Court upholds decision in Southwestern Bell Mobile Systems case

Journal Record, The (Oklahoma City), Oct 23, 1997

For the week ending Oct. 21, 1997 State of Oklahoma, ex rel. Oklahoma Bar Association vs. Joseph Weeks, State of Oklahoma, ex rel. Oklahoma Bar Association vs. Mark Nation, No. SCBD 4123. A bar disciplinary proceeding in which respondents allegedly violated Rules of Professional Conduct providing for reasonable lawyers fees.

Respondents were retained to represent client in a civil rights action. Attorneys retained a 40 percent contingency fee and then obtained a court awarded fee in addition to the contingent amount. The resulting fee for attorneys totaled 63 percent of client's award. Though professional responsibility tribunal recommended neither respondent be disciplined, this court found cause for public reprimand of Weeks, who had a "primary role in drafting the contract (with the client) and dictating the course of the underlying litigation." Oklahoma Court of Civil Appeals For the week ending Oct. 21, 1997 Halliburton Oil Producing Co. vs. Rosalie Grothaus and Sally K. Taylor and U.S. ex rel. Internal Revenue Service, National Bank and Trust Co. of Ada, The Vogue Enterprises, Inc., Bailey Banks and Biddle and the Commissioners of the Land Office of the State of Oklahoma, and Kerr-McGee, No. 87-304. Restoration of Indian lands to restricted status rendered previously filed judgment lien unenforceable. After recording of judgment but before issuance of garnishment, lands were restored to restricted status upon judgment-debtors' proof they possessed requisite quantum of Indian blood. Because garnishments in question were issued after restoration of lands to restricted status, judgment-debtors were entitled to full exemption of royalties from garnishment. In the Matter of the Adoption of J.L. and E.L., John W. Lampson and Sylvia Ann Lampson vs. John D. Lampson and Denise A. Lampson, No. 88,268. Natural parents could not appeal adoption decree granted to grandparents because they were not "aggrieved parties" within the meaning of Oklahoma statute. Here, the adoption did not affect the substantial rights of the natural parents whose parental rights were terminated in 1988. Also, natural parents' argument that order terminating their rights was void was futile. No jurisdictional infirmities were apparent on the face of the termination order. Finally, parents were not entitled to notice of adoption hearing because their rights had been previously terminated. Roland Miville vs. Special Indemnity Fund and the Workers Compensation Court, No. 89,345. Trial court was correct in determining that claimant was not a physically impaired person for purposes of Special Indemnity Fund coverage because he had not suffered a pre-existing disability previously adjudged and determined by the Workers Compensation Court. Statutory definition of physically impaired person had changed at time of trial court's determination of claimant's subsequent injury to define physically impaired person as one with previous disability adjudicated at the time of the subsequent injury. However, law in effect at time of subsequent injury, not at time of trial, is used to fix liability of Fund. As such, previous definition of physically impaired person is correct standard. Special Indemnity Fund vs. Albert Joe Jones and the Workers Compensation Court, No. 89,557. Three judge panel of the Workers Compensation Court erred in increasing trial court's order from 66 weeks of compensation to 105 weeks. Under Oklahoma statute, Fund was liable only for the 15 percent material increase resulting from the combination of injuries and disabilities. Pursuant to Oklahoma statute, claimant was entitled to 36 weeks' compensation for the first 9 percent of disability and 30 weeks' compensation for the remaining six percent. Oklahoma Court of Criminal Appeals For the week ending Oct. 21, 1997 Michael Edward Hooper vs. State of Oklahoma, No. F-95-835. Hooper was convicted of three counts of first degree murder and sentenced to death for killing ex-girlfriend and her two children. He raised 16 propositions of error. Court found neither reversal nor modification required under law and evidence. Jackie Lee Willingham vs. State of Oklahoma, No. F-95-995. Willingham, traveling salesman, convicted of first degree murder for beating and killing Lawton business woman. Sixteen propositions of error without merit. Judgment and sentence affirmed. Willard Leslie Reupert vs. State of Oklahoma, No. F-96-1337. Reupert convicted of one count of first degree rape, two counts of rape by instrumentation and one count forcible oral sodomy. Reupert sentenced to 30 years for first degree rape, 50 years for rape by instrumentation and 20 years for forcible oral sodomy. Second proposition of error raised was one of first impression involving state's issuance of subpoenas to all defense witnesses under state discovery statute 22 O.S. 1991 section 258(2nd). No notice to defendant is required under statute. However, state violated Oklahoma Code of Criminal Procedure by issuing subpoenas under statute as it authorizes district attorney to conduct examinations and file informations in conjunction with preliminary hearing proceedings, and does not apply after defendant is bound over. However, since Reupert did not show harm from prosecution's avoidance of procedures, relief denied. Judgment affirmed. Marcus L. Cargle vs. State of Oklahoma, No. PC-96-1584. Opinion denying application for post-conviction relief, evidentiary hearing and discovery. Cargle raised six propositions of error. Relief denied. Judgment affirmed. State of Oklahoma vs. Franklin Lewis Murray, No. S-97-270. Accelerated docket order which establishes the proper procedure for the state to follow in a case in which a person under 18, who has previously been certified, is charged as an adult for a non- enumerated crime. Oklahoma Attorney General For the week ending Oct. 21, 1997 Requested by Brenda Reneau, Commissioner of Labor, No. 97-69. Article VI, section 1(A) of the Oklahoma Constitution establishes that the commissioner of labor is an executive branch officer and therefore may not receive an increase in pay during his/her term of office pursuant to Article VI, section 34 and Article XXIII, section 10 of the Oklahoma Constitution. When the salary of the commissioner of labor, an executive officer pursuant to Article VI, section 1(A) of the Oklahoma Constitution, is that received by a special judge and the salary of special judges is increased pursuant to law enacted after the term of the commissioner commenced, the commissioner is precluded by Article VI, section 34 and Article XXIII, section 10 of the Oklahoma Constitution from receiving the increase in pay. Requested by Jerry Regier, Executive Director, Office of Juvenile Affairs, No. 97-79. When a state employee is discharged because of a positive random drug testing result, the state must disclose to a potential employer doing an employment check on the employee that the employee was terminated from state employment. Records of an investigation supporting a disciplinary action against the employee may be kept confidential. Records of drug and alcohol test results and related information must be maintained separately from other personnel records and must be kept confidential. In the event drug or alcohol test results are found in otherwise disclosable personnel records, such information must be redacted. Requested by Gary C. Bastin, State Representative, District 94, No. 97-84. When the academic semester of an educational institution within the Oklahoma State System of Higher Education begins after the effective date of a statute that increases the limits placed upon tuition rates that the State Regents for Higher Education may establish, the State Regents, acting under the powers vested in it to establish general enrollment fees under the provisions of Article XIII-A, section 2 of the Oklahoma Constitution, 70 O.S. 1991, section 3206(e) and by 70 O.S. Supp. 1996, sections 3218.8, 3218.8a, and 3218.9, may establish -- prior to the start of the semester -- tuition rates that consist of two blended elements: 1) a rate based on existing tuition limits which controls until the effective date of the statute increasing the tuition limits, and 2) an enhanced rate consistent with the increased tuition limits, which take effect after the effective date of the enactment that increased tuition limits. 10th U.S. Circuit Court of Appeals U.S. Cellular Investment Co. of Okla. City, Inc. v. Southwestern Bell Mobile Systems, Inc., No. 96-6140 This diversity case involved a dispute over the construction of a limited partnership agreement between the general partner, Southwestern Bell and one of four limited partners, U.S. Cellular. The Oklahoma City Limited Partnership was formed among competing applicants to operate a cellular telephone system within the five- county Oklahoma City area. SBMS was the sole and managing general partner with a 40 percent interest as a general partner and a 22 percent interest as a limited partner, for a total interest of 62 percent. The remaining 38 percent was held by three other limited partners. The OKC Limited Partnership Agreement predated the establishment of outlying rural service areas for rural cellular service. The primary issue in this lawsuit is whether SBMS could expand into these rural areas on its own behalf, or whether instead it was obligated to do so on behalf of the limited partnership. The district court found that the parties did not intend the reference to "contiguous counties" to limit SBMS' obligations and duties, including the duty not to compete with the limited partners in adjoining areas. While SBMS was not required to apply to provide cellular service in adjoining RSAs, once it did so, any interest acquired was deemed on behalf of the OKC Partnership. On appeal, SBMS contended that the OKC Partnership Agreement was a limitation on the powers of SBMS as a general partner and was intended for the protection of the other partners in the partnership. The 10th Circuit affirmed and held that SBMS was required to submit applications for RSAs adjoining the Oklahoma City on behalf of, rather than independently of, the OKC Partnership. Mitel, Inc. v. Iqtel, Inc., No. 95-1394 Mitel appealed the denial of its motion for a preliminary injunction in this copyright infringement matter. At issue is the protectability of a set of four-digit numeric instructions known as "command codes." Mitel created these command codes to access the features of a piece of telecommunications hardware known as a call controller. Mitel contended that the district court erred in denying its motion for a preliminary injunction based upon the court's conclusion that Mitel failed to demonstrate a substantial likelihood that it would prevail on the merits of its claim. Specifically, Mitel argued that the district court erred by concluding that Mitel's command codes were unprotectable because they are a "procedure process, system {or} method of operation;" that they are unprotectable under the scenes a faire doctrine; and Iqtel's use of the command codes is a fair use under the Copyright Act. The 10th Circuit agreed with the district court. The court held that Mitel failed to demonstrate that its command codes contained expression that is original and went beyond the necessary incidents of the ideas which the codes expressed. In re Kaspar, No. 96-1462. This appeal presented the question of whether modern technology and business practices grounded in convenience will prevail over the strict language of statutory law. Specifically at issue was whether a computer generated statement of financial condition given in an application of credit neither seen nor signed by the debtor constituted "a writing" under 523 (a)(2)(B) of the bankruptcy code. The bankruptcy court concluded that it did not and granted debtors, Kurtis and Linda Ann Kaspar, partial summary judgment in an adversary proceeding seeking an exception from discharge filed by appellant Bellco First Federal Credit Union. On appeal, that judgment was affirmed by the district court. The 10th Circuit concluded that the statute must be literally interpreted, and the oral statements made by the debtor which led to the computer generated form were not to be regarded as the functional equivalent of a "writing" within the meaning of 523 (a)(2)(B). The court noted that, in the information age, it is convenient to purchase goods over the phone by orally giving a credit card number without the signing of a voucher and that oral statements are transferred into computer data which become a debt upon which we are obliged. But those transactions, although convenient, do not rise to the level of a statement of financial condition. "We will not undertake to rewrite the express language of a statute merely to accommodate the commercial conveniences attributable to modern technology." Moyer v. Director, Office of Workers' Compensation Programs, No. 96-9545. Earl Moyer petitioned the 10th Circuit for review of an order of the U.S. Dept. of Labor Benefits Review Board affirming an order awarding attorney's fees to Moyer by the district director. Moyer sought the award to compensate him for his work in obtaining benefits for his client under the Longshore and Harbor Workers Compensation Act. He submitted for approval his billing for $3,330, representing 14.8 hours of work at a rate of $225 per hour. The director reduced his compensable hours to 12.5 and awarded him $100 per hour. The board summarily affirmed the director's award. The 10th Circuit concluded that Moyer presented no basis from which to conclude that the director abused her discretion in making her award. Nichols v. Reno, No. 96-1344 Terry Lynn Nichols appealed the dismissal of his civil action challenging the method in which the Attorney General authorized U.S. Attorney Patrick Ryan of the Western District of Oklahoma to seek the death penalty in a separate prosecution against Nichols. Nichols contended that the Attorney General failed to follow the procedure she instituted in the U.S. Attorneys' Manual and violated the Administrative Procedure Act as well as his rights under the due process clause of the U.S. Constitution. Although Nichols sought civil redress to reopen discovery to examine the decision-making process behind the ultimate prosecutorial decision to seek the death penalty under the Federal Death Penalty Act of 1994, the district court rejected Nichols' arguments. The district court dismissed the action with prejudice relying on the principle that prosecutorial discretion is presumptively unreviewable by the courts and rejecting Nichols' premise that the manual provided him with a protectible interest. The 10th Circuit agreed and affirmed. United States v. McIntosh, No. 96-3270. Petition for rehearing granted. Michael McIntosh appealed from his conviction and sentence on four counts of bankruptcy fraud and nine counts of money laundering. When nearly $445,000 in overdue federal and state tax obligations threatened to cause eviction from his law office, McIntosh filed a petition for bankruptcy relief under Chapter 11. Alleged omissions from the schedules and reports required in connection with that petition formed the basis for the criminal charges against him. The alleged omissions concerned a contingency fee received during the pendency of the bankruptcy proceedings, the house in which he lived, and his interest in an unincorporated business. On appeal, McIntosh argued that the evidence at trial was insufficient to support his conviction on all thirteen counts and that several counts were multiplicitous. He also argued that the court erred in sentencing him. The appellate court concluded that the all but one of the convictions for bankruptcy fraud should be reversed since McIntosh was not under any immediate obligation to advise the court or his creditors of the receipt of the contingency fee received or to have turned it over to the bankruptcy court. Without such a duty, he could not have committed in bankruptcy fraud when he engaged in the financial transactions at issue. Taken, et al. v. Oklahoma Corporation Commission, No. 96-6312. Plaintiffs Dorothy Taken and Tawana White appeal from the district court's entry of summary judgment in defendant's favor on their claims of race and sex discrimination. Plaintiffs, who are white, claim they were not selected for a promotion that was awarded to an unqualified black woman because she was romantically involved with the person who made the promotion decision, a black man. In order to demonstrate that they were victims of reverse race discrimination, plaintiffs must show direct evidence of discrimination, or indirect evidence sufficient to support a reasonable probability, that but for the plaintiffs' status the challenged employment decision would have favored the plaintiffs. The court found that the evidence did not support an inference that but for plaintiffs' status as whites, one of them would have been promoted. Therefore, the court determined that plaintiffs failed to present a prima facie case of race discrimination under Title VII. The court considered plaintiffs' sex discrimination claim and held that Title VII's reference to "sex" means a class delineated by gender, rather than sexual affiliations. Plaintiffs assert that their employer is liable under Title VII because a supervisor preselected his paramour for a promotion even though she was less qualified than either plaintiff. Taking plaintiff's allegations as true, the court concluded that they do not state a claim for relief under Title VII because they are based on a voluntary romantic affiliation, and not on any gender differences. Because the court declined to extend Title VII to include consensual romantic involvements, the court concluded that the promotion was not based on a prohibited classification. Boydston, et al. v. New Mexico Taxation and Revenue Department, et al., No. 96-2234. Plaintiffs Roger and Sandie Boydston appeal the district court's entry of summary judgment in defendants' favor on their claims that defendants violated their federal and state rights when terminating their employment by the State of New Mexico. Plaintiffs entered into two written contracts, the "agent contract" and the "inspector contract", with the Director of the New Mexico Motor Vehicle Division of the Taxation and Revenue Department, whereby they were authorized to perform specified services relative to motor vehicle registration, licensing, and inspection. A third contract, the "data access agreement," granted plaintiffs access to computerized motor vehicle records to carry out their duties under the other two contracts. Following an investigation of plaintiffs' allegedly improper automobile licensing practices, defendants notified plaintiffs that the agent and inspector contracts were terminated and that plaintiffs were no longer permitted to use the database. On appeal, among other issues, plaintiffs assert that the district court erred in denying their constitutional due process claims on the grounds that they did not have a property interest or a liberty interest in continuing the contractual relationship with defendants. To have a property interest in continued employment, a person must have a legitimate claim of entitlement to it. In construing the contracts, the court found that the defendants were not required to show cause for terminating the contracts and, consequently, plaintiffs did not have a constitutional property interest in their continued contractual employment with defendants. The court considered plaintiffs' claim that the defendants deprived them of their liberty interest without due process of law. They allege that defendants damaged their reputation when they falsely stated that they forged documents and submitted false information to the Motor Vehicle Division. The court held that plaintiffs failed to establish the necessary element of publication and therefore their liberty interest claim was foreclosed. Avedon Engineering, Inc. v. Seatex, et al., No. 96-1066. In this breach of contract action against Seatex, Twist appeals the district court's denial of a jury trial on the issue of whether its contract with Seatex included an agreement to arbitrate. At the time of the relevant transactions, Twist's principal place of business was Colorado and Seatex's principal place of business was New York. The arbitration clause was not a negotiated term of contract. It was unilaterally inserted by Seatex in its confirmation forms which Twist neither signed nor returned. Twist brought this suit in Colorado seeking damages for, among other things, breach of contract regarding defective fabric supplied by Seatex. Seatex removed the action to federal court and contended the arbitration clause contained in the unsigned sales confirmation forms became part of their contract with Twist. The court noted that the first step in evaluating whether the arbitration term was included in the Twist/Seatex contract should be a determination of what state's law controlled the formation of that contract. The court concluded that because Colorado and New York would analyze the materiality of the arbitration clause and the one-year limitations period required under the arbitration clause differently, the district court should have begun its analysis with a choice of law determination. Its failure to do so affected all of the court's subsequent determinations regarding the arbitration term. Therefore, the court reversed and remanded for the district court to make the choice of law determination. SK Finance SA v. LaPlata County, Board of County Commissioners, No. 96-1291. SK Finance, the owner of several lots in a subdivision in LaPlata County, Colo., appeals from a district court order dismissing as premature SK Finance's federal and state takings claims arising from LaPlata County's denial of a request to build a sewage treatment facility to serve a portion of the subdivision. SK Finance contends the district court erred in concluding that its claims were not ripe. First considering whether SK's claim under the takings clause of the Fifth Amendment is ripe, the court noted that because the Fifth Amendment only prohibits takings without just compensation, a federal constitutional claim is not ripe until compensation is denied under state procedures. As the State of Colorado has provided a procedure for obtaining compensation for inverse condemnation and SK has not availed itself of that procedure, SK's federal takings claim is not ripe. With respect to SK's state inverse condemnation claims, the court examined whether a federal district court with diversity jurisdiction can consider an inverse condemnation claim arising from the Colorado Constitution and statutes providing a special judicial procedure for condemnation claims, and whether an inverse condemnation claim is ripe under Colorado law. The court found that the district court had jurisdiction to consider the SK state-law inverse condemnation claim if it was ripe. As under federal law, an inverse condemnation action under Colorado Law requires a final decision of a regulatory authority to support a regulatory taking claim. The court concluded that the district court did not err in finding SK's state-law takings claims were unripe because LaPlata County had not rendered any final decision regarding the permissibility of a sewer system serving the subdivision. Smith vs. Callahan, No. 96-6385. Plaintiff appealed from the district court's order affirming the final decision of the secretary denying plaintiff's application for a period of disability and disability benefits. This appeal involved the purely legal question of whether the Secretary correctly interpreted 42 U.S.C. 416(I)(2)(E) in determining that plaintiff was not entitled to disability benefits. The ALJ found that the plaintiff last met the insured requirements of the Social Security Act on Sept. 30, 1981,and that plaintiff was disabled from Aug. 26, 1977 through April 30, 1979, but that his condition improved and plaintiff was not disabled from May 1, 1979 through the date he was last insured. It was ultimately determined that plaintiff again became disabled as of Sept. 3, 1987, the same date he filed his application for a determination of disability and disability benefits. The ALJ concluded that because plaintiff was not disabled within twelve months prior to the date he applied for disability benefits, he was not eligible for benefits. The secretary affirmed the ALJ and the district court affirmed the secretary. The 10th Circuit agreed. 42 U.S.C. 416(I)(2)(E) provides that "no application for a disability determination which is filed more than 12 months after the month prescribed by subparagraph (D) as the month in which the period of disability ends ... shall be accepted as an application for purposes of this paragraph." Klein vs. Grynberg, No. 96-1255. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. Defendant Jack J. Grynberg appeals from the district court's remitted order of punitive damages. This remittitur followed our decision in a previous appeal in this case, Klein v. Grynberg, 44 F.3d 1497 (10th Cir.), cert. denied, 116 S. Ct. 58 (1995). Defendant contends that the district court's remitted award denied him both substantive and procedural due process. He also takes issue with this court's amendment of its mandate in the previous appeal to provide for interest on the remitted award from the date of the original judgment. See Klein Vs. Grynberg, Nos. 92-1232, 92-1233 (10th Cir. Aug. 6, 1996) order amending mandate), cert. denied, 117 S. Ct. 738 (1997). We affirm on all issues presented. The underlying facts of this case are set out in our published decision in the previous appeal. After the jury awarded plaintiffs $1 each on their claims for breach of fiduciary duty, and $3 million in punitive damages, the district court struck the punitive damages award. We reversed the district court's decision, because we found that "a sizable exemplary award was warranted." Id. at 1505. Acknowledging that "the $3 million figure seem{ed} excessive," however, we ordered the district court to grant a remittitur in an appropriate amount. Id. On remand, the district court remitted the jury's award by 80 percent, to $600,000. This remitted damage award clearly is supported by the record. Moreover, the remitted award clearly passes constitutional muster under the Supreme Court's analysis in BMW of North America, Inc. vs. Gore, 116 S. Ct. 1589 (1996), even considering our order requiring calculation of interest from the date of the original judgment. The 10th Circuit affirmed the district court's judgment to the extent defendant's appeal seeks reconsideration or modification of our previous order amending the mandate in Nos. 92-1232 and 92-1233. Previous order affirmed in that case. Plaintiffs' motion for sanctions, and all other outstanding motions, are denied. Taylor vs. Jaquez, No. 96-1426. This appeal presents the question of whether the U.S. District Court of the District of Colorado properly abstained from enforcing a judgment entered in a federal quiet title action because of pending state court litigation over the rights of individuals challenging appellants' interest in the land. 10th Circuit concludes these circumstances require abstention by federal courts and affirmed the judgment of dismissal. The 10th Circuit concluded that Younger abstention applies ends the matter. It was unnecessary for the district court to couch dismissal on the additional ground of the preclusive effect of the state court judgment. When equitable restraint is warranted, we defer to the state proceeding. The court therefore affirmed the order dismissing the action based on Younger abstention.