Wednesday, October 15, 2014

Oklahoma Supreme Court holds that notice provided only via Facebook does not satisfy due process

In a decision issued on October 14, 2014, the Oklahoma Supreme Court engaged in a spirited debate over whether a Facebook message provided adequate notice under state and federal due process requirements. The issue arose in a parental rights dispute between a mother and father. The majority held that Facebook messaging is unreliable and insufficient to meet the requirements of due process. The three dissenting justices pointed out that the father admitted receiving the Facebook message -- noting the longstanding principal that actual notice is adequate notice. The dissent then points out that other methods of communication could be just as unreliable.
In paragraph 37 of the opinion, the majority of the justices wrote: “Instead of contacting Father directly, Mother left him a message on Facebook, which is an unreliable method of communication if the accountholder does not check it regularly or have it configured in such a way as to provide notification of unread messages by some other means. This Court is unwilling to declare notice via Facebook alone sufficient to meet the requirements of the due process clauses of the United States and Oklahoma Constitutions because it is not reasonably certain to inform those affected.”

In paragraph 11 of the dissenting opinion, the dissenting justices wrote: “The majority opinion does not inform the biological mother precisely what notice is needed to satisfy this Court. The rule has been long accepted that, ‘Actual notice is the preferred method of satisfying due process requirements. . . .’ In re Dana P. 1982 OK 149, ¶ 9, 656 P.2d 253, 255. The Facebook message was actual notice. The Father testified that Facebook was his method to contact the Mother after he learned of the guardianship and that he reached her within twenty-four hours. Why would Facebook be any less reliable than other forms of electronic communication? Does the Court require a face-to-face confrontation with witnesses? Face-to-face discussions can be denied; letters can remain unopened; and faxes can be lost.”

The decision can be found here:

Thursday, June 26, 2014

Videoconferencing for courts: Pilot program announced

Gavel to Gavel: Remote control

Friday, May 2, 2014

Does Oklahoma need a civility oath?

Click the link below yo learn about California's new civility oath:

Civility oath requires new California lawyers to pledge to behave with dignity

Saturday, April 26, 2014

Looking at juror social media profiles OK: ABA

"Lawyers who want to pick through troves of public information that jurors or potential jurors put on the Internet about themselves may do so, but they may not communicate directly with the jurors, such as asking to 'friend' them on Facebook, according to a formal ethics opinion issued today by the ABA Standing Committee on Ethics and Professionalism."

Friday, March 28, 2014

Gavel to Gavel: Greener Pastures?

The Oklahoma House of Representatives plans to address whether to change the method of judicial selection in Oklahoma.

One does not have to look far for an example of partisan elections for appellate judges. The Texas Constitution provides for these types of elections. During election season, visitors to Texas can see this process in action, through a multitude of billboards, favoring or disfavoring a judicial candidate, often from a partisan viewpoint.

Is the pasture greener in Texas? Some members of the Texas appellate judiciary don’t think so. Texas Supreme Court Justice Don Willett recently said that he and every member of his court favor smart judicial-selection reform, with the goal of moving away from “the current partisan elected system. … Interestingly, the business lobby and tort-reform groups all favor scrapping (Texas’) current (partisan) judicial-selection system.”

Read more:

amendments to jury instructions and court rules

The Oklahoma Supreme Court has approved modifications to the Oklahoma Uniform Jury Instructions, the Rules for District Courts, and the Oklahoma Supreme Court Rules.  Most notably, these amendments now specifically address the use of jury questionnaires.  In addition, the Court has approved amendments to verdict forms, and jury instructions for false representation, nondisclosure or concealment, wrongful discharge, employment based discrimination, exemplary damages, defamation, and trade secrets.


The amendments to jury instructions can be found here:

The amendments to the Rules for District Courts can be found here:  Note that this order references the "Uniform District Court Rules," although the rules still appear to be entitled "Rules for District Courts."

The amendments to the Oklahoma Supreme Court Rules can be found here:

Thursday, October 24, 2013

Gavel to Gavel: Discovery Masters

Discovery disputes take up a great deal of time and account for much of the cost of litigation. In complex cases, discovery can become the tail that wags the dog – with the pace and tenor of the litigation controlled by discovery requests, depositions, motions to compel, and rulings on discovery disputes.
Read more:

Thursday, October 17, 2013

What Happens Now? Weighing Section 2056, the Federal Anderson Trilogy Standard and the State Constitutional Right to Trial

Over the past four years, many Oklahoma attorneys have wondered whether Section 2056 of the Oklahoma Pleading Code would forever change Oklahoma summary judgment standards. Section 2056 was enacted in 2009 as part of the Oklahoma Comprehensive Lawsuit Reform Act (CLRA). Until recently, the Oklahoma Supreme Court had remained silent on the role of Section 2056 in summary judgment proceedings. In November 2012, the Oklahoma Supreme Court entered a brief order according “precedential value” to an Oklahoma Civil Court of Appeals opinion, which in turn stated Section “2056 governs the procedure for summary judgment.”


At first glance, Section 2056 presents only a superficial change from the previously long-held standard in Rule 13 that judgment should be rendered if “there is no substantial controversy as to the material facts and ... one of the parties is entitled to judgment as a matter of law.” Substantively, Section 2056 merely substitutes the phrase “genuine issue” for “substantial controversy.” Can this modest change mark a fundamental shift in summary judgment jurisprudence?

Wednesday, September 18, 2013

Mixed bag of bills

In my Gavel to Gavel column in the Journal Record, I have described the mixed bag of bills offered up by the 2013 special session.  Some of the statutes enacted or amended by the 2009 Comprehensive Lawsuit Reform Act were re-enacted.  Some were not.  This leaves lawyers looking to the legislative history more in coming years, as we continue to sort through the fallout from the Douglas decision.
In practice, Oklahoma attorneys can expect that they will need to check legislative histories regarding whether a particular statute was amended or enacted by the 2009 act, whether subsequent amendments saved the statute, and whether this year’s special session resolved these issues.
Read more:

Tuesday, September 10, 2013

Deciphering the Special Session

From a quick look at the text of the bills signed by the Governor, the legislature appears to have played it safe by reenacting certain of the reforms that were stricken by the Oklahoma Supreme Court in the Douglas decision.

HB1024 is notably missing from the 23 bills showing up as signed by the Governor.  This was the special session bill that addressed summary judgment procedure.  This is speculation on my part, but it appears that the legislature left alone those statutes that were (i) enacted or amended as part of the 2009 tort reform statute and (ii) subsequently amended by the legislature as part of separate legislation.

So my quick reaction is that 12 O.S. 2056 remains a part of the Oklahoma statutes, having been amended and reenacted in 2011, even though the Douglas decision struck down the 2009 CLRA.

For an article on the Governor's approval of 23 special session bills, see:

For a list of special session provisions showing last action taken, go here:  Then, look for those "sent to Governor."

Text of measures can be found here:

Friday, September 6, 2013

ICYMI: Sorting through the "chaos" resulting from the CLRA logrolling decision

As Oklahoma lawyers watch the special session, here is an excerpt from my July column on sorting through the "chaos":
[S]ince 2009, the Oklahoma Legislature has amended some of the statutes that the CLRA amended or created. In an interesting twist, these later amendments may save certain provisions of the CLRA, based on the same constitutional provision that the court relied on in striking the CLRA.
The single-subject rule, also known as the rule against logrolling, is found in Article 5, Section 57 of the Oklahoma Constitution. Section 57 also requires that the Legislature re-enact laws when it amends them. 
As an example, Section 3226 of the Oklahoma Discovery Code was amended three times since 2009. Each time, the Legislature set forth the statute in its entirety. As a result, it appears that the Legislature saved the CLRA’s changes to Section 3226, simply by complying with the Oklahoma Constitution in its later amendments. 
This twist may affect a number of the CLRA’s provisions. As a result, the term “re-enactment” may join “logrolling” as part of our vocabulary.

Monday, August 12, 2013

Special session on tort reform: Will the legislature avoid constitutional pitfalls?

On August 12, 2013, Gov. Fallin signed Executive Order 2013-30, setting up a special session of the state legislature to address tort reform.  The Executive Order focuses the special session on the provisions of HB1603, which was declared unconstitutional by the Oklahoma Supreme Court in June.  The Executive Order instructs the legislature to pay special care to the state constitutional provisions on logrolling.  (Interestingly, the executive order mis-cites the constitutional provision.)

Wednesday, July 17, 2013

More fallout from court decisions striking tort reform

This month, I wrote in the Journal Record that the recent Douglas decision, striking the Comprehensive Lawsuit Reform Act ("CLRA") of 2009, no doubt resulted in a flurry of activity for lawyers.   There is also activity among lawmakers.  The Tulsa World reports that lawmakers may call a special session to consider 22 to 24 bills "to recreate the entire measure the court found offensive."

Meanwhile, the Oklahoma Supreme Court Clerk's office has published a new set of judgment interest rates based on its interpretation of Douglas.  (Is this interpretation correct?  That remains to be seen.)

As noted in my Journal Record column, it is possible that post-2009 amendments may have "saved" certain of the provisions of the CLRA, based on the "re-enactment" provision of Article 5, Section 57 of the Oklahoma Constitution.

Yet, the legislature may decide to recreate these amendments anyway in order to resolve challenges.

It appears that Justice Winchester was correct in predicting that “chaos ... will inevitably follow this opinion.”

Wednesday, June 5, 2013

DEVELOPING: Oklahoma Supreme Court strikes a number of civil procedure provisions

Two recent decisions on constitutionality of civil procedure provisions:

Douglas v. Cox Retirement Properties, Inc., 2013 OK 37,  Holding that the Comprehensive Lawsuit Reform Act of 2009, HB 1603, including 12 O.S. 19, is unconstitutional under the single-subject rule.  This decision contains an extensive discussion of the single-subject rule, providing additional insight into the types of legislation that might run afoul of the rule.  This rule remains a risk for any number of legislative initiatives.

Critically, HB 1603 also contains 12 O.S. 2056, which was the legislature's effort to align Oklahoma summary judgment procedure with federal summary judgment procedure.  On this basis, the Douglas decision appears to answer the question, for now, of whether 12 O.S. 2056 controls Oklahoma summary judgment procedure.

For the text of 2009's HB 1603, see:

Wall v. Marouk, 2013 OK 36,  Holding that 12 O.S. 19 is unconstitutional as a special law and as a burden on access to the courts.  This decision extends Zeier v. Zimmer, 2006 OK 98.  Notably, Zeier had one dissenting justice.  Wall v. Marouk has two dissenting justices.

For the Journal Record articles on these decisions, see:

For a couple of recent columns on the single-subject rule, see: