The Court's decision on the Ten Commandments

The Court's decision on the Ten Commandments is now available for download on the Court's docket.  The main decision was entered on July 27, 2015, along with five separate opinions joined by various combinations of the nine justices.  These five separate opinions give Oklahomans great insight into the justices' views of the law on Oklahoma's establishment clause.  Required reading for any Oklahoma interested in our State's Constitution and constitutional law.  Find the decision and separate opinions in PDF form, linked here:  
http://www.oscn.net/dockets/GetCaseInformation.aspx?db=appellate&cmid=115447

Our constitutional dispute

Our "constitutional dispute" is making national news.  Here are a few things to keep in mind.  First, no one is in violation of court orders yet.  The matter remains on appeal until mandate is issued, which will be after the rehearing process (whether granted or denied).  Once mandate is issued, the mandate must be "spread of record."  And the Supreme Court's order suggests further proceedings on remand, presumably consisting of some motions dealing with how the Supreme Court's decision will be memorialized in the trial court.  That does take time.  But we can expect the plaintiffs to seek swift movement.  Second, the Governor's statement does not state that she will order a violation of the Court order.  It just says (i) we respect rule of law, (ii) we will seek further proceedings, (iii) we will seek a constitutional amendment, and (iv) the memorial isn't going anywhere.  This leaves her leeway to order compliance with the court order once it is enforceable.  Third, I don't think it will be the governor who will be in contempt as she is not a party.  The party defendant is the Oklahoma Capitol Improvement Authority.  The Authority is represented by the OKAG.  It is not clear yet whether the OKAG will sponsor or allow contempt of court.  I will be watching this one closely, as it has the potential to turn into a constitutional crisis.  But it isn't there yet.

http://www.washingtonpost.com/news/acts-of-faith/wp/2015/07/07/oklahomas-ten-commandments-statue-isnt-going-anywhere-governor-says/

New law on discovery masters becomes effective 11/1/2015

On May 12, 2015, Gov. Fallin approved SB1920, which contains a new law providing for discovery masters, or special masters, in Oklahoma state court proceedings.  The new law will appear at 12 O.S. 3225.1.

As Chair of the Oklahoma Bar Association’s Civil Procedure & Evidence Code Committee, I have worked with a number of Oklahoma lawyers and judges in crafting the language of this proposed statute.  The proposal was approved by the OBA House of Delegates at its annual meeting in 2013.  Subsequently, the proposal was advanced by a group of Tulsa attorneys who believe that the enactment of a discovery-master statute is a positive step for the State and its judicial system.

The language is based in large part on Rule 53 of the Federal Rules of Civil Procedure, which allows for federal courts to appoint “judicial masters” to address complex issues in exceptional cases. Judicial masters are typically private attorneys, CPAs, or other professionals who are appointed by courts to address complex issues in specific cases. 

The goal of “judicial masters,” such as discovery masters, is to ensure efficiency in the court system.  As stated in the comments to the 2003 amendment to Rule 53, “[t]he appointment of masters to participate in pretrial proceedings has developed extensively over the last two decades as some district courts have felt the need for additional help in managing complex litigation.”  Fed. R. Civ. P. 53, 2003 advisory note.  The use of masters in complex matters will help allow judges to address other matters on their dockets.  As one commentator noted, “[t]he presence of complex cases directly affects a court’s average case resolution time.”  Lynn Jokela & David F. Herr, Special Masters in State Court Complex Litigation: An Available and Underused Case Management Tool, 31 William Mitchell L. Rev. 1299, 1320 (2005).  “The objective of some state courts is to alleviate some of the caseload problems.  The sheer magnitude of a complex case may overwhelm the time available to a judge who has other cases on the docket.  Conducting in camera review of documents to review claims of privilege might take weeks or months of time, and many judges cannot fairly absent themselves from their other cases to devote this amount of time to a single case.  Other courts appoint special masters to preside over discovery motions involving highly specialized issues.”  Id. at 1302. 

Prior to the enactment of Section 3225.1, Oklahoma statutes provided for referees, but only in cases of accountings or with the consent of the parties.  Some state court judges have used the Oklahoma referee statutes for the appointment of discovery masters, but in these cases the judge would need the parties to consent.  In some cases, a litigant who is engaged in aggressive discovery tactics or otherwise causing delay or expense to the litigation process may refuse to consent to the appointment of a discovery master.  In other instances, one or more litigants may believe that they benefit from delays in litigation, and withhold their consent on this basis.  The new statute will remove the ability of litigants to withhold their consent from the appointment of a discovery master, and at the same time will impose restrictions and requirements on the use of discovery masters. 

Section 3225.1 implements a number of protections designed to prevent overuse or abuse of the discovery master tool.  More specifically, before a discovery master can be appointed in the face of objection (or lack of consent) from the litigants, the judge must make special findings that the case is complex or otherwise exceptional and that the benefit of appointment of a discovery master will outweigh the cost.  Section 3225.1 expressly states that discovery masters should not be routinely appointed.  The statute also allows the judge to allocate the cost of the discovery master based, among other things, on the litigants’ means to pay the costs and their responsibility for the discovery dispute requiring appointment of the discovery master.  By using private professionals to serve as discovery masters, Section 3225.1 shifts some of the cost of complex discovery disputes away from the State, with those costs to be borne by the litigants or a common fund.

In sum, the enactment of this new law should provide added efficiency to state-court litigation.

Procedure for attorney disqualification must be followed

In Mitts v. Stamps, 2015 OK CIV APP 7, the Oklahoma Court of Civil Appeals held that the trial court must follow the prescribed procedure in disqualifying a party's legal counsel.  The Mitts court held:

¶7 The Oklahoma Supreme Court has conferred a special procedural status on motions to disqualify counsel. As the Court most recently re-affirmed in Miami Bus. Servs., LLC v. Davis, 2013 OK 20, 299 P.3d 477, a trial court considering such a motion must follow the procedure set forth in Piette v. Bradley & Leseberg, 1996 OK 124, ¶ 2, 930 P.2d 183, andArkansas Valley State Bank v. Phillips, 2007 OK 78, 171 P.3d 899, before ruling whether an attorney should be disqualified based on conflict of interest or improper possession of confidential information. Miami Bus, ¶ 24. The trial court must hold an evidentiary hearing, and then make a specific factual finding in its order that the attorney either had, or did not have, knowledge of material and confidential information. Id. Without such findings, we cannot review the correctness of the courts' disqualification decision, or any exercise of discretion in refusing to vacate the disqualification.

¶8 The district court relied on District Court Rule 4e (motion may be deemed confessed if not responded to) and Rule 4h (motions may be decided by the court without a hearing). We find no current case law holding that Miami Bus andPiette place motions to disqualify counsel outside of the provisions of Rule 4e and Rule 4h. Nevertheless, those decisions are clear that the right to choose counsel is fundamental, and counsel cannot be disqualified without the required hearing and findings, even when a disqualification motion goes unanswered. We therefore remand this matter for a hearing consistent with the Miami Bus decision.

Summary judgment affirmed after plaintiff's affidavit is stricken

In Kutz v. Deere & Co., 2015 OK CIV APP 6, the Oklahoma Court of Civil Appeals affirmed a summary judgment in favor of a defendant after the court struck the plaintiff's self-serving affidavit.

The Deere & Co. court held:

¶9 "When determining whether an affidavit may be disregarded because it attempts to create a sham issue of fact, the Court may consider whether the party was cross-examined during earlier testimony, whether the party had access to the evidence at the time of earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain." Tortorelli v. Mercy Health Center, Inc., 2010 OK CIV APP 105, ¶ 30, 242 P.3d 549, 561 (citing Ishmael v. Andrew, 2006 OK CIV APP 82, ¶16, 137 P.3d 1271, 1276). "A trial court may disregard an affidavit purporting to create an issue of fact by directly contradicting prior deposition testimony during which the deponent was both cross-examined and had access to the information forming the basis for the affidavit at the time of the deposition." Tortorelli, id., (citing Savage v. Burton, 2005 OK CIV APP 106, 125 P.3d 1249).

¶10 In this case, Kutz was deposed at great length in July 2012 with his attorney present about evidence to which he clearly had prior access, including his letter to Deere proposing a settlement of their dispute. At the deposition, Kutz admitted not being forced to write his proposal letter, he understood "reaching a settlement" meant the parties would compromise and end their dispute, and that he knew he was releasing his personal claims for money arising from the fire and the equipment. He also admitted he was neither told nor threatened that if he did not settle and/or release his claims with Deere that it would not let him rent the haying equipment from Grissoms.