Commercial Lawyers Dinner - CLE · Members receive 1 to 1.5 hours of CLE for attending in addition to a meal and ... International Criminal Law Committee, Vice Chair. Lance E. Leffel

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OKLA CITY OK

JUNE 2014 Vol. 46, No. 6 A P u b l i c a t i o n o f t h e O K L A H O M A C O U N T Y B A R A S S O C I A T I O N WWW.OKCBAR.ORG

Workshop: AHuge Success!Family Estate and FinancialPlanning in 90 Minutes

Page 8

A Challenge forInns and OthersRuth Bader Ginsburg InnChallenges for Music and Art

Page 7

Inside

On May 13, 2014, the Oklahoma City

Commercial Attorney’s Association

(OCCAA) hosted its annual Judicial

Appreciation dinner. Judges Don Deason,

Patricia Parrish, Tom Prince, Roger

Stuart and Don Andrews were among

those in attendance. The OCCAA began

in 1994. Its goal is to provide relevant

Continuing Legal Education to attorneys

involved in contract, bankruptcy and col-

lection practices. Speakers present topics

at the meetings on various legal issues.

Subjects have included digital signatures,

creditors’ rights in bankruptcy, social

security claims, and appellate practice.

Speakers have been officials from the

Oklahoma Bar Association, Referees

from the Supreme Court, staff from the

Administrative Office of the Courts,

group members and private attorneys.

Members receive 1 to 1.5 hours of CLE

for attending in addition to a meal and

networking opportunities. Regular meet-

ings occur on the second Tuesday of each

month. Meetings are held January-May

and September-December. More infor-

mation can be obtained by visiting

www.OCCAA.Teamr.com or emailing

to [email protected].

President Richard Winblad said, “We

are pleased to provide relevant materials

and opportunities to earn CLE credits.

Presenters earn 6-9 hours of teaching

credits. The $90 annual membership fee

includes meals.”

Commercial LawyersDinner - CLE

From The President . . . . . . . . . . .2OCBA Night at the RedHawks . . . .2And the Court Said . . . . . . . . . . .4Sign Up for OCBA Committees . . .5Events and Seminars . . . . . . . . .5iBar Definitive Playlists . . . . . . . .6

Bar Observer . . . . . . . . . . . . . .11Old News . . . . . . . . . . . . . . . .11Stump Roscoe . . . . . . . . . . . . .12Civility in Briefing. . . . . . . . . . .13Work Life Balance. . . . . . . . . . .13Book Notes. . . . . . . . . . . . . . . .15

President-Elect Jim Webb, serving as

Chair of this year’s Nominations &

Election Committee, has announced the

slate of candidates approved by the Board

of Directors. Ballots will be mailed the first

week in July and should be returned no

later than July 31, 2014. Election results

will be announced in August and elected

officials will take office September 1,

2014. The candidates and their qualifica-

tions are listed below:

PRESIDENT-ELECT

Angela Ailles Bahm

Ailles andAssociates, Employeesof the Corporate LawDepartment of StateFarm MutualAutomobile InsuranceCompany

J.D. – University of

Oklahoma 1986.

OCBA activities include: Work Life

Balance Committee 2003-2010; Bench &

Bar Committee 2009-Present, Chair 2011;

Board of Directors 2010-2014 Lawyers

for Learning; Law Related Education;

OCBA Delegate. OBA activities include:

Professional Responsibility Commission

since 2011; Women in Law since 2007;

Civil Procedure Committee since 2007;

Ethics Commission 1998-2005; Insurance

Section since 1996, Chair 1997.

VICE PRESIDENT

The Honorable

Barbara Swinton

District Judge forthe Oklahoma CountyDistrict Court


Oklahoma 1982-83,

Georgia State

University 1991.

OCBA activities

include: Board of

Directors; Bench & Bar Committee; YLD

Chili Cook-Off Judge; Work Life Balance

Committee; Law Day Committee. OBA

activities include: Bench & Bar

Committee, Chair & Co-Chair;

Professionalism Committee; Family Law

Committee. ABA activities include:

Member.

LAW LIBRARY TRUSTEE

Matt Blue

Coleman LawOffice.

J.D. – Oklahoma

City University 2003.

OCBA activities

include: Young

Lawyers Division

Board, 2010-2013,

Social/Athletic

Chairman 2011-2013;

Awards Committee 2013-2014.

OCBA Officer & Director Candidates Announced for

2014-2015 Elections

Angela Ailles BahmThe Honorable

Barbara Swinton

Matt Blue

See CANDIDATES, PAGE 3

Time to GetReady for the “Back To

School Bash”at Family Junction

Believe it or not – August 4 isthe first day of classes forOklahoma City Public Schools.That means it is time for the resi-dents of the Family Junction to gettheir backpacks filled and theirback-to-school clothes ready to go.Family Junction is a 24-hour, 16-bed residential facility for 12-17year olds who need a short-termhome for reasons beyond theircontrol. Most of these teens cometo the shelter with nothing, includ-ing items necessary to allow themto return to school ready to learn.

The Community ServiceCommittee will begin collectingschool supplies such as #2 pencils,pens, rulers, markers, highlighters,paper or spiral notebooks (college-ruled), three-ring binders, combi-nation locks, and backpacks.Monetary donations will be usedto allow the students to purchase anew outfit and/or athletic shoes forschool. Donations should be deliv-ered by July 18 to the OklahomaCounty Bar Offices. A “Back ToSchool Bash” will be held at theshelter on July 22 and will includea picnic and probably some bas-ketball time for members of thecommittee.

Most of you have had the expe-rience of getting kids ready toreturn to school and FamilyJunction has 16 such kids whoreally need the help from theOCBA. So, please continue yourgenerosity this year!

— A Big Thanks from the

Community Service Committee

2 BRIEFCASE • June 2014

By Judge Patricia Parrish

OCBA President

My niece, April, was a victim of

domestic violence. She was murdered by

her husband in 2002. She was 27 years

old.

In 2011, Oklahoma

was ranked third in the

nation for women killed

by men in domestic

abuse situations. The sta-

tistics are staggering. We

tend to quickly read them

and then quickly forget

them unless we or some-

one we love is a part of

the statistic.

• One in four women

will experience

domestic violence in

their lifetime.

• An estimated 1.3 million women are

victims of physical assault by an inti-

mate partner each year.

• Females are historically victimized

by someone they know.

• Most cases of domestic violence are

never reported to the police.

• Almost one-third of all female homi-

cide victims are killed by an intimate

partner.

Senator Dianne

Feinstein once said,

“Domestic violence

causes more pain than

the visible marks of

bruises and scars.” The

emotional scars left by

domestic abuse run deep

for the victims and those

who know and love the

victims. In the majority

of domestic violence

incidents, family mem-

bers, friends and/or law

enforcement know of

ongoing domestic abuse prior to a homi-

cide occurring. Family members are

often plagued by thoughts of what signs

were missed and what could have been

done to prevent the violence.

The OCBA Lawyers Against Domestic

Abuse Committee is committed to edu-

cating the public about the signs of

domestic abuse so that lingering thoughts

of “What could I have done?” exist no

more. The Committee is currently work-

ing on a brochure entitled A DomesticViolence Victim’s Guide to Obtain anAttorney and is planning a CLE seminar

entitled Everything You Didn’t Knowabout Domestic Abuse. The next opportu-

nity to learn more about domestic abuse

will be during the Domestic and SexualViolence and Stalking PartnershipConference on September 24-25, 2014, at

the Embassy Suites Hotel and

Conference Center in Norman,

Oklahoma, sponsored by the Oklahoma

Attorney General’s office.

If you are interested in becoming a

member of the OCBA Lawyers Against

Domestic Abuse Committee, please con-

tact the OCBA at 405-236-8421.

What Could I Have Done?Helping Victims of Domestic Violence

Judge Patricia Parrish

BRIEFCASEJune 2014

Briefcase is a monthly publication of theOklahoma County Bar Association

119 North Robinson Ave.Oklahoma City, OK 73102

(405) 236-8421

Briefcase Committee

Judge Jim Croy, Jim Drummond, Michael

Duggan, Justin Hiersche, Scott Jones, Matt

Kane, Teresa Rendon, Bill Sullivan, Rex Travis,

Alisa White, Chris Deason, Judge Don Deason

and Judge Allen Welch.

Editor Judge Geary L. Walke

Contributing Editors Dean Lawrence Hellman

Richard Goralawicz

Bill Gorden

Warren Jones

Oklahoma County Bar Association

OFFICERS:

President Judge Patricia Parrish

President-Elect Jim Webb

Vice President Angela Ailles Bahm

Past President John Heatly

Treasurer Robert D. Nelon

Bar Counsel Brandon Long

STAFF:

Executive Director Debbie Gorden

Legal Placement Director Pam Bennett

Membership Services Connie Resar

Journal Record Publishing Co. Inc.

Publisher Mary Mélon

Director of Salesand Community Relations Sunny Cearley

Art Director Gary L. Berger

Creative Services Tiffany English

Velvet Rogers

Sarah Williams

Advertising Acct Exec Jessica Misun

For advertising information,

call 278-2820.

Postmaster: Send address changes to OCBA

Briefcase, 119 North Robinson Ave., Oklahoma

City, Oklahoma 73102.

Journal Record Publishing produces the Briefcasefor the Oklahoma County Bar Association, which is

solely responsible for its content.

© 2014 Oklahoma County Bar Association

OKLAHOMA COUNTYBAR ASSOCIATION

MISSION STATEMENTVolunteer lawyers and judges dedicated to

serving the judicial system, their profession,

and their community in order to foster the

highest ideals of the legal profession, to bet-

ter the quality of life in Oklahoma County,

and to promote justice for all.

From the President

OCBANight at theRedHawksTime to play ball! The

OCBA is enjoying a night at

the Chickasaw Bricktown

Ballpark on Friday, July18

at 7 p.m.

The Oklahoma City

RedHawks will play the

Nashville Sounds with fire-

works following the game.

What a great summer time

evening and tickets are only

$11 and that includes a

voucher for a limited-edi-

tion RedHawks baseball

cap.

For tickets, go to the web-

site at www.okcbar.org or

call the bar office at 236-

8421. Hope to see you at the

game!

Mariano Acuña

Abel Law Firm.J.D. – SMU

Dedman School of

Law 2003. Pro Bono

Panel Attorney for

Legal Aid of

Oklahoma represent-

ing victims of domes-

tic violence. Board

member of Variety

Care since 2009, President since 2011.

Kenyatta Bethea

Holloway, Bethea& Osenbaugh


Oklahoma 2000.

Board of Trustees,

Church of the

Servant.

Robert E. Black

Angela D. Ailles &Associates

J.D. – Oklahoma


OCBA activities

include: Alternate

Delegate; Lawyers

for Learning

Committee; Bench &

Bar Committee; Ask

A Lawyer Volunteer; CLE Committee.

OBA activities include: Insurance Law

Section; Associate Bar Examiner.

Todd Blasdel

Devon EnergyJ.D. – University of

Oklahoma 2002.

OCBA activities

include: Board of

Directors 2008-2011;

Briefcase Contributor

2007-2012;

Community Service

Committee 2011-

present; Task Force Member, Law School

Relations Committee 2006-2007. OBA

activities include: Delegate & Alternate

Delegate 2007, 2009-2012; Leadership

Academy Graduate 2008-2009; BarJournal Article Author 2013.

Dan Couch

Rubenstein & Pitts,PLLC


Oklahoma 2007.

OCBA activities

include: Young

Lawyers Division

2008-present, Chair

2013; Fee Grievance

& Ethics Committee

2014; Community Service Committee

2014; Day of Service Coordinator 2013.

OBA activities include: Alternate

Delegate 2011-2013; High School Mock

Trial Committee 2009-present.

Billy M. Croll

Hartzog CongerCason & Neville


Oklahoma 1979.

OCBA, OBA & ABA

activities: “none to

date, but you have to

start somewhere.”

Jeff Curran

GableGotwalsJ.D. – University of

Oklahoma 1987.

OCBA activities

include: Member;

CLE Speaker 2012.

OBA activities

include: Insurance

Section, Secretary.

ABA activities

include: Tort Trial & Insurance Practice

Section; Automobile Law Committee,

Former Chair, Former Vice Chair &

Newsletter Editor.

Thomas J. Daniel IV

Kirk and ChaneyJ.D. – University of

Oklahoma 1986.

OCBA activities

include: Fee

Grievance & Ethics

Committee; Ask A

Lawyer Chair.

Jodi Warmbrod

Dishman

McAfee & TaftJ.D. – University of

Oklahoma 2005.

OCBA activities

include: Member.

OBA activities

include: Member.

Federal Bar

Association,

Oklahoma City

Chapter.

Matthew C. Kane

Ryan WhaleyColdiron & ShandyPLLC


Oklahoma 2002.

OCBA activities

include: BriefcaseCommittee 2010-

present; Bench & Bar

Committee 2010-

2011; Alternate Delegate 2013-2014.

OBA activities include: Bench & Bar

Committee 2011-present; Rules of

Professional Responsibility Committee

2012-present; Access to Justice

Committee 2011-2012. ABA activities

include: International Criminal Law

Committee, Vice Chair.

Lance E. Leffel

Fellers SniderBlankenship Bailey &Tippens


Oklahoma 2002.

OCBA activities

include: Law Day

Committee, Chair

2011 & 2012, Ask A

Lawyer Chair. OBA

activities include: Ask A Lawyer

Coordinator. ABA activities include:

Committee on Trial Evidence, Vice Chair,

Membership & Judicial Liaison

Coordinator.

Tracey D. Martinez

Mullins Martinez,Sexton & Reaves, PC


Oklahoma 2002.

OCBA activities

include: Young

Lawyers Division

Board Member 2005-

2008, Secretary/

Treasurer 2006-2007,

Vice Chair 2007-2008; Family Law

Section; Awards Committee; Fee

Grievance & Ethics Committee; Law

Related Education Committee. OBA

activities include: Family Law Section;

Young Lawyers Division Liaison to

Member Services Committee.

Elisabeth E.

Muckala

Hall EstillHardwick GableGolden & Nelson, PC

J.D. – Oklahoma


OCBA activities

include: Member

2006-present;

Attendance at Law

Day functions. OBA activities include:

Labor & Employment Section Member,

CLE Presenter; Member 2006-present.

ABA activities include: Member 2006-

2010.

Tom E. Mullen

Fenton Law FirmJ.D. – University of

Oklahoma 1979.

OCBA activities

include: Fee

Grievance & Ethics

Committee. OBA

activities include:

Member. ABA activi-

ties include: Member.

Richard Parr

Tomerlin High &High

J.D. – Oklahoma


OCBA activities

include: Law Related

Education

Committee, Chair;

Probate & Estate

Planning Section.

Coree Stevenson

Love’s TravelStops & CountryStores, Inc.,Corporate Counsel-Manager ofLitigation

J.D. – Oklahoma

City University

1999. OCBA activi-

ties include: Young

Lawyers Division Board of Directors

1999-2004, Vice Chair 2000-2003; Work

Life Balance Task Force & Committee;

Recipient of OCBA Pro Bono Award

2004. OBA activities include: Member,

1999-present; Work Life Balance

Committee; Ask A Lawyer Volunteer;

Rules of Professional Conduct

Committee; Litigation Section. ABA

activities include: Member 1999-present;

Litigation Section; Environment, Energy

& Resources Section; Intellectual

Property Law Section.

James E. Warner III

Holladay &Chilton, PLLC


Oklahoma 2002.

OBA activities

include: Civil

Procedure

Committee.

Ray E. Zschiesche

Phillips Murrah,

PC


Oklahoma 1985.

OCBA activities

include: Journal

Record Leadership in

Law Award 2010;

Community Service

Committee, Vice

Chair 2011-2013, Chair 2013-present;

Voices for Children Committee 2011-

present. OBA activities include:

Litigation Section; Insurance Law

Section. ABA activities include: Member

1985-present.

www.okcbar.org • June 2014 • BRIEFCASE 3

CANDIDATES from PAGE 1

Mariano Acuña

Kenyatta Bethea

Robert E. Black

Todd Blasdel

Dan Couch

Billy M. Croll

Jeff Curran

Thomas J. Daniel IV

Jodi WarmbrodDishman

Matthew C. Kane

Tom E. Mullen

Richard Parr

Ray E. Zschiesche

James E. Warner III

Coree Stevenson

Elisabeth E. Muckala

Lance E. Leffel

Tracey D. Martinez

BOARD OF DIRECTORS


An Olio of Court ThinkingBy Jim Croy

June 13, 1914

One Hundred Years Ago

[Silva v State, 1914 OK CR 110, 141 P.

235.]

Plaintiff in error was tried and convict-

ed on an information which charged that

he, Massa Silva, did unlawfully have

possession of one quart of whisky with

the intention of selling the same, and, in

accordance with the verdict of the jury,

he was, on the 14th day of May, 1913,

sentenced to pay a fine of $50 and be

confined in the county jail for a period of

30 days. He appeals from the judgment.

Several assignments of error relate to

rulings of the court in the admission of

evidence, some of which are not destitute

of merit, but the only question which we

think it necessary to consider is the suffi-

ciency of the evidence to sustain the con-

viction. Our conclusion as to that will

dispose of the appeal.

The testimony on the part of the state

was as follows: Lee Pollock testified that

he was a deputy sheriff, and on January

18, 1913, searched the place in the town

of Krebs where the defendant was work-

ing and found five or six other persons

there; that Sheriff Tatum, who was with

him, found somewhere behind the count-

er a part of a quart of whisky; that the

place was a lunch room, but was known

as a booze joint, and it had changed

hands about twenty times in the last five

years, and was then owned by a man

named Grego, who manufactured

sausage.

Chaney Hayes, the only other witness

for the state, testified that for three or

four years the place had had the reputa-

tion of a booze joint.

On behalf of the defense, Barney

Larshona testified that he had lived in

Krebs eight years; that John Grego

owned the lunch stand and sold chili and

things like that, and the boy Massa Silva

clerked for him.

Domeneck Moffa testified that he had

worked in the mines there eleven years,

and that the defendant was employed by

John Grego.

The defendant, as a witness in his own

behalf, testified that John Grego owned

the place; that he had been working for

him two and one-half months; that they

made sausage; that Grego was there that

day, and was a man who drank some; that

he did not know the bottle found by the

sheriff was there, and knew nothing

about it before the sheriff found it; that

he was at a barber shop near there when

the officers raided the place; that he was

eighteen years of age, and had never been

arrested before this charge was made.

We think the evidence is insufficient to

establish the fact of the defendant’s pos-

session. To prove his possession the state

relied upon circumstances that tended to

show possession by the owner of the

place, and it is undisputed that the defen-

dant was only an employee.

When we recall the presumption that

the law always indulges as to the inno-

cence of one accused of crime, and the

necessity of establishing the guilt of the

defendant beyond a reasonable doubt, we

think that, assuming that there were some

circumstances in evidence tending to

show possession by the defendant, it

would be destroying the presumption in

favor of innocence, and permitting the

subversion of the rule requiring the

establishment of guilt beyond a reason-

able doubt, to allow this conviction to

stand. The defendant, as a witness, met

the charge with a positive denial and evi-

dence of good character. He is a mere

boy, and we cannot help thinking that a

conviction upon testimony so slight and

insufficient was more the result of preju-

dice and public sentiment than the dis-

passionate conclusion of the jury upon

the facts in evidence.

June 24, 1939

Seventy-Five Years Ago

[Excerpted from Wooten v State, 1939

OK CR 69, 92 P.2d 594.]

The plaintiff in error filed his transcript

of the record in this court on June 22,

1939, and filed an application showing

that on April 24, 1939, the plaintiff in

error was tried for the crime of larceny of

livestock in the district court of Bryan

county, Okla., found guilty by a jury, and

his punishment fixed at five years in the

state penitentiary at McAlester; there-

after, and on the 29th day of April, 1939,

the said plaintiff in error was sentenced

by the district judge to serve the said

term of five years in the state penitentiary

at McAlester, and gave notice of his

intention to appeal to the Criminal Court

of Appeals of the state of Oklahoma, and

was granted 60-10-5 days for case-made,

which sixty days expires on the 29th of

June, 1939.

It is further shown that the plaintiff in

error filed a motion for a new trial which

was overruled by the trial court.

The defendant states that he filed his

application, asking the trial judge to

order a case-made at the expense of the

county; and states that he is a poor person

without means to pay for the record; that

he has no funds, and has no friends that

will put up the funds to pay for the said

record; that his application was heard by

the Honorable District Judge of Bryan

county, Okla., on June 17, 1939, and

proof that plaintiff in error was a pauper,

without means for paying for the record,

and had no funds and no friends that

would put up funds for said record; that

after hearing the application of the plain-

tiff in error and the testimony in support

of the same, the honorable district judge,

who had presided at the trial, denied his

said application and made the following

announcement:

“By the Court: Here is the situationabout it. I would love to make an orderallowing him to appeal at the expense ofthe county; but the county is broke anddon’t have any money; and it don't looklike we can get enough to hold courtwith. If I made an order in this case, I

would have to make an order to appealall of them; and we can’t do it as much asI would like to do it; therefore, the appli-cation will be denied. I feel sorry for Mr.Wooten and would like to see him appealthe case; but I can’t see my way clear todo it.

By Mr. Boner: The defendant exceptsand gives notice of appeal to theCriminal Court of Appeals.

By the Court: Exception allowed.”It is further shown that the plaintiff in

error gave notice to the county attorney

that on the 24th day of June, 1939, he

would apply to this court for an order

requiring the court reporter of the district

court of Bryan county, Okla., to furnish

the record at the expense of the county.

No appearance was made by the coun-

ty attorney, and the case was submitted

upon the application of the plaintiff in

error, the defendant in the lower court,

and his proof in support of the same.

Section 3823, O. S. 1931, 20 Okla. St.

Ann. § 111, in part is as follows:

“Provided, however, that if, before a

transcript of the notes is ordered on

application of the defendant or his attor-

ney, the defendant shall present to the

judge his affidavit that he intends in good

faith to take an appeal in the case and that

such transcript is necessary to enable him

to prosecute the appeal, and that the

defendant has not the means to pay for

the same, the court may, at its discretion,

order the transcript made at the expense

of the county.” . . . .

It is ordered that the official court

reporter of the district court of Bryan

county, Okla., prepare the case-made in

the above numbered and entitled case at

the expense of Bryan County, Okla., and

furnish the same free of charge to Alvin

Wooten, plaintiff in error, herein referred

to.

June 2, 1964

Fifty Years Ago

[Excerpted from Cunningham v. Pratt,1964 OK 124, 392 P.2d 725.]

Plaintiff's second amended petition

alleges, in so far as pertinent to the issues

herein, that on November 24, 1961, about

6 p.m. plaintiff had driven her car into a

parking lot owned and operated by defen-

dant. After shopping in defendant’s store

which was adjacent to and on the same

premises as the parking lot, plaintiff was

struck and seriously injured by an auto-

mobile negligently operated by Sloan as

she was returning to her car; that Sloan

was negligent in that he was violating

city ordinances by driving at a speed of

40 miles per hour and by driving in a

reckless manner; that defendant furnishes

and controls the parking lot for the use of

his customers in connection with the

operation of his grocery store; that plain-

tiff was an invitee. Plaintiff alleged that

defendant was negligent in the following

particulars: in failing to provide a safe

place for plaintiff to park her car and

shop; in failing to adequately light the

parking area; that parking area was light-

ed only from the lights within the store

which caused deep shadows intermittent-

ly throughout the area; that plaintiff was

concealed by one of these shadows which

caused Sloan to strike plaintiff without

discerning her presence; that defendant

also failed to adequately mark the drive-

way to the parking area; that Sloan for

this reason when entering the parking

area failed to ascertain the driveway thus

causing Sloan to strike and run over a

six-inch curbing, the result of which was

that Sloan lost control of his vehicle; that

Sloan had driven into defendant’s park-

ing area to avoid hitting another car and

would have been successful had defen-

dant properly marked, painted or desig-

nated with signs the safe entrance to the

parking area; that defendant's failure to

furnish a safe parking area for his cus-

tomers, to adequately light the same, and

to properly mark the safe entrance there-

to consisted of negligence on the part of

the defendant which was the proximate

cause of plaintiff's injuries, or con-

tributed thereto, and that Sloan and the

defendant are jointly liable to plaintiff,

and that plaintiff was without fault.

* * *

Plaintiff reasons that defendant, as the

owner of the parking lot, is required to

warn his customers of hidden dangers on

the premises not known to intelligent

persons, and his failure to do so is negli-

gence which is usually a jury question.

One essential plaintiff overlooks is that

defendant was in no position to have

warned plaintiff of a danger or peril on

his premises. Our present case concerns

the liability of defendant as a result of

active negligence on the part of a third

party injuring plaintiff upon defendant’s

premises.

Plaintiff cites Criterion Theatre Corp.v. Starns, 194 Okl. 624, 154 P.2d 92,

which held in part that the question of

sufficient lighting and condition of the

steps and carpet in a darkened theatre

were issues for the jury. We fail to find

the similarity in the cited case with the

case now before us. In our present case,

plaintiff was not injured because she

could not see, due to the alleged inade-

quacy of the lighting or markers. Rather,

plaintiff’s injury was due to an independ-

ent act of a third party who drove into the

parking lot at an excessive speed.

Plaintiff urges that defendant, in fur-

nishing a parking lot, should anticipate

and reasonably foresee that some users of

the parking lot would turn into the lot at

fast rates of speed and that at dusk these

users would have difficulty in distin-

guishing the entrance, due to the inade-

quacy of the markings, and in seeing

patrons walking about due to inadequate

lighting.

* * *

¶12 In the case now before us we fail to

see any causal connection between

defendant’s failure to adequately light or

adequately mark the entrance to the park-

ing area and the plaintiff’s injury. The

And the Court Said

See OLIO, PAGE 14


&EventsSeminarsJULY 22, 2014Family Junction Back ToSchool Bash

SEPTEMBER 12, 2014Annual Dinner & DanceSkirvin Hotel Grand Ballroom

PERSONAL INJURY

WORKERS’COMPENSATION

SOCIAL SECURITYDISABILITY

JOHNSON & BISCONE

WILL GLADLY REVIEW

YOUR REFERRALS.

OKLAHOMA’S TOP RATED LAWYERS

PERSONAL INJURY

LEXISNEXIS© MARTINDALE HUBBELL©

2012, 2013, 2014

1-800-426-4563

405-232-6490

105 N HUDSON, SUITE 100HIGHTOWER BUILDING

OKLAHOMA CITY, OK 73102

Get Active in Your OCBA &

Reap the Benefits!Coming in your mail soon – the first

week in July – will be your opportunity

to elect officers, delegates, renew your

membership and sign-up for commit-tees!

The OCBA has twelve active commit-

tees, two sections and an outstanding

YLD Division. To make it easier this year

we’ve added the Committee Preference

to the bottom of the membership renewal

forms. If you are with a firm that is mas-

ter billed, then you will receive the

Committee Preference Card. Either way,

sign up for one, two or three of the fol-

lowing committees, sections or division:

Awards Committee — This commit-

tee is responsible for the OCBA Award

nominations, the OBA Award nomina-

tions and the Leadership in Law Awards.

Chair – Judge Patricia Parrish

Bench & Bar Committee — Working

to improve relations between the bench

and the bar, this committee takes on proj-

ects to assist both the bench and bar. In

2014-15, it is time to plan another Bench

& Bar Conference at Quartz Mountain.

Chair – Michael Chitwood

Briefcase Committee — This commit-

tee is responsible for the monthly publi-

cation Briefcase. They recruit articles,

write articles, edit and proof each month.

Chair & Editor – Judge Geary Walke

Continuing Legal Education

Committee — Responsible for providing

quality CLE programs to OCBA mem-

bers at discounted prices, this committee

plans sessions each year through the

months of October through February.

Chair – Terrill Monks

Community Services Committee —

This committee plans community servic-

es projects such as assisting the local

youth shelter. They also coordinate cloth-

ing drives every 6 months for the drug

court participants. This committee has

been active in nursing home visits and

getting readers for Rockwood

Elementary School. Chair –Ray

Zschiesche; Vice Chair – Chance

Pearson

Fee Grievance & Ethics Committee

— Comprised of both lawyer and non-

lawyer members, this committee investi-

gates complaints of clients against attor-

neys who are OCBA members. They are

deputized through the OBA to investigate

and recommend disposition of such

cases. Chair – George Dahnke; Vice

Chair – Kieran Maye

Law Day Committee — This commit-

tee is responsible for all Law Day activi-

ties which include the Law Day

Luncheon, Ask A Lawyer Program, stu-

dent mentoring program, civic group

speakers and the Law Library Law Week.

Chair – Curtis Thomas

Law Related Education Committee

—This committee provides support for

the OCBA Law Related Education pro-

gram. The committee works to update

current materials and generate new ideas

for classroom presentations. Chair –

Richard Parr; Vice Chair – Doneen

Jones

Lawyers Against Domestic Abuse —

This committee works to raise awareness

of domestic abuse. Working with the

YWCA and Attorney General’s Office,

the committee provides training of attor-

neys & judges in dealing with domestic

abuse situations and providing resources

online and on the 1st floor of the

Oklahoma County Courthouse for vic-

tims. They are also working to provide

victim advocates and establish a

Speaker’s Bureau. Chair – Gretchen

Harris; Vice Chair – Joe Balkenbush

Lawyers for Learning — This com-

mittee is involved as mentors/tutors in

the OKC Public School’s Community

Involvement initiative working with

Adams, Lee and Rockwood Elementary

Schools. Chair – Lori Fagan

Legal Aid Committee — Working

with Legal Aid Services of Oklahoma,

this committee works to improve legal

services to those in need. This committee

also assists in the yearly fund drive for

Legal Aid. Chair – John Miley

Veterans’ Issues Committee — Works

closely with the OBA Oklahoma Lawyers

for America’s Heroes Program in provid-

ing legal assistance to veterans. This

committee is new and is also trying to

find other ways to assist veterans. Chair

– Daniel Webber; Vice Chair – Robert

Stell

Voices for Children Committee —

The main project for this committee has

been the Carver-Mark Twain Headstart

Program. This group plans parties, pro-

vides books and readers and helps with a

winter clothing drive each year. Chair –

Robert Sheets

Bankruptcy Section — This section

meets 10 months a year at the U.S.

Bankruptcy Court to discuss current

issues in the bankruptcy area. There is a

membership fee of $120 which provides

for lunch at these meetings. Chair –

Craig Regens

Family Law Section — This section

works with the judges of the Family Law

Division in providing up-to-date infor-

mation to those attorneys practicing in

the family law area. Co-Chairs – Judge

Howard Haralson & Sharon Byers

Young Lawyers Division — This

hard-working group of young lawyers

takes on many projects each year. Some

of these projects include the Harvest

Food Drive, Striking Out Hunger

Bowling Tournament in the summer and

Chili Cook-off in the winter. The

Community Service Subcommittee plans

3 community service projects each year.

Chair – Justin Meek

Lawyers in the Classroom Michael O’Neil with his big “thank you” note. Mr. O’Neil is a frequent volunteerspeaker for the OCBA Law-Related Education Program.

Back ToSchoolBash!

July 22


iBar Definitive PlaylistsBy Chris Deason and Judge Don Deason

We tend to like music that is little bit off the beat-

en path. Though, we are probably not as far “off the

beaten path” as we might think. Here are a couple

of our likes that aren’t too mainstream. First, Mark

Oliver Everett, also known as “E” (not to be con-

fused with the character from Entourage), records

under the name Eels with a constantly changing

group of musicians. He has been making very dark

and personal music since the 1990s, beginning

with his debut album Beautiful Freak. One of our

favorite songs is titled (with our apologies for the

language) It’s a M*****f***r, which explores in

very uncensored terms what it feels like to go on

with day-to-day life after experiencing unimagin-

able and heartbreaking loss. On a lighter note, E

participated in a film called Parallel Worlds,Parallel Lives, about the complicated relationship between E and his physicist father,

Hugh Everett III, who was the originator of the many-worlds interpretation of quantum

theory and of the use of Lagrange multipliers for general engineering optimizations. If

you understand any of that, then you are way ahead of us. The film aired on PBS in 2008.

Another favorite is a fellow from the Tucson, Arizona, named Howe Gelb. One of his

songs, Stranded Pearl, appeared on Don’s playlist a few months ago. Much Like “E,” he

records and performs with various musicians and associations he describes as “seasonal”

under the name Giant Sand. For trivia fans, it is an abbreviation of the giant sandworms

from the Dune series of books. His music incorporates influences that are southwest,

along with influences from country, marimba, and tejano. According to the very opinion-

ated Gelb, “Every time the Republicans have been in office, it seems like the best rock

music gets made. Like, you know, the saddest thing in the world was Kennedy getting

shot. That was the down shot. The upshot was I don’t think we wouldn’t have gotten

Hendrix otherwise.” The most recent version of Giant Sand has Howe working with

musicians from Denmark.

Enjoy the June 2014, playlists submitted by Judge Easter and his daughter, the prose-

cutor, Merydith Easter.

Honorable Judge Donald Easter: Judge Easter graduated in the

“Top 10” from OCU School of Law. We are proud of him even though only 8 students

graduated that cold December day in 1979. Judge Easter is lucky to have a fantastic fam-

ily that keeps growing. He listens to music on an iPod while working out and then on XM

while waiting for Merydith. They car pool. We want to know who has control of XM on

the drive to and from the courthouse.

Song Title Artist

All My Ex’s Live in Texas George Straight

A Closer Walk With Thee Pete Fountain

Mornin’ Al Jarreau

Pretty Girls Everywhere Eugene Church

Turn On Your Love Light Bobby Bland

White Boy Lost in the Blues Lyle Lovett

You’re the Reason God Made Oklahoma David Frizzell & Shelly West

Happy (Guilty Pleasure) Pharrell Williams

Merydith Easter: Like her dad, Merydith graduated in the month of

December, but she chose to attend OU College of Law. That institution wound her up and

then turned her loose in 2010. She currently works as an Assistant District Attorney in

Oklahoma County. Don Deason has a couple of funny Merydith stories from when she

has appeared on his docket. He will be happy to share them with you if ask. Merydith lis-

tens to the music on her iPhone while walking her dog, Rylee.

Song Title Artist

Hey Baby Mark Wilkinson

A Beautiful Mess Jason Mraz

Compass Lady Antebellum

Love Runs Out OneRepublic

Somewhere Only We Know Keane

She’s So Mean Matchbox Twenty

How Will I Know (Guilty Pleasure) Whitney Houston

Aspen 2014 The Deasons

Become aParalegal

Department of Legal Assistant EducationOU Law Center

Enroll in the University of OklahomaLegal Assistant Education Program.

Enrollment deadline: August 18, 2014

• No Prepayment Contracts

• Approved by the American Bar Association

• Saturday Classes

University of Oklahoma Law Center

Department of Legal Assistant Education

300 Timberdell Road, Room 3014, Norman, Oklahoma 73019

For more information:

(405) 325-1726 or [email protected]


The Challenge:Ruth Bader Ginsburg Inn Challenges

Other Inns and OrganizationsLawyers are social creatures, usually

belonging to multiple organizations. They

connect through professional organiza-

tions, of which there are many, as well as

churches, scouts, politics, book clubs, and

also civic groups of all shapes, sizes and

descriptions.

The American Inns of Court has estab-

lished several Inns in the OKC metro. This

is the story of two outreach programs of the

Ruth Bader Ginsburg American Inn of

Court: how they came to be, and the results.

The ideas came to Chris Batson Deason,

and she focused her energy and efforts, and

Don Deason’s energy and efforts, into the

projects until they bore fruit. It may be

years before there will be an eventual har-

vest from the students themselves, but the

seed is planted and the garden is being

tended by dedicated public school teachers.

Your Inn is challenged to report your

choice outreach program.

The Musical Idea

The idea for the 2012-2013 Community

Service Project for the Inn was sparked by

See CHALLENGE, PAGE 10


2014 Family Estate and FinancialPlanning Workshop: Huge Success!By Stan Evans

This past April, 62 families in Northeast

Oklahoma City walked out of a workshop

with written wills during the 5th Annual

MAKE-A-WILL and Family Financial

Planning Workshop. Fifty clients also had

Advance Directives and 22 availed them-

selves to financial management and debt

counseling.

More than 400 families have participated

over the past five years. Volunteer attorney

Ken Maillard was pleased with the

increased number of clients who participat-

ed this year. Family planning and debt

management were added three years ago

because it was determined that making

wills was not enough. According to

Maillard, we should not only help with

wealth preservation from generation to

generation but also should help families to

deal with financial problems of the present.

Reverend Lee Cooper of Prospect

Baptist Church expressed appreciation for

the outstanding job done by the volunteer

attorneys and law students. Rev. Cooper is

the inspirational leader of the project.

Assistant Dean Stanley Evans of OU

College of Law is the administrative and

legal leader. There is a two-week prepara-

tion in community churches done by pas-

tors, volunteer attorneys and church coordi-

nators. Everything culminates on a

Saturday, with families in and out with

printed legal wills within 90 minutes.

The preparatory work starts with a ser-

mon by the church pastor relating to preser-

vation of the family and what it takes to

build wealth. Each church is supported by a

volunteer church coordinator and a volun-

teer attorney to work with individual mem-

bers on preparing themselves and gathering

information. The volunteer attorney also

talks to the congregation about the impor-

tance of protecting family assets from gen-

eration to generation and confidentiality

concerns of the process. This year 26

churches were involved in Oklahoma City.

Once the screening is done, the family is

directed to the MAKE-A-WILL Workshop.

Upon arrival at the Saturday Workshop

each client is assigned to a volunteer attor-

ney and a law school intern. This year, 39

Oklahoma County Bar attorneys participat-

ed. The bulk of the volunteer attorneys

come from the Oklahoma Association of

Black Lawyers, who have taken this on as

a major community service project.

At the workshop, the client is inter-

viewed, and the information is used to

build a will which will support this client’s

needs. Once the client’s desires are put on

paper, the will is quickly produced. After a

client counseling session is completed by

the attorney, the will is witnessed and nota-

rized.

The client is then given an opportunity to

do an Advance Directive, determining who

has responsibility in case the family mem-

ber is medically incapacitated. Finally, the

financial management volunteers meet

with the client to assist in debt management

and financial counseling. This year, the

entire process took less than 90 minutes;

thanks in large part to the administrative

support of Legal Aid Services of

Oklahoma, Southwestern Urban

Foundation, and the planning and flow

management of Assistant Dean Evans and

Legal Aid Services of Oklahoma associates

Sharon Ammon and Rick Goralewicz.

According to Evans, this is a total collab-

orative effort of many groups. “Of course

the volunteer attorneys and interns from

both OU College of Law and OCU School

of Law were essential. Thirty-two law stu-

dents participated this year. The coordina-

tors and volunteer attorneys in the 26 dif-

ferent churches played a huge role in mak-

ing sure that the clients were prepared

when they arrived at the workshop.”

“All groups and individuals share a com-

mon goal: To assist families in our commu-

nity become stronger in preparing for their

future generations and to insure that accu-

mulated wealth was not lost at the passing

or loss of a family member. Wealth genera-

tion starts with having a way to preserve

things of value within the family.”

Assistant Dean Evans giving starting instructions to lawyers and law students at the beginning of the day.

Church Coordinator Leader Espanola Bowen being congratulated by Assistant Dean Evans for her volun-teer leadership.

Completing the process! Client Signing will.


Attorney Debra Cruickshank collecting info from client as OU Law Students observe.

Attorney Charles Henry and Law Student meeting with client and col-lecting details.

OCU Law Student advising client on details of her will.

Client being advised by Attorney Milissa Tipton Dunkins and law student – foreground. Other attorneys on stations with clients in the back-ground at the Metro Tech location.

Attorney Don Smitherman and OU Law Student helps client review final will. Attorney Rita Douglas Talley preparing will paperwork as client and student observes.

OCU Students being supervised by Attorney Tiece Dempsey as they prepare the will.


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a request from a fifteen year old for a

pricey trumpet. He marched in the band at

a well-funded high school where having

such an instrument would not be unusual.

While searching online, Chris and Don

Deason came across a trumpet like the one

Don used for marching band in 1964. There

were several postings on eBay for similar

instruments and they were surprised to

learn the trumpet was worth between $750

and $2,000 depending upon the condition.

Still in the original case, his trumpet had

been stored for decades in various closets,

attics, and garages. He did not participate in

band after junior high school, but had car-

ried it with him for over forty years for sen-

timental reasons. The first such sentimental

reason was the sacrifice made by his par-

ents so they could afford a fine instrument.

The Musical Challenge

The fifteen year old told Chris and Don

of students at his school who rented instru-

ments because their parents were unable to

make such a purchase. They wondered how

in the world students at underfunded

schools obtained instruments. It only took a

couple of telephone calls to get in touch

with the band instructor at Northwest

Classen High School, Reuben Green, who

spreads himself around three different

Oklahoma City schools. While Northwest

Classen has a marching band, many stu-

dents are unable to rent their desired instru-

ment much less purchase one. The only

option is to share instruments maintained

by the school. Many of the “loaners” can-

not be taken home so students are denied

the opportunity to practice.

The band instructor explained that most

instruments, no matter how old, can be

restored for minimal cost in comparison to

purchasing one new. Most only need a

good polishing and to have the rubber or

felt parts replaced. Refurbishing a used

instrument is feasible for the cash strapped.

The trumpet in the dusty box setting on a

shelf next to garden tools was becoming

more and more valuable. They figured

other members of the Inn had clarinets or

trombones tucked away in dark corners for

the same sentimental reasons. Turns out

they were right. It was the same story. The

instruments were still around because of

sentimental reasons and because of cost.

Either a parent had purchased it for them or

they had purchased it for their own child.

The idea of students actually using these

treasures led to a flood of generosity and by

December 2012, Inn members had donated

seventeen instruments to Northwest

Classen High School along with a $1,000

gift certificate to Larsen Music to cover any

necessary repairs. The band instructor said

the gift certificate alone was more than his

annual budget.

The Art Idea

The 2013-2014 Community Service

Project for the Inn sprouted from the previ-

ous year’s investigation into band instru-

ments and the Oklahoma City Public

School District when Chris came across a

childhood friend who had been donating art

supplies to a school located near his office.

He had done so for a number of years after

visiting an art class at Emerson Alternative

High School. He had watched the students

working on a project only to realize they

were drawing on pieces of copy paper with

pencils. No. 2 pencils. Not colored pencils.

In response to questions about the proj-

ect, the teacher told him they simply had no

art supplies. When told of the Inn’s interest

in donating supplies, Chris’ friend warned

that the students may not respond in a pos-

itive manner because the Emerson students

tend to have more pressing matters on their

minds than making art. Still, he delivers

what he can out of a belief that those stu-

dents deserve to spend an hour or so each

week thinking creatively even if it’s only a

temporary distraction from their worries.

With those encouraging words, we set in

motion the art supply drive that initially

resulted in the donation of over $900 in

actual supplies and $1,566 in cash dona-

tions for a Hobby Lobby gift certificate.

Not having much information from the

school other than a list of requested items,

we thought it was a meaningful donation.

That was until the supplies were delivered.

There had been no direct communication

with the art teacher who was suspicious of

the donation. A few students were asked to

assist with carrying supplies up the three

flights of stairs to her room. Those who

saw into the trunk of Chris’ car chanted,

“We have paint! We have paint!” Others

repeatedly asked if they were going to have

paint. Clearly, they previously had no paint.

To put it in perspective, the school campus

is in serious disrepair and has the atmos-

phere of a detention center. There is an

onsite daycare for students with small chil-

dren of these students.

The Art Challenge

The teacher said some students attend

school just to have a meal, some students

disappear into the foster care system with-

out warning, and some work more than one

job to support families. She went on to say

there were so many stories she was unable

to tell because doing so would make her

cry. My friend had been wrong. The

Emerson art students were ecstatic to

receive our donations. The teacher, Barbara

Thomas, and a couple of students were

invited to the Inn’s closing banquet in

April. They listened to us describe what

had been accomplished and how much

money was raised for the class. When

Barbara Thomas was handed the micro-

phone to say a few words of thanks she

described the school and its situation as

one, if not the, least funded schools in the

district. She said the school (not just the art

class) was out of paper by March. Her

annual budget is $300. Anything else came

out of her pocket. That’s when we realized

what the Inn had done for the Emerson art

program. About that time, an Inn member

emptied the dinner rolls out of the basket

on their table and began passing it around.

Another $1,100 was collected. The follow-

ing week an Inn member quietly delivered

boxes of paper to Emerson Alternative

High School.

Do It and Write About It

Please take time to have someone in your

organization write about your outreach or

community programs. Send your story to

the Briefcase. Lawyers are out in the com-

munity and making a difference. Write

about it!

CHALLENGE from PAGE 7


Crowe & Dunlevy to Serve as

Anchor Tenant in SandRidge

Energy’s Braniff Building

The historic downtown Oklahoma Citybuilding is now fully leased. SandRidgeEnergy, Inc. and Crowe & Dunlevyannounced they have entered into a leaseagreement, and the Oklahoma-based lawfirm will serve as the anchor tenant of thenewly renovated, historic BraniffBuilding, 324 N. Robinson Ave., in down-town Oklahoma City.

Crowe & Dunlevy attorneys and legalstaff will occupy approximately 70,000square feet across nine floors, whichequates to 90 percent of the building’sClass A office space. The firm will alsosub-lease approximately 5,000 square feetfrom SandRidge in City Place for addi-tional support staff.

SandRidge Energy completed renova-tions to the Braniff Building in 2013 aspart of the development of the SandRidgeCommons.

The 10-story Braniff Building wasdesigned by architect Andrew SolomonLayton and built in 1923. The building iscurrently listed on the National Registerof Historic Places.

Crowe & Dunlevy Attorney

Elected Attorney General,

Law Firm Named General

Counsel of the Seminole

Nation of Oklahoma

The Seminole Nation of Oklahomarecently elected Crowe & Dunlevy direc-tor D. Michael McBride III attorney gen-eral and named Crowe & Dunlevy as thetribe’s general counsel. McBride and thefirm will serve for a one year term whichmay be extended for an additional twoyears.

The Seminole Nation of Oklahoma is afederally recognized tribal nation located

in south-central Oklahoma in Seminole

County. Of 18,800 enrolled tribal citizens,

13,533 live within the state of Oklahoma.

The Seminole General Council, chaired

by the principal chief and assistant chief,

serve as the elected governing body.

McBride chairs Crowe & Dunlevy’s

Indian Law & Gaming practice group and

is an experienced trial, appellate and busi-

ness lawyer with two decades of experi-

ence. He has represented more than 20

Indian tribal governments or their entities

and numerous corporations and individu-

als that conduct business with tribes.

McBride specializes in gaming regulatory

matters, “bet the tribe” litigation, tribal

government matters, economic develop-

ment and regulatory matters.

He formerly served as attorney general

to the Seminole Nation and the Sac and

Fox Nation. He is currently a director of

the Tulsa Indian Club, Inc., a trustee for

the Pawnee Nation College and served for

nearly a decade as a Justice for the

Pawnee Nation. McBride has been listed

in Chambers USA and was named a 2013

“Star Individual,” the highest individual

ranking awarded by Chambers. He has

also been recognized as an Oklahoma

Super Lawyer for Indian law, gaming,

political law and business litigation, and

by Best Lawyers in America for Native

American and gaming law.

He received his Juris Doctor with hon-

ors from the University of Oklahoma and

his Bachelor of Arts degree in political

science from Trinity University in San

Antonio, Texas.

Boaz & Associates, PC

Relocates

Stephen Boaz announces the relocation

of the offices of Boaz & Associates, PC,

to 2516 NW Expressway, Oklahoma City,

OK 73112, effective June 1, 2014. The

firm can be reached at 405.946.3232 or at

[email protected].

Certified Paralegal Keeli

Gardner Joins McAfee & Taft

McAfee & Taft has announced the addi-tion of Keeli Gardner as a certified para-legal. As a member of the firm’sLitigation Group, she provides compre-hensive support to trial lawyers engagedin a broad range of business-related litiga-tion at the state, federal and appellate lev-els, as well as in commercial arbitration.

Gardner earned a bachelor’s degree inpolitical science from the University ofCentral Oklahoma and later went on topursue paralegal studies at Rose StateUniversity. She earned her certified para-legal designation from the NationalAssociation of Legal Assistants and con-tinues to be an active member of theorganization.

Crowe & Dunlevy Names

New Executive Committee

Members

Crowe & Dunlevy has named attorneysJohn J. Griffin, Jr. and Christopher B.

Woods to the 2014 Executive Committee.The five-member committee is responsi-ble for overseeing the firm’s activities andconducting long-range planning to meetthe needs of the firm, among other respon-sibilities.

Griffin is chair of the firm’s Energy &Natural Resources practice group and haspracticed in the areas of energy and natu-ral resources litigation for more than 30years. He has extensive experience repre-senting major oil companies and inde-pendent oil and gas producers in multi-state class action litigation, complex com-mercial litigation and environmental liti-gation. He has been selected for inclusionin The Best Lawyers in America in thefield of Natural Resources Law, Oil andGas Law and Water Law and has been list-ed since 2006 in the Oklahoma SuperLawyers magazine.

Woods serves as a director in the firm’s

Tulsa office. He is a member of the

Banking & Financial Institutions and

Energy & Natural Resources practice

groups, covering a broad range of busi-

ness litigation matters with an emphasis

on litigation involving energy companies,

financial institutions and insurance com-

panies. He also has experience in banking,

commercial transactions and electronic

commerce. During his career, he has rep-

resented leading corporations in a variety

of industries in both state and federal

courts. He has been listed in The BestLawyers in America and Oklahoma SuperLawyers.

Continuing as committee members are

attorneys John M. Thompson and Timila

S. Rother. Gordon also serves on the

committee as president of the firm.

Formation of Mattingly &

Roselius, PLLC Announced

Attorneys Jack Mattingly Sr., Jack

Mattingly Jr., Jason Roselius, Brian

Cramer & Tanner Hicks are pleased to

announce the formation of MATTINGLY

& ROSELIUS, PLLC.

The concentration of the Firm will be in

Class & Mass Actions, Oil & Gas

Litigation, General Civil Litigation,

Wrongful Death, Antitrust, Securities,

Corporate Litigation, Trucking Accidents,

Insurance Bad Faith, Oilfield Injury.

Office locations are as follows:

• 210 N. Oklahoma, Guthrie, OK 73044

– Ph. (405) 603-2222 – Fax (405) 603-

2250

• 13182 N. MacArthur Blvd., Oklahoma

City, OK 73142 – Ph. (405) 603-2222 –

Fax (405) 603-2250

• 215 E. Oak Avenue, Seminole, OK

74868 – Ph. (405) 382-3333 – Fax (405)

382-6303

Bar Observer

Old NewsExcerpts from OCBA News:

April, 1973, Part 1

Law Day Plans Set

By C. Stephens

HELP YOUR COURTS – ASSURE JUS-

TICE has been set as the theme for the

annual Oklahoma County Bar Association –

Oklahoma City University Law Day

Banquet scheduled for Tuesday, May 1. The

major speaker for the event will be former

Associate Justice of the Supreme Court of

the United States, Tom C. Clark. Clark was

born in Dallas, Texas, on September 23,

1899. He attended public schools there and

later received his AB Degree in 1921 and

his LLB in 1922 at the University of Texas.

He has received Honorary Degrees from 26

universities throughout the country.

After admission to the Texas Bar in 1922,

Clark served the law profession in a wide

variety of positions, from being Civil

District Attorney for Dallas County in 1933

to Coordinator of Alien Enemy Patrol of the

Western Defense Command and Chief of

the Civilian Staff for Japanese War

Relocation. He was named Attorney

General by President Truman in 1945.

As Attorney General, he created a com-

mittee on juvenile delinquency that spon-

sored the Freedom Train, which carried the

original documents for exhibition across the

country and was a co-sponsor of the pro-

gram, “I Speak For Democracy,” in the

nation’s high schools.

Clark was nominated as Associate Justice

by President Truman on August 2, 1945,

and took office as successor to Mr. Justice

Murphy on October 3, 1949. He retired on

June 12, 1967.

Clark has received numerous awards,

including the American Bar Association

Gold Medal Award in 1962.

The evening event will begin with a 6:30

cocktail hour in the Silver Palm Room at

Val Gene’s in Penn Square and will be fol-

lowed by the banquet at 7:30. Plans have

been made for a dance following the ban-

quet.

Tickets for the event will be available

through Bob Gilliland, the OCBA office, or

the Oklahoma City University Law School.

Tickets will be $6.75 each which will cover

cost of dinner and set-ups.

Quotes of the

MONTH

Discussion about Briefcase articles, and Rex Travis was asked if

another OCBA member had passed away so he could write an

obituary, he replied:

“I’m waiting, I’m waiting!”

“My wife had a betterlawyer.”

~ Unknown panhandler holding

a sign at an interstate exit


By Roscoe X. Pound

Dear Roscoe: Last month you spokeabout a statute putting “the kibosh” on acommon law concept. What exactly is“the kibosh?” B.N. Edmond, OK.

Dear B.N.: One of the great mysteriesof the English language. I’ve used theterm for better than forty years now, andI’m still not sure. It dates back at least tothe 1830s in Jolly Olde England. Whereit came from is anybody’s guess, but I dohave my favorite theories. There’s somespeculation that it might be Yiddish but Itend to doubt that. England only passedits Catholic Emancipation laws in 1829.Similar express laws against anti-Semitism were only just wending theirway through Parliament. True, in 1837Disraeli won a seat in that body, butDisraeli didn’t mind such impediments astaking a Christian oath of office thatother Jews found too off-putting. Eventen years later, Parliament was still pass-ing laws allowing individual non-Christians to take a different oath ofoffice in the face of vocal urgings of theirconstituencies. What I’m saying is: I tendto doubt a Yiddish word would havecaught on so quickly in the poorer neigh-borhoods of England given the tenor ofthe times.

A more likely candidate is the Irishphrase caip bhais, a reference to theblack cap that a judge would put on priorto pronouncing a death sentence. Giventhe phrase appears to have been used in

Irish theatre and pubs, this theory holdssome water. It also comports with theusage of the term which indicates thatwhich ends something once and for all.

Another theory holds that it came froma Turkish or Arabic word kerbash or qer-bash, a type of whip. While this whipwould have been known to someone trav-eling abroad either for civilian or mili-tary purposes, it is doubtful that the termwould have trickled down to the poorerworking class types, from whom the ear-liest usages seem to hale.

My own personal favorite theory is thatit is an onamatopoeiac word made up ofthe word “bash” couples with the prefix“ker” or “ka” as in “ka-pow” or “ker-plunk”. This feeds my mind’s eye animage kind of like “Whack-A-Mole”where the mole decisively stays down. Inlike manner, I also prefer the word “ren-der” rather than “extradite” because itinspires a scene where the miscreant isturned over piece by piece. This usuallyelicits a suggestion that I seek counsel-ing.

Perhaps one day some linguistic sleuthwill discover something which puts thekibosh on all this speculation. Until then,your guess is as good as mine.

Dear Roscoe: My clients and I satdown together after trial and identified32 errors committed by the court.

My partner says it would be crazy toassert them all. I think I’d be risking aBar complaint or malpractice claim if I

didn’t. What would you do? K.M. OKCDear K.M.: Let me first tell you what I

wouldn’t do. A) I would not sit down inthe direct aftermath of a trial (if I’mreading this correctly) to chart the appel-late course. Nerves are too raw; emo-tions too high; and critical thinking toolikely to be clouded. B) When I did sitdown to diagnose appealability, I woulddo it alone (or perhaps with my law part-ner – sounds like you’ve got a good one).I certainly would not include my clientbecause there is both an art and a sci-ence to selecting issues for appeal, a skillset which most laymen, and even manybrilliant trial lawyers, lack.

In the course of my extensive thoughautodidactic legal training, when theissue turns to appellate matters my firstport of call is one of the many excellentbooks and articles on appellate advocacyor legal reasoning by Third Circuit JudgeRuggero Aldisert. Judge Aldisertobserves that when he reads a brief thatcontains ten or twelve propositions oferror, he immediately engages a rebut-table position that none of them havemerit. Even if when that position is over-come, the effectiveness of the advocacytakes a real blow. SCOTUS agrees.“Experienced advocates since timebeyond memory have emphasized theimportance of winnowing out weakerarguments on appeal and focusing on onecentral issue, if possible, or at most on afew key issues.” Jones v. Barnes, 463P.3d 455, 451-52 (1982).

You do your client a disservice whenyou submit “kitchen sink” type issues tothe appellate courts. Actually, you’re notdoing them any service by doing so in thetrial court either. Can discarded weakerarguments become the basis for com-plaint by a disgruntled client? Sure. Socan any number of other strategic choic-es. If you allow those kinds of “tin foilhat” phobias dog you throughout yourlegal career, I wonder how long thatcareer lasts before the ulcers, insomnia,high blood pressure, and related mal-adies bring that career to a halt. Take adeep breath and go with what you know:Limit those appellate issues and go withthe strong ones.

I’m going to revisit this issue nextmonth. Right now I’ve got some othernews to share.

I went to Crenshaw’s. Daddy Mike let

me in. The place looked much better than

last time. Crenshaw, not so much. He

aged appreciably. He sat in an easy chair.

Junior and Sylvia sat on the couch, the

ankles of their inner legs crossing each

other, the way kids think they’ve con-

cealed their PDAs but most adults know

better. Daddy Mike perched on the coffee

table like a curmudgeonly gargoyle.

“I wanted to see you because I want to

call this adventure to a halt.” Crenshaw

said. “People have been bullied, attacked

and now killed. I’ve almost lost Sylvia.

I’ve no right to put anyone at risk for a

movie.”

“Course it was our side that did the

killing,” Daddy Mike offered.

I asked Sylvia: “Do we know anything

more about the ones who attacked you?”

“Detective Seery came by yesterday,”

she said softly, “their prints matched mil-

itary records for a Thomas Anderson and

an Everett Hoffmann. He showed me pic-

tures. They were the same men. I don’t

know them. Neither did Mr. Crenshaw.”

“And I don’t want to know any more

about them, or about anyone like them,”

Crenshaw said.

“What about Claude Blum. Has he sur-

faced?”

Crenshaw shook his head. “No. I’ve

got to assume the worst. We just need to

drop all this. I’m calling it off.”

“On the other hand, sir, we don’t work

for you,” Junior said.

“Then I’m asking,” Crenshaw replied,

a quiver in his voice.

I understood Junior. Daddy Mike elim-

inated his ability to rain hell down on the

guys that molested Sylvia. He wanted his

pound of flesh. He grasped what I believe

everyone else in the room did. Anderson

and Hoffmann worked for someone, and

that someone still ran loose.

“I’m wondering if we’ve already

crossed the line of no return,” I said.

“And what about Blum or whatever he

calls himself. We need to find out what’s

happened to him.”

Crenshaw shook his head. “The police

can look for him. I’ll give them the infor-

mation I have.”

“Or you could give it to me,” I replied.

“Please Roscoe, please,” he said in a

voice that sounded far off and fatigued.

I no sooner walked into my office than

my cellphone buzzed. Caller ID showed

my wife’s cell, but I heard the panicked

voice of my mom.

“Roscoe, get home quick. You’ll need

your gun.”

One of my people, Jeff, pulled up in

front of the office. “C’mon,” I said. Jeff

did two tours in Nam both as sniper and

counter-sniper. Other than Junior, and

perhaps Daddy Mike, I could think of no

one better to back me up in a hairy situa-

tion.

Mom called again. “Roscoe, it’s in the

mailbox. We’re going to Meadowlands.

Bring the carcass.” I heard a staccato of

car horns and the gunning of an engine.

The call ended.

I took in the scene in front of my

house. Mail lay in a windblown pile. The

front door stood open. Jeff jumped the

curb and stopped in the yard. He pulled

his gun. I’d gotten mine out in the car.

We did a quick search of the house.

Clear. The freezer door was open. We

went out front. Neighbors began to gath-

er.

At the mailbox, Jeff stopped and

sniffed. “Smell that?” he asked. I nodded.

A strong, musty odor. “Get behind the

mailbox and open the latch with one of

them magazines,” he said. “Then stand

clear.”

I did as he said, caught a flash of

movement, heard the report of Jeff’s gun.

A copperhead lay crumpled on the

ground.

“Holy Samuel L. Jackson, Batman,” he

said. He shot it again.

I felt sick. My first thought was that it

tied into Crenshaw. My second was that I

need to put the kibosh on these guys per-

sonally.

Stump Roscoe

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By Warren Jones

Adam (all these names are fictional) is

active, and he eats healthfully. Bob is

active, but does not eat healthfully. Carl is

inactive, but he eats

healthfully. David is

inactive, and he does not

eat healthfully. So what?

The objectives in a

recent study published in

Mayo Clinic Proceedingswere to 1) examine the

relationship between

physical activity and

dietary behavior, and 2) to

examine the potential

combined effect of physi-

cal activity and dietary

behavior on biological

markers, e.g., cholesterol,

among others, and on

health markers, e.g., waist circumference,

among others.

The Healthy Eating Index, developed by

the Department of Agriculture, is an indi-

cator of dietary quality. It consists of these

components: total fruit; whole fruit; total

vegetable; dark green vegetables, orange

vegetables, and legumes; total grain;

whole-grain; milk; meats and beans; oil;

saturated fats; sodium; and calories from

solid fats, alcoholic beverages, and added

sugars. As you might imagine, a high score

for the healthy eating index would necessi-

tate low scores (low consumption) for the

saturated fats, sodium, and calories from

solid fats, alcoholic beverages, and added

sugars. For purposes of this study, partici-

pants in the top 40 percent of healthy eat-

ing index scores were categorized as con-

suming a healthy diet. A side note: com-

pared to how most

Americans eat, being in

the top 40 percent is anal-

ogous to being “the skin-

niest guy in fat camp.”

Participants were

deemed “active” if they

met the current physical

activity guidelines. Those,

you recall, necessitate 150

minutes per week of mod-

erate exercise, or 75 min-

utes per week of vigorous.

Relative to the first

objective of the study, the

researchers found that

participants were 32 per-

cent more likely to con-

sume a healthy diet if they also met physi-

cal activity guidelines. The researchers did

not pin down the reason for this relation-

ship. It may be that those who are active

want to enhance the benefits of their exer-

cise, and those who eat healthfully want to

enhance the benefits of their quality diet.

Relative to the second objective of the

study, the researchers found that approxi-

mately 16 percent of the sample were clas-

sified as consuming a healthy diet AND

active (I suspect that percentage would

have been much, much lower if the stan-

dard for healthy eating were higher than

merely the top 40 percent); 28 percent of

the sample as consuming an unhealthy

diet, but were active; 21 percent as con-

suming a healthy diet, but were inactive;

and 34 percent as consuming an unhealthy

diet AND were inactive.

As you might expect, those who con-

sumed a healthy diet and were active had

the most favorable levels of biological

markers and health markers compared

with the other three groups.

Compared with those who consumed a

healthy diet and were active (the referent

group) participants who consumed an

unhealthy diet and were inactive were

almost 4 times more likely to be obese,

more than three times more likely to have

a high waist circumference, 62 percent

more likely to be hypertensive, 43 percent

more likely to have an elevated marker of

heart inflammation, 89 percent more likely

to have an elevated homocysteine level

(typically elevated in people who consume

large amounts of animal fats, and low

amounts of fruits and vegetables), and

more than twice as likely to have the meta-

bolic syndrome. You may recall from some

of my earlier articles that one has the

“metabolic syndrome” when one has an

elevated waist circumference (40 inches or

greater for men, and 34.6 inches or larger

for women) and any two of the following

four: elevated triglycerides, elevated blood

pressure, elevated blood sugar, and a

reduced level of HDL cholesterol.

The outcome for the two middle groups,

those who were active but who consumed

poorly, or those who consumed healthfully

but were inactive, were not quite as dread-

ful as the numbers shown when the best

and the worst groups were compared.

Their numbers, though, were clearly worse

than the best group. Interestingly, between

the two middle groups, those who were

inactive but consumed healthfully pro-

duced worse numbers for the biological

markers and the health markers than the

group that didn’t consume quite so health-

fully but were nonetheless active. It

appears that physical activity may weigh

more heavily, in a good way, than healthy

eating. Both, obviously, are important.

This study strongly suggests that the

combination of healthy eating habits and

physical activity may result in the best out-

come in regard to many parameters associ-

ated with coronary artery disease risk.

So, going back to our list of names in the

first paragraph, try to be like Adam or, at

least, Bob. Worst case, be a Carl. By no

means be a David.

Warren E. Jones, JD, HFS, CSCS, CEQ, isan American College of Sports Medicine(ACSM) Health Fitness Specialist, a NationalStrength and Conditioning AssociationCertified Strength and Conditioning Specialist,and a holder of an ACSM Certificate ofEnhanced Qualification. His clients range fromcompetitive athletes to the morbidly obese. Hecan be reached at [email protected] or at405-812-7612.

Warren Jones

Are You Adam, or Are You David?Work Life Balance

Civility in BriefingBy Rex Travis

The 6th Circuit Court of Appeals has

given us all a lesson in the importance of

civility in brief-writing. In Bennett v. StateFarm Mut. Auto. Ins. Co., 731 F3d 584

(2013) Judge Kethledge wrote:

There are good reasons not to call

an opponent’s argument “ridiculous,”

which is what State Farm calls

Barbara Bennett’s principal argument

here. The reasons include civility; the

near-certainty that overstatement will

only push the reader away (especially

when, as here, the hyperbole begins

on page one of the brief); and that,

even where the record supports an

extreme modifier, “the better practice

is usually to lay out the facts and

let the court reach its

own conclu-

sions.”... But here the biggest reason

is more simple: the argument that

State Farm derides as ridiculous is

instead correct. (Citation omitted.)

The facts of the case were that Barbara

Bennett was walking her dog when she

was hit by a Ford Fusion driven by Robert

Pastel and insured by State Farm. The

impact threw her onto the hood of Pastel’s

car from which she was dislodged and

“sustained further injury.” In some imagi-

native lawyering, her lawyer contended

that her position on the hood of the State

Farm-insured car made her an “occupant”

of the car so that she was entitled the cov-

erage (presumably medical payments and

uninsured/underinsured motorist cover-

age) of that policy.

The U.S. District Court was

singularly unimpressed with

Ms. Bennett’s lawyer’s

argument and granted

State Farm summary

judgment. So far so good,

for State Farm’s lawyer. He has

his case won. But, as lawyers will

sometimes do, he pressed a little, call-

ing the argument “ridiculous.”

Now the argument seems to be one

which could go either way, although

with probably the preponderance

going with State Farm’s argument that

State Farm obviously did not intend to

insure under its policy people whom its

insured happened to hit and throw up onto

some part of the car.

Indeed, the Circuit Court of Appeals

granted them that: “Here, as a matter of

ordinary English usage, one might be

skeptical that Bennett was an ‘occupant’ of

the Fusion during the time she was on its

hood. Occupants are normally inside vehi-

cles, not on them.”

On the other hand, State Farm’s policy

defined “occupying” as “in, on, entering

into or alighting from.” Under that defini-

tion, the Court held that, Ms. Bennett was

clearly an “insured” as an “occupant” of

the vehicle.

Did the Court’s obvious offense at the

intemperate language chosen by State

Farm’s lawyer matter? I suspect we’ll

never know. But wouldn’t it be a good idea

to turn down the rhetoric and exploit the

probable advantage of your position if you

were State Farm’s lawyer. The key might

be to approach the matter from the position

Mark Twain called “The calm confidence

of a Christian with four aces.”

Characterizing your opponent’s position as

“ridiculous” does not help in getting the

Court to rule that way.


primary negligence, as pleaded by plain-

tiff, was that of the offending motorist. In

order to attribute the proximate cause to

defendant it should appear from the

pleadings that defendant owed such a

duty to plaintiff that he should have

anticipated or foreseen that the motorist

or someone else would turn suddenly

from the street into defendant’s parking

area to avoid colliding with another car

on the street and thus place his patrons in

peril.

* * *

The alleged inadequate lighting and

markings can only be determined in legal

effect as a condition and not the cause of

accident. Certainly defendant was not an

insurer even though defendant did owe a

duty to keep the premises in a reasonably

safe condition; nor could the negligence

of the offending motorist be imputed to

defendant.

June 20, 1989

Twenty-Five Years Ago

[Excerpted from State ex rel. Roberts v.McDonald, 1989 OK CIV APP 35, 787

P.2d 466.]

Appellee brought its action seeking to

enjoin Appellants from the continued

operation of the Calvary Boys Ranch

because of their failure to obtain a license

from the Department of Human Services,

pursuant to 10 O.S. 1981 § 405 (a).

Appellants admitted their operation of

the Calvary Boys Ranch without the

required state license, and further stated

that they refused to obtain the required

license. Appellants allege that the licens-

ing requirement was unconstitutional as

applied to churches, and that the Calvary

Boys Ranch was a part of, and operated

by the Calvary Baptist Church. Appellee

moved for summary judgment based on

Appellant McDonald’s deliberate opera-

tion of Calvary Boys Ranch without the

required state license, and that his admis-

sion constituted a prima facie violation of

state law, thereby entitling Appellee to

the requested injunctive relief. The trial

court entered its memorandum decision

which made numerous findings of fact

and conclusions of law and found that

there were no material issues of fact

between Appellants and Appellee, and

that Appellee was entitled to judgment as

a matter of law.

Appellants contend the trial court erred

in finding that as a matter of law, the

required state license was not a violation

of the free exercise clause contained in

the First Amendment to the Constitution

of the United States. Appellants allege

that this is a fact question, not suitable

for summary judgment. Title 10 O.S.

1981 § 405 (a) provides in part:

“No child care facility may be

operated or maintained after June 30,

1964, unless licensed by the

Department; ... No new child care

facility may be established without

the prior approval of the Department

which shall be granted only after the

Department is satisfied that such

facility will meet known needs for

the services proposed to be provided

and that the facility will meet mini-

mum standards for a license to oper-

ate.”

Title 10 O.S. 1981 § 404 (a) provides

in part:

“These standards shall include

requirements for a constructive pro-

gram and services to meet the needs

of each child and family; staff of

good moral character and ability for

child care; adequate and safe house-

keeping, sanitation, and equipment;

good health care; full educational

and religious opportunities; good

community relationships; essential

records and administrative methods;

and sufficient funds for sound opera-

tion.”

Appellants’ admissions of their failure

to obtain the required license, and of their

intent not to obtain the required license,

are a clear violation of the Oklahoma

Statutes. Therefore, no material issue of

fact exists between the parties as to the

Appellants’ violation of the law. The

question of whether the state statute vio-

lates the First Amendment’s free exercise

clause is a question of law properly

decided by summary judgment.

The First Amendment’s free exercise

clause provides that congress shall make

no law “prohibiting the free exercise” of

religion. Appellee contends that licensing

of child care facilities does not violate

Appellants’ right to free exercise of reli-

gion. We agree. The free exercise clause

provides an unqualified prohibition

against government interference with

religious beliefs. However, governmental

regulation may lawfully impose an inci-

dental burden on otherwise protected

religious conduct. Appellants contend

their failure to comply with the licensing

requirement is based on their religious

beliefs. A balancing test is employed by

the courts to determine when government

may regulate certain conduct prompted

by religious beliefs or principles.

The trial court found that Appellants’

exercise of their religious beliefs is sub-

ject to the state regulation requiring

licensing of the Calvary Boys Ranch. The

court further found that the state had not

only the right but the duty to protect its

minor citizens. Further, that the state

must be particularly concerned with the

welfare of the children in child care facil-

ities where young children are complete-

ly controlled by and entirely dependent

upon operators and employees for all of

their needs. We agree with the trial court

that the Appellee does have a compelling

interest in protecting the children in child

care facilities such as Calvary Boys

Ranch. Further, that this compelling

interest outweighs the burden imposed

upon Appellants by the licensing require-

ments.

The free exercise clause simply cannot

be understood to require the state to con-

duct its own internal affairs in ways that

comport with the religious beliefs of par-

ticular citizens. Appellants are requesting

that the state exempt its licensing

requirements for them, because of their

religious beliefs. The trial court correctly

refused to do so. Licensing and regula-

tion of child care facilities are the least

restrictive of the alternatives that the

state could provide for the protection of

children.


in finding as a matter of law, that the

licensing requirement did not violate the

establishment clause contained in the

First Amendment to the Constitution of

the United States. Again, Appellants

argue that this question is a fact question,

not suitable for summary judgment. The

First Amendment’s establishment clause

provides that congress shall make no law

“respecting an establishment of reli-

gion...”

The United States Supreme Court has

enunciated a three-pronged test to deter-

mine whether governmental action vio-

lates the establishment clause; (1) the

statute must have a secular legislative

purpose; (2) the state’s principle or pri-

mary effect must be one that neither

advances or inhibits religion; and (3) the

statute must not foster excessive govern-

mental entanglement with religion. The

purpose of the establishment clause is to

protect against state sponsorship, finan-

cial support, and active involvement in

religious activity. This three-pronged test

has been adopted by our Supreme Court

to determine whether required adherence

to state regulations violates the establish-

ment clause. Under the three part test the

Appellee's licensing requirements must

have reflected a clearly secular purpose;

have had a primary effect that neither

advanced nor inhibited religion; and have

avoided excessive government entangle-

ment with religion. Tulsa Area Hospital

Council, supra.

The application of the three-part test to

Oklahoma’s licensing requirements does

not result in any establishment clause

infringements. The statutes on their face

clearly reflect a secular purpose, to pro-

tect minor children in child care institu-

tions and homes, by requiring compli-

ance with minimal standards for licens-

ing. The statute's primary purpose neither

advances nor inhibits religion or reli-

gious practices. The licensing require-

ments are regulations of child care insti-

tutions for the State of Oklahoma, with

the primary effect of establishing uni-

form minimum child care standards. The

statutes have avoided excessive govern-

ment entanglement with religion. We

agree with the trial court's finding that

simply requiring a license to operate a

child care facility does not constitute

excessive entanglement of the govern-

ment into the religious practices of the

Appellants. We further agree with the

trial court’s finding that the licensing

requirements are not an unconstitutional

entanglement, but the mere performance

of a compelling state duty in protecting

its minor citizens, who are in a particular-

ly vulnerable situation without the pro-

tection of a parent.


in determining as a matter of law, that the

requirement of licensure does not violate

other fundamental rights of Appellants.

Appellants argue that the question of vio-

lation of their freedom of speech,

parental rights, freedom of association,

and equal protection, are all questions of

fact which cannot be determined by sum-

mary judgment. This is basically the

same argument as presented by

Appellants in their propositions of error

discussed above. The trial court found as

a matter of law that the requirement of

licensure did not violate Appellants’ free-

dom of association, freedom of speech,

due process, nor equal protection of the

law; nor did it impinge upon Appellants’

fundamental right to raise their children

according to the dictates of their faith.

We agree with the trial court.

Based on the record before it, the trial

court granted summary judgment to

Appellees and enjoined Appellants from

operation of the Calvary Boys Ranch

without a state license. The trial court

found there were no material issues of

fact between the parties, and that as a

matter of law, the licensing requirements

did not violate First Amendment

Constitutional rights of Appellants.

Summary judgment was formulated to

allow prompt disposition of cases in

which material facts are not in dispute

and in which a court could decide the

case as a matter of law. (Citations omit-

ted)

OLIO from PAGE 4


By Bill Gorden

1913: The Eve of WarPaul Ham, Endeavor Press Ltd., 2013, Kindle, $2.99.

Enjoyment of this work will largely be determined by

the reason you are reading it. The format, length, and

treatment are very good for the reader seeking some

approximation of the run-up to World War One, and how

such a disaster happened. If you wish to imbue your sum-

mer reading with some substance, but not be over-

whelmed, this may do the trick. If depth is required, the

larger and more meaty works by Barbara Tuchman, TheProud Tower, and The Guns of August, or

Solzhenitsyn’s August, 1914 might be your

fare. Ham obliquely attacks some conclusions

in Tuchman’s works, though not by name.

Given the depth of Tuchman’s work, this nega-

tivity does not measure up. The civilized world

did tumble through mistakes into the chaos of

World War One. Setting the tone of the era is one

thing, searching for causes is another. To get the

basics and find the tone of that lost world, this is

a competent work.

The Pope and MussoliniDavid I. Kertzer, Random House, 2014, Hardback,

549 pages, $32.00

Evil in history often makes an introductory appearance

as farce, before donning the cape of anguish as it settles

in to do real harm. The Fascist farce of Mussolini, comic

for a decade, gave way to the tragedy of Nazism and

World War Two and the Holocaust. Mussolini was a trial

run. He looked harmless enough. His more sinister broth-

er-in-arms was neither. Pope Pius XI, a relatively tough

character, played

ball with Mussolini,

but the tables were

not far from even.

Italy only became

a nation shortly

before this period,

and few there

knew exactly

what to expect.

Mussolini gave

an aura of

respect and

control, and

many allowed

him to have

his run, some

expecting it

to be short

and mean-

ingless. Pius

sought to

protect his

C h u r c h

rather than stand for various

sets of values, probably thinking the dictator’s run

would be short. He struck a deal with the dictator, a

Concordat, which effectively did shelter most of the

Church as a practical entity. His Secretary of State in that

process was Eugenio Pacelli, who would be Pius XII.

When the deal began to go sour, Pius XI wanted out, but

his health cut short his intentions. Pacelli apparently did

not get the idea that contracting with dictators was dan-

gerous. David Cornwell’s Hitler’s Pope discusses

Pacelli’s Concordat with the German dictator, and the

gruesome events which followed. Despite that work’s

inflammatory title, the difference between these stories is

essentially the difference between farce and tragedy. One

of the basic challenges of evil is that those who have and

use morals find it hard to believe others may act as

wickedly as they do. Not every martinet in a uniform is

laughable.

Raylan: A NovelElmore Leonard, William Morrow 2012, Paper,

263 pages, $14.99

Strictly summer reading here. In the tradition of Charles

Willeford, (Miami Blues), and Leonard Mosely, this is

just street tough hard talking Federal Marshall stuff. It is

set in Kentucky, coal mining country, which is not usual-

ly a scene of street talking, however. The language is not

as rough as it might be, just around the edges. Sometimes

the dialects interfere with a quick understanding of the

mysteries being investigated, but it is best just to roll with

that. There are actually three stories here, and given that

this has now become a TV series, (Justified), that is

explainable. It does breach some continuity, however. Not

safe for kids, but for accompaniment to the beach, enter-

taining and no strain on the brain.

Book Notes


Commercial Lawyers Dinner - CLE · Members receive 1 to 1.5 hours of CLE for attending in addition to a meal and ... International Criminal Law Committee, Vice Chair. Lance E. Leffel

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