source: Caselaw Access Project

author: McAnany, J.: Arnold-Burger, C.J., dissenting:

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Paul B. YOUNG, Appellant.
    No. 119,265
    Court of Appeals of Kansas.
    Opinion filed May 17, 2019
    Sam Schirer, of Kansas Appellate Defender Office, for appellant.
    Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Arnold-Burger, C.J., Pierron, J., and McAnany, S.J.
   McAnany, J.:

In 1999, Paul B. Young was convicted of aggravated indecent liberties with a child under 14 years of age. As a result of this conviction, he was required to register for his lifetime under the Kansas Offender Registration Act, K.S.A. 2018 Supp. 22-4901 et seq. (KORA).

In 2010, Young pled guilty to two KORA violations. Then, in 2016, Young pled guilty to his third KORA violation.

On July 31, 2017, the State charged Young with his fourth KORA violation. Young was still on probation from his third KORA violation at the time of this fourth violation. The underlying sentence for his third KORA violation was a mitigated 61-month guideline prison sentence.

At a hearing on October 19, 2017, Young appeared with his attorney and waived his right to a preliminary hearing. He had no plea agreement with the State. Nevertheless, he informed the court that he wished to plead guilty. Before the hearing Young had signed an acknowledgment of his rights in which he stated that he understood that upon conviction of a fourth KORA violation the sentence the court could impose ranged from 55 to 247 months. The district court informed Young of his rights and his potential sentence and inquired if he understood those rights. Young had no questions about his rights and the consequences for entering a plea and expressed the desire to enter a guilty plea. He stated that the State's charging document was correct, and he agreed there was a factual basis for the charge. The district court found that Young "knowingly, intelligently, freely, and voluntarily waived his rights," accepted Young's plea, found him guilty as charged, and ordered a presentence investigation.

Before sentencing Young moved for a downward durational departure.

On December 7, 2017, the court held a combined hearing on Young's probation violation and for sentencing on his fourth KORA conviction. Young admitted to six probation violations in his prior case. The State recommended that Young's probation be revoked and that he serve his underlying prison sentence of 61 months.

Young agreed with his criminal history as reported to the court and agreed that his criminal history score was D. Based on that score, the sentencing grid range for his fourth KORA violation was 89-94-100 months.

Young's counsel argued that there were substantial and compelling reasons for the court to depart from the guidelines and impose a sentence of 36 months to be served concurrently with his 61-month sentence in his prior case. He argued that it would be manifestly unjust to do otherwise because the current conviction arose from an 11-day delay in registering after moving to a new address, that Young was otherwise in compliance with his registration requirements, and that Young took responsibility for his actions. He also addressed the probation violations related to Young's KORA violation conviction.

The State requested that the court impose the low number guideline sentence of 89 months but argued that Young's sentence should be served consecutively to his 61-month prison sentence in the prior case in which he violated probation because it would not be manifestly unjust to do so.

The district court declined to depart, finding that there were no substantial and compelling reasons to grant a departure from the guideline sentence for Young's current KORA offense. But the court imposed the "lowest minimum sentence" of 89 months in the custody of the Secretary of Corrections. In a separate hearing, the court ordered Young to serve his underlying prison sentence in the case in which he violated probation.

Young's appeal brings the matter before us.

Young contends on appeal that the district court abused its discretion in failing to find that manifest injustice would occur by allowing his sentence for his KORA violation to run consecutive to his sentence in his prior criminal case. He argues that it is unreasonable to imprison him for over a decade "on account of [his] inability to comply with filing deadlines." On the other hand, the State contends that we are without jurisdiction to consider this issue because Young's sentence was within the presumptive range.

Whether jurisdiction exists is a question of law over which our review is unlimited. State v. Smith , 304 Kan. 916, 919, 377 P.3d 414 (2016). We do not have discretionary power to entertain appeals from all district court orders. Kansas Medical Mut. Ins. Co. v. Svaty , 291 Kan. 597, 609-10, 244 P.3d 642 (2010). To the contrary, the right to appeal is entirely statutory. It is not contained in the United States or Kansas Constitutions. Subject to certain exceptions, our appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by our statutes. Smith , 304 Kan. at 919, 377 P.3d 414 ; State v. Gill , 287 Kan. 289, 294, 196 P.3d 369 (2008).

K.S.A. 2018 Supp. 21-6820(c) provides that an appellate court shall not review on appeal a sentence for a felony conviction that is (1) within the presumptive guidelines sentence for the crime or (2) the result of a plea agreement between the State and the defendant which the trial court approved on the record. State v. Sprung , 294 Kan. 300, 317, 277 P.3d 1100 (2012) (no jurisdiction to review presumptive sentences).

Here, Young was convicted of a KORA violation, a severity level 3 person felony. K.S.A. 2018 Supp. 22-4903(a), (c)(1)(C) ; K.S.A. 2018 Supp. 22-4905(g). Because his crime was committed while on probation for a previous felony conviction, his sentence was required to run consecutive to other sentences by operation of law. K.S.A. 2018 Supp. 21-6606(c).

But Young argues that he is not appealing his presumptive sentences in either this case or in his probation revocation case. To the contrary, and relying on State v. Rose , No. 90,111, 2004 WL 117358, at *1 (Kan. App. 2004) (unpublished opinion), Young argues that he is challenging the court's decision not to make a special finding that would result in concurrent sentences in these two cases. He also relies on our Supreme Court's holding in State v. Ross , 295 Kan. 1126, 289 P.3d 76 (2012). The State does not discuss either of these cases in its appellate brief.

In Rose , an appeal brought by the State, the defendant was convicted of aggravated burglary, burglary, and felony theft. Sentences for these crimes are included in the Kansas Sentencing Guidelines sentencing grid. At the time Rose committed these crimes he was on parole for a 1991 robbery conviction, which carried a preguidelines indeterminate sentence of up to 20 years. Upon Rose's current convictions, the district court "found that there was uncertainty regarding the length of sentence Rose would serve if his sentences were imposed consecutive to the previous sentence, as required under K.S.A. 21-4608. Consequently, the trial court ordered concurrent sentences, finding that 'to run the cases consecutive would constitute manifest injustice.' " 2004 WL 117358, at *1. On appeal, the State contended the appellate court had jurisdiction to consider whether the district court abused its discretion in finding manifest injustice to support the imposition of concurrent rather than consecutive sentences. The court determined it had jurisdiction to consider the State's appeal because it was on a question reserved regarding a statute that had not previously been interpreted by the court.

The Rose court noted the holding in State v. Ware , 262 Kan. 180, 181-82, 938 P.2d 197 (1997), that the discretionary imposition of consecutive sentences is not an appealable issue. Ware had been convicted of felony murder, an off-grid crime, and aggravated robbery, an on-grid crime.

"The Ware court reviewed K.S.A. 21-4721(c)(1), which prevents the appellate court from reviewing any sentence that is within the presumptive sentence for the crime, and found that ' "[a] grid block provides no mandate regarding whether a sentence should be run concurrently or consecutively. Therefore, a consecutive sentence is not in and of itself inconsistent with the presumptive sentence and is not a departure." ' 262 Kan. at 184, 938 P.2d 197. As a result, the court held that it did not have jurisdiction over the appeal of the discretionary order of consecutive sentences. 262 Kan. at 184, 938 P.2d 197." Rose , 2004 WL 117358, at *2.

But the Rose court distinguished Ware :

"Here, K.S.A. 21-4608 applies because Rose was convicted in this case while he was already on parole from a previous conviction. According to K.S.A. 21-4608(c), any person convicted and sentenced for a crime committed while that person was on parole for a felony shall serve the sentence consecutive to the terms for which the person was under parole. Nevertheless, the exception to this rule is found in K.S.A. 2002 Supp. 21-4720(a), which states that the mandatory consecutive sentence provisions of K.S.A. 21-4608(c) shall not apply if such application would result in manifest injustice. In this case, the only discretion the district court had was in deciding whether manifest injustice would result in the otherwise mandatory consecutive sentences, not in deciding whether to order consecutive or concurrent sentences." Rose , 2004 WL 117358, at *2,.

In Ross , another case Young relies on, the defendant argued that the district court abused its discretion in denying his request to have his sentence for felony murder (an off-grid sentence) run concurrent with his sentence for kidnapping (an on-grid crime). In considering the jurisdiction issue, the Ross court noted its prior decisions in Ware and in State v. Flores , 268 Kan. 657, 999 P.2d 919 (2000). The Ross court noted that in Ware "[t]his court did not reach the merits of Ware's argument because we assumed that Ware had received a 'presumptive sentence' as contemplated in K.S.A. 21-4721(c)(1) and, thus, we were statutorily prevented from reviewing his sentence." Ross , 295 Kan. at 1136, 289 P.3d 76.

The Ross court also noted that in Flores , "[b]ased on Ware , we dismissed Flores' appeal for lack of jurisdiction because we again assumed that Flores had received a presumptive sentence within the meaning of K.S.A. 21-4721(c)(1) and that the imposition of consecutive sentences did not constitute a departure sentence, which is reviewable under K.S.A. 21-4721(e)(1)." 295 Kan. at 1136-37, 289 P.3d 76.

The Ross court concluded that Ware and Flores were wrongly decided because the term "presumptive sentence" as used in the KSGA does not include life sentences for off-grid crimes. The court cited its decision in State v. Ortega-Cadelan , 287 Kan. 157, 163, 194 P.3d 1195 (2008), wherein the court noted that K.S.A. 21-4721(c)(1) provides that an "appellate court shall not review: (1) Any sentence that is within the presumptive sentence for the crime." A presumptive sentence is one that falls within the grid block for the defendant's crime. But Ortega-Cadelan's crime was an off-grid crime and not a presumptive sentence. Accordingly, the Ross court ruled: "Thus, K.S.A. 21-4721(c) does not prevent a defendant from challenging a district court's decision ordering that a sentence for an on-grid crime run consecutive to a life sentence for an off-grid crime in a multiple conviction case involving both off-grid and on-grid crimes." 295 Kan. at 1138, 289 P.3d 76.

But Rose and Ross cited by Young do not control here. Nor does Ortega-Cadelan . Those cases involved the imposition of consecutive off-grid sentences and on-grid sentences. Here, Young complains about the imposition of two consecutive on-grid sentences.

As a general principle, the imposition of consecutive presumptive guideline sentences does not constitute a departure. State v. Bramlett , 273 Kan. 67, 68, 41 P.3d 796 (2002). Our appellate courts lack the jurisdiction to entertain challenges to the imposition of consecutive guideline sentences. As stated in State v. Brune , 307 Kan. 370, 371, 409 P.3d 862 (2018),

"Such decisions [on whether to impose a concurrent or consecutive sentence] traditionally fall within the sound discretion of sentencing courts. State v. Horn , 302 Kan. 255, 256-57, 352 P.3d 549 (2015). 'In fact, this principle of a judge's discretion is so entrenched that the legislature determined a defendant cannot raise the issue of whether imposing consecutive sentences is an abuse of discretion if the sentence is imposed under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. ' State v. Mosher , 299 Kan. 1, 2-3, 319 P.3d 1253 (2014)."

See also State v. Thorpe , 36 Kan. App. 2d 475, 478, 141 P.3d 521 (2006) ; State v. McCallum , 21 Kan. App. 2d 40, 895 P.2d 1258 (1995).

Here, Young was on probation for a crime for which the court had imposed an underlying guidelines grid sentence when he committed another crime which also called for a guidelines grid sentence. Upon his conviction of the current crime, the court simply revoked Young's probation and ordered him to serve the previously imposed mitigated guideline prison sentence. The court then imposed another mitigated guideline sentence for his current crime.

Because Young was on probation at the time he committed his current crime, K.S.A. 2018 Supp. 21-6606(c), which is part of our general sentencing statutes, required the court to order that his current sentence be served consecutively to the sentence in his prior case. But under K.S.A. 2018 Supp. 21-6819(a) -which is part of our sentencing guidelines-the consecutive sentence called for in K.S.A. 2018 Supp. 21-6606(c) was not required if the imposition of such a sentence would be manifestly unjust.

Here, the district court considered whether a consecutive sentence would be manifestly unjust and determined that it would not. This determination was made consistent with a provision in our sentencing guidelines- K.S.A. 2018 Supp. 21-6819(a). The sentence imposed was a mitigated guideline sentence, which was to be served following completion of his prior sentence, as required by K.S.A. 2018 Supp. 21-6606(c). In no manner did the district court deviate from our sentencing guidelines. Consecutive presumptive sentences under the Kansas Sentencing Guidelines Act do not constitute sentencing departures and are not appealable. State v. Jacobs , 293 Kan. 465, 466, 263 P.3d 790 (2011).

Accordingly, we do not have jurisdiction to consider Young's issue on appeal. This appeal is dismissed for lack of jurisdiction.

Appeal dismissed.

Arnold-Burger, C.J., dissenting:

I dissent from my colleagues' conclusion that we have no jurisdiction to hear this case. That said, I do not believe the district court judge erred in running Paul B. Young's sentences consecutive, so I would affirm on the merits.

We have jurisdiction to hear an appeal of a judge's decision under K.S.A. 2018 Supp. 21-6819(a).

When a person is on probation and commits a new crime, the judge must run the probation revocation sentence and the sentence for the new crime consecutive-one after the other. K.S.A. 2018 Supp. 21-6606(c) ("shall serve the sentence consecutively"). Courts and practitioners often refer to this as a "special rule" or "a special sentencing rule." State v. Redick , 307 Kan. 797, 801, 414 P.3d 1207 (2018) ("special sentencing rule");

State v. Owens , No. 108,985, 2014 WL 5312844, at *9 (Kan. App. 2014) (unpublished opinion) ("special rule").

But there is an escape clause from this seemingly mandatory rule in the revised Kansas Sentencing Guidelines Act (KSGA). K.S.A. 2018 Supp. 21-6801 et seq. If the court finds the imposition of consecutive sentences would "result in a manifest injustice," the court may ignore the special sentencing rule and order the sentences to run concurrent-at the same time. K.S.A. 2018 Supp. 21-6819(a).

Young was on probation for a crime that fell under the KSGA, when he committed a new crime that also fell under the KSGA, actually the same crime-a violation of the Kansas Offender Registration Act, K.S.A. 2018 Supp. 22-4901 et seq. (KORA). He faced a 61-month sentence on his probation revocation and, based on his criminal history score of D, he faced a sentence in the sentencing grid box of 89, 94, or 100 months on the new conviction. At his sentencing hearing, Young requested a durational departure sentence of 36 months. He also asked the court to find, under K.S.A. 2018 Supp. 21-6819(a), that it would result in a manifest injustice to run his two sentences consecutive. He asked the court to instead run the two sentences concurrent.

Young presented the same argument for both requests. He argued that he was only out of compliance for eight days and he had taken responsibility for the crime by entering a plea with no plea bargain. He argued it was simply a misunderstanding because he was not living in an unauthorized location, he was simply doing work on the house for the owner. Finally, he asked the court to consider that the underlying conviction which required him to register was 18 years old. The judge did not depart and assessed 61 months on the probation revocation and the mitigated sentence of 89 months on the new conviction. Young was also ordered to serve 36 months of postrelease supervision. The judge ran the sentences consecutive, ordering Young to prison for 150 months. He made no specific findings about manifest injustice, but he did say he was finding there were no substantial or compelling reasons to grant a departure sentence.

On appeal, Young does not appeal the revocation of his probation or the presumptive sentence the court gave him for his new offense. He recognizes that K.S.A. 2018 Supp. 21-6820(c)(1) provides that an appellate court shall not review on appeal a sentence for a felony conviction that is within the presumptive KSGA sentence for the crime. See State v. Sprung , 294 Kan. 300, 317, 277 P.3d 1100 (2012) (no jurisdiction to review presumptive sentences). Instead he seeks to appeal the denial of his request that the court depart from the special rule because of manifest injustice and run his sentences concurrent.

The question raised in this appeal is whether Young can appeal a ruling on the existence of manifest injustice under K.S.A. 2018 Supp. 21-6819(a). Whether jurisdiction exists is a question of law over which our review is unlimited. State v. Smith , 304 Kan. 916, 919, 377 P.3d 414 (2016). The right to appeal is entirely defined by our state statutes. Subject to some exceptions, we have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. 304 Kan. at 919, 377 P.3d 414. So this case really involves statutory interpretation. In other words, do the Kansas statutes provide a right to appeal in this situation? So I turn to our standard of review when examining Kansas statutes.

Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Collins , 303 Kan. 472, 473-74, 362 P.3d 1098 (2015). The most fundamental rule of statutory construction is that if we can ascertain the intent of the Legislature, that intent governs our interpretation. See State v. Jordan , 303 Kan. 1017, 1019, 370 P.3d 417 (2016). An appellate court must first attempt to discover legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Barlow , 303 Kan. 804, 813, 368 P.3d 331 (2016). When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. 303 Kan. at 813, 368 P.3d 331.

So what statutes are involved here? If a finding of manifest injustice under K.S.A. 2018 Supp. 21-6819(a) is considered a departure sentence under the KSGA, then it can be appealed. See K.S.A. 2018 Supp. 21-6820(a) ("A departure sentence is subject to appeal by the defendant or the state."). But see State v. Huerta , 291 Kan. 831, 835, 247 P.3d 1043 (2011) ("Merely moving for a departure sentence does not grant the right of appeal to a defendant, if the result of the motion is a presumptive sentence."). If Young's sentence is simply part of a presumptive sentence it is not subject to appeal. See K.S.A. 2018 Supp. 21-6820(c)(1) ("the appellate court shall not review ... [a]ny sentence that is within the presumptive sentence for the crime"). If the statute explicitly leaves the judge's decision to impose consecutive or concurrent presumptive KSGA sentences to the judge's discretion, the judge's decision is not subject to appeal. See State v. Ross , 295 Kan. 1126, 1136-38, 289 P.3d 76 (2012). But if any of the sentences involved are imposed outside the KSGA, as with off-grid crimes, the judge's decision is appealable. 295 Kan. at 1138, 289 P.3d 76. We must examine the statutory definitions of departure and presumptive sentences, as well as the statutory scheme of the KSGA and the special rule, to answer this question.

A presumptive sentence is defined as "the sentence provided in a grid block for an offender classified in that grid block by the combined effect of the crime severity ranking of the offender's current crime of conviction and the offender's criminal history." K.S.A. 2018 Supp. 21-6803(q). Young's presumptive sentences were 61 months and 89 months respectively. Whether the special rule applies has nothing to do with Young's criminal history score or his place in the grid block-the only criterion for a presumptive sentence. So by appealing the application of the special rule, Young is not appealing a presumptive sentence. He is not challenging the presumptive KSGA sentence at all.

A departure sentence is "a sentence which is inconsistent with the presumptive sentence for an offender." K.S.A. 2018 Supp. 21-6803(f). A durational departure is a "departure sentence which is inconsistent with the presumptive term of imprisonment or nonimprisonment." K.S.A. 2018 Supp. 21-6803(i). Thus, to have a departure sentence you must have a presumptive sentence from which the judge departs. Again, because applying the special rule has nothing to do with the combined effect of the crime severity ranking and the offender's criminal history score and so is not a KSGA presumptive sentence, the application of the non-KSGA special rule cannot fit the definition of a typical departure sentence. Here, Young is not challenging the district court's failure to depart from the presumptive KSGA sentence. He is appealing the application of the special rule.

That leads me to the special rule itself, K.S.A. 2018 Supp. 21-6606(c). The rule is not part of the KSGA. It only comes into the purview of the KSGA because the KSGA allows the judge to depart from this special mandatory rule in KSGA cases if the judge finds that to apply the rule would result in manifest injustice. K.S.A. 2018 Supp. 21-6819(a). The cases cited by the majority expressing the general rule that the imposition of consecutive presumptive guideline sentences does not constitute a departure do not involve application of the special rule. Accordingly, they have no application to this discussion.

I can locate only two cases that discuss application of the special rule in this context.

First, in State v. McCallum , 21 Kan. App. 2d 40, 895 P.2d 1258 (1995), the defendant was sentenced to consecutive presumptive sentences. He alleged that K.S.A. 1993 Supp. 21-4720(a) (now K.S.A. 2018 Supp. 21-6819 [a] ) implies that if "mandatory consecutive sentences can be reviewed by a higher court" then so can discretionary consecutive sentences. 21 Kan. App. 2d at 48, 895 P.2d 1258. This court rejected that argument because the case only involved consecutive sentencing in new cases. There was no probation revocation involved. The court noted that in the situation of probation revocations in conjunction with new sentences, the Legislature has provided "safeguards" to prevent manifest injustice. 21 Kan. App. 2d at 48, 895 P.2d 1258. In the case of consecutive sentencing for new KSGA crimes, the court found a different safeguard appeared at K.S.A. 1993 Supp. 21-4720(c)(3) (" 'The total imprisonment term of the consecutive sentences, including the imprisonment term for the departure crime, shall not exceed twice the maximum presumptive imprisonment term of the departure sentence following aggravation.' "). 21 Kan. App. 2d at 48, 895 P.2d 1258. So although it discussed the special rule provision of what is now K.S.A. 2018 Supp. 21-6819(a), the court in McCallum did not rule on that basis.

The second case is State v. Rose , No. 90,111, 2004 WL 117358 (Kan. App. 2004) (unpublished opinion). Rose was an appeal by the State on a question reserved. Contrary to the position the State takes here, the State argued in Rose that it could appeal the judge's decision to grant concurrent rather than consecutive sentences based on a finding of manifest injustice under K.S.A. 2002 Supp. 21-4720(a) (now K.S.A. 2018 Supp. 21-6819 [a] ). This court agreed that the State could appeal such a finding. The court held that this was not simply a discretionary decision regarding concurrent or consecutive sentences, but a discretionary decision concerning whether manifest injustice existed. 2004 WL 117358, at *2. The court relied on State v. Torrance , 22 Kan. App. 2d 721, 730, 922 P.2d 1109 (1996), for the proposition that " 'whether a sentence has resulted in manifest injustice must be made on a case-by-case basis under a "shocking to the conscience" consideration; that is, whether the trial court has abused its discretion by imposing a sentence that is obviously unfair and shocks the conscience of the court. [Citation omitted.]' " Rose , 2004 WL 117358, at *3.

I agree with the analysis in Rose . The statute is clear and unambiguous. Under K.S.A. 2018 Supp. 21-6819(a) a court has the discretion to determine whether manifest injustice exists to override the mandatory non-KSGA sentencing rule in K.S.A. 2018 Supp. 21-6606(c). Such a decision is distinctively different than whether to impose consecutive or concurrent presumptive KSGA sentences and is more akin to a departure sentence. This interpretation is further bolstered by the language of K.S.A. 2018 Supp. 21-6819(b). In context, immediately following the provision in subsection (a) indicating that concurrent sentences in combination probation and new crime sentencing cases can be given upon a finding that it would result in manifest injustice to give consecutive sentences, subsection (b) says: "The sentencing judge shall otherwise have discretion to impose concurrent or consecutive sentences in multiple conviction cases." (Emphasis added.) This language indicates that application of subsection (a) is different than the standard consecutive/concurrent sentencing discretion discussed in cases cited by the majority.

Accordingly, I would find that we do have jurisdiction to consider whether the district court abused its discretion in determining the existence of manifest injustice as outlined in K.S.A. 2018 Supp. 21-6819(a) and K.S.A. 2018 Supp. 21-6606(c).

The district judge did not abuse his discretion in denying Young's request for concurrent sentences.

To run Young's sentences concurrent, Young had the burden of proof to establish that to run them consecutive would result in manifest injustice. K.S.A. 2018 Supp. 21-6819(a). This is a high hurdle. A sentence results in "manifest injustice" only when it is obviously unfair and shocks the conscience of the court. Wilkinson v. State , 40 Kan. App. 2d 741, 742, 195 P.3d 278 (2008).

The district court found there was no manifest injustice, so Young failed to prove otherwise to the satisfaction of the court. Finding that a party did not meet its burden of proof is a negative factual finding. In reviewing a negative factual finding, the appellate court must consider whether the district court arbitrarily disregarded undisputed evidence or relied on some extrinsic consideration such as bias, passion, or prejudice to reach its decision. State v. Smith , 303 Kan. 673, 679, 366 P.3d 226 (2016).

Moreover, we decide whether a sentence results in manifest injustice on a case-by-case basis. "The standard of review to be employed in such cases is whether the trial court has abused its discretion by imposing a sentence which is obviously unfair and shocks the conscience of the court."

State v. Cramer , 17 Kan. App. 2d 623, Syl. ¶ 5, 841 P.2d 1111 (1992). A judicial action constitutes an abuse of discretion if (1) no reasonable person would take the view adopted by the trial court; (2) it is based on an error of law; or (3) it is based on an error of fact. State v. Marshall , 303 Kan. 438, 445, 362 P.3d 587 (2015).

Young contends that 150 months in prison for missing filing deadlines is obviously unfair and shocks the conscious.

"Running Mr. Young's prison sentence consecutive resulted in a 12½ year prison sentence. Is that global sentence debatably reasonable? Mr. Young respectfully submits it is not. By any moral standard a 12½ year prison sentence is an excessive punishment for the offense of missing filing deadlines.
"The district court, in this case, could have reduced Mr. Young's global prison sentences for cases 16 CR 2039 and 17 CR 2265 from 12½ years to a still-excessive 7½ years by making a 'simple manifest injustice' finding. The court's decision not to do that was unreasonable, and, thus, an abuse of discretion."

Young's counsel presented all the same arguments to the district court related to his request for a manifest injustice finding as he did for a durational departure: this was a misunderstanding, he was only eight days late in reporting, he took responsibility and pleaded guilty with no plea agreement in place, and the underlying conviction that required him to report was 18 years old.

But the State presented a competing view of Young's behavior. The case for which Young was on probation, which was his second conviction for a KORA violation, was a presumptive prison case and Young was granted a dispositional departure to probation. In the new case, his third conviction for a KORA violation, he was at a residence where he was not supposed to be for about three weeks and the owner had repeatedly asked him to leave but he refused. The State argued that Young knew what he was supposed to do in the most recent case, because he had two prior convictions for the same thing. In addition, Young failed to report on probation. He admitted he had used methamphetamine while on probation and failed to complete drug treatment. He failed to make payments toward his fines and costs. He committed the crime of criminal trespass. And, he failed to provide proof of employment.

After hearing all the evidence, the judge noted that Young was a person who knew of the registration requirements due to his multiple prior convictions. He questioned Young's credibility regarding the situation he described as a misunderstanding. The judge found there were no substantial or compelling reasons to grant a departure sentence. He ordered the sentences to run consecutive, finding-although not stating-that no manifest injustice would result.

Given all the facts presented to him, I find no evidence that the district judge arbitrarily disregarded undisputed evidence or relied upon some extrinsic consideration such as bias, passion, or prejudice to reach his decision. He committed no error of fact or law. I cannot conclude that no reasonable judge would have taken the position of the district judge here given Young's extensive history of violating the KORA. I find nothing unfair or shocking about the sentence. It should have come as no surprise to Young. Accordingly, there was no abuse of discretion here and I would affirm the decision of the district court.


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    In the INTERESTS OF W.J., B.J., and A.J., Minor Children.
    120,608 120,609 120,610
    Court of Appeals of Kansas.
    Opinion filed May 31, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Johnny HOGUE, Appellant.
    No. 119,792
    Court of Appeals of Kansas.
    Opinion filed June 14, 2019
    Affirmed in part. Dismissed in part.


text:
    Jose DELIRA Jr., Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
    No. 119,614
    Court of Appeals of Kansas.
    Opinion filed June 14, 2019.
    Affirmed.


text:
    FARMERS STATE BANK, Wathena, Kansas, Appellee, v. William ORCUTT, et al., Appellant.
    No. 119,570
    Court of Appeals of Kansas.
    Opinion filed June 14, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Connie H. VINEYARD, Appellant.
    Nos. 120 430 120,431
    Court of Appeals of Kansas.
    Opinion filed June 14, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Kevin K. BEASLEY, Appellant.
    No. 120,097
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Affirmed.


text:
    In the INTERESTS OF S.B., C.B., and K.B., Minor Children.
    No. 120,362
    Court of Appeals of Kansas.
    Opinion filed June 14, 2019
    Reversed. Remanded.


text:
    STATE of Kansas, Appellee, v. Chantry Michael MOON, Appellant.
    No. 119,423
    Court of Appeals of Kansas.
    Opinion filed June 14, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Roger Bryan SCHMIDT, Appellant.
    No. 119,354
    Court of Appeals of Kansas.
    Opinion filed June 14, 2019
    Affirmed.


text:
    Richard D. MILTON, Appellant, v. STATE of Kansas, Appellee.
    No. 119,821
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Affirmed.


text:
    Kenneth Eugene WILSON, Appellant, v. STATE of Kansas, Appellee.
    No. 119,227
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Cody W. COLLINS, Appellant.
    No. 119,522
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Vacate.


text:
    STATE of Kansas, Appellee, v. Roger R. SMITH II, Appellant.
    No. 119,234
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Michael R. CARIGNAN, Appellant.
    Nos. 119 191 119,192 119,193
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Ryan Douglas HOWSER, Appellant.
    No. 120,393
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Martinus T. HARRIS, Appellant.
    No. 119,496
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Jose A. IBARRA, Appellant.
    No. 120,914
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Austin T. MASON, Appellant.
    No. 119,859
    Court of Appeals of Kansas.
    Opinion filed June 21, 2019
    Affirmed.


author: By the Court, STIGLICH, J.:

text:
    William P. CASTILLO, Appellant, v. The STATE of Nevada, Respondent.
    No. 73465
    Supreme Court of Nevada.
    FILED MAY 30, 2019
    Rene L. Valladares, Federal Public Defender, and Ellesse D. Henderson, Bradley D. Levenson, Tiffany L. Nocon, and David Anthony, Assistant Federal Public Defenders, Las Vegas, for Appellant.
    Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District Attorney, Clark County, for Respondent.
    BEFORE THE COURT EN BANC.
   By the Court, STIGLICH, J.:

Appellant William Castillo, who was sentenced to death in 1996, filed a procedurally barred postconviction petition for a writ of habeas corpus asserting that he was entitled to a new penalty hearing. He claimed he demonstrated good cause and prejudice to excuse the procedural bars based on Hurst v. Florida , 577 U.S. ----, 136 S. Ct. 616, 193 L.Ed.2d 504 (2016). He specifically argued that Hurst did two things: (1) it established that the weighing component of Nevada's death penalty procedures is a "fact" that must be proven beyond a reasonable doubt, and (2) it clarified that all eligibility determinations, regardless of whether they are factual, are subject to the beyond-a-reasonable-doubt standard. We recently rejected the first argument, Jeremias v. State, 134 Nev. ----, ----, 412 P.3d 43, 53, cert, denied, --- U.S. ----, 139 S. Ct. 415, 202 L.Ed.2d 320 (2018), and in doing so, we reaffirmed our prior decisions that a defendant is death-eligible in Nevada once the State proves beyond a reasonable doubt the elements of first-degree murder and at least one statutory aggravating circumstance, Lisle v. State, 131 Nev. 356, 365-66, 351 P.3d 725, 732 (2015). We previously rejected the second argument that the beyond-a-reasonable-doubt standard does not apply to the weighing of aggravating and mitigating circumstances in Nunnery v. State, 127 Nev. 749, 772, 263 P.3d 235, 250-51 (2011). Castillo fails to demonstrate that these prior decisions were incorrect or that Hurst compels us to reach a different result. Thus, he fails to demonstrate good cause to excuse the procedural bars, and the district court correctly denied his petition.

FACTS AND PROCEDURAL HISTORY

Castillo bludgeoned an elderly woman to death in 1995 and was sentenced to death. After this court affirmed the judgment of conviction on direct appeal, Castillo v. State, 114 Nev. 271, 956 P.2d 103 (1998), Castillo filed a postconviction petition for a writ of habeas corpus, which was denied. Later, he filed a second postconviction petition for a writ of habeas corpus, which was also denied. In 2017, he filed the postconviction petition at issue here, his third petition filed in state court. Because the 2017 petition was not filed within one year after the remittitur issued from his direct appeal and because Castillo had previously sought postconviction relief, the district court denied it as untimely, see NRS 34.726, successive, see NRS 34.810(2), abusive, see id., and barred by laches, see NRS 34.800(2), concluding that Castillo failed to demonstrate good cause and prejudice to excuse the various procedural bars. This appeal followed.

DISCUSSION

Under Nevada law, a petitioner cannot relitigate his sentence decades after his conviction by continually filing postconviction petitions unless he provides a legal reason that excuses both the delay in filing and the failure to raise the asserted errors earlier, and further shows that the asserted errors worked to his "actual and substantial disadvantage." State v. Huebler, 128 Nev. 192, 197, 275 P.3d 91, 95 (2012). Castillo argues that he demonstrated good cause and prejudice because the United States Supreme Court's decision in Hurst provided him with new and meritorious claims for relief that were not available earlier. See Bejarano v. State, 122 Nev. 1066, 1072, 146 P.3d 265, 270 (2006). To resolve this contention, we must determine whether his interpretation of Hurst has merit, which we undertake de novo. See Huebler , 128 Nev. at 197, 275 P.3d at 95.

The holding in Hurst v. Florida, 577 U.S. ----, 136 S. Ct. 616, 193 L.Ed.2d 504 (2016)

In Hurst , the United States Supreme Court applied Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), to Florida's death penalty statutes. The Florida statutes created a system where the jury considered evidence of aggravating and mitigating circumstances and then recommended to the judge whether to impose a death sentence. Hurst, 577 U.S. at ----, 136 S. Ct. at 620. Under that system, the judge made the ultimate decision whether to impose a death sentence, including her own determination whether any aggravating and mitigating circumstances existed. Id. The Court held that "Florida's sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance," violated the Sixth Amendment. Id. at ----, 136 S. Ct. at 624.

We considered Hurst ' s impact on our death penalty system in Jeremias v. State, 134 Nev. ----, ----, 412 P.3d 43 (2018). The appellant in that case argued that Hurst established, for the first time, that "where the weighing of facts in aggravation and mitigation is a condition of death eligibility, it constitutes a factual finding which must be proven beyond a reasonable doubt." Id. And pointing to language in some of this court's prior decisions stating that a defendant is not death-eligible unless a jury concludes both that there are aggravating circumstances and that any mitigating circumstances do not outweigh those aggravating circumstances, he argued that he was entitled to a new penalty hearing because the jury was not properly instructed on the burden of proof. Id. We disagreed for two main reasons. First, we held that the appellant was taking language in Hurst out of context and the decision did not announce new law relevant in Nevada. Id. at 53-54. Second, we explained that while some of this court's prior decisions described the weighing of aggravating and mitigating circumstances as part of the death-eligibility determination, we had reiterated in Lisle v. State, 131 Nev. 356, 365-66, 351 P.3d 725, 732 (2015), that a defendant is death-eligible once the State proves the elements of first-degree murder and the existence of at least one statutory aggravating circumstance. Jeremias, 134 Nev. at ----, 412 P.3d at 54.

Hurst did not redefine the word "fact"

Castillo first argues that Hurst does more than merely analyze Florida's death penalty procedures in light of Apprendi and Ring . Pointing to language in Hurst describing the outcome of the weighing determination in Florida as a fact and suggesting it was a critical finding necessary to increase the defendant's sentence, Castillo asserts that Hurst establishes that whenever a State conditions death-eligibility on the weighing of aggravating and mitigating circumstances, the outcome of that weighing is a fact subject to the burden of proof beyond a reasonable doubt. We do not agree. As we indicated in Jeremias , a close reading of Hurst shows that the few references to the weighing component of Florida law as a factual finding involved quotations from the Florida statute. 134 Nev. at ----, 412 P.3d at 53-54. Our conclusion that Hurst broke no new ground in this area is consistent with that of "[m]ost federal and state courts," State v. Lotter, 301 Neb. 125, 917 N.W.2d 850, 863 (2018) (footnotes omitted), petition for cert, filed , --- U.S.L.W. ---- (U.S. March 13, 2019) (No. 18-8415), and Castillo fails to demonstrate that it was incorrect.

The beyond-a-reasonable-doubt standard only applies to facts

Castillo also raises a new argument that we have not previously considered: he suggests that Hurst eliminated the distinction between factual findings and other determinations for purposes of applying Apprendi in the context of capital sentencing. He contends that, under Hurst , regardless of whether the jury is being asked to make a factual finding, a moral determination, or something else altogether, if its decision makes a defendant death-eligible, it is an element of the capital offense and therefore must be alleged in the charging document, submitted to a jury, and proven beyond a reasonable doubt. Nothing in Hurst can be read to support this assertion. Like Apprendi and Ring, Hurst clearly limits its reach to facts that expose a defendant to a higher sentence. Hurst , 577 U.S. at ----, 136 S. Ct. at 619 (holding that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death" (emphasis added)); accord Ring , 536 U.S. at 589, 122 S.Ct. 2428 (holding that "[c]apital defendants, no less than noncapital defendants ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment" (emphasis added)); Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (holding that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt" (emphasis added)). Indeed, to support his argument that Hurst extends the Apprendi rule to all determinations, regardless of whether they involve fact-finding, Castillo circles back to the same mischaracterized language in Hurst discussed above, which uses the word "fact" when quoting the Florida statute. We find no credence in the assertion that the Court's scattered references to the language in Florida's statute were intended to broaden the reach of Apprendi and Ring by obliterating the distinction between factual findings and moral choices regarding the weight to ascribe to a factual finding. See generally In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (discussing the genesis of the burden of proof beyond a reasonable doubt and its role in reducing the risk of convictions resting on factual error). Castillo fails to demonstrate that Hurst announced a new rule relevant to the weighing component of Nevada's death penalty statutes.

The weighing determination is not part of death-eligibility

Even if Hurst announced the new rule Castillo advances, we reiterate that it would have no impact because the weighing of aggravating and mitigating circumstances is not part of death-eligibility under our statutory scheme. See Lisle , 131 Nev. at 365-66, 351 P.3d at 732. In Nevada, the facts that expose a defendant to a death sentence, and therefore render him death-eligible for the purposes of Apprendi and Ring , are the elements of first-degree murder and any statutory aggravating circumstance. Jeremias , 134 Nev. at ----, 412 P.3d at 54 ; Lisle, 131 Nev. at 365-66, 351 P.3d at 732. Although the relevant statutes provide that a jury cannot impose a death sentence if it concludes the mitigating circumstances outweigh the aggravating circumstances, NRS 175.554(3) ; NRS 200.030(4)(a), that provision guides jurors in exercising their discretion to impose a sentence to which the defendant is already exposed, Apprendi , 530 U.S. at 481, 120 S.Ct. 2348 (acknowledging that, at common law, a sentencer always had the discretion to "tak[e] into consideration various factors relating both to offense and offender-in imposing a judgment within the range prescribed by statute"), and checks the unfettered exercise of that discretion, see generally Gregg v. Georgia, 428 U.S. 153, 220-21, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (White, J., concurring) (indicating that systems of capital punishment that give the sentencer unguided discretion are cruel and unusual).

CONCLUSION

Because Castillo's arguments regarding Hurst lack merit, he fails to demonstrate good cause and prejudice to excuse the various procedural bars precluding him from challenging his sentence at this late date. We therefore conclude that the district court did not err by denying Castillo's postconviction petition for a writ of habeas corpus and affirm.

We concur:

Gibbons, C.J.

Pickering, J.

Hardesty, J.

Parraguirre, J.

Cadish, J.

Silver, J.

      We reject Castillo's argument that he should be permitted to take advantage of the apparent confusion caused by our prior lack of precision when using the term "eligibility." As Castillo himself points out, "the relevant inquiry is one not of form, but of effect." Apprendi, 530 U.S. at 494, 120 S.Ct. 2348.

      Castillo also argues that Hurst establishes that the practice of appellate reweighing of aggravating and mitigating circumstances is unconstitutional. Setting aside the fact that Hurst says nothing on this issue, the Supreme Court has permitted appellate reweighing. Clemons v. Mississippi, 494 U.S. 738, 750, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). The Court has not overruled Clemons and therefore it remains good law. See Bosse v. Oklahoma, 580 U.S. ----, ----, 137 S. Ct. 1, 2, 196 L.Ed.2d 1 (2016) ("Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality." (quoting Hohn v. United States, 524 U.S. 236, 252-53, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998) )).


text:
    In the MATTER OF DISCIPLINE OF Demetrios A. DALACAS, Esq., Bar No. 7317.
    No. 78383
    Supreme Court of Nevada.
    FILED JUNE 14, 2019
    Suspend.


author: EDMONDSON, J.

text:
    AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, LOCAL 2875, Robert Green, Plaintiffs/Appellants, and William Fox, Plaintiff, v. CITY OF NORMAN, Oklahoma, a municipal corporation, Defendant/Appellee.
    No. 114,640
    Supreme Court of Oklahoma.
    FILED MAY 14, 2019
    Douglas D. Vernier, Moore & Leaman, Oklahoma City, Oklahoma, for Appellants,
    Kathryn D. Terry, Phillips Murrah, Oklahoma City, Oklahoma, for Appellees.
   EDMONDSON, J.

¶ 1 Appellants, American Federation of State, County and Municipal Employees, Local 2875 (Union), and Robert Green (Green), seek certiorari relief from the Court of Civil Appeals' (COCA) opinion affirming the trial court's grant of summary judgment in favor of the City of Norman and reversing an arbitration award in favor of Green and Union.

¶ 2 On certiorari, Union and Green assert the following reasons in support of the review of the Court of Civil Appeals' decision: (1) COCA decided a question of substance in a way not in accord with applicable decisions of this Court because (a) COCA found the grievance only raised the issue of progressive discipline and it did not raise the issue of "just cause" for discipline and (b) COCA found the arbitrator exceeded his authority when he found that the term "progressive discipline" contained in Article 12, Section 1 of the CBA, is not inconsistent with "just cause" and the two concepts are intertwined; (2) the courts below have so far departed from the accepted and usual course of judicial proceedings as to call for the exercise of this Court's power of supervision as follows: (a) by applying 12 O.S. 2011, § 1874(A)(4), the Uniform Arbitration Act, which specifically does not apply to arbitrations arising from a collective bargaining agreement, 12 O.S. 2011 § 1855(D) and (b) by applying a standard borrowed from the Sixth Circuit by the court in Fraternal Order of Police, Lodge 142 v. City of Perkins , 2006 OK CIV APP 122, 146 P.3d 829 ; the 6th Circuit has since vacated the opinion relied on by the Court of Civil Appeals, see Michigan Family Resources, Inc. v. Service Employees Int'l Union Local 517M , 475 F.3d 746 (6th Cir. 2007).

¶ 3 City responded that this Court should decline review of this matter because the district court and COCA's finding that the arbitrator far exceeded the grant of authority pursuant to the CBA was correct as a matter of fact and law. Appellee also argued that (1) COCA's opinion is in accord with the decisions of this Court and (2) that COCA did not depart from the usual course of judicial proceedings. City also argued, as it had below, that Green failed to raise the issue of "just cause" as it related to his termination, and thus, this issue was not within the scope of the arbitrator's review.

FACTS AND PROCEDURAL HISTORY

¶ 4 Union and Appellee, City of Norman (City) are parties to a Collective Bargaining Agreement (CBA) effective July 1, 2012 through June 30, 2013. The purpose of the CBA was for "the promotion of harmonious relationships between the City and the Union, the establishment of an equitable and peaceful procedure for the resolution of differences...." The parties contractually agreed to the following process for filing grievances and to determine the scope of the arbitrator's authority:

Authority of the Arbitrator - The arbitrator shall only consider and make a decision with respect to the specific issue or action being appealed to him or her in the grievance(s), and the arbitrator shall have no right or authority to make a decision concerning any other actions or issues.... This decision shall be based solely upon the arbitrator's interpretation of the meaning and application of the express provisions of this Agreement as such relates to the facts of the grievance as presented.

Under the CBA, the arbitrator has the sole authority to receive the evidence and interpret the meaning of the factual information as it relates to relevant portions of the CBA.

¶ 5 In spite of this absolute grant of authority to the arbitrator, City successfully argued below that the arbitrator acted outside of his scope by deciding that City did not have "just cause" to terminate Green. The crux of City's contention was that Green's failure to include the words "just cause" in his grievance, was a fatal flaw. Accordingly, City argued, arbitrator's decision in this regard could not be considered a "specific issue or action being appealed." Thus, arbitrator's decision in this regard was outside the scope of his authority under the CBA. This narrow focus distorts the actual evidence by ignoring critical information in the official grievance. In addition, the City, district court and COCA neglected to consider key portions of the CBA which define the parameters for the submission of a grievance as well as the extent of deference given to the arbitrator as the sole decision maker.

¶ 6 The United States Supreme Court has made clear that courts have no business overruling an arbitrator's decision "because their interpretation of the contract is different from his." United Steelworkers v. Enterprise Wheel & Car Corp. , 363 U.S. 593, 599, 80 S.Ct. 1358, 1362, 4 L.Ed.2d 1424 (1960). Otherwise, "settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards." Id . at 596, 80 S.Ct. at 1360.

¶ 7 Almost forty years ago, Oklahoma adopted the principles set forth in Enterprise Wheel, noting that an arbitration award must be enforced if the arbitrator stays within the submission of issues and makes an award within the authority granted in the agreement. Voss v. City of Okla. City , 1980 OK 148, ¶ 6, 618 P.2d 925, 928. More recently, we again announced that the arbitrator is entitled to great deference with respect to the decision and "we will not review the factual or legal findings of the arbitrator nor consider the merits of the award." City of Yukon v. International Ass'n of Firefighters, Local 2055 , 1990 OK 48, ¶ 8, 792 P.2d 1176, 1179 (citations omitted). In fact, "this Court may only consider whether the arbitrator's decision 'draws its essence from the collective bargaining agreement.' " Id. It is with this lens that the CBA must be reviewed to determine if the arbitrator in this matter has acted within the scope of the CBA. This Court's inquiry is narrow; it is not to re-examine the evidence below and determine whether the arbitrator made a correct decision.

¶ 8 On April 2, 2014, City terminated long term employee Green, alleging that he routinely and frequently took excessive rest and lunch breaks, failed to perform work, and then falsified his time records by not reflecting the extended breaks. City alleged these acts violated the City of Norman policy, as well as the CBA. Green disputed the grounds for his discharge. Green and Union filed a grievance challenging the termination. City denied the grievance.

¶ 9 City successfully argued at the trial court and also before the Court of Civil Appeals, that Union's failure to include the specific words "just cause" in the grievance prevented the arbitrator from rendering a decision in this regard. Instead, City urged that the only issue properly before the arbitrator was the issue of progressive discipline. City's over-simplification not only ignores the plain language of the CBA directing the content and manner in which a grievance is filed, but also the actual language of the grievance as submitted.

Grievable Issues

¶ 10 The CBA specifically allows a Union member like Green to file a grievance that includes the interpretation and application of provisions within the CBA. The CBA outlines "the issues and actions which shall be considered and treated as grievable" which include the following:

a. Issues - An issue which involves either of the following: (1) The meaning, interpretation or application of the express provisions of this Agreement; or (2) The application of the rules and regulations established and enforced by the City. (Emphasis added)
****
c. Disciplinary Actions - Any of the following disciplinary actions: (1) the oral reprimand or written reprimand of an employee; (2) The suspension or pending suspension of an employee; (3) The involuntary demotion or pending demotion of an employee, but excluding any such demotion which occurs in conjunction with the bumping procedure; (4) The discharge of an employee.

On the line where Green was to "list applicable violation," Union and Green specifically identified Article 12, Section 1, as the section at issue. The first sentence of this Article 12, Section 1 states: "The City may discipline any employee for just cause ."

Official Grievance as Submitted by Union

¶ 11 The CBA outlines the following directions for filing a grievance:

No grievance shall be processed through the various Grievance Steps unless it is submitted to the Human Resources Department on the approved "Grievance Form," and unless it is properly completed, signed and dated by the aggrieved employee or group of employees. In this regard, the "Grievance Form" must contain a statement of the grievant's complaint, the appropriate grievance number, the Section(s) of the Agreement allegedly violated, the date of the alleged violation, and the relief or remedy sought. However, an incorrect date and/or improper Section citation shall not in itself be grounds for denial of the grievance.
In the event that it is necessary for the Human Resources Director to work with the employee, the group of employees, and/or the Union to clarify the grievance as stated on the "Grievance Form," and/or necessary for the employee, the group of employees, and/or the Union to correct and resubmit the "Grievance Form," such additional time as my be required for this shall not be counted towards the time limits established for the various Grievance steps.
If a grievance is not submitted in the manner set forth above, it shall be considered "waived."

The "Official Grievance Form" consists of a one page document, with approximately ¼ of this form dedicated to providing the "Statement of Grievance." Within this section are two headings: "List applicable violation" and "Adjustment required". This form is required to be used for all grievance submissions.

¶ 12 In the matter before us, the official grievance as filed by Union stated as follows:

STATEMENT OF GRIEVANCE:
List applicable violation : ART. 12, SEC 1; NO PREVIOUS DISCIPLINE IN THE PAST 5 YEARS; MR. GREEN HAS BEEN EMPLOYED WITH THE CITY FOR OVER 30 YEARS.
__________
Adjustment required : FOLLOW PROGRESSIVE DISCIPLINE.

¶ 13 It is undisputed, Union listed in its official "Statement of Grievance" that City had violated Art. 12, Sec.1. This section states as follows:

ARTICLE 12
DISCIPLINARY ACTIONS
Section 1. Types of Disciplinary Actions - The City may discipline for just cause . In this regard, employees who violate the established rules and regulations of the City, are negligent in the performance of their duties or the use of City equipment or vehicles, are insubordinate, or are otherwise involved in similar acts of misfeasance (performance of authorized tasks, duties and responsibilities in an improper or negligent manner), malfeasance (performance of an unauthorized or unlawful act), or nonfeasance (failure to perform required tasks and duties, or to carry out assigned responsibilities) which reflect discredit upon the municipal service or are a direct hindrance to the effective performance of the municipal government functions, shall be subject to having disciplinary actions or measures taken against them.
The City agrees with the concept of progressive disciplinary action and, to the extent circumstances warrant such, the City shall impose disciplinary actions in a progressive manner, In this regard, however, the City and the Union also understand that each infraction giving rise to disciplinary action must be judged accordingly, and that consequently a major or particularly serious infraction or a series of repeated infractions, may warrant the imposition of a more severe disciplinary action, including discharge. Likewise, the weight to be given prior recorded disciplinary actions is reduced by a reasonable passage of time without further disciplinary actions.

The very first violation listed by Union on the Official Grievance Form was, Article 12, Section 1. This section uses the very words "just cause" as the basis for any disciplinary action. The record before us belies City's argument that Union and Green failed to raise the issue of "just cause."

¶ 14 After City denied the grievance, the matter progressed to an arbitration hearing. Following the hearing, on November 24, 2014, the arbitrator issued an Opinion and Award finding that the City did not have "just cause" to terminate Green's employment and ordered reinstatement. The issues before this Court on certiorari relate to the following portion of the arbitrator's decision:

VII. AWARDS
For all the reasons set forth and discussed above, which all are encouraged to read with care, it is the Award of the undersigned Arbitrator that the grievances of Bill Fox and Bobby Green are SUSTAINED. The City did not have just cause to discharge these grievants; they had done nothing wrong.
As remedy, Green and Fox are to be immediately reinstated to their former employment with the City, and made abundantly whole with respect to back pay, including lost overtime, and all contractually related benefits to which they are entitled, including seniority. Given the circumstances, there is to be no offset to the award of back pay. It is further ordered that this entire matter be purged from all records of their employment and is not to be used in any manner against them in the future.

The arbitrator also determined the City's actions against Green were wholly unfounded and noted in his opinion that the real reason Green was terminated was because of whistle blowing. Arbitrator received evidence from terminated employees and other witnesses from management. He then concluded that the investigation against Green was initiated after Green had reported suspected misconduct by his supervisor, calling Green a whistle blower. Arbitrator found no evidence to support any misconduct by Green and found no basis for his discharge. Instead, arbitrator found that "the City's prolonged 'investigation' was nothing more than a preconceived lynching of Green and Fox.... The Union's conclusion that 'Management's fault in the matter runs high,' understates the City's duplicity." The arbitrator also awarded punitive damages against the City "plus all legal fees to the Local Union 2875 for prosecution of the grievances."

¶ 15 On February 24, 2015, Union and Green filed a Petition in district court, and requested "judgment against Defendant, enforcing the Arbitration Award in all respects, except punitive damages, and ordering Defendant to comply with the Award, plus interest, and awarding Plaintiffs' attorney fees and costs of this action." City filed a counter petition asking the court to vacate the arbitrator's opinion. City argued that the arbitrator had exceeded his grant of authority under the CBA because he rendered a decision that involved an analysis of "just cause" for termination. City argued Union and Green did not use the words "just cause" in the Official Grievance form, thus any consideration of this issue by the arbitrator was outside the scope of the authority granted in the CBA. City urged that the only issue preserved by Green was the listed remedy of "progressive discipline."

¶ 16 Green and Union filed a motion for partial summary judgment, asking the district court to render a ruling on the enforcement of the arbitration award as it relates to the reinstatement of employment of Green. Union did not request a ruling on attorney fees in its partial summary relief motion. Thus, there is no ruling or issue relating to attorney fees before this Court on certiorari.

¶ 17 The district court denied Union and Green's motion for partial summary relief and granted City's motion for summary judgment and vacated the arbitrator's award. The district court after reviewing the testimony and evidence presented held:

1. An arbitration award is only legitimate if it "draws its essence from the collective bargaining agreement." If the arbitrator's words manifest an infidelity to this duty, the reviewing court has no choice but to refuse to enforce the award. The Sixth Circuit has stated an arbitrator's award does not draw its essence from the CBA when it:
1. conflicts with express terms of the collective bargaining agreement;
2. imposes additional requirements that are not expressly provided in the agreement;
3. is without rational support or cannot be rationally derived from the terms of the agreement; or
4. is based on general considerations of fairness and equity instead of the precise terms of the agreement. Cement Divisions, National Gypsum Co. v. United Steelworkers of America , 793 F.2d 759, 766 (6th Cir. 1986).
2. In the present case, the Collective Bargaining Agreement (CBA) specifically addresses the arbitrator's authority. The CBA states "[t]he arbitrator shall only consider and make a decision with respect to the specific issue or action being appealed to him or her in the grievance(s), and the arbitrator shall have no right or authority to make a decision concerning any other actions or issues. CBA p. 13.
3. The CBA further states that grievances must contain a statement of the complaint and the relief or remedy sought. The grievance at issue in this matter states Robert Green has not been disciplined in the past five (5) years and Mr. Green has been employed with the City of Norman (City) for over thirty 30 years. (Official Grievance Form, Robert Green). Further, in the "adjustment required" section, Mr. Green requested the City "follow progressive discipline." Id. As such, the Court finds the authority of the arbitrator in this matter, Mr. Bankston, was limited to the issue of progressive discipline.
4. Mr. Bankston did not limit his analysis and decision making to the issue of progressive discipline. Rather, Mr. Bankston analyzed whether the City had just cause to terminate Mr. Green and Mr. Fox. See , Arbitration Opinion and Award of E.W. Bankston, Arbitrator , issued November 24, 2014, pg. 3. Mr. Bankston's Arbitration Opinion and Award (Opinion and Award) states "just cause is always at issue in matters of discipline. First, the City must prove that the cause of the disciplinary sanction is just. Only then is the application of progressive discipline at issue." Id. at 18. As a result, Mr. Bankston did not address the issue of progressive discipline.
5. Based upon the language of the CBA referenced above as well as the grievances filed by Mr. Green and Mr. Fox, the Court finds the Opinion and Award issued by Mr. Bankston conflicts with the express terms of the CBA. The Court believes it is clear that the only issue that should have been addressed by Mr. Bankston was progressive discipline. Therefore, the Court finds that by addressing the issue of just cause and basing the award on the same, Mr. Bankston exceeded his authority as arbitrator. As such, the Opinion and Award does not draw its essence from the CBA. Consequently, the Opinion and Award must be vacated.

¶ 18 Following the trial court's ruling, Green filed a Petition in Error urging the trial court erred both in fact and law when it vacated the arbitrator's decision. COCA affirmed the trial court but remanded the matter back to the trial court with instructions to remit this matter to the arbitrator to resolve the issue of progressive discipline. We hold the arbitrator acted in accordance with the terms of the CBA and we vacate the Court of Civil Appeals' opinion, and reverse the trial court's judgment.

STANDARD OF REVIEW

¶ 19 This Court has adopted the review standard set forth by the U.S. Supreme Court in the Steelworkers Trilogy, which affords "great deference to the decision of the arbitrator; we will not review the factual or legal findings of the arbitrator nor consider the merits of the award." City of Yukon , supra, 1990 OK 48, at ¶ 8, 792 P.2d at 1179 (citations omitted).

LEGAL ANALYSIS

¶ 20 The U.S. Supreme Court has continued to refine the standard of review in the enforcement of arbitration awards rendered under a collective bargaining agreement. United Paperworkers Int'l Union,AFL-CIO v. Misco, Inc. , 484 U.S. 29, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987). Relying on the foundation of the Steelworkers Trilogy , Misco reminded litigants that the courts have a very limited role when the losing party in an arbitration proceeding seeks judicial intervention. Id. at 36, 108 S.Ct. at 364. COCA affirmed "the trial court's determination that the arbitrator exceeded his powers under the CBA when he made findings of fact and conclusions regarding the issue of 'just cause.' " In order to clarify whether an award "draws its essence from the contract" or whether it impermissibly reflects the "arbitrator's own notions of industrial justice," Misco offers this guidance: "as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision." Id. at 38, 108 S.Ct. at 364. However, arbitral decisions procured by fraud or through the arbitrator's dishonesty are not enforceable. Id. at 38, 108 S.Ct. at 371. There are no allegations or evidence of fraud or dishonesty in the matter before us. Thus, the focus of our inquiry will be whether the arbitrator was arguably construing or applying the contract and acting within his scope of authority.

¶ 21 This approach honors the purpose of arbitration "to preclude court intervention into the merits of disputes when arbitration has been provided for contractually." Voss, supra , 1980 OK 148, ¶ 5, 618 P.2d at 927. The teachings of Misco have been adopted by this Court, that the courts are not authorized to reconsider the merits of an award, even with allegations of errors of fact or misinterpretation of the contract. City of Yukon, supra, 1990 OK 48, ¶ 8, 792 P.2d at 1179.

¶ 22 It is not for this Court to weigh the evidence below to determine whether: (1) the arbitrator's decision is supported by the facts, (2) the arbitrator correctly interpreted the contract, or (3) the arbitrator correctly applied the facts to the provisions of the contract. The lens of our review is restricted to whether the arbitrator, in formulating the Opinion and Award at issue, was arguably construing or applying the contract and acting within the scope of his authority therein. City of Yukon, Id.

¶ 23 We begin with examining the CBA and the grant of authority given to the arbitrator. The section of the CBA labeled "Authority of the Arbitrator" clearly provides that the arbitrator's decision shall be based solely upon the arbitrator's interpretation of the meaning and application of the express provisions of this Agreement as such relates to the facts of the grievance as presented. As noted by City, trial court and COCA, the arbitrator is limited and "shall only consider and make a decision with respect to the specific issue or action being appealed to him or her in the grievance(s), and the arbitrator shall have no right or authority to make a decision concerning any other action or issues." There is no question from the CBA that the arbitrator is the sole decision maker upon receiving evidence and analyzing within the provisions of the CBA. The arbitrator's decision is limited to the actions or issues listed in the grievance.

¶ 24 Next we examine the grievance as submitted by Union and Green to determine whether the issue of "just cause" is an issue listed within the grievance and thus, within the scope of the arbitrator's authority. Beside the heading, "List applicable violation,", the very first provision listed is Article 12, Section 1. As noted herein, the very first sentence of this CBA provision states: "The City may discipline for just cause." Thus, this is the section within the CBA that includes a discussion of just cause. The CBA outlines that an "issue" includes "the meaning, interpretation or application of the express provisions" of the CBA. The CBA further directs that the "Grievance Form" must contain the "Section(s) of the Agreement allegedly violated" and the relief sought.

¶ 25 The submitted grievance lists the section alleged as being violated, Article 12, Section 1. As previously noted, the very first sentence of Article 12, Section 1, provides that "the City may discipline for just cause ." We agree with Misco , that the focus of the our inquiry is to determine whether the arbitrator was arguably construing or applying the contract and acting within his scope of authority in deciding that the City did not have "just cause" to terminate Green. Stating the question differently, was the arbitrator acting within the scope of his authority when he examined the very provision of the CBA listed by grievants, Article 12, Section 1, which makes "just cause" the premise for any disciplinary action? Before answering this question, we are reminded that under the CBA, the arbitrator was given the sole authority to serve as the decision maker "with respect to the specific issue or action being appealed to him or her in the grievance(s)." The arbitrator examined the section listed in the grievance, analyzed it with respect to the evidence and rendered a decision. It is elementary that it is within the scope of authority for the arbitrator to examine the very provision of the CBA listed in the grievance. Arbitrator was clearly "arguably acting within the scope of authority," when examining Article 12, Section 1, and rendering a decision that included an analysis of whether City had "just cause" to discipline Green. We hold that under the facts presented, the arbitrator was acting within the scope of his authority when deciding the issue whether City had "just cause" to terminate the employment of Green. In accordance with the terms of the CBA, the arbitrator's decision is final and binding in this regard.

¶ 26 It was also error for COCA to affirm the district court's decision relying on the four-part test set forth in Cement Divisions., Nat. Gypsum Co. (Huron) v. United Steelworkers of America, AFL-CIO-CLC, Local 135, 793 F.2d 759 (6th Cir. 1986). This four part test was specifically overruled in 2007 when the 6th Circuit determined that the four part test was not in accordance with the guidance of the U.S. Supreme Court. Michigan Family Resources, Inc., v. Service Employees Intern. Union Local 517M, 475 F.3d 746 (6th Cir. 2007). Michigan Family relied on the pronouncements of United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc. , 484 U.S. 29, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) and Major League Baseball Players Ass'n v. Garvey , 532 U.S. 504, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001). Relying on the pronouncements of Misco , the Michigan Family court instead posed the following questions: (1) did the arbitrator act outside his authority by resolving a dispute not committed to arbitration, (2) did the arbitrator commit fraud, have a conflict of interest or otherwise act dishonestly in issuing the award, or (3) in resolving any legal or factual disputes in the case, was the arbitrator "arguably construing or applying the contract?" Michigan Family , 475 F.3d at 753.

¶ 27 The opinion of the Court of Civil Appeals is vacated and the judgment of the district court is reversed. We remand for proceedings consistent with this opinion.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT IS REVERSED AND REMANDED

GURICH, C.J., DARBY, V.C.J., KAUGER, WINCHESTER, EDMONDSON, COLBERT, and COMBS, JJ., concur.

      Plaintiff William Fox and the City of Norman reached an agreement resolving the arbitration award with respect to Fox's interests and therefore Fox is not a party to this appeal.

      Record, Tab 2, B, Agreement Between The City of Norman, Oklahoma and American Federation of State, County, and Municipal Employees Local No. 2875, (CBA), Preamble, p. 1.

      Id. , Article 7, Section 8 (d), Authority of Arbitrator, p. 13.

      Id., Article 7, Section 1 (a), (c), pp. 5-6.

      Id.

      Id., Article 12, Section 1, p. 23.

      Id. , Article 7, Section 5, (a)-(b), Grievance Filing Requirement and Procedure, Record, pp. 8-9.

      Id. , App. D, Official Grievance Form.

      Record, Tab 6, Defendant's Response and Objection to Plaintiffs' Motion for Partial Summary Judgment and Cross-Motion for Summary Judgment and Brief in Support, Exhibit 1, AFSCME, Official Grievance Form.

      Record, Tab 2 (B), CBA, Article 12, Disciplinary Actions, p. 23.

      Record, tab 2, C, Opinion and Award of Ed W. Bankston, Arbitrator, In a Matter of Dispute Between: City of Norman, Oklahoma and American Federation of State, County and Municipal Employees, Local 2875, dated 11-24-14, p.46.

      Id . at p. 45.

      Id.

      Record, tab 2, Petition to Enforce Arbitration Award.

      Record, Tab 11, Ruling on Plaintiffs' Partial Motion for Summary Judgment and Defendant's Cross-Motion for Summary Judgment.

      United Steelworkers v. Warrior & Gulf Navigation Co. , 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), (questions regarding whether a collective bargaining agreement requires a dispute to be resolved through arbitration, "[d]oubts should be resolved in favor of coverage," and an order to arbitrate should not be denied unless there it is clear that the arbitration clause does not cover the asserted dispute. Id. at 582-83, 80 S.Ct. at 1347 ; United Steelworkers v. American Manufacturing Co. , 363 U.S. 564, 80 S.Ct. 1363, 4 L.Ed.2d 1432 (1960), (where the collective bargaining agreement directs contract disputes to arbitration, questions of contract interpretation are for the arbitrator. Id . at 568, 80 S.Ct. at 1363. The Court noted that courts "have no business weighing the merits of the grievance, considering whether there is equity in a particular claim...." Id. ; United Steelworkers v. Enterprise Wheel & Car Corp. , 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960), (the Court examined the role of the federal courts in enforcing arbitration awards).

      American Federation of State, County and Municipal Employees, Local 2875, Robert Green, Plaintiffs/Appellants, and William Fox, Plaintiff, vs. City of Norman, Oklahoma, a Municipal Corporation, Defendant/Appellee, Case No. 114,640 , Opinion from the Court of Civil Appeals.

      Record, Tab 2, B, CBA, Article 7, Section 8 (d), p. 13.

      Id.

      Id., Article 7, Section 1, Issues and Actions Subject to Grievance, p. 5.

      Id. , Article 7, Section 5, Grievance Filing Requirement and Procedure, p. 8.

      Id. , Article 12, Disciplinary Actions, p. 23.

      Misco, supra, 484 U.S. at 38, 108 S.Ct. at 364.

      See also, Eastern Associated Coal Corp. v. Mine Workers , 531 U.S. 57, 62, 121 S.Ct. 462, 466, 148 L.Ed.2d 354 (2000), reiterating that even when a court is convinced the arbitrator committed serious error, this alone does not suffice to overturn an honest arbitrator's decision; Garvey, supra , 532 U.S. at 509, 121 S.Ct. at 1728, judicial review is limited in an arbitration decision and courts are not authorized to review decision even with allegations of factual errors or misinterpreting the collective bargaining agreement.


author: COMBS, J.:

text:
    In the MATTER OF the REINSTATEMENT OF: Ruth Brummett RICKEY to Membership in the Oklahoma Bar Association and to the Roll of Attorneys
    SCBD 6717
    Supreme Court of Oklahoma.
    FILED MAY 14, 2019
    Ruth Brummett Rickey, Petitioner/Pro Se.
    Tracy Pierce Nester, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Respondent.
   COMBS, J.:

¶1 On November 2, 2018, the Petitioner, Ruth Brummett Rickey, filed her Petition for Reinstatement requesting she be readmitted as a member of the Oklahoma Bar Association (OBA) pursuant to Rule 11, Rules Governing Disciplinary Proceedings, 5 O.S. 2011, Ch. 1, App. 1-A (RGDP). Petitioner graduated from the Oklahoma University School of Law in 1987. She was admitted to practice law that same year. During law school, she worked as a Licensed Legal Intern. Petitioner practiced law for six years after graduating law school. At her first firm, she devoted most of her time to bankruptcy proceedings. After three years, she was recruited to another firm where she primarily worked bankruptcy cases. She remained with her second firm for four years until she voluntarily left due to firm-wide internal conflict. She reviewed contracts for a short term at Eagleton & Nicholson. In 1994, she worked as a hearing officer for the Oklahoma Employment Securities Division. She remained in that position for the allotted six months. The position did not require a licensed attorney. Petitioner let her license lapse and was stricken from the rolls of the Oklahoma Bar Association in 1995 for failure to complete CLEs in 1993 and failure to pay dues in 1994.

¶2 Petitioner went on to work as a cake decorator and eventually opened her own bakery. In 2001, Petitioner was diagnosed with a rare form of leukemia and due to medical complications was unable to work for several years. Once petitioner was able, she began participating in several charitable organizations. These organizations focus on the advancement of leukemia research and providing financial assistance to those undergoing medical treatment. In 2018, she began working part-time for Allegiance Credit Union. After filing her petition, the Professional Responsibility Tribunal (PRT) held a hearing pursuant to Rule 6, RGDP. The Petitioner testified she has worked her way up to a full-time position and on the urging of the Credit Union's CEO and CFO began seeking reinstatement. The CEO testified that Petitioner would be an asset to the credit union by saving them the costs of outside counsel. Petitioner's role should she be reinstated would focus on compliance matters, vendor management, contract review, and handling creditor proceedings.

¶3 The PRT recommends that Petitioner's reinstatement be denied until she successfully completes the Oklahoma Bar Exam, completes the required CLEs for the year she is reinstated, and pays fees and dues. It found by clear and convincing evidence that the Petitioner has shown she possesses good moral character sufficient to be admitted to the OBA and that she has not engaged in the unauthorized practice of law. However, she did not demonstrate by clear and convincing evidence that she possesses the required competence in the learning of the law. Therefore the PRT conditioned her reinstatement on successful completion of the bar exam. The Respondent, OBA, agreed with the PRT in its answer brief that Petitioner should be required to successfully complete the OBA Bar Exam before her reinstatement.

STANDARD OF REVIEW

¶4 This Court has the non-delegable, constitutional responsibility to regulate both the practice and the ethics, licensure, and discipline of Oklahoma practitioners of the law. In re Reinstatement of Kerr , 2015 OK 9, ¶6, 345 P.3d 1118. Our review of the record is made de novo. State ex rel. Oklahoma Bar Association v. Hulett, 2008 OK 38, ¶4, 183 P.3d 1014. In a proceeding involving no prior imposition of discipline for lawyer professional misconduct, the focus of our inquiry concerns 1) the present moral fitness of the applicant; 2) conduct subsequent to suspension as it relates to moral fitness and professional competence; 3) whether the attorney has engaged in the unauthorized practice of law; and 4) whether the attorney has complied with the rule-mandated requirements for reinstatement. In re Reinstatement of Christopher , 2014 OK 73, ¶5, 330 P.3d 1221. The PRT's recommendations concerning these matters, while entitled to great weight, are advisory in character and the ultimate decision rests with this Court. In re Reinstatement of Pate, 2008 OK 24, ¶3, 184 P.3d 528 ; In re Reinstatement of Floyd , 1989 OK 83, ¶3, 775 P.2d 815. Rule 11.4, RGDP, provides an applicant seeking reinstatement will be required to present stronger proof of qualifications than one seeking admission for the first time. In addition, Rule 11.5, RGDP provides as an element in pertinent part:

(c) Whether or not the applicant possesses the competency and learning in the law required for admission to practice law in the State of Oklahoma, except that any applicant whose membership in the Association has been suspended or terminated for a period of five (5) years or longer, or who has been disbarred, shall be required to take and successfully pass the regular examination given by the Board of Bar Examiners of the Oklahoma Bar Association. Provided, however, before the applicant shall be required to take and pass the bar examination, he shall have a reasonable opportunity to show by clear and convincing evidence that, notwithstanding his long absence from the practice of law, he has continued to study and thus has kept himself informed as to current developments in the law sufficient to maintain his competency. If the Trial Panel finds that such evidence is insufficient to establish the applicant's competency and learning in the law, it must require the applicant to take and pass the regular bar examination before a finding as to his qualifications shall be made in his favor.

We have held this provision creates a rebuttable presumption that one who has been suspended for five years will not possess sufficient competency in the law to be reinstated, absent an extraordinary showing to that effect. In re Reinstatement of Farrant , 2004 OK 77, ¶7, 104 P.3d 567. Each application for reinstatement to the OBA must be considered on its own merits. In re Reinstatement of Kerr , 2015 OK 9, ¶19, 345 P.3d 1118.

ANALYSIS

I. Moral Fitness

¶5 Except for her suspension in 1995 for failure to pay dues and complete her CLEs, the Petitioner has never faced disciplinary action. Nine letters were admitted as evidence that strongly supported a finding that Petitioner possessed good moral character. Additionally, the petitioner has engaged in several philanthropic activities fundraising and advocating for cancer research. Testimony at the hearing also supported Petitioner's good moral character. No contrary evidence was presented. The PRT found Petitioner had shown by clear and convincing evidence that she possessed the good moral character to be readmitted to the OBA. After an examination of the record, we agree with this finding.

II. Professional Competence Sufficient for Reinstatement

¶6 Rule 11.5, RGDP, requires a petitioner for reinstatement to show they possess the competency and learning in the law required for admission. If they have been suspended or terminated for more than five years, there is a rebuttable presumption they will be required to retake the regular bar examination. In determining competency, our precedent has placed an emphasis on law-related work following suspension. We have also considered other ways a petitioner has kept abreast of the law including the completion of continuing legal education courses and the reading of bar journals.

¶7 In In re Reinstatement of Bodnar, this Court noted some of our previous opinions had rejected a finding of competency when the petitioner's preparation had consisted mainly of completing only twelve to twenty-four hours of continuing legal education courses prior to petitioning for reinstatement. 2016 OK 12, ¶23, 367 P.3d 916.

¶8 By contrast, other opinions have given great weight to a petitioner's work experience and approved reinstatement. In In re Reinstatement of Gill , a lawyer was licensed to practice law in Oklahoma in 1979 and was later suspended for failure to pay dues in 1983. 2016 OK 61, ¶¶ 1, 2, 376 P.3d 200. She was also licensed to practice law in California and did so until 1999. Gill, 2016 OK 61, ¶1, 376 P.3d 200. From 2001 through 2013, she worked for an urban land use planning company. Id. ¶8. She placed her California bar license on inactive status in 2002, but continued to take continuing legal education courses. Id. ¶7-8. She was not practicing law for the company, however, her duties included drafting and managing contracts, assisting the management of the company's legal teams and performing work concerning environmental compliance. Id. ¶8. In 2014, she moved back to Oklahoma and performed clerical and administrative tasks as well as supervised legal research for a law firm. Id. ¶11-12. The following year she petitioned for reinstatement. Id. ¶1. Since 2015 she had also completed twenty-four hours of continuing legal education. Id. ¶14. The PRT recommended reinstatement and this Court agreed finding she possessed the competency and learning in the law required for reinstatement without re-taking the bar examination. Id. ¶22.

¶9 In cases where a Petitioner was unable to show he possessed competency and learning in the law, this Court has allowed reinstatement conditioned on the applicant successfully completing the Oklahoma Bar Exam. In In re Reinstatement of Drain , the petitioner voluntarily left the practice of law and for three years managed a business. 2016 OK 68, ¶¶3-4, 376 P.3d 208. The attorney also worked as a paralegal before requesting reinstatement ten years after leaving the practice of law. Drain , 2016 OK 68, ¶¶5-7, 376 P.3d 208. This Court stated that "in order for petitioner to demonstrate his competency and learning in the law, Petitioner must retake and successfully pass the Oklahoma Bar Examination." Id. ¶14. Similarly, in In re Reinstatement of Duke , the Petitioner resigned from the practice of law for sixteen years pending disciplinary action. 2016 OK 58, ¶1, 382 P.3d 501. When Petitioner applied for reinstatement, his law-related work experience consisted of writing courses for legal assistant certifications for eight years and work as a paralegal for less than a year. Duke, 2016 OK 58, ¶3-5, 382 P.3d 501. This Court took issue only with the Petitioner's lack of competency and learning in the law. Id. ¶11. This Court granted reinstatement on the condition that Petitioner successfully complete the Oklahoma Bar Exam. Id.

¶10 In the present matter, the Petitioner has taken twenty-one hours of continuing legal education in the previous year. The Trial Panel's Report determined that Petitioner has completed five to six Kaplan bar review modules with three to six hours of lecture per model. Petitioner's work after her license lapsed does not include hands-on supervised legal experience. The Petitioner's relevant work for the past year consists of reviewing contracts and researching news and other states' laws. The Petitioner has not practiced law or engaged in law-related work for 25 years. One year of continued legal education and completing Kaplan bar review modules after 25 years does not display sufficient learning and competence in the law. Especially when the standard requires stronger proof of qualifications than one seeking admission for the first time. Rule 11.4, RGDP.

¶11 Rule 11.5, RGDP, states only one restriction that may be imposed on attorneys who do not show the necessary learning and competence in the law-passage of the Oklahoma Bar Exam. This Court's precedent is consistent with that directive. The PRT recommended that the Petitioner's reinstatement be conditioned upon her successful completion of the Oklahoma Bar Exam. We agree with this recommendation.

III. Unauthorized Practice of Law

¶12 Rule 11.1, RGDP provides a mechanism for determining whether a petitioner has engaged in the unauthorized practice of law. Paragraph (a) of the rule requires the petitioner to submit an affidavit, attached to the petition for reinstatement, from each court clerk of the several counties in which she resided after suspension or termination of the right to practice law, establishing the petitioner has not practiced law in their respective courts during that period. Petitioner submitted her affidavit wherein she attests to not having engaged in the unauthorized practice of law since her suspension. She provided an affidavit from Oklahoma County, Oklahoma wherein the Court Clerk attests the Petitioner has not appeared before any judge in the county since her suspension. Jamie Lane, the Investigator for the General Counsel's Office of the Oklahoma Bar Association, testified at the January 24, 2019, PRT hearing. She stated her investigation into whether the petitioner engaged in the unauthorized practice of law found no cause for concern.

¶13 The PRT's report found the Petitioner had proven by clear and convincing evidence she has not engaged in the unauthorized practice of law nor has she appeared in court as an attorney of record for any party or in any litigation. We find no evidence to the contrary.

MCLE, BAR DUES, AND APPLICATION TO ASSESS COSTS

¶14 An affidavit from the OBA's MCLE Administrator states the Petitioner does not owe any MCLE credit or any MCLE fees. An affidavit from the OBA's Director of Administration states the Petitioner will owe only her current membership dues of two hundred and seventy-five dollars ($275.00) for the year of her reinstatement. The OBA filed an Application to Assess Costs, pursuant to Rule 11.1 (c), RGDP. The application requests the Petitioner pay, on a date certain, the amount of two hundred and fourteen dollars and eighty-nine cents ($214.89) for the expenses related to this investigation. It indicates the Petitioner has already been invoiced directly for the costs of the transcript of the proceedings. On February 26, 2019, the OBA filed a receipt of costs stating all costs in this matter have been paid. The record also reflects no payments have ever been expended from the Clients' Security Fund on the Petitioner's behalf.

CONCLUSION

¶15 We hold the Petitioner has demonstrated her moral fitness and that she has not engaged in the unauthorized practice of law, however she has failed to demonstrate her competency and learning of the law by clear and convincing evidence. To demonstrate her competency and learning in the law, Petitioner must retake and successfully pass the Oklahoma Bar Examination. She shall also be required to pay the OBA membership dues and complete the required continuing legal education for the year she passes the bar exam.

¶16 Upon the successful completion of the Oklahoma Bar Exam, and payment of membership dues and completion of the required continuing legal education for the year she passes the bar exam, Ruth Brummett Rickey shall be reinstated to membership in the Oklahoma Bar Association and her name shall be added to the roll of attorneys.

REINSTATEMENT GRANTED UPON SUCCESSFUL COMPLETION OF THE CONDITIONS SET OUT IN THIS OPINION

¶17 Gurich, C.J., Darby, V.C.J., Edmondson, Colbert and Combs, JJ., concur;

¶18 Kauger and Winchester, JJ., dissent.

¶19 Kauger, J., with whom Winchester, J., joins, dissenting:

I would reinstate the petitioner instanter.

      Four years after Petitioner left the firm, her supervisor resigned pending disciplinary proceedings by the Oklahoma Bar Association for misappropriation of funds and a criminal investigation for misappropriation and embezzlement while serving as a bankruptcy trustee. His twenty-count indictment was negotiated down to a single guilty plea after he restored $105,000 to the bankruptcy estate. He was reinstated in 2009. In re Reinstatement of Mumina , 2009 OK 76, ¶ 1-2, 225 P.3d 804.

      Exs. 3 & 4, Jt. Hearing Exhibits , for the PRT hearing held Jan. 24, 2019.

      Exs. 13-20, 22, Jt. Hearing Exhibits, for the PRT hearing held Jan. 24, 2019.

      Tr. at 26, In re Reinstatement of: Ruth Brummett Rickey (SCBD #6717; Jan. 24, 2019).

      Id. at 73-74.

      Ex. 9, Jt. Hearing Exhibits, for the PRT hearing held Jan. 24, 2019.

      Pg 4 Trial Panel Report.

      Tr. at 72, 79-80, In re Reinstatement of: Ruth Brummett Rickey (SCBD #6717; Jan. 24, 2019).

      Ex. 11, Jt. Hearing Exhibits, for the PRT hearing held Jan. 24, 2019.

      Ex. 10, Jt. Hearing Exhibits, for the PRT hearing held Jan. 24, 2019.

      Tr. at 92, In re Reinstatement of: Ruth Brummett Rickey (SCBD #6717; Jan. 24, 2019).

      Ex. 7, Jt. Hearing Exhibits, for the PRT hearing held Jan. 24, 2019.

      Ex. 5, Jt. Hearing Exhibits, for the PRT hearing held Jan. 24, 2019.