author: IVES, Judge.

text:
    Karim SALEHPOOR, Plaintiff-Appellee, v. NEW MEXICO INSTITUTE OF MINING AND TECHNOLOGY, Defendant-Appellant, and Warren Ostergren, Dr. Tom Engler, Board of Regents of the New Mexico Institute of Mining and Technology, and Daniel Lopez, Defendants.
    No. A-1-CA-36622
    Court of Appeals of New Mexico.
    Filing Date: June 6, 2019
    Santiago E. Juarez, Albuquerque, NM, for Appellee.
    Keleher & McLeod, P.A., Sean Olivas, Chris R. Marquez, Albuquerque, NM, for Appellant.
   IVES, Judge.

{1} Plaintiff Karim Salehpoor sued his former employer, Defendant New Mexico Institute of Mining and Technology, claiming, among other things, that Defendant wrongfully discharged him in violation of his employment contract. Defendant moved for summary judgment based on two theories of sovereign immunity under NMSA 1978, Section 37-1-23 (1976): (1) that Plaintiff's claim was time-barred and (2) that his claim was not based on a valid written contract. The district court denied the motion. We granted Defendant's petition for a writ of error pursuant to Rule 12-503 NMRA to review the nonfinal order. We affirm.

FACTS AND PROCEDURAL HISTORY

{2} Beginning in January 2008, Defendant employed Plaintiff as a tenure-track mechanical engineering professor under a series of written one-year employment contracts, the most recent of which covered the 2011/2012 academic year from August 8, 2011, through May 11, 2012. On April 2, 2012, Defendant's Vice President of Academic Affairs sent Plaintiff a memorandum informing him that Defendant would not enter into a new employment contract with him and directing him to "surrender all [of Defendant's] property[,] including keys[,]" by May 11, 2012. Plaintiff continued working for Defendant through that date.

{3} Plaintiff commenced this lawsuit on May 12, 2014, alleging that Defendant had breached their contract by wrongfully terminating him in violation of "the total employment agreement." See generally Garcia v. Middle Rio Grande Conservancy Dist. , 1996-NMSC-029, 121 N.M. 728, 918 P.2d 7 (holding that an implied employment contract based on a written personnel policy is a "written contract" for purposes of Section 37-1-23(A) ); Whittington v. State Dep't of Pub. Safety , 2004-NMCA-124, 136 N.M. 503, 100 P.3d 209 (making clear that the implied employment contract doctrine is applicable beyond the context of at-will employment and contractual terms relating to termination). Plaintiff alleged that his employment had ended on May 11, 2012, when Defendant "breached [the] employment contract... by terminating [him,]" and that Defendant also breached the employment contract "[o]n or about April 2012" when it gave "notice of the impending termination of Plaintiff." Plaintiff alleged that his contract with Defendant "was reinforced and amplified by certain written personnel practices, memoranda, policies, and procedures ... based upon which Plaintiff had a reasonable expectation of continued employment with discharge only for good cause proven." The complaint specified that Defendant's

written policies and procedures and actual practices included a program of "progressive discipline" through which [Defendant] created self-imposed limitations on any discharge or discipline of an employee. These written policies and actual practices expressly limited the grounds for discharge and created self[-]imposed mandatory pre-termination steps and procedures.

{4} Defendant moved for summary judgment on Plaintiff's wrongful discharge claim based on two theories of sovereign immunity under Section 37-1-23. Defendant argued first that Section 37-1-23(B) barred Plaintiff's claim for wrongful discharge based on breach of contract because Plaintiff filed his complaint more than two years after his claim accrued. The parties did not dispute that Defendant gave Plaintiff notice of his termination on April 2, 2012, that Plaintiffs' employment terminated May 11, 2012, or that Plaintiff filed his complaint on May 12, 2014. Whether summary judgment was appropriate hinged on whether Plaintiff brought his claim "within two years from the time of accrual." Section 37-1-23(B). Plaintiff argued that his claim accrued from the date of his termination, May 11, 2012, while Defendant argued that Plaintiff's claim accrued on April 2, 2012, when Defendant gave Plaintiff the notice of nonrenewal.

{5} As an additional basis for summary judgment, Defendant argued that Section 37-1-23(A) barred Plaintiff's claim because it was not based on a valid written contract. This was so, according to Defendant, because Plaintiff had failed to allege that Defendant had breached a specific contractual term of any policy, employment manual, or other document. In response, Plaintiff pointed to his interrogatory answers and affidavit, which referenced a document, titled "Regulations Governing Academic Freedom and Tenure" (the Regulations), purportedly issued by Defendant. In his affidavit, Plaintiff alleged that Defendant violated various provisions of the Regulations, including the procedure for providing notice of termination to employees and the prohibition against retaliatory termination. Defendant replied, claiming that Plaintiff had failed to produce in discovery or in response to the summary judgment motion any document that included the implied contract terms Defendant had allegedly breached.

{6} During the hearing on the summary judgment motion, Plaintiff's counsel read a document that he identified as the Regulations into the record. Defendant objected on the ground that Plaintiff had failed to produce the document in discovery and asserted that it was therefore unable to identify the document from which Plaintiff's counsel had read. The district court ordered supplemental briefing and directed Plaintiff to produce the document he had read from during the hearing. Plaintiff attached the Regulations to his supplemental brief along with responses to requests for production that identified the Regulations. In response, Defendant complained once again that Plaintiff had never produced the Regulations in discovery and argued that Plaintiff had failed to authenticate the Regulations.

{7} The district court denied Defendant's summary judgment motion. We granted Defendant's petition for a writ of error to review the district court's order.

DISCUSSION

I. Statute of Limitations

{8} Defendant first argues that the district court erroneously denied Defendant's motion for summary judgment based on the two-year statute of limitations in Section 37-1-23(B). Defendant contends Plaintiff's claim for wrongful discharge by breach of contract accrued on April 2, 2012, when Defendant notified Plaintiff that it had decided not to renew Plaintiff's contract.

{9} Because the parties do not dispute when Defendant gave Plaintiff notice of his termination, when Plaintiff's employment actually terminated, or when Plaintiff filed his complaint, our review is limited to whether the district court correctly applied the governing law to the undisputed facts. See Haas Enters. v. Davis , 2003-NMCA-143, ¶ 9, 134 N.M. 675, 82 P.3d 42. ("When facts relevant to a statute of limitations issue are not in dispute, the standard of review is whether the district court correctly applied the law to the undisputed facts."). We review this issue de novo. Id.

{10} Section 37-1-23(B) provides that claims for breach of a valid written contract against governmental entities "shall be forever barred unless brought within two years from the time of accrual." A claim accrues when all of the elements of the claim are present-when the claim "come[s] into existence as an enforceable claim or right[.]" Accrue , Black's Law Dictionary (10th ed. 2014); see also 1 Calvin W. Corman, Limitation of Actions § 6.1, at 370 (1991) ("It would clearly be unfair to charge [a] plaintiff with the expiration of any time before the plaintiff's cause of action could be prosecuted to a successful conclusion."). Plaintiff's wrongful discharge claim is based on Defendant's alleged breach of an implied contractual term, as described above. A breach of contract claim accrues at the time of breach. Corman, supra , § 7.2.1, at 482. Accordingly, "[t]he statute of limitations on a breach of contract claim runs from the date the contract is breached." Nashan v. Nashan , 1995-NMCA-021, ¶ 29, 119 N.M. 625, 894 P.2d 402. To determine whether Section 37-1-23(B) bars Plaintiff's claims, we must therefore identify the alleged breach.

{11} We begin with the basic premise that, because "[t]he law of contract is the law of promises[,]" 10 John E. Murray, Jr., Corbin on Contracts § 54.1, at 112 (rev. ed. 2014), an action for breach of contract is an action on a broken promise. Ordinarily, a breach occurs when a party "fail[s] to perform a contractual obligation when that performance is called for[,]" UJI 13-822 NMRA-in other words, when the party fails to perform as promised. When an implied term of an employment agreement obligates the employer to follow specified termination procedures or to terminate the employee only for specified reasons, nonperformance occurs when the employer actually terminates the employee without following those procedures or for reasons other than those specified. See UJI 13-2302 NMRA ("[I]f [the employee's] discharge violated [the implied] agreement, then the discharge was wrongful."); UJI 13-2303 NMRA (same); see also Gormley v. Coca-Cola Enters. , 2004-NMCA-021, ¶ 12, 135 N.M. 128, 85 P.3d 252 (discussing "the termination element of a claim of breach of implied contract to terminate for just cause only").

{12} Applying these principles, we conclude that Defendant did not fail to perform its obligations under any implied agreement by providing Plaintiff with the April 2, 2012, notice of nonrenewal. If Plaintiff is correct that an implied agreement required Defendant to refrain from terminating Plaintiff unless Defendant used specific procedures or had specific reasons for termination, Defendant could only breach the agreement by actually terminating Plaintiff in a manner inconsistent with the agreement's terms. We therefore hold that Plaintiff's cause of action accrued when Plaintiff's employment terminated, and that the time for bringing his wrongful discharge claim under Section 37-1-23(B) began to run only then. Because Plaintiff filed his complaint on May 12, 2014-exactly two years from the accrual of his claim-the district court correctly concluded that Plaintiff's claim was timely.

{13} Defendant does not claim that any breach by nonperformance occurred before May 11, 2012. Instead, citing UJI 13-822, Defendant contends that the breach at issue occurred, if at all, on April 2, 2012, when it notified Plaintiff that his contract would not be renewed. We disagree.

{14} UJI 13-822 and UJI 13-824 NMRA address the doctrine of anticipatory repudiation. UJI 13-822 states that "[a] person may breach a contract by ... announcing ahead of time that he or she will not perform a contractual obligation when the time for that performance comes due[.]" And UJI 13-824 provides that "[i]t is a breach of contract if, before performance became due, [the promisor] announce[s] or otherwise demonstrate[s the promisor's] intention not to perform a contractual obligation[.]" Neither these instructions nor other authorities addressing anticipatory repudiation support Defendant's requested holding. The doctrine of anticipatory repudiation is an exception to the general rule that only a party's failure to perform as promised constitutes a breach. It allows a party to a contract to treat the contract as breached upon learning of the other party's repudiation of its contractual obligations-its "distinct, unequivocal, and absolute refusal to perform according to the terms of the agreement." Gilmore v. Duderstadt , 1998-NMCA-086, ¶ 15, 125 N.M. 330, 961 P.2d 175 (internal quotation marks and citation omitted). The doctrine protects a non-breaching party's expectation, not only that the other party will perform, but also that the other party will refrain from "substantially ... impair[ing]" that expectation of performance by allowing the non-repudiating party to file suit immediately after communication of the repudiation. Restatement (Second) of Contracts ch. 10, topic 3, intro. note (1981). See generally Murray, supra , §§ 54.1, 54.2.

{15} Critically, however, an anticipatory repudiation "is not automatically" a breach of contract; a repudiation does not operate as a breach unless "it [is] treated as such at the election of the promisee ." UJI 13-824 Committee Commentary (emphasis added). Because the decision to treat a repudiation as a breach is the non-breaching party's to make, repudiation does not start the statute of limitations clock unless and until the non-repudiating party makes that decision. E.g. , Murray, supra , § 54.31, at 333 ("There is no necessity for making the statutory period of limitation begin to run against the plaintiff until the day fixed by the contract for the rendition of performance, at least unless the plaintiff definitely elects to regard the anticipatory repudiation as a final breach."); Corman, supra , § 7.2.1, at 488 ("The aggrieved party is entitled to sue either when the anticipatory repudiation occurs or at the later time for performance under the contract. The time of accrual consequently depends on whether the injured party chooses to treat the anticipatory repudiation as a present breach."); 4 Arthur Linton Corbin, Corbin on Contracts § 989, at 967 (1951); Restatement (First) of Contracts § 322 (1932) ; cf. Gibbs v. Whelan , 1952-NMSC-005, ¶ 10, 56 N.M. 38, 239 P.2d 727 ("A party to a contract cannot take advantage of his own act or omission to escape liability thereon.").

{16} Defendant invokes the general principle that an anticipatory repudiation may operate as a breach, but does not argue that Plaintiff elected to treat the notice of April 2, 2012, as a breach before his employment terminated. We are under no obligation to review undeveloped arguments, see Headley v. Morgan Mgmt. Corp. , 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d 1076, and we will not scour the record for facts that might support Defendant's position. The undisputed record evidence suggests that Plaintiff did not treat the notice as a breach. He continued to work for Defendant until his termination in May 2012, and he did not file suit until after that time. Absent evidentiary support for a finding that Plaintiff elected to treat the notice as a breach, we conclude that, even if Defendant's notice of nonrenewal rose to the level of an anticipatory repudiation, it did not start the statute of limitations clock.

{17} Defendant cites Tull v. City of Albuquerque , 1995-NMCA-123, 120 N.M. 829, 907 P.2d 1010, for the proposition that " '[m]ere continuity of employment, without more, is insufficient to prolong the life of a cause of action[.]' " Id. ¶ 8 (quoting Del. State Coll. v. Ricks , 449 U.S. 250, 257, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) ). Neither this metaphor nor any other aspect of Tull persuades us that the district court erred. In Tull , we rejected the plaintiffs' argument that a continuing-wrong theory extended the time in which to bring contractual failure-to-promote claims under NMSA 1978, Section 37-1-24 (1941). Tull , 1995-NMCA-123, ¶ 11, 120 N.M. 829, 907 P.2d 1010. The plaintiffs were city employees who alleged that they had been promised an increase in pay to reflect increased job responsibilities they had assumed. Id. ¶¶ 2, 4. The plaintiffs claimed that a new wrong in the form of a breach of contract occurred each time they received a paycheck that did not reflect the allegedly promised levels of compensation. Id. ¶ 4. According to the plaintiffs, each deficient paycheck restarted the limitations clock for purposes of Section 37-1-24. Tull , 1995-NMCA-123, ¶ 4, 120 N.M. 829, 907 P.2d 1010. We disagreed, concluding that "[t]he only actionable wrong alleged ... [was] the [c]ity's initial refusal to increase Plaintiffs' salaries"-its breach of a "promise [to provide] a pay raise as of the time [the plaintiffs ] assumed increased job responsibilities ." Id. ¶¶ 10-11 (emphasis added). Accordingly, we held that because "the actual breach of contract" at issue was the failure to pay increased wages, the "continuing consequences [of that breach] in the form of lower paychecks ... d[id] not extend the life of Plaintiffs' breach of contract cause of action[.]" Id. ¶ 11.

{18} Tull has no bearing on this appeal, the outcome of which does not depend on whether the alleged wrong was single or continuing. The issue before us is when Plaintiff's claim "accru[ed]" under Section 37-1-23(B), and, as we have explained, that did not occur under the facts presented until the actual termination of Plaintiff's employment. The metaphor we used in Tull does not fit here. The continuation of Plaintiff's employment did not prolong the life of his wrongful termination claim. It delayed the birth of that claim.

II. Valid Written Contract

{19} Defendant also argues that the district court erred by denying its motion for summary judgment because Defendant is immune from Plaintiff's suit. Defendant seeks refuge in Section 37-1-23(A), which grants "[g]overnmental entities ... immunity from actions based on contract, except actions based on a valid written contract."

{20} Our process for reviewing an order denying summary judgment involving immunity from suit "is more complex than a review of ordinary summary judgment decisions." Campos de Suenos, Ltd. v. County of Bernalillo , 2001-NMCA-043, ¶ 9, 130 N.M. 563, 28 P.3d 1104. "[A] party losing its immunity from suit in an adverse summary judgment decision may file a writ of error seeking immediate review of that decision in order to protect its right not to stand trial." Id. Nevertheless, "not every challenge to a denial of immunity is appropriate for immediate, collateral review because some assertions of immunity are inseparable from the merits of the case." Id. We generally limit the scope of our review of immunity decisions under the collateral order doctrine to "abstract issues of law," but review evidentiary issues that arise as we would in any summary judgment case, by viewing the evidence "in the light most favorable to the party opposing the motion." Id. ¶¶ 9-10 (internal quotation marks and citation omitted). We then "determine whether the opposing party has presented sufficient evidence to overcome an assertion of immunity from suit," which "is a legal question that we review de novo." Id. ¶ 10.

{21} Applying this standard, we conclude that the district court did not err in denying Defendant's summary judgment motion. It is undisputed that Defendant and Plaintiff executed a written employment contract in May 2011 covering Plaintiff's employment between August 8, 2011, and May 11, 2012. When a written employment contract exists, "our courts have been particularly sensitive to an employee's reliance upon extrinsic evidence to aid in interpreting an existing employment relationship evidenced by a writing." Univ. of N.M. Police Officer's Ass'n v. Univ. of N.M. , 2005-NMSC-030, ¶ 18, 138 N.M. 360, 120 P.3d 442. "[T]hat extrinsic evidence has usually been in the form of other writings, such as a personnel manual or written memoranda regarding a written contract." Id. ; see, e.g. , Garcia , 1996-NMSC-029, ¶¶ 12-13, 121 N.M. 728, 918 P.2d 7. "Whether an employer's words and conduct support a reasonable expectation on the part of employees that they will be dismissed only in accordance with specified procedures or for specified reasons generally is a question of fact for the jury." Mealand v. E. N.M. Med. Ctr. , 2001-NMCA-089, ¶ 9, 131 N.M. 65, 33 P.3d 285. The employer's "promissory statement [must be] sufficiently explicit to support a jury finding that this statement established a norm of conduct." Id. ¶ 14 (alteration, internal quotation marks, and citation omitted).

{22} Plaintiff's wrongful discharge theory rests on these precedents. Plaintiff claims that the contract for the 2011/2012 academic year does not state all of the terms of the parties' employment agreement, that other documents memorialize additional terms, and that Defendant breached those additional terms. In response to Defendant's summary judgment motion, Plaintiff relied on the Regulations Governing Academic Freedom and Tenure. Plaintiff's counsel pointed to Subsection II(D), which is titled "Non-reappointment and Termination of Appointments by the Institute." Counsel contended that Defendant had violated Subsection II(D) by terminating Plaintiff without giving him sufficient advance notice. Defendant does not argue on appeal that the content of the Regulations is insufficient, as a matter of law, to support Plaintiff's claim that Defendant had contractually restricted its power to terminate him.

{23} Instead, Defendant argues that the district court's reliance on the Regulations in denying its summary judgment motion was improper for two apparently separate reasons. First, Defendant argues that Plaintiff failed to present evidence that the Regulations were in effect at the time his employment terminated. Defendant appears to claim that if the Regulations were not in effect during the relevant time period, then they were not part of the "written contract," and Plaintiff's claim could not be "based on" them for purposes of Section 37-1-23(A). If, however, it is reasonable to infer from the record that the Regulations were in effect during the relevant time period, we cannot reverse the district court. See Madrid v. Brinker Rest. Corp. , 2016-NMSC-003, ¶ 16, 363 P.3d 1197 (internal quotation marks and citation omitted) ("We resolve all reasonable inferences in favor of the party opposing summary judgment[.]"). The Regulations state that they were "[a]pproved by the Board of Regents of New Mexico Institute of Mining and Technology 1 April 1985." On their face, the Regulations are evidence that Defendant adopted them before Plaintiff joined Defendant's faculty. Defendant presented no evidence that the Regulations did not remain in effect at the end of Plaintiff's employment. On this record, the district court could have reasonably inferred that the Regulations were still in effect at the time Plaintiff contends he was terminated. The district court could only have granted summary judgment for Defendant by assuming that Defendant had rescinded, replaced, or amended the Regulations in a manner and at a time that precluded them from serving as implied terms of the parties' contract. But summary judgment decisions must rest on evidence, not assumptions. The district court did not err by rejecting Defendant's argument about effective dates.

{24} Defendant also argues that Plaintiff failed to establish that the Regulations are authentic under our rules of evidence. Had this been the only argument in Defendant's petition for a writ of error, we would have denied the petition. A district court's discretionary ruling about whether a particular document is authentic, see State v. Trujillo , 2002-NMSC-005, ¶ 15, 131 N.M. 709, 42 P.3d 814, does not cry out for immediate review under a writ of error, even when that document is pertinent to an immunity issue. As our Supreme Court has recognized, "considerations of delay, comparative expertise of trial and appellate courts, and wise use of appellate resources" weigh in favor of limiting collateral review to cases presenting abstract issues of law. Handmaker v. Henney , 1999-NMSC-043, ¶ 16, 128 N.M. 328, 992 P.2d 879 (internal quotation marks and citation omitted); see also Campos de Suenos, Ltd. , 2001-NMCA-043, ¶ 17, 130 N.M. 563, 28 P.3d 1104 (noting that we generally reserve writ of error review for discrete legal issues). If we routinely used writs of error to review discretionary rulings on the admissibility of evidence, we would expand the collateral order doctrine beyond appropriate bounds, producing an excessive number of piecemeal appeals. See Carrillo v. Rostro , 1992-NMSC-054, ¶ 23, 114 N.M. 607, 845 P.2d 130 (noting that if the collateral order doctrine is applied in too many contexts, it will "allow interruption of trial court proceedings by any party claiming hardship because of postponement of review[,]" and "piecemeal appeals ... will become the order of the day").

{25} We nevertheless exercise our discretion to decide the merits of the authentication issue because, under the unusual facts of this case, declining to review the issue at this juncture would not advance the interests underlying the collateral order doctrine. Because we have granted the writ of error to review other issues that are properly before us, our simultaneous review of the related authentication question does not increase delay and involves minimal expenditure of appellate resources.

{26} Where, as here, a party has raised a timely objection to evidence submitted in summary judgment proceedings, the proponent of the evidence must "set forth facts as would be admissible in evidence[.]" Mealand , 2001-NMCA-089, ¶ 23, 131 N.M. 65, 33 P.3d 285 (internal quotation marks and citation omitted). A district court's evidentiary rulings, including rulings on the authenticity of evidence, "will not be disturbed absent a clear abuse of discretion." Trujillo , 2002-NMSC-005, ¶ 15, 131 N.M. 709, 42 P.3d 814 (internal quotation marks and citations omitted); State v. Mora , 1997-NMSC-060, ¶ 53, 124 N.M. 346, 950 P.2d 789 (reviewing ruling on authenticity of documents for abuse of discretion), abrogated on other grounds by State v. Frazier , 2007-NMSC-032, 142 N.M. 120, 164 P.3d 1. We will not presume that the district court abused its discretion, State v. Bonilla , 2000-NMSC-037, ¶ 6, 130 N.M. 1, 15 P.3d 491, but will instead presume the "rectitude and regularity" of the proceedings, State v. Gonzales , 1986-NMCA-050, ¶ 28, 105 N.M. 238, 731 P.2d 381, overruled on other grounds by State v. Tollardo , 2012-NMSC-008, ¶ 37 n.6, 275 P.3d 110. The party challenging an evidentiary ruling bears the burden of establishing that it "was obviously erroneous, arbitrary or unwarranted." Trujillo , 2002-NMSC-005, ¶ 15, 131 N.M. 709, 42 P.3d 814 (internal quotation marks and citations omitted).

{27} When authentication is at issue, "[t]here is no abuse of discretion when the evidence is shown by a preponderance of the evidence to be what it purports to be." State v. Jackson , 2018-NMCA-066, ¶ 13, 429 P.3d 674 (internal quotation marks and citation omitted). Rule 11-901(A) NMRA states: "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Rule 11-901(B) provides a non-exhaustive list of examples of evidence that satisfy the authentication requirement. One example is evidence that has "[d]istinctive characteristics and the like." Rule 11-901(B)(4). An item of evidence may be authenticated based on distinctive characteristics when "[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances" support a finding that the item is what it purports to be. Id.

{28} The district court did not abuse its discretion because various distinctive characteristics of the Regulations provided it with a sufficient basis for concluding that they were more likely than not authentic. The first page of the document includes a distinctive logo that features the school's nickname (New Mexico Tech), a graphic representation of three mountains, and the words "SCIENCE," "ENGINEERING," "RESEARCH," and "UNIVERSITY." This same logo appears on two other key documents that the court and the parties treated as authentic: the parties' contract for the 2011/2012 academic year and the memorandum notifying Plaintiff of Defendant's decision to terminate him. The first page of the Regulations also includes an appropriate title, the formal name of the school, and the school's location. The second page includes a table of contents with many headings, all of which describe subject matter appropriate for regulations on academic freedom and tenure. The second page also states that the Regulations were "[a]pproved by the Board of Regents of New Mexico Institute of Mining and Technology" in 1985. The remaining ten pages of the document include text that addresses, in the order indicated, the same topics listed in the table of contents. The "appearance, contents, substance, [and] internal patterns," Rule 11-901(B)(4), of the Regulations sufficiently supported the district court's conclusion that they were authentic. Its decision to consider the Regulations therefore was not "obviously erroneous, arbitrary or unwarranted." Trujillo , 2002-NMSC-005, ¶ 15, 131 N.M. 709, 42 P.3d 814 (internal quotation marks and citations omitted).

CONCLUSION

{29} We affirm the district court's order denying Defendant's motion for summary judgment and remand for further proceedings consistent with this opinion.

{30} IT IS SO ORDERED.

WE CONCUR:

JULIE J. VARGAS, Judge

KRISTINA BOGARDUS, Judge

      Plaintiff's complaint also included a claim for wrongful termination in violation of public policy, which the district court dismissed, and a claim for defamation, on which the district court granted Defendant's motion for summary judgment. Neither claim is part of this appeal.

      Due to an apparent typographical error, the complaint alleged that Plaintiff's "employment continued until May 11, 2013." The surrounding allegations make clear that Plaintiff meant to allege that his employment ended in 2012, and all of the evidence before us is to that effect.

      Because of the "imbalance of power" inherent in the employer-employee relationship and the need to protect the "reasonable expectations employers create in their employees," employment contracts "represent a unique body of law." Campos de Suenos, Ltd. v. Cty. of Bernalillo , 2001-NMCA-043, ¶ 26, 130 N.M. 563, 28 P.3d 1104. While these and similar public policy considerations may require departure from ordinary principles of contract law when those principles do not square with the realities of modern employment, see, e.g. , Hartbarger v. Frank Paxton Co. , 1993-NMSC-029, ¶¶ 7-12, 115 N.M. 665, 857 P.2d 776, neither party has persuaded us that such departure is necessary to decide this appeal.

      Both parties urge us to borrow from opinions issued by courts in other jurisdictions that address how those jurisdictions' time-bar statutes apply to various types of employment claims under those jurisdictions' laws. Because New Mexico law and established principles of contract law dictate the outcome of this appeal, we have no need to rely on, or even discuss, the out-of-jurisdiction cases the parties have cited. Cf. In re Adoption of Francisco A. , 1993-NMCA-144, ¶ 67, 116 N.M. 708, 866 P.2d 1175 (Hartz, J., specially concurring) (recognizing that New Mexico is unique and that discussing out-of-jurisdiction authorities is no substitute for analyzing pertinent New Mexico law).

      During the summary judgment hearing, the district court suggested that it would grant the motion if it concluded, after reviewing the parties' supplemental briefs, that the Regulations went into effect after the 2011/2012 academic year. Plaintiff's supplemental brief included the Regulations, which indicate that Defendant adopted them long before Plaintiff's employment began.

      We express no opinion about whether Rule 11-901(B)(4) was the only proper vehicle for authenticating the Regulations.


source: Caselaw Access Project

author: LEWIS, PRESIDING JUDGE: KUEHN, V.P.J., DISSENTING:

license: Public Domain

text:
    A.O., Appellant v. The STATE of Oklahoma, Appellee.
    No. J-2018-1066
    Court of Criminal Appeals of Oklahoma.
    FILED AUGUST 8, 2019
   LEWIS, PRESIDING JUDGE:

¶1 On December 7, 2017, Appellant, A.O., was charged as a juvenile with Sexual Battery, in violation of 21 O.S.Supp.2017, § 1123(B), in McIntosh County District Court Case No. JDL-2017-29. On February 26, 2018, an Amended Delinquent Petition was filed charging A.O. as a juvenile with Child Sexual Abuse, in violation of 21 O.S.Supp.2014, § 843.5(E). A non-jury trial was completed on September 25, 2018, and the Honorable David Martin, Special Judge, entered an order adjudicating A.O. a delinquent child pursuant to 10A O.S.Supp.2014, § 2-2-402. A.O. appeals from this order pursuant to 10A O.S.2011, § 2-2-601. On appeal, A.O. raises the following issues:

1. A.O. WAS NEVER INFORMED OF HIS STATUTORY RIGHT TO A JURY TRIAL. THEREFORE, HIS DUE PROCESS RIGHTS WERE VIOLATED WHEN HE WAS ADJUDICATED AT A BENCH TRIAL.
2. THE TEXT, STRUCTURE, AND PURPOSE OF 21 O.S.SUPP.2014, § 843.5(E) INDICATES THAT ONE CHILD TOUCHING ANOTHER CHILD'S BUTTOCKS OVER HER JEANS IS NOT THE TYPE OF CONDUCT THAT THE LEGISLATURE INTENDED TO CRIMINALIZE AS "CHILD SEXUAL ABUSE."
3. A PROSECUTOR CANNOT GIVE HIS OPINION AS TO THE GUILT OF THE ACCUSED. THEREFORE, A.O.'S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE PROSECUTOR EXPRESSED HIS OPINION AS TO ONE OF THE ELEMENTS OF THE OFFENSE.

¶2 Pursuant to Rule 11.2(A), Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch.18, App. (2019), this appeal was automatically assigned to the Accelerated Docket of this Court. Oral argument was held January 17, 2019, pursuant to Rule 11.2(E). At the conclusion of oral argument, the Court took its decision under advisement. After a review of the record before this Court and hearing oral argument, we find the record does not support A.O.'s Propositions I and III but pursuant to Proposition II, A.O. is entitled to relief.

¶3 The District Court order adjudicating A.O. delinquent for Child Sexual Abuse, in violation of 21 O.S.Supp.2014, § 843.5(E), is REVERSED . This matter is REMANDED to the District Court of McIntosh County for entry of an order MODIFYING A.O.'s adjudication order to reflect that A.O. is adjudicated delinquent for one count of Assault and Battery, in violation of 21 O.S.Supp.2014, § 644, and as so modified, the adjudication is AFFIRMED .

¶4 In his first proposition, A.O. argues reversal of his adjudication is required because the record is silent regarding whether he was informed of, or waived, his right to a jury trial. See 10A O.S.2011, § 2-2-401. This Court recently addressed this issue in G.W. v. State and eliminated the requirement that a waiver of the right to a jury trial be made affirmatively in the record. 2018 OK CR 36, ¶ 9, 433 P.3d 1283, 1286. Regardless, the record in this case is clear that A.O. and his guardian were both informed of his right to a jury trial and the right was waived. Proposition I is without merit.

¶5 A.O. maintains in Proposition III that he is entitled to relief because the prosecutor allegedly stated his opinion during the non-jury trial that A.O. was guilty. The prosecutor's comment A.O. complains of in this proposition occurred during the State's argument in response to A.O.'s demur to the evidence. A.O. complains of the State's following statement: "And, I mean, again I'm from the Country, but to me that's expressing lust or lewdness ." (emphasis added).

¶6 A.O. relies on Evans v. State and United States v. Young to support his argument that a prosecutor expressing his opinion that the evidence presented established an element of the crime in this case is plain error and requires reversal. See United States v. Young, 470 U.S. 1, 18-19, 105 S. Ct 1038, 1048, 84 L. Ed. 2d 1, 14 (1985) ; Evans v. State , 1976 OK CR 38, ¶ 3, 546 P.2d 284, 285. The objectionable comments made in both Evans and Young were made by prosecutors to a jury during closing remarks. In this case the comments were made by the State in a non-jury trial during its response to A.O.'s demur. Both Evans and Young indicate that the effect of a prosecutor's allegedly prejudicial comment may be outweighed by the sufficiency of the evidence. Young, 470 U.S. at 18-19, 105 S.Ct. 1038 ; Evans , 1976 OK CR 38, ¶ 3, 546 P.2d 284. The evidence in this case was more than sufficient to overcome any concern that Judge Martin's ruling was prejudiced by this remark. It is also important, according to both cases, that the State's comment "but to me that's expressing lust or lewdness " is clearly relying and commenting on the evidence (victim's testimony) presented at this non-jury trial. This comment did not deprive A.O. of a fair trial. See Patton v. State , 1998 OK CR 66, ¶ 126, 973 P.2d 270, 302. A.O.'s third proposition is without merit.

¶7 In Proposition II, A.O. objects to the trial court's failure to require the State to prove the elements of the underlying acts constituting Child Sexual Abuse. Appellant argues the State was not required to prove the correct elements. A.O. was tried for one count of Child Sexual Abuse, in violation of 21 O.S.Supp.2014, § 843.5(E). Section 843.5(E) defines "Child Sexual Abuse" as "willful or malicious sexual abuse, which includes but is not limited to rape, incest, and lewd or indecent acts or proposals, of a child under eighteen (18) years of age by another." Appellee acknowledges that A.O.'s crimes in this case are lewd acts that would normally be prosecuted pursuant to 21 O.S.Supp.2017, § 1123, but for the age limitations found in Section 1123. Section 1123(A) requires an accused to be three years older than the victim of the lewd acts and Section 1123(B) only applies to victims of sexual battery that are sixteen years or older. 21 O.S.Supp.2017, § 1123(A), (B). According to A.O., the Oklahoma Legislature did not intend Section 843.5(E) to allow prosecutors to circumvent the age restrictions found in Section 1123. We agree.

¶8 Judge Martin erred when he did not require the State to prove each element of the underlying crime, including the age requirements, in addition to the elements of 21 O.S.Supp.2014, § 843.5(E). As a result, the trial court was able to find A.O. guilty of Child Sexual Abuse without properly considering the elements of the underlying lewd acts. A.O. was originally charged with Sexual Battery pursuant to Section 1123(B). By its own admission, the State only pursued adjudication pursuant to Section 843.5(E) after determining it was unable to prove the necessary elements of Subsections A or B of Section 1123 due to A.O.'s and the victim's ages.

¶9 We find that in order to convict an individual pursuant to 21 O.S.Supp.2014, § 843.5(E) the State must prove the elements of the underlying crime beyond a reasonable doubt. To find otherwise would chance rendering Section 843.5(E) unconstitutional for over-breadth and vagueness. Papachristou v. City of Jacksonville , 405 U.S. 156, 162, 92 S. Ct. 839, 843, 31 L. Ed. 2d 110 (1972) (a person of ordinary intelligence must have fair notice what conduct is forbidden by a statute); Switzer v. City of Tulsa , 1979 OK CR 73, ¶ 4, 598 P.2d 247, 248.

¶10 In Huskey v. State , 1999 OK CR 3, 989 P.2d 1, this Court considered whether the trial court erred by failing to instruct on all of the elements of the underlying sexual abuse crime of Lewd Molestation. The trial court created its own jury instruction in Huskey . It gave an instruction that included the standard OUJI instruction elements for Child Sexual Abuse and for Lewd Molestation, except that the elements of Lewd Molestation were modified by removing one element. On appeal Huskey argued that the trial court erred when it did not instruct on each element of the underlying crime of Lewd Molestation pursuant to 21 O.S.1991, § 1123(A). This Court denied Huskey's claim determining it was not necessary in a Child Sexual Abuse case to give an instruction including, nor to prove, every element of the underlying crime of Lewd Molestation. Huskey , 1999 OK CR 3, ¶¶ 8-10, 989 P.2d 1. To the extent it is inconsistent with this opinion, Huskey is overruled.

¶11 The evidence in this case is uncontroverted that A.O. touched the victim without permission. "A battery is any willful and unlawful use of force or violence upon the person of another." 21 O.S.2011, § 642. While the evidence is insufficient to support an adjudication for Child Sexual Abuse, the evidence is more than sufficient to support an adjudication for simple battery. Id.

DECISION

¶12 It is therefore the order of this Court that the McIntosh County District Court order adjudicating A.O. delinquent for Child Sexual Abuse, in violation of 21 O.S.Supp.2014, § 843.5(E), is REVERSED . This matter is REMANDED to the District Court of McIntosh County for entry of an order modifying A.O.'s adjudication order. The adjudication order shall be MODIFIED to reflect that A.O. is adjudicated delinquent for one count of Assault and Battery, in violation of 21 O.S.2011, § 644. As so modified, the adjudication is AFFIRMED . The child is REMANDED to the jurisdiction of the District Court of McIntosh County for the entry of a disposition order.

10A O.S.Supp.2018, § 2-2-501 ; 10A O.S.2011, § 2-2-601. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the filing of this decision.

KUEHN, V.P.J.: Dissent

LUMPKIN, J.: Specially Concur

HUDSON, J.: Specially Concur

ROWLAND, J.: Concur

HUDSON, J., SPECIALLY CONCUR:

¶1 I concur in today's Opinion. I write separately to expand on the Court's holding that to convict an individual of child sexual abuse pursuant to § 843.5(E), the State must prove the elements of the underlying crime beyond a reasonable doubt. See Notes on Use, Inst. No. 4-39, OUJI-CR(2d) ("The trial court should give a separate instruction on the elements of the particular sexual abuse or sexual exploitation that has been alleged."). See also Day v. State, 2013 OK CR 8, ¶ 14, 303 P.3d 291, 298 ("Trial courts should use the uniform jury instructions if they state the applicable law."); Lewis v. State , F-2017-355, slip op. at 8 (Okl.Cr. May 24, 2018) (Hudson, J., Concurring in Results) (not for publication) (deviation from prescribed language of the uniform instructions for Child Sexual Abuse resulted in an omission in the statutorily mandated elements). In reaching this determination, we are mindful that the manner in which we interpret § 843.5(E) can have a ripple effect that may alter or impact the legislatively intended application of other statutory sex crimes. We determine the Legislature's intentions by looking "to each part of the statute, to other statutes upon the same or relative subjects , to the evils and mischiefs to be remedied, and to the natural or absurd consequences of any particular interpretation." State v. Stice , 2012 OK CR 14, ¶ 11, 288 P.3d 247, 250 (quoting Lozoya v. State, 1996 OK CR 55, ¶ 20, 932 P.2d 22, 28 ) (emphasis added). See also State v. Cooper , 2018 OK CR 40, ¶ 11, 434 P.3d 951, 954.

¶2 In the present case, we are called upon to reconcile § 843.5(E) with 21 O.S.Supp.2017, § 1123, specifically the age restrictions imposed by the Legislature on the crimes of lewd molestation and sexual battery. As acknowledged by the State, the crime of lewd molestation requires the accused be "at least three (3) years older than the victim, except when accomplished by the use of force or fear." 21 O.S.Supp.2017, § 1123(A). Sexual battery mandates that the victim be "sixteen (16) years of age or older[.]" 21 O.S.Supp.2017, § 1123(B). We must presume the Legislature did not embed these age restrictions in vain. State v. Dist. Court of Oklahoma Cty. , 2007 OK CR 3, ¶ 17, 154 P.3d 84, 87 ("This Court will not presume the Legislature to have done a vain thing."). Thus, construing the crime of child sexual abuse as a separate and distinct crime from any other sex offense fails to give intelligent effect to each § 843.5(E) and § 1123(A) and (B). Moss v. Okla. Dept. of Corr. , 2016 OK CR 23, ¶ 18, 403 P.3d 379, 383 ("Statutes are to be construed to determine the intent of the Legislature, reconciling provisions, rendering them consistent and giving intelligent effect to each .") (emphasis added). Such an interpretation would effectively morph 21 O.S. 843.5(E) into a super-crime, permitting the State to circumvent the Legislature's clear intent and thus risk rendering the statute constitutionally over-broad and void for vagueness. See Saldivar v. State, F-2016-482, slip op. at 7 n.3 (Okl.Cr. May 24, 2018) (not for publication).

¶3 While the dissent recognizes this Court's obligation to defer to the Legislature and begin with the presumption that statutes are constitutional, the dissent neglects our "duty to construe statutes in a manner which does not run afoul of the constitution[,]" and our "duty to liberally construe statutes 'with a view to effect their objects and to promote justice.' " Gonseth v. State , 1994 OK CR 9, ¶ 8, 871 P.2d 51, 54. Moreover-

If two possible interpretations of a statute are possible, only one of which would render it unconstitutional, a court is bound to give the statute an interpretation that will render it constitutional, unless constitutional infirmity is shown beyond a reasonable doubt. A court is bound to accept an interpretation that avoids constitutional doubt as to the legality of a legislative enactment.

Braitsch v. City of Tulsa , 2018 OK 100, ¶ 2, 436 P.3d 14, 17 (internal citations omitted).

¶4 The majority's reconciliation of § 843.5(E) with other statutory sex crimes does not, as the dissent contends, impermissibly "add language to the statute creating new elements." Notably, specific statutory reference to preexisting delineated sex crimes is embedded within § 843.5(E), "which includes but is not limited to rape, incest, and lewd or indecent acts or proposals[.]" 21 O.S.Supp.2014, § 843.5(E). The majority's interpretation of § 843.5(E) rather gives proper credence to the Legislature's intentions by looking to each part of the statute, as well as other statutory sex crimes, and as mandated ultimately gives the statute an interpretation that renders it constitutional.

¶5 The OUJI Committee is to be commended for having the foresight to recognize the potential legal minefield presented in § 843.5(E) and adeptly drafting the needed instructions to ensure the constitutional application of this provision.

¶6 I am authorized to state that Judge Lumpkin joins in this special writing.

KUEHN, V.P.J., DISSENTING:

¶1 In Proposition II, the Majority is unwilling to face the consequences of the elements of child sexual abuse as prohibited by 21 O.S. § 843.5(E), its relation to other sex offenses, and the instructions which must be used. I would construe § 843.5(E) as written, find it unconstitutional, and reverse.

¶2 Appellant was charged with and convicted of child sexual abuse in violation of 21 O.S.Supp.2014, § 843.5(E). As I have repeatedly said, that crime is separate and distinct from any other sex offense, and has only three elements: any person who (1) willfully or maliciously engages (2) in sexual abuse (3) of a child under eighteen is guilty of child sexual abuse. 21 O.S.Supp.2014, § 843.5(E) ; OUJI-CR 2d 4-39. The statutory language creating this crime is clear and unambiguous, and this Court has recognized it as a separate crime, with separate elements, since 1999. Huskey v. State , 1999 OK CR 3, ¶ 9, 989 P.2d 1, 6.

¶3 Of course, the Legislature has both the right and the authority to make having sex with children a crime. It not only should, it has done so, in both § 843.5(E) and in other sex offense statutes. Section 843.5(E) provides: " 'child sexual abuse' means the willful or malicious sexual abuse, which includes but is not limited to rape, incest, and lewd or indecent acts or proposals, of a child under eighteen (18) years of age by another." 21 O.S.Supp.2014, § 843.5(E). That is, the language encompasses, but does not incorporate , various acts which may also be criminalized elsewhere in the Penal Code.

¶4 This statute originally was limited to persons responsible for the child victim's welfare. However, when the statutes were renumbered in 2009 the Legislature amended § 843.5(E) to remove that limiting language. With that amendment, the statute applied to every potential defendant, broadening its scope. "When construing a statute that has been amended, we may reasonably infer that the alteration was intended either to effect a change in the existing law, or to clarify an interpretation that may have been in question." Lewis v. City of Oklahoma City , 2016 OK CR 12, ¶ 7, 387 P.3d 899, 902. This amendment, along with the statute's plain language quoted above, suggests that the Legislature intended to expand the crime of child sexual abuse and create a comprehensive crime encompassing all defendants, all possible sexual acts, and all victims aged up to 18. I agree with the Majority that the language in § 843.5(E) is very broad. As written, it includes, without exception, basically any sexual act directed towards or committed upon a child under the age of eighteen - including the act committed by Appellant here.

¶5 I agree with the Majority that the statutory elements of § 843.5 directly conflict with the age restrictions found in the elements of 21 O.S.Supp.2017, § 1123. I further agree that it is impossible to construe the two statutes together without failing to give intelligent effect to at least part of one statute. However, the Majority's solution - to require a trial court to instruct on the elements of the underlying crime-renders the entirety of § 843.5(E) null and void. If this Court changes the elements of § 843.5(E) to add elements of other crimes, then we irrevocably alter the elements of § 843.5(E). Where statutes conflict, this Court's duty is to reconcile them, if possible, to give effect to each provision. Moss v. OK Dept. of Corr. , 2016 OK CR 23, ¶ 18, 403 P.3d 379, 383 ; Leftwich v. State , 2015 OK CR 5, ¶ 15, 350 P.3d 149, 155. This is exactly what the Majority fails to do: including elements of every underlying offense, either included in the Information or supported by the evidence, strips § 843.5(E) of all meaning.

¶6 We have previously said that we will not, in order to justify a prosecution, enlarge a statute beyond either its fair meaning or a meaning justified by its terms. Leftwich , 2015 OK CR 5, ¶ 15, 350 P.3d at 155 ; see also McNeely v. State , 2018 OK CR 18, ¶ 3, 422 P.3d 1272, 1274 (Court will not create authority not explicitly granted in statutory language). By the same token, we should not enlarge a statute's language in order to avoid a prosecution. "As there are no common law crimes in this State, this Court is bound by the language the Legislature has placed in our statutes defining crimes." Arganbright v. State , 2014 OK CR 5, ¶ 15, 328 P.3d 1212, 1216. The Majority's decision, requiring instruction on and proof of different elements of other sex crimes in prosecutions under § 843.5(E), is not (as the specially concurring opinion suggests) interpreting the statutes liberally to affect their objects; nor is it choosing from two possible interpretations of existing language. The Majority is rewriting the statute to fit its own conception of the crime, plain and simple, and that is not statutory interpretation.

¶7 As I note above, Huskey recognized the statute now codified as § 843.5(E) (then, 10 O.S.Supp.1995, § 7115 ) as a separate crime. In doing so, Huskey confronted the very question the Majority raises: must a trial court instruct on elements of an underlying sex offense when a defendant is charged with child sexual abuse, and the evidence suggests that sexual abuse falls within the parameters of a separate criminal statute? In Huskey , the Court found such instruction inappropriate. We noted, "[I]f the State must allege and prove the elements of lewd and indecent conduct in order to convict a parent of child abuse under § 7115, why not simply require it to charge the crime under § 1123 ? The Legislature evidently intended § 7115, child abuse, to be a separate crime encompassing activity already prohibited by other statutes." Huskey , 1999 OK CR 3, ¶ 9, 989 P.2d at 6. Put another way, we recognized that to require instruction on any underlying sex offense made the crime of child sexual abuse "pointless". Id .

¶8 The Majority's solution to this dilemma is to overrule Huskey . While this certainly resolves the problem of conflicting case law, it does nothing to resolve the underlying statutory conflict. In the recent past this Court has seen a significant increase in the number of cases presenting issues directly caused by this conflict. Trial courts do not know how to instruct in these cases, and our case-by-case resolutions do not offer guidance. Neither does the Majority's solution here. The plain language of the statute does not require prosecutors to specify an underlying offense in the charging language, and the majority does not suggest that they must. Either § 843.5(E) is a separate crime with its own distinct elements, or it is not. By requiring additional instruction on separate elements of different crimes, the Majority concludes it is not. Yet, the evidence in many child sexual abuse cases includes aspects of more than one underlying sex offense - for example, one single charge may be proved by evidence of acts including lewd molestation, sexual battery, and forcible oral sodomy. Must the trial court instruct on each element of each of those offenses, even though none were included in the Information charging child sexual abuse under § 834.5(E)? Must jurors find each element of each crime unanimously? What if the evidence shows, overall, that child sexual abuse was clearly committed even though evidence did not show every element of any underlying offense? The Majority's resolution creates more questions than it answers, and perpetuates a problem that can be cleanly and clearly resolved by, for a start, accepting the statute on its face and taking the Legislature at its word.

¶9 My colleagues explicitly justify this decision - to add elements to § 843.5(E) and overrule Huskey - because they are concerned that, as it stands and taken on its face, § 843.5(E) is so broad as to be unconstitutional. I share that concern. A statute must be so definite that a person of ordinary intelligence can understand what conduct is prohibited, and that it does not encourage arbitrary and discriminatory enforcement. Weeks v. State , 2015 OK CR 16, ¶ 18, 362 P.3d 650, 655. If persons must either guess at a statute's meaning, or differ as to its application, it is void for vagueness. Id . As Justice Gorsuch recently said, "In our constitutional order, a vague law is no law at all. ... When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again." United States v. Davis , 588 U.S. ----, 139 S.Ct. 2319, 2323, 204 L.Ed.2d 757 (2019).

¶10 As can be seen in this case, § 843.5(E) is so broad that it prohibits as criminal some actions that are not crimes under statutes specifically prohibiting similar behavior. In fact, as both the State and the Majority admit, this prosecution was brought specifically because, given the ages of the parties involved, the offenses of sexual battery and lewd molestation were not crimes as to Appellant. The record shows the prosecutor believed Appellant's acts were sexual in intent and nature. Rather than prosecute Appellant for simple battery, the prosecutor correctly turned to the only available sex offense, child sexual abuse.

¶11 The statute conflicts with other statutes as well; most of the sex offense statutes, including lewd molestation, varieties of rape, incest, and forcible oral sodomy, have specific age elements restricting application to victims under the age of sixteen, or fourteen; some include victims under eighteen but require the defendant to be in a particular position of authority or responsibility towards the victim. Some, such as incest, carry significantly less potential prison time. The statute makes no exception for marriages, although minors of sixteen years may marry with parental consent. The very breadth and scope of the statute encourages arbitrary enforcement. District attorneys can choose to prosecute as child sexual abuse actions that simply are not otherwise crimes, or not, depending on the circumstances; district attorneys can also choose to prosecute as child sexual abuse actions that are elsewhere criminalized but at a lesser range of punishment. Depending on the county, or even the whim of individual prosecutors, a person may be punished for the same act with as little as ten years or as much as life in prison. This creates significant uncertainty. Again, quoting Justice Gorsuch, "Vague statutes threaten to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people's ability to oversee the creation of the laws they are expected to abide." Davis , 139 S.Ct. at 2325.

¶12 I understand my colleagues' preference to adopt "any fairly possible" reading of § 843.5(E) to avoid having to declare it unconstitutional. Id. at 2332 & n.6 (quotation omitted). However, this Court neither can nor should step outside our role as judges in order to add elements or change elements to § 843.5(E) that were not included or written by the Legislature. Id . at 2324. It is this Court's duty to determine whether § 843.5(E)

is too vague under the Constitution - indeed, where the question is before us, we must do so. The United States Supreme Court has made this clear. For example, Justice Marshall observed,

First, 'a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so fair as possible the line should be clear.' McBoyle v. United States , 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931) (Holmes, J.). See also United States v. Cardiff , 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200 (1952). Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies 'the instinctive distastes against men languishing in prison unless the lawmaker has clearly said they should.' H. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967). Thus, where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.

U.S. v. Bass , 404 U.S. 336, 348, 92 S.Ct. 515, 522-23, 30 L.Ed.2d 488 (1971) (footnote omitted). In a different case Justice Scalia, apparently goaded beyond endurance by the majority's reluctance to declare a problematic statute unconstitutional, said:

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step-indeed, I think it would be highly responsible-to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.

Sykes v. U.S. , 564 U.S. 1, 35, 131 S.Ct. 2267, 2288, 180 L.Ed.2d 60 (2011) (Scalia, J., Dissenting), overruled by Johnson v. United States , --- U.S. ----, 135 S. Ct. 2551, 192 L. Ed. 2d 569 (2015). Just a few years after Sykes , the Court recognized the truth of Scalia's position and declared the statute at issue unconstitutional.

¶13 We always defer to the Legislature and begin by presuming that any given statute is constitutional. Weeks , 2015 OK CR 16, ¶ 17, 362 P.3d at 654. The Majority appears to start and stop with this presumption, preferring to add language to the statute creating new elements rather than face the constitutional question. However, where a statute fails to tell a citizen that his conduct may be forbidden, or where it encourages arbitrary and erratic enforcement, it is this Court's duty to find it is void for vagueness. Davis , 139 S.Ct. at 2323-24 ; Papachristou v. City of Jacksonville , 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). I would do so here. Because Appellant was convicted under an unconstitutional statute, I would reverse the conviction.

      A.O. was born December 26, 2002. He was 14 years, 10 months, and 9 days old at the time of this incident. The victim was 13 years, 11 months, and 3 days old on the date of this incident.

      A.O. and his guardian were informed of his right to a jury trial and waived this right in a hearing held on February 27, 2018. The February 27, 2018, hearing was unable to be transcribed and the State requested a hearing to memorialize the parties' recollections of what occurred. A hearing was held on December 18, 2018, and A.O.'s trial counsel testified A.O. was informed of his right to a jury trial, in the presence of his guardian, and that A.O. was adamant he did not want a jury trial. According to A.O.'s trial counsel A.O. specifically directed trial counsel to set this case for non-jury trial. The transcript of the December 18, 2018, hearing is more than sufficient pursuant to G.W. v. State , 2018 OK CR 36, ¶ 7, 433 P.3d 1283.

      The comment appears at page 46 of the June 19, 2018, non-jury trial transcript.

      Trial courts are required to use the uniform jury instructions unless the trial court determines that they do not accurately state the law based on statutory changes or intervening case law. See Order Adopting Amendments to Uniform Jury Instructions - Criminal , No. CCAD-96-2 (Okl.Cr. April 4, 1996); Bosse v. State , 2017 OK CR 10, ¶ 61, 400 P.3d 834, 856 ; 12 O.S.2011, § 577.2. Child Sexual Abuse is prohibited by 21 O.S.Supp.2014, § 843.5(E). The Oklahoma Uniform Jury Instruction (OUJI) for Child Sexual Abuse is OUJI-CR 4-39 and in this case would read as follows:
      No person may be convicted of the sexual abuse of a child unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
      First, a person willfully or maliciously engaged in;
      Second, lewd or indecent acts;
      Third, with a child under the age of eighteen.
      The alleged sexual abuse in this case was lewd or indecent acts which are prohibited by Section 1123(A). The OUJI for lewd acts is OUJI-CR 4-129 and in this case would read as follows:
      No person may be convicted of lewd acts with a child under sixteen unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
      First, the defendant knowingly and intentionally;
      Second, touched or felt;
      Third, the body;
      Fourth, of a child under sixteen years of age;
      Fifth, in any lewd or lascivious manner; and
      Sixth, the defendant was at least three years older than the child.

      The defendant in Huskey was convicted of Child Sexual Abuse pursuant to 10 O.S.Supp.1995, § 7115. In 2009, HB 2028 recodified the statute prohibiting Child Sexual Abuse as 21 O.S.Supp.2009, § 843.5.

      At the time the OUJI for Lewd Molestation included a third element, force, which the trial court chose not to include in the modified instruction it gave the jury.

      The Majority's solution is even less persuasive in Appellant's case, because Appellant was charged with child sexual abuse, not any underlying crime . The instruction at issue arises from the evidence used to prove the charge, not from anything inherent in the charge itself. Thus, the Majority would require the trial court to instruct on elements of a crime that was not charged in the Information.

      Specially concurring, my colleague commends the OUJI Committee for attempting to limit § 843.5(E) by stating, in the Notes on Use accompanying OUJI-CR 2d 4-39, that trial courts "should" instruct separately on the elements of the underlying sexual offense. I note we do not look to either jury instructions or committee notes as legal precedent.

      However, the Majority decides the best result in this case is to modify Appellant's conviction to simple assault and battery. I cannot agree with this resolution. The prosecutor knew he could have charged Appellant with assault and battery, but deliberately and correctly chose to charge child sexual abuse because he thought a sex offense was committed. I conclude that the Majority reaches this result because, given its analysis of § 843.5(E), it cannot affirm Appellant's adjudication under that statute, no other sex offense is available, and apparently the Majority is unwilling to reverse.


author: Bay Mitchell, Presiding Judge:

text:
    Denise WAKE, Plaintiff/Appellant, v. STATE of Oklahoma EX REL. Oklahoma OFFICE OF MANAGEMENT AND ENTERPRISE SERVICES EMPLOYEES GROUP INSURANCE DIVISION and Preston Doerflinger, in His Official Capacity Only as Director of OMES, Defendants/Appellees.
    Case No. 116,834
    Court of Civil Appeals of Oklahoma, Division No. 3.
    FILED JULY 12, 2019 Mandate Issued: August 28, 2019
    Roy S. Dickinson, ROY S. DICKINSON, P.C., Norman, Oklahoma, for Plaintiff/Appellant,
    Byron W. Knox, OMES DEPUTY GENERAL COUNSEL, Oklahoma City, Oklahoma, for Defendants/Appellees.
   Bay Mitchell, Presiding Judge:

¶1 Plaintiff/Appellant Denise Wake appeals from the district court's order affirming Defendant/Appellant State of Oklahoma ex rel. Oklahoma Office of Management and Enterprise Services (OMES) Employees Group Insurance Division (EGID) and Preston Doerflinger's final order denying certification for bariatric revision surgery. We find the procedure is a covered service according to the terms of the health insurance policy. We reverse the final agency order and remand to the OMES EGID Grievance Panel with instructions to enter a final order granting certification.

¶2 Wake has suffered from severe obesity her entire adult life. She had bariatric surgery in 1984. At that time, Wake was in college. She had a vertical banded gastroplasty (VBG), also known as stomach stapling. Initially, the procedure was successful and Wake lost significant weight. However, the VBG failed, and she re-gained weight. Wake also experienced other medical issues as a result of the failed VBG, including erosion of the staple lining, severe abdominal pain, frequent nausea and vomiting, gastroesophageal reflux disease (GERD), chronic diarrhea, and food intolerance. VBG was one of the earliest surgical weight loss procedures and popular in the 1980's. It has since fallen into disfavor due to these symptoms and complications and the rise of other more effective procedures. As a result of unsatisfactory long-term weight loss and/or these symptoms and complications, revision surgery is often required. There are several options for revision surgery, including conversion from a VBG to a Roux-en-Y (RNY) gastric bypass.

¶3 Wake started teaching in the Norman Public Schools district and has been covered by the employee benefit HealthChoice Health and Dental Plan (the Plan) since 2012. OMES and EGID sponsor and administer the Plan. A new benefit for bariatric surgery was added to the Plan as of January 1, 2017. Bariatric surgery requires pre-service certification. On January 6, 2017, Wake's doctor submitted a request for certification for conversion of Wake's failed VBG to a RNY gastric bypass. On January 17, 2017, HealthChoice denied certification finding the procedure was not covered by the Plan. The explanation of denial provided: "Gastric surgery done prior to 1/01/2017 therefore not a covered benefit." Wake filed a timely request for a OMES EGID Grievance Panel Hearing. After a hearing June 28, 2017, the Panel issued a final order upholding the denial and concluding "by the greater weight of the evidence that the requested procedure is a complication of a non-covered procedure; therefore, no benefits are available. Administrative Rule: 260:50-5-12(12)(19), Health Handbook: pages 32 #10, #11." Wake then appealed to the district court, where the Panel's final order denying certification was affirmed. Wake appeals.

¶4 The issues on appeal are whether the requested procedure is covered by the Plan and whether any coverage exclusions apply. The facts are not in dispute. These issues concern contract interpretation. An insurance policy is a contract, and the rules of construction apply. See May v. Mid-Century Ins. Co. , 2006 OK 100, ¶22, 151 P.3d 132. If unambiguous, the terms and words of the contract must be accepted in their plain, ordinary, and popular sense. See id. ; Flitton v. Equity Fire & Cas. Co. , 1992 OK 2, ¶7, 824 P.2d 1132, 1134 (citing Wiley v. Travelers Ins. Co. , 1974 OK 147, ¶16, 534 P.2d 1293, 1295 ). "The construction of an insurance policy should be a natural and reasonable one, fairly construed to effectuate its purpose, and viewed in the light of common sense so as not to bring about an absurd result." Wiley , 1974 OK 147, ¶16, 534 P.2d at 1295. Whether contract language is ambiguous is a question of law. See Am. Econ. Ins. Co. v. Bogdahn , 2004 OK 9, ¶11, 89 P.3d 1051. Questions of law are reviewed de novo . See May , 2006 OK 100, ¶22, 151 P.3d 132. The appellate court may set aside, modify, or reverse a final agency order if it determines that the substantial rights of the appellant have been prejudiced because the agency findings, inferences, conclusions, or decisions are affected by an error of law. See 75 O.S. 2011 § 322(1)(d).

¶5 The Covered Services, Supplies and Equipment section of the policy provides that "Bariatric Surgery" is a covered service. "Bariatric Surgery" is a general term which includes a variety of weight-loss procedures. The policy describes the specific procedures and services covered:

Services covered include, but are not limited to sleeve, bypass, duodenal switch, revision and conversion of sleeve, bypass and duodenal switch, and complications from these procedures performed under the HealthChoice plans.

¶6 Wake argues she is seeking a revision surgery, which is a covered service. OMES argues Wake is requesting a procedure to correct complications from the 1984 surgery and, because the previous bariatric surgery was not performed under a HealthChoice plan, the revision surgery is not covered.

¶7 We find the Covered Services language is not ambiguous. Revision and conversion of sleeve, bypass, and duodenal switch are covered services. Three categories of covered services are contemplated in this provision: (1) original sleeve, bypass, and duodenal switch; (2) revision and conversion of sleeve, bypass, and duodenal switch; and (3) complications from either an original sleeve, bypass, or duodenal switch performed under the HealthChoice plans or a revision and conversion of a sleeve, bypass, or duodenal switch performed under the HealthChoice plans. We agree with Wake that the requested procedure falls into the second category and is covered by the Plan.

¶8 OMES's position that revision and conversion procedures are covered only if the previous bariatric surgery was covered by and performed under a HealthChoice plan on or after January 1, 2017 is problematic. That interpretation would require us to read additional words into the Covered Services provision. The second category of Covered Services does not read "revision and conversion of sleeve, bypass and duodenal switch if the previous or original bariatric surgery was performed under the HealthChoice plans ." Additionally, the limiting language "performed under the HealthChoice plans" attaches only to "complications from these procedures" and does not attach to "revision and conversion of sleeve, bypass and duodenal switch." "[R]evision and conversion of sleeve, bypass and duodenal switch" and "complications from these procedures performed under the HealthChoice plans" are separated by a comma and the word "and." Revision and conversion procedures and services addressing complications from procedures performed under the Plan are separate and distinct covered services.

¶9 We now turn to the coverage exclusions in the administrative rules and the policy. The HealthChoice Administrative Rules provide certain limitations and exclusions from coverage. Relevant here is 260:50-5-12(12), which excludes from coverage expenses incurred in connection with "Complications from any non-covered or excluded treatments, items or procedures." The policy contains the same exclusion. Wake argues the requested procedure is not subject to this exclusion. OMES contends the exclusion applies. OMES argues the original bariatric surgery in 1984 was not covered by the Plan and the requested revision surgery is to address complications from that non-covered procedure.

¶10 OMES suggests the intent of the Covered Services provision and the exclusion in the policy and administrative rules was that revision and conversion surgeries are to be considered services addressing "complications." Therefore, if the complications necessitating revision surgery are from a previous bariatric surgery that was not covered by a HealthChoice plan, it comes within this exclusion. If the complications necessitating revision surgery are from a previous bariatric surgery that was covered by a HealthChoice plan on or after January 1, 2017, it does not come within this exclusion and is a covered service. The Grievance Panel agreed, finding Wake's "requested procedure is a complication of a non-covered procedure."

¶11 The problem with this interpretation is it completely disregards the plain language of the Covered Services provision. The intention of the parties must be determined by the four-corners of the contract. See 15 O.S. 2001 §§ 154 and 155 ; Mercury Inv. Co. v. F.W. Woolworth Co. , 1985 OK 38, ¶9, 706 P.2d 523, 529. If the intent was that "complications" encompass every revision and conversion procedure, that should have been articulated in the four corners of the policy. Common sense provides all revision and conversion procedures, by definition, are made necessary by complications from a previous bariatric surgery. If the original bariatric surgery is satisfactory and has not caused complications, there would be no reason for a revision surgery. As discussed above, the Covered Services provision separates revision and conversion procedures from services to address complications from procedures performed under the Plan. If the intent was to include revision and conversion procedures within the meaning of services for "complications" there would be no need to separately state that "revision and conversion of sleeve, bypass and duodenal switch" are Covered Services.

¶12 We find the policy excludes coverage for complications from non-covered bariatric procedures, generally, but it does not exclude revision and conversion of non-covered bariatric procedures, as described in the Covered Services provision. By specifically identifying revision and conversion of sleeve, bypass, and duodenal switch as Covered Services, the policy distinguishes these procedures from other services to address complications from non-covered procedures. If the intent is to exclude revision and conversion surgery if the previous bariatric procedure was not covered by and performed under a HealthChoice plan, that should be a specific exclusion in the policy and/or rules. There are 58 exclusions and limitations identified in the policy and 19 identified in the rules. We will not read an additional exclusion into the policy or rules.

¶13 The final agency order denying certification is reversed and the case is remanded to the OMES EGID Grievance Panel with instructions to enter a final order granting certification.

¶14 REVERSED AND REMANDED WITH INSTRUCTIONS.

BELL, J., and SWINTON, J., concur.

      HealthChoice and Defendants do not dispute medical necessity or compliance with certification.

      At the Grievance Panel Hearing, Dr. Frank Lawler, the Medical Director for EGID, testified on behalf of OMES. He explained the agency's intent to cover complications, including revision surgery, only if the Plan covered the previous bariatric procedure. We have determined the contract language is unambiguous and, therefore, this is impermissible extrinsic evidence. "In the absence of accident, fraud, or mistake of fact, when the language of a written contract is complete, unambiguous and free from uncertainty as to the parties' intentions, parole evidence of prior representations, contemporaneous agreements or understandings tending to change, contradict, or enlarge the plain terms of the written contract are inadmissible." First Nat. Bank and Trust Co. of Vinita v. Kissee , 1993 OK 96, ¶13, 859 P.2d 502 (footnote omitted).