RSS 10th Circuit

  • Jones v. Kuprivnikar
    Docket#: 14-1360United States District Court for the District of Colorado - DenverDate Issued: 10/29/2014Unpublished Order and Judgment
  • Heer v. Costco Wholesale Corporation
    Docket#: 14-2009United States District Court for the District of New Mexico - AlbuquerqueDate Issued: 10/29/2014Unpublished Order and Judgment
  • Parker v. Martin
    Docket#: 14-6111United States District Court for the Western District of Oklahoma - Oklahoma CityDate Issued: 10/29/2014Unpublished Order and Judgment

Delaware Co. Commrs.v.ACCO-ASIG.2014.OK.87

In Delaware Co. Commrs.v.ACCO-SIG, the OK Supreme Court held that the Association of County Commissioners of Oklahoma Self-Insurance Group was immune from Delaware County’s claim of bad faith denial of insurance coverage as an agency of state government under the Governmental Tort Claims Act.

Delaware County settled various civil claims arising from sexual assaults in its jail for $13.5 million, then made demand on ACCO-SIG to indemnify its payments from the self-insurance pool of which it was a member.  ACCO-SIG agreed to pay $1 million, the coverage limit, less amounts spent defending Delaware County.

The County Commissioners then sued ACCO-SIG for the remaining amounts, and claimed a bad faith breach of its insurance contract with ACCO-SIG for treating all claims as one occurrence rather than fifteen.  The trial court denied ACCO-SIG’s motion to dismiss the bad faith claim, which claimed that ACCO-SIG was not an insurer subject to bad faith liability, and even if it was, it was immune as an agency of the state under the GTCA.

Relying on Choctaw v. Oklahoma Municipal Assurance Group, 2013.OK.6, the Supreme Court held that a governmental cooperative insurance plan, which pools self-insured reserves, claims and losses of municipalities or counties, is not an insurer for all purposes, and not subject to the general rules of liability imposed on all insurers.

Under the Governmental Tort Claims Act (GTCA),  51.OS2011.152.1(A), the state, its political subdivisions, and employees acting within the scope of their employment are immune from liability for torts, with certain exceptions. 51.OS2011.152.1(B).  Counties are a”political subdivision.”  An “agency” is defined as “any board, commission, committee, department or other instrumentality or entity designated to act in behalf of the state or a political subdivision. . . .” 51 O.S.Supp.2014, § 152(2).

The insurance contracts from ACCO-SIG are for the benefit of the member counties, not for private citizens, and its reason for existence is to provide insurance plans for member counties. ACCO-SIG fits the definition of “agency” under the GTCA and therefore falls within its sovereign immunity protection.

ACCO-SIG is immune from liability for the tort of bad faith conduct in payment of claims because its employees are not acting within the scope of their employment if they are acting in bad faith.  Scope of employment means: performance by an employee acting in good faith within the duties of the employee’s office. 51.OSUP2014.152(12).

The trial court’s order denying ACCO-SIG’s motion to dismiss the bad faith claim is reversed.


In Edwards, the OK Supreme Court held that the Sallisaw Board of Commissions could properly enact an ordinance limiting the powers and duties of the elected police chief by removing the chief’s supervisory authority over the police department.

A municipality may set the duties of police chiefs beyond the enforcement of state laws and ordinances. The Legislature vested only three specific duties in the position of police chief: (1) to dispose of personal property or money coming into its possession; (2) to appoint “reserve municipal police officers”; and (3) to enforce state laws and municipal ordinances. 11.OS2011.34-104, 34-101(A), 34-102(A).

The city charter empowers the board of commissioners to set all powers and duties of police chief not detailed in the city charter.  The police chief has no “inherent” powers, as the charter authorizes the board to define all powers and responsibilities of the police chief by ordinance (with the exception of those defined by statute).

The Supreme Court also held the enactment did not violate the police chief’s due process rights by effectively removing him from office without a formal removal proceeding.  The chief was not removed or ousted, as he retained his salary and other privileges of the position. The chief has no property right in any job duty that was deprived without due process.  The process provided actually gave the chief notice of the proposed ordinance and an opportunity to be heard in opposition before its passage.

The district court’s order and permanent injunction against city’s enforcement of the ordinance is reversed.

In re Adoption of K.P.M.A.2014.OK.85

In Adoption of K.P.M.A., the OK Supreme Court reversed the trial court’s order terminating the biological father’s parental rights to KPMA, a now two-year old child who is the subject of adoption proceedings by the custodial prospective parents.

Parents filed a petition for adoption and request to terminate biological father’s rights.  Biological father answered and denied the petition, saying he had been denied knowledge of the mother’s pregnancy, that he was given inadequate notice of mother’s pregnancy and childbirth via a Facebook message from mother, and that the trial court’s order denied him procedural due process.

The OK Supreme Court agreed, holding that due process required (1) notice of the existence of the child so that the bioloical father has a chance to exercise his opportunity interest in developing a relationship with the child; (2) notice via Facebook is not sufficient due process because it is not reasonably certain to inform those affected; (3) the trial court’s erroneous legal conclusion concerning the adequacy of notice by Facebook prematurely cut off evidence concerning Father’s attempts to exercise parental rights and duties towards the child after learning of its birth.

As a result of the due process violation and premature exclusion of biological father’s evidence by granting the adoptive parents’ motion for a directed verdict, the trial record failed to establish the statutory requirements for adoption without consent by clear and convincing evidence.  The Court reversed and remanded for further proceedings on the petition for adoption and termination of parental rights.


Jury sentencing in Oklahoma


We know from the trial of Socrates that jury sentencing existed in ancient Greece, but the practice has not prevailed in modern times. Oklahoma remains one of a few states allowing non-capital sentencing of defendants by trial juries.1 After more than a century of this practice, lawyers, trial judges, and the appellate bench still struggle with the scope and operation of this storied “right” to jury sentencing. This paper briefly examines the historic authorities on jury sentencing with an annotated summary of the governing principles.

Two approaches to sentencing prevailed in Indian and Oklahoma Territories. In 1890, Congress subjected Indian Territory to the criminal procedure in Mansfield’s Digest of the Statutes of Arkansas.2 Oklahoma Territory for a time followed the criminal procedure of Nebraska.3 Under Arkansas procedure, juries in Indian Territory assessed punishment in their verdict, and the court rendered the judgment assessed by the jury. In Oklahoma Territory, the court fixed punishment.4

The First Legislature opted for jury sentencing, by an act approved May 12, 1908,5 and first codified in Snyder’s Compiled Laws, as sections 2028 and 2029.6 The current jury sentencing statutes are largely identical to the early enactments, adding language in section 928.1 that the trial court disregard any penalty assessed by the jury beyond the maximum allowed by law and instead impose the maximum punishment:

§ 926.1. In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may, and shall upon the request of the defendant assess and declare the punishment in their verdict within the limitations fixed by law, and the court shall render a judgment according to such verdict, except as hereinafter provided.

§ 927.1. Where the jury finds a verdict of guilty, and fails to agree on the punishment to be inflicted, or does not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.

§ 928.1. If the jury assesses a punishment, whether of imprisonment or fine, greater than the highest limit declared by law for the offense of which they convict the defendant, the court shall disregard the excess and pronounce sentence and render judgment according to the highest limit prescribed by law in the particular case.

Jury sentencing has no constitutional foundation,7 but remains the statutory norm for Oklahoma criminal trials, with or without a demand from the accused.8 By its own terms, the jury sentencing statute operates in cases of a “verdict” of “conviction” by a “jury.”  Sensibly, defendants who plead guilty or nolo contendere have no right to jury sentencing at all.

Denial of a defendant’s timely9 demand for sentencing by the trial jury is error requiring reversal,10 re-sentencing,11 or modification to the minimum penalty.12 Yet a defendant has no correlative right to waive jury sentencing and demand sentencing by the court.13 The statutes impose no absolute requirement that the jury fix punishment, but that it have the opportunity to do so, upon the defendant’s request. Where the jury fails to agree or declines to impose punishment after using its best efforts, the trial court must assess the punishment.14 The prosecution enjoys no statutory right to jury sentencing,15 but the Court of Criminal Appeals has effectively fused the State’s constitutional right to jury trial on issues of fact (which exists) 16 with a right to jury sentencing (which doesn’t),17 judicially imposing a symmetry foreign to the statutes.18

A number of cases emphasize the trial court’s statutory duty to follow the sentencing verdict of the jury when pronouncing judgment.19 When a jury fails to assess punishment as required by the instructions of the court, or is unable to agree, “then, and then only can the court assess and declare the punishment.”20 The trial court may follow, or disregard, jury recommendations for suspension of a sentence,21 may impose other fines and sanctions by statute, and may also modify a sentence previously imposed in the public interest.22 This largely reflects current practices among Oklahoma trial judges, as it should.

Since statehood, Oklahoma’s jury sentencing laws have limited the sentencing authority of trial judges where defendants demand that a jury assess the penalty. Even without a demand from the defendant, or over his objections, a trial court may properly direct the jury to determine punishment. Recent case law also extends jury sentencing rights to the prosecution, seemingly ensuring a continued and important role for jury sentencing in Oklahoma criminal justice.

1 As few as six states retain some form of non-capital jury sentencing. Richard A. Bierschbach, Notice-and-Comment Sentencing, 97 Minn. L. Rev. 1, 55 n.249 (Winter 2012)

2 Baker v. State, 3 Okl.Cr. 265, 105 P. 379 (1909).

3 Id.; Ex parte Larkins, 1 Okla. 53, 25 P. 745 (1891).

4 In Baker, the Court explained:

If this case was tried under the [pre-statehood Oklahoma] procedure, the fixing of the punishment by the jury would have no binding effect upon the court. It might be considered as a recommendation to the court as to what the punishment should be . . . Under the Arkansas procedure the court must render the judgment in the amount fixed by the jury. Under the Oklahoma procedure, in force at that time, the court determines the amount of the fine.

Id., 3 Okl.Cr. at 268-69, 105 P. at 381.

5 The original statute read:

Sec. 1. In all cases of a verdict of conviction for any offense against any of the laws of the State of Oklahoma, the jury may and shall upon request of the defendant, assess and declare the punishment in their verdict and the court shall render a judgment according to such verdict, except as hereinafter provided.’

Sec. 2. Where the jury find a verdict of guilty, and fail to agree on the punishment to be inflicted, or do not declare such punishment by their verdict, the court shall assess and declare the punishment and render the judgment accordingly.

6 These laws were codified by the same numbers in the Compiled Laws 1909; and at sections 5933 and 5934 in the Revised Laws 1910.  They appear as sections 2750-2752 of the Compiled Statutes of 1921, sections 3107-3109 of the Statutes of 1931, and sections 926-928 of the Oklahoma Statutes 1941.  In 1998, the Legislature repealed sections 926-928 but immediately re-enacted them as sections 926.1-928.1 of Title 22, where they remain today.

7 Romano v. State,  847 P.2d 368, 384 (Okl.Cr. 1993)(“Our state constitution does not address the role of the jury in sentencing a defendant convicted of a criminal offense”).

8 Scott v. State, 808 P.2d 73, 77 (Okl.Cr. 1991)(“The strong statutory policy of the State of Oklahoma is that a criminal defendant be sentenced by jury”).

9 In Fain v. State, 14 Okl.Cr. 556, 174 P. 296, 297 (1918), the Court held a defendant’s request for jury sentencing came too late, where the jury had already rendered a verdict of guilt of manslaughter and stated in the verdict it could not agree as to punishment.

10 Shaffer v. State, 283 P.2d 578 (Okl.Cr. 1955); Ladd v. State, 89 Okl.Cr. 294, 207 P.2d 350 (1949); Tudor v. State, 14 Okl.Cr. 67, 74, 167 P. 341, 344 (1917), overruled on other grounds, Redell v. State, 543 P.2d 574 (Okl.Cr. 1975) (stating that [t]his court has uniformly held to the doctrine that the failure or refusal of a trial court to instruct the jury to fix the punishment and advising them clearly what the punishment provided by law is in any criminal case, when so requested, is reversible error); Dew v. State, 8 Okl.Cr. 55, 56-57, 126 P. 592, 593 (1912)(holding “[a] refusal to instruct the jury of this right, when requested by the defendant, is prejudicial error, as being a denial of a substantial right given to him under the statute”).

11 22 O.S.2011, § 929 provides that in non-capital cases, where the appellate court finds error in the sentencing proceeding only, it may remand for resentencing. The Court also unquestionably has the power to modify an erroneous sentence on appeal. 22 O.S.2011, § 1066.

12 Clopton v. State, 742 P.2d 586, 587 (Okl.Cr. 1989) (denial of jury sentencing was harmless where Court of Criminal Appeals modified to minimum).

13 Reddell, 543 P.2d at 581(Okl.Cr. 1975) (“We do not agree with the defendant’s contention that a defendant may waive his right to have the jury assess punishment. Such reasoning is fallaciously premised on the view that the defendant has a right to have the trial court assess the punishment”).

14 Ladd, 89 Okl.Cr. at 301, 207 P.2d at 353-54.

15 In Dew v. State, 8 Okl.Cr. 55, 56-57, 126 P. 592, 593 (1912), the Court said:

To the constitutional right of a speedy and public trial by an impartial jury of the county in which the crime shall have been committed the statute gives the supplemental right to have the jury assess the punishment, where the defendant demands it.(emphasis added).

16 In State v. McDonald, 10 Okla. Cr. 413, 137 P. 362, 363 (1914), overruled on other grounds, State ex rel. Powell v. Shi, 566 P.2d 1170 (Okl.Cr. 1977), the Court said:

It is true that [Article 2, § 19 of] our Constitution provides that the right of a trial by jury shall be inviolate, and we are of the opinion that the state as well as the defendant has the right to a trial by jury as to all controverted questions of fact . . . But where a defendant pleads guilty, there is nothing to try.

17 Love v. State, 217 P.3d 116, 117 (Okl.Cr. 2009)(holding defendant could not waive jury trial without the consent of the State, and had no right to unilaterally waive jury assessment of punishment), citing inter alia, Crawford v. Brown, 536 P.2d 988, 989-90 (Okl.Cr. 1975)(holding that defendant may not unilaterally waive jury trial on issue of guilt, the State and trial court must consent, but making no reference to jury sentencing statute); and Case v. State, 555 P.2d 619, 625 (Okl.Cr. 1976)(extending Crawford to the jury’s assessment of punishment with a citation to Reddell v. State, 543 P.2d 574, 581-82 (Okl.Cr. 1975), which held only that a trial court may submit the question of punishment to the jury even over the defendant’s objection, but did not recognize a right to jury sentencing on the part of the State).

18 Love, 217 P.3d at 119-20 (Lumpkin, J., concurring in result)(holding section 926.1 does not grant the State standing to request or object to jury sentencing; prior decisions, i.e. Case, have improperly meshed the constitutional right to a jury trial with the statutory right to sentencing).

19 White v. State, 42 Okl.Cr. 50, 56-57, 275 P. 1067, 1069-1070 (1929)(reversing and remanding for correction of the trial court’s judgment and sentence of 18 months where jury fixed defendant’s punishment at two years imprisonment and a fine of $500); Bean v. State, 77 Okl.Cr. 73, 84, 138 P.2d 563, 564, 568 (Okl.Cr. 1943)(finding trial court erroneously sentenced defendant to four years imprisonment where the jury sentenced him to five years imprisonment, and holding “there is no authority for a trial court to modify the verdict of a jury when pronouncing judgment. Only this court has a right to modify the sentence meted out to an accused)(emphasis added); Luker v. State, 552 P.2d 715, 716, 719-20 (Okl.Cr. 1976)(holding “the trial court clearly exceeded its authority in modifying the sentence assessed by the jury” from five years to four years imprisonment but could entertain application to suspend the sentence); Leeper v. State, 554 P.2d 810, 814 (Okl.Cr. 1976)(holding that “entry of a second judgment and sentence purporting to fix the punishment at a term of five years’ imprisonment . . . was not in accordance with the [fifteen year sentencing] verdict of the jury and was, accordingly, contrary to this Court’s holding in Luker”); Fleming v. State, 760 P.2d 208, 210 (Okl.Cr. 1988)(holding trial court considered request for suspended sentence, but also “followed its statutory duty and imposed the sentence set by the jury); Fite v. State, 873 P.2d 293, 295 (Okl.Cr. 1993), infra, note 22 (noting that trial court cannot deviate from the term of imprisonment actually imposed by the jury.

20 Dew, 8 Okl.Cr. at 56-57, 126 P.2d at 593.

21 Many later cases follow Presnell v. State, 71 Okl.Cr. 162, 109 P.2d 834, 835 (1941(syllabus), where the Court said:

Where the jury returns a verdict of guilty and endorses on the verdict, `We recommend a suspended sentence,’ such recommendation is not a part of the verdict, and is a matter addressed to the sound judicial discretion of the trial judge as to whether he should follow the recommendation of the jury.

E.g., Simmons v. State, 372 P.2d 239, 242 (Okl.Cr. 1962)(“There is nothing to prevent a jury from recommending a suspended sentence in their verdict but it is by no means binding upon the trial judge and this court has consistently held such recommendation to the jury to be surplusage and improper”).

22 22 O.S.2011, §§ 64, 22 O.S.Supp.2013, §§ 982a, 991a (trial court may suspend all or part of sentence of imprisonment; order restitution, reimbursements, and other sanctions; modify an initial sentence on judicial review within 24 months; and impose fine not exceeding $10,000, in addition to sentence imposed by jury); Fite, 873 P.2d at 295 (“Of course, nothing in § 64, or in this opinion, entitles the trial court to deviate [at sentencing] from the term of imprisonment actually imposed by the jury)(emphasis added).

Tulsa Indust. Auth.v.Tulsa.2014.OK.81

In Tulsa Industrial Authority, the OK Supreme Court affirmed the district court’s dismissal of a taxpayer’s equitable challenge to a municipal financing transaction, because Taxpayer first refused to give notice to the bondholders, and then refused to serve notice to join the bondholders to the lawsuit.  The trial court determined that the bondholders were necessary parties to the action maintained by the Taxpayer, which sought to enjoin payments on certain indebtedness of the municipality.

The trial court had found the bond holders were necessary parties subject to compulsory joinder by 12.O.S.2011.2019, because the failure to join them would leave other parties “subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of” the claimed interests.

The trial court allowed time to amend Taxpayer’s petition by filing notice and proof of service of his claims on the bond holders.  Taxpayer refused to join the bondholders to the lawsuit, and the court dismissed Taxpayer’s petition to intervene with prejudice.  The Supreme Court rejected several excuses for non-joinder, including a claim

(1) that the bondholders were not mentioned as necessary parties to the lawsuit in a prior Supreme Court opinion, finding his assumption that the previous case “included an inferential holding regarding the bondholders is in error;”

(2) that he does not have access to the names and addresses of any of the bondholders.  The Court found no evidence of an attempt to give notice to the bond holders;

(3) that Tulsa Industrial Authority was required by federal law to disclose the lawsuit to bondholders within ten business days and that compliance with such a requirement should serve as notice.  The Court found the trial court’s order that Taxpayer serve and join the bond holders under the compulsory joinder statute “required service of process, not merely notice.”

The Court held Taxpayer’s repeated failure to cure deficiencies by amendments as allowed by the trial court is cause for dismissal with prejudice. Prough.v.Edinger.1993.OK.130, The trial court properly dismissed the Taxpayer’s action with prejudice.


Boler.v.Security Health Care.2014.OK.80

In Boler, the OK Supreme Court held that plaintiffs in a wrongful death action against defendant nursing home were not bound by an arbitration clause in the admission agreement signed by the patient’s attorney in fact.  The Court held that a decedent’s personal representative and heirs are not bound to submit their wrongful death claims to arbitration under an agreement that they did not sign in their personal capacity.

Oklahoma’s Wrongful Death Act created a new cause of action for pecuniary losses suffered by the deceased’s spouse and next of kin by reason of his or her death. Recovery under the wrongful death act does not go to the estate of the deceased, but inures to the exclusive benefit of the surviving spouse and children or next of kin. Ouellette.v. State Farm, 1994.OK.79.

The wrongful death claim here accrued separately to the  beneficiaries and is intended to compensate them for their own losses. The personal representative is prosecuting the wrongful death claim on behalf of the statutory beneficiaries set out in 12.OS2011.1053. The trial court properly denied nursing home’s motion to compel arbitration of the wrongful death claim.


In Sonnier, the OK Court of Criminal Appeals held that the defendant’s termination from the Women in Recovery treatment program after acceleration of her deferred sentencing did not violate due process.

The Court rejected the view that Women in Recovery is the equivalent of drug and/or mental health court, sentencing programs from which termination must comply with minimal due process requirements.  While drug/mental health court, involve deferred sentencing, the WIR is a private/public partnership not under the control of the court system.

When the trial court accelerated defendant’s sentence, it simply delayed sentencing to permit the defendant’s participation in WIR.  When WIR itself determined that defendant was ineligible to participate due to her conduct in the program, the trial court had no authority to review that decision and simply proceeded to sentencing of the defendant.  This did not violate due process.

The Court affirmed the judgment and sentence.

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