinstatement

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be granted. Upon consideration of the matter, we find:

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 subdivi-

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sion (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. (d) Review of Online District Court Dockets The court may review information found on Oklahoma district court appearance 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.

Edmondson, C.J., Taylor, V.C.J., Hargrave, Opala, Kauger, Winchester, Colbert and Reif, JJ., concur Watt, J., not voting 2010 OK 50 JORDAN J. JOBE, Plaintiff/Appellee v.

STATE OF OKLAHOMA ex rel DEPARTMENT OF PUBLIC SAFETY, Defendant/Appellant No. 106,504. June 29, 2010 ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. IV ¶0 The Department of Public Safety revoked the appellee’s driver’s license for a period of three years pursuant to the mandate of 47 O.S.Supp.2006 §6-205.1 because he was subject to three license revocations within a five-year period. The District Court, Cleveland County, Tom Lucas, Judge, reduced the revocation period on appeal from three years to one year, determining that the first revocation commenced more than five years before motorist’s arrest for the third DUI offense. The Court of Civil Appeals affirmed the one-year revocation. On certiorari granted upon the Department’s petition, THE COURT OF CIVIL APPEALS’ OPINION IS VACATED, THE DISTRICT COURT’S ORDER IS REVERSED AND THE ORDER ENTERED BY THE COMMISSIONER OF THE DEPARTMENT OF PUBLIC SAFETY STANDS REINSTATED. A. DeAnn Taylor, Deputy Chief Legal Counsel, Department of Public Safety, Oklahoma City, Oklahoma for Defendant/Appellant Wiley L. Williams, Oklahoma City, Oklahoma, and Rick Powell, Foshee and Yaffe, Oklahoma City, Oklahoma for Plaintiff/Appellee1 OPALA, J.

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

¶1 The dispositive issue on certiorari is whether the Court of Civil Appeals erred when it affirmed the district court’s order that reduced a driver’s license revocation period from three years to a single year. We answer in the affirmative.

DONE BY THE SUPREME COURT IN CONFERENCE THIS 7TH DAY OF JUNE, 2010.

THE ANATOMY OF LITIGATION

/s/ James E. Edmondson CHIEF JUSTICE 1488

I ¶2 The Department of Public Safety (DPS) revoked Jordan J. Jobe’s (motorist, licensee or

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Jobe) driver’s license for a three-year period for driving under the influence of alcohol (DUI) following his third alcohol-related offense committed within five years. Motorist claimed a one-year revocation should have been applied because the third DUI arrest occurred more than five years after the first “revocation commenced” within the meaning of that phrase in 47 O.S.Supp.2006 §6-205.1.2 ¶3 The quoted phrase is central to the controversy before us. We are called upon to ascertain when a revocation takes effect under the terms of §6-205.1 for the purpose of computing the length of the revocation period applicable to a motorist’s 2007 DUI offense. ¶4 The critical facts are undisputed. Motorist’s first DUI arrest took place on July 30, 2002. He refused to submit to a state chemical test. On July 31, 2002 his driver’s license was seized and he was served an officer’s affidavit and notice of revocation. The officer’s affidavit was usable as a temporary license with full driving privileges.3 Motorist timely requested an administrative hearing which operated to stay the revocation order.4 He (a) withdrew the request prior to the hearing, (b) agreed to an 180-day revocation beginning October 22, 2002 and (c) accepted from DPS a restricted driver’s license.5 Jobe enjoyed full driving privileges from the date of his arrest through October 21, 2002. ¶5 Motorist’s second DUI arrest occurred on February 18, 2003. A mandatory one-year revocation of his driving privilege followed effective March 20, 2003. He was issued another restricted driver’s license which remained in effect during the entire revocation period. ¶6 The third DUI arrest occurred August 30, 2007. When motorist failed the blood alcohol test the next day,6 his driver’s license was seized and he was served an officer’s affidavit and notice of revocation.7 His timely request for an administrative hearing operated to stay DPS’s revocation order.8 Following the hearing on November 9, 2007, DPS sustained the threeyear revocation of Jobe’s driving privilege and ordered that revocation take effect December 10, 2007.9 ¶7 Motorist brought an appeal to the district court only from that portion of the November 9 order which revoked his driving privilege for a period of three years.10 He argued the threeyear revocation would apply only if the 2002 revocation commenced within five years of Vol. 81 — No. 18 — 7/3/2010

his 2007 DUI arrest. According to motorist, the one-year revocation applies in this case because his first license revocation occurred on July 31, 2002, more than five years before his third arrest on August 30, 2007. In support of his position motorist relies on (1) the seizure of his driver’s license on July 31, 2002, (2) the revocation notice in the arresting officer’s affidavit and (3) the issuance of a temporary driver’s license on that date. DPS argued the license revocation in question did not commence until October 22, 2002, the date when the restrictions on his driving privilege first took effect. ¶8 The trial court agreed the revocation period should be reduced to one year. According to its decision, a revocation “commences” either at the time of arrest or no later than thirty days after the “notice of revocation” is served on licensee. The trial court found that DPS records incorrectly show October 22, 2002 as the commencement date of the first revocation. The trial court changed the date for the beginning of the third revocation period from December 10, 2007 to September 30, 2007 (i.e., thirty days from the date motorist was served notice of revocation following his third arrest on August 30, 2007). ¶9 DPS brought an appeal from the trial court’s order. It claimed the trial court erred in finding (a) that it had jurisdiction to determine the commencement date of the first revocation and in finding (b) that revocation commences either at time the arresting officer serves the motorist notice of revocation or, at the latest, 30 days thereafter. DPS further argued that the manner in which the trial court construed relevant statutes operates to render them constitutionally infirm.

The Court of Civil Appeals’ Opinion And The Parties’ Arguments on Certiorari ¶10 The Court of Civil Appeals (COCA) (a) affirmed the trial court’s reduction of the revocation period from three years to a single year, but (b) vacated that part of its order which determined the commencement date of the 2002 revocation. According to COCA, Jobe’s first DUI-related revocation commenced July 31, 2002, the date he was required to surrender his driver’s license, which occurred more than five years before the arrest date that brought about the 2007 revocation. COCA held the trial court had jurisdiction to hear motorist’s appeal from the 2007 revocation and found unpersua-

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sive DPS’s argument that the trial court’s construction of the relevant statutes renders them constitutionally infirm. ¶11 DPS claims COCA has misinterpreted the law by erroneously determining that a license revocation commences when a person is required to surrender his driver’s license, even though the actual termination effect may be stayed during the appeal process. DPS urges that in this case the critical period would be calculated from October 22, 2002 (the date when Jobe’s driving privileges became restricted) to August 30, 2007 (the arrest date preceding his third revocation). The three-year revocation period would hence apply because the first (2002) revocation took effect within five years of the third (2007) arrest.

II STANDARD OF REVIEW ¶12 The dispositive issue on certiorari presents a question of statutory construction: when does a driver’s license revocation take effect (i.e. “commence” within the meaning of 47 O.S.Supp.2006 §6-205.1(A)(2)(a) and (3)(a)11 (the statute in effect at the time of the 2007 revocation) for the purpose of ascertaining the length of the revocation period imposable for multiple DUI-related offenses occurring within a five-year period. ¶13 Statutory construction presents a question of law12 which stands before us for de novo review.13 In that review we have plenary, independent and non-deferential authority to determine whether the trial court erred in its application of the law.14 The primary goal of statutory construction is to ascertain and give effect to legislative intent.15 That intent is first divined from the language of a statute.16 If a statute is plain and unambiguous, it will not be subjected to judicial construction, but will receive the effect its language dictates.17 Only when the intent cannot be ascertained from a statute’s text, as when ambiguity or conflict (with other statutes) is shown to exist, may rules of statutory construction be invoked for use.18 III THE REVOCATION PERIOD OF A DRIVER’S LICENSE BEGINS (i.e.

COMMENCES) PURSUANT TO THE TERMS OF 47 O.S.SUPP.2006 §6-205.1 WHEN ADMINISTRATIVE ACTS OCCUR WHICH IMPOSE ACTUAL LOSS OF (OR 1490

RESTRICTIONS ON) THE LICENSEE’S DRIVING PRIVILEGE A. The Statutory Scheme Governing Motorist’s 2007 Driver’s License Revocation ¶14 When a valid driver’s license has been surrendered or seized for an alcohol-related offense under the implied consent laws, the arresting officer is required to issue to the arrestee a dated receipt which serves as a temporary driver’s license. 47 O.S.Supp.2005 §754.19 The receipt operates as a temporary driver’s license for a period of 30 days and constitutes DPS’s “notice of revocation of driving privilege ... effective in thirty (30) days.”20 If an arrestee’s blood alcohol content is over the legal limit or if he (or she) refuses to submit to a breath or blood alcohol test, DPS is required to revoke the driver’s license for a period provided by the terms of §6-205.1.21 ¶15 According to the pertinent terms of 47 O.S.Supp.2006 §6-205.1(A)(2) and (3), the statute in effect at the time of the critical 2007 arrest,22 a revocation shall be for a period of one year if within five years preceding the date of arrest a “prior revocation commenced” or for a period of three years if, within a fiveyear period, “two or more prior revocations commenced.” ¶16 The Legislature defines “revocation of driving privilege” as “[t]he termination by formal action of the Department of a person’s privilege to operate a motor vehicle on the public highways. Such action shall include the requirement of the [licensee’s] surrender to the Department of said person’s driver license.”

47 O.S.2001 §1-155 (emphasis added). ¶17 A timely written request for an administrative hearing will operate to stay the DPS revocation order until disposition is effected.23 The revocation order may be stayed or superseded on appeal to the district court by the licensee’s posting of a bond. 47 O.S.Supp.2006 §6-211(K). Prior to the administrative hearing, DPS may modify its revocation order in hardship cases by imposing certain restrictions on the driving privilege. 47 O.S.Supp.2005 §754.1.

B. The Point in Time When Motorist’s Driving Privilege Is Legally Lost or Restricted Is the Point When A License Revocation Becomes

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Effective Pursuant to the terms of 47 O.S.Supp.2006 §6-205.1

tion pursuant to the terms of 47 O.S.Supp.2006 §6-205.1

¶18 Based on our review of the statutory scheme that governs drivers’ license revocations in implied consent cases, we conclude that the Legislature intended the revocation period to begin and become effective at the point in time when the licensee begins to suffer the actual loss of driving privilege or from the imposition of restrictions on the driving privilege during the applicable revocation period.

Administrative acts by which a licensee is arrested for DUI, given notice of the revocation’s effective date and is issued a temporary driver’s license upon the seizure or surrender of a valid driver’s license are but preliminary steps to the actual loss of a licensee’s unrestricted permission to drive a motor vehicle on the public highways. These mark points in time that stand anterior to the actual loss of driving privilege. They cannot be counted for the purpose of determining the beginning date of one’s prior revocation pursuant to 47 O.S.Supp.2006 §6-205.1.

IV

¶19 If either an administrative or a judicial proceeding should prolong the point in time when a revocation becomes effective, the license is not deemed revoked until the effected stay expires and the licensee loses the driving privilege under the affected license or a new driver’s license is issued that is burdened by statutory restrictions during the revocation period. ¶20 For the purpose of determining the effective date of the motorist’s 2002 DUI revocation, we can count only the time during which the licensee suffers from the loss of or the imposition of restrictions on his driving privilege.

DPS’s July 31, 2002 notice of revocation was to be effective in 30 days. By motorist’s timely request for an administrative hearing a stay stood interposed by operation of law to suspend the effectiveness of the statutory 180-day revocation period. Motorist’s revocation thus became effective on October 22, 2002 by his own act of withdrawing the hearing request, together with the agreement to a 180-day revocation beginning October 22, 2002 as well as by acceptance of a restricted driver’s license on that date. Because the first revocation became effective October 22, 2002 and the arrest for the third revocation occurred on August 30, 2007, the latter revocation took place within the statutory five-year period authorized by law for imposition by DPS of a three-year revocaVol. 81 — No. 18 — 7/3/2010

SUMMARY ¶21 A revocation period, pursuant to the terms of 47 O.S.Supp. 2006 §6-205.1, begins and becomes effective at the point in time when the licensee suffers from the actual loss of driving privilege or from the imposition of restrictions on the licensee’s driving privilege during an applicable revocation period. If the point in time when a revocation is effective is prolonged either by an administrative or a judicial proceeding, the license is not deemed revoked until the stay expires and the licensee loses the driving privilege under the license or a new driver’s license is issued subject to statutory restrictions. ¶22 Because motorist’s first DUI revocation became effective October 22, 2002 and the arrest date preceding his third DUI revocation took place August 30, 2007, the latter date occurred within the statutory five-year period for authorized imposition of a three-year revocation pursuant to the terms of 47 O.S.Supp.2006 §6-205.1. ¶23 The Court of Civil Appeals’ opinion is vacated, the district court’s order is reversed and the order entered by the Commissioner of the Department of Public Safety stands reinstated. ¶24 ALL JUSTICES CONCUR 1. Identified herein are only those counsel for the parties who have entered an appearance in this cause (as required by Okla.Sup.Ct.R. 1.5(a), 12 O.S.2001, Ch. 15, App.1) and whose names appear on the certiorari briefs.

2. The pertinent terms of the statute in effect at the time of Jobe’s third DUI arrest, 47 O.S.Supp.2006 §6-205.1(A)(1-3), provided for three revocation periods.: A. The driving privilege of a person who is convicted of any offense as provided in paragraph 2 or 6 of subsection A of Section 6-205 of this title, or a person who has refused to submit to a test or tests as provided in Section 753 of this title, or a person whose alcohol concentration is subject to the provisions of Section 754 of this title, shall be revoked or denied by the Department of Public Safety for the following period, as applicable: 1. The first license revocation pursuant to paragraph 2 of subsection A of Section 6-205 of this title or to Section 753 or 754 of this title shall be for one hundred eighty (180) days, which may be modified; provided, any modification under this paragraph shall apply to Class D motor vehicles only; 2. A revocation pursuant to paragraph 2 of subsection A of Section 6-205 of this title, or to Section 753 or 754 of this title shall be for a period of one (1) year if within five (5) years preceding the date of arrest relating thereto, as shown by the records of the Department: a. a prior revocation commenced pursuant to paragraph 2 or 6 of subsection A of Section 6-205 of this title, or to Section 753 or 754 of this title. Such period shall not be modified, or ***

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3. A revocation pursuant to paragraph 2 of subsection A of Section 6-205 of this title, or to Section 753 or 754 of this title shall be for a period of three (3) years if within five (5) years preceding the date of arrest relating thereto, as shown by the records of the Department: a. two or more prior revocations commenced pursuant to paragraph 2 or 6 of subsection A of Section 6-205 of this title, or to Section 753 or 754 of this title. Such period shall not be modified, or (emphasis supplied) 3. The text of 47 O.S.2001 § 754 (A-C) (the statute in effect at the time of the 2002 revocation) is identical to 47 O.S.Supp.2005 §754 (AC), infra note 7.

4. The text of 47 0.S. 2001 § 754(D) (the statute in effect at the time of the 2002 revocation) is substantially identical to 47 O.S.Supp.2005 §754(D), infra note 8.

5. Jobe’s driving privileges were restricted in accordance with the terms of 47 O.S.2001 §754.1, the statute then in effect.

6. Licensee’s arrest occurred shortly before midnight on August 30, 2007. He failed the blood alcohol test early the next morning, at which time his license was seized and he was given notice of his license revocation.

7. The pertinent terms of 47 O.S.Supp.2005 §754(A-C) provide: A. Any arrested person who has refused to submit to a breath or blood test shall immediately surrender his or her driver license, permit or other evidence of driving privilege to the arresting law enforcement officer.

B. If the evidence of driving privilege surrendered to or seized by the officer has not expired and otherwise appears valid, the officer shall issue to the arrested person a dated receipt for that driver license, permit or other evidence of driving privilege on a form prescribed by the Department of Public Safety. This receipt shall be recognized as a driver license and shall authorize the arrested person to operate a motor vehicle for a period not to exceed thirty (30) days. The receipt form shall contain and constitute a notice of revocation of driving privilege by the Department effective in thirty (30) days. The evidence of driving privilege and a copy of the receipt form issued to the arrested person shall be attached to the sworn report of the officer and shall be submitted by mail or in person to the Department within seventy-two (72) hours of the issuance of the receipt. The failure of the officer to timely file this report shall not affect the authority of the Department to revoke the driving privilege of the arrested person.

C. Upon receipt of a written blood or breath test report reflecting that the arrested person, if under twenty-one (21) years of age, had any measurable quantity of alcohol in the person’s blood or breath, or, if the arrested person is twenty-one (21) years of age or older, a blood or breath alcohol concentration of eight-hundredths (0.08) or more, accompanied by a sworn report from a law enforcement officer that the officer had reasonable grounds to believe the arrested person had been operating or was in actual physical control of a motor vehicle while under the influence of alcohol as prohibited by law, the Department shall revoke or deny the driving privilege of the arrested person for a period as provided by Section 6-205.1 of this title. Revocation or denial of the driving privilege of the arrested person shall become effective thirty (30) days after the arrested person is given written notice thereof by the officer as provided in this section or by the Department as provided in Section 2-116 of this title. (emphasis added) 8. The terms of Title 47 0.S. Supp.2005 § 754(D) provide in relevant part: Upon the written request of a person whose driving privilege has been revoked or denied by notice given in accordance with this section or Section 2-116 of this title, the Department shall grant the person an opportunity to be heard if the request is received by the Department within fifteen (15) days after the notice. . . . A timely request shall stay the order of the Department until the disposition of the hearing unless the person is under cancellation, denial, suspension or revocation for some other reason. The Department may issue a temporary driving permit pending disposition of the hearing, if the person is otherwise eligible. If the hearing request is not timely filed, the revocation or denial shall be sustained.

9. For the statutory three-year revocation see the provisions of 47 O.S.Supp.2006 §6-205.1(A)(2), supra note 2. Licensee had full driving privileges during the pendency of the administrative proceedings.

10. 47 O.S.Supp.2005 §755; 47 O.S.Supp.2006 §6-211.

11. For the pertinent terms of 47 O.S.Supp.2006 §6-205.1 see supra note 2.

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12. Blitz U.S.A., Inc. v. Oklahoma Tax Com’n, 2003 OK 50, ¶ 14, 75 P.3d 883, 888; Mangrum v. Fensco, Inc., 1999 OK 78, ¶ 4, 989 P.2d 461, 462; Wilson v. Wilson, 1999 OK 65, ¶ 3, 987 P.2d 1210, 1212.

13. Yocum v. Greenbriar Nursing Home, 2005 OK 27, ¶ 9, 130 P.3d 213, 219; Cooper v. State ex rel Dep’t. of Public Safety, 1996 OK 49,¶ 10, 917 P.2d 466, 468.

14. The appellate court has the plenary, independent and nondeferential authority to reexamine a trial court’s legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, ¶5, n.1, 932 P.2d 1100, 1103 n.1; State ex rel. Oklahoma Bar Ass’n v. Spradling, 2009 OK 39, ¶4 , 213 P.3d 570, 573; Manley v. Brown, 1999 OK 79, ¶22, n.30, 989 P.2d 448, 455 n.30.

15. Yocum v. Greenbriar Nursing Home, supra note 13 at ¶9, at 219.

16. Yocum v. Greenbriar Nursing Home, supra note 13 at ¶9, at 219; Nealis v. Baird, 1999 OK 98, ¶55, 996 P.2d 438, 460; TXO Production Corp. v. Okla. Corp. Com’n, 1992 OK 39, ¶7, 829 P.2d 964, 969.

17. Yocum v. Greenbriar Nursing Home, supra note 13, at ¶ 9, at 219; Ross v. Peters, 1993 OK 8, ¶ 9, n.17, 846 P.2d 1107, 1119, n. 17; TRW/Reda Pump v. Brewington, 1992 OK 31, ¶ 5, 829 P.2d 15, 20.

18. Yocum v. Greenbriar Nursing Home, supra note 13, at ¶9, at 219; Cox v. Dawson, 1996 OK 11, ¶6, 911 P.2d 272, 276.

19. For the pertinent text of 47 O.S.Supp.2005 §754 see supra note 7.

20. For the terms of 47 O.S.Supp.2005 §754(B) see supra note 7 (emphasis added).

21. For the pertinent terms of 47 O.S.Supp.2006 §6-205.1 see supra note 2; see also 47 O.S.Supp.2005 §754(C), supra note 7.

22. For the terms of 47 O.S.Supp.2006 §6-205.1(A)(2) and (3) see supra note 2.

23. For the terms of 47 O.S.2001 §754(D) see supra note 8.

2010 OK 48 Johnny and Patty Lafalier and Missy Beets, individually and on behalf of residents and property owners and former residents and property owners of Picher, Oklahoma, Plaintiffs/Appellants, v. The Lead-Impacted Communities Relocation Assistance Trust, Defendant/Appellee.

No. 107,833. June 22, 2010 ON APPEAL FROM THE DISTRICT COURT OF OTTAWA COUNTY, The Honorable J. Dwayne Steidley, Presiding ¶0 The plaintiffs filed a petition in the district court of Ottawa County alleging that the Lead-Impacted Communities Relocation Assistance Trust, the purpose of which is to administer relocation assistance funds under 27A O.S.Supp.2008, §§ 2201-2207, had undervalued their property and that the Trust had violated the Open Meeting Act, 25 O.S.2001, §§ 301-314. The plaintiffs also alleged that 27A O.S.Supp.2008, § 2203(M) is unconstitutional. The Trust responded that under 27A O.S.Supp.2008, § 2205, the plaintiffs could not complain about underevaluations of their property and the Trust had not violated the Open Meeting Act. The district judge found that 27A O.S.Supp.2008, § 2205, was an assertion of the state’s sovereign immunity and that the Trust had not violated the Open Meeting Act. This Court retained the appeal for disposition.

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AFFIRMED IN PART; REVERSED IN PART; REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS. John Wiggins, Emily N. Kitch, Wiggins Sewell & Ogletree, and Jeff D. Marr, Marr Law Firm, Oklahoma City, Oklahoma, for the appellants.

Scott D. Boughton, Assistant Attorney General, Oklahoma Attorney General’s Office, Oklahoma City, Oklahoma, for the appellee.

TAYLOR, V.C.J. ¶1 The questions presented in this appeal are (1) whether section 2205 of the Lead-Impacted Communities Relocation Assistance Act1 is unconstitutional, (2) whether section 2203(M) of the Lead-Impacted Communities Relocation Assistance Act is unconstitutional, and (3) whether section 307(D) of the Oklahoma Open Meeting Act (Open Meeting Act)2 authorizes a public body subject to its provisions to allow anyone who does not stand to profit from a purchase or appraisal of real property into an execution session wherein the purchase or appraisal is discussed. We find that the plaintiffs have failed to show that sections 2205 and 2203(M) of the Lead-Impacted Communities Relocation Assistance Act are unconstitutional.

We also find that section 307(D) of the Open Meeting Act restricts attendance in executive sessions to the members of the public body, the public body’s attorney, and the public body’s immediate staff when the body is discussing the purchase or appraisal of real property.3 I. LEAD-IMPACTED COMMUNITIES RELOCATION ASSISTANCE ACT AND TRUST AGREEMENT ¶2 The geographical area around and including Picher is known as the Tar Creek Superfund Site (Tar Creek).4 On September 8, 1983, Tar Creek was placed on the National Priorities List as an area that posed a significant public health or environmental risk, or both.5 The area had substantial lead and zinc contamination.6 In response to the elevated health risk, particularly to children six years of age and under who resided in the contaminated area, the Oklahoma Legislature passed the Lead-Impacted Communities Relocation Assistance Act (Act), and, with the Governor’s approval, it became law.7 ¶3 The 2004 legislation created a relocation assistance plan for renters and property owners with children six years of age and under.8 Because a subsidence risk9 was identified in Vol. 81 — No. 18 — 7/3/2010

2006, the Legislature extended the assistance plan to most renters and home owners in an area of greatest subsidence risk as well as to commercial businesses, nonprofit organizations, and others.10 Relocation assistance includes purchase of a home owner’s property at an amount comparable to housing elsewhere in the county, a payment of an amount up to twelve months rent for comparable housing elsewhere in the county, and reimbursement for moving expenses.11 In exchange, those accepting the assistance cannot reside within one-half mile of the area until the Commissioner of Health determines it to be safe for habitation.12 Participation in the Act’s assistance program is completely voluntary, and “[n]o person shall be required to relocate under the provisions of” the Act.13 ¶4 The assistance program is funded, in part, by the Oklahoma Department of Environmental Quality (ODEQ) making grants from appropriated monies to a public trust.14 The Legislature specifically provided that the Trust “shall be subject to the Oklahoma Open Meeting Act and the Oklahoma Open Records Act.”15 Further a majority of trustees cannot come from the most affected area, and any trustee having a direct pecuniary interest in any pending decision cannot participate in the decision under the Act’s terms.16 ¶5 Section 2205 of the Act provides: A. Neither the enactment of this act nor the grant of funds to a trust shall create any property right or right in action. The courts shall have no jurisdiction to entertain any action against a recipient trust, the State of Oklahoma, their officers or agents founded on a claim that the claimant should have received different or better treatment from the trust.

B. The determinations made by the trust pursuant to this relocation assistance program including, without limitation, determinations as to what constitutes the most affected area of the site, the area of greatest subsidence risk, the average rental cost of comparable housing, the average cost of comparable properties, the eligibility of any person for assistance, and the determination of the proper amount of such assistance, if any, shall be committed to the sole discretion of the trust based on the information available to it and shall not be subject to judicial review.

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¶6 At least in part due to a tornado which hit Picher on May 10, 2008, damaging a large number of houses and completely destroying others, the Legislature again amended the Act.17 The most significant change made by the 2008 legislation for purposes of the issues presented here is the addition of subsection M in section 2203. Subsection M provides: Any person eligible to receive assistance under the provisions of the Lead-Impacted Communities Relocation Assistance Act prior to May 10, 2008, shall remain eligible to receive the same amount of assistance adjusted for the amount of any private insurance payments for storm related damage if applicable. Any property valuation or other type of relocation assistance assessment made for the purposes of the LeadImpacted Communities Relocation Assistance Act shall be based on the value of property as it existed no earlier than January 31, 2006, and not later than May 10, 2008, and comparable to property elsewhere in the county. The trust shall be authorized to enact or amend any of its procedures or deadlines as necessary to implement the provisions of this subsection. ¶7 In September of 2004, the Secretary of the Environment, as trustor, and the trustees signed the Lead-Impacted Communities Relocation Assistance Trust (Trust) agreement, and the Governor accepted the beneficial interest in the Trust on behalf of the State of Oklahoma (State). The Trust agreement generally follows along the Act’s lines and includes general trust provisions.

II. THE PARTIES AND OTHERS INVOLVED WITH THE TRUST ¶8 At the time the petition was filed in the district court, the plaintiffs Johnny and Patty Lafalier had signed a contract with the Trust for the purchase of their property and were in the process of receiving relocation assistance.

Their property was damaged by the tornado, and they received private insurance for the damage. At the time the petition was filed, the plaintiff Missy Beets had transferred ownership of her property to the Trust and had received relocation assistance. The plaintiffs sought class action certification, but, at the time the petition in error was filed, the class had not been certified.

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¶9 Larry Roberts is the Trust’s operations manager and its only employee. J.D. Strong is the Secretary of the Environment. In Executive Order 2007-07, Governor Henry designated the Secretary of the Environment as having “responsibility” for the Trust. After the enactment of the 2006 amendments, the Trust contracted with Cinnabar Service Company to provide the appraisals and retained Van Tuyl and Associates to review the appraisals.18 Roberts, Strong, and representatives of the appraisal companies attended the Trust’s executive sessions.

III. HISTORY ¶10 On April 2, 2009, the plaintiffs filed a petition in the district court in Ottawa County, Oklahoma, stating two causes of action: (1) The Trust had willfully violated the Open Meeting Act by allowing J.D. Strong and representatives of Cinnabar and Van Tuyl into its executive sessions with the result that their properties were undervalued, and (2) the plaintiffs were treated unequally due to the deduction of insurance proceeds from the relocation assistance offer pursuant to title 27A, section 2203(M) of the 2008 Oklahoma Statutes. The plaintiffs sought (1) class certification, (2) the appointment of an administrator to audit the Trust, to reappraise the properties, to fairly compensate the plaintiffs, to compensate for past under-payments, and to oversee the Trust’s future management, (3) reimbursement of amounts deducted for private insurance or FEMA payments, (4) an order finding title 27A, sections 2203(M) and 2205 of the Oklahoma Statutes unconstitutional, (5) an order for disclosure of all minutes and other records from executive sessions which violated the Open Meeting Act, and (6) attorney fees and costs.

The Trust responded asserting the affirmative defenses of sovereign immunity and estoppel, among other things. ¶11 The Trust filed a motion for summary judgment arguing (1) that title 27A, section 2205 is constitutional, (2) that under section 2205, the plaintiffs cannot contest the deduction of insurance payments authorized by section 2203(M), (3) that the Trust did not violate the Open Meeting Act by allowing J.D. Strong, Larry Roberts, and representatives of Cinnabar and Van Tuyl into its executive sessions, and (4) that the plaintiffs are estopped from challenging the Trust’s offers because they accepted the relocation assistance benefits.19 The plain-

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tiffs responded and their arguments are set out and addressed below. ¶12 The district court granted judgment in the Trust’s favor. The trial court found that title 27A, section 2205 shields the Trust from suit by invoking the government’s sovereign immunity.20 The district court also found that the Trust had the discretion to allow J.D. Strong and the appraisers’ representatives into its executive sessions. Lastly, the district court found that the plaintiffs have standing to sue.

The plaintiffs petitioned for appellate review, the Trust responded, and we retained the appeal for disposition21 and solicited briefs.22 IV. SUMMARY JUDGMENT, STANDARD OF REVIEW, PRESUMPTION OF CONSTITUTIONALLY ¶13 Under Rule 13(a) of the Rules of District Courts,23 a party may move for summary judgment or summary disposition of any issue when the evidentiary materials filed in support of the motion show that there is no genuine issue of any material fact. The moving party must support the motion by attaching and referencing evidentiary materials supporting the party’s statement of undisputed facts.24 The opposing party must state the material facts which the party contends are disputed and attach supporting evidentiary materials.25 The court shall grant judgment to one of the parties if it appears that there is no substantial controversy as to any material fact and that one party is entitled to judgment as a matter of law.26 ¶14 Summary judgment settles only questions of law.27 We review rulings on issues of law de novo pursuant to the plenary power of the appellate courts without deference to the district court.28 ¶15 Even though the moving party must show that there is no dispute of fact and that they are entitled to judgment as a matter of law, there is a presumption that every statute is constitutional.29 The party seeking a statute’s invalidation as unconstitutional has the burden to show the statute is clearly, palpably, and plainly inconsistent with the Constitution.30 We scrutinize a constitutional attack on a statute with great caution and grave responsibility.31 V. TITLE 27A, SECTION 2205 OF THE OKLAHOMA STATUTES ¶16 The district court found that the State had invoked the doctrine of sovereign immuVol. 81 — No. 18 — 7/3/2010

nity in title 27A, section 2205 and, thus, the plaintiffs’ claims, other than the one regarding violations of the Open Meeting Act, were “immune from suit.” We do not agree that section 2205 is an invocation of the State’s sovereign immunity. In section 152.1 of the Governmental Tort Claims Act,32 the Legislature invoked the doctrine of sovereign immunity for the state, including a “public trust created pursuant to Title 60 of the Oklahoma Statutes of which the State of Oklahoma is the beneficiary . . . .”33 When the Legislature has invoked the State’s sovereignty, it has done so in express, unambiguous terms as it does section 152.1 which states: “The State of Oklahoma does hereby adopt the doctrine of sovereign immunity.” To construe section 2205 as an invocation of sovereign immunity would create a redundancy, which this Court will not do absent a compelling reason.34 ¶17 In contrast to the title 51, section 152.1, the Legislature has created a number of statutory restrictions to judicial review of agency decisions, including withholding a cause of action.35 When the Legislature withholds a cause of action, it also does so in unambiguous terms as it does in section 2205. According to the Act’s title and language, section 2205 provides that the Act does not create “any property right or right in action.” Section 2205 further provides that the courts shall have no jurisdiction over claims that claimants should have received different or better treatment from the trust. The district court and the State misconstrue section 2205 as an assertion of sovereign immunity, rather than the Legislature’s withholding a right of action. The plaintiffs contended that section 2205 contravened Article II, section 6 (courts of justice open); Article II, section 7 (due process of law); Article V, section 46 (prohibition against local and special laws on certain subjects); and Article V, section 60 (system of checks and balances).36 A. ARTICLE II, SECTION 6 OF THE OKLAHOMA CONSTITUTION ¶18 Article II, section 6 of the Oklahoma Constitution provides: “The courts of justice of the state shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.” This Court has consistently ruled that this constitutional provision is a mandate to the judiciary and not a substantive limita-

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tion on the Legislature.37 Section 6 is not “intended to deprive the Legislature of the power to abolish remedies for future accruing causes of action (where not otherwise specifically prohibited), or to create new remedies for other wrongs as in its wisdom it might determine.”38 ¶19 In St. Paul Fire & Marine Insurance Co. v.

Getty Oil Co.,39 we upheld title 12, section 109 of the 1981 Oklahoma Statutes against an attack under Article II, section 6 of the Oklahoma Constitution. Section 109 is a statute of repose barring tort actions against builders, architects, owners, lessors, or possessors of property for damages caused by defective design or construction for injuries occurring more than ten years after completion of an improvement to real property. We noted that Article V, section 36 of the Oklahoma Constitution vests the Legislature with “the authority to define what constitutes an actionable wrong, provided of course, that such legislation may not disturb a vested right.”40 We recognized that balancing Article V, section 36 with Article II, section 6 of the Oklahoma Constitution requires a finding that Article II, section 6 is not a limit on the Legislature’s authority.41 ¶20 Public protection falls within the Legislature’s authority, as does the authority to define what constitutes an actionable wrong unless constitutionally forbidden, i.e., the Legislature cannot completely cut off an existing or vested right.42 The plaintiffs have no constitutionally secured right under Article II, section 6 for the court to provide a remedy, where, as here, the Legislature has explicitly refused to recognize a private cause of action, leaving the plaintiffs with no wrong recognized by law.43 B. ARTICLE II, SECTION 7 OF THE OKLAHOMA CONSTITUTION ¶21 In addition to relying on Article II, section 6, the plaintiffs contend that they have a vested right to due process under Article II, section 7. Article II, section 7 provides: “No person shall be deprived of life, liberty, or property, without due process of law.” Section 2203(D) of the Act provides: “Participation in the assistance program shall be voluntary. No person shall be required to relocate under the provisions of this act.” The plaintiffs submit, without evidentiary support, that they are being forced from their property because services are being discontinued and the area is a health hazard.44 While the circumstances may, 1496

in the plaintiffs’ minds, leave them no reasonable alternative, they are under no obligation to accept the Trust’s assistance offer. This is not a case of eminent domain where the state leaves a land owner with no choice. The fact that the plaintiffs are unhappy with the Trust’s offer does not mean that the State is taking their property without due process. The plaintiffs have failed to present any evidentiary materials showing coercive state action which would violate Article II, section 7 of the Oklahoma Constitution.45 C. ARTICLE V, SECTION 60 OF THE OKLAHOMA CONSTITUTION ¶22 Before the district court, the plaintiffs also relied on Article V, section 60 of the Oklahoma Constitution as requiring a judicial inquiry into how the Trust is spending the money.46 Article V, section 60 states: “The Legislature shall provide by law for the establishment and maintenance of an efficient system of checks and balances between the officers of the Executive Department, and all commissioners and superintendents, and boards of control of State institutions, and all other officers entrusted with the collection, receipt, custody, or disbursement of the revenue or moneys of the State whatsoever.” requires the Legislature to provide for an efficient system of checks and balances between the Executive Department’s officers and all commissioners, superintendents, State institutions’ boards of control, and all other officers entrusted with the collection, receipt, custody, or disbursement of the state revenues or moneys. ¶23 In response to this mandate, the 19071908 Legislature defined the duties and powers of the State Examiner and Inspector47 (now State Auditor and Inspector), and the Legislature amended the duties and powers in 1909.48 The titles to the 1907-1908 act and the 1909 amendment stated that they were passed in compliance with what is now Article VI, section 19 of the Oklahoma Constitution, providing for a State Examiner and Inspector, and Article V, section 60. In State ex rel Taylor v.

Cockrell,49 we recognized that the 1907-1908 act and its 1909 amendment were enacted to “carry into effect the mandatory provisions of said section 60 by providing for a system of checks and balances between officers of the executive department and all other officers intrusted

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with the receipt, custody, or disbursement of the moneys of the state whatsoever.”

46’s enumerated subjects, then it does not meet section 46’s mandate and is unconstitutional.53

¶24 Like its enactment of the 1907-1908 act, the Legislature provided for a system of checks and balances for public trusts with the enactment of title 60, sections 176.1(B)(2) and 180.1 of the Oklahoma Statutes. Section 176.1(B)(2) provides that a public trust having the State as its beneficiary must deliver “to the State Auditor and Inspector, annual audits as provided in Section 180.1 of Title 60 of the Oklahoma Statutes.” Section 180.1 requires “[t]he trustees of every trust created for the benefit and furtherance of any public function with the State of Oklahoma . . . as beneficiary . . . must cause an audit to be made of, including, but not limited to, the funds, accounts, and fiscal affairs of such trust, such audit to be ordered within thirty (30) days of the close of each fiscal year of the trust.” The Legislature complied with the requirements of Article V, section 60 when it enacted title 60, sections 176.1(B)(2) and 180.1. Article V, section 60 requires a system of checks and balances within the Executive Department, which the Legislature has provided, but nothing in Article V, section 60 of the Oklahoma Constitution requires a judicial inquiry of a public trust’s discretionary acts as the plaintiff argues. Title 27A, section 2205 does not implicate Article V, section 60 of the Oklahoma Constitution.

¶27 A general law relates to all persons or things of a class, and a special law relates to particular persons or particular things within a class.54 A general law operates uniformly upon all persons or things brought within the class by common circumstances, even though it may directly affect only a few.55 “Special laws are those which single out less than an entire class of similarly affected persons or things for different treatment.”56 The class upon which section 2205 operates is “those owning and leasing property” in an area generally known as the Tar Creek Superfund Site and, thus, are exposed to a high risk of lead exposure or to “a serious subsidence risk.”57 The Legislature’s action in withholding a cause of action under the Act in section 2205 operates uniformly across the class of persons placed at health risk and property damage in the defined area. No part of the class is separated for different treatment. Because section 2205 operates uniformly on the whole class, it is a general law under Article V, section 46 of the Oklahoma Constitution.58

D. ARTICLE V, SECTION 46 OF THE OKLAHOMA CONSTITUTION ¶25 The plaintiffs argued before the district court that section 2205 violates Article V, section 46 of the Oklahoma Constitution. The provision of section 46 upon which the plaintiffs rely provides: “The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law . . . [r]egulating the practice or jurisdiction of, or changing the rules of evidence in judicial proceedings or inquiry before the courts . . . .” The plaintiffs argue that this provision requires that they “must have equal access to the courthouse.” ¶26 Article V, section 46 is an unequivocal mandate to the Legislature.50 Under no circumstances is the Legislature allowed to pass a special law regarding one of the subjects listed in section 46.51 The single question for testing a statute’s compliance with section 46 is whether the statute is a general law or a special law.52 If it is a special law dealing with one of section Vol. 81 — No. 18 — 7/3/2010

VI. TITLE 27A, SECTION 2203(M) OF THE OKLAHOMA STATUTES ¶28 We have found title 27A, section 2205 of the Oklahoma Statutes to be constitutional against the plaintiffs’ challenges, but section 2205 does not ban all claims against the Trust.

Section 2205 bans claims that claimants “should have received different or better treatment from the trust.”59 We find nothing in section 2205 which bars a suit seeking a declaration that title 27A, section 2203(M) is unconstitutional.60 ¶29 The plaintiffs attack title 27A, section 2203(M) as unconstitutionally treating those with insurance dissimilarly from those without insurance in violation of the plaintiffs’ rights to equal protection and in violation of Article V, section 59 of the Oklahoma Constitution. Article V, section 59 prohibits the Legislature from enacting a special law where a general law can be made applicable. The Fourteenth Amendment to the United States Constitution prohibits states from denying “to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Article II, section 7 of the Oklahoma Constitution is this State’s counterpart.61

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A. EQUAL PROTECTION ¶30 Neither the Fourteenth Amendment to the United States Constitution nor Article II, section 7 of the Oklahoma Constitution prohibits all legislative classifications.62 Rather the protections afforded by these provisions is freedom from arbitrary discrimination.63 The plaintiffs here have not alleged that they are part of an inherently suspect classification. The fundamental right that they allege has been abused by section 2203(M) is the right to due process before their property is taken. The plaintiffs do not elaborate how section 2203(M) has taken their property or what property has been taken. Having decided earlier in this opinion that plaintiffs have failed to show any state action which is a taking of their real property, we need not address the issue further. We glean from the briefs that the plaintiffs are also complaining that their property in the amount of the insurance payments was taken without due process. The plaintiffs have failed to present evidence sufficient to show that their property was taken without due process.64 ¶31 Plaintiffs have failed to show that title 27A, section 2203(M) is drawn upon an inherently suspect classification or impinges upon the plaintiffs’ fundamental rights so as to be subject to heightened review.65 Thus, the Equal Protection Clause requires only that section 2203(M)’s “classification rationally further a legitimate state interest.”66 Under the highly deferential rational-basis review, a legislative classification is constitutional if there is any conceivable set of facts which provides a rational basis for the classification.67 We do not judge the classification for wisdom, fairness, or logic.68 ¶32 Although not explicitly articulated, section 2203(M)’s obvious objective is to provide sufficient funds to those in the risk area, whether receiving insurance payments or not, to allow them to relocate while avoiding appraisal and reappraisal problems caused by damage or destruction to property from the tornado.

Under section 2203(M), the Trust can avoid reappraising property after the tornado by allowing an insurance payment to substitute for a property’s diminution in value caused by damage from the tornado, and assistance recipients should still have sufficient funds to relocate elsewhere in the county. We do not find the legislative classification is so arbitrary or lacks a sufficient relationship to this legislative 1498

purpose as to violate the Equal Protection Clause.

B. ARTICLE V, SECTION 59 OF THE OKLAHOMA CONSTITUTION ¶33 Plaintiffs also attack title 27A, section 2203(M) as a violation of Article V, section 59 of the Oklahoma Constitution. Article V, section 59 provides: “Laws of a general nature shall have a uniform operation throughout the State, and where a general law can be made applicable, no special law shall be enacted.” Section 59 does not prohibit all special laws but prohibits a special law only when a general law will accomplish the legislative goal. The first prong of a section 59 analysis is the same as the Article V, section 46 analysis discussed above.69 Here the plaintiffs contend that section 2203(M) is a special law in that it treats the buyout recipients receiving insurance payments differently than those not receiving payments. The plaintiffs contend that section 2203(M) is a special law. The plaintiffs end their analysis with the first prong but ignore the two additional prongs in an Article V, section 59 analysis. Even if section 2203(M) is a special law, it does not violate article V, section 59 unless it fails one of the other two prongs. ¶34 If the statute is a general law under the first prong, we need not proceed further with the analysis under section 59.70 However, if the statute is a special law under the first prong, the analysis proceeds to the second prong.71 The second prong inquiry is whether the legislative objective can be achieved by a general law or whether the statute addresses “a special situation possessing characteristics impossible of treatment by general law.”72 In answering the second prong inquiry, we consider “the nature and objective of the legislation as well as the conditions and circumstances under which the statute was enacted.”73 The Tar Creek site is an area which puts persons living there at health and safety risks. Section 2203(M) was enacted in the wake of the May 10, 2008 tornado. The obvious objective, as we have stated, is to allow those living in the risk area to have sufficient funds to relocate while avoiding appraisal and reappraisal problems. Here there are special circumstances, and the plaintiffs have failed to even suggest general legislation which would accomplish section 2203(M)’s goal. ¶35 Under the third prong, we must determine if the statute is reasonably and substan-

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tially related to a valid legislative objective.74 We addressed this in paragraph 32 and found that title 27A, section 2203(M) is reasonably and substantially related to a valid legislative objective; i.e., land owners within the risk area are eligible to receive at least the comparable value of their property before the tornado damage if insurance payments from the tornado are taken into consideration. We find that the special situation of those landowners and lessors in this high risk area along with the damage from the tornado does not allow for a general law to be enacted to address the situation. The plaintiffs have failed to show that section 2203(M) violates Article V, section 59 of the Oklahoma Constitution.

VII. THE OPEN MEETING ACT ¶36 Title 27A, section 2203(J) makes the Trust subject to the provisions of the Open Meeting Act. The plaintiffs complain that the Trust has violated the Open Meeting Act75 by allowing J.D. Strong and the appraisal companies’ representatives to attend the Trust’s executive sessions.76 ¶37 The current Open Meeting Act was enacted in 1977,77 with the stated public policy of encouraging and facilitating “an informed citizenry’s understanding of the governmental processes and governmental problems.”78 Because it was enacted for the public’s benefit, the Open Meeting Act “is to be construed liberally in favor of the public.”79 ¶38 Section 303 of the Oklahoma Open Meeting Act80 states the general rule that “[n]o public body shall hold executive sessions unless otherwise specifically provided.” (Emphasis added.) The Open Meeting Act at section 307(B)(3) provides an exception to this general rule by allowing executive sessions for the purpose of purchasing or appraising real property.

Section 307(D) of the Open Meeting Act, the provision at issue here, sets out the restrictions placed on executive sessions held for the purpose of purchasing or appraising real property.

Section 307(D) provides: An executive session for the purpose of discussing the purchase or appraisal of real property shall be limited to members of the public body, the attorney for the public body, and the immediate staff of the public body. No landowner, real estate salesperson, broker, developer, or any other person who may profit directly or indirectly by a proposed transaction concerning real property Vol. 81 — No. 18 — 7/3/2010

which is under consideration may be present or participate in the executive session.

(Emphasis added.) ¶39 The plaintiffs contend that the first sentence of section 307(D) defines the outer limits of the persons who may attend an executive session and the second sentence places a further limitation on those persons named in the first sentence. In other words, if a member of the public body, its attorney, or its immediate staff may profit from the proposed transaction, then they must be excluded from the executive session. The Trust takes the position that the second sentence is expansive in that all those named in the first sentence may attend the executive session and anyone else who does not stand to profit from the executive session may also attend.81 ¶40 Section 307(D) uses the phrase “shall be limited.” Here, we deem “shall” as mandatory,82 meaning anyone not listed is excluded from the executive session. Further, by listing those who may attend the executive session, the Legislature must have intended to exclude everyone not listed.83 Section 307(D)’s clear language is an expression of legislative intent that no one other than those enumerated are allowed to attend the executive sessions wherein the appraisal or the purchase of real property is discussed. ¶41 Section 307(D)’s second sentence excludes any landowner, real estate salesperson, broker, developer, or any other person who may profit from the purchase or appraisal of the real property under discussion. As we construe section 307(D), any person allowed to attend the executive session in the first sentence is excluded if the person stands to profit from the transaction. This is the only plausible construction of section 307(D), and the only construction which honors both sentences of section 307(D). The Trust’s position would make unnecessary section 307(D)’s first sentence because, under its position, anyone not standing to profit from the proposed transaction could attend the executive session. We cannot acquiesce in the Trust’s construction of section 307(D). “A statute must be read to render every part operative and to avoid rendering parts thereof superfluous or useless.”84 ¶42 Section 307(D) does not include J.D. Strong, who is the Secretary of the Environment, and the appraisers as persons who are allowed to attend the Trust’s executive ses-

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sions. A secretary in a governor’s cabinet is appointed by the Governor with the advice and consent of the state senate.85 The duties of a secretary over a cabinet area are to (1) “[a]dvise the Governor of any policy changes or problems within the area they represent;” (2) “[ a]dvise the entities represented of any policy changes or problems as directed by the Governor; and” (3) “[c]oordinate information gathering for the Legislature as requested.”86 Although Executive Order 2007-07 states that “[t]he Secretary of the Environment shall be responsible for the . . . Lead-Impacted Communities Relocation Assistance Trust” this does not mean that he is responsible for the Trust’s operation.

Rather, he is a liaison between for the Governor and the Trust.87 When attending the Trust’s meetings in his capacity as the Secretary of the Environment, he is there on behalf of the Governor. Section 308 of the Open Meeting Act specifically requires: “Any meeting between the Governor and a majority of the members of any public body shall be open to the public and subject to all other provisions of this act.” Section 308 cannot be avoided by having the Governor’s representative attend an executive session. To so allow would gut section 308 of any real force. We conclude that the Trust has violated the Open Meeting Act by allowing persons not authorized under title 25, section 307(D) to attend its executive sessions wherein the appraisal and purchase of real property are discussed. ¶43 The district court incorrectly found that the Trust had not violated the provisions of the Open Meeting Act. Therefore, it did not address whether the violations were willful such that the minutes and records of the executive sessions should be immediately made public under title 25, section 307(F)(2). Thus, the question of the Trust’s willfulness is a determination for the district court on remand.

VIII. SUMMARY ¶44 The plaintiffs have failed to show that title 27A, sections 2203(M) and 2205 are unconstitutional. We agree with the plaintiffs that the Trust has violated the Open Meeting Act, specifically section 307(D), by allowing the Secretary of the Environment and the appraisers’ representatives to attend its executive sessions held for the purpose of discussing appraisals and purchases of real property. The plaintiffs have also asked for access to the executive session records. Access to the records is allowed under title 25, section 307(F)(2) if the Trust’s 1500

violation of the Open Meeting Act are willful.

This is a question for the district court on remand. ¶45 Even though we disagree with the district court’s decision that the State invoked its sovereign immunity in title 27A, section 2205, we find that the Trust is entitled to judgment on the issues of the constitutionality of title 27A, sections 2203(M) and 2205.88 The case is remanded to the district court for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED TO THE DISTRICT COURT WITH INSTRUCTIONS. EDMONDSON, C.J., TAYLOR, V.C.J., and HARGRAVE, OPALA, KAUGER, WATT, COLBERT, and REIF, JJ., concur.

WINCHESTER, J., (by separate writing), concurs in part and dissents in part.

1. 27A O.S.Supp.2008, §§ 2201-2207.

2. 25 O.S.2001, §§ 301-314.

3. After this appeal was retained by this Court, the plaintiffs filed a “Suggestion on the Record” with documents attached which are not part of the record on appeal. In the “Suggestion on the Record,” the plaintiffs ask this Court to expedite the decision in the present case.

The defendant trust filed a motion to strike the “Suggestion on the Record.” This Court treats the plaintiffs motion as a motion to expedite and refuses to consider the attachments. House of Realty, Inc. v. City of Midwest City, 2004 OK 97, ¶ 6, 109 P.3d 314, 317 (“Generally, this Court’s appellate review is limited to those facts appearing of record certified by the clerk of the tribunal below.”).

4. In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675 (PL. 96-510), known as CERCLA. CERCLA placed a tax on chemical and petroleum industries. The funds generated by the tax are placed in a trust fund for cleaning up abandoned or uncontrolled hazardous waste sites. Pursuant to CERCLA, the Environmental Protection Agency established a hazardous ranking system with the “sites that appear to present a significant risk to public health or the environment” being placed on the National Priorities List. 143 Cong. Rec. E1419-03 (1977) (from the Federal Register, available at http://www. epa.gov/superfund/sites/npl/f830908.htm#2); see 40 C.F.R. §§ 35.6015, 300.425 (2008).

5. United States Environmental Protection Agency, Final National Priorities List (NPL) Sites — by Final Listing Date, http://epa.gov/ superfund/sites/query/queryhtm/nplfin2.htm (last visited May 6, 2010).

6. For a history of mining operations at the Tar Creek site see Cole v. ASARCO Inc., No. 03-CV-327-GKF-PJC, 2010 WL 711195 (N.D. Okla.

Feb. 24, 2010). Cole involves a class action on behalf of 600 residential, commercial, and government property owners in the Tar Creek area who are suing the mining companies in federal court for compensatory and punitive damages for diminution in their property values. The federal district court dismissed the claims for damages which were outside the two year statute of limitations but refused to dismiss those within the two-year period before the complaint was filed. The plaintiffs in the case originally sought the creation of an independent relocation program in addition to damages but did not pursue this remedy in an amended complaint. Cole v. ASARCO Inc., 256 F.R.D. 690, 693 (N.D. Okla. 2009). ASARCO, one of the mining companies, proceeded in bankruptcy court where 523 individual property owners settled their property damages claims against ASARCO. There have been other law suits filed in federal court for damages. See Berrey v.

ASARCO Inc., 439 F.3d 636 (10th Cir. 2006) (The Quapaw Tribe owns or owned about eighty acres in fee and an undivided fifty-one percent of another forty acres in the Tar Creek Superfund Site. Id. at p. 640.); Evans v. ASARCO Inc., No. 04-CV-094-GKF-PJC, 2010 WL 711193 (N.D. Okla.

Feb. 24, 2010); Palmer v. ASARCO Inc., Nos. 03-CV-0498-CVE-PJC, 03-

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CV-0565-CVE-PJC, 03-CV-0566-CVE-PJC, 03-CV-0567-CVE-PJC, 03CV-0569-CVE-PJC, 2007 WL 2381242 (N.D. Okla. Aug. 13, 2007); Quapaw Tribe of Okla. v. ASARCO Inc., 2007 WL 1203016 (N.D. Okla. Apr. 23, 2007); B.H. v. Gold Fields Mining Corp., No. 04-CV-0564-CVE-PJC, 2007 WL 439031 (N.D. Okla. Feb. 1, 2007); B.H. v. Gold Fields Mining Corp., No. 04-CV-0564-CVE-PJC, 2007 WL 128224 (N.D. Okla. Jan. 11, 2007); Koger v. ASARCO Inc., No. 02-CV-520-H(C), 2003 WL 25684987 (N.D. Dist. June 24, 2003); Reeves v. ASARCO Inc., No. 02-CV-879-H(C), 2003 WL 25684986 (N.D. Dist. June 24, 2003); Herd v. ASARCO Inc., No. 01-CV-891-H(C), 2003 WL 25847423 (N.D. Dist. May 28, 2003).

7. 2004 Okla. Sess. Laws 1718-1722, ch. 371 (originally codified at 10 O.S.Supp.2004, §§ 7601-7606 and, for 2006 and later, codified at 27A O.S.Supp.2008, §§ 2201- 2207). For purposes of this opinion, the 2004 legislation and the 2006 and 2008 amendments generally will be denoted as the Act with the reference being to the last codification unless required for clarity.

8. 2004 Okla. Sess. Laws 1720, ch. 371, § 3(A) (now codified at 27A O.S.Supp.2008, § 2203(A)). The 2004 legislation also allows a trust to make grants to “municipalities, public trusts, or other public entities operating utility systems located within the most affected area of the site in order to lessen the debt burden on such entities as a result of relocation of families . . . .” 2004 Okla. Sess. Laws 1721, ch. 371, § 3(D) (now codified at 27A O.S.Supp.2008, § 2203(E)).

9. Area of greatest subsidence risk is defined as the “communities in which subsurface lead and zinc mine caverns pose the greatest threat to public safety and shall include a reasonable buffer area around such communities. . . .” 27A O.S.Supp.2008, § 2203(B)(1). Subsidence risk is a risk of the ground caving. See American Heritage Dictionary 1213 (2nd College ed. 1982).

10. 2006 Okla. Sess. Laws 1020-1021, ch. 226, § 2(B) (codified at 27A O.S.Supp.2008, §2203(B)). Because the plaintiffs here were home owners in the risk area, this opinion will address only those provisions applicable to them.

11. 27A O.S.2008, § 2203(A)(2),(3), (B)(2),(3).

12. A person violating the ban against inhabiting the area is subject to a penalty equal to three times the amount they received and an injunction. Id. § 2204.

13. 27A O.S.Supp.2008, § 2203(D). These provisions state: “Participation in the assistance program shall be voluntary. No person shall be required to relocate under the provisions of this act.” As of October 14, 2006, the Trust had received 879 applications for assistance. See Cole, 256 F.R.D. at 697.

14. For purposes of providing assistance, the Trust was required to determine the highest risk areas and was required to consult the ODEQ for a recommendation “regarding what it believes the boundaries of such an area should be.” 27A O.S.Supp.2008, § 2203(I). At subsection 2203(H), the Act provides: “In addition to the expenditure of funds according to the provisions of the Lead-Impacted Communities Relocation Assistance Act, a trust receiving a grant from the Department of Environmental Quality, shall be authorized to seek and expend funds from any other source, whether public or private, to further the purposes of the trust. The funds granted to a trust by the state shall be transferred in periodic payments rather than a single lump sum.” The Trust also receive some federal funds for relocation.

See Cole, 256 F.R.D. at 693.

15. Id. § 2203(J). The Oklahoma Open Meeting Act is found at 25 O.S.2001 & Supp.2006, §§ 301-314, and the Oklahoma Open Records Act is found at 51 O.S.2001 & Supp. 2006, §§ 24A.1 - 24A.29.

16. 27A O.S.Supp.2008, § 2203(K).

17. 2008 Okla. Sess. Laws 1384-1388, ch. 299.

18. The Trust contracted with Universal Field Services to provide appraisals of qualifying properties in the initial phase of the assistance program. Universal Field Services are not involved in this appeal.

19. The estoppel issue was not asserted on appeal and, thus, is not before this Court. Reyes v. Reyes, 2000 OK 72, n. 2, 12 P.3d 470, 471 n. 2 (Issues not raised on appeal are deemed waived.).

20. Specifically, the order states: “Thus if one were to deem Plaintiffs’ claim as a tort it is the Court’s belief that the legislature has the right to assert governmental immunity, and has chosen to do so outside of the Tort Claims Act by adopting 27A O.S. § 2205.”

21. Okla.Sup.Ct.R. 1.24(a), 12 O.S.2001, ch. 15, app. 1.

22. Id. at r. 1.36(g).

23. 12 O.S.2001, ch. 2, app., r. 13(a).

24. Id. 25. Id. at r. 13(b).

26. Id. at r. 13(e).

27. Rox Petrol., L.L.C. v. New Dominion, L.L.C., 2008 OK 13, ¶ 2, 84 P.3d 502, 504.

28. Glasco v. State ex rel. Okla. Dept. of Corrections, 2008 OK 65, ¶ 8, 188 P.3d 177, 181.

29. Id. ¶ 27, 188 P.3d at 186.

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30. EOG Res. Mktg, Inc. v. Okla. State Bd. of Equalization, 2008 OK 95, ¶ 13, 196 P.3d 511, 519.

31. Glasco, 2008 OK 65 at ¶ 27, 188 P.3d at 186.

32. 51 O.S.2001, §§ 151-172.

33. 51 O.S.Supp.2007, §§ 152(12), 152.1(A).

34. Medina v. State, 1993 OK 121, n. 10, 871 P.2d 1379, 1383 n. 10.

35. In providing relocation assistance for persons displaced by highway and road construction, the Legislature in title 69, section 1502 provided: “[A]ll final determination made by the Commission as to a person’ eligibility for, or the amount of any benefit payable by reason of this act, shall be determinative and not subject to judicial review.” In making finding regarding acquisition of property this abandoned mines in title 45, section 740.5, the Legislature stated that “this provision is not intended to create new rights of action or eliminate existing immunities.” In providing for the nondisclosure of certain personal information in title 36, section 307.2, the Legislature provided: “Nothing in this section shall be construed to create a private cause of action.” In regard to protecting telephone records in title 21, section 1742.4, the Legislature provided: “No private right of action is authorized under this act.” In Bird v. Willis, 1996 OK 116, 927 P.2d 547, we found that under the Oklahoma Administrative Procedures Act, citizens “are not entitled to does not allow for judicial review of the [Alcoholic Beverage Laws Enforcement] Commission’s actions in granting” a liquor license.

36. For the most part, the plaintiffs’ arguments in their trial brief are more extensive than in their brief before this Court. Thus, we refer to their brief in the district court to explain their positions.

37. Adams v. Iten Biscuit Co., 1917 OK 47, 162 P. 938; Rivas v. Parkland Manor, 2000 OK 68, ¶ 18, 12 P.3d 452, 457.

38. Adams, 1917 OK 47 at ¶ 6, 938 P.2d at 942.

39. 1989 OK 139, ¶ 36, 782 P.2d 915, 923.

40. Id. at ¶ 14, 782 P.2d at 918.

41. Id. at ¶ 15, 782 P.2d at 919.

42. Jaworsky v. Frolich, 1992 OK 157, ¶¶ 14-15, 850 P.2d 1052, 1056; Loyal Order of Moose, Lodge 1785 v. Cavaness, 1977 OK 70, ¶ 10, 563 P.2d 143, 146.

43. The plaintiffs’ claims are based on a violation of the Act, and they do not raise any common-law causes of action.

44. See 12 O.S.2001, ch. 2, app., r. 13(b) (requiring respondents to a motion for summary judgment to support their contentions of disputed facts with evidentiary materials).

45. The plaintiffs also submit that section 2205 of title 27A violates Article II, section 7 because “Oklahoma courts must be open to all on the same terms without prejudice.” This language has the attributes of an assertion that section 2205 violates Article II, section 6 which we previously address. If the plaintiffs are asserting an equal protection violation, they have failed to provide a legal argument sufficient for our review. Nonetheless, paragraphs 18-20 and 25-27 of this opinion adequately addresses this assertion wherein we find that no class has been singled out for disparate treatment. See paragraphs 30-32 of this opinion for a more through analysis of the Equal Protection Clause and Article II, section 7 of the Oklahoma Constitution.

46. The whole of the plaintiffs’ argument that title 27A, section 2205 violates Article V, section 60 of the Oklahoma Constitution is found on page 8 of their brief filed in the district court. The plaintiffs state: “Additionally, Article V, § 60 [of] our Constitution requires a system of checks and balances concerning public boards entrusted with custody or disbursement of monies. A statute which attempts to immunize [the Trust] from judicial inquiry on how it is spending public money violates this constitutional requirement.”

47. 1907-1908 Okla. Sess. Laws 701-705, ch. 79.

48. 1909 Okla. Sess. Laws. 567-569, ch. 37 (now codified at 74 O. S.2001, § 212).

49. 1910 OK 374, ¶ 3, 112 P. 1000, 1002.

50. Reynolds v. Porter, 1988 OK 88, ¶ 17, 760 P.2d 816, 822.

51. Id. 52. Id. 53. Id. 54. Id. ¶ 14, 760 P.2d at 822.

55. Id. 56. Id. 57. 27A O.S.Supp.2008, § 2202(D).

58. The plaintiffs argue that they “must have equal access to the courthouse” and that title 60, section 176.1 guarantees them access to the courthouse. The plaintiffs admit that, under the rules of statutory construction, title 27A, section 2205 controls over title 60, section 176.1.

Even so, they continue that the court should apply title 60, section 176.1 because they have shown that section 2205 is unconstitutional, citing Article II, sections 6 and 7 of the Oklahoma Constitution.

Because we have found title 27A, section 2205 does not violate these

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constitutional provisions, the plaintiffs’ argument regarding section 176.1 has no application here.

The plaintiffs also contend that the Trust agreement and the appraisal contracts are evidence that title 27A, section 2205 should not prevent them from bringing suit against the Trust for under evaluating their property. The Trust agreement provisions on which they rely provide: All persons, firms, associations, trusteeships, corporations, municipalities, governments, and all agents, agencies and instrumentalities thereof, contracting with any Trustee or Trustees, permanent or Temporary or both, shall take notice that all expenses and obligations, and all debts, damages, judgments, decrees or liabilities incurred by any Trustee or Trustees, permanent or Temporary or both, and any of the foregoing incurred by any agent, servant, or employee of such Trustee or Trustees, in the execution of the purposes of this Trust, whether arising from contract or tort, shall be solely chargeable to, and payable out of the Trust Estate. . . . [T]he foregoing shall not apply to any willful or grossly negligent breach of trust of any said Trustee. ...

The Trustees shall, in the name of the Trust as hereinabove set forth, or in their names as Trustees, bring any suit or action which, in their judgment, shall be necessary or proper to protect the interests of the Trust, or to enforce any claim, demand or contract for the Trust or for the benefit of the Trust; and they shall defend, in their discretion, any action or proceeding against the Trust or the Trustees or agents, servants or employees thereof.

And the Trustees are expressly authorized, in their discretion, to bring, enter, prosecute or defend any action or proceeding in which the Trust shall be interested, and to compromise any such action or proceeding and discharge the same out of the Trust property and assets; and the Trustees also are expressly authorized to pay or transfer out of the Trust property or assets such money or property as shall be required to satisfy any judgment or decree rendered against them as Trustees, or against the Trust, together with all costs, including court costs, counsel and attorneys’ fees, and also to pay out of the Trust property and assets such sums of money, or transfer appropriate property or assets of the Trust, for the purpose of settling, compromising, or adjusting any claim, demand, controversy, action or proceeding, together with all costs and expenses connected therewith; and all such expenditures and transfers shall be treated as proper expenses of executing the purposes of this Trust. ...

The appraisal contract provides that the appraiser shall secure liability insurance covering the Trust. These provisions do not authorize the plaintiffs’ suit against the Trust in contravention of title 27A, section 2205. Rather, they provide for judgments to be paid out of the Trust’s assets and authorize suits which are not disallowed by section 2205 or other constitutional or statutory provisions.

59. This is not to say that the plaintiffs may not seek equitable relief under the Act. 27A O.S.Supp.2008, § 2205; see Bird v. Willis, 1996 OK 116 at ¶¶ 24-25, 927 P.2d at 552; Sharp v. 251st Street Landfill, Inc., 1991 OK 41, 810 P.2d 1270.

60. It appears from the record before this Court, that the plaintiff Missy Beets had completed the buyout of her property before section 2203(M) became effective and was not subject to the deduction of insurance payments. If indeed, Missy Beets suffered no injury under section 2203(M), she lacks standing to complain that section 2203(M) is unconstitutional. See State ex rel. Bd of Regents for Okla. Agric. and Mech.

Colls. v. Mccloskey Brothers, Inc., 2009 OK 90, ¶ 17, 227 P.3d 133, 144.

61. The plaintiffs contend that section 2203(M) denies them equal protection of the law. Because they fail to cite to any constitutional provision in this regard, we address their argument as a violation of the Fourteenth Amendment to the United States Constitution and Article II, section 7 of the Oklahoma Constitution. Although the Oklahoma Constitution does not provide a provision similar to the Fourteenth Amendment, this Court has found that Article II, section 7 of the Oklahoma Constitution is its functional equivalent with a “definitional sweep that is coextensive.” Gladstone v. Bartlesville Ind. Sch. Dist. No. 30, 2003 OK 30, nn. 15, 16, 66 P.3d 442, 447, nn. 15, 16.

62. Id. at ¶ 18, 66 P.3d at 451.

63. Id. at ¶ 9, 66 P.3d at 447.

64. The plaintiffs have failed to include evidence of their buyout offer, the date of the offer, the closing date for accepting the offer, the offer’s terms, others who did not have insurance and received an offer, or the Trust’s buyout guidelines in the record on appeal. Neither is there any evidence that the plaintiffs did not know that their buyout incentive amount would be reduced under section 2203(M) before they accepted the offer. It could be that the trust had the discretion to amend or withdraw the offers at any time or for any reason. We cannot say on

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the record before us that (1) the plaintiffs were treated unequally or (2) their property in the form of insurance payments was taken without due process of law. After the tornado, the Trust allowed those who had previously declined its offers to reconsider. See Cole v. ASARCO Inc., 256 F. R.D. 690, 694 (N.D. Okla. 2009). It appears that section 2203(M) was enacted to accommodate these persons and allow them to move from damage and destroyed homes and still receive compensation. Id. 65. Gladstone, 2003 OK 30 at ¶ 9, n. 25, 66 P.3d at 447, n. 25.

66. Id. 67. Id. at ¶ 12, 66 P.3d at 448.

68. Id. 69. Reynolds, 1988 OK 88 at ¶ 17, 760 P.2d at 822.

70. Okla. Const. art. V, section 59.

71. Reynolds, 1988 OK 88 at ¶¶ 14-15, 760 P.2d at 822.

72. Id. at ¶ 15, 760 P.2d at 822.

73. Id. 74. Id. at ¶ 16, 760 P.2d at 822.

75. 25 O.S.2001, §§ 301-314.

76. An “[e]xcutive session of a board or governmental body is a session closed to the public.” Black’s Law Dictionary 559 (5th ed. 1979); see 51 O.S.Supp.2006, § 24A.5.

77. 1977 Okla. Sess. Laws, ch. 214, §§ 1-14.

78. 25 O.S.2001, § 302.

79. Int’l Ass’n of Firefighters, Local 2479 v. Thorpe, 1981 OK 95, ¶ 17, 632 P.2d 408, 411.

80. 25 OS. 2001, §303.

81. We are asked here to declare that under title 25, section 307(D), J.D. Strong and representatives of the appraisal companies were not authorized to be included in the executive sessions. The plaintiffs have requested as a remedy access to the Trusts’ executive session records.

Title 25, section 307(F)(2) provides: “A willful violation of the provisions of this section shall . . . [c]ause the minutes and all other records of the executive session, including tape recordings, to be immediately made public.”

82. Wylie v. Chesser, 2007 OK 81, ¶ 9, 173 P.3d 64, 76 (“The word ‘shall’ is generally treated as mandatory - a nondiscretionary command - in both contracts and statutes.”).

83. Atkinson v. Halliburton Co., 1995 OK 104, ¶ 23, 905 P.2d 772, 776 (“The maxim ‘expressio unius est exclusio alterius,’ that the expression of one thing is the exclusion of the other, aids in determining legislative intent.”). The Trust relies on Attorney General opinion number 76-334 for the proposition that the “decision as to who should be present is within the sound discretion of the” Trust. Opinion number 76334 addressed the rehiring of school personnel. The opinion is inapplicable here where the Legislature has limited and enumerated those who may attend executive sessions for the purpose of discussing appraisals and the purchase of real property. Further, this Court is not bound by the Attorney General’s opinion on questions of law.

84. Moran v. City of Del City, 2003 OK 57, ¶ 8, 77 P.3d 588, 591.

85. 74 O.S.2001, § 10.3(B).

86. Id. 87. Further title 60, section 176.1(D) of the Oklahoma Statutes provides: Except where the provisions of the trust indenture or of Section 176 et seq. of this title, or of any other law written specifically to govern the affairs of public trusts, expressly requires otherwise, the affairs of the public trust shall be separate and independent from the affairs of the beneficiary in all matters or activities authorized by the written instrument creating such public trust including, but not limited to, the public trust’s budget, expenditures, revenues and general operation and management of its facilities or functions . . . .

Here the plaintiffs point to no exceptions either in title 60 or the trust indenture which would authorize the Secretary of the Environment to participate in the Trust’s affairs.

88. This Court may render the judgment which the district court should have rendered. If a district court decisions is based on incorrect reasoning but reaches the correct result, its judgment is not subject to reversal. This Court may affirm the judgment below on a different legal rationale. Dixon v. Bhuiyan, 2000 OK 56, ¶ 9, 10 P.3d 888, 891.

Winchester, J., concurring in part and dissenting in part: ¶1 I respectfully dissent to section VII of the majority opinion, regarding the Open Meetings Act. J.D. Strong, in his capacity as Secretary of the Environment for the State of

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Oklahoma, was responsible for the oversight of the Lead-Impacted Communities Relocation Assistance Trust. The district court determined it was within the sound discretion of the members of the Trust to allow Mr. Strong’s presence at an executive session. The court cited 1976 OK AG 334to support the court’s decision. The court quoted a portion of the Attorney General’s opinion as it made this observation: “[T]he opinion offers good advice to any entity seeking to allow someone into an executive session for whatever purpose where it states . . . ‘and the decision as to who should be present is within the sound discretion of the board exercised in a reasonable manner based on the facts and circumstances in each instance.’” [Emphasis added by district court.] ¶2 The district court used the same analysis as that quoted above to find that it was within the sound discretion of the Trustees to invite Cinnabar and Van Tuyl and Associates to attend executive sessions. The representatives of the appraisal companies contracted with the Trust to provide services on behalf of the Trust in furtherance of the Trust’s duties and may be considered staff. The court found that the presence of these people did not violate the prohibitions found in 25 O.S. § 307(D)1 ¶3 The Attorney General opinion quoted by the district court has been relied on since 1976, and while the Supreme Court of Oklahoma is not bound by the Attorney General’s opinion on questions of law, the Attorney General serves as legal advisor to state agencies. In Globe Life and Accident Ins. Co. v. Oklahoma Tax Com’n, 1992 OK 65, ¶ 8, 831 P.2d 649, 650, the Court observed: “This Court decided the issue of whether an agency was bound by the opinion of the Attorney General in Branch. In Branch, this Court stated: ‘The Attorney General is the “chief law officer” of Oklahoma. Since 1919, the Attorney General’s opinions have been binding on state officials unless the opinion is inconsistent with a final determination of a court of competent jurisdiction.” [Branch Trucking Co. v. Oklahoma Tax Comm’n, 1990 OK 41, ¶ 10, 801 P.2d 686, 690] ¶4 Given well-established law that A.G. opinions are binding on state officials, I conclude that the general statement in a 1976 A.G. opinion, quoted above by the district court, regarding using sound discretion concerning Vol. 81 — No. 18 — 7/3/2010

who may be admitted to an executive session was binding on the Trust officials. Distinguishing that opinion by noting it regarded the rehiring of school personnel does nothing to limit the generalization made by the Attorney General. Is there some reason a school board can use sound discretion in an executive session, but the Trust cannot? I conclude the Trust properly relied on that A.G. opinion. Where the appellate courts have not spoken, relying on the Attorney General’s office, who serves as the attorney for state officials, is reasonable. ¶5 If this Court now wishes to find differently, it should not retroactively apply its opinion. Certainly the legislature would have acted to change the law if state officials subject to the Open Meetings Act had been abusing the law by relying on this A.G. opinion. But this Court now finds a violation. The penalty for willful violation of the Open Meetings Act is criminal in nature, a misdemeanor, carrying a penalty of a fine not exceeding $500.00, and/or imprisonment in the county jail not exceeding one year.

25 O.S.2001, § 314. This Court has previously held: “Wilfulness does not require a showing of bad faith, malice, or wantonness, but rather, encompasses conscious, purposeful violations of the law or blatant or deliberate disregard of the law by those who know, or should know the requirements of the Act.” Rogers v. Excise Bd. of Greer County, 1984 OK 95, ¶ 14, 701 P.2d 754, 761. The Court of Criminal Appeals has held regarding the misdemeanor penalty: “The third allegation is that there was no proof of criminal intent. However, the record discloses that the failure to comply with the Open Meeting Act was a willful violation. Beyond that, the criminal intent needs not be proven since this was a crime classified as in malum prohibitum.”

Hillary v. State, 1981 OK CR 78, ¶ 5, 630 P.2d 791, 793. ¶6 The opinion of this Court puts the Trust in an impossible position. Previous opinions of the Court entitle the Trust to rely on opinions of the Attorney General; in fact, they must follow those opinions unless this Court has effectively overruled them. Now, the majority opinion orders the district court to determine the Trust’s willfulness in what the Court has found to be a violation. A determination of a willful violation subjects the members of the Trust to possible criminal prosecution. Public officials should not face

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this type of dilemma in trying to perform their duties for the citizens of Oklahoma. ¶7 Accordingly, I dissent to this section of the majority opinion.

1. 2006 Okla.Sess.Laws, ch. 1, § 11.

2010 OK 47 EAGLE BLUFF, L.L.C., Plaintiff/Appellee, v.

PATRICK TAYLOR and MARSHALETA M. TAYLOR, Defendants/Appellants.

No. 105,982. June 22, 2010 CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION III, ON APPEAL FROM THE DISTRICT COURT OF DELAWARE COUNTY, STATE OF OKLAHOMA HONORABLE ROBERT G. HANEY, TRIAL JUDGE ¶0 Real estate developer brought a small claims action against property owners, seeking $900 for a pro rata share of subdivision maintenance expenses. Property owners counterclaimed for breach of contract, fraud in the inducement, fraud, and deceit. These counterclaims related to the parties’ real estate purchase contract, and owners sought damages in excess of $10,000. Property owners moved to transfer the case to the civil docket citing 12 O.S.2001 § 1757, which gives the trial court discretion to transfer cases. The trial court transferred the case to the civil docket, but did so with the observation that the transfer was mandatory under 12 O.S. 2001 § 1759. After transfer, developer recovered on its claim for maintenance expenses and prevailed on the counterclaims. The court awarded an attorney’s fee to developer for services related to both its claim and the counterclaims. In doing so, the court relied on the fee sanctions provision of 12 O.S.2001 § 1757(C), believing it was applicable to all transferred cases. On appeal, property owners contended the trial court erred by including services related to the defense of the counterclaims in the attorney’s fee award. The Court of Civil Appeals agreed and reversed. This Court previously granted certiorari to provide precedential guidance for the award of an attorney’s fee in cases transferred from the small claims docket. We hold (1) the transfer of the case from the small claims docket was a mandatory transfer pursuant to § 1759(A) and not a discretionary transfer governed by § 1757; (2) the attorney’s fee provision 1504

of § 1757(C) is not applicable in cases of mandatory transfers pursuant to § 1759; and (3) no independent basis existed for awarding an attorney’s fee for services related to developer’s defense of the counterclaims that triggered the mandatory transfer of the case.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE TRIAL COURT REVERSED. Tommy R. Dyer, Jr., DAVIS & THOMPSON, Jay, Oklahoma, for Plaintiff/Appellee, EAGLE BLUFF, L.L.C. Douglas L. Boyd, Tulsa, Oklahoma, for Defendants/Appellants, PATRICK L. TAYLOR and MARSHALETA M. TAYLOR REIF, J: ¶1 The issue presented for certiorari review concerns the circumstances under which a trial court can award an attorney’s fee to a plaintiff who prevails on his claim and defendants’ counterclaims following transfer of the case from the small claims docket to the district court civil docket. More particularly, we are asked to determine whether an attorney’s fee can be awarded under 12 O.S.2001 § 1757(C)1 in all cases where a defendant requests a transfer; including cases in which a transfer from small claims to the civil docket is otherwise mandated by 12 O.S.2001 § 17592 due to the defendant’s filing of counterclaims in excess of the small claims jurisdictional limit. We are also asked to determine whether the record shows a basis to support the trial court’s award of an attorney’s fee as a sanction under the bad faith exception to the American Rule and 12 O.S.2001 § 2011.1.3 Upon certiorari review, we hold that a defendant’s request for transfer is not the determining factor in the application of § 1757(C), but instead it is the nature of the transfer — discretionary under § 1757(A) and (B) versus mandatory under § 1759 — that determines the applicability of § 1757(C). The legislature expressly limited the applicability of § 1757(C) to cases “so transferred,” an unmistakable reference back to the discretionary authority and procedure of § 1757(A) and (B). The statute governing mandatory transfers, 12 O.S.2001 § 1759, does not similarly provide an attorney’s fee in cases so transferred. We further conclude that the record does not support the award of an attorney’s fee under either the bad faith exception to the American Rule or under § 2001.1.

Accordingly, we reverse the trial court’s award

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of an attorney’s fee to developer for services related to developer’s successful defense of owners’ counterclaims, notwithstanding the transfer of the case from small claims to the civil docket.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY ¶2 On August 1, 2001, Eagle Bluff, L.L.C., as the developer of approximately ten acres of waterfront property near Grand Lake, filed a Plat and a “Restrictive Covenants & Dedication,” for thirteen lots and a common area (Lot 14) of approximately three acres. On August 10, 2001, Patrick L. Taylor and Marshaleta Taylor contracted with the developer for the purchase of Lot 8.4 The parties also signed an Addendum to delay the closing until completion of the improvements.5 At that time, the developer was in the process of completing improvements to the property, including installing a paved road, street lighting, and a gated entrance. The parties closed on November 27, 2001. Owners subsequently constructed a home on their lot. ¶3 The final recorded restrictive covenants provided that a homeowners’ association would be formed after the sale of nine lots, and the association would be responsible for the assessment of the maintenance expenses. Prior to the formation of the association, the developer was to act in the stead of the association and was given all powers, including the right to assess maintenance expenses.6 In September 2004, the developer notified the property owners that nine lots had not been sold, and that a homeowners’ association was not being formed. However, the developer was instituting a common area charge of $75 monthly, effective October 1, 2004, for monthly expenses of managing the common area, such as mowing, electricity, water, and maintenance on the road and gate. ¶4 On September 21, 2005, the developer filed its claim in small claims court against the owners for $900. The developer sought recovery for unpaid assessments for the owners’ pro rata share of the maintenance expenses based on the restrictive covenants or, alternatively, unjust enrichment. The owners answered and asserted counterclaims for breach of contract for developer’s failure to perform its obligation to construct a lake on Lot 14; for false statements made by developer to fraudulently induce the property owners into entering into Vol. 81 — No. 18 — 7/3/2010

the contract; and for fraud and deceit for filing covenants and restrictions different from those provided to the owners.7 The owners sought damages in excess of $10,000, and moved to transfer the case to the district court civil case docket based on the discretionary transfer provision of 12 O.S.2001 § 1757 and the mandatory transfer provision of 12 O.S.2001 § 1759. The owners stated that there was no agreement among the parties to maintain the action within the small claims division, and that the court was therefore required to transfer the case under section 1759. ¶5 The court transferred the case to the civil docket of the district court. In its order, the court stated that “[p]ursuant to 12 O.S. § 1759, this Court is required by law to transfer this case due to the filing of counterclaims by Defendants with a prayer for judgment exceeding $4,500.00.” The developer then filed its petition in district court for assessments under paragraph 21 of the restrictive covenants, seeking its expenses for maintaining the streets, gate, watering system, and common areas.8 In the alternative, the developer sought damages based on unjust enrichment on the grounds that the owners benefited from the developer’s maintaining the common areas of the development. The developer also answered the counterclaims, asserting that it constructed a lake on Lot 14, but that the lake will not hold water.

The developer stated that it was exploring options with the homeowners regarding the lake. The developer also states that Marshaleta Taylor initialed each page of the final covenants at the time of her execution of the contract, and that she had both actual and constructive notice of the covenants prior to approval of the contract. ¶6 On July 25, 2007, the court granted the developer summary recovery for the pro rata share of the maintenance expenses. In addition, the court granted the developer summary relief against the owners on all their claims of fraud except for the claim of fraud relating to the construction of the lake on Lot 14. The court also denied developer’s request for summary relief on owners’ claim for breach of contract relating to the construction of the lake. At trial, the court sustained the developer’s demurrer as to owners’ claim for fraud in the inducement relating to the construction of the lake. The jury found in favor of the developer on the owners’ remaining claim for breach of contract relating to construction of the lake.

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The court entered judgment for the developer for $1,575 for maintenance expenses, and for the developer and against the owners on their counterclaims. ¶7 The developer then sought attorney’s fees in the total amount of $90,927.50, relying on 12 O.S.2001 § 1757(C). With respect to the counterclaims, the developer relied on section 936 as support for an award of fees incurred in the defense of owners’ claims for breach of contract relating to the construction of the lake. ¶8 The trial court found that the developer was entitled to recover attorney’s fees for the prosecution of its claim in the amount of $13,500, for the defense of the counterclaim for breach of contract in the amount of $48,000, and for the defense of the counterclaim for fraud in the inducement claim in the amount of $19,500, all pursuant to 12 O.S.2001 § 1757(C).

The property owners appealed the fee awards of $48,000 with respect to the breach of contract claim and $19,500 with respect to the fraud in the inducement claim. The fee award of $13,500 with respect to the claim for maintenance fees was not appealed. The Court of Civil Appeals reversed the fee awards on the counterclaims on the grounds that the developer was not entitled to attorney’s fees under section 1757(C), and that “Plaintiffs are not entitled to attorney fees because § 1759 does not allow attorney fees.” Although we agree that the Court of Civil Appeals properly determined that section 1757(C) does not apply to mandatory transfers pursuant to § 1759, we previously granted certiorari to give precedential guidance concerning the award of an attorney’s fee in cases transferred from the small claims docket.

A TRIAL COURT CANNOT AWARD ATTORNEY FEES UNDER SECTION 1757(C) WHERE EXCESS COUNTERCLAIMS REQUIRE A TRANSFER FROM THE SMALL CLAIMS DOCKET UNDER SECTION 1759(A) ¶9 This case concerns a dispute over the scope of statutory authority for the award of an attorney’s fee in cases transferred from the small claims docket. The controversy presents a question of law and this Court has plenary authority to independently decide the issue without deference to the trial court’s determination. See Finnell v. Jebco Seismic, 2003 OK 35, ¶ 7, 67 P.3d 339, 342; Neil Acquisition, L.L.C. v.

Wingrod Investment Corp., 1996 OK 125, ¶ 5, n.1, 932 P.2d 1100, 1103.

1506

¶10 Statutory law governing small claims procedure has two statutes addressing transfer of cases. The first statute — 12 O.S.2001 § 1757 — addresses transfer of cases “on the motion of the defendant” and authorizes transfer “in the discretion of the court.” This statute provides for the award of a reasonable attorney’s fee to “the plaintiff [who] ultimately prevails in the action so transferred.” The second statute — 12 O.S. Supp. 2009 § 1759 — addresses transfer of cases in which a claim, a counterclaim, or setoff is filed for an amount in excess of the small claims limit. This statute directs that “the action shall be transferred to another docket of the district court unless both parties agree in writing...that said claim, counterclaim, or setoff shall be tried under the small claims procedure.” This statute is silent concerning the award of an attorney’s fee in the event the plaintiff ultimately prevails in a transferred case. Reconciling these statutes and applying them to the facts of the case at hand is likewise a question of law. ¶11 It is clear from the language in each section that they address different circumstances under which transfer takes place. Under § 1757(A), a defendant must affirmatively seek the transfer by motion and the decision to transfer lies within the discretion of the court. Additionally, before exercising its discretion, § 1757(B) requires the court to hold a hearing on the motion to transfer and to consider a four-factor test in deciding whether to transfer or retain the case. In a case transferred under these circumstances, a plaintiff is entitled to recover a reasonable attorney’s fee upon prevailing in a case “so transferred.” ¶12 The circumstance to which § 1759 applies is a case involving a claim, counterclaim, or setoff for an amount in excess of the jurisdictional limit. The statute provides that such cases “shall be transferred to another docket of the district court.” While § 1759 does not require a defendant to request the transfer, this Court has said that a small claims defendant with an excess counterclaim is required to assert it and to “press for a transfer of the case to another district court docket at the peril of losing the opportunity to bring the counterclaim in a later action.” McDaneld v. Lynn Hickey Dodge, 1999 OK 30, ¶ 1, 979 P.2d 252, 253. The statute allows the parties to agree in writing to try such excess claims under small claims procedure. In the event the trial court does transfer a case involving such excess

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claims, § 1759 makes no provision for a plaintiff to recover a reasonable attorney’s fee should the plaintiff prevail in the transferred case. ¶13 Reading sections 1757 and 1759 together reveals that the Legislature did not intend for a plaintiff to recover an attorney’s fee in every case that is transferred from the small claims docket. The Legislature provided for recovery of an attorney’s fee only where the court has transferred a case in the exercise of its discretion, and in accordance with the procedure set forth in subsections (A) and (B) of § 1757. The language in subsection (C) of § 1757 that authorizes an attorney’s fee in cases “so transferred” clearly refers to a transfer in accordance with subsections (A) and (B). ¶14 In the present case, the counterclaims exceeded the statutory limits of the small claims court, and the parties did not agree to maintain the action in small claims court. The court was therefore required to transfer the action under § 1759, which it did. Given the fact that the court was not exercising its discretionary power to transfer a case from the small claims under § 1757(A) and (B), the attorney’s fee provision of § 1757(C) is inapplicable. The property owners’ filing of the motion to transfer the case does not change this result, as they were obliged to “press for a transfer of the case to another district court docket” as this Court explained in the McDaneld case. Because § 1759 does not provide for the recovery of an attorney’s fee if a plaintiff prevails in the transferred action, the award of an attorney’s fee by the court to which the case is transferred will be governed by the law generally applicable to attorney fees. ¶15 Following the transfer under § 1759, the developer was only entitled to recover an attorney’s fee if supported by an independent basis for recovery. Attorney’s fees are only awarded in Oklahoma if authorized by agreement of the parties, by statute, or where the fee is an item of damage caused by the wrong itself rather than an item of expense incurred in attempting to secure redress for the wrong. See Griffin v. Bredouw, 1966 OK 226, 420 P.2d 546.

This is known as the “American Rule.” ¶16 “The American Rule is firmly established in this jurisdiction. That is, each litigant bears the cost of his/her legal representation and our courts are without authority to assess and award attorney fees in the absence of a specific statute or a specific contract therefor between Vol. 81 — No. 18 — 7/3/2010

the parties. Exceptions to the American Rule are narrowly defined.” Kay v. Venezuelan Sun Oil Co., 1991 OK 16, ¶ 5, 806 P.2d 648, 650 (footnotes omitted). Statutes authorizing the award of attorney’s fees must be strictly construed, and exceptions to the American Rule are carved out with great caution because liberality of attorney’s fees awards against the non-prevailing party have a chilling effect on open access to the courts. See Beard v. Richards, 1991 OK 117, ¶ 12, 820 P.2d 812, 816. ¶17 The trial court awarded attorney’s fees to the developer on both the developer’s claim for maintenance fees and on property owners’ counterclaims for breach of contract and fraud in the inducement. Property owners did not appeal the award of attorney’s fees on the developer’s claim for maintenance fees, and that award has been paid. With respect to the counterclaim for fraud in the inducement, there is no basis for the trial court’s award of fees. There is no statutory authority for an award of attorney fees for a claim based on fraud and attorney fees are not generally an element of damages for fraud, fraudulent inducement, and deceit. See Stevenson v. Stevenson, 1984 OK CIV APP 10, 680 P.2d 642. ¶18 With respect to property owners’ counterclaim for breach of contract, the owners relied on an Addendum to their purchase contract for the lot. The Addendum included a provision whereby the developer agreed to construct a lake on the subdivision grounds. Property owners stated that the developer breached the contract by failing to construct the lake as required.

The developer contends that 12 O.S.2001 § 936 provides support for the award of fees incurred in defense of property owners’ claims for breach of contract relating to the construction of the lake. We cannot agree. ¶19 “[T]he mandatory provisions of § 936 that the prevailing party in an action to recover for labor and services shall be allowed a reasonable attorney fee are strictly applied.” Kay, 1991 OK 16, ¶ 5, 806 P.2d at 650 (footnotes omitted). The proposed construction of the lake was not a contract for labor or services within section 936. The construction was a part of the general improvements to the development, which were included in the total market value of the property. The cost of the construction of the lake was not separate and apart from the real estate contract.

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¶20 Section 936 does not apply in actions for breach of contract to sell real property. In Holbert v. Echeverria, 1987 OK 99, 744 P.2d 960 (superseded by statute on other grounds), this Court held that a vendor of real estate under a construction and sale contract was not entitled to attorney’s fees after successfully defending against a suit by purchasers alleging fraud and breach of contract. The Court noted that the contract between the seller and purchasers did not allude to an attorney’s fee in the event of litigation. The court then stated that the applicability of the labor and services provision of section 936 is determined by the “underlying nature of the suit.” Id. at ¶ 20, 744 P.2d at 966 (citing Burrows Const. Co. v. Independent School Dist., 1985 OK 57, ¶ 8, 704 P.2d 1136, 1138 and Ferrell Construction Co. v. Russell Creek Coal Co., 1982 OK 24, ¶ 30, 645 P.2d 1005, 1011). Where recovery is sought for labor and services, such as a failure to pay for them, the statute applies.

However, where the suit is for damages arising from the breach of an agreement “that relates to labor and services,” the statute is not applicable. Holbert, 1987 OK 99, ¶ 20, 744 P.2d at 966.

The question is “whether the damages arose directly from, or are merely collateral to, the rendition of labor or services.” Id. ¶21 The court in Holbert noted that the seller did not counterclaim for the value of his labor and services, and that the “[r]ecovery of money damages for breach of a contract to convey improved real property clearly was the gravamen of the redress sought.” Id. The court observed that “the primary purpose of the contract was to construct the house and to convey to Purchasers the real property on which it was located.” Id. The court further found that the plain language of section 936 did not encompass realty, and that a house could not be characterized as “goods, wares or merchandise.” Id. at ¶ 21; 744 P.2d at 966; see also Oltman Homes, Inc. v. Mirkes, 2008 OK CIV APP 64, 190 P.3d 1182. ¶22 In the present case, it is clear from the record that the owners’ counterclaim was an action for breach of a real estate contract. Owners sought money damages for breach of the contract to convey improved real property, and not for the failure to properly construct the lake or any labor and services in the construction of the lake. The construction of the lake was part of the total market value of the property, and there is nothing in the record to indicate that the cost of construction of the lake was sepa1508

rate and apart from the real estate contract. In short, owners’ counterclaim concerned developer’s alleged breach of a contract that merely “relate[d] to labor and services,” and that contract did not provide for recovery of attorney’s fees. There simply was no basis for an award of fees for the defense of the counterclaim based on breach of contract. ¶23 The developer also requested an attorney’s fee based on the bad faith exception to the American Rule and 12 O.S.2001 § 2011.1.9 The issues of bad faith and section 2011.1 sanctions were not raised until the developer’s response to the motion to reconsider. The developer did not request an evidentiary hearing on these issues, and they were not part of any evidentiary hearing. The trial court made no findings on bad faith or frivolous claims, and these issues may not be considered on appeal.10 ¶24 The trial court’s award of an attorney’s fee to Eagle Bluff for prevailing on the defendants’ counterclaims is reversed.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE TRIAL COURT REVERSED. ¶25 ALL JUSTICES CONCUR. 1. Title 12 O.S.2001 § 1757(C) provides: Within twenty (20) days of the date the transfer order is signed, the plaintiff shall file a petition that conforms to the standards of pleadings prescribed by the Oklahoma Pleading Code. The answer of the defendant shall be due within twenty (20) days after the filing of the petition and the reply of the plaintiff in ten (10) days after the answer is filed.

If the plaintiff ultimately prevails in the action so transferred by the defendant, a reasonable attorney’s fee shall be allowed to plaintiff’s attorney to be taxed as costs in the case, in addition to any sanctions which the court may deem appropriate.

2. Title 12 O.S.2001 § 1759 provides: A. Except as provided by subsection C of this section, if a claim, a counterclaim, or a setoff is filed, prior to the expiration of the time prescribed by Section 1758 of this title, for an amount in excess of Six Thousand Dollars ($6,000.00), the action shall be transferred to another docket of the district court unless both parties agree in writing and file said agreement with the papers in the action that said claim, counterclaim, or setoff shall be tried under the small claims procedure. If such an agreement has not been filed, a judgment in excess of Six Thousand Dollars ($6,000.00) may not be enforced for the part that exceeds Six Thousand Dollars ($6,000.00). If the action is transferred to another docket of the district court, the person whose claim exceeded Six Thousand Dollars ($6,000.00) shall deposit with the clerk the court costs that are charged in other cases, less any sums that have been already paid to the clerk, or the claim shall be dismissed and the remaining claims, if any, shall proceed under the small claims procedure.

B. If the action is transferred to another docket of the district court, the plaintiff shall file a petition that conforms to the standards for pleadings prescribed by the Oklahoma Pleading Code, Section 2001 et seq. of this title, within twenty (20) days from the timely filing of the claim, counterclaim, or setoff. The answer of the defendant shall be due within twenty (20) days after the filing of the petition and the reply of the plaintiff shall be due within ten (10) days after the answer is filed.

C. Except as provided by Section 1757 of this title, if a defendant does not file a counterclaim within the period prescribed by Section 1758 of

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this title, the action shall not be transferred to another docket of the district court.

3. Title 12 O.S.2001 § 2011.1 provides: In any action not arising out of contract, if requested the court shall, upon ruling on a motion to dismiss an action or a motion for summary judgment or subsequent to adjudication on the merits, determine whether a claim or defense asserted in the action by a nonprevailing party was frivolous. As used in this section, “frivolous” means the claim or defense was knowingly asserted in bad faith or without any rational argument based in law or facts to support the position of the litigant or to change existing law. Upon so finding, the court shall enter an order requiring such nonprevailing party to reimburse the prevailing party for reasonable costs, including attorney fees, incurred with respect to such claim or defense. In addition, the court may impose any sanction authorized by § 2011 of this title.

4. Marshaleta Taylor initially contacted the developer in June or July of 2001, and the developer provided a preliminary draft of the Plat and Covenants for her review. The developer advised Taylor that sales would not take place until the Plat and Covenants were finalized and recorded. The preliminary draft did not include language authorizing the developer to act in place of a homeowners’ association prior to its formation. In the final recorded version of the “Restrictive Covenants & Dedication,” language had been added at the end of paragraph 21 authorizing the developer to act in place of a homeowners’ association prior to its formation.

5. Paragraph 3 of the Addendum states, in part: The parties recognize that there are a number of substantial improvements to the property being platted as Eagle Bluff Subdivision which have not yet been completed by Seller. The parties further recognize and agree that the completion of said improvements and full payment by the Seller of the cost thereof is essential to the value of the subject property and that without those improvements the Buyer would not be willing to pay the purchase price set forth above. Among those improvements are (i) the full installation of all required utilities; (ii) the completion of grading and paving of the roadway through the subdivision, as depicted on the attached Plat; (iii) the completion of the construction of the lake on Lot 14; and (iv) the completion of the construction of the gated entryway to the subdivision, as depicted on “Exhibit B” attached hereto. It is therefore agreed that the closing date for this transaction shall be within (30) days following the completion of these improvements.

6. Paragraph 21 of the Restrictive Covenants and Dedication states: The Eagle Bluff Homeowners Association shall be formed at such time as nine (9) of the lots reflected on the accompanying plat have been sold or otherwise transferred to third party purchasers. Each purchaser of a lot or lots shall be required to become a member of the Eagle Bluff Homeowners Association, after it has been formed. The Eagle Bluff Homeowners Association shall assess the owner of each lot his proportionate share of money for maintaining the water system, the property, and all other costs sustained in providing common area maintenance for streets, utilities and other similar services. The assessment shall be on a per lot basis of those lots sold, all lots being equally assessed. The Eagle Bluff Homeowners Association shall be empowered to promulgate such other and further written specifications of the members rights and duties as it desires, provided, such specifications are not inconsistent with these restrictive covenants. Until such time as the Eagle Bluff Homeowners Association shall have been formed, Eagle Bluff shall act in the stead of such homeowners association, and shall have full governing authority to do all things contemplated by the formation and operation of such homeowners association.

7. The owners also asserted a counterclaim for specific performance, which they dismissed on September 25, 2006.

8. The vast majority of the expenses were for the mowing of Lot 14, and the expenses related to the gate (electric and phone).

9. Title 12 O.S.2001 § 2011.1 provides: In any action not arising out of contract, if requested the court shall, upon ruling on a motion to dismiss an action or a motion for summary judgment or subsequent to adjudication on the merits, determine whether a claim or defense asserted in the action by a nonprevailing party was frivolous. As used in this section, “frivolous” means the claim or defense was knowingly asserted in bad faith or without any rational argument based in law or facts to support the position of the litigant or to change existing law. Upon so finding, the court shall enter an order requiring such nonprevailing party to reimburse the prevailing party for reasonable costs, including attorney fees, incurred with respect to such claim or defense. In addition, the court may impose any sanction authorized by Section 2011 of this title.

10. Like other sanctions, attorney’s fees should not be assessed lightly or without fair notice, an opportunity to be heard, and without a finding of bad faith. Winters v. City of Oklahoma City, 1987 OK 63, ¶¶ 11-12, 740 P.2d 724, 727.

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2010 OK 51 Rural Water Sewer and Solid Waste Management, District No.1, Logan County, Oklahoma, an agency and legally constituted authority of the State of Oklahoma, Plaintiff/ Counter-Defendant/Appellee, v. City of Guthrie, an Oklahoma Municipality; the Guthrie Public Works Authority, a public trust, Defendants/Counter-Claimants/ThirdParty Plaintiffs/Appellants, v. Department of Agriculture, Third-Party Defendant/ Appellee, and Community Program Loan Trust 1987A, a Massachusetts Business Trust, Third-Party Defendant.

No. 107,468. June 29, 2010 CERTIFIED QUESTIONS OF LAW ¶0 The United States Court of Appeals for the Tenth Circuit certified two questions.

Question One addresses whether article 5, section 51 of the Oklahoma Constitution precludes a rural water district from entering or enforcing loan agreements that contain protection from competition by other water districts. Question Two inquires as to whether there is a “police power” or “public safety” exception to the Oklahoma Constitution’s article 5, section 51, prohibition against exclusive rights, privileges, or immunities that would validate a rural water district’s loan agreement that included protection from competition during the term of the contract.

CERTIFIED QUESTIONS ANSWERED. James C. Milton and Courtney Bru, Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa, Oklahoma, for Defendants/Appellants City of Guthrie and the Guthrie Public Works Authority.

Michael D. Davis, Steven M. Harris, Doyle Harris Davis & Haughey, Tulsa, Oklahoma, for Plaintiff/Appellee Rural Water, Sewer and Solid Waste Management District No. 1.

John C. Richter, United States Attorney, Steven K. Mullins & Kay Sewell, Assistant United States Attorneys, United States Attorney’s Office, Oklahoma City, Oklahoma, for ThirdParty Defendant/Appellee Department of Agriculture.

COLBERT, J. ¶1 The Rural Water, Sewer, and Solid Waste Management District No. 1 (Logan-1), filed an action in the Western District of Oklahoma

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against the City of Guthrie, an Oklahoma Municipality and the Guthrie Public Works Authority, a public trust (collectively Guthrie), claiming unlawful encroachment on its service area in an alleged violation of a federal law that protects rural water districts from competition while the district remains indebted on loans obtained from the United States Department of Agriculture (USDA). On appeal, the United States Court of Appeals for the Tenth Circuit certified two questions pursuant to the Revised Uniform Certification of Questions of Law Act, Okla. Stat. tit. 20, §§ 1601-1611 (2001): 1. Whether article 5, section 51 of the Oklahoma Constitution precludes Logan-1 from either entering into loan agreements with the USDA that include 7 U.S.C. section 1926(b)’s protection from competition, or enforcing its claimed section 1926(b) protection against other Oklahoma water districts?

2. If either is so, whether there is a “police power” or “public safety” exception to the Oklahoma Constitution’s article 5, section 51 prohibition against exclusive rights, privileges, or immunities that would, nevertheless, validate Logan-1’s loan agreements with the USDA that include section 1926(b) protection from competition in this case involving provision of a rural public water service?

After careful examination of the Oklahoma Rural Water Districts Act, Okla. Stat. tit. 82, §§ 1324.1 through 1324.35 (2001 & Supp. 2009), under which the District was created, this Court finds no language purporting to grant an exclusive franchise by the Oklahoma Legislature to a district. Following the reasoning in Glenpool Util. Serv’s Auth. v. Creek County Rural Water Dist. No. 2, 861 F.2d 1211 (10th Cir.1988), cert. den., 490 U.S. 1067 (1989), this Court holds that an indebted rural water district’s right to temporarily exclude a competitor’s water service within its district is a right bestowed upon the indebted rural water district by Congress pursuant to the terms of the USDA loan agreement; therefore, article 5, section 51 of the Oklahoma Constitution is not implicated. Furthermore, because article 5, section 51 neither precludes nor prohibits enforcement of USDA loan agreements with the accompanying section 1926(b) protection, certified question two is rendered moot.1 1510

FACTS ¶2 Pursuant to the Oklahoma Statutes, title 20, section 1604(A)(2), the federal court has submitted “[t]he facts relevant to the question[s], showing fully the nature of the controversy out of which the question[s] arose.” Those facts are repeated here, substantially verbatim. ¶3 In 1972, the Logan County Board of Commissioners, acting pursuant to state law, created Appellee, Logan-1 as “a non-profit association” that would provide water to rural Logan County, except for the area of the county located within the city limits of Guthrie, Oklahoma, as those limits existed at that time. Appellants, Guthrie, already provided water service to the City itself. ¶4 Beginning in 1976, Logan-1 obtained several loans from the USDA. These loans were part of a program established in 1961, when “Congress amended the Consolidated Farm and Rural Development Act, 7 U.S.C. §§ 19212009n, to allow nonprofit water associations to borrow federal funds for ‘the conservation, development, use, and control of water . . . primarily serving . . . rural residents.’” Moongate Water Co. v. Dona Ana Mut. Domestic Water Consumers Ass’n, 420 F.3d 1082, 1084 (10th Cir. 2005)(quoting 7 U.S.C. § 1926(a)(1)).2 Logan-1 obtained a total of five of these loans, two in 1976, and one each in 1978, 1982 and 2003.3 ¶5 Sometime in 2003, a land developer approached Guthrie seeking water service for his planned development, the Pleasant Hills Apartments. No one disputes that this development is located within the geographic territory that the Logan County Commissioners assigned to Logan-1 in 1972. Nonetheless, it was Guthrie that subsequently extended its water system in order to provide Pleasant Hills with water service. ¶6 As a result, Logan-1 sued Guthrie, in July 2005, claiming that Guthrie had unlawfully encroached on Logan-1’s service area, which was protected from competition by section 1926(b) and the terms of its loan agreements which had been authorized by the Oklahoma Legislature pursuant to title 82, section 1324.10(A)(4).4 Section 1926(b) protects any rural water district that remains indebted on loans obtained from the USDA from competition from other water districts “within the borrowing entity’s service area.” Doña Ana Mut. Domestic Water Consumers Ass’n. v. City of Las Cruces, 516 F.3d 900, 903 (10th Cir. 2008)

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(Doña Ana). Also known as the “Anti-Curtailment” provision, section 1926(b) specifically provides:

provide service and (2) has actually done so, or could do so in a reasonable time. See Sequoyah County, 191 F.3d at 1201-03.

The service provided or made available through any [indebted rural water] association shall not be curtailed or limited by inclusion of the area served by such association within the boundaries of any municipal corporation or other public body, or by the granting of any private franchise for similar service within such area during the term of such loan; nor shall the happening of any such event be the basis of requiring such association to secure any franchise, license, or permit as a condition to continuing to serve the area served by the association at the time of the occurrence of such event.

¶9 In addition to these principles defining the protection which section 1926(b) affords rural water districts from competition, state law cannot change the service area to which the protection applies after that federal protection has attached. See Pittsburg County, 358 F.3d at 715. For instance, “where the federal § 1926 protections have attached, § 1926 preempts local or ‘state law [that] can be used to justify a municipality’s encroachment upon [a] disputed area in which an indebted association is legally providing service under state law.’”

Id. (quoting Rural Water Sys. No. 1 v. City of Sioux Ctr., 967 F.Supp. 1483, 1529 (1997), cited with approval in Sequoyah, 191 F.3d at 1202, 1202 n.8, 1203, & 1204 n.10).

7 U.S.C. § 1926(b). ¶7 Section 1926(b)’s protection serves two goals. See Pittsburg County, 358 F.3d at 715.

First, it provides for: greater security for the federal loans made under the program . . . By ‘protecting the territory served by such an association[‘s] facility against competitive facilities, which might otherwise be developed with the expansion of the boundaries of municipal and other public bodies into an area served by the rural system,’ § 1926 protects the financial interests of the United States, which is a secured creditor of the water association, from reduction of the water association’s revenue base.

Id. (emphasis added). The second interest served by section 1926(b)’s protection from competition is the “promotion of rural water development ‘by expanding the number of potential users of such systems, thereby decreasing the per-user cost.’” Id. ¶8 “[T]o receive the protection against competition provided by § 1926(b) a water association must (1) have a continuing indebtedness… [under loans obtained from] the [federal government], and (2) have provided or made available service to the disputed area.” Moongate Water, 420 F.3d at 1084. Thus, the Tenth Circuit Court has held that a water district’s service area protected from competition under section 1926(b) is not necessarily the entire geographic area granted to the district under state law, but is instead the area (1) for which the water district has a right under state law to Vol. 81 — No. 18 — 7/3/2010

SUMMARY OF PARTIES’ ARGUMENTS ¶10 The main contention by Logan-1 is that pursuant to title 82, section 1324.10(A)(4), of the Oklahoma Statutes, Logan-1 has authority to enter into loan programs with the federal government, including section 1926(b), which limits the ability of a municipality to curtail the water services a district provides. Logan-1 relies on Glenpool, 861 F.2d 1211, which held that article 5, section 51 was not violated by the curtailment provision in section 1926(b) because the protective right contained in section 1926(b) came from Congress, not the Oklahoma Legislature and, thus the protection granted to Logan-1 is conditional and temporary, rather than an exclusive franchise. Additionally, Logan-1 argues that even if the loans are contrary to article 5, section 51, Oklahoma recognizes exceptions to the state constitution in situations where the use of the police power is necessary to further a public interest. Specifically, Logan-1 offers case law in support of the proposition that “[w]here a statute touches upon the public health and welfare, the statute cannot be deemed [an] unconstitutional class legislation, even though a specific class of persons or businesses is singled out, where the legislation in its impact is free of caprice and discrimination and is rationally related to the public good.” Kimery v. Pub. Serv’s Co. of Okla., 1980 OK 187, ¶ 13, 622 P.2d 1066, 1071. ¶11 Guthrie concedes that section 1324.10(A)(4) generally allows Logan-1 to obtain federal loans. Guthrie’s claim, however, is that as far as section 1926(b) shelters Logan-1

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from protection, the provision is contrary to article 5, section 51 of the Oklahoma Constitution, which establishes that the “Legislature shall pass no law granting to any association, corporation, or individual any exclusive rights, privileges, or immunities within this State.”

Guthrie contends that the Legislature’s enactment of section 1324.10 violates the Oklahoma Constitution by eliminating competition with Logan-1. To support its argument, Guthrie points to this Court’s decisions in Comanche County Rural Water Dist. No. 1 v. City of Lawton, 1972 OK 117, 501 P.2d 490 and Rural Water & Sewer Dist. No. 4 v. Coppage, 2002 OK 44, 47 P.3d 872, which allegedly dictate a finding that Logan-1 lacks the authority to enter into the loan agreements with the USDA and that if the Oklahoma Legislature granted a water district exclusive rights, such acts violate article 5, section 51 of the Oklahoma Constitution. ¶12 The Oklahoma Municipal League, the City of Elk City, the City of Muskogee, the City of Okmulgee, and the City of Owasso (collectively OML) as amici curiae; and the City of Coweta (Coweta)5, as amicus curiae in support of Guthrie’s position, contend that the Oklahoma Constitution prohibits the granting of an exclusive franchise to an Oklahoma utility, absent a vote of the people. The parties are clear to note that neither the Oklahoma Constitution, nor any Oklahoma law, prohibits the creation of water districts and the undertaking of federal loans, including section 1926, to fund those programs. What they urge may not occur, however, is a use of the federal protection to eliminate competition within a district’s geographic boundaries. OML and Coweta insist that section 1926(b) was not intended to apply to a district’s future water customers and only the actual customers existing at the time of the loan’s creation provide the collateral for the federal loan. In addition, OML asserts that section 1926(b) hinders a municipality’s capacity to provide sewer services, fire protection, and impairs economic development for the entire State because city services create jobs and raise money for new economic projects. Lastly, the parties jointly contend that no police power or public safety exception exists under current Oklahoma law.

DISCUSSION ¶13 Congress passed the Agricultural Act of 1961. Le-Ax Water Dist. v. City of Athens, 346 F.3d 701, 704 (6th Cir. 2003). Through Title III of the Act, known as the Consolidated Farm and 1512

Rural Development Act, Congress began funding water infrastructure loans to less creditworthy rural areas and small towns to encourage the development, use, and control of water.6 See 7 U.S.C. § 1926(a)(1). ¶14 In enacting this provision, “Congress intended § 1926(b) not only to safeguard the viability of rural water associations but also to encourage rural water development by expanding the number of potential users . . . .” Rural Water Dist. No. 1, Ellsworth County v. City of Wilson, 243 F.3d 1263, 1270, (10th Cir. 2001)(citing Scioto County Reg’l Water Dist. No. 1 v.

Scioto Water Inc., 103 F.3d 38, 40 (6th Cir. 1996)). The Act enables a protected association to spread its fixed costs over its customer base and prevent cost from becoming prohibitively expensive. As the Fifth Circuit aptly states, “[t]o allow expanding municipalities to ‘skim the cream’ by annexing and condemning those parts of a water association with the highest population density (and thus the lowest peruser cost) would undermine Congress’s purpose of facilitating inexpensive water supplies for farmers and other rural residents.” City of Madison v. Bear Creek Water Ass’n. Inc., 816 F.2d 1057, 1060 (5th Cir. 1987). After all, municipalities and other competitors remained free to construct lines and extend water service to these rural areas long before a district’s creation but instead, refrained, arguably because those rural areas were not profitable. ¶15 This action centers around whether the Oklahoma Legislature, in allowing rural water districts to participate in USDA loan programs that contain an anti-curtailment provision, has granted the rural water district an exclusive right or franchise in contravention of article 5, section 51 of the Oklahoma Constitution. “A legislative act is presumed to be constitutional and will be upheld unless it is clearly, palpably and plainly inconsistent with the Constitution.” Kimery, 1980 OK 187, ¶ 6, 622 P.2d at 1069; see also, Reherman v. Okla. Water Res. Bd., 1984 OK 12, ¶ 11, 679 P.2d 1296, 1300.

Whenever possible, this Court will construe statutes “so as to uphold their constitutionality.” Id. ¶ 6, 622 P.2d at 1069. ¶16 Rural water districts are creatures of statute. Westville Utils. Auth. v. Bennett, 1995 OK CIV APP 68, ¶ 9, 903 P.2d 880, 883; see also Okla. Stat. tit. 82, §§ 1324.1 through 1324.35.

They were created by the Oklahoma Legislature in 1963 “for the purpose of developing and providing an adequate rural water supply,

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gas distribution facilities, sewage disposal facilities and solid waste management system to serve and meet the needs of rural residents within the territory of the district.” Okla. Stat. tit. 82, § 1324.3. Upon its creation, a district “shall be a body politic and corporate and an agency and legally constituted authority of the State of Oklahoma for the public purposes” as defined by the Act. Okla. Stat. tit. 82, § 1324.6(6).

Section 1324.2(5) defines a “rural resident” as “any natural person, firm, partnership, association, corporation, business trust, federal agency, state agency, state or political subdivision thereof, municipality of ten thousand (10,000) persons or less, or any other legal entity, owning or having an interest in lands within the rural area located within the boundaries of the district.” Section 1324.2(6) further defines a “rural area” as an: area lying outside the corporate limits of any municipal corporation and includes any areas of open country, unincorporated communities, and, with the consent of the governing body thereof by ordinance duly adopted, may include the area within the corporate limits of any municipality having a population of less than ten thousand (10,000) persons according to the last decennial census, when said municipality is one of the petitioners for creation of a district or for the annexation of additional territory as provided by Section 1324.13 . . ..

The act further sets forth the procedures for organizing a district and mandates its creation following the proper presentation of a petition to the board of county commissioners. Okla.

Stat. tit. 82, §§ 1324.1 through 1324.35. ¶17 Creating a district in essence, requires the County Commissioners to draw boundaries by defining the “area which should be included in the district.” Okla. Stat. tit. 82, § 1324.6(5)7 The County Commissioners must “immediately declare the land described in the petition or any part thereof to be incorporated as a district” under the name of the purpose for which it is created. Okla. Stat. tit. 82, § 1324.6(6).

The existence of this language implies the Legislature’s intent to convey a service area to the district. If not, the act of identifying the district’s purpose, area to be served, and recording the legal descriptions with the county clerk and registrar of deeds would be futile. See Okla. Stat. tit. 82, § 1324.4.8 Thus, the plain language of the Act clearly creates a limited and restricted franchise9 to serve the defined area.

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However, such franchise is not exclusive10 of competition within a district’s geographical or territorial boundaries, and no legislative intent may be inferred to the contrary. See Comanche County, 1972 OK 117, 501 P.2d 490. ¶18 As a creature of statute, a district may exercise only the powers and jurisdiction delegated to it by the Legislature. Each district must operate as a nonprofit entity, charging only rates and fees necessary for the operation and maintenance of the water supply system.

See Okla. Stat. tit. 82, § 1324.11. Although exempted from taxes of any nature, a district has no power to levy taxes. Okla. Stat. tit. 82, §§ 1324.6(6),1324.22. In addition, districts are granted certain powers necessary to adequately perform the duties of a rural water district.

See Okla. Stat. tit. 82, § 1324.10. Included is the ability to borrow money or effectuate a contract in order to carry out the purpose of the district. Okla. Stat. tit. 82, § 1324.10(A)(4). The statutory vehicle enabling rural water districts to enter into loan agreements with the USDA is title 82 section 1324.10. That section provides in part: A. Every district incorporated hereunder shall have perpetual existence, subject to dissolution as provided by the Rural Water, Sewer, Gas and Solid Waste Management Districts Act, and shall have power to: ....

4. Borrow money and otherwise contract indebtedness for the purposes set forth in this act, and, without limitation of the generality of the foregoing, to borrow money and accept grants from the United States of America, or from any corporation or agency created or designated by the United States of America, and, in connection with such loan or grant, to enter into such agreements as the United States of America or such corporation or agency may require; and to issue its notes or obligations therefor, and to secure the payment thereof by mortgage, pledge or deed of trust on all or any property, assets, franchises, rights, privileges, licenses, rights-of-way, easements, revenues, or income of the said district; ....

9. Make any and all contracts necessary or convenient for the exercise of the powers of the district;

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....

Thus, the Act empowers rural water districts to enter into agreements/contracts and to “secure the payment thereof” that are “necessary or convenient” in furthering the district’s purpose. Id. In furthering a district’s purpose, the Legislature’s grant of authority includes authorization to accept conditions that accompany permissible loan and grant programs. See Glenpool, 861 F.2d at 1216. Relying upon this language, Logan-1, like many rural water districts, entered into loan agreements with the USDA to receive funding for its water system. ¶19 As previously stated, the general structure of the USDA loans are described as a federal-state finance program in which the federal government provides assistance to participating states to aid the development of, among other things, water service and management facilities to rural areas. These loans are secured by the borrowing district’s assets as a condition of the loan. See 7 U.S.C. § 1926(a). Subsection (b) limits competition and restricts a customer’s choice of service to the indebted association during the life of the loan. Id. at § 1926(b).

Like other federal-state cooperative programs, participation in the USDA program is voluntary and the States are given the choice of complying with the conditions set forth in the Act or forgoing the benefits of federal funding.11 In so borrowing, “Oklahoma-through its authorized . . . [districts]-bound itself and all of its subdivisions . . . to the [terms and] conditions . . .” of the federally funded program. Glenpool, 861 F.2d at 1216. ¶20 Guthrie does not appear to dispute Logan-1’s authority to obtain federal loans.

Rather, Guthrie advances the premise that section 1324.10 is unconstitutional to the extent that it authorizes a district to bind the State of Oklahoma to section 1926(b) protection. More specifically, it is alleged that a district’s section 1926(b) right to exclude a competitor’s water service runs afoul of article 5, section 51 of the Oklahoma Constitution. Guthrie pointedly notes that “where article 5, section 51 controls, this Court has refused to permit the Legislature to ‘sanitize’ a constitutional violation by contracting with the federal government.” Logan1 however, does not contend that it has an exclusive right to its service area in the sense that no other entity may ever overlap or acquire Logan-1’s geographical territory.

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¶21 “The Constitution [is] the bulwark to which all statutes must yield . . ..” Draper v.

State, 1980 OK 117, ¶ 8, 621 P.2d 1142, 1145. The framers’ intent and the citizens of Oklahoma must be considered in construing constitutional provisions. Okla. Elec. Coop., Inc. v.

Okla. Gas & Elec. Co., 1999 OK 35, ¶ 7, 982 P.2d 512, 514. The provision’s language controls unless such language is ambiguous. Id. ¶22 ¶ Article 5, section 51 of the Oklahoma Constitution states: “The Legislature shall pass no law granting to any association, corporation, or individual any exclusive rights, privileges, or immunities within this State.” (emphasis added).

The constitutional provision prevents the Oklahoma Legislature from granting an exclusive franchise. The prohibition applies only to the actions of the Oklahoma Legislature, and is triggered only when the Legislature’s actions are tantamount to granting “rights, privileges, or immunities” exclusive of all others. See Kimery,1980 OK 187, ¶ 13, 622 P.2d at 1071 (noting “[t]he inhibition against special privileges and immunities contained in Art. V, § 51, was intended to preserve equality between citizens, State v. Fletcher, 168 Okl. 538, 34 P.2d 595, 597 (1934), who are similarly situated, Noble State Bank v. Haskell, 22 Okl. 48, 97 P. 590 (1908)”).

Thus, the constitutional prohibition is directed at the “exclusiveness”, not at the granting of a franchise generally. The Oklahoma Legislature empowered water districts to accept a condition (not an exclusive right to serve) to further the district’s purpose. The ability to curtail a competitor’s water service for a limited time is derived solely from the federal legislature through section 1926(b), not the Oklahoma Legislature. Glenpool, 861 F.2d at 1216. In Glenpool, a federally indebted rural water district sought declaratory and injunctive relief against a municipality claiming the district had an exclusive right to furnish water service to a new development located within the district’s geographic territory as originally assigned by the Board of County Commissioners of Creek County in 1964. Like the defendants here, the municipality argued that the Oklahoma statute authorizing the water district to borrow from the federal government, coupled with section 1926(b) protection amounts to the granting of an exclusive franchise by the Oklahoma Legislature in contravention of the Oklahoma Constitution. Finding that there was no state legislative grant of an exclusive right to provide service, the Tenth Circuit held that the Oklahoma Legislature “authorized the acceptance

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of a condition” and that the district’s right to exclude the municipalities water service was granted by the federal legislature through section 1926(b). See Glenpool, 861 F.2d 1211.

Therefore, an indebted district’s right to be free from a competitor’s unqualified intrusion into its service area is a right granted by Congress, and only “Congress can terminate that right.”

Id. at 1216. Further, Oklahoma’s constitutional ban on the Oklahoma Legislature’s grant of an exclusive franchise does not apply to indirect, remote, or incidental benefits provided by Congress pursuant to the terms of a federally funded loan program. We agree with the Tenth Circuit’s conclusion that article 5, section 51 is neither implicated nor violated as no action by the Oklahoma Legislature has been taken that grants an exclusive right to a water district. ¶23 In addition, where federal section 1926(b) protections have attached, section 1926(b) preempts local or state law that can be used to justify a municipality’s (or any competitor’s) encroachment upon a disputed area in which the indebted association is legally providing service under state law. Pittsburg County, 358 F.3d at 715. Therefore, even assuming if section 1926(b) could be construed as violating the Oklahoma Constitution, the United States Supreme Court has long recognized that where a state law or constitution stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress under the Supremacy Clause, those laws are preempted and “judges of every state are bound thereby.” Robertson Properties, Inc. v. In re Detachment of Territory from Pub. Water Supply Dist. No. 8, 153 S.W.3d 320, 326 (Mo. Co. App. 2005); see Hines v. Davidowitz, 312 U.S. 52 (1941); see also U.S. Const. Art. VI, Cl. 2. As such, a state court’s decision on the effect of a federal statute is not binding on the federal courts. Rural Water Dist. No. 3 v. Owasso Util’s Auth., 530 F.Supp. 818, 823. In furthering the full purpose and objectives of Congress, federal courts have deemed a federally indebted rural water district’s service area as “sacrosanct.” See North Alamo Water Supply Corp. v.

City of San Juan, 90 F.3d 910, 915 (5th Cir. 1996) (per curiam) (quoting Bear Creeek Water Ass’n Inc., 816 F.2d at 1060-61). Therefore, section 1926 shall be liberally constructed to protect the indebted district from an unqualified intrusion. Glenpool, 861 F.2d at 1214. ¶24 Guthrie and OML as amici curiae, jointly interpret section 1926(b) as a complete infringeVol. 81 — No. 18 — 7/3/2010

ment of a municipality’s sovereignty. They advance the position that section 1926(b) “cripples” “both the State and an affected municipality [rendering them]. . . powerless to protect their citizens’ needs for adequate public safety, access to essential services, promotion of economic development and other benefits of government.” Amici curiae contend further that 1926(b) prohibits municipalities from providing water, often at rates lower than a district, to its own taxpayers and leaves taxpayers without fire protection because the volume of water required for fire fighting is made available only so long as it is paid for through water rates.

They add “it is not fiscally feasible to extend water lines solely for fire purpose.” We are not persuaded. ¶25 The overarching theme of section 1926(b) seeks to limit the actions of a municipality when those actions would lead to direct competition with the district’s customers while the district remains indebted to the federal government.

Owasso, 530 F. Supp. at 824. The Act’s purpose is two-fold: provide fresh and clean water to rural households, and protect the federal government as insurer of the loans. Le-Ax, 346 F.3d at 705. The court in Owasso held that section 1926(b) does not preclude municipalities from providing water outside of their city limits and within the geographic boundaries of a water district. Rather, section 1926(b) protection only becomes an issue when a municipality provides water in a manner that affects the water district’s ability to repay its federal loans. 530 F. Supp. at 824 (noting that there is “no conflict between the Oklahoma Statutes empowering municipalities to furnish water outside of their city limits and the Federal Act”). ¶26 The congressional enactment, however, does not preclude a municipality from exercising all municipal acts within the district.

Despite the anti-curtailment provision, jurisdictions that have addressed the issue have not read such language to prohibit a municipality from erecting and maintaining water lines within the district for fire protection purposes.

See Id., 530 F. Supp. at 823 (holding that section 1926(b)’s scope is limited to curtailment of competition with potential customers, not fire services); Sequoyah County, 191 F.3d at 1204 n.10; City of Sioux Ctr., 29 F. SupP.2d at 993; see also Glenpool, 861 F.2d at 1216 (finding that a municipality may regulate water lines for fire hydrants within the boundaries of a rural water district).

In fact, the right of an indebted association to

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supply water service within its service area under section 1926(b), coexists with a municipality’s right to provide fire protection. A district’s capacity to provide fire protection therefore, is not a consideration to invoke section 1926(b) protection. North Shelby Water Co. v.

Shelbyville Mun. Water & Sewer Comm’n, 803 F.Supp.15, 23 (E.D. Ky. 1992). ¶27 Likewise, a municipality’s sovereign right is not affected by the anti-curtailment provision. While a municipality cannot seek to engage in direct competition with an indebted water district during the life of the loan, nothing in the Act prevents a municipality from exercising its governmental functions to regulate water services to an overlapping service area within that district. For instance, Guthrie asserts that the anti-curtailment provision unconditionally prohibits a municipality from extending water service. This contention is incorrect. ¶28 A district’s right to exclude a competitor’s water service is a qualified not an exclusive right, limited in time and in scope so as not to severely impair a municipality from performing its governmental functions. The provision precludes competitive water services only while a district remains indebted to the USDA to the extent that a competitor’s services would curtail or limit the indebted district’s ability to provide water services and repay its loans.

Accordingly, section 1926(b) is a district’s “shield” from a competitor’s unqualified intrusion. However, an indebted association cannot use such protection to categorically prevent a competitor from ever servicing the district’s area. For instance, a district loses its anti-curtailment protection when a district refuses to extend water service to a customer within its service area. In Sequoyah County, the court, interpreting title 82, section 1324.2(7), of the Oklahoma Rural Water and Sewer Act, determined that a water district is not required to provide services to every customer within its district. 191 F.3d at 1202 (noting that landowners subscribe to “benefit units” within the district but the district maintains discretion over the existence and cost of such units). In such a case, nothing prevents a municipality from extending water service within that district if the district has made no attempt to provide water to its customer after a request for service is made. Moongate Water Co., Inc. v. Butterfield Park Mut. Domestic Water Ass’n, 291 F.3d 1262, 1267-68 (10th Cir. 2002).

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¶29 Similarly, the Tenth Circuit has held that charging unreasonable, excessive, and confiscatory fees to customers is the equivalent of not providing service under the Act even where a district has adequate facilities. See Pittsburg County, 358 F.3d at 719 (reasoning that the anticurtailment provision is aimed at prohibiting “excessively high monopolistic pricing without [providing] legal recourse for consumers and with no additional market entry by a supplier”); see also Moongate, 291 F.3d at 1268 (citing City of Wilson, 243 F.3d at 1271. At most, section 1926(b) ordains a dual water authority function within a municipal area for a period of time. ¶30 Further, other mechanisms exist for removing a district’s protection. For example, the Act does not prevent a municipality from purchasing a district’s water facilities, if done pursuant to USDA regulations. See Bear Creek Water Ass’n Inc., 816 F.2d at 1061. Moreover, at anytime the Oklahoma Legislature may amend the Oklahoma Statutes to further limit the rights and duties of rural water districts concerning future indebtedness pursuant to title 82, sections 1324.10, 1324.19, and 1324.33 of the Oklahoma Statutes or altogether dissolve the districts if “in [the Legislature’s] opinion [rural water districts or such contracting] may be injurious to the citizens of this state.” Okla.

Const. art. 9, § 4712; see also Pub. Serv. Co. v.

Caddo Elec. Co-op., 1970 OK 219, ¶ 13, 479 P.2d 572, 576. ¶31 The mere fact that a federally guaranteed loan contains an anti-curtailment provision does not render the loan agreement between a rural water district and the federal government unconstitutional. Additionally, the mere fact that other less restrictive loan programs are available to a rural district does not diminish a rural water district’s ability to contract with a statutorily prescribed entity to further the district’s purpose. See generally Okla. Stat. tit. 82 §§ 1324.1 through 1324.35. A rural water district has unbridled discretion to obtain a loan that provides the greatest benefit to its mission and purpose; and the Oklahoma Legislature has not limited the district’s discretion. ¶32 The parties correctly note that this Court previously rejected a ritualistic or bright line approach in determining a district’s exclusive right to serve customers within its geographical boundaries. Guthrie, Coweta, and OML direct this Court’s attention to Comanche County and its progeny in concluding that the

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Tenth Circuit’s holding in Glenpool, allegedly contradicts this Court’s prior rulings on issues of controlling Oklahoma law regarding the types of contracts that are prohibited under article 5, section 51 of the Oklahoma Constitution. However, neither Comanche County nor Coppage addressed collateral protection in terms of municipal encroachment and a district’s services to current and potential future customers under the protections afforded by Congress pursuant to section 1926(b). Therefore, Guthrie and the supporting amicus curiae’s reliance on Comanche County and Coppage are misplaced. ¶33 In Comanche County, a city was selling water to a private water distributor located beyond city limits but within a rural district both before and after the district’s creation.

1972 OK 117, 501 P.2d 490. This Court was asked to determine whether a city which sold water to a private water distributor was operating in a governmental or proprietary function. The district was a non-profit rural water district organized in 1965 under title 82 and derived a substantial portion of its funding from the FmHA (now USDA) pursuant to section 1926. The private distributor operated a small water distribution system within the district’s territory both before and after the district’s formation. Pursuant to title 11, sections 37-119, 37-120 and 37-123, of the Oklahoma Statutes, the private distributor contracted with the city to purchase water from the city’s nearby facilities. Likewise, the district purchased water from the city’s nearby facilities as authorized by title 11, section 37-121, of the Oklahoma Statutes. ¶34 The rural water district sought a writ of mandamus against the city, alleging that the city’s water sales to the private distributor violated the district’s loan agreement with the USDA and that the contract between the city and the private distributor amounted to a “private franchise.” The district’s argument was based on section 1926(b)’s language providing that services “shall not be curtailed or limited … by the granting of any private franchise for similar services within such area during the term of such loan. . ..” The district asserted that the city’s water sales in essence, created a “private franchise” in the private distributor. There was however, no direct assertion that the district had an exclusive franchise for the sale and distribution of water within its geographical boundaries.

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¶35 This Court determined that the controlling provision was article 18, section 5 of the Oklahoma Constitution and held that a municipality is permitted to grant a franchise inside its corporate boundaries as part of its governmental function. Id. ¶ 16, 501 P.2d at 492. The Court noted that there is no statutory authorization permitting a municipality to grant a franchise of any kind beyond its corporate bounds. Therefore, the city was acting in its proprietary capacity in its dealings with the private distributor and the parties’ relationship was “purely contractual, consisting basically of agreements for the sale of water from the City to [the private distributor].” Id. ¶ 17, 501 P.2d at 492. Unlike the instant case, Comanche County did not involve a municipality’s encroachment into a federally protected territory after the district’s organization and participation in the USDA program. Rather, the contractual relationship between the city and the private distributor predated the district’s existence. At no time was the private distributor a customer or potential customer of the district. ¶36 In addition, this Court touched upon the constitutionality of a district’s power to contract with section 1926(b) protection in response to the assertion that the Oklahoma Legislature intended to grant a rural water district an exclusive franchise when the Legislature empowered rural water districts to contract with the USDA under title 82, section 1324.10(A)(4). In Comanche County, this Court rejected the trial court’s reasoning that the Oklahoma Legislature intended to evade the constitutional prohibition by empowering a district to contract with the USDA. “Under . . . [the trial court’s reasoning], the contracting power of the District, authorized by the Legislature, becomes a sort of ‘intermediate link’ between the power of the Legislature and the creation of an exclusive franchise.” Id. ¶ 20, 501 P.2d at 493. However, this line of reasoning has previously been rejected as the Legislature is without the power to grant an exclusive franchise under article 5, section 51, of the Oklahoma Constitution. Id. (citing State ex rel. Settles v. Bd. of Edu., 1964 OK 12, ¶ 16, 389 P.2d 356, 360). It was that line of reasoning this Court rejected in Comanche County. No analysis was given as to which entity, be it the Oklahoma Legislature or Congress, authorized the qualified right. That right, “is not permanent, but contingent upon the district’s outstanding federal debt; it does not prevent the municipal-

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ity from regulating such aspects as water lines for fire hydrants; and it does not prevent the municipality from purchasing facilities from the district, if done pursuant to FmHA regulations.”

Glenpool, 861 F.2d at 1216 (citing Bear Creek Water Ass’n, Inc., 816 F.2d at 1061). Consequently, Comanche County is not controlling. ¶37 Contrast Comanche County with this Court’s ruling in Coppage, 2002 OK 44, 47 P.3d 872. In Coppage, this Court was asked to determine whether a state loan program enacted under title 82, section 1085.36, of the Oklahoma Statutes limited the county commissioner’s authority to separate a tract of land from a rural water district and prohibit a city from providing water within the district’s territory to a future customer. ¶38 In construing section 1085.36, this Court determined that the state loan program’s scope of collateral protection extended to current “’customers’ of the portion of the system being financed.” Id. ¶ 12, 47 P.3d at 875. At the time the disputed area was released and separated, no customers existed nor had the district provided services since 1988. The purpose of the state loan program’s collateral protection was to “prevent a raid on established customers of the borrowing entity who are served by the financed portion of the system.” Id. A district may not assert collateral protection based upon its geographical boundaries as such territorial approach under section 1085.36 would be in contravention of article 5, section 51 of the Oklahoma Constitution. Id. ¶ 13, 47 P.3d at 876.

It was a state loan program, created by the Oklahoma Legislature, which provided the funding and collateral protection to the borrowing district. That program was enacted and interpreted subject to the constitutional restraints on the Oklahoma Legislature. ¶39 In the instant case, this Court is presented with a federally funded loan program and its accompanying anti-curtailment provision as a condition for funding the development and maintenance of a rural water district pursuant to section 1926. The protection at issue is afforded by Congress pursuant to its spending powers. Article 5, section 51, of the Oklahoma Constitution is a limitation on the Oklahoma Legislature. The constitutional provision, however, expresses no limitation upon the authority of Congress to prohibit those “things which it views as detrimental to the accomplishment of its lawful objectives.” Owasso, 530 F. Supp. at 825.

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CONCLUSION ¶40 Today’s pronouncement expresses no opinion as to which entity has the right to provide service to the Pleasant Hills development.

This opinion is limited to a holding that the Oklahoma Legislature did not grant an exclusive right or franchise under title 82, sections 1324.1 through 1324.35, of the Oklahoma Rural Water Districts Act. Article 5, section 51 of the Oklahoma Constitution is neither implicated, nor violated when a district participates in the above USDA program that includes section 1926(b) protection as a condition of the federally funded program.

CERTIFIED QUESTIONS ANSWERED. CONCUR: Edmondson, C.J.; Taylor, V.C.J.; Hargrave, Watt, Winchester, Colbert, Reif, JJ. CONCUR IN RESULT: Opala, Kauger, JJ. 1. Logan-1’s motion requesting this Court to consider the data provided by the USDA Rural Development which is relevant to the second question certified by the Tenth Circuit and Guthrie’s response thereto are hereby denied. In addition, all parties’, including amici curiae and amicus curiae, requests for oral arguments are hereby denied.

2. Originally the Farmers Home Administration (FmHA) administered these loans. See Pittsburg County Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 701 (10th Cir. 2004). Since 1994, however, the Department of Agriculture has operated this loan program, see Id. at 701 n.1, through its rural utilities service. See Rural Water Dist. No. 1., Ellsworth County v. City of Wilson, 243 F.3d 1263, 1269 n.3 (10th Cir. 2001) (citing 7 C.F.R. § 1780.3). For the sake of simplicity, the creditor entity, formerly FmHA, is referred to as the “USDA.” 3. In 1987, the USDA sold the first four of these loans to Community Program Loan Trust 1987A, a special purpose Massachusetts business trust. That fact, however, does not affect the questions the Tenth Circuit certified to this Court. See Moongate Water Co. v. Butterfield Park Mut. Domestic Water Ass’n, 291 F.3d 1262, 1265-67 (10th Cir. 2002) (holding transfer of USDA loans to private lenders did not extinguish a rural water district’s indebtedness on those loans for purposes of section 1926(b)); see also Sequoyah County Rural Water Dist. No. 7 v.

Town of Muldrow, 191 F.3d 1192, 1198 (10th Cir. 1999).

4. Title 82, section 1324.10(A)(4) authorizes a district to: [b]orrow money and otherwise contract indebtedness for the purposes set forth in this act, and, without limitation of the generality of the foregoing, to borrow money and accept grants from the United States of America, or from any corporation or agency created or designated by the United States of America, and, in connection with such loan or grant, to enter into such agreements as the United States of America or such corporation or agency may require; and to issue its notes or obligations therefor, and to secure the payment thereof by mortgage, pledge or deed of trust on all or any property, assets, franchises, rights, privileges, licenses, rights-of-way, easements, revenues, or income of the said district . . ..

5. Coweta has voiced its legal opinion because of its participation in the 2002 case of Coppage, 2002 OK 44, 47 P.3d 872, a case relied upon here by Guthrie.

6. In addition to rural water districts, the USDA loan program assist: associations, including corporations not operated for profit, Indian tribes on Federal and State reservations and other federally recognized Indian tribes, and public and quasi-public agencies to provide for the application or establishment of soil conservation practices, shifts in land use, the conservation, development, use, and control of water, and the installation or improvement of drainage or waste disposal facilities, recreational developments, and essential community facilities including necessary related equipment, all primarily serving farmers, ranchers, farm tenants, farm laborers, rural businesses, and other rural resi-

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dents, and to furnish financial assistance or other aid in planning projects for such purposes.

7 U.S.C. § 1926(a)(1) (2006 & Supp. 2009).

7. Section 1324.6 provides: At the time and place set for the hearing and consideration of the petition, it shall be the duty of the board of county commissioners to determine: 1. Whether proper notice of the hearing has been given as required by Section 1324.5 of this title; 2. Whether the rural residents of the area described in the petition are without an adequate water supply, sewage facilities, gas distribution facilities or solid waste management system to meet their needs; 3. Whether the construction, installation, improvement, maintenance and operation of all or a combination of water works, sewage facilities and solid waste management systems are necessary to provide an adequate water supply, sewage facilities, gas distribution facilities or solid waste management system to serve rural residents of the district; 4. Whether such improvements or works will be conducive to and will tend to promote the public health, convenience and welfare; 5. The area which should be included in the district; and 6. Whether there is sufficient water available for purchase or available for appropriation by the Oklahoma Water Resources Board. If, upon such consideration, it shall be found that such petition is in conformity with the requirements of this act, and that such a district should be created the board of county commissioners shall thereupon immediately declare the land described in the petition or any part thereof to be incorporated as a district under the name of “Rural Water and/or Sewer and/or Gas and/or Solid Waste Management District No. _______, _______________ County, Oklahoma” (inserting number in order of incorporation and name of county) and thereupon the district shall be a body politic and corporate and an agency and legally constituted authority of the State of Oklahoma for the public purposes set forth in this act. The board of county commissioners shall thereupon enter upon its records full minutes of such hearing, together with its order creating the rural district under said corporate name for the purposes of this act. Such districts shall not be political corporations or subdivisions of the state within the meaning of any constitutional debt limitations, nor shall said districts have any power or authority to levy any taxes whatsoever or make any assessments on property, real or personal.

8. Section 1324.4 states: Any two or more owners of lands may file with the county clerk a petition addressed to the board of county commissioners praying for the incorporation of a district under the provisions of this act. The petition shall give a legal description of the lands owned by the petitioners and other lands which the petitioners propose to be incorporated into the proposed district and shall state: ....

4. That there is sufficient water available for purchase or available for appropriation by the Oklahoma Water Resources Board to serve the needs of the district. Attached to said petition shall be an accurate map or plat of the proposed territory to be embraced within the district showing the location of said territory by reference to sections or portions thereof and the township and range wherein the same are located.

9. “The word ‘franchise’ is generally used to designate a right or privilege conferred by law. To be a ‘franchise’ the right possessed must be such as cannot be exercised without the express permission of the sovereign power. It is the privilege of doing that which does not belong to the citizens of the country generally by common right.” Okla. Elec.

Coop., Inc. v. Okla. Gas & Elec. Co., 1999 OK 35, ¶ 10, 982 P.2d 512, 515 (citing Okla. Gas & Elec. Co. v. Total Energy, 1972 OK 108, ¶ 24, 499 P.2d 917, 921).

10. An “exclusive franchise” is a contractual promise by the granting authority not to grant any similar franchises to anyone else. See generally 36 Am Jur 2d, § 32. “[I]f the term “exclusive” is not used, nothing short of an express provision will make the franchise exclusive . . ..” Id. § 34. In the context of this case, had the Oklahoma Legislature granted an “exclusive franchise,” not only would it violate article 5, section 51, it would be prohibited from granting a competing franchise to another water entity without compensating the owners of the first franchise because the grant of an exclusive franchise removes from the grantor the “power and authority to grant similar rights to others or to permit others to engage in the same activity for which the exclusive franchise was awarded.” Gordon’s Const. & Landfill, Inc. v. Iberia Parish Gov’t, 815 So.2d 991, 996 (La. ApP.3d Cir. 2002)(citing 36 Am Jur 2d, § 33).

11. See generally Glenpool, 861 F.2d 1211. The Tenth Circuit has held that section 1926 sets forth both the mechanism for making the loans and the accompanying conditions. “The conditions of section 1926(b), moreover, serve as protection of federal funds advanced under the congressional spending power and pursuant to a national policy concerned with water management and rural populations. Congress clearly acted within its powers.” Id. at 1215.

12. Article 9 section 47 of the Oklahoma Constitution provides: The Legislature shall have power to alter, amend, annul, revoke, or repeal any charter of incorporation or franchise now existing and subject to be altered, amended, annulled, revoked, or repealed at the time of the adoption of this Constitution, or any that may be hereafter created, whenever in its opinion it may be injurious to the citizens of this State, in such manner, however, that no injustice shall be done to the incorporators.

Informed.

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Vol. 81 — No. 18 — 7/3/2010

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Court of Criminal Appeals Opinions 2010 OK CR 13 JACK AARON LOGSDON, Appellant, v.

STATE OF OKLAHOMA, Appellee, Case No. F-2008-78. June 22, 2010 ORDER CORRECTING OPINION ¶1 The Summary Opinion in this case, 2010 OK CR 7, ¶ 30, ___ P.3d ___, is corrected to read as follows: ¶30 Logsdon also claims that his conviction on Count 17 (for racketeering), along with Count 1 (fraudulent sale of security) and Counts 3 through 16 (fraudulent sales of securities, second-degree forgery, and obtaining money by false pretenses) violate the double jeopardy provisions of the Fifth Amendment to the United States Constitu-

tion and Article II, § 21 of the Oklahoma Constitution.7 Logsdon did not raise this objection in the trial court. The claim is reviewed, therefore, only for plain error.

Head, 2006 OK CR 44, ¶ 9, 146 P.3d at 1144. ¶2 Footnote 7 remains unchanged. ¶3 IT IS SO ORDERED. ¶4 WITNESS MY HAND AND THE SEAL OF THIS COURT this 22nd day of June, 2010. /s/ Charles A. Johnson CHARLES A. JOHNSON, Presiding Judge ATTEST: Michael S. Richie Clerk

NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT OF jason antonio martinez, SCBD #5626 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 Jason Antonio Martinez 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 Tuesday, August 10, 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.

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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: Vacant 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.

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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Vol. 81 — No. 18 — 7/3/2010

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.

Fifty of the names thereon are set forth below:

William R. Grimm, John Gaberino, William G. LaSorsa, James M. Sturdivant, Martha Rupp Carter, D. Faith Orlowski, Deirdre O. Dexter, Jack L. Brown, Robert Sartin, Mark W. Dixon, Patricia Neel, Rebecca Sherwood, Elizabeth Muratet, Patricia Ledvina Himes, Jodi Jayne,

Rania Nasreddine, Sidney K. Swinson, Ron Ricketts, David Keglovits, Paul Johnson, John H. Rule, David L. Bryant, Oliver S. Howard, Tim Carney, Jeffrey P. Hassell, Tony W. Haynie, Larry B. Lipe, James E. Green Jr., Beverly K. Smith, D. Richard Funk, William E. Farrior, Adam Marshall, Brad Heckenkemper, James Weger, Matt Farris, David H. Herrold, Steve Stidham, Steven Kent Balman, Stuart Campbell, Patrick O. Waddel, Lewis N. Carter, Jon Brightmire, Kristen L. Brightmire, S. Douglas Dodd, Rebecca M. Fowler, Fred A. Pottorf, Susan Lentz, Daniel Webber, Jean Ann Hudson and Linda G. Redemann.

A total of 123 signatures appear on the petitions.

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

Vol. 81 — No. 18 — 7/3/2010

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Oklahoma Bar Association Publications Specialist - Continuing Legal Education (CLE) The OBA seeks a publications specialist for the Continuing Legal Education (CLE) Department. The OBA/CLE Department is the state’s largest provider of continuing legal education for Oklahoma attorneys.

The publications specialist is responsible for compiling and preparing for dissemination, hard copy and electronically, all materials for seminars. The publications specialist is required to assist the director with special publications projects, including form books, treatises, and other practice aids.

Organization and proofreading skills are critical, as well as a pleasant and customer serviceoriented attitude. The person in this position will work constantly with deadlines in a fast-paced work environment, with attorneys who are volunteering their time and expertise, and with third-party vendors.

Requirements: College degree is required. Legal or paralegal experience preferred. Fast, accurate keyboarding skills. Proficiency in WordPerfect, Microsoft Office Suite, PowerPoint, and Adobe Acrobat 9. Familiarity with other software applications helpful; openness to learning new technologies critical.

Competitive benefit package. EOE. Send resume and cover letter to Donita Bourns Douglas, Director, Continuing Legal Education, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

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

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Vol. 81 — No. 18 — 7/3/2010

HANDBOOK OF SECTION 1983 LITIGATION, 2010 EDITION David W. Lee � Lee Law Center, P.C. � Oklahoma City “Essential... a gem for civil litigators who need a quick reference” -The Federal Lawyer, August 2007

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Vol. 81 — No. 18 — 7/3/2010

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LEGISLATIVE REPORT

Legislative Session Wrap Up

By Duchess Bartmess

The second session of the 52nd Oklahoma Legislature has adjourned, in conformity with the provisions of the Oklahoma Constitution [Article V, Section 26]. This article will discuss some of the measures signed into law during the last month of the session.

The end of any legislative session sets the stage for a little used additional quirk in the legislative process, the much discussed but seldom used â&#x20AC;&#x201D; pocket veto. During the legislative session, measures passed by both houses are sent to the governor for his action. The actions available to the governor are approval by signing the measure, becoming law after five days if no action is taken, or a measure can be vetoed. If the governor vetoes a measure which has been sent to him, a two-thirds vote to override in each house will result in the measure becoming law without the approval of the governor. [Oklahoma Constitution, Article VI, Section 11].

However, a different process is provided for approval or disapproval of measures sent to the governor after the legislature adjourns. If a measure is sent within the last four days proceeding adjournment sine die, preventing the return of a measure within the proscribed five days, it does not become law without the approval of the governor. [Oklahoma Constitution, Article VI, Section 11] And finally, the governor has 15 days after final adjournment to approve measures sent to him. If he does not approve the legislation, it does not become law. This is what is often referred to as a pocket veto. [Oklahoma Constitution, Article VI, Section 11]. This year, there were no pocket vetoes.

In 2010 according to the legislative bill tracking reports, more than 1,180 House and 1,120 Senate bills and joint resolutions were intro-

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duced. Of that number, over 238 House and 492 Senate bills and joint resolutions were sent to the governor for action, with 113 House and 107 Senate bills and joint resolutions sent in the last week of the session.

Space limitation does not allow a listing of all bills and joint resolutions that will become law as a result of 2010 legislative action. The following is a partial list of the bills and joint resolutions by subject area, which may be of interest. If any of these bills or resolutions are of interest to you, or it appears they may impact your practice, you are urged to look at the measure in its entirety. It is very easy to get the language of any piece of legislation through the Oklahoma Legislature website at www.lsb. state.ok.us.

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BILLS AND JOINT RESOLUTIONS SIGNED INTO LAW:

Probate and Family Law

Motor Vehicles HB 2331 Modifies rules of online verification system for liability policies HB 2625 Sets exceptions to certificate requirements regarding weighing motor vehicles HB 2730 Requiring branding of certain vehicle titles HB 2883 Defines power sports vehicle and dealer HB 2958 Makes load exceptions, grounds for towing HB 3213 Motor vehicles, junked vehicles, insurance loss claims and settlements HJR 1089 Approves permanent rules of the Department of Public Safety Workers’ Compensation HB 1611 Workers’ Compensation, licensing claims adjusters HB 2911 Workers’ Compensation, prohibits creation of business to avoid adjustments HB 2652 Modifies Workers’ Compensation Court SB 1973 Modifies certain fees and procedures in Workers’ Compensation Court Revenue and Taxation HB 2359 Modifies procedures for the Oklahoma Use Tax Code HB 2432 Modifies exemptions relating to gross production, tax levy apportionment HB 2519 Coal incentive tax credits, taxable years HB 2935 Modifies ad valorem tax provisions regarding notice of delinquency or resale HB 3166 Modifies deductions from tax refunds, tax returns filing HB 3422 Transparency Act, expenditure, tax credit website listing SB 1267 and SB 1590 Provide moratoriums on certain tax credits SB 1396 Modifies certain income tax deductions SJR 61 OK Business Activity Tax Code; creates Task Force on Comprehensive Tax Reform

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HB 1641 Establishing procedures for creating pet care trusts HB 2939 Amends Uniform Durable Power of Attorney Act SB 2204 Uniform Adult Guardianship and Protective Proceedings Act SB 889 Uniform International Wills Act SB 1029 Requiring attorneys in private placement adoptions to prepare a specified detailed full disclosure statement to be signed by clients and filed with the petition Civil and Criminal Law HB 2572 Funeral Picketing Act, declaring certain evidence not admissible HB 2650 Intentional tort actions, compensation schedule, advisory committee HB 2890 Modifies information required under Governmental Tort Claims Act HB 2983 Corrupt Organizations Prevention Act, adds definitions HB 2991 Search warrant, probable cause that vehicle used in felony offense HB 3000 Governmental Tort Claims, structured settlement, expands certain exclusions HB 3158 Drug Court Act, authorizes extension of supervision period HB 3251 Methadone patient profile, central repository, glass tube sale HB 3267 Civil case filing fees HB 3380 Creates Methamphetamine Offender Registry Act HB 2596 Specifying content of cash and counseling programs for poor persons SB 1115 Provides that local court rules may not conflict with statutes or superior court rules, and must be written and published on the OSCN website to be valid and enforceable SB 2039 One of the bar bills; modifies process server licensing, addresses electronic data discovery and privileged matter in discovery SB 2040 Specifies jury fee is due at pre-trial conference SB 2063 Mandates appraisers’ fees are payable at issuance of general execution on judgment SB 994 Adds exception to physician/patient privilege

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Other Measures of Note HB 2698 Creates Government Website Information Act HB 2936 Financial Privacy Act, fees for search and processing of financial records HB 2963 Hunting and fishing licensing fees HB 3021 Landlord-Tenant, disclosure requirements HB 3171 Electronic system available to file death certificates HJR 1088 Department of Veterans Affairs, administrative rule waiver of review period SB 212 Modifies the funded ratio of judicial retirement system down to 90 percent SB 2170 Creates Task Force on Standardization of Courtroom Security Procedures SB 1132 Uniform Limited Partnership Act of 2010 SB 991 Amendments to UCC, mostly to Article III, and one relating to perfection of agricultural liens SB 1787 Property; prohibits severance of wind or solar generation rights from surface ownership Every member of the bar, regardless of the area of practice or specialization is encouraged to become more familiar with the legislative process and its end products.

Ms. Bartmess practices in Oklahoma City and is chairperson of the Legislative Monitoring Committee.

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VACANCY ANNOUNCEMENT LAW CLERK TO A UNITED STATES MAGISTRATE JUDGE The United States District Court, Eastern District of Oklahoma, invites applications for the position of law clerk to a magistrate judge. The salary ranges from $57,408 to $96,690 depending upon qualifications and experience. The length of the appointment is 1 year, with potential for yearly renewals up to a maximum term of 4 years. To qualify for the position of law clerk on the personal staff of a magistrate judge, a person must be a law school graduate (or be certified as having completed all law school studies and requirements and merely awaiting conferment of degree) from a law school of recognized standing, and have one or more of the following attributes: Standing within the upper third of the law school class from a law school on the approved list of either the American Bar Association or the Association of American Law Schools; Experience on the editorial board of a law review of such a school; Graduation from such a school with an LLM degree; or Demonstrated proficiency in legal studies, which in the opinion of the judge, is the equivalent of one of the above.

Please visit the Court’s website at www.oked.uscourts.gov for additional information on how to apply.

CHAIRPERSON’S MID-YEAR REPORT TO THE ENERGY AND NATURAL RESOURSES LAW SECTION OF THE OBA As previously reported, by unanimous vote on December 11, 2009, the Board of Governors of the OBA voted to amend the By-Laws of the Mineral Law Section of the OBA to change its name to “Energy and Natural Resources Law Section” and expand its membership to include other areas of energy and natural resources law such as Wind, Water and Agricultural Law. The expanded services you receive for your $20 enrollment fee include the receipt of the quarterly newsletter expanded to include legal updates for Wind, Water and Agricultural Law. We are also chartering an OBA CLE conference to include a course for the general practitioner. The conference is entitled “Earth, Wind and Water for the General Practitioner.” You will be hearing more about the conference in the future but it is scheduled for September 3, 2010, in OKC and September 10, 2010, in Tulsa. Finally, please do not forget about the new membership category of “Associate Member” for your non-attorney colleagues and clients.

This category allows any other persons who by reason of their enrollment in law school, their profession or occupation, or other demonstrable interest in the activities of our Section to become an associate member by making written application to the OBA and paying the annual dues. An associate member shall have all the privileges of Section members except the privilege of voting and holding office in the Section. If you have any questions, please contact me at ctytanic@ou.edu.

Chris Tytanic, Chairperson OBA Energy and Natural Resources Law Section

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Disposition of Cases Other Than by Published Opinion COURT OF CRIMINAL APPEALS Thursday, June 17, 2010 RE-2008-1026 — Michael Antwone Railback, Appellant, entered guilty pleas to various charges in Oklahoma County Case Nos. CF-20066495, CF-2007-2616 and CF-2007-4248. All of the offenses were charged After Former Conviction of a Felony. Railback was sentenced to one (1) year for Count 2 in Case No. CF-2006-6495. For the remaining counts, in the remaining cases, he was sentenced to twenty-five (25) years for each count, with all but the first fifteen (15) years suspended. The sentences were ordered to run concurrently, each with the other. On October 14, 2008, Appellant’s suspended sentences were partially revoked, and he was ordered to serve an additional ninety (90) days for each count, the revoked portion of the sentences to be served concurrently with each other, but consecutively to the 15 year sentences he is currently serving.

From this judgment and sentence, Appellant appeals. The partial revocation of Appellant’s suspended sentence is AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lewis, J., Concur.

F-2008-1137 — On May 21, 2007, Appellant Dustin Isaac Patterson entered a guilty plea to a charge of Entering with Unlawful Intent to Steal Copper in Tulsa County District Court Case No. CF-2006-3861. Appellant’s sentencing was deferred for two (2) years, subject to terms and conditions of probation. On November 17, 2008, Appellant’s judgment and sentence was accelerated and he was sentenced to three (3) years. Appellant appeals the acceleration of his deferred sentence. The acceleration of Appellant’s deferred sentence and subsequent sentencing is AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J., concur.

Friday, June 18, 2010 C-2009-892 — Walter Edward Kostich, Jr., Petitioner, entered a blind plea of guilty to First Degree Arson in Case No. CF-2007-1480 in the District Court of Tulsa County. The Honorable Dana L. Kuehn, District Judge sentenced Petitioner to twenty years imprisonment. Petitioner moved to withdraw his pleas. A hearing was held and the district court denied the request.

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From this judgment and sentence Walter Edward Kostich, Jr. has perfected his appeal.

The Petition for Writ of Certiorari is DENIED, and the Judgment and Sentence of the trial court is AFFIRMED. Opinion by: C. Johnson, P.J.; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur.

RE-2008-778 — Robert Duke Whiteaker, II, Appellant, entered a plea of no contest to one count of Driving Under the Influence in Bryan County Case No. CF-2006-661. Appellant was sentenced to five (5) years, suspended. On May July 2, 2008, Appellant’s suspended sentence was revoked, in part, and he was sentenced to serve four (4) weekends in the county jail with an additional year of his suspended sentence to be served under supervision. 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.

Monday, June 21, 2010 M-2009-508 — Douglas Duane Waller, Appellant, appeals from his misdemeanor Judgment and Sentence, imposed after a non-jury trial before the Honorable John M. Gerkin, Special Judge, in Case No. CM-2008-446 in the District Court of Washington County. Appellant was convicted of Count 1: Possession of Controlled Substance, a misdemeanor; and Count 2: Driving With License Suspended, a misdemeanor.

He was sentenced on Count 1 to 365 days in the County Jail, with all but the first 10 days suspended, plus fines and costs; and on Count 2 to fines and costs. AFFIRMED. Opinion by: Lewis, J.; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur.

Tuesday, June 22, 2010 F-2009-388 — James Eric Kennedy, Appellant, was tried by jury for the crime of Child Sexual Abuse in Case No. CF-2004-560, in the District Court of Washington County. The jury returned a verdict of guilty and recommended as punishment life imprisonment and a fine of $5,000.00. The trial court sentenced accordingly. From this judgment and sentence James Eric Kennedy has perfected his appeal. AFFIRMED.

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Opinion by: Per Curiam; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur in Results; Lewis, J., Concur in Results.

S-2009-1176 — Don Wayne Townsend Jr. was tried by jury on Count I, Omission to Provide for Minor Child in violation of 21 O.S.Supp.2009, § 852(A) in Case No. CF-2009-627, in the District Court of Cleveland County. At the close of the State’s evidence, the Honorable Tom A. Lucas sustained Townsend’s demurrer to the evidence and dismissed the case. The State appeals from a reserved question of law. 22 O.S.2001, § 1053(3). AFFIRMED. Opinion by: Per Curiam; C. Johnson, P.J., Concur; A. Johnson, V.P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur.

F-2009-0629 — On June 11, 2008, Appellant, David Doyle Westfall, pled nolo contendere in Bryan County District Court Case No. CF2002-417 to Obtaining Money By False Pretense. Sentencing was deferred for three years.

In Bryan County District Court Case No. CM2003-686 Appellant pled nolo contendere on June 11, 2008, to Count 1 — Resisting an Officer, Count 2 — Public Intoxication and Count 3 — Breach of Peace. Sentencing was deferred for one year. The State filed applications to accelerate Appellant’s deferred sentences. Following a combined acceleration hearing on June 29, 2009, the Honorable Trace Sherrill, Special Judge, found sufficient evidence to support the State’s applications. Judge Sherrill sentenced Appellant to five years in the Department of Corrections with the last two years suspended in CF-2002-417 and one year in the County Jail in CM-2003-686. The sentences were ordered to run concurrently. Appellant appeals from the acceleration of his deferred sentences. Appeals F 2009-0629 and M 2009-0630 were consolidated into F 2009-0629 upon motion of Appellant.

The acceleration of Appellant’s deferred sentences is AFFIRMED. Opinion by: A. Johnson, V.P.J.; C. Johnson, P.J., Concur; Lumpkin, J., Concur; Lewis, J., Concur.

Wednesday, June 23, 2010 RE-2009-699 — Kenneth Wayne Nash, Appellant, appeals from the revocation in full of his five year suspended sentence in Case No. CF2004-164 in the District Court of Creek County.

On February 8, 2006, Appellant entered a plea of guilty to Larceny of an Automobile and was convicted and sentenced to a term of five years, with the sentence suspended under rules and conditions of probation. On July 29, 2009, the Vol. 81 — No. 18 — 7/3/2010

District Court found Appellant had violated rules and conditions of his probation and revoked the five year suspended sentence in full. The revocation of Appellant’s five year suspended sentence in Case No. CF-2004-164 in the District Court of Creek County is AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J., concur.

RE-2009-763 — Michael Wade Cochran, Appellant, appeals from the revocation of five years of his seven year suspended sentence in Case No. CF-2004-230 in the District Court of Creek County. On June 14, 2004, Appellant entered a plea of guilty and was convicted of Count 1 – Possession of CDS – Methamphetamine, felony; Count 2 - Possession of CDS – Marijuana, misdemeanor; Count 3 – Driving While License is Suspended, misdemeanor; Count 4 – Failure to Carry Security Verification, misdemeanor; and Count 5 – Unlawful Possession of Drug Paraphernalia, misdemeanor. He was sentenced on Count 1 to a term of ten years, with all except the first 3 years suspended; and on the other counts to a term of one year suspended, with all sentences to run concurrently. On July 2, 2009, the District Court found Appellant had violated rules and conditions of his probation and revoked five years of his seven year suspended sentence. AFFIRMED. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J., concur.

F-2009-528 — Appellant, Jimmy Lee Baker, was tried by jury and convicted of Assault And Battery With A Dangerous Weapon After Two Or More Felony Convictions (Count II) (21 O.S.Supp.2006, § 645) and Malicious Injury To Property (Count III) (21 O.S.2001, § 1760) in the District Court of Bryan County, Case Number CF-2008-399. The jury recommended as punishment life imprisonment in Count II and “fine and punishment” in Count III. The trial court sentenced according to the jury’s recommendation as to Count II and resolved the jury’s failure to recommend a definite punishment in Count III by imposing only costs. It is from this judgment and sentence that Appellant appeals. The judgment and sentences of the trial court (Counts II - III) are REVERSED AND REMANDED FOR NEW TRIAL. Opinion by: Lumpkin, J.; C. Johnson, P.J., concur; A. Johnson, V.P.J., concur; Lewis, J., concur.

Tuesday, June 29, 2010 F-2009-407 — Thomas Ray Young, Appellant, was tried by jury for the crimes of four counts

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of Sexual Abuse of a Child, After Conviction of Two Felonies in Case No. CF-2005-2138 in the District Court of Oklahoma County. The jury returned a verdict of guilty and recommended as punishment four terms of life imprisonment. The trial court sentenced accordingly and ordered that the sentence be served consecutively. From this judgment and sentence Thomas Ray Young has perfected his appeal.

The judgment of the district court is AFFIRMED, but Appellant’s four sentences of life imprisonment are MODIFIED to be served concurrently.

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

F-2009-656 — Charles Lee Logan, Appellant, was tried by jury for the crimes of Robbery with Firearms (Count I) and First Degree Robbery (Count II), after former conviction of two or more felonies in Case No. CF-2008-6242, in the District Court of Oklahoma County. The jury returned a verdict of guilty and recommended as punishment Life imprisonment on Count I and forty (40) years imprisonment on Count II, with sentences to be served consecutively. The trial court sentenced accordingly.

From this judgment and sentence Charles Lee Logan 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.

COURT OF CIVIL APPEALS (Division No. 1) Friday, June 18, 2010 105,713 — In Re the Marriage of: Donald Wayne Vaughan, Petitioner/Appellee, vs.

Jolene Marie Vaughan, Respondent/Appellant. Appeal from the District Court of Lincoln County, Oklahoma. Honorable Dawson Engle, Judge. Petitioner/Appellee Donald Wayne Vaughan (Husband) and Respondent/ Appellant Jolene Marie Vaughan (Wife) were married December 31, 1992. At the time their decree of dissolution of marriage was entered, August 10, 2007, they had four minor children, as well as real and personal property. Wife contends that the trial court committed error by including back due child support as a “credit” to Husband. We find no error in the trial court’s satisfying the judgment for unpaid child support by giving Wife a larger distribution of the marital estate. We AFFIRM the judgment.

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

106,950 — In the Matter of the Marriage of: John D. Daniels, III, Plaintiff/Appellant, vs.

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Felicita Daniels, Defendant/Appellee. Appeal from the District Court of Oklahoma County, Oklahoma. Honorable Donald L. Deason, Trial Judge. Appellant John Daniels appeals a postdecree order denying his motion to terminate joint custody and sustaining Appellee Felicita Daniels’s motion to modify joint custody. Appellant has not demonstrated an abuse of discretion with the trial court’s order and, based on our review of the record, we cannot conclude the trial court’s decision is clearly contrary to the weight of the evidence. The trial court’s order is AFFIRMED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur.

Friday, June 25, 2010 106,227 — Lindsey K. Springer, Plaintiff/ Appellant, vs. Richardson Law Firm, Richard D. Marrs, E. Diane Hinkle, and Kevin D. Adams, Defendants/Appellees. Appeal from the District Court of Tulsa County, Oklahoma.

Honorable Linda G. Morrissey, Judge. Appellant Lindsey K. Springer appeals a trial court order in favor of Appellees Kevin Adams, Richard Marrs, Diane Hinkle, and The Richardson Law Firm which sustained Appellees’ motions to dismiss Appellant’s defamation petition and which denied his motion to grant default judgment against Hinkle and Marrs.

The trial court’s order is affirmed. Appellees’ motions for sanctions in the form of appealrelated attorney fees are denied. AFFIRMED. Opinion by Hetherington, J.; Buettner, P.J., concurs, and Hansen, J., concurs in part, dissents in part with opinion.

106,686 — Potter Sausage Co. d/b/a J.C. Potter Sausage, Plaintiff/Appellant, vs. Unitherm Food Systems, Inc., an Oklahoma Corporation, Defendant/Appellee. Appeal from the District Court of Bryan County, Oklahoma. Honorable Farrell M. Hatch, Judge. In this appeal, Plaintiff/Appellant Potter Sausage Company challenges the amount of prevailing party attorney fees and interest awarded to Defendant/Appellee Unitherm Food Systems, Inc., which followed a jury verdict in favor of Unitherm.

Unitherm was entitled to an award of prevailing party attorney fees based on Potter’s claims for breach of express warranty, as well as for Unitherm’s claim for the balance owed on the contract for sale of goods. We find no abuse of discretion in the award of fees based on 12 O.S.2001 §936 and §939; however, the judgment indicates the trial court may have also awarded prevailing party attorney fees under the Deceptive Trade Practices Act, despite the lack of a verdict on that issue. We remand for

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reduction of the award for any amounts awarded based on the DTPA claim. Additionally, the trial court erred in ordering Potter to pay 18% interest on the award of costs and fees. We therefore reverse the interest order and remand with directions to award interest at the applicable statutory rate. AFFIRMED IN PART/ REVERSED IN PART AND REMANDED. Opinion by Buettner, P.J.; Hansen, J., and Hetherington, J., concur.

106,827 — Jack Michael Lamb, Petitioner/ Appellant, vs. State of Oklahoma ex rel. Protective Health Services of the State Department of Health, Respondent/Appellee. Appeal from the District Court of Pontotoc County, Oklahoma. Honorable George W. Butner, Trial Judge. Appellant (Lamb) appeals from an order of the trial court affirming the determination of Appellee (Department) to record in its “Nurse Aide Registry” (Registry) that Lamb committed mistreatment and abuse of a long-term care facility resident. Lamb contends Department deprived him of due process by not giving him written notice within 10 days of commencement of its investigation, pursuant to 42 C.F.R. §488.335(c)(2). He argues the trial court should have remanded the matter to Department for rehearing where he could present his case.

Lamb had, at a minimum, constructive notice of the investigation, and presuming arguendo the notice was to be given within 10 days of initiating the investigation. Because of the default administrative order issued by the ALJ, Lamb was deprived of any opportunity to challenge Department’s evidence or to present evidence in his own defense. In view of the real, and potential, impact of Department’s Registry entry, and the lack of any direct fault on Lamb’s part in failing to appear for the hearing, we hold it is proper to remand the matter back to Department in accordance with 75 O.S.2001 §322(2) to hear Lamb’s evidence.

Lamb has failed to establish how he was actually prejudiced by the failure to do so. We find no merit in Lamb’s contention that he was denied due process by Department’s alleged failure to provide him written notice within 10 days of initiation of its investigation. The question is whether it is deemed essential to a proper disposition of the allegations against Lamb for Department to consider further evidence. We hold the trial court erred in failing to remand the case to Department for taking and consideration of further evidence. REVERSED AND REMANDED. Opinion by Hansen, J.; Vol. 81 — No. 18 — 7/3/2010

Buettner, P.J., concurs in result with opinion, and Hetherington, J., concurs.

106,990 — Terry L. Young, Trustee of the Young Revocable Living Trust, Plaintiff/Appellant, vs. Leslie Joe Chappell, and Judith Ott Chappell, Defendants/Appellees. Appeal from the District Court of Choctaw County, Oklahoma. Honorable James R. Wolfe, Trial Judge.

Appellant appeals a non-jury trial court judgment for Appellees finding a certain contract void. We AFFIRM but do not find the contract void. AFFIRMED. Opinion by Hetherington, J.; Buettner, P.J., and Hansen, J., concur.

(Division No. 2) Thursday, June 17, 2010 106,807 — In the Matter of the Estate of William Edward Metz, deceased. Shirley Glass Romine; Donna S. Hacker, formerly McCoy; Suzanne Suddath; Brad McCoy and Mandi Latimer, Petitioners/Appellees, v. David J. Pense, Respondent/Appellant. Appeal from the District Court of Rogers County, Hon. Sheila A. Condren, Trial Judge. David Pense appeals the decision of the district court in a probate proceeding finding that a bank account held by Pense as a surviving joint tenant was subject to a constructive trust on behalf of the Estate of William Metz. We affirm the decision of the district court but on a different basis. The imposition of a resulting trust was warranted in this case. The district court’s finding that Metz established a joint tenant account with Pense is not contested by any party to this appeal. Nonetheless, although Pense held legal title to that account, the district court was required to determine the beneficial owners of the account. There is clear and convincing evidence that Metz did not intend to make an inter vivos gift to Pense, when he established the account, and that he did intend for the balance of the account at his death to pass to his Estate. Consequently, the imposition of a resulting trust was warranted, and we affirm the decision of the district court on that basis.

AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Fischer, P.J.; Wiseman, C.J., and Barnes, J., concur.

107,138 — MTG Guarnieri Manufacturing, Inc., d/b/a Hearn Machine Tool, Plaintiff/ Appellant, v. Bradley Clouatre, Bryan Jay, Dean Goforth, Jason Cherry and Sooner Perforations and Machine Co., L.L.C., Defendants/Appellees. Appeal from the District Court of Seminole County, Oklahoma, Hon. Gary Snow, Trial Judge. Plaintiff appeals the trial court’s grant-

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ing of summary judgment in favor of Defendants and denial of Plaintiff’s motion for new trial. The issues on appeal involve an agreement “not to use during or after termination of employment or divulge to others any secret or confidential information,” and allegations of trade secret misappropriation. We find genuine issues of material fact remain and, therefore, we reverse and remand for further proceedings. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur.

Friday, June 18, 2010 106,107 — City College, Inc., Plaintiff/Appellee, v. Moore Sorrento, LLC, Defendant/Appellant. Appeal from an order of the District Court of Cleveland County, Hon. Gary Snow, Trial Judge, confirming an arbitration award, confirming a final order including attorney fees, and denying the motion to vacate filed by Moore Sorrento, LLC (Landlord). We find the trial court correctly confirmed the arbitration panel’s award and denied Landlord’s motion to vacate. City College, Inc. (Tenant) filed an application in district court asking the court to appoint arbitrators pursuant to a written lease agreement between Tenant and Landlord’s predecessor in interest. After Tenant failed to pay rent, Landlord served Tenant a “Notice to Quit” and filed a separate forcible entry and detainer action seeking possession of the premises. The trial court entered an order appointing arbitrators and later, over Landlord’s objections, consolidated the forcible entry and detainer action with the arbitration action finding the arbitration provision controlled all issues between the parties. The parties stipulated the lease agreement would terminate on April 15, 2007, and that upon termination, possession of the premises would be transferred to Landlord. The parties also agreed that all issues related to rent alleged by Landlord would be determined in the arbitration proceedings. The arbitrators awarded Tenant actual damages, expenses of arbitration, and attorney fees. Tenant asked the trial court to confirm the award. In response, Landlord requested vacation of the award. The trial court confirmed the award. We reject Landlord’s claim that the arbitration agreement was not enforceable. We conclude the parties agreed that the arbitration panel could determine the issues related to rent claimed by Landlord and that agreement is enforceable. We cannot review Landlord’s attack on the merits of the award. A review of the 1534

record, transcripts, and relevant law reveals the decision of the panel of arbitrators “drew its essence” from the lease agreement and therefore did not exceed the panel’s authority under the lease agreement or Oklahoma law. Finally, Landlord failed to prove its claim that one of the arbitrator’s displayed “evident partiality” toward Tenant during the arbitration proceedings. Accordingly, we affirm the trial court’s decision to confirm the arbitration panel’s final award. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur.

Tuesday, June 22, 2010 107,152 — Arley Lee Duncan, Petitioner/ Appellant, v. David W. Prater, Respondent/ Appellee. Appeal from the District Court of Oklahoma County, Hon. Bryan C. Dixon, Trial Judge. Appellant, currently in the custody of the Oklahoma Department of Corrections, seeks a writ of mandamus to require the current District Attorney of Oklahoma County to withdraw certain letters and documents placed in Appellant’s Pardon and Parole Board file by the Oklahoma County District Attorney’s Office. Duncan appeals the trial court’s order dismissing his petition. Based on our review of the record and applicable law, we find that Duncan is not entitled to the mandamus relief he requests and affirm the trial court’s order.

AFFIRMED. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur.

107,056 — James Michael Willbanks, Petitioner/Appellant, v. Karen Denise Willbanks, now Denner, Respondent/Appellee. Appeal from an order of the District Court of Oklahoma County, Hon. Geary L. Walke, Trial Judge, denying Father’s motion to modify child support obligations set forth in the divorce decree. The trial court entered an agreed decree of divorce which, among other things, ordered Father to pay college expenses for the parties’ children. Father later filed a motion to modify his child support obligations including the payment of college expenses. Father claimed the payment of college expenses “is in the nature of child support, and is thus subject to modification” if he has no ability to pay. The trial court found that it did not have jurisdiction to modify Father’s obligation to pay college expenses as set forth in the decree. The general rule in Oklahoma is that a consent decree containing a provision the trial court would not otherwise have had the authority to order cannot be modified without consent of

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both parties because it is considered to be in the nature of a contract. This is true whether the provision at issue in the consent decree is modification of support alimony, child support, or college expenses. Provided the agreement does not contravene public policy, was not procured by fraud or mistake, or has not been proven to be affected by other defenses, the parties’ agreement in a consent decree is judicially enforceable by the trial court. The trial court appropriately found Father’s college expenses obligation arose from the agreement of the parties which the trial court had approved in the consent decree. As a matter of contract law, absent the parties’ agreement to do so, the court could not modify the consent decree provision regarding payment of post-minority college expenses. AFFIRMED. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur.

Wednesday, June 23, 2010 106,924 — Gerald A. Amundsen, II, and Dawn Amundsen, Plaintiffs/Appellees, v. J. Wright d/b/a J. Wright Homes, LLC, and John L. Wright, personally and individually, Defendants/Appellants, and Northwest Building Supply, Inc., Wallace Mechanical, LLC, Robert S. Wallace, personally and individually, and Brad Fleenor, personally and individually, Defendants. Appeal from the District Court of Canadian County, Hon. Edward C. Cunningham, Trial Judge. Defendants/Appellants J. Wright d/b/a J. Wright Homes, LLC, and John L. Wright, personally and individually, appeal the Journal Entry of Judgment filed on January 16, 2009, in which the trial court overruled their motion to compel arbitration. The issues on appeal arise out of the parties’ residential construction agreement, which contains a provision to submit any and all disputes to binding arbitration. Because the parties only agreed to arbitrate pursuant to specific, but non-existent, procedures, we find that, under the circumstances of this case, arbitration cannot be compelled. Therefore, we find the trial court did not err in overruling the motion to compel arbitration. We affirm and remand this case to the trial court for further proceedings.

AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from Court of Civil Appeals, Division II, by Barnes, J.; Wiseman, C.J., and Fischer, P.J., concur.

Monday, June 28, 2010 107,334 — Debra Lynn Thornton, now Watson, Petitioner/Appellant, v. Edward William Vol. 81 — No. 18 — 7/3/2010

Thornton, Respondent/Appellee. Appeal from the District Court of Love County, Hon. Charles E. Roberts, Trial Judge, sustaining Father’s objection to Mother’s registration of a foreign child support order. Mother filed a “Notice of Registration of Child Support Order and Income Withholding Order” seeking to register the parties’ 1979 Texas divorce decree ordering Father to pay $160 per month for child support for the parties’ son born in 1975. Based on Texas law, the trial court found the judgment for past due child support became dormant in Texas on April 24, 2005. The issue on appeal is whether the trial court erred in concluding Mother’s registration of the foreign child support order is barred by Oklahoma law. Based on an analysis of corresponding Texas and Oklahoma law pertaining to limitations on enforcing child support orders, Texas law should not have been applied in deciding the validity of Father’s objection to Mother’s registration of a foreign support order. Mother’s claim was not barred by the statute of limitations or other procedural limitations, and Father’s objection to confirmation of the registration of the support order should have been overruled. Accordingly, we reverse the decision of the trial court and remand for confirmation of the order’s registration and for further proceedings to enforce Mother’s child support order. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J.; and Barnes, J., concur.

Tuesday, June 29, 2010 106,841 — Sam Adkisson, Ronny Moseley, The City of Elk City, Ralph Morrison, American Petroleum & Mineral Co., Inc., and Iris Levy, Plaintiffs/Appellees, v. Koch Industries, Inc., Koch Oil Company, Koch Exploration Company, Koch Midstream Processing Company, Koch Midstream Services Company, Koch Service, Inc., Koch Gathering Systems, Inc., Koch Pipelines, Inc., and Koch Pipelines, LP, Defendants/Appellees, and Charles Cain, Deloris Delluomo, Richard Cain, Estate of Frank Cain and Mary Francis Cain, and Dwaine Southerland, Objectors/Appellants. Appeal from an order of the District Court of Seminole County, Hon. John H. Scaggs, Trial Judge, denying Appellants’ application for attorney fees. The issue on appeal is whether Appellants have shown the trial court abused its discretion in denying their application. Appellants claim that, after the trial court preliminarily approved a settlement between Defendants and class

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counsel, Appellants objected to the settlement on the grounds the proposed attorney fees and incentive payment to the class representative were excessive. Appellants claim the trial court reduced the attorney fee award to class counsel based on evidence they presented. The trial court, however, explicitly stated that Appellants did not influence its decision to reduce the amount of attorney fees. Appellants have failed to show the trial court abused its discretion and there is nothing in the record on which we could overturn the trial court’s decision.

Accordingly, we summarily affirm the order of the trial court pursuant to Oklahoma Supreme Court Rule 1.202(d) and (e), 12 O.S.2001 ch. 15, app. 1. AFFIRMED UNDER OKLAHOMA SUPREME COURT RULE 1.202(d) and (e).

Opinion from the Court of Civil Appeals, Division II, by Wiseman, C.J.; Fischer, P.J., and Barnes, J., concur.

(Division No. 3) Friday, June 18, 2010 106,573 — James R. Vannoy & Sons Construction Company, Inc. and Zurich American Insurance Company, Plaintiffs/Appellants, vs.

R.M. Luna Company, Inc., a/k/a R. M. Luna Companies, Inc., a/k/a R. M. Luna Company, Defendant/Appellee. Appeal from the District Court of Cleveland County, Oklahoma. Honorable William C. Hetherington, Judge. Plaintiffs seek review of the trial court’s order granting the motion to dismiss of Defendant on Plaintiff’s subrogation claim. In the present case, the evidence does not show Plaintiff has paid any of the expenses of Decedent’s last illness or accident, or any workers’ compensation death benefits to Decedent’s survivors. Absent payment of any of the workers’ compensation benefits described in §§44(c) and (d), we hold the trial court properly dismissed Plaintiff’s petition. AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur.

106,778 — Public Service Company of Oklahoma, Applicant/Appellant, vs. Oklahoma Corporation Commission, Appellee, and Oklahoma Industrial Energy Consumers, Quality of Service Coalition, City of Tulsa, and Attorney General, State of Oklahoma, Appellees/Counter-Appellants. Appeal from the Corporation Commission of the State of Oklahoma. Appellant (PSO) appeals a public utility rate Order issued by Appellee (Commission). Oklahoma Industrial Energy Consumers (“OIEC”), Quality of Service Coalition (“QSC”), City of Tulsa (“Tulsa”), and the Attorney General (“AG”) are Appellees/Counter-Appellants. PSO applied 1536

to the Commission seeking authorization for a general rate increase of approximately $126 million. The Commission granted PSO’s application for approximately $81.4 million with the entry of its Final Order No. 564437 which contains detailed findings of fact and conclusions of law. On appeal, PSO argues the Commission’s lengthy determination included an adjustment, which resulted in an unfair rate of return on a pre-paid pension plan and amounted to an unlawful taking of property contrary to the U.S. and Oklahoma Constitutions. PSO’s allegation of an unconstitutional “taking” is merely a challenge to the specific formula the Commission used to calculate the amount of utility rate base. Thus, we must determine only whether the findings and conclusions of the Commission are sustained by the law and substantial evidence in the record. We find PSO failed to adduce the quantum and character of proof necessary to meet its heavy burden of proving with clarity and definiteness that the rate of return (calculated in accordance with the Commission’s adjustment as to the prepaid pension obligation) was unreasonable, unjust and/or amounted to confiscation. OIEC argues the Commission’s failure to hear OIEC’s Motion to Reconsider violates OIEC’s constitutional due process rights. In accordance with the rule enunciated in Turpen v. Corporation Comm’n, 1988 OK 126, ¶20, 769 P.2d 1309, 1319, the Commission correctly declined to entertain OIEC’s Motion because PSO had initiated the appeal prior to the hearing on the Motions. The Orders of the Corporation Commission are AFFIRMED under Rule 1.102(d). Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur.

107,016 — Ray Dean Rittenhouse as Trustee of the Ray Dean Rittenhouse Trust, Plaintiff/ Appellee, vs. Timothy B. King and Sherry L. King, Husband and Wife, Defendants/Appellants. Appeal from the District Court of Harper County, Oklahoma. Honorable G. Wayne Olmstead, Judge. Defendant/Appellant, Timothy B. King, appeals from the trial court’s refusal to vacate a judgment previously affirmed on appeal and mandated. Plaintiff/Appellee originally brought this action against King and his wife, owners of property adjoining Plaintiff’s, for trespass, ejectment and an injunction. In 2006, the trial court granted partial summary judgment to Defendants on the ejectment and injunction claims, but granted judgment to Plaintiff on his trespass claim. The court awarded Plaintiff damages, attorneys fees and costs.

Defendants’ appeal of the trial court’s judg-

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ment was affirmed by this Court (Case No. 104,832). The Supreme Court denied Defendants’ petition for certiorari and mandate issued October 9, 2008. In March 2009, after Plaintiff requested King to appear for a hearing on assets, King filed the instant motion to vacate the trial court’s 2006 judgment. King could have raised the issue of a void or voidable judgment in his original appeal, but failed to do so. The trial court properly denied King’s motion to vacate the original judgment. We affirm and remand for determination of reasonable appeal-related attorney fees and costs to be awarded Plaintiff. AFFIRMED AND REMANDED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur.

107,365 — Marty Malone, Petitioner, vs.

Union Drilling, Inc./Thornton Drilling, Liberty Mutual Insurance and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of a Three-Judge Panel of the Workers’ Compensation Court. Claimant seeks review of an order of a three-judge panel of the Workers’ Compensation Court affirming the trial court’s order denying him benefits, and challenges the lower court’s order as unsupported by any competent evidence. In the present case, Claimant admitted he had been hospitalized for treatment of non-job-related injuries some three weeks before the alleged on-the-job injury. Employer adduced evidence which demonstrated that Claimant did not promptly notify Employer of any job-related accident and that Claimant’s employment was terminated after a positive drug test result shortly after occurrence of the alleged on-the-job injury. On this evidence, the trial court questioned Claimant’s credibility, and the three-judge panel affirmed. We find competent evidence to support a finding of no accidental personal injury arising out of and in the course of the employment. SUSTAINED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur.

Friday, June 25, 2010 105,712 — In Re: The Marriage of Sherry Vanderpool and Jason VanderPool: Sherry Vanderpool, Petitioner/Appellee, vs. Jason Vanderpool, Respondent/Appellant. Appeal from the District Court of Muskogee County, Oklahoma.

Honorable Thomas H. Alford, Judge. Respondent (Father) appeals the trial court’s Decree of Dissolution of Marriage, which awarded Petitioner (Mother) primary custody and awarded Father standard visitation of the parties’ two children. Father contends the court abused its discretion in awarding Mother primary custoVol. 81 — No. 18 — 7/3/2010

dy primarily on the basis of statements allegedly made by the trial judge at the conclusion of trial. It is impossible for this court to ascertain the content of any statements made at trial because there is no trial transcript. Nor were the judge’s statements memorialized in the court’s order. We hold the court’s Decree of Dissolution of Marriage is presumptively correct. AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V.C.J., concur.

106,955 — Steven P. Smith, Plaintiff/Appellee, vs. J.D. Wheeler a/k/a Jimmy D. Wheeler, Defendant/Appelant. Appeal from the District Court of Atoka County, Oklahoma. Honorable Richard E. Branam, Judge. Defendant/Appellant appeals from the trial court’s summary judgment in favor of Plaintiff/Appellee in Plaintiff’s quiet title action. Defendant’s appeal focuses on whether his actions in seeking Plaintiff’s correct address constituted due diligence. However, the trial court’s judgment can be affirmed on other, more basic grounds. 68 O.S. 2001 §3118 sets forth the procedure one must follow to obtain a tax deed. The record contains no verification by Defendant that he used due diligence to serve Plaintiff by any method other than publication. Defendant also never caused the notice of sale to be posted on the front door of Plaintiff’s property, which was listed as homestead property on the last tax rolls. We hold there exists no genuine issue as to any material fact and Plaintiff is entitled to judgment as a matter of law. The judgment of the trial court is AFFIRMED. Opinion by Bell, V.C.J.; Joplin, P.J., and Mitchell, J., concur.

107,196 — Highland Crossing, L.P., an Oklahoma limited partnership, Plaintiff/Appellant, vs. Ken Laster Company, an Oklahoma corporation, Defendant/Appellee, vs. Royce Wright, General Partner of Highland Crossing, L.P., Third Party Defendant. Appeal from the District Court of Tulsa County, Oklahoma. Honorable Jefferson D. Sellers, Judge. Appellant (Owner) seeks review of an order confirming an arbitration award in favor of Appellee (Subcontractor). The issue is whether Owner was subject to an agreement to arbitrate upon which the arbitration award could be based.

Owner argues it did not sign and was not a party to the Subcontract, and thus should not be required to arbitrate disputes arising from the Subcontract. Owner would apparently have us ignore its Contract with the General Contractor, which binds Owner to arbitrate “any claim arising out of or related to the Contract.”

That Contract demonstrates Owner’s agree-

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ment to arbitrate claims related to the construction project. Under the facts of this case, Owner was a party to an agreement to arbitrate the disputes arising from the Contract and Subcontract, and the trial court correctly confirmed the arbitration award. AFFIRMED. Opinion by Mitchell, J.; Joplin, P.J., and Bell, V. C.J., concur.

107,521 — Muskogee Surgical Group, P.L.L.C., Plaintiff/Appellee, vs. Muskogee Regional Medical Center, L.L.C., a/k/a Muskogee Regional Medical Center, Defendant/Appellant. Appeal from the District Court of Muskogee County, Oklahoma. Honorable Norman D. Thygesen, Judge. Defendant/Appellant Hospital seeks review of the trial court’s order granting an injunction temporarily enjoining Hospital from placing physicians of Plaintiff/ Appellee Doctors on emergency room call duty. The evidence reflects the adoption of the Hospital’s Constitution and By-Laws, including the Rules and Regulations of the Medical Staff, and the continued force of those provisions without substantial amendment since adoption in 2004. The Rules and Regulations require that assignments for emergency room on-call duty be made by the Emergency Services Disaster Committee, comprised of physicians and other specialists in the delivery of emergency services, as the authority best qualified to make emergency room on-call assignments. Doctors accepted their staff appointments specifically subject to the Rules and Regulations and had every expectation their emergency room assignments would be made in accordance with the Rules and Regulations.

Under these circumstances, we cannot say the trial court erred in enjoining Hospital from making emergency room assignments other than as prescribed by its rules and regulations.

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

107,531 — Muskogee Surgical Group, P.L.L.C., Plaintiff/Appellee, vs. Muskogee Regional Medical Center, L.L.C., a/k/a Muskogee Regional Medical Center, Defendant/Appellant. Appeal from the District Court of Muskogee County, Oklahoma. Honorable Norman D. Thygesen, Judge. Plaintiff/Appellant Doctors seek review of the trial court’s order dismissing its claim for breach of contract against Defendant/Appellee Hospital. Doctors did not plead or present evidentiary materials argued to show anything other than an express contract, and the evidentiary materials uncontrovertedly establish no express contract. Having 1538

reviewed the record, we hold the trial court did not err in summarily dismissing the claim for breach of express contract. AFFIRMED. Opinion by Joplin, P.J.; Bell, V.C.J., and Mitchell, J., concur.

(Division No. 4) Tuesday, June 8, 2010 104,946 — George Black and Clara Black, Plaintiffs/Appellees, v. Raymond McCormick, d/b/a Ray’s Masonary, Defendant/Appellant.

Appeal from an Order of the District Court of Oklahoma County, Hon. James B. Croy, Trial Judge. The trial court defendant, Raymond McCormick (McCormick), d/b/a Ray’s Masonary, Inc. (sic) (RMI) appeals a judgment in a Small Claims action entered in favor of the plaintiffs, George and Clara Black (Blacks).

Blacks filed suit in 2007 in small claims court against McCormick dba RMI. McCormick’s principal defense was that neither he nor RMI contracted with Blacks. He characterized his occupation as a masonry subcontractor. After a bench trial, the court entered judgment for Blacks in the sum of $6,000.00. McCormick’s first contention is that the trial court must have entered judgment for return of money paid by Blacks for future rockwork on the pool. No authority is cited in support of this claim of error and there is no factual basis shown to be in the record to support the contention. McCormick’s next contention is premised upon an assumption that the trial court found McCormick and RMI in breach of contract. The contention is that McCormick and RMI cannot be in breach of the contract because they were not parties to the pool construction contract. The trial court could conclude from the competent evidence that McCormick dba RMI was the prime contractor. There is competent evidence supporting the trial court’s judgment. Therefore, the judgment is affirmed. AFFIRMED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur.

Wednesday, June 16, 2010 107,776 — Smithway Motor Xpress, Inc. and New Hampshire Insurance Co., Petitioners, v.

Robert L. Graves and The Workers’ Compensation Court, Respondents. Proceeding to Review an Order of The Workers’ Compensation Court, Hon. Michael J. Harkey, Trial Judge, finding Claimant sustained an injury arising out of and in the course of his employment with Employer and awarding Claimant temporary total disability benefits and medical treatment. Employer’s

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sole allegation of error is that the workers’ compensation court erred in finding Claimant’s work-related accident was the major cause of his injury and need for medical treatment.

Employer argues that the workers’ compensation court erred because it did not accord sufficient weight to Claimant’s treating physician.

Employer argues that, pursuant to Title 85 O.S. Supp. 2009, § 17(A)(2)(a), there is a rebuttable presumption in favor of the treating physician’s opinion. Employer’s argument ignores the Oklahoma Supreme Court’s recent pronouncements on Section 17(A)(2)(a). See Conaghan v.

Riverfield Country Day School, 2007 OK 60, 163 P.3d 557. This Court finds the workers’ compensation court’s determination that the workrelated accident was the major cause of Claimant’s injury is supported by competent evidence.

SUSTAINED. Opinion from Court of Civil Appeals, Division IV, by Rapp, J.; Gabbard, P.J., and Goodman, J., concur.

Wednesday, June 23, 2010 108,032 — Wynita Harris, Plaintiff/Appellee, v. Oklahoma State Department of Education, Defendant/Appellant. Appeal from an Order of the District Court of Oklahoma County, Hon. Twyla Mason Gray, Trial Judge. The trial court defendant, Oklahoma State Department of Education (DOE), appeals an Order which granted summary judgment to the plaintiff, (Harris). This case involves whether Harris is entitled to a $3,000.00 stipend available to qualified school employees of the top four schools that attain the highest annual improvement in student achievement. DOE administers the award program established pursuant to 70 O.S. Supp. 2007, § 3-152.1. Harris meets the “certified personnel” criterion. The school where she taught qualified as an achievement school. However, according to DOE, Harris had to work full time at that school, albeit for at least one-half of the school year. This Court rules that there is nothing in 70 O.S. Supp.

2008, § 3-152.1(A) or (D), which justifies DOE’s position. The reference to “full time” in Section 26-103 merely limits the category of potential recipients to “full time” employees. That is not the same as requiring a “full time” employee to work “full time” at a qualifying school. The plain language of the statute does not require that a person be working “full time” in the qualifying school, but does require that, to be

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eligible, the person be a full time employee who is employed in the school for one-half of the school year. Harris met that criterion by being employed in the school for a full year and spending at least one-half of her time there. Therefore, Harris qualified for the stipend. The trial court correctly entered summary judgment in her favor. AFFIRMED. Opinion from Court of Civil Appeals, Division IV,

by Rapp, J.; Gabbard, P.J., and Goodman, J., concur.

108,033 — Linda Skinner, Plaintiff/Appellee, v. Oklahoma State Department of Education, Defendant/Appellant. Appeal from an Order of the District Court of Oklahoma County, Hon. Patricia G. Parrish, Trial Judge. The trial court defendant, Oklahoma State Department of Education (DOE), appeals an Order which granted summary judgment to the plaintiff, (Skinner). This case involves whether Skinner is entitled to a $3,000.00 stipend available to qualified school employees of the top four schools that attain the highest annual improvement in student achievement. DOE administers the award program established pursuant to 70 O.S. Supp. 2007, § 3-152.1. Skinner meets the “certified personnel” criterion. The school where she taught qualified as an achievement school. However, according to DOE, Skinner had to work full time at that school, albeit for at least one-half of the school year. This Court rules that there is nothing in 70 O.S. Supp.

2008, § 3-152.1(A) or (D), which justifies DOE’s position. The reference to “full time” in Section 26-103 merely limits the category of potential recipients to “full time” employees. That is not the same as requiring a “full time” employee to work “full time” at a qualifying school. The plain language of the statute does not require that a person be working “full time” in the qualifying school, but does require that, to be eligible, the person be a full time employee who is employed in the school for one-half of the school year. Skinner met that criterion by being employed in the school for a full year and spending at least one-half of her time there. Therefore, Skinner qualified for the stipend. The trial court correctly entered summary judgment in her favor. AFFIRMED. Opinion from Court of Civil Appeals, Division IV,

by Rapp, J.; Gabbard, P.J., and Goodman, J., concur.

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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 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.

THE OKLAHOMA TAX COMMISSION seeks four attorneys, three in collections and one in protests/litigation. One of the collection positions may be based in Tulsa. Applicants must be licensed to practice law in Oklahoma, have knowledge of District and Administrate Court procedures, and exhibit a professional attitude. Must have a current OK driver’s license as the positions require travel. Salary to be commensurate with experience. Submit resume and writing sample to Marjorie Welch, Interim General Counsel, 120 N. Robinson, Suite 2000W, Oklahoma City, OK 73102-7801.

The OTC is an equal opportunity employer.

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POSITIONS AVAILABLE

POSITIONS AVAILABLE

FORWARD-THINKING, TECH-SAVVY FIRM SEEKS skilled legal assistant, or attorney with 1 – 5 years experience, in banking, transactional and/or real-estate areas. Temp to perm, of-counsel, project basis, employee, all possible. Project deadlines are key, working hours are flexible, telecommuting optional. Great work environment. Competitive compensation package is negotiable. Send resume and cover letter explaining interest to Carrie Palmer, Palmer|Wantland, by e-mail only at lawyer151@gmail.com.

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.

SMALL AV RATED DOWNTOWN TULSA LAW FIRM has immediate opening for associate attorney with 2 - 6 years experience in civil litigation, general business and bankruptcy. Excellent benefits. Salary commensurate with experience. Strong academic record required.

Early responses will receive priority consideration. All submissions kept in confidence. Send resume, references, writing sample, salary history and requirements and law school transcript to: oklaw401@Gmail.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.

ADMINISTRATIVE ASSISTANT WANTED for Teaching and Learning/Communication Center of the Oklahoma Education Association. This position provides administrative support to the Associate Executive Director for Teaching and Learning/Communications and the respective centers. Proficiency in all computer applications and electronic media required. Prior experience with client/member relations and general office management desired. Salary range in low-mid $30’s depending upon experience. Liberal fringe benefits, including employer paid health insurance premium, defined benefit pension plan and matching 401(k) contributions. Send resume by July 16 to Lynn Tiefenthaler, Oklahoma Education Association, P.O. Box 18485, Oklahoma City, OK 73154. EEO Employer.

ASSISTANT ATTORNEY GENERAL, GENERAL COUNSEL SECTION. Applicants shall be licensed to practice law in Oklahoma courts. Requires minimum of five years in the practice of law. Strong research and writing skills, administrative law experience preferred.

Knowledge and use of WordPerfect. See website at www.oag.ok.gov for more details. Send resume and writing sample to W.A. Drew Edmondson, Attorney General, 313 N.E. 21st St., Oklahoma City, OK 73105 or e-mail Trent.Corken@oag.ok.gov. Salary range commensurate with experience according to the office pay scale.

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AV RATED DOWNTOWN OKC INSURANCE DEFENSE LITIGATION FIRM seeks associate with 2 - 5 years experience. Salary commensurate with experience.

Please send resumes to “Box H,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

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.

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ASSISTANT ATTORNEY GENERAL, LITIGATION SECTION. Applicant shall be licensed to practice law in Oklahoma and all federal courts with zero to three years experience. Seeking attorney to handle case load consisting of state and federal litigation. Excellent research and writing skills necessary. Requires use of WordPerfect. Some travel possible. See website www.oag.ok.gov for more details. Send resume and writing sample to W.A. Drew Edmondson, Attorney General, 313 N.E. 21st St., Oklahoma City, OK 73105, or e-mail Trent.Corken@ oag.ok.gov. Salary range commensurate with experience in accordance with the office pay scale.

ESTATE PLANNING/TRUSTS ATTORNEY - OKLAHOMA CITY: 8+ years or more estate planning/trusts with established client base that would like to continue growing practice under the solid leadership of an existing firm. Very lucrative compensation, full benefits, 401k, vacation. Please e-mail Word resume & salary requirements to: tamar@tmsrecruiting.com.

OKLAHOMA CITY AV RATED LAW FIRM looking for an associate with 4-6 years civil litigation experience.

Firm offers compensation and benefits package. Not a downtown firm. Send resume and references to “Box G,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152.

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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.

BUSINESS LITIGATION ATTORNEY — OKLAHOMA CITY: Well-established OKC firm seeking stand-up trial attorney; 8-10+ years commercial litigation and federal court experience required. Very lucrative comp. plan. Please e-mail Word Resume, trial exp. and salary requirements to: tamar@tmsrecruiting.com.

OKLAHOMA LAWYERS FOR CHILDREN has immediate opening for a part-time, in house staff attorney. Duties include: adoptions, guardianships, emergency and review hearings for deprived cases, and some jury trial work in Oklahoma County Juvenile Court. Knowledge of juvenile law preferred, but not required. Please e-mail resume and references to: tthompson-olfc@sbcglobal.net.

OIL AND GAS ATTORNEY - Samson, one of the largest independent exploration and production companies in the oil and gas industry, is seeking to fill one or more Attorney positions in its headquarters in Tulsa, Oklahoma. Such positions provide a broad range of legal services to the company. Such services center upon the exploration and production activities of the company including lease analysis, poolings, unitizations, easements, surface damages, geophysical operations, title work, acquisitions, and a broad range of oil and gas contracts and related issues. Applicants should have 3 to 10 years of contractual, business, and/or litigation experience, either in-house or with a recognized law firm, with oil and gas experience being strongly preferred. Applicants must be a current member of the Oklahoma, Texas, Arkansas, Louisiana or Colorado Bar Associations. Samson offers an excellent compensation package, comprehensive and competitive benefits, and the opportunity to participate in an incentive bonus program. Qualified candidates are asked to apply online at www.samson.com.

ESTABLISHED TULSA AV RATED INSURANCE DEFENSE FIRM seeks associate attorney to handle motion practice and appeals for district court and workers compensation. Salary is commensurate with level of experience. Benefit package includes health & life insurance, short term/long term disability and 401K with match.

Please send resume to “Box W,” Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 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.

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CITY OF TULSA POLICE LEGAL ADVISOR: City of Tulsa Legal Department is seeking applicants for Senior Assistant City Attorney assigned to serve as legal advisor to Tulsa Police Department. Interested candidates can get additional information and apply online at www.cityoftulsa.org/jobs.

STAFF ATTORNEY – MUSKOGEE: Legal Aid Services of Oklahoma is seeking an Attorney for its Muskogee Law Office, serving Adair, Cherokee, McIntosh, Muskogee, Sequoyah, and Wagoner 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 5 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 (available for online submissions or printing on this page) and should attach a resume to the online application or mailed application. Online submissions are preferred. Review materials needed for the online application or print the application for submission by mail at this link: http://www.oklaw. org/link.cfm?2879. Submissions of your completed application and a resume by mail: Bud Cowsert, Director of Operations, 2915 Classen Blvd., Suite 500, Oklahoma City, OK 73106.

ASSISTANT U.S. ATTORNEY - CIVIL DIVISION: The U.S. Attorney’s Office for the Western District of Oklahoma is seeking to fill an attorney vacancy in its Civil Division. Cases handled will include civil defensive and affirmative litigation involving the United States, its agencies and employees. Salary is based on the number of years of professional attorney experience.

Resumes should be submitted to: Robert J. Troester, Executive Assistant U.S. Attorney, 210 Park Ave., Suite 400, Okla. City, OK 73102. Resumes must be received

by July 23, 2010, and should reference announcement number 10-WOK-22-A. LEGAL ASSISTANT - APPELLATE UNIT: The U.S. Attorney’s Office is seeking to fill a Legal Assistant vacancy in its Appellate Unit. This position is the equivalent to a Legal Secretary. Beginning salary is $38,790 per year. See vacancy announcement 10-WOK-20-D at www.usajobs.opm.gov (Exec Office for US Attorneys) for specific information. Applications must be received by mail or hand-delivered to Lisa Engelke, Human Resources Specialist, 210 Park Ave., Suite 400, Okla. City, OK 73102, by 5 p.m. Central Time on July 16, 2010.

The Oklahoma Bar Journal

Vol. 81 — No. 18 — 7/3/2010

Vol. 81 — No. 18 — 7/3/2010

The Oklahoma Bar Journal

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