Court Takes Action in Boll Weevil Case
The following summaries of recently filed local and 10th Circuit opinions were compiled by Oklahoma City attorney John Gatliff. Oklahoma Supreme Court
For the week ended Jan. 19 In the matter of the application of the Oklahoma Boll Weevil Eradication Organization for approval of $5 million Oklahoma Boll Weevil Eradication Organization Assessment Note, series 1998, No. 92,135. 1999 OK 1. The procedures followed by the Oklahoma Boll Weevil Eradication Organization (OBWEO) in obtaining an assessment note complied with the Oklahoma Boll Weevil Eradication Act. The court validated all aspects of the OBWEO's transaction, including the application hearing for the note, statutory authorization to sell bonds, compliance with restrictions on maturity and payment terms, approval by the attorney general and state auditor and inspector, assessment referendum among cotton farmers, and equality of assessment. The dissent contended the court lacked personal jurisdiction because the OBWEO failed to provide personal notice of the application hearing to each cotton grower eligible to vote in the referendum. The dissent also reasoned that the OBWEO had not shown that the assessment referendum voting limitation was within the special-interest exception to the "one- person, one-vote" rule. Oklahoma Court of Civil Appeals For the week ended Jan. 19 Denise D. Dye vs. Coleman E. White, No. 90,378. Veteran's disability pay received to compensate service-related injuries may be included in gross income for the calculation of a disabled veteran's child support obligations. 38 U.S.C. section 5301 limitation on assignment or apportionment of benefits to another beneficiary is not applicable to the court's child support computation. Federal law does not preempt including veteran's disability benefits in child support computations. Oklahoma's child support guidelines do not specifically exclude veteran's disability benefits. Affirmed. James H. Moss vs. Affiliated Food Stores, Liberty Mutual Insurance and the Workers Compensation Court, No. 91,631 The trial court did not err by relying on reports by the employer's medical experts while the claimant was still receiving treatment from his treating physician. Workers Compensation Court Rule 15 does not apply because the court's determination of overpayment was not based on the employer's application to terminate temporary total disability benefits, but was part of the adjudication of the claimant's permanent partial disability claim. Based on the medical reports, the trial court had no competent evidence for its order establishing the ending date of the claimant's temporary total disability period. The trial court also failed to base its partial permanent disability calculation on an adjudication of all injured body parts. Reversed in part and remanded. Max C. Tuepker, d/b/a Max C. Tuepker PC vs. Gary D. Baer, No. 91,857. The trial court issued a post-judgment order granting attorney's fees and costs to a party winning at trial but which subsequently lost his prevailing party status under 12 O.S. section 936 after the Court of Civil Appeals reversed and remanded the case on a substantive issue. Under the statute, attorneys' fees and costs may only be awarded to a prevailing party. Reversed. Attorney General Office For the week ended Jan. 19 Requested by the Honorable Ed Apple, chairman, the Honorable Bob Anthony, vice chairman, and the Honorable Denise Bode, commissioner, Oklahoma Corporation Commission, No. 98-37. 1. 17 O.S. section 139.103(D)(2), which prevents the commission from reviewing rates of local exchange telecommunications services that provide 15 percent or more of the access lines in the state, does not facially violate Oklahoma Constitution Article V, section 51, which prohibits laws granting exclusive rights, privileges or immunities to any person or entity. Pursuant to equal protection analysis, the class is not restricted. No particular company is named and no company is granted exclusive protection. Although only one company currently meets the statutory requirements for the category, the class is open-ended. The Legislature's actions have a rational basis. 2. Whether 17 O.S. section 139.103(D)(2) violates Oklahoma Constitution Article V, section 59, which prohibits special laws, is a fact question outside the scope of an attorney general's opinion. Whether it is possible for smaller telecommunications companies to grow large enough to become class members is also a fact question. 3. 17 O.S. section 139.103(D)(2) does not facially violate Oklahoma Constitution Article IX, section 35, which allows certain sections of the constitution to be amended if the amendments do not violate other constitutional provisions. Whether section 139.103(D)(2) violates the Equal Protection Clause of the Oklahoma Constitution is, in part, a fact question beyond the scope of an attorney general's opinion. U.S. 10th Circuit Court of Appeals For the week ended Jan. 19 Lindberg vs. United States, No. 96-1403. An estate is not entitled to deduct payments made to settle the decedent's descendants' tort claims for interference with inheritance. The decedent had no personal liability for the tort claims during his lifetime, thus the claims settled were not against the estate as determined under section 2053(a)(3) of the Internal Revenue Code (IRC). Generally, an estate cannot be held liable for a tort committed by an executor or trustee. The interference with inheritance tort theory requires the plaintiff in tort to be a potential heir, with damages based on the amount the heir should have inherited. An estate may not deduct inheritances whether paid or recovered in tort. The payments were not an administrative expense incurred in distributing estate property within IRC section 2053(a)(2) because the payment was made for the benefit of individual heirs. The settlement was not a charitable contribution under IRC section 2055(a)(2) because it was paid to private individuals and any benefits to a residuary charitable trust from avoiding litigation expenses were speculative. Affirmed. Stouffer vs. Reynolds, No. 97-6217. Stouffer was convicted of first-degree murder and shooting with intent to kill. He was sentenced to death on the murder conviction and to life imprisonment on the attempt conviction. On a federal habeas corpus appeal, Stouffer raised several issues, six of which were reviewed by the 10th Circuit. The district court abused its discretion by failing to hold an evidentiary hearing to determine whether Stouffer received the effective assistance of counsel during the guilt and penalty phases of his trial. The Oklahoma Court of Criminal Appeals properly reweighed the aggravating and mitigating circumstances after finding no evidence of the heinous, atrocious, or cruel aggravator in Stouffer' direct appeal. Order dismissing the federal habeas corpus petition vacated and remanded for an evidentiary hearing. Bryan vs. Office of Personnel Management, No. 97-6425. Under the doctrine of sovereign immunity, the court lacks jurisdiction to award money damages against the Office of Personnel Management (OPM) in suits pursuant to the Federal Employees Health Benefits Act (FEHBA). The FEHBA limits a claimant's recovery to a court order directing the OPM to require the contract health insurance carrier to pay the disputed benefit amount. The court obtains jurisdiction only after the claimant exhausts all administrative remedies. The FEHBA preempts state law attorneys' fees statutes. The plaintiff's voluntary dismissal deprived the court of jurisdiction to award attorneys' fees under the Equal Access to Justice Act, which requires a fee application within 30 days of a final judgment. Affirmed. Ross vs. Ward, No. 97-6432. Ross was convicted of first-degree murder and robbery with a firearm. Based on five aggravating circumstances, he was sentenced to death for the murder conviction. After a direct appeal and two state post-conviction appeals, Ross was granted a certificate of appealability (COA) in a federal habeas corpus proceeding, based on the alleged denial expert psychiatric or psychological assistance at trial and the alleged denial of an individualized sentencing determination. In his appeal however, Ross raised numerous other propositions of error in addition to the COA issues. The court refused to consider the non-COA propositions because Ross failed to make a substantial showing of the denial of a constitutional right as required by the Antiterrorism and Effective Death Penalty Act of 1996 for an expanded COA. The expert assistance claim was procedurally barred and Ross failed to show prejudice. Propositions denied. Conviction and sentence affirmed. Coletti vs. Cudd Pressure Control, No. 97-8125. Coletti appealed a jury verdict and judgment denying her retaliatory discharge in violation of public policy tort claim against her former employer. The trial court's jury instructions properly defined the Wyoming workers compensation public policy tort claim for retaliatory discharge, and did not include an improper "presumption" of regularity in the employer's business conduct. The trial court did not improperly prohibit the plaintiff from introducing deposition testimony as substantive evidence where the deponents were present at trial and available to testify. Wyoming has not recognized the tort of fraudulent creation of evidence. The plaintiff failed to establish the outrageous conduct element of intentional infliction of emotional distress. The trial court did not err by excluding testimony purporting to show defendant's pattern of retaliatory conduct against employees who made workers' compensation claims. Affirmed.…
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Publication information: Article title: Court Takes Action in Boll Weevil Case. Contributors: Not available. Newspaper title: THE JOURNAL RECORD. Publication date: January 21, 1999. Page number: Not available. © 2009 THE JOURNAL RECORD. Provided by ProQuest LLC. All Rights Reserved.