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Haven Tobias Opportunity:
By Alisa White We’ve never had a tradesperson before.” moved to Norman and Tobias began law 3rd Saturday Legal Clinic
Haven Tobias describes herself as “a Hailing originally from Chicago, school in 1969.
previously stressed out lawyer, living on Tobias attended the University of New When Tobias entered as a first year law By John E. Miley
cigarettes, martinis and black coffee” Mexico and obtained a BA in 1964 and student, there were only three women in General Counsel, Oklahoma
an MA in 1967. She planned to pursue a the graduating class, two women in the Employment Security Commission
who is now a vegetarian, Buddhist,
instructor of meditation (not to be con- doctorate in American History at UNM; second year class and three women, If your practice will not permit
fused with mediation). She is as unique however, when she violated the universi- including Tobias, in the first year class. you to accept traditional pro-bono
ty’s non-fraternization policy and started cases that require appearances in
and compelling as her name. But the lack of women didn’t bother
court and on-going service over a
Born to a family of musicians and dating her professor, she chose to leave. Tobias. “I loved law school. I should period of time, there is another
artists, Tobias was the first lawyer in her “Love wins every time,” laughed Tobias have stayed in law school forever,” states option. I have been fulfilling my pro-
family. Her grandfather was a conductor as she remembered having to make her Tobias. But Tobias also vividly remem- bono obligation for many years
for the Chicago Philharmonic, her grand- choice between marrying her love and bers the gender inequality of the time. through the 3rd Saturday Legal
mother a philharmonic voice instructor, pursuing her goals. Tobias’ husband For instance, at the end of her first year Clinic sponsored by Legal Aid
her mother a poet and writer and her accepted a job at OU as a Russian of law school, Tobias became pregnant. Services of Oklahoma, Inc. The clin-
father an art gallery owner. When Tobias History professor, and on the advice of Her grades had qualified her to be on law
announced she was going to law school, another respected professor, Tobias See PRO-BONO, PAGE 22
her mother said, “How interesting! applied to the OU School of Law. They See PROFILES, PAGE 13
Inside
Irish Memories for Ceremony to be From The President . . . . . . . . . . .2 Stump Roscoe . . . . . . . . . . . . .12
And the Court Said . . . . . . . . . . .4 A.J. Seay: Territorial Supreme
St. Patrick’s Day Held in Honor of Events and Seminars . . . . . . . . .5 Court Justice (1890-1892) . . . .16
A Personal Account of the Robert D. Dennis, Retiring The Protective Effect of Exercise... .6 Book Notes . . . . . . . . . . . . . . .19
Loss of President J.F. Kennedy U.S. District Court Clerk iBar Definitive Playlists . . . . . . . .7 Old News . . . . . . . . . . . . . . . .19
Page 5 Page 11 Bar Observer . . . . . . . . . . . . . .10 OK County Bar Auxiliary . . . . . .22
OKLA CITY OK
PERMIT# 59
PAID
US POSTAGE
PRSRT STD
2 BRIEFCASE • March 2014
Correction
We apologize to Judge Bass. His Letter to the Editor, “As A Nation…” in the February issue of the Briefcase, contained two
footnote references which we omitted. Both references are attributable to State Representative Steve Simon of Minnesota:
Page 3: “We have to be careful not to enshrine our beliefs — no matter how religiously valid we believe them to be —”
Page 11: “I am comfortable with a society that bends towards justice for all, fairness to all, wholeness, openness and above all
else, compassion to all.”
www.okcbar.org • March 2014 • BRIEFCASE 3
Carol Abel Peter B. Bradford Brent D. Coldiron Teresa Elam Rose Marie Hammond David L. Kearney Kellie McGhee K. Clark Phipps Theresa Scott Jordan Thornton
Ed Abel Karen K. D. Brady Jocelyn K. Coldiron David Elder Joe Hampton Sabrina Keesee Kent R. McGuire Amy Pierce Bruce Sealy Roy Thornton
Hal Abel Lynn Brady Seth D. Coldiron Cecilia Ellis Lauren Barghols Hanna Brandon Kemp Greg McIlvoy Gerald F. Pignato Heather C. Seaton C. William Threlkeld
Laura Abel Jessica Bramlett Paul Coldwell Ronette Tindall Ellis Bill Hardaker Amy Kempfert Sean H. McKee Angila J. Pike Jennifer Seeger Bonnie Tillman
Luke Abel Charles A. Brandt David H. Cole Melissa Elzo Lisa Harden Tom Kendrick Michael D. McMahan Mayor Robert Pittman Mark Seikel Kenneth A. Tillotson
Murray E. Abowitz Joanne A. Branesky DeAnna M. Cole Shannon K. Emmons Lloyd T. Hardin, Jr. John A. Kenney Michael S. McMillin C. Craig Pitts James L. Selders Sarah J. Timberlake
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Troy Acree Dee Brazell Steve Cole Marti English Hilda Harp Kathryn Kilpatrick David K. McPhail Charles S. Plumb Jeanna Seright Mary H. Tolbert
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Charles Battle Doug Byford Lonnie Davis James Leo Gaston, Jr. Georginna Holtz Josh Lewis Nick Naifeh Carri A. Remillard Bruce Sparling
Joseph Walters
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4 BRIEFCASE • March 2014
Ergo
ting in the exercise.
had a 57 percent reduced risk, those who By the way, my daughter gave to me a
achieved more than 12.6 met hours had a 65 Christmas present a couple years ago that
by Inwood Office Furniture percent reduced risk, and those who
has really helped me get up and move: a
achieved more than 25.2 met hours had a
Fitbit One. It is basically a fancy pedometer,
71.2 percent reduced risk.
but I assure you that my wearing it causes
Now, exercise, performed at these levels,
me to put in more exercise than I was doing
does not guarantee that one won’t get kidney
cancer, but it clearly reduces the likelihood. before she gave it to me. You might try it, or
And while the numbers indicate that more is the like, out.
better, a significant protective effect is
apparently available at merely 7.5 metabolic
Warren E. Jones, JD, HFS, CSCS, CEQ, is an
hours of exercise per week. Achieving only
7.5 metabolic hours of exercise per week is American College of Sports Medicine (ACSM)
a piece of cake. Health Fitness Specialist, a National Strength
The above statistics are after adjustment and Conditioning Association Certified Strength
for body mass index. That is, Mr. Smith and and Conditioning Specialist, and a holder of an
Mr. Jones each have a body mass index of ACSM Certificate of Enhanced Qualification.
30, but Mr. Smith, who exercises 7.5 meta- His clients range from competitive athletes to the
bolic hours per week, enjoys the protective morbidly obese. He can be reached at
effect unavailable to Mr. Jones, who does wejones65@gmail.com or at 405-812-7612.
inwood
OFFICE
InVIRONMENTS
a new approach to the sit/stand work environment.
www.okcbar.org • March 2014 • BRIEFCASE 7
IRISH from PAGE 5 ming. There he never misses a practice, ty year run as state senator, Ward boss, sev-
wrenches the hell out of his frail skinny eral time Mayor of Boston and one term
Act became federal law, buses in Virginia body and wins. served as U.S. Congressman.
were segregated. There was a yellow line In the face of all this, Jack was utterly That Joe only used his inheritance as a
near the rear door of the bus. When the bus stoic. He never complained about his pain or goad to quintuple and quintuple again the
would cross into Virginia, any “negroes” his illnesses. Much is made of this as a family wealth; that the ultimate marriage of
would have to stand up and retreat to the Kennedy trait. I humbly submit that it is an wealth and political power in Joe and Rose
back of the bus. I only remember seeing the Irish trait. It just doesn’t work. Irish mothers only made them maniacal in imparting com-
yellow line, and being told its meaning, as a don’t buy it. (This is the real reason why so petitiveness to their children (“Kennedys
junior or senior in high school, when, pre- many Irish American men marry Italian win,” was the family mantra); these are key
sumably its purpose had obsolesced. In my women—but that is a story for another to understanding Jack Kennedy and the
years of pre-adolescent “freedom,” I don’t time.) breadth of his triumph as President.
even remember seeing it. I never had to battle illnesses growing up, For Joe Kennedy and his family, there was
The hard fact was that the District of but I completely empathize with Jack’s bat- only one way-up. Mai tais on a beach was
Columbia was a rigidly segregated city, with tles with brother Joe. Bobby recalled that he never a thought, less an option. What might
some of the meanest ghettoes in the nation. would run upstairs and hide whenever his seem an aberration is actually painfully ordi-
In the late spring of my senior year in high brothers fought. It was always that scary. nary. Exactly like every other Boston
school, during the riots following Martin Once when Jack had challenged Joe to a Irishman, they wanted to be American. “I
Luther King’s assassination, many of the bike race, after more than doubling the dis- was born here. My children were born here.
neighborhoods through which my D.C. bus tance and, of course, still losing, Jack “gave What the hell do I have to do to be an
rides gamboled, the F street corridor, neigh- up,” only to turn around and smash his bike American?” Joe Kennedy railed. Joe
borhoods around East Capitol Street, large head-on into Joe’s, earning himself twenty- Kennedy never got over his bitterness, even
sections off North Capitol, burned to the eight stitches to close the gash in his arm. when Jack won the Presidential election,
ground while looters were shot dead by As youngest of five male Irish boys, I can seeing it as merely the long overdue triumph
police and national guardsmen. freely testify that such fights make bar fights over Boston’s Brahmins and America’s anti-
Statue of John F. Kennedy
(been there) and especially refereed school Catholic, anti-Irish prejudices.
The Skinny Kid who was always sick “fights” (wrestling-briefly) seem like what was bloodier, and persisted longer, than sim- Almost without exception, Jack
If you haven’t guessed that, at least in my they are: play. It is not so much the damage ilar struggles in the other big cities, New Kennedy’s many teachers’ comments about
idealized memory, there are some striking (though that can be considerable) as it is the York or Chicago. “I.N.N.A.” (Irish need not him included these two points: 1) They
parallels between my own Irish family mind game. One pits ones soul, one’s entire apply), was not a want ad tag from the nine- could not understand his mediocre grades
upbringing, and that of John Fitzgerald being, in a fight with no rules. The endgame teenth century in Boston. It persisted into since he was obviously very bright; but 2)
Kennedy in his, thirty years’ earlier, then is utter personal humiliation. Whoever Jack Kennedy’s adult life. The most they admired his independence of thought
you haven’t been paying attention. The coined the term “brotherly love,” was either “vicious” slums of the nation were the Irish and ability to explain it without rancor.
Kennedy family dinners are legend. The not Irish, or one with a sense of irony exqui- slums of Boston. The Ku Kux Klan Jack’s father served as America’s pre-war
Kennedy family was fiercely competitive, as site even beyond the Irish patent on the term. remained bitterly anti-Catholic and anti- ambassador to Britain. While his father’s
was mine. Jack’s chief rival was his older The reverse side of the coin, which I see Irish, and was a national presence well into mouth and pacifism were leading him to his
brother Joe. This was a mismatch in every in Jack’s later countless acts of personal and the depression. eventual unceremonious recall, Jack was
way. He was a year older, heavier, healthier, public heroism, is that, if you are used to get- This was the irony. Here was a family of using his father’s influence to get him into
stronger, more athletic, and always won ting your ass kicked, and yet always jump up rich kids. In Jack’s own words, “I have no all kinds of dangerous and invaluable
every athletic and academic prize for which to fight some more, nothing really intimi- firsthand knowledge of the depression. My European places, such as Nazi-occupied
he competed, at the prestigious prep school dates you. In my humble experience, it was family had one of the great fortunes of the slave work factories. He turned his whirl-
Choate and at Harvard. Jack was skinny and a great asset when litigating at Legal Aid. world and it was worth more than ever then. wind tour into a 164-page Harvard thesis;
sickly. Preparing for litigation with a silk stocking We had bigger houses, more servants, we which then quickly morphed into his first
Sickly? This kid could have been the attorney representing a large insurance com- traveled more… I really did not learn about book, a runaway bestseller, Why England
poster child for sick. At three he had scarlet pany against a scruffy “weak” indigent was the depression until I read about it at Slept.
fever so severe that the doctors gave him up always a battle to the death for me, and I just Harvard.” Talk about the elder Bush being When Jack ran for President, he would
for dead, workaholic Joe Sr. took two weeks couldn’t wait to get in the ring. born with “a silver spoon in his mouth.” He honor all the Irish obligatory political
off work, and Jack was either in a bed or We all love our brothers, of course, and was a piker next to the Kennedys. Jack events, but in his way. At the end of the cam-
wheelchair for months. His crazy school Jack would have surely died for any of his. Kennedy was our richest president, far paign, stumping through Massachusetts, he
records — in and out of Choate and other The love/hate of sibling rivalry, which Joe wealthier than FDR. He was the only presi- made three obligatory stops for Knights of
prep schools half a dozen times — stints at Kennedy encouraged in all his family, will dent to never take a dime of his salary. With Columbus rallies, planned a year in advance,
Harvard, Stanford, Princeton, and then back remain a mystery for me and any who have his family’s wealth and political connec- but tore up their scripts and talked about
to Harvard; these were never due to his laid experienced it, but I feel that it somehow tions, he could have been safe from any war, what he was planning to do as President.
back academic ways, which made him a strengthened whatever integrity I may be as George W. Bush’s family kept him from “Ask not what your country can do for
solid C student wherever he went. In aca- fortunate enough to have today, and I have being sent to Vietnam; he could have bought you. Ask what you can do for your Country.”
demic America of the ’30s (of course this is no doubt that it did the same for Jack a Tahitian island like Marlon Brando and To his fellow Irishmen, he might have been
different today), having the equivalent of a Kennedy. spent the rest of his life yachting and sipping saying, “Ask not what America can do for
multi-billionaire father ensured entrance mai tais. you, now that, at long last, you are a part of
into, and graduation from, any Harvard or The Rich Kid When World War II began, Jack ran to the this great country. Ask what you can do, as
super-Harvard, had it existed. Joe Kennedy’s money con goes on. I chal- nearest recruiting station and of course spec- an American, to make it better.” In one
Mystery illnesses — he was diagnosed lenge you to find his name on any Forbes tacularly flunked his physical. Joe Sr. used speech, he grabbed the rest of America by
with diseases from spastic colitis to list or historical listing of wealthiest families his political influence to get him a second, the throat and let them know that he was an
leukemia and everything in between — or men. This was the old man’s intention, of falsified physical, that allowed him to enlist American to be respected. As historian Doris
attacked the kid like a veritable plague. In course. He started making private trusts for in the Navy. Joe Jr., who could also easily Kearns Goodwin has written, “From his
the middle of college the disease came that his wealth as early as 1924 — four major have avoided the war altogether, went with grandparents on his father's side, he inherit-
stayed: his “bad back.” Still not definitely ones by most accounts. Still, at his death in his father’s blessing, fought in Europe, and ed a certain self-possession and dignity of
diagnosed after seventy plus years, it was a 1969, the New York Times estimated his per- came home in a serviceman’s coffin. Jack’s bearing which his father never achieved.
necrotic, progressive condition that caused sonal net worth (not counting the fortunes PT Boat was split in half by a Japanese Like P.J. Kennedy, John Kennedy com-
several surgeries, a metal plate inserted in invested in, nor the income produced by the destroyer in the South Pacific. He lived and manded respect and attention from all who
his back, horrible agony and was as pro- trusts) at 500 million dollars. Given that returned home a decorated war hero. came in contact with him.” If not in that one
found and debilitating as FDR’s polio — Howard Hughes was at the time the only speech, certainly in the 100 days to come,
and as fiercely hidden from the public eye. acknowledged billionaire on earth, that was The Fighter Who Did It His Way Irish Americans disappeared as apolitical
Joe’s money sent him to every one of the a heap of money. And in the depression, he In reality, any Irish Kennedy family finan- minority. Americans — and the world —
absolute best medical facilities, some of was even wealthier. Kennedy Sr. was worth cial struggles were ancient history. Joe’s embraced this man and his vision as ours,
whose names still resound of quality: the in the hundreds of millions of dollars before father, “P.J.,” owned a coal company, was a and quickly forgot about his origins.
Mayo Clinic; Johns Hopkins; Harvard the crash of 1929 — except that he had liq- leading investor in Boston’s largest bank, Forgot is perhaps the wrong word.
Medical; Columbia Presbyterian. Jack was uidated his entire stock portfolio in 1924. and was a ward boss and established com- “Didn’t care about” might be truer. The
no malingerer. You see his record at every Overnight, as the country’s wealth devalued munity leader. Rose’s father John Fitzgerald Kennedys kept true to their Irish roots.
school - Choate and Harvard especially - by a third, his wealth went up 300 percent. was born into financial security and attend- They let the media dub them the “Kennedy
and it is the same. He plays freshman foot- The Irish’ struggles in Boston are chroni- ed the prestigious Boston Latin school. John clan.” Jack visited the village of his family’s
ball (Joe did), and gets his ass kicked. He cled in depth and insight in the Boston Globe Fitzgerald went on to cement Jack’s place in
tries other sports until he finally finds swim- article referenced above. The fight in Boston Boston’s Irish political pantheon with a thir- See IRISH, PAGE 15
www.okcbar.org • March 2014 • BRIEFCASE 9
10 BRIEFCASE • March 2014
Bar Observer
Crowe & Dunlevy Attorney proceedings and litigation. Her chemical nized for the gravitas of their case matters peers. Brad Welsh was included this year
engineering experience includes hazardous during 2013, including potential precedent as a “Future Star” which reflects that his
Named General Counsel for waste management, contaminated site set or verdicts with notably high dollar peers and clients referenced that he was
OKHR remediation and combustion processes and amounts at stake. Only one firm per state likely to become a “Local Litigation Star”
permitting. Her combined careers in engi- receives this award each year. in the future. Oklahoma had a total of seven
Courtney Warmington, labor and neering and law have allowed Ternes to sig- Crowe & Dunlevy is one of the largest “Future Stars” and 45 “Local Litigation
employment attorney for Crowe & nificantly contribute to civic and profes- firms in Oklahoma with approximately 130 Stars” selected.
Dunlevy, was recently named general coun- sional organizations through various leader- lawyers in two offices and more than 30 Each GableGotwals attorney was hon-
sel for the Oklahoma Human Resource ship positions and served as a basis for her practice groups. For over a century, the firm ored in the following areas:
Society (OKHR). extensive publications. has advised clients ranging from individu- David Bryant - Insurance, Environmental
Warmington, a director and member of In addition to her practice and publica- als to Fortune 100 companies. and Energy; David Keglovits - General
the firm’s Labor & Employment practice tions, Ternes has served as a leader within The firm also achieved the highest level Commercial, Insurance, Construction and
group, has successfully represented man- multiple professional organizations, includ- of ranking in the 2014 editions of Energy; Graydon Dean Luthey - General
agement in cases brought by employees ing the American Bar Association, Benchmark Litigation and Benchmark Commercial, Securities, Energy and Native
American College of Environmental Plaintiff, the annual guide to the United American; Rob Robertson - General
under Title VII of the Civil Rights Act, the
Lawyers, American Institute of Chemical States’ leading plaintiff firms and attorneys. Commercial and Energy; James Sturdivant
Americans with Disabilities Act, the Age
Engineers and the Air and Waste Both publications recognized Crowe & - Anti-trust, General Commercial,
Discrimination in Employment Act, the Management Association. She is also a Dunlevy as a Highly Recommended firm, a Securities and Energy; Brad Welsh - areas
Family and Medical Leave Act, Oklahoma member of the environmental law sections designation held for firms that consistently of law are not defined for “Future Stars”
workers’ compensation laws and the Fair of several state bars, including Oklahoma. Benchmark is the only publication on the
receive the most mentions by peers and
Labor Standards Act. Warmington has also Ternes is recognized by her peers and clients. Firms with the Highly market to focus exclusively on litigation in
worked with employers in dealing with clients as a leader in environmental law. Recommended distinction are generally the US and is considered the definitive
administrative agencies such as the Equal She is listed in Chambers USA Guide to regarded as dominant in their particular guide to America’s leading litigation firms
Employment Opportunity Commission, the America’s Leading Lawyers for Business; jurisdiction. Several of the firm’s attorneys and attorneys. The guide’s results are the
Oklahoma Employment Security The Best Lawyers in America, where she also received individual distinctions for culmination of a six-month research period
Commission and the Oklahoma was also named 2011 Oklahoma City their work. that allows researchers to conduct extensive
Department of Labor. In addition, Environmental Lawyer of the Year; interviews with litigators and their clients.
Oklahoma Super Lawyers, in which she has During these interviews recent casework
Warmington serves as an administrative Carsey Joins
been named as a Top 25 Women Oklahoma handled by the firms is examined and
law judge at the Oklahoma Department of Rischard Law PC
Super Lawyers; International Who’s Who of sources are asked to offer their professional
Labor. Environment Lawyers; and is an American
Rischard Law PC of Oklahoma City opinions on litigators practicing within their
She is a member of the labor and employ- College of Environmental Lawyers Regent
announces that Daniel V. Carsey has joined state or national practice areas.
ment law section of the American Bar and Fellow.
Association and the Oklahoma Bar She serves currently as a Ward 3 commis- the firm. His practice will focus on business
Association. She also serves on the sioner for the City of Nichols Hills, Okla. as litigation with a specific emphasis on GableGotwals Selected
Oklahoma City University School of Law well as a member of the Oklahoma Chapter employment, energy, insurance, debt col- as Go-To Firm
of the International Women’s Forum and is lection, foreclosure, bankruptcy and insol-
Alumni Association board of directors and For the third year in a row, GableGotwals
former secretary for Vanderbilt University vency matters. He earned his J.D. from TU
is a member of The Luther L. Bohanon has been selected as a Go-To Firm for the
School of Engineering Alumni Council. in 2005, graduating with highest honors.
American Inn of Court. Warmington is list- After graduating, he clerked for Judge Earl top Fortune 500 companies. The selection is
ed in Chambers USA, The Best Lawyers in She received her Bachelor in Engineering,
S. Hines at the U.S. District Court for the based on data gathered from companies’
Chemical Engineering from Vanderbilt
America and Oklahoma Super Lawyers. Eastern District of Texas. Carsey joins General Counsel in addition to various key
University in 1984 and her Juris Doctor
She has also achieved a BV peer review rat- Rischard Law PC from the Oklahoma City databases. According to Corporate Counsel
with high honors from the University of
ing given by LexisNexis Martindale- office of Conner & Winters. magazine, less than one half of 1 percent of
Arkansas at Little Rock in 1995. Ternes is
Hubbell. all law firms are included in the magazine’s
admitted to practice law in Oklahoma,
OKHR is a nonprofit state affiliate of the “Go-To Law Firm” list. The list is limited to
Arkansas, South Carolina, District of Benchmark Litigation those law firms that general counsel at the
Society for Human Resource Management. Columbia, U.S. District Courts for the Recognizes the Firm, and world’s leading 500 companies rely upon
Eastern and Western Districts of Arkansas,
U.S. District Court for the Western District Six GableGotwals Attorneys routinely and for the most critical matters.
Leading Environmental Law
of Oklahoma and the U.S. Court of Appeals
Expert Joins Crowe & for the 10th Circuit. Prior to entering law
Six GableGotwals attorneys and the Firm
Fischer Elected President of
Dunlevy overall have been recognized by
school, Ternes worked for many years as a Benchmark Litigation as displaying the the Foundation of the
chemical engineer, first for the
Crowe & Dunlevy recently announced ability to consistently handle complex, International Association of
Environmental Protection Agency and then high-stakes cases in multiple jurisdictions.
that Mary Ellen Ternes, a noted industry Defense Counsel
for industry. Overall, GableGotwals has been named a
expert in environmental law and practice,
has joined the firm’s Environmental, Highly Recommended Firm by Benchmark Foliart, Huff, Ottaway & Bottom is
Energy & Natural Resources and Litigation Benchmark Litigation Litigation, meaning peers and clients con- pleased to announce that Amy Sherry
& Trial Practice Groups as a director in the Names Crowe & Dunlevy 2014 sistently recognized the Firm as dominant Fischer was elected as President of the
Oklahoma City office. Oklahoma Firm of the Year in our particular jurisdiction. Foundation of the International Association
Ternes’ expertise includes advising In addition, attorneys David Bryant, of Defense Counsel at its mid-year meeting
clients on matters of environmental permit- Benchmark Litigation, the annual guide David Keglovits, Graydon Dean Luthey, in California. The Foundation for IADC has
ting, compliance strategies, enforcement to the United States’ leading litigation firms Rob Robertson and James Sturdivant, a significant impact on the civil justice sys-
defense, environmental assessments, trans- and attorneys, recently named Crowe & have been identified as Local Litigation tem by serving as a platform for educating
actions and due diligence, voluntary clean- Dunlevy the 2014 Oklahoma Firm of the Stars. The designation means that these the public on current litigation issues, and
up practices, environmental impact state- Year. attorneys were consistently recommended supporting the integrity of legal systems
ments and federal and state administrative Firms that receive this award are recog- as reputable and effective litigators by their globally.
www.okcbar.org • March 2014 • BRIEFCASE 11
Stump Roscoe
By Roscoe X. Pound damages award, that allows for the exis- has said, or might say. frankly I couldn’t be happier for them.
Dear Roscoe: My client provided the tence of a lien, not the other way around. Unlike the ad hominem, however, Apparently, Crenshaw felt the same way.
concrete for a commercial building under 51 Am. Jur. 2d Liens 13 (2009). Because Godwin’s Law did not originate in rheto- Of course, the fact that Junior had all but
construction. He filed a lien, but the a lien is a right to encumber property ric and is not a true logical fallacy. officially taken up residence in
court entered a declaratory judgment until a debt is paid, it presupposes the Instead, it simply posits that the longer Crenshaw’s spare room provided an
determining his lien improper. We then existence of a debt. If there is no debt in and more heated an argument grows, the effective talisman against things that may
filed suit on the account, also seeking the first instance, there is no need for a more likely it is that someone will eventu- go bump in the night. I noticed long ago
quantum meruit relief. I’ve now received lien, so a lien cannot legally exist or ally resort to responding to a contrasting that scary people tended to give Junior
a Motion to Dismiss, arguing that the attach. In other words, without a debt, viewpoint by making a comparison to fairly wide berth.
declaratory judgment rendered my there can be no lien. Although a lien is an Hitler or the Nazis. The term originated I was on my way up to Crenshaw’s
client’s account uncollectible. What do incident of, and inseparable from, the in reference to message boards, chat
when the call came in. The track of
you think? M.R., Norman, OK. debt it secures, it is distinct from that rooms, and other internet fora. It could
London After Midnight I thought most
Dear M.R.: If you’re giving me the debt; liens relate to assets or collateral, be applied to any type of discourse, how-
promising ran through a French language
whole story, sounds like someone’s trying while the indebtedness underlying a lien ever, once the rational arguments devolve
version last legally held by a theater
to make the tail wag the dog. As dis- appertains to a person or legal entity (the into hyperbole.
debtor). Id” Kudos to the Tenth Circuit for display- owner named Frederic Blum in 1937.
cussed in 51 Am.Jur.2d Liens § 13 Crenshaw and friends had scored a major
Winter v. Pleasant, 2010 WY 4, 222 ing such tech savvy. Hope you remember
(2011): coup by tracking a descendant of Mr.
P.3d 828. the case to report back to us, G.F. I’d be
As a lien is a right to encumber prop- Blum’s to a luxury high rise on the Jersey
willing to wager the advocate stooping to
erty until a debt is paid, it presupposes side of the Hudson. Given that Junior had
Dear Roscoe: I’m returning from the usage comes up on the short end of
the existence of a debt. If there is no debt to appear in Essex County court, Sylvia
Denver where I argued a case before the the case.
in the first instance, there is no need for agreed to contact the Blum scion and
10th Circuit. The attorney arguing a case
a lien, so a lien cannot legally exist or bring him to meet with us at Crenshaw’s
ahead of me became quite, shall we say, Well, if you keep an eye on The
attach. In other words, without a debt, home. I had gotten better than halfway to
impassioned. One Judge warned him Weather Channel, you’ve no doubt
there can be no lien. Although a lien is an Englewood when I received Sylvia’s call.
about “violating Godwin’s Law.” It got a noticed that Jersey has been struck with
incident of, and inseparable from, the laugh, so I guess I’m one of the few peo- several bouts of “Snowmageddon”. Even She had made it to Mr. Blum’s condo,
debt it secures, it is distinct from that ple not clued in. It’d be nice to have an as I write this, my back still aches from but no one answered the door. It was
debt; liens relate to assets or collateral, answer waiting for me when I get back. shoveling the front walk. Never a kid unlocked. She ventured inside, worried
while the indebtedness underlying a lien G.F., Tulsa, OK. around when you need one. I can navi- that something may be wrong with the
appertains to a person or legal entity (the Dear G.F.: I Don’t get many emails gate pretty well on snow and ice, and the elderly gentleman. She found the place
debtor). from Tulsa. Nice to know the OCBA, or at need to do so is minimized somewhat by very thoroughly ransacked. She was
So, look at the definition of “debt.” least the Briefcase, draws in folks across living in a neighborhood that boasts a about to get out and call the police when
The first definition Black’s offers for the Sooner State. Hmm, you expect an city councilman, a State Assemblyman,
“debt” is “[l]iability on a claim; a spe- she realized she was not alone in the
answer to a question that you ask in mid- and a Freeholder (what you folks out apartment. She locked herself in the bath-
cific sum of money due by agreement or February to a column that won’t hit print there call “County Commissioners”)
otherwise.” Black’s Law Dictionary 410 room, and called me, for whatever rea-
until late March by the time you get back among its denizens.
(7th ed. 1999). Accordingly, as soon as son, rather than the police. She asked me
to T-Town from Denver? Who’s bringing I do need to report, however, that the
your client began to provide goods and not to call them either. Given my dis-
you home, the Amish? hunt for the missing film classic took on
services, such a debt came into being, tance, the traffic, and the snow, I was in
OK, Godwin’s Law. It was originated a decidedly ominous turn of late. I had
i.e., “a specific sum of money became gone through the briefcase of material no position to play minuteman. With a
by a guy named Richard Sexton, but
due” by virtue of the services rendered. made popular by attorney/author Mike Mr. Crenshaw had entrusted to me. It desperation born of necessity, I called
The maxim that services rendered give Godwin. It states: “As an online discus- took me a couple of days to distill every- Daddy Mike who I thought might be in
rise to a debt is as old and universal as sion grows longer, the probability of a thing to a useful summary. Sylvia Cioffo, the area. Fortunately, he was. Admittedly
the maxim that a lien presupposes a debt. comparison involving Nazis or Hitler Crenshaw’s gal Friday, proved both help- without regard for legality, I performed a
To illustrate: approaches one.” It is related to the ful and a joy to work with in the process. quick U-turn, earning me the enmity of at
“Winter argues that a valid damages “reductio ad Hitlerum” posited by Leo Except, of course, she took off early each least a half-dozen fellow motorists, as
award is dependent on a valid lien. We Strauss back in the Fifties. As a form of Friday and most of Saturday, that time well as several pedestrians who ended up
reject this argument because it is the ad hominem, the latter compares an devoted to the growing romance between in the slush between the street and the
existence of a debt, or in this case, a opponent’s argument to something Hitler her and our own Junior DeGroot. Quite curb.
DONATION from PAGE 1 and the OU College of Law library to nominated by faculty members from each Oklahoma City, OK 73118
underwrite subscriptions for real estate and law school. OKCRPLA meets on the sec- The opening of the Oklahoma County
nishings for its new media room,” said mineral interest treatises. Additionally, ond Friday of the month, at 7:15 a.m.
Barbara Bowersox, the group’s current Law Library Media Room is March 28 at
OKCRPLA gives an annual academic (except for July and August) at the
president. “We’ve also been able to make award to an outstanding real property stu- Community Room on the 3rd floor of 50 11:00; everyone is encouraged to attend
gifts to the OCU School of Law Library dent from both OU and OCU; students are Penn Place, 1900 N.W. Expressway, this event.
SOFT CHROMEXCEL
LEATHER WITH
FLEX-WELT SOLE BY
ALDEN
SHOES
AT THE
Tobias was drawn to Buddhism because, for her, it defined reality. She has traveled to China, Vietnam, Japan and Tibet and Tobias states she views Buddhism more as a philosophy and a way of life than a religion.
review, but as her belly got noticeably never saw any direct repercussions from 1992. Tobias led the group’s appellate sections and although tensions were high,
bigger, the law school debated whether it the other Judges towards Eubanks for hir- practice and continued to write com- Tobias remembers she “never felt hassled
was appropriate for her to stay on law ing a female, she knows he received a lot pelling briefs. Supreme Court Justice by the Chinese, even though she was a
review. In the end, she was allowed to of “flack” for it. Marian Opala asked Tobias to be on the Buddhist.” Shortly after she departed
remain on the law review. The “brew-ha- Tobias wanted to spend more time with OUJI committee after reading something Tibet, two monks set themselves on fire
ha,” as Tobias described it, highlighted her daughter so, after leaving her position she wrote. He also had Tobias give the
near the hotel where she was staying and
the very real problem of lack of women with Judge Eubanks, she started a private lecture on summary judgments whenever
the Chinese closed the borders again.
in law and prepared her to face the chal- practice in Norman. She loved being so he taught a law school course.
lenges of being a woman in a male-dom- close to home and having the freedom to In 1999, Tobias became a student of Tobias has led creative writing groups
inated field. mother her daughter, but she realized she Buddhism and, in 2002, she chose to and published articles in the Norman
After graduating, Tobias accepted a didn’t like being a private practitioner. As reduce her work hours and travel. Over Transcript regarding her travels and
position with Bulla and Horning. Phil chance would have it, she wrote a brief in the following years she traveled to China, Buddhism. She is currently an instructor
Horning asked Tobias to write a brief on one of her cases and, as a result, was Vietnam and Japan. She was drawn to for the Osher Life-Long Learning
a case that was set for a hearing in front offered a job by an attorney involved in Buddhism because, for her, it defined Institute (OLLI) at the University of
of Judge Luther Boyd Eubanks. Tobias the case, Robert S. Baker. At Baker, reality. Tobias states she views Buddhism Oklahoma. OLLI is a program designed
wrote the brief and, soon after submitting Baker and Smith, she once again found more as a philosophy and a way of life to promote the education and personal
it, received a letter from the Judge’s herself juggling long hours with mother- than a religion. She loves that it empha-
growth of older adults. When OLLI
office stating Tobias should arrive fifteen ing her daughter. There weren’t any sizes compassion. Tobias states, “The
decided to offer a meditation seminar for
minutes prior to the setting. Scared and female partners in the area with whom older I get the more I see that the only
unsure, Tobias stood among others in the she could commiserate and certainly way to overcome the follies of human the first time, they approached Tobias.
outer chambers of the Judge’s office. there were no women on the US or nature is to show compassion.” Tobias created the syllabus and was
The Judge appeared and, looking at no Oklahoma Supreme Courts to look to for In 2012, Tobias fully retired and trav- thrilled when twice as many people
one in particular, asked, “Who’s Haven inspiration. However, she was committed eled to Tibet. Tobias recalls that she was enrolled in the class than expected.
Tobias? I want to hire Haven.” Shocked to finding a work – life balance and made “lucky” to have been allowed entry into Tobias describes the class as a gift from
but quick to respond, Tobias raised her it clear that her family was her priority. the country. She said that at the time of the universe and is considering teaching
hand and replied, “I’m Haven and I If she worked until 9pm one night, she her trip, China had closed the area to a new class with a colleague on Classical
accept.” Tobias remembers the obvious would be sure to come in late another tourists. An optimist, Tobias boarded a and Contemporary Buddhism.
look of surprise on the Judge’s face when day. train and rode for over two days with Tobias, 71, considers her life a work in
he saw that Tobias was a female. He did- Tobias changed firms when she decid- hopes that the border would be opened by
progress. As she wrote in a December
n’t say anything and simply proceeded to ed to leave trial work and focus on appel- the time she arrived. As her train pulled
the bench and announced to the parties late work. Tobias “loved being able to into the station, she still didn’t know if 2010 article, “I’ll keep working on [find-
that he had to recuse himself from the focus not on facts but on two theories of she would be allowed entry. When she ing balance]. In the words of zen master
case because he had just hired opposing law, usually with reasonable arguments was eventually given permission to get Shunryu Suzuki, ‘We’re all perfect just
counsel. Tobias clerked for Judge on both sides.” She joined Pierce, Couch, off the train, she knew she could enter. as we are. And we could all stand a little
Eubanks for four years and although she Hendrickson, Baysinger and Green in Armed Chinese soldiers stood at all inter- improvement.’”
14 BRIEFCASE • March 2014
A.J. Seay
Territorial Supreme Court Justice (1890-1892)
Excerpt from A History of Judges of Oklahoma & Canadian Counties by Judge Russell Hall
Territorial justices, in addition to their cost twelve dollars! I made up my mind to [Judge Seay was appointed Associate aggressive and to some extent overawed
appellate responsibilities, sat as ex officio purchase these books as soon as I could Justice in Oklahoma in May, 1890] the better element who, though in the
district court judges in their assigned dis- save that much money from the pressing The third district was known as the majority were ‘negatively good’ and had
tricts. Since Judge Seay was assigned the demands upon me. I kept busy, looked ‘short grass district’ and embraced all the no taste for the ‘firing line’. Gambling
“short grass district”, he held court as a after the family and taught school. A coun- unorganized territory west of the 98th houses and unlicensed saloons were run-
district judge in El Reno and Kingfisher try lawyer died, leaving a law library con- meridian to the east border of the ning wide open day and night.
among others. As such, Judge Seay can be sisting of an old, musty smoked copy of Panhandle of Texas on the 100th meridian, Their keepers denied the existence of
said to be the first district judge for Chitty and the Missouri statutes, which was bounded by Kansas on the North and any law requiring a license or regulating
Canadian County. Oklahoma County was were kept on the mantel. I was employed Greer county, Texas on the south. All this, their business in any way. I had this ele-
in another district. Judge Seay writes as clerk at the administrator’s sale and except the Cherokee Outlet was known as ment to contend with. They would get
Canadian County was in the third district bought that library for one dollar (the only the Cheyenne and Arapaho country and some of their friends on the grand jury and
and Oklahoma County was in the second bid) and was ridiculed by the crowd for was occupied by the Indians of those prevent indictments, or, failing in this,
district, this is reverse to Thos. Doyle’s paying too much for it. I put in all my spare tribes, some government troops, U.S. would bring improper influences to bear
article on the Supreme Court. Judge Seay’s time reading Chitty, and in 1860 entered Indian agencies, cattlemen, and a few ‘bad on the trial jury. It was hard to prevent this,
mansion in Kingfisher is operated by the the law office of Pomeroy and Seay as jan- men of the border’, which the latter gave for they knew their friends better than did
State and is interesting to tour along with itor and student. the officers a merry chase to capture them. the court and the officers. In this way they
the museum across the street. [With the start of the Civil War] Led by Beaver, one of the counties assigned to sometimes got a ‘hung jury’ or an acquit-
The Oklahoma Chronicles, a publication Capt. W.F. Geiger, I went into the federal me, designated in the Organic Act as the tal. On more than one occasion during the
of the Oklahoma Historical Society, pub- army as a private, joining Col. J.S. Phelps’ public land strip, was known among the first year of my services, I removed jury-
lished Judge Seay’s autobiography and the regiment. I served four years, being pro- old-timers as ‘No Man’s Land.’ men whose conduct showed crookedness.
following are excerpts: moted to colonel of my regiment. I was a In order to hold court at Beaver I had to In one case a man was put on trial
I was born in Amherst county, Virginia, member of a field court martial which held go by rail via Wichita to Englewood, charged with keeping a gambling and
November 28th, 1832, and brought up in occasional sessions during the last two Kansas, and take the stage from there 50 bawdy house. Twelve men were selected
Osage county, Missouri, where my parents years of the war. miles making a trip of 300 miles; or else, from the regular panel to try the case. The
moved when I was three years of age. I Upon my return home in August, 1865, I go overland up the North Canadian river to evidence showed his guilt ‘beyond a rea-
helped my father hew a little farm out of was appointed county attorney of Camp Supply, thence up Beaver creek to sonable doubt,’ but the jury reported they
the woods from which to get a living for a Crawford County and entered upon the Beaver city, a distance of 200 miles from could not agree and asked for further
large family, of whom I was the oldest boy. duties of the office at once. Later I was Kingfisher. There were but few people, no instructions. The only question was
We had a three months school about every appointed circuit attorney and held that courthouse, and but very little business. whether the defendant kept the house as
other winter, taught by a man who boarded office until Gratz Brown was elected gov- The people were poor, except a few cow charged. I withdrew the instructions and
around among the scholars, and who could ernor in 1870, when I resigned and men, but fairly intelligent and law-abiding. gave one covering that point. After three
teach spelling, writing, and arithmetic to engaged in the general practice. They greeted the court warmly and were hours more they wanted supper.
the rule of three, and hickory the big boys In 1875 1 was elected circuit judge for evidently pleased to know that organized The sheriff was directed to inform them
if necessary. the ninth judicial district of Missouri for government had come to stay. that supper would be ready as soon as they
When I was twenty-one years of age I the term of six years and at the expiration The territory comprising the seven coun- found a verdict. On my return from supper
left home and went to work for myself on of the term was re-elected. I then declined ties was opened to settlement April 22, I found them ready to report a verdict of
the Missouri Pacific railroad, then build- a third term and resumed the practice. 1889, but the Organic Act was not passed guilty. Upon asking what had detained
ing, with pick and shovel-my first job. There was nothing out of ordinary busi- until May 2, 1890. Thousands of home them so long in such a plain case, a red-
Having learned all that was taught in ness of a country court in my circuit wor- seekers from all parts of the country staked nosed man of some prominence in the
public schools I became a teacher and thy of statewide public interest during my their claims and established a provisional town was pointed out as the man who had
saved a little money. In 1855 1 went to the twelve years as a judge, except the great government which was obeyed by the ‘hung’ the jury for seven hours because the
Academy of Steelville, Missouri, but Southwestern railroad strike by the orderly well-disposed people but could be court’s instructions were not the law. I told
before the end of the term my father died Knights of Labor, in the early spring of enforced if at all only by overwhelming him I declared the law; that the jury found
and I left school to take charge of the fam- 1885. public sentiment or by the cool prowess of the facts; that if he knew law better than
ily and administer upon the little estate. Some of our people were Knights of the man behind the gun. Peace and order the court he should serve his friend as
This brought me into court and business Labor and the majority of the voters of prevailed among the homesteaders except lawyer and not as a juror. He was dis-
relations with a lawyer, a friend of the fam- Franklin county were in sympathy with the an occasional shooting affray between charged and the sheriff was instructed
ily, who advised me to study law. This flat- strikers and did not endorse my course rival claimants for the same quarter sec- never to bring him into court again as a
tered me. I had a long talk with him in [issued an injunction]; so when I became a tion. juror.
which he told me that Chitty’s Blackstone candidate for the legislature in 1886 the But in the towns it was different. There That night indignation meetings were
was the first book to read; that there were Knights knifed me at the polls, electing a was a rough, disorderly, gambling, drink-
four volumes in two books, and that they Democrat from a Republican county. ing, bawdy house element which was
See SEAY, PAGE 22
Quote of the
MONTH
“It is the certainty that
they possess the truth
that makes men cruel.”
~ Anatole France, novelist, essayist,
Nobel laureate (1844-1924)
www.okcbar.org • March 2014 • BRIEFCASE 17
Don Nicholson
Tsinena Robinson "I have known Judge Kirby for several years and have always "I’ve seen first-hand how Judge Kirby cares
John Hermes found him to be thoughtful, probing and considerate in his de- deeply about justice and works hard to fairly
Wes Lane liberations. Furthermore, Judge Kirby displays the character administer the law. The citizens of Oklahoma
Kent Myers and integrity that our public servants need to possess." County are fortunate he chooses to serve."
Kevin Butler – Timothy Tardibono – J. Dillon Curran
Lance Phillips
John Hunt
Justin King
David Ross
Steve Parker
Eric Eissenstat
J. Dillon Curran
Endorsements
Linda Pizzini
Ferris J. Barger
Osmun Latrobe
Linque Gillett
Andrea Teter
Kenneth L. Peacher II
Gerald E. Kelley
Gina Knight
Glenn Coffee
Dennis Boxeur
Gary Giessmann
Kevin Kelley
Rollin Nash
Jay Scott
Timothy Tardibono
Robert Miller
Steven P. Cole
Richard Mullins
Martin Stringer
James Sharrock
Bob Dace
Tim Bomhoff
John Kenney
John Hermes
Elizabeth Wood
Jeff Todd
Rich Johnson
Brandon Buchanan
Patsy Trotter
John Schaefer
Joseph Bocock
Josh Smith
Lauren Hanna
Michael Lauderdale
Richard Nix
Kym Carrier
Valerie Michelle Evans
Committee to Re-Elect "As an attorney and former student of Judge Kirby's I have
Judge Kirby, Don Nicholson, "Judge Kirby is a thoughtful and great respect for him both personally and professionally. I hope
Chair Tsinena Thompson, dedicated public servant. We need he is successful in his re-election as he is such a wonderful
Treasurer him in office and so do you!"
P.O. Box 720992 servant of the people of Oklahoma."
– Tsinena Thompson
Oklahoma City, OK 73172 – Andrea Teter
18 BRIEFCASE • March 2014
www.okcbar.org • March 2014 • BRIEFCASE 19
Book Notes
By Bill Gorden Between the initial assault on the Taliban such as pride when reading about
after 9-11, and the end, a great many how they carried out their duty.
The Outpost things have happened, as in any war. One thinks of Tennyson’s Charge
Jake Tapper, Little, Brown and Company, Valor, courage, and sacrifice are a part of of the Light Brigade. One hopes
2012, 2013, paperback, $18.00, Kindle it, bureaucracy, waste, and confusion are that those sacrifices detailed here
other parts, some time all mixed together. will not be in vain.
$9.00
In this story Tapper takes us to one out-
post on the border between the “friendly” The Aleppo Codex
American troops will leave Afghanistan Matti Friedman, Algonquin
and “unfriendly” parts of Afghanistan,
in December 2014. This will conclude
near the Pakistan border. He chronicles the Paperbacks, 2012, paperback,
what may be called our longest war.
various units and men (and a few 298 pages, $15.59
women) who hold the place, and
who try to interact with the local This work reads as a mystery,
populace. Sometimes this is in a regarding a timeless treasure,
peaceful mode, quite often in vio- part of which is missing. The
lence. Codex is a thousand year old
The real story has to do with the Hebrew Bible. It was lodged
setting of the post itself, at the bot- in Syria in a grotto cave,
tom of three mountains. Someone looked after by a local
decided that this would be a good Synagogue. It is considered
place for such an outpost, in a to be the most complete ver-
guerrilla war. The hopeless nature sion of such a work, as it had
of the fight, even given American even been worked on, that
air and land firepower, becomes is, edited for accuracy, by
the great Spanish/Egyptian
readily apparent to each wave of
scholar Maimonides.
occupants. Some units fare bet-
When the state of Israel came into
ter than others, but all in all this museums. It is a fascinating story, as far as
being, disturbances broke out in Syria
is a wrenching story. A word of aimed at Jewish communities, and the it goes. However, unlike most mystery sto-
advice: don’t get too caught up Synagogue and the grotto were targets. ries, we are left hanging. Somewhere out
when Tapper warmly describes The book was turned out of its home, and there is, (probably), a chunk of text of
a particular soldier, and his then, (or later), the torah part was separat- import to a large chunk of mankind. It may
family. It is foreboding to a ed from the rest. Some said it was burned, be in a private collector’s hoard, or have
bad outcome each time. but there was always doubt. The rest of the been cut up and used to decorate some-
It is easy to get angry about book left for Israel in an emigrants valise, one’s walls. It may be possessed by a gov-
the posting of brave through Turkey. A variety of shady hap- ernment, or sit quietly in some holy place.
American souls in such a penings occurred, involving governments, This is unsatisfying, but maybe someday
way. It provokes emotions antiquities dealers, and even curators of there will be a sequel.
Old News
Excerpts from OCBA News: ment to be included in the minutes of the of the State Bar at their meeting on Friday, Committee before it could be considered
meeting: “I do not intend to follow either February 23, 1973, had rescinded the State by the Judiciary Committee.
March, 1973, Part 1 the County Bar or the State Bar minimum Bar Minimum Fee Schedules by our Legal Aid Committee:
fee schedule and repudiate both.” County Bar and the Tulsa County Bar. The Board was advised that the new
Board Abolishes Minimum Fee Following considerable discussion, By-Laws and Long Range Planning Director of the OEO was changing the
Schedule motion was made by N. Martin Stringer Committee: OEO program and that legal services were
that we follow the recommendation of the Mr. Wayne Campbell reported on the to be continued on a month to month basis.
The Oklahoma County Bar Association Professional Economics Committee and committee’s efforts to raise judicial The Legal Aid Committee presented a res-
Board of Directors met on Thursday, repeal our minimum fee schedule and fur- salaries. Mr. Campbell advised that his olution to the Board for adoption: That the
February 15th, 1973, at 4:00 p.m. with ther advise the State Bar that we will not immediate concern is with salaries at the Legal Services Program be placed on a
President Stewart W. Mark presiding. follow the Oklahoma Bar Association’s County level. Mr. Tom Brett, from the state yearly basis to assure continuing effort on
Professional Economics Committee: schedule and give notice to the members of bar association is working on increasing behalf of the poor who come to Legal Aid
the Bar Association of this action. Motion judicial salaries also and a dinner was for representation. Copies of the resolution
Mr. B. J. Brockett reported that his com-
was approved with two opposing votes. A arranged at the Bar Center for the with an appropriate cover letter are to be
mittee had met in the Bar office on
recommendation was made to the Board Legislative members who were attorneys.
February 13th and presented the following mailed to legislators, President Nixon, and
that a letter to all members advising them At that meeting, a report was presented
resolution to the Board: the Director of the OEO.
of the Board’s action be sent out, that an reflecting judicial salaries across the
“The Professional Economics Treasurer’s Report:
article be carried in the next issue of the nation. Mr. Campbell advised that accord-
Committee recommends to the Board of N. Martin Stringer, Treasurer, presented
newsletter, and legal notice be published in ing to this report Oklahoma is beginning to
Directors of the Oklahoma County Bar the following report: Income from the
the Daily Law Journal Record. lose more of our good judges and that
Association that the Oklahoma County Bar month of January was $12,746.58 and
Mr. Brockett advised that his committee problems were evolving in recruitment of
Association’s minimum fee schedule be will be working to fill the void created by expenses were $6,004.16. $2,942.25 of the
qualified applicants. Mr. Campbell advised
rescinded. Further, we recommend that the rescission of the minimum fee sched- that Oklahoma is 51st in salaries for expenses were due to the production of
members of the Oklahoma County Bar ule. A suggestion that a course be taught in judges. (The survey included the District “Jealous Mistress.” Mr. Stringer noted that
Association no longer adhere to or recog- the law schools on the economics of law of Columbia) He advised that his commit- $1,481.40 profit had been shown from the
nize the Oklahoma Bar Association’s min- practice is being considered. tee had contacted Terry West with the production of “Jealous Mistress” for the
imum fee schedule.” Special Note – Ethics Opinion No. 220, OTLA and a joint effort is being made to Annual Meeting. Mr. Stringer proposed
Mr. Brockett advised that his Committee October 18, 1962 on habitual performance increase judicial salaries. C. B. Savage is that the Bar Association pay the $800.00
had taken this action based upon advice of of legal services for less than minimum OTLA’s special representative in the legis- note due to City National Bank to save
attorneys experienced in Federal Anti- fees was rescinded by the Board of lature. A bill has been introduced to elimi- money being paid as interest. Motion was
Trust law. A judgment has been granted Governors of the Oklahoma Bar nate associate judgeships except the one approved.
against the Fairfax County Bar Association Association during the January 23, 1973 required in each count by the Constitution. COTPA:
of Virginia - enjoining the use of a mini- meeting. The next problem would be to get the bill Mr. Wayne Campbell advised the Board
mum fee schedule. A question of damages An announcement was made by Harold before the appropriate committee that the Main Street parking facility was
is still pending. Sullivan at a special meeting of County involved, since any bill of this type would not interested in group parking rates at this
Mr. Emery made the following state- Bar Presidents that the Board of Governors have to go through the Appropriations time.
20 BRIEFCASE • March 2014
OLIO from PAGE 4 increase in salary. the Legislature also had enacted House Bill Industries, Inc. alleging breach of a fiduciary
Defendants refused or failed to allow No. 752. Section 4 thereof contains the fol- relationship. On June 17, 1988, Perry Inhofe
demanded $5,000 damages for asserted plaintiff’s claims and plaintiff commenced lowing provision: served notice on the petitioner. The notice
pecuniary loss by reason of the defendants’ this action. “The Office of the Insurance did not mention that the deposition would be
alleged wrongful acts. Since this matter involves a Constitutional Commissioner shall be paid a salary of Six videotaped, and the parties had not stipulat-
In presenting the case to this court he State official and the Attorney General, rep- Thousand Dollars ($6,000.00) per annum ed that the deposition could be taken by
urges only that he is entitled to injunctive resenting the defendants, agrees that we monthly until January 12, 1959, at which other than stenographic means as provided
relief, thus having abandoned the feature of should do so, we have accepted jurisdiction. time the salary for the office of Insurance by 12 O.S.Supp. 1986 § 3207 (C)(4).
his ease relating to damages. Plaintiff advances the proposition that Commissioner shall be Twelve Thousand On July 15, 1988, when the petitioner
It is generally held that, in the absence of “The additional pay given to the insurance Dollars ($12,000.00) per annum monthly.” appeared for the deposition, he learned, for
a contract to the contrary, a former employ- commissioner by Senate Bill 247 does not For the years 1959, 1960, 1961 and 1962, the first time, that his deposition would be
ee may upon entering the competitive field violate the provisions of section 34, Article Mr. Hunt drew such increased salary of both videotaped and stenographically
with his erstwhile employer, either as the 6, or section 10, Article 23, of the $12,000.00 per annum. In 1962 Mr. Hunt recorded. Because the petitioner objected to
employee of another or on his own initiative, Constitution of the State of Oklahoma”. was again re-elected and has continued to the taping, he terminated the deposition.
solicit the business of the latter’s cus- Section 4 of Senate Bill No. 247, supra, pro- draw $12,000.00 per year salary. Since 1957 Later the same day, the parties sought to
tomers... The theory of the cases which have vides: Mr. Hunt’s duties have remained exactly the have the problem settled by the trial court.
been decided upon consideration of this gen- “The duties performed by the same. During such time he has served con- The brother moved to compel discovery, and
eral rule, or, perhaps more accurately stated, Insurance Commissioner as President tinually as President of the State Insurance the petitioner objected, asserting that he had
the theory of the cases from which the gen- of the State Insurance Board shall be Board. not agreed to a video deposition and that it
eral rule has been formulated, has been var- considered additional duties to those It has been noted that Section 4 of Senate had not been ordered by the court. After the
iously expressed. Thus it has been said that otherwise prescribed by law, for which Bill No. 247, supra, hereinabove quoted, trial court denied the motion to compel dis-
a contrary view would compel the employee additional duties he shall be paid addi- provides that Mr. Hunt’s duties as President covery, the brother, by oral motion, sought
“to give up all the friends and business tional compensation until June 30, of the State Insurance Board are “additional to take the deposition by video. The petition-
acquaintances made during the previous 1965, in the amount of Three Thousand duties to those otherwise prescribed by law”. er objected, arguing that § 3207(C)(4)
employment” and “tend to destroy the free- ($3,000.00) per annum, payable month- But prior to the enactment thereof when Mr. required the motion to be in writing. He
dom of employees and reduce them to a con- ly”. Hunt was re-elected in 1958 and again in requested that he be allowed to present evi-
dition of industrial servitude... Article VI, Section 34 of the Oklahoma 1962, 36 O.S. 1957 Supp. § 311 and 36 O.S. dence and to submit briefs. The trial court
However, even the cases which have Constitution (referring to executive officers) 1961 § 311 respectively, had prescribed such granted the motion for the video deposition,
denied injunctive relief have recognized that states: to be his regular statutory duties. When he and it denied the petitioner’s briefing
the rule, though of general, is not of univer- “Each of the officers in this article sought re-election in 1962 one of Mr. Hunt’s request. The petitioner asked for a protective
sal application. named shall, at stated times, during his statutory duties for more than five years had order prohibiting his brother from dissemi-
*** continuance in office, receive for his been to serve as President of the State nating his video deposition to the press. He
[T]he most common view is that a list of services a compensation, which shall Insurance Board. That duty was one of those alleged that because he had filed for re-elec-
customers built up through years of effort in not be increased or diminished during then required of him. His salary had been tion, the videotape could be politically
a line of business where such a list consti- the term for which he shall have been doubled when the new insurance code was embarrassing. The motion was denied, and
tutes an important asset of business is a elected; nor shall he receive to his use, enacted in 1957 and such duty placed upon the petitioner has requested that we assume
species of property in the nature of or com- any fees, costs, or perquisites of office him. It was considered an additional duty for original jurisdiction and issue the proper
parable to a trade secret, and that where an or other compensation.” which he was paid $3,000.00 per year until writ.
employee obtains such a list through confi- Article XXIII, Section 10 of our State his $12,000.00 per year salary started. ...
dence placed in him or surreptitiously, he Constitution contains the following lan- Thereafter he had been required to perform The extraordinary relief of a writ of man-
may be restrained from using it. This court guage: the same duty four years at the new damus or of prohibition is available under
would be loath to say, however, that the use “Except wherein otherwise provided $12,000.00 per year salary as a part of his proper circumstances either to order or to
by a former employee of his memory inde- in this Constitution, in no case shall the regular duties. prohibit the production of evidence prior to
pendent of any compiled list could be salary or emoluments of any public offi- *** trial. However, before appropriate relief may
restrained, in the absence of a contract to the cial be changed after his election or Argument is made by defendants that the be granted, it must be shown that the trial
contrary. appointment, or during his term of duties performed by the Insurance court exceeded either its authority or its dis-
We believe the exception as to the use of office, unless by operation of law enact- Commissioner as President of the State cretion in ordering or denying pretrial dis-
lists to be sufficiently well grounded in prin- ed prior to such election or appoint- Insurance Board must be performed by covery.
ciple to obtain recognition in this jurisdic- ment; * * *.” him... The petitioner alleges that his brother is
tion. In so far as plaintiff has asserted the Plaintiff contends that the “primary ques- *** abusing the discovery process to destroy his
surreptitious compilation of a list of his cus- tion to be determined is whether the duties The declaration of the Twenty-ninth political career, and that he should have been
tomers by the defendants and sought to assigned, for which additional compensation (1963) Legislature in Senate Bill 247, supra, permitted to have a full hearing on the issue
enjoin its use, he has brought himself within is to be paid, are germane and incidental to that “The duties performed by the Insurance of the video deposition. He also asserts that
the recognized exception and is entitled to the normal duties of the Insurance Commissioner as President of the State because his brother’s motion was not in
equitable relief. Commissioner”. Insurance Board shall be considered addi- writing, it did not comply with 12 O.S.Supp.
Of course, equity will not interfere with Mr. Hunt had been elected Insurance tional duties” may not be upheld, since the 1984 Ch. 2, App. Rule 4, and that he is enti-
the right of defendants to do business with Commissioner in 1954. In 1957 the Legislature has designated certain duties as tled to file a brief under this rule. However,
these customers, but may forbid the initia- Legislature had enacted a new insurance additional ones, whereas five years previ- a motion made during a hearing is not
tion or solicitation of business by the use of code, House Bill 501, a pertinent portion ously it had already made same the regular required to be in writing pursuant to 12
the lists surreptitiously compiled by them. being 36 O.S. 1961 § 331 ; sub-sections “A” statutory duties of the office. O.S.Supp. 1984 § 2007. We are not persuad-
and “B” thereof in pertinent part respective- ed by this facet of the petitioner’s argument.
March 24, 1964 ly provide: March 14, 1989 The trial court asked to hear evidence from
Fifty Years Ago “There is hereby created the State Twenty-Five Years Ago the petitioner concerning the video deposi-
[Excerpted from Hunt v. Logan, 1964 OK Insurance Board, composed of the [Excerpted from Inhofe v. Wiseman, 1989 tion, and it allowed him to present his reser-
69, 390 P.2d 918.] Insurance Commissioner and two mem- OK 41, 772 P.2d 389.] vations and concerns about submitting to a
This is an original action in this Court bers to be appointed by the Governor, * In this case of first impression, the peti- video deposition. We find that the trial court
wherein plaintiff, Insurance Commissioner * *. The Insurance Commissioner shall tioner, James M. Inhofe, urges us to assume did not abuse its discretion in not allowing
for the State of Oklahoma, seeks an order in be President of the State Insurance original jurisdiction and to issue a writ of briefs on this issue.
the nature of mandamus directing defen- Board * * *. prohibition to prevent his deposition from The petitioner contends that his brother
dants, the State Budget Director, the State “* * * The duties performed by the being taken by videotape. In the alternative, must show some need for videotaping
Auditor and the State Treasurer to allow and Insurance Commissioner as President he seeks a writ of mandamus requiring the beyond a mere preference or desire.
pay the claims of plaintiff for services per- of the State Insurance Board shall be trial court to issue a protective order limiting Generally, the cases allowing video deposi-
formed by him during the months of July, considered additional duties to those dissemination of the deposition. The dispos- tions have involved a key witness who was,
August and September, 1963, in compliance otherwise prescribed by law, for which itive issues are whether the trial court abused or who was likely to be, unavailable for trial,
with Senate Bill 247 of the twenty-ninth additional duties he shall be paid addi- its discretion in granting the motion to take or to permit the witness to reconstruct an
Legislature, 74 O.S. 1963, Supp. § 285, par. tional compensation until January 1, the petitioner’s disposition by video or by its accident. Besides use at trial, depositions
32. The Act purported to make the duties 1959 in the amount of Three Thousand refusal to issue a protective order. We find have discovery value because they record a
performed by the Insurance Commissioner Dollars ($3,000.00) per annum, that the trial court did not abuse its discretion description of the event which cannot be
as President of the State Insurance Board payable monthly.” in granting the motion to take the video dep- made by a mere stenographic deposition.
additional duties to those otherwise pre- As provided in said section 331, Mr. Hunt osition but that it should have issued a pro- Here, the brother stated that he intended to
scribed by law and fixed the compensation was paid $3,000.00 per annum for the years tective order. show the videotape to the investigators, who
therefor at $3,000.00, per annum. 1957 and 1958 for performing the “addition- On May 13, 1988, the petitioner filed a he had hired to aid him in this case, because
In an opinion dated July 11, 1963, the al duties” of President of the State Insurance petition in Tulsa County District Court they would not be allowed to be present at
Attorney General of Oklahoma held that Board. against his brother, Perry D. Inhofe, Jr., and
plaintiff could not be paid legally such In 1958 Mr. Hunt was re-elected. In 1957 a dissolved corporation, Mid-Continent See OLIO, PAGE 22
www.okcbar.org • March 2014 • BRIEFCASE 21
o m e o f g o od tem-
u d g e S t u a rt is the epit r k . H e should be
"J w o
e r a m e n t a nd scholarly
p
office."
retained in
– Kent Myers
22 BRIEFCASE • March 2014
ic is scheduled from 9 am to 12 noon on practical legal advice to an appreciative When I talk to lawyers about the clinic, at the clinic are always supportive of their
the third Saturday of every month at clientele on a wide variety of topics. their major concern is that they will not fellow volunteers, so you will never be
Epworth United Methodist Church, 1901 Clients may come to the clinic in person, know enough of certain areas of law to alone without someone to help.
N. Douglas Avenue, Oklahoma City, OK, or service can be given by phone. Legal help with the kinds of questions that can There are so many people that need the
73106. It is located directly west of The Aid provides client intake sheets for come up. Let me assure you, with your
benefit of a lawyer’s advice and counsel.
Classen School of Advanced Studies. This clients that could not be served during the legal education and life experiences, you
Your efforts will be appreciated. If you
month’s clinic will be on Saturday, March week at the Legal Aid offices. Cindy know more than you think you do. There
15. Goble, the Legal Aid staff attorney who are so many people that need just a little would be able to give of your time at the
The time I have given to the clinic has runs the clinic is always available to give direction, explanation, or encouragement, clinic, please call Vera Addi at 488-6808,
been professionally challenging and additional information or advice in areas and that is where you can make a world of or e-mail her at vera.addi@laok.org and
rewarding. The lawyers at the clinic give where a volunteer lawyer is uncertain. difference in someone’s life. The lawyers tell her to count you in for the next clinic.
held in the gambling houses and saloons, off-hand in the dark a shotgun was more to evil-doers. I will always enjoy the memory of the
in which the discharged juror took a likely to do execution and less likely than [The judge became governor for a few abrupt ending of this my last office with its
prominent part, denouncing the court and a Winchester to do irreparable injury. I got months in 1892 and 1893. In 1893, at the ludicrous surroundings.
the judge, but that incident ended the jury small game to be sure but a good deal of it World’s Columbian Exposition at Chicago I take pride and pleasure however in the
trials of that character for that term of though not always hitting the mark. he had a heart-to-heart chat with the fact that I was officially connected with
court. All of the other defendants charged In the beginning we were short on Secretary of the Interior and was removed Oklahoma from its birth ’till it had grown
with similar offenses pleaded guilty, and libraries and long on jurisdiction. An from office.] to a bright, strong boy; and have ever since
submitted such mitigating circumstances examination of the 9th and 11th sections of I met my successor Hon. William C. observed with interest its development into
as they had ‘to the mercy of the court’. the Organic Act will show that as district Renfrow, at the depot in Guthrie and took stalwart manhood. The political weather
Our courts had plenty of work and were judges we had original and appellate juris- him in a carriage drawn by white horses to has been rough and stormy. Dark clouds
not well paid, housed or fed. We were pio- diction in civil and criminal cases arising the governor’s “mansion” formally turned still hover over our state, but the glorious
neers. We had to blaze the road and build under the laws of the United States. We it over to him in the presence of his attor- sunshine of public virtue and intelligence
the bridges. While our work was not per- also had original and appellate jurisdiction ney and a few admiring friends and then by will drive them away.
fect, it gave confidence, encouragement, specially conferred in Indian cases and in invitation they accompanied me to the Governor Seay died at Longbeach,
and support to the law-abiding people of the ‘Cherokee Strip’. ‘government acre’ where the federal build- California, December 22, 1915. He had
the territory. Mine was known as a ‘shot- My work was made lighter by the able ing now stands and where I died political- been living in California for more than a
gun court’ on account of my bluntness in and efficient services of the Hon. Horace ly after having delivered my own funeral year before his death but always claimed
rulings and decisions, and I would not Speed, U.S. Attorney of Oklahoma oration. Oklahoma as his home. His body was
resent the charge that it was ‘double-bar- Territory. A fine lawyer, an indefatigable I never cared much for the office and brought back and laid to rest in the city
reled and breech-loading.’ Having to shoot worker and an honest man, he was a terror was relieved from the cares without regret. cemetery at Kingfisher.
Upcoming Meetings
However, since the adoption of 12 O.S. Traditionally, discovered information, not
Supp. 1986 § 3207 (C)(4), in 1986, the par- yet admitted, is not a public source of infor-
ties may either stipulate in writing or the mation. Unless otherwise ordered by the
court may, upon motion, order a deposition court, depositions are sealed until admitted
to be recorded by other than stenographic into evidence.
April 10 Technology Training means. The utilization of videotape is noth- ***
Location TBD ing more than an updated visual version of An attorney cannot make or assist another
preserving testimony. person in making an extrajudicial statement
*** if the attorney knows or reasonably should
May 8 Check presentation to charities and officer installation The language of § 3207(C)(4) contains know that the statement would materially
Home of Jane Kenney, language which allows depositions to be prejudice an adjudicative proceeding.
141 Lake Aluma Drive, OKC 73121 recorded by other than stenographic means. Attorneys who violate the Code subject
Any timidity by this Court to acknowledge themselves to professional discipline.
the viability of new technology would frus- We find Rhinehart to be controlling.
trate the efficient and economic administra- Although attorneys are subject to discipline
All meetings are on the 2nd Thursday of each month tion of justice. Nevertheless, courts in apply- for extrajudical public dissemination of dep-
from 11:00 a.m. to 1:00 p.m. ing the Federal Rules of Discovery, of which ositions, others involved in the process are
our rules have been taken practically verba- not. Because of the nature of a video deposi-
Tentative agenda for each meeting: tim, have agreed that the objection of a party tion, we are aware that the potential for
to a video deposition is cause for the trial abuse is greater than for a deposition taken
11:00 a.m. – 11:30 a.m. — Social
court to scrutinize the proposal. The by stenographic means.
11:30 a.m. – Noon — Lunch and meeting
expressed concern is not only for accuracy Here, the potential for prejudice is espe-
Noon – 12:45 p.m. — Guest speaker and trustworthiness of the depositions, but cially acute. Non-contextual, non-sequential
also to prevent prejudicing the opposing film clips and sound bytes could be particu-
Please RSVP for each meeting party’s interests. We are not persuaded that larly devastating, not only to the specific
to Randidawn530@gmail.com or phone (405) 447-4466. video depositions must be restricted to pending litigation, but also to the electoral
important witnesses who may be unavail- process in general. If this happens, the peti-
Membership: able or to some other special circumstance. tioner, a public figure, is without recourse.
We find that the trial court did not abuse its Under the principle outlined in New York
If you would like to get involved with the Bar Auxiliary, please contact
discretion in allowing the motion to take the Times v. Sullivan, 376 U.S. 254,... a public
Becky Taylor at beckytaylor@infantcrisis.org or (405) 778-7608. videotape deposition. figure cannot recover damages for defama-
The petitioner contends that he is entitled tion in the absence of proof of actual malice.
Annual Dues: to a protective order because his brother will The standard of actual malice standard
Member — $40.00 abuse the discovery process by giving the would require the petitioner to prove that the
Associate member (spouses of law school student) — Free videotape to the press. Pretrial depositions press had acted with a high degree of aware-
Honorary member (widows of Oklahoma County attorneys) — Free are not public parts of a civil trial. They were ness of probable falsity. To prevent this type
*Does not include cost of lunch for each meeting not open to the public at common law and, of possible malignment, and to prevent this
in general, they are conducted in private as a case from being tried in the press, a protec-
matter of modern practice. Much of the tive order should be issued.
www.okcbar.org • March 2014 • BRIEFCASE 23
COMMITTEE TO KEEP JUDGE THOMAS E. PRINCE - 2014 • CO-CHAIRS DAVID DONCHIN AND DAVID VAN METER, LLOYD MCALISTER, TREASURER, P.O. BOX 1569, EDMOND OK 73083
24 BRIEFCASE • March 2014