source: Caselaw Access Project

author: WATT, C.J. OPALA, Y.C. J.,

license: Public Domain

text:
    2004 OK 47
    Joyce A. GILCHRIST, Plaintiff-Appellant, v. BOARD OF REVIEW OF THE OKLAHOMA EMPLOYMENT SECURITY Commission, The Oklahoma Security Commission, and The City of Oklahoma City, Defendants-Appellees.
    No. 98,495.
    Supreme Court of Oklahoma.
    June 15, 2004.

      Melvin C. Hall, Riggs, Abney, Neal, Turpin, Orbison & Lewis, Oklahoma City, OK, for Plaintiff-Appellant.
    Richard Smith, Assistant Municipal Counselor, Oklahoma City, OK, for Defendant-Appellee, City of Oklahoma City.
    Teresa Thomas Keller, Oklahoma City, OK, for Defendant-Appellee, Oklahoma Employment Securities Commission.
   WATT, C.J.

FACTS AND PROCEDURAL BACKGROUND

¶ 1 Appellant, Joyce Gilchrist, worked for the City of Oklahoma City Police Department as a forensic chemist for many years. Gilchrist was responsible for collecting and analyzing evidence from crime scenes and testifying as to the results in criminal prosecutions. Gilchrist was fired in 2001, in part based on United States District Judge Ralph Thompson’s published opinion in a habeas corpus proceeding, Mitchell v. Ward, 150 F.Supp 2d 1194 (W.D.Okla.1999). The issues before Judge Thompson arose from a criminal matter tried in the District Court of Oklahoma County in which Gilchrist had testified for the prosecution. Based on his analysis of the evidence developed in the habeas corpus matter, Judge Thompson concluded that Gilchrist’s testimony in the criminal trial concerning DNA evidence had been, “without question untrue,” 150 F.Supp.2d at 1226, and “terribly misleading, if not false,” 150 F.Supp.2d at 1229.

¶ 2 Judge Thompson’s opinion in Mitchell reveals that the petitioner, Mitchell, had been tried and convicted of forcible rape and murder. Mitchell’s habeas corpus proceeding was based on his claim that he had been denied access to exculpatory evidence. As a result of the seriousness of Mitchell’s claims, Judge Thompson allowed Mitchell to conduct discovery, which produced Gilchrist’s notes regarding her conversations with an FBI chemist regarding the DNA testing by the FBI.

¶ 3 Judge Thompson then granted Mitchell an evidentiary hearing. Gilchrist had testified at the criminal trial that the FBI’s DNA analysis was “inconclusive” as to whether any DNA sample may have matched Mitchell’s DNA. But the FBI chemist testified in the federal habeas corpus hearing that Mitchell’s DNA was not found in the FBI testing and that was the import of his report to Gilchrist. Gilchrist admitted in the federal court hearing that the DNA evidence did, indeed, exclude Mitchell. It was as a result of these revelations that Judge Thompson concluded that Gilchrist’s trial testimony, to the effect that the DNA results were “inconclusive,” was untrue. On appeal from Judge Thompson’s ruling the United States Court of Appeals for the 10th Circuit summarized the effect of Gilchrist’s testimony: “Ms. Gilchrist thus provided the jury with evidence implicating Mr. Mitchell in the sexual assault of the victim which she knew was rendered false and misleading by evidence withheld from the defense.” [Emphasis by the court.] Mitchell v. Gibson, 262 F.3d 1036, 1064 (10th Cir.2001).

¶ 4 Immediately after Oklahoma City police department officials received a copy of Judge Thompson’s opinion in Mitchell in the Fall of 1999, they began an investigation into Gilchrist’s conduct. Although Gilchrist complains that excessive time elapsed from the time of her testimony against Mitchell in 1992 and the hearing, the record reflects that it was Judge Thompson’s 1999 opinion that brought to light the seriousness of Gilchrist’s misconduct and the police department investigation started immediately thereafter. Following its investigation the police department started disciplinary proceedings before the Police Department Review Board. These proceedings were significantly delayed as a result of Gilchrist’s having sought continuances and having filed a federal court lawsuit to prohibit the city from conducting the hearing. Finally, the Police Department Review Board, after fourteen days of hearings and deliberations ending September 12, 2001, terminated Gilchrist’s employment on September 25, 2001.

¶ 5 Gilchrist filed a claim with the Oklahoma Employment Securities Commission seeking unemployment benefits; On October 15, 2001 the Oklahoma Employment Securities Commission denied Gilchrist’s claim based on the Commission’s conclusion that Gilchrist had been fired for misconduct. On October 25, 2001, Gilchrist appealed to an Appeal Tribunal of the Oklahoma Employment Securities Commission. On December 12, 2001 a hearing was held before an Appeal Tribunal hearing officer, who affirmed the Commission’s determination on February 4, 2002. Gilchrist appealed from the Appeal Tribunal’s order and on April 26, 2002 the Oklahoma Employment Securities Commission Board of Review affirmed. Gilchrist filed her petition for judicial review in the District Court of Oklahoma County on May 7,2002. The trial court affirmed the opinion of the Board of Review on October 29, 2002 and this appeal ensued.

STANDARD OF REVIEW

¶ 6 Title 40 O.S.2001 § 2-610 provides, . In any proceeding under this section the findings of the Board of Review as to the facts, if supported by evidence, shall be conclusive and the jurisdiction of said court shall be confined to questions of law....” This Court’s standard of review on appeal is the same as that of the trial court. Further, the question of what constitutes “misconduct” sufficient to deprive a terminated employee of entitlement to unemployment benefits is a question of law. Nordam v. Oklahoma Employment Securities Commission, 1996 OK 110, ¶ 12, 925 P.2d 556, 559.

DISCUSSION

¶ 7 Title 40 O.S.2001 § 2-406 provides that an individual shall be disqualified from receiving unemployment benefits if the employee was discharged for “misconduct.” We have defined “misconduct,” as that word is used in § 2-406, to be:

... conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed “misconduct” within the meaning of the statute.

[Emphasis added.] Vester v. Board of Review of Oklahoma Employment Securities Commission, 1985 OK 21, ¶ 15, 697 P.2d 533, 538.

¶ 8 In addition to Judge Thompson’s and the 10th Circuit’s Mitchell opinions, the record in the trial court contains the Court of Criminal Appeals’s opinion in McCarty v. State, 1988 OK CR 271, 765 P.2d 1215, which similarly found fault with Gilchrist’s conduct. The record also contains other opinions that criticized Gilchrist’s conduct in other criminal prosecutions.

¶ 9 We hold that Gilchrist’s conduct in Mitchell, that is knowingly giving false and misleading testimony in a criminal case, constituted “misconduct” sufficient to support the denial of unemployment benefits under § 2-406, as defined in Vester, 1985 OK 21, ¶ 15, 697 P.2d 533, 538. Nothing could be more fundamental than the obligation of a forensic chemist employed by a police department to give testimony that is both honest and fair. Only in this way can our criminal justice system itself be regarded as both honest and fail-. Clearly, Gilchrist did not satisfy that standard when she testified in Mitchell that the DNA evidence was “inconclusive,” despite having been told by the FBI chemist that the DNA was not Mitchell’s.”

¶ 10 The McCarty opinion also reveals “misconduct,” as found by the Appeal Tribunal, the Board of Review, and affirmed by the trial court. Gilchrist had testified in a murder trial that forensic techniques were not sufficiently advanced to allow positive identification of a person through blood typing, secretor status, or hair analysis. The Court of Criminal Appeals, though, held, “We find it inconceivable why Ms. Gilchrist would give such an improper opinion, which she admitted she was not qualified to give.” McCarty, 1988 OK CR 271 at ¶ 6, 765 P.2d 1215. [Emphasis added.] The court went on to observe, “Whether or not Ms. Gilchrist’s opinion constituted an improper personal expression of the appellant’s guilt, her opinion that appellant was in fact present when violence was done to the victim ivas an improper expert opinion, because it was beyond the present state of the art of forensic science, and certainly beyond Gilchrist’s personal knowledge, as testified to by both Ms. Gilchrist and Mr. Wilson.” McCarty, 1988 OK CR 271 at ¶ 8, 765 P.2d 1215. [Emphasis added.] As noted, such testimony brings into question the honesty and fairness of the criminal justice system.

¶ 11 We hold that Gilchrist’s derelictions “show[ed] an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to [her] employer.” Vester, 1985 OK 21, at ¶ 15, 697 P.2d 533. Her conduct, therefore, was “misconduct,” as that word is used in 40 O.S.2001 § 2-406.

Gilchrist had no constitutionally protected right to free speech sufficient to protect her from the consequences of her testimony in the Mitchell or McCarty prosecutions.

¶ 12 Gilchrist cites several opinions, which she claims support her contention that her constitutionally protected right to free speech was violated because she was fired as a result of her testimony in criminal prosecutions. We have found nothing in the cases Gilchrist cites, though, which would convince us that her constitutional rights were violated here. In most of those cases persons who had been accused of crimes sued parties who had been witnesses for the prosecution for money damages on the ground that those defendants’ testimony had deprived the convicted plaintiffs of their civil rights. Further, in none of those opinions was the testimony at issue judicially determined to have been false or misleading.

¶ 13 In stark contrast to any of the cases Gilchrist cites, the record of the testimony in the cases at issue here was carefully considered in post-trial proceedings by courts not involved in the trials themselves. Those courts found that Gilchrist’s testimony was either false and misleading or wilfully improper in other ways. On this record, we hold that Gilchrist’s rights to free speech were not violated.

CONCLUSION

¶ 14 The record supports the unanimous holding of the Oklahoma Employment Securities Commission, the Appeal Tribunal, the Board of Review, and the trial court that Gilchrist was guilty of “misconduct” in Gilchrist’s job performance, as that word is used in 40 O.S. § 2-406 and was interpreted in Vester v. Board of Review of Oklahoma Employment Securities Commission, 1985 OK 21, ¶ 15, 697 P.2d 533, 538. Gilchrist’s testimony in the criminal prosecutions described in Mitchell v. Ward, 150 F.Supp.2d 1194 (W.D.Okla.1999); Mitchell v. Gibson, 262 F.3d 1036 (10th Cir.2001); and McCarty v. State, 1988 OK CR 271, 765 P.2d 1215, amply supports the holding. By testifying as she did in those cases, Gilchrist violated her fundamental obligation as a forensic chemist for the Oklahoma City Police Department to give testimony that was both honest and fair. Gilchrist’s derelictions “show[ed] an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to [her] employer.” Vester, 1985 OK 21, at ¶ 15, 697 P.2d 533. Her conduct, therefore, was “misconduct,” as that word is used in 40 O.S.2001 § 2—106. Our holding serves to protect the integrity of the criminal justice system by demonstrating that giving false or unfair testimony in criminal prosecutions has consequences.

¶ 15 Gilchrist’s civil right to free speech did not serve to insulate her from the consequences of her testimony in the criminal prosecutions at issue here. Her testimony was judicially determined to have been either false and misleading or improper in other ways. Thus, the opinions cited by Gilchrist, see note 3, are inapposite because in none of them had the defendant’s testimony been judicially determined to have been false, misleading, or improper in some other way.

JUDGMENT OF THE TRIAL COURT AFFIRMED.

ALL JUSTICES CONCUR.

OPALA, Y.C. J.,

concurring.

¶ 1 The court affirms the denial of unemployment benefits to plaintiff Gilchrist on the grounds that (a) her conduct as a forensic chemist in several criminal prosecutions constitutes a § 2-406 “misconduct” as that term has been construed by extant jurisprudence and (b) her First Amendment right to speak freely does not insulate her from the adverse consequences of her testimonial misconduct.

¶ 2 I concur in today’s decision and in the court’s pronouncement. I write separately (a) to explain why Gilchrist cannot interpose here her immunity from civil liability as a criminal prosecution witness to prevent the imposition of adverse collateral consequences of her testimonial conduct upon her claim to unemployment benefits and (b) to focus on her argument that judicial denial of governmental benefits was predicated upon a constitutionally impermissible condition.

I

PLAINTIFF APPEARS TO ARGUE THAT HER COMMON-LAW IMMUNITY AS A WITNESS PROTECTS HER FROM GOVERNMENT USE OF HER TESTIMONY TO SHOW MISCONDUCT

¶ 3 Gilchrist appears to rely on and invoke the common-law rule that shields witnesses from civil liability for any harm occasioned by testimony given in court proceedings. She claims there is no record support for the judicial analyses in certain state and federal criminal cases to show her testimony to have been improper, inaccurate or misleading. According to Gilchrist, the denial of unemployment benefits rests on a mere disagreement with the content of her testimony.

¶ 4 Assuming Gilchrist is not guilty of perjury and taking due notice of her protection as a witness, the immunity she invokes extends no farther than to shield her from civil liability for harm occasioned by the testimony. It cannot be stretched to cover all collateral public-law consequences that adversely affect her claim to governmental benefits.

The Outer Limit of Witness Immunity

¶ 5 At common law witnesses were immune from suits to recover damages for harm occasioned by testimony given in judicial proceedings. Federal constitutional jurisprudence has extended witness immunity to civil suits brought under 42 U.S.C. § 1983. Oklahoma has long recognized that lawyers, parties and witnesses are immune from defamation and certain other claims rested upon communications made during, or preliminary to, judicial proceedings as long as the communication is in some way relevant to the proceeding. Recent Oklahoma jurisprudence has extended the witness immunity shield to protect against tort actions for damages occasioned by one’s perjury (but not to criminal prosecutions for perjury).

¶ 6 Adverse collateral public-law consequences of a witness’ testimony, such as those flowing from a criminal prosecution for perjury, professional discipline, and from other forms of censure and sanction, fall outside the ambit of witness immunity. That immunity will not protect an attorney from professional discipline based on unethical conduct resulting in defamation. A number of states and the federal government have imposed professional discipline on lawyers for perjury and other litigation-related misconduct, holding that these consequences, though immunized from civil liability, nonetheless lie dehors the witness immunity shield. Others have indicated (in dicta) that an attorney remains subject to professional discipline for litigation-related misconduct even where redress by civil action is unavailable because of witness immunity.

The Adverse Consequence of Gilchrist’s Breach of Public-Employment Duty To Maintain Scientific Inteyrity In Her Work Performance

¶ 7 While employed as a police department’s forensic chemist, Gilchrist had a duty to maintain scientific integrity in her work. Obedience to this level of performance is exacted by the public-law standards that govern constitutional strictures for guilt determination in criminal prosecutions. That duty’s breach is now advanced as misconduct (in the § 2-406 sense) to defeat her claim for unemployment compensation. Gilchrist’s witness immunity will not protect her against this adverse consequence of public employment. Shielded by that immunity is solely civil liability in damages for harm occasioned by one’s testimonial falsehood.

¶ 8 In short, the denial of unemployment benefits is a sanctioned adverse collateral public-law consequence of Gilchrist’s testimonial improprieties.

II

GILCHRIST APPEARS TO ARGUE THAT THE GOVERNMENT’S USE OF HER TESTIMONY TO SHOW “MISCONDUCT” (IN THE § 2-406 SENSE) OFFENDS THE FIRST AMENDMENT’S FREE-SPEECH CLAUSE PROTECTION AGAINST HAVING HER CLAIM TO UNEMPLOYMENT BENEFITS BURDENED BY AN UNCONSTITUTIONAL CONDITION

¶ 9 Gilchrist claims that the denial of unemployment benefits based on mere judicial disagreement with the content of her testimony as an expert witness in criminal cases infringes upon her First Amendment right to speak freely. Relying on Worrell v. Henry and other federal circuit jurisprudence, she argues that the denial of benefits cannot be rested on a constitutionally impermissible condition — one that places a penalty on her exercise of free-speech guarantee. She reasons and urges that the denial of unemployment benefits based on her testimony as an expert witness constitutes government censorship and violates her protected freedom of expression on matters of public concern.

¶ 10 The First Amendment is not implicated here. The government’s scrutiny of her testimony for its lack of support in elicited scientific data does not offend the First Amendment’s Free Speech Clause. Much like commercial speech, testimony must always conform to the reality of established facts. Neither does the use of judicial analyses of Gilchrist’s testimonial impropriety (in the discharge of her employment duties) offend constitutional protection of her utterance from government retaliation. Disapproval here comes from her testimony’s failure to meet the minimum standards of scientific integrity. The government did not tender these analyses for any purpose other than to show her substandard professional performance as a forensic analyst. No constitutional barrier, federal or state, has been identified to prohibit the use of judicial analyses of a public employee’s expert testimony as proof of unacceptable job performance. Moreover, government’s demonstration of legitimate problems adversely affecting an employee’s discharge of public employment duties cannot be mistaken for a constitutionally impermissible retaliatory response. No one would dare deny that the government has a compelling interest in maintaining acceptable job performance standards for its personnel.

¶ 11 Conditioning a public employee’s claim to a governmental benefit on conformity to the norms of scientific integrity in carrying out her day-to-day work duties does not place a constitutionally prohibited burden on its benefit. In sum, the claim-burdening condition of which Gilchrist complains is clearly authorized' — nay, mandated — by this Nation’s highest norms of federal law — its regime of constitutional strictures that govern the process of guilt determination in criminal prosecutions.

      . Title 40 O.S.2001 § 2-406 provides:
      An individual shall be disqualified for benefits if he has been discharged for misconduct connected with his last work, if so found by the Commission. Disqualification under this section shall continue for the full period of unemploy-menl next ensuing after he has been discharged for misconduct connected with his work and until such individual has become reemployed and has earned wages equal to or in excess of ten (10) times his weekly benefit amount

      . Those opinions are: McCarty v. State, 1995 OK CR 48, 904 P.2d 110; Cannon v. Gibson, 259 F.3d 1253 (10th Cir.2001); Pierce v. State, 1990 OK CR 7, 786 P.2d 1255; Ables v. State, OK CR F-1986-776 (unpublished); and Fox v. State, 1989 OK CR 51, 779 P.2d 562.

      . In support of this proposition Gilchrist cites, among other opinions. Williams v. Hepting, 844 F.2d 138, 141 (3d Cir.1988); Worrell v. Henry, 219 F.3d 1197, 1204 (10th Cir.2000); and Briscoe v. LaHue, 460 U.S. 325, 330-331, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983).

      . For the criminal cases in controversy, see infra note 14.

      . The pertinent terms of 40 O.S.2001 § 2-406 provide:
      An individual shall be disqualified for benefits if he has been discharged for misconduct connected with his last work, if so found by the Commission.
      (emphasis added).

        . Vester v. Board of Review of Oklahoma Employment Security Commission, 1985 OK 21, ¶ 15, 697 P.2d 533, 538.

      . For the criminal cases in controversy, see infra note 14.

      . Adverse public-law consequences are all those which constitute the collateral effect of judgments or convictions. For example, nondis-chargeability in bankruptcy is a collateral adverse consequence of a civil judgment based on fraud and deceit or of a judgment for child support. There are many adverse collateral consequences of a felony conviction, such as the loss of right to vote, eligibility for citizenship, national security clearance, as well as licensing and employment-related restrictions, disqualification from military service or from holding public office. The loss of a driver's license is another collateral consequence of some criminal convictions. See in this connection Margaret Colgate Love, Starting Over With A Clean Slate: In Praise Of A Forgotten Section Of The Model Penal Code, 2003 Fordham Urban Law Journal 1705.

      . The immunity of parties and witnesses from liability in damages for giving harmful testimony in judicial proceedings was established early in the English common law. See Briscoe v. LaHue, 460 U.S. 325, 330-31, 103 S.Ct. 1108, 1113, 75 L.Ed.2d 96 (1983), in which the Court cites Cutler v. Dixon, 76 Eng. Rep. 886 (K.B.1585) and Anfield v. Feverhill, 80 Eng. Rep. 1113 (K.B.1614) as early English authority for the immunity doctrine.

      . Briscoe, supra note 6, 460 U.S. at 345-46, 103 S.Ct. at 1121.

      . Hammett v. Hunter, 1941 OK 253, ¶ 0, 117 P.2d 511, 511 syl.1 ("1. Defamatory words published by the parties, counsel or witnesses, in due course of a judicial proceeding and which are connected with, or relevant or material to, the cause in hand or subject of inquiry, constitute an absolutely privileged communication, and no action will lie therefor, however false or malicious they may in fact be.”); Kirschstein v. Haynes, 1990 OK 8, 788 P.2d 941 (the immunity doctrine (a) applies not only to defamation suits, but also to suits for intentional infliction of emotional distress arising from the same circumstances as the defamation claim, and (b) encompasses communications made preliminary to judicial or quasi-judicial proceedings). See also Pacific Employers Ins. Co. v. Adams, 1946 OK 86, 168 P.2d 105 (statements made in a physician's report attached to pleading filed in the State Industrial Court are immune); Hughes v. Bizzell, 1941 OK 277, 117 P.2d 763 (statements made at a hearing before the University Board of Regents to determine if discharge of employee should be upheld are immune); Sanford v. Howard, 1939 OK 343, 95 P.2d 644 (statements made during a session of the University Board of Regents concerning an employee’s alleged immoral conduct are immune); Dickerson v. Crozier, 1927 OK 401, 261 P. 545 (statements made in a complaint in the city police court are immune).

        . Cooper v. Parker-Hughey, 1995 OK 35, 894 P.2d 1096, 1098. There the court identified the following public-policy reasons for rejecting perjury as a tort: (1) absolute immunity for witnesses in a judicial proceeding encourages witnesses to speak freely without fear of civil liability; (2) perjury is a public offense and regulated solely by criminal law; (3) the need for finality in judgments, (4) the possibility of a multiplicity of suits by parties dissatisfied with the outcome of trials, and (5) lack of precedent for such actions. Id. at ¶ 27, at 1101. The court relied heavily on the reasoning expressed in Briscoe, supra note 6, a 1983 United States Supreme Court decision in which convicted defendants brought a civil rights action against police officers who testified against them, alleging that the officers violated the defendants' constitutional rights to due process and a fair trial by falsely testifying that the criminal defendants had been able to harmonize their stories, thereby rendering the exculpatory statements of each criminal defendant less credible. Id. at 332-33, 103 S.Ct. at 1114-15.

      . Kirschstein, supra note 8, at ¶ 19, at 951; see also Selby v. Burgess, 289 Ark. 491, 712 S.W.2d 898, 900 (1986) (the privilege does not immunize an attorney from liability for professional discipline).

      . See, e.g., Imbler v. Pachtman, 424 U.S. 409, 428-29, 96 S.Ct. 984, 994, 47 L.Ed.2d 128 (1976) (prosecutorial immunity from liability in civil suits brought under 42 U.S.C. § 1983 does not leave the public without recourse to censure prosecutorial misconduct because prosecutors remain subject to professional discipline). See also Attorney Grievance Commission v. White, 354 Md. 346, 731 A.2d 447 (1999); Barreiro v. State Bar, 2 Cal.3d 912, 88 Cal.Rptr. 192, 471 P.2d 992 (1970); Montag v. State Bar, 32 Cal.3d 721, 186 Cal.Rptr. 894, 652 P.2d 1370 (1982); Montgomery County Bar Association v. Hecht, 456 Pa. 13, 317 A.2d 597 (1974); United States v. Modica, 663 F.2d 1173, 1185 (2d Cir.1981) (the court observed that "the message of a single thirty-day suspension from practice would be far clearer than the disapproving remarks in a score of appellate opinions"); McGuire v. State, 100 Nev. 153, 677 P.2d 1060 (1984) (a prosecutor is fined $500 for "extreme and outrageous” misconduct); United States v. Ranger Elec. Communications, Inc., 22 F.Supp.2d 667 (W.D.Mich.1998); Matter of Barratt, 663 N.E.2d 536 (Ind.1996); see also Carissa Hessick, Prosecutorial subornation of perjury: Is the fair justice agency the solution we have been looking for?, 2002 South Dakota L.Rev. 255.

      . See Stucchio v. Tincher, 726 So.2d 372, 374 (Fla.App.1999) ("[r]emedies for perjury, slander, and the like committed during judicial proceedings are left to the discipline of the courts, the bar association, and the state”); Selby v. Burgess, 289 Ark. 491, 712 S.W.2d 898, 900 (1986) (while the privilege protects an attorney from litigation it will not make him immune from professional discipline); Theiss v. Scherer, 17 Ohio Misc. 172, 396 F.2d 646, 649 (6th Cir.1968); Ruberton v. Gabage, 280 N.J.Super. 125, 654 A.2d 1002, 1007 (N.J.Super.Ct.App.Div.1995) (the absolute privilege applies only to claims of tortious conduct and not to a claim of unprofessional conduct or to summary contempt proceedings against the offending lawyer).

      . There are various types of immunities — testimonial immunity, immunity from suit (legislative, executive, judicial, or diplomatic), immunity from civil liability, immunity from prosecution, as well as use immunity. Use immunity prohibits the use of compelled testimony or any evidence derived from that testimony against the witness in a criminal prosecution. If evidence is compelled under a grant of immunity and there is a later prosecution, the government has the burden of demonstrating that "the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.” Kastigar v. United States, 406 U.S. 441, 452-53, 92 S.Ct. 1653, 1653, 32 L.Ed.2d 212 (1972) (to preserve the witness’ privilege against self-incrimination, the prosecution is precluded from using against the defendant any responsive testimony elicited from him or any evidence derived therefrom).

      . The Oklahoma Security Commission relied for proof of Gilchrist’s misconduct on the judicial analyses of her testimony in Mitchell v. Ward, 150 F.Supp.2d 1194 (W.D.Okl.1999); Mitchell v. Gibson, 262 F.3d 1036 (10th Cir.2001); McCarty v. State, 1995 OK CR 48, 904 P.2d 110; Cannon v. Gibson, 259 F.3d 1253 (10th Cir.2001); Pierce v. State, 1990 OK CR 7, 786 P.2d 1255; Ables v. State, OK CR F-1986-776 (unpublished); Fox v. State, 1989 OK CR 51, 779 P.2d 562; McCarty v. State, 1988 OK CR 271, 765 P.2d 1215.

      . 219 F.3d 1197, 1209 (10th Cir.2000). In Wor-rell the court held that a prosecutor's office did not offend the First Amendment when it rescinded an offer to hire an individual to be a drug task force coordinator because he had testified as an expert defense witness in a murder trial. A district attorney's interest in maintaining an efficient drug task force outweighed the applicant's interest in avoiding retaliation for his testimony as an expert witness against a police officer. Announcing a three-part standard for evaluating First Amendment retaliation claims, the court stated that a plaintiff must prove (1) that the plaintiff "was engaged in constitutionally protected activity”; (2) that the defendant's actions caused the plaintiff "to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity”; and (3) that the "defendant’s adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct.” Id., at 1212.

      . Lytle v. City of Haysville, 138 F.3d 857, 867 (10th Cir.1998); Melton v. City of Oklahoma City, 879 F.2d 706, 714 (10th Cir.1989).

      . Gilchrist claims that Melton, supra note 16, and Worrell, supra note 15, are applications of the doctrine against placing constitutionally impermissible conditions on one’s right. For this doctrine, she quotes Board of County Commissioners v. Umbehr, 518 U.S. 668, 674, 116 S.Ct. 2342, 2347, 135 L.Ed.2d 843 (1996). The "modern 'unconstitutional conditions’ doctrine holds that the government 'may not deny a benefit to a person on a basis that infringes his constitutionally protected ... freedom of speech’ even if he has no entitlement to that benefit.” Id., quoting Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972).

      . "Truthful advertising related to lawful activities is entitled to the protections of the First Amendment.” Matter of R.M.J., 455 U.S. 191, 102 S.Ct. 929, 937-38, 71 L.Ed.2d 64 (1982). False, deceptive or misleading advertising is subject to governmental restraint. Bates v. State Bar of Arizona, 433 U.S. 350, 383-384, 97 S.Ct. 2691, 2708-2709, 53 L.Ed.2d 810 (1977).


text:
    2004 OK 52
    Shawn M. HORVAT, Appellant, v. STATE of Oklahoma, ex rel. the DEPARTMENT OF CORRECTIONS, and State of Oklahoma, ex rel. the Merit Protection Commission, Appellees.
    No. 99,976.
    Supreme Court of Oklahoma.
    June 21, 2004.
    Certiorari Denied June 21, 2004.
   ORDER DENYING CERTIORARI AND APPROVING COURT OF CIVIL APPEALS OPINION FOR PUBLICATION

PART I

¶ 1 Now before the Court is the Petition for Writ of Certiorari of Appellees. After review thereof the Petition is denied.

PART II

¶ 2 The opinion of the Court of Civil Appeals, Division (II), by Colbert, C.J., rendered on April 13, 2004, 2004 OK CIV APP 59, 95 P.3d 190, 2004 WL 1588035, pursuant to 20 O.S.2001, § 30.5, is approved for publication in the official reporter and therefore accorded precedential value.

¶ 3 ALL JUSTICES CONCUR.


author: LAVENDER, J.

text:
    2004 OK 49
    In the Matter of the REINSTATEMENT OF William C. PAGE to Membership in the Oklahoma Bar Association and to the Roll of Attorneys.
    SCBD No. 4741.
    Supreme Court of Oklahoma.
    June 22, 2004.

      Randy D. Evers, Norman, Oklahoma and Carl Hughes of Hughes & Goodwin, Oklahoma City, OK, for petitioner, William C. Page.
    Allen J. Welch, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, OK, for respondent, Oklahoma Bar Association.
   LAVENDER, J.

¶ 1 Before us for consideration is petitioner/applicant, William C. Page’s, petition for reinstatement to membership in the Oklahoma Bar Association (OBA). The matter is here pursuant to Rule 11 (Reinstatement), Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.2001, Ch.1, App.1-A, as amended. After de novo review we deny reinstatement.

PART I. STANDARD OF REVIEW AND PERTINENT FACTORS.

¶ 2 As we set forth more fully in PART II, BACKGROUND AND ANALYSIS, infra, applicant resigned from OBA membership pending disciplinary proceedings and after federal felony convictions. The following has been stated concerning reinstatement after disbarment or resignation pending disciplinary proceedings:

When this Court in the exercise of its exclusive jurisdiction considers a petition for reinstatement a de novo standard of review is applied. Matter of Reinstatement of Gassaway, 2002 OK 48, ¶ 3, 48 P.3d 805, 806. Recommendations of a PRT trial-panel are merely advisory [Matter of Reinstatement of Kamins, 1988 OK 32, 752 P.2d 1125, 1129] and, although Rule 11.5 (Findings Prerequisite to Reinstatement) requires the PRT to make certain findings as to a petitioner’s moral character, competency in the law and whether he/she engaged in any unauthorized law practice during a period of suspension, disbarment or resignation, the ultimate responsibility and decision-making authority as to whether reinstatement is warranted rests with this Court. See Matter of Reinstatement of Smith, 1994 OK 19, 871 P.2d 426, 427.
Moreover, an applicant for reinstatement in petitioner’s situation bears the heavy burden of showing, by clear and convincing evidence, that reinstatement is warranted. Matter of Reinstatement of Smith, 871 P.2d at 427-428. In regard to a reinstatement application, a petitioner that has resigned his membership in the OBA pending a bar disciplinary proceeding has the same burden as an individual that has been disbarred by this Court. Matter of Reinstatement of Kamins, 752 P.2d at 1129. In such a proceeding the applicant is required to present stronger proof of qualifications than one seeking admission to the OBA for the first time. Rule 11.4 (Standard of Proof for Petitions for Reinstatement), RGDP. This Court has also delineated eight factors considered in determining fitness for reinstatement. Matter of Reinstatement of Gassaway, 2002 OK 48, at ¶ 3, 48 P.3d at 806. They are: (1) applicant’s present moral fitness, (2) demonstrated consciousness of the conduct’s wrongfulness and the disrepute it has brought upon the legal profession, (3) the extent of rehabilitation, (4) the original misconduct’s seriousness, (5) conduct after resignation, (6) time elapsed since the resignation, (7) applicant’s character, maturity and experience when he resigned, and (8) present legal competence. See id.

Matter of Reinstatement of Blevins, 2002 OK 78, ¶¶ 3-4, 59 P.3d 510, 511.

¶ 3 Furthermore, our cases make clear “that a felony conviction is not tantamount to a death sentence regarding the reinstatement of the license to practice law. Rather, each reinstatement decision is determined on a case-by-case basis, carefully weighing all factors.” Matter of Reinstatement of Anderson, 2002 OK 64, ¶ 4, 51 P.3d 581, 583. However, “[w]e have also recognized that the more severe the offense the heavier the burden an applicant must overcome to gain reinstatement....” Matter of Reinstatement of Wright, 1995 OK 128, 907 P.2d 1060, 1062, relying on Matter of Reinstatement of Cantrell, 1989 OK 165, 785 P.2d 312, 314. “Feelings of sympathy towards the applicant must be disregarded.” Matter of Reinstatement of Wright, 907 P.2d at 1062. The proof concerning the matter must be sufficient to overcome this Court’s former judgment adverse to the applicant. Rule 11.4, RGDP. Further, “[fjoremost consideration must be given to protecting the public welfare. Finally, there must be a determination that reinstatement would not adversely effect the Bar.” Matter of Reinstatement of Cantrell, 785 P.2d at 313. Upon consideration of the above factors and after de novo review, we determine the petition for reinstatement to OBA membership should be denied.

PART II. BACKGROUND AND ANALYSIS.

¶ 4 In 1983 we issued an interim suspension of applicant from OBA membership following his federal criminal felony convictions in the United States District Court for the Western District of Oklahoma. In December 1987 pending disciplinary proceedings he requested approval of his resignation from the OBA. We approved his resignation in State ex rel. Oklahoma Bar Ass’n v. Page, 1988 OK 40, 754 P.2d 878, making it effective October 24, 1983, the date of interim suspension. 754 P.2d at 879. A prior reinstatement application was denied in Matter of Reinstatement of Page, 1993 OK 165, 866 P.2d 1207, primarily on the basis of the serious nature of the charges upon which he was convicted.

¶ 5 After a jury trial applicant was convicted of violating 18 U.S.C. § 1962(c) and 18 U.S.C. § 1951. The convictions were upheld in United States v. Page (Page I), 808 F.2d 723 (10th Cir.1987), cert. denied, 482 U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 683 (1987), and that opinion also affirmed denial of a motion for new trial. Denial of another motion for new trial was affirmed in United States v. Page (Page II), 828 F.2d 1476 (10th Ci.1987), cert. denied, 484 U.S. 989, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987). Applicant “was convicted by a jury of engaging in racketeering activities affecting interstate commerce ... and of obstructing, delaying, and affecting interstate commerce by means of extortion under color of official right as an assistant district attorney and as a special district judge_” Page I, 808 F.2d at 725.

¶ 6 The background facts concerning the nature of the conduct for which he was convicted and delineation of some, if not all, of the evidence presented against him in the federal criminal case are set forth in Page I. We deem it unnecessary to repeat at length those background facts and evidence detailed in Page I here. For purposes of this reinstatement application proceeding, as before, “[w]e must accept [the federal] convictions as fact, that during the time he was an assistant district attorney and a special district judge, [he] accepted bribes and conspired to accept bribes in return for interference in pending criminal investigations and litigation. He is convicted of using his office to interfere with the judicial processes of law enforcement.” Matter of Reinstatement of Page, 866 P.2d at 1212.

¶ 7 A hearing was held on this reinstatement petition in November 2002 before a Professional Responsibility Tribunal (PRT) trial panel. The matter of petitioner’s current reinstatement request was investigated by the OBA through its Office of General Counsel. Although the OBA, through the General Counsel’s Office, has no objection to this Court ordering petitioner’s reinstatement — in fact, the OBA requests us to approve reinstatement — the PRT trial panel report filed in January 2003 recommends that reinstatement be denied. The OBA General Counsel’s Office and applicant filed separate briefs with this Court in February 2003.

¶ 8 Applicant is currently seventy-seven (77) years old. At the time of his suspension in 1983 he had been an attorney for about twenty-six (26) years, having been admitted to the bar in 1957. Matter of Reinstatement of Page, 866 P.2d at 1209. His employment as an attorney prior to his 1983 suspension was varied. He worked in private practice, as general counsel for a private company, as a United States Commissioner (now called Magistrate) and two noncontiguous times as an assistant district attorney in Oklahoma County. He was also a special judge in Oklahoma County from late 1981 until January 1983 when he became a District Judge, a position he held until mid-1983.

¶ 9 The conduct for which he was convicted occurred while he was an assistant district attorney the second time (1980-1981) and while he was a special judge. A review of Matter of Reinstatement of Page and Page I also make plain that applicant was not convicted of some isolated incident of accepting a bribe on one occasion. Instead, the case against him was based on multiple episodes of his accepting bribes from more than one person or attempting to do so, in exchange for fixing or interfering in pending criminal investigations and litigation, in his roles as assistant district attorney or special judge.

¶ 10 Applicant, as he did in the proceeding culminating in our previous denial of reinstatement in Matter of Reinstatement of Page, maintains his innocence of the charges upon which he was convicted; although the record also reflects he does not desire to re-litigate his criminal convictions through this proceeding. We made it quite clear in Matter of Reinstatement of Page, 866 P.2d at 1211, that an applicant’s assertion of innocence, standing alone, is not a bar to reinstatement, but is one of the facts for our consideration in deciding whether reinstatement is appropriate.

¶ 11 The main obstacle to a favorable decision on applicant’s present reinstatement quest remains the same as that existing over ten (10) years ago when he previously applied, to wit: the seriousness of the original misconduct. This is so because the record presented shows he has maintained competency in the law since his resignation, has conducted himself properly and morally over said period of time, and has not engaged in the unauthorized practice of law. Further, even though he still maintains his innocence of the charges, the record indicates he realizes the disrepute his convictions brought to the legal profession, particularly because the convictions were related to his positions as assistant district attorney and special judge. The record also reflects his remorse for the embarrassment his convictions brought to the profession.

¶ 12 Numerous witnesses who have known applicant for varying lengths of time, including attorneys and more than one current or former judge, testified in support of his reinstatement and vouched for his legal skills and present moral fitness. A petition supporting his reinstatement is also attached to the current petition for reinstatement signed by close to one hundred ninety (190) individuals, including attorneys, some of whom are judges or former judges and other public officials or former public officials, and active or retired law enforcement officers. Another petition, in effect also supporting his reinstatement quest, is attached to his petition and signed by about ten (10) residents of the condominium complex where he resides. Although we have thoroughly considered all of the favorable evidence or documentation in support of applicant’s reinstatement, the continued integrity of the bar and the judiciary, and the public’s confidence therein, demands that we again deny reinstatement.

¶ 13 In essence, the crimes for which petitioner was convicted involved bribery, the crux of the criminality was accepting money and agreeing to accept money to improperly fix or interfere in pending criminal cases or investigations he was associated with as either an assistant district attorney or special judge. At present, we can think of no worse white collar criminal transgression(s) of the law that a prosecutor and judge could commit in such roles. Time has not lessened the seriousness of the wrongdoing. The reprehensible conduct tears at the very fabric of the judicial process; it undercuts public confidence in that process because it puts in question whether those individuals holding the offices of judge and prosecutor act with independence and fairness in carrying out their duties, conforming their actions to the rule of law and its dispassionate application, rather than upon greed or other utterly improper motivations.

¶ 14 In Matter of Reinstatement of Page, 866 P.2d at 1212, we stated:

[Accepting bribes to pervert justice goes to the very heart of the legal system and is therefore a most severe impropriety. It affects not just one or a few individuals; its impact is on the public and undermines our judicial system, which must maintain public confidence in order to function and serve in balance with the other branches of government for an ordered society.

Although this is by no means an easy decision for us because the record, by all accounts, shows applicant has conducted himself admirably over these past twenty (20) years or so, we cannot grant reinstatement to him. His conduct over such period of time is simply not sufficient to overcome the serious nature of the crimes for which he was convicted in his capacity as an assistant district attorney and a judge, i.e., positions imbued with the public trust, a trust the convictions show he directly violated. A judge particularly must be held to a higher standard because within his or her hands the delicate balance of the scales of justice reside, to be weighed and surveyed impartially, independently and fairly. The crimes for which applicant has been convicted tipped those scales or attempted to tip them not on these noble and right bases, but upon grounds completely inimical and foreign to the judicial and prosecutorial tasks, and at odds with the underlying and fundamental principles of our judicial system. In disbarring an attorney, who while a county judge solicited bribes on two occasions, we said the following:

Here the [judge] made it quite clear that he would only extend his judicial favor if he was to receive financial remuneration in return. The fact [he] called it an attempt to solicit campaign funds is wholly immaterial. Such activities on the part of any judge brings shame and disrepute to all of the members of the bench and bar, and cannot do else, if continued, but to destroy our system, of justice which, in a free society, depends for its effectiveness upon the continued confidence and trust of the people. The people must be able to rely on the integrity and honesty of their judges and lawyers, and it is the duty of this Court, whenever conduct of a lawyer, such as is reflected by this record, is brought to its attention, to prevent such individual from continuing to enjoy the solemn trust and high responsibility with which he was invested as a member of the Bar of this State.

State ex rel. Oklahoma Bar Ass’n v. James, 1969 OK 119, 463 P.2d 972, 977.

¶ 15 Although we have reinstated to OBA membership attorneys convicted of criminal activity or who have committed other misconduct while they were members of the judiciary or held prosecutorial positions and were, in essence, involved in transgressions related to misuse or abuse of their offices, we have uncovered no situation exactly like the present one. See e.g. Matter of Reinstatement of Cook, 1989 OK 64, 772 P.2d 918 (former special judge reinstated after State conviction for embezzlement and false account by public officer). Cook was disbarred (State ex rel. Oklahoma Bar Ass’n v. Cook, 1983 OK 33, 661 P.2d 531) after his conviction was affirmed by the Oklahoma Court of Criminal Appeals in Cook v. State, 1982 OK CR 131, 650 P.2d 863. He was not convicted of accepting bribes to fix or interfere in contested cases. See State ex rel. Oklahoma Bar Ass’n v. Cook and Cook v. State.

¶ 16 In Application of Sharpe, 1972 OK 92, 499 P.2d 406, a former county judge was reinstated after suspensions for misconduct in part occurring while holding said office. The misconduct was, in essence, improperly collecting and retaining fees for granting waiver orders that dispensed with blood test documents, a three day waiting period and age requirements which authorized the issuance of marriage licenses, when no authority existed for waiving said requirements. See Sharpe v. State ex rel. Oklahoma Bar Ass’n, 1968 OK JUD 1, 448 P.2d 301, 304, cert. denied, 394 U.S. 904, 89 S.Ct. 1011, 22 L.Ed.2d 216 (1969). No criminal conviction was involved in Application of Sharpe and the matter did not involve accepting bribes in contested eases, whether civil or criminal, or interference in criminal investigations in exchange for money. We do not find that the instant case is controlled by Matter of Reinstatement of Cook or Application of Sharpe for here we have an individual convicted of, in essence, multiple instances of accepting bribes or conspiring to accept bribes in return for interference in pending criminal investigations and litigation in his capacity as both a judge and a prosecutor.

¶ 17 We also acknowledge we have found in our research two cases involving misconduct occurring while the individuals were judges, where seemingly lenient discipline was imposed, two year suspensions, and apparently readmission thereafter, even though each person appears to have engaged in conduct that, in essence, could be looked at as involving bribery and extortion, or, at a minimum, comparable misconduct to that involved here. In State ex rel. Oklahoma Bar Ass’n v. Tallent, 1956 OK 169, 299 P.2d 162, although apparently no criminal conviction was had, the individual while a county judge was found to have unlawfully demanded and received money on more than one occasion for issuing and renewing beer licenses and in one instance demanded money under threat of revocation of beer licenses. 299 P.2d at 162-163. As we read Tallent, it appears, in part, to have mistakenly relied on sympathy for the involved attorney, noting therein a physical disability suffered by him throughout his life. 299 P.2d at 163.

¶ 18 In State ex rel. Oklahoma Bar Ass’n v. Haworth, 1979 OK 34, 593 P.2d 765, although again no criminal conviction seems to have been had, a former district judge, while a judge, was found to have engaged in conduct of a criminal character in tampering with a jury panel list. 593 P.2d at 766-767. He was also found to have illegally and dishonestly entered into an illegal agreement, when he was a judge, whereby he would provide lenient treatment to a convicted felon if the felon’s father would campaign for the district attorney. 593 P.2d at 767-768. To the extent either Tallent or Haworth may be viewed as inconsistent with our decision today, we decline to follow them given the serious nature of the misconduct involved here which -led to applicant’s federal convictions, the detriment caused to the legal profession by the misconduct and convictions, and to follow those cases, in our view, would be at odds with our responsibility to protect the public welfare and public confidence in the legal profession and the judicial system.

¶ 19 In the final analysis we simply cannot justify reinstatement of this applicant given the serious nature of his misconduct. Further, we must note, we would not be human if we did not sympathize with applicant’s plight and his desire to again become a member in good standing of the OBA. Such sympathy, however, cannot be considered by us in this matter and such emotional considerations must be disregarded. The well-being of our judicial system to a large extent rises or falls on the trust the people have in those holding either prosecutorial or judicial offices. Applicant stands convicted of violating that trust. In light of the seriousness of the misconduct manifested by the convictions and the detrimental impact said misconduct has on the legal and judicial systems, we determine applicant has failed to carry his heavy burden to show entitlement to reinstatement. See Matter of Reinstatement of Anderson, 2002 OK 64, 51 P.3d 581 and Matter of Reinstatement of Smith, 1994 OK 19, 871 P.2d 426 (serious nature of misconduct and adverse impact of misconduct on legal profession central considerations in denial of reinstatement). Our duty to protect the integrity of the legal and judicial systems and public confidence therein, must outweigh the interests of this one individual.

¶ 20 Petitioner/applicant, William C. Page’s, petition for reinstatement to membership in the Oklahoma Bar Association (OBA) is DENIED.

¶ 21 WATT, C.J., HODGES, HARGRAVE, KAUGER, BOUDREAU, WINCHESTER and EDMONDSON, JJ., concur.

¶ 22 OPALA, V.C.J., disqualified.

      . Rule 11.1(e) of the Rules Governing Disciplinary Proceedings (RGDP), 5 O.S.Supp.2003, Ch.1, App.1-A, provides that a disbarred applicant, as well as those resigning Oklahoma Bar Association (OBA) membership pending investigation or disciplinary proceeding, shall not be permitted to file an application for reinstatement within five (5) years of the effective date of the disbarment or acceptance by this Court of the resignation. Rule 11.1(e) also provides that an applicant for reinstatement is not permitted to file a reinstatement application within one (1) year after this Court has denied a previous application. Petitioner/applicant, William C. Page's present petition for reinstatement meets these requirements. We do note, this is the third petition for reinstatement filed by applicant. He first sought reinstatement in May 1991, but requested allowance to withdraw the application, which we allowed. Matter of Reinstatement of Page, 1993 OK 165, 866 P.2d 1207, 1208-1209. Applicant testified at the November 26, 2002 hearing before the Professional Responsibility Tribunal (PRT) trial panel on this most recent quest for reinstatement, withdrawal was sought because he was still on federal parole at the time. His PRT testimony was consistent with documentary material admitted at the hearing. Applicant served about two years and seven months in prison on the federal convictions.

      . Although applicant has not continued to attend continuing legal education courses (as he had prior to denial of reinstatement in Matter of Reinstatement of Page, 866 P.2d at 1209, supra note 1), he has kept abreast of developments in the law by subscribing to and reviewing the Oklahoma Bar Journal and working as a law clerk performing legal research since at least the fall of 1989 for one or more law firms or attorneys. More than one witness (attorneys or judges) vouched for his competence in the law, their opinions based on conversations with applicant concerning recent cases and/or legal developments or working with him at one of the law firms. Currently, applicant is not being paid for his law clerk/research work, but, instead, he and his wife support themselves through social security benefits. He also has access to certain certificates of deposit and/or the income therefrom, the money for the certificates coming from a couple inheritances.

      . Ten (10) witnesses testified in support of reinstatement, excluding applicant and the investigator with the OBA General Counsel’s Office that investigated the reinstatement application. In essence, at least half of the ten (10) expressed a belief he was innocent or not guilty of the charges upon which he was convicted or questioned his actual guilt. Furthermore, although the chief federal prosecutor in the case that ended in applicant's federal convictions did not testify at the November 2002 PRT hearing, the OBA investigator that interviewed him in relation to tins reinstatement application, testified that said prosecutor expressed an opinion that applicant should probably be reinstated at this time. The OBA investigator also testified, in essence, that the federal prosecutor had objected to applicant’s previous attempt at reinstatement that ended in its denial in Matter of Reinstatement of Page, supra note 1.

      . For a detailed discussion of the total misconduct involved in the Sharpe situation see State ex rel. Oklahoma Bar Ass’n v. Sharpe, Case No. S.C.B.D. 2239, 41 O.B.J. 1631 (Okla.S.Ct. July 18, 1970.—O.B.J.date) and State ex rel. Oklahoma Bar Ass’n v. Sharpe, Case No. S.C.B.D. 2275, 42 O.B.J. 1679 (Okla.S.Ct. June 29, 1971).

      . Matter of Reinstatement of Cantrell, 1989 OK 165, 785 P.2d 312 is also not controlling here. Cantrell was not a judge or prosecutor at the time of his criminal activity and there is no indication that the attempted perjury by subornation involved there was anything other than an isolated, one-time occurrence. Further, he had received a full, complete and unconditional pardon from the Governor of Oklahoma at the time of his reinstatement. 785 P.2d at 313. For further details concerning his criminal conviction see Cantrell v. State, 1985 OK CR 35, 697 P.2d 968, the Oklahoma Court of Criminal Appeals' opinion affirming the conviction. This Court's order disbarring him is found at State ex rel. Oklahoma Bar Ass'n v. Cantrell, 1987 OK 17, 734 P.2d 1292.

      . Also note that although both were initially disbarred, we have found two other cases involving prosecutors and bribery, or conduct of its ilk, where reinstatement was afforded. In State ex. rel. Oklahoma Bar Ass’n’ v. Scanland, 1970 OK 94, 475 P.2d 373, disbarment was ordered where a former assistant district attorney was found to have engaged in the misconduct of offering to pay a police detective $200.00 to have the detective deliver to him an arrest record of a friend or acquaintance of the then assistant district attorney for destruction. Reinstatement was granted without any discussion of the seriousness of the misconduct involved in Application of Granville E. Scanland for Reinstatement to Membership in the Oklahoma Bar Association, Case No. S.C.B.D. 2236, 48 O.B.J. 616 (Okla.S.Ct. February 28, 1977). It appears no criminal conviction was had in the matter, the situation seems to have been an isolated one and, of course, Scanland did not involve misconduct of a judge. In In re Simpson, 1920 OK 311, 192 P. 1097, disbarment was ordered in a case where, while a county attorney, Simpson was found to have accepted bribes from one engaged in running a gambling house in exchange for granting the individual immunity from prosecution. A check of the hard volume of the docket in said case in the Oklahoma Supreme Court Clerk's Office contains an entry of an "Order Court re-instating — to practice Law” in September 1923. See Case No. 10507, Supreme Court Docket, Vol. 27, pp. 379 & 487, entry Sept. 17, 1923. To the extent the Court's reinstatement of either Scanland or Simpson may be viewed as inconsistent with our denial of reinstatement to the applicant here, we decline to follow those reinstatements for the same reasons noted in the text that we set forth for declining to follow State ex rel. Oklahoma Bar Ass’n v. Haworth, 1979 OK 34, 593 P.2d 765 and State ex rel. Oklahoma Bar Ass’n v. Tallent, 1956 OK 169, 299 P.2d 162, in regard to reinstatement or readmission. Of course, we do not question the correctness of the published decisions in State ex. rel. Oklahoma Bar Ass’n’ v. Scanland and In re Simpson to disbar the involved attorneys.

      . On February 18, 2004 the OBA filed a receipt for costs. It indicates applicant has paid the costs ($918.92) incurred in this reinstatement proceeding. Rule 11.1(c), RGDP, requires an applicant seeking reinstatement to pay the costs of investigating and processing the application for reinstatement, including the cost of any hearing transcript.


author: HARGRAVE, J.

text:
    2004 OK 51
    In the Matter of the APPLICATION OF THE OKLAHOMA DEVELOPMENT FINANCE AUTHORITY for Approval of $2.25 Million the Oklahoma Development Finance Authority Public Facilities Program Tax Apportionment Bonds, Series 2003 (Ardmore Airpark Increment District Project).
    No. 99,803.
    Supreme Court of Oklahoma.
    June 22, 2004.

      Daniel E. McMahan, OWahoma City, OK, for Applicant OWahoma Development Finance Authority.
    Jerry R. Fent, OWahoma City, OK, Pro Se Respondent.
    Lynn C. Rogers, Assistant Attorney General, OWahoma City, OK, as Intervenor on Behalf of the State of OWahoma.
   HARGRAVE, J.

¶ 1 The Oklahoma Development Finance Authority has filed an application asking this Court to assume original jurisdiction and approve $2.25 million in public facilities program tax apportionment bonds to be used for improvements in the Ardmore Airpark Increment District Project. Jerry R. Fent, a resident taxpayer of the State of OWahoma, filed a protest to the bond issue, arguing as a preliminary matter that the bonds had not been approved by the Council of Bond Oversight, as required by 62 O.S.2001 § 695.1. By order dated December 15, 2003, we directed the applicant to obtain the approval of the Council of Bond Oversight, and granted protester Jerry R. Fent leave to file a brief within thirty days from the date of such approval. The approval was obtained and the applicant sought and was granted permission to supplement the record to include such approval. The Attorney General was granted leave to intervene and file a brief. Briefs and responses have been filed. Protester Fent’s motion to strike the applicant’s response is denied.

¶ 2 The City of Ardmore, Oklahoma created a tax increment district pursuant to the Local Development Act, for public improvements to the Ardmore Airpark. The proposed increment district was eligible for designation as a tax increment district because the project area within which it is located was approved by the Oklahoma Department of Commerce as an enterprise zone pursuant to 62 O.S. § 690.3 et seq., and is therefore an “enterprise area” under the Local Development Act, 62 O.S.2001 § 853 et seq. Applicant’s brief states that the project will be financed from public sources, including apportionment of ad valorem tax increments within the proposed district. The ad valorem taxes to be apportioned are those generated as the result of increases in ad valorem tax revenue occurring with the development of the increment district. Those taxes will be segregated and apportioned to pay public costs associated with the project.

¶ 3 The City Commission of the City of Ardmore, Oklahoma, by Ordinance No. 2637 approved and adopted the Ardmore Tax Increment Finance Project Plan on February 22, 2000. The ordinance authorized the Ard-more Development Authority (ADA), a public trust, to administer the project plan. The ordinance established the Tax Apportionment Fund, declared the apportionment funds to be funds of the ADA, and authorized the ADA to assist in carrying out the project plan. Section 9 of the ordinance provided for the apportionment of ad valorem taxes in the district:

“Section 9: The increment of ad valorem taxes, as defined by the Local Development Act, 62 O.S. Supp.1992 § 851, et seq. from Increment District Number One, City of Ardmore, Oklahoma, in excess of ad valorem taxes generated by the base assessed value of the increment district, as most recently determined by the County Assessor prior to the effective date of this ordinance, shall he apportioned and the Project Plan (sic) for a period not to exceed 25 years from the effective date of the approval of the Project Plan, or the period required for the payment of the project costs authorized pursuant to Section VIII of the Project Plan, whichever is less.” (emphasis added)

¶ 4 After Ordinance No. 2637 was adopted, this Court handed down its opinion in Oklahoma City Urban Renewal Authority v. Medical Technology and Research Authority of Oklahoma, et al., 2000 OK 23, 4 P.3d 677, which interpreted the Local Development Act and held that an ordinance passed by the City of Oklahoma City, which contained language similar to the above, created a prohibited debt within the meaning of article 10 § 26 of the Oklahoma Constitution. In response to Urban Renewal, the legislature amended the Local Development Act. The post-Urban Renewal amendments to the Local Development Act were enacted by Laws 2000, c. 351 § 5. Title 62 O.S.2001 § 856(C) specifically provides that it is the intention of the Legislature, in adopting the Act, that no long-term contractual obligation be created by the mere adoption of an ordinance or resolution establishing an increment district, and that an ordinance or resolution establishing an increment district shall constitute a legislative act and may be repealed, modified or amended at any time during the term of the district, by subsequent action of the governing body.

¶ 5 In order to comply with Okla. City Urban Renewal and the amended Local Development Act, the City of Ardmore amended Ordinance No. 2637 by the adoption of Ordinance 2700 on December 27, 2001. Ordinance No. 2700 renamed the district the Ard-more Airpark Increment District. Section 9 of the ordinance was amended in its entirety. The previous section had provided that taxes “shall be apportioned” for a period of twenty-five years — the same language that was rejected in Okla. City Urban Renewal. The new section 9 provides:

“Section 9. In accordance with the provisions of the Local Development Act, 62 O.S. Supp.1999 § 850 et seq. (the “Local Development Act”), increments of ad valo-rem taxes generated within the Ardmore Airpark Increment District, as such increments are determined and defined by the Local Development Act, are hereby apportioned and set aside from all other ad valorem taxes levied within the Ardmore Airpark Increment District, to be used exclusively for:
i.the payment of “project costs” (as defined in the Local Development Act) incurred in connection with the development, acquisition or construction of those projects listed in the “Ardmore Tax Increment Finance Project Plan” (herein the “Project Plan”), and
ii. The reimbursement of the City, or any agency thereof which has paid “project costs” from funds which were not increments derived from the Ardmore Airpark Increment District, but only to the extent that sums were actually paid; and
iii. The payment of principal, interest and premium, if any, on any “tax apportionment” bonds or notes: issued pursuant to Section 863 of the Local Development Act and this Ordinance, the proceeds of which are to be used in accordance with clauses (i) or (ii) above.
The apportionment of ad valorem taxes pursuant to this section shall terminate upon the final payment of, or reimbursement for, all “project costs” incurred ... and the payment of all outstanding principal, accrued interest and premium due on any tax apportionment bonds or notes issued hereunder; provided, however, that in no case shall the apportionment of revenues pursuant to this Ordinance extend beyond fifteen (15) years from the original effective date of this Ordinance, unless such period is modified by subsequent action of the City Commission. In determining this fifteen (15) year period, it is the intention of the City Commission that the Ardmore Airpark Increment District shall not terminate until the increments apportioned during the fifteenth year are actually received by the apportionment Fund ...” (emphasis added)

¶ 6 Section 10 of the ordinance was amended to provide:

“During the period of apportionment, and subject to the City’s right to subsequently repeal, modify or amend this Ordinance, the increments apportioned hereunder shall be transferred by the respective taxing authorities to the [Fund], which fund shall be held by and be the property of, the Ardmore Development Authority ... No portion of such increments and no portion of the apportionment Fund shall constitute a part of the general fund of the City of Ardmore.”

¶ 7 Section 12 of the ordinance provides, among other things:

“.In authorizing the irrevocable pledging of such increments [by the ADA], it is the express intention of the City Commission that the Ardmore Airpark Increment District will remain in place until all of the outstanding principal, accrued interest and premium, if any, on such tax apportionment bonds or notes have been paid in full. Notwithstanding such intention, the City, by these provisions, does not waive any right which it has now or in the future, to repeal, modify or amend this Ordinance ... as provided in Section 856(C) of the Local Development Act. In adopting this Ordinance, the City does not purport to create any contractual obligation extending beyond the City’s current or any subsequent fiscal year uñth regard to the establishment or maintenance of the [District]; or the apportionment of ad va-lorem tax increments. All tax apportionment bonds or notes issued pursuant to this section shall state that such bond or note is not a debt, general or special, liability or obligation of the City of Ardmore, the State of Oklahoma or any other agency or authority of either, other than the [ADA] ....” (emphasis added)

¶ 8 The trustees of the Ardmore Development Authority (ADA) adopted, on January 28, 2002, a resolution authorizing the ADA to issue a tax apportionment note in an amount not to exceed $2,250,000.00 and waiving competitive bidding on the sale of the note. The note was authorized to be sold on a negotiated basis at par to the Oklahoma Development Finance Authority. The Resolution provides that “the Note shall not constitute an obligation of the City of Ardmore, the State of Oklahoma or any political subdivision or agency there, or a personal obligation of the Authority or its trustees. The note, shall be a limited obligation of the ADA, payable solely from and secured by the Trust Estate established under the General Bond Indenture.” The Resolution was approved by the Ardmore City Commission during regular session on Feb. 4, 2002.

¶ 9 A tax apportionment note between the Ardmore Development Authority (ADA/Issuer) and the Oklahoma Development Finance Authority (ODFA) is included in the record submitted. ADA promises to pay ÓDFA, only from the sources and as therein provided, the principal sum of $2,250,000.00 for the purposes of financing all or a portion of the cost of certain improvements within the Ardmore Industrial Airpark. The note is payable solely from: 1) Increment Revenues derived or to be derived from the “Ardmore Airpark Increment District” and deposited into the Apportionment Fund, all as provided in the Indenture and the Local Development Act; 2) the funds and accounts held under and pursuant to the Indenture and pledged therefor; and 3) other income, revenues and receipts received by the Issuer from any other sources as a result of the investment or expenditure of the proceeds derived from the issuance of the Note, including but not limited to other monies that may be made available to the Issuer and pledged in the manner prescribed by the Indenture.

¶ 10 The note likewise provides that it is not a liability or debt, legal or moral, or an obligation, general or special, of the State of Oklahoma or of the City of Ardmore within the meaning of any constitutional or statutory provisions whatsoever. The Note further provides that it does not give rise to a charge against or claim upon the general credit or taxing powers of the City of Ardmore, Oklahoma or upon the revenues or resources of the State of Oklahoma, and is not payable except as provided by the Local Development Act. The Note states, in large capital letters: “The Issuer has no taxing power.”

¶ 11 The General Bond Indenture is to be entered into between the Ardmore Development Authority and BancFirst as trustee. The Bond Indenture provides for the authorization and issuance of bonds; each bond shall recite in substance that it, including the interest thereon, is payable solely from the Trust Estate, inclusive of the Increment Revenues pledged for the payment thereof. It further states that the bonds shall not constitute a debt or obligation of the City of Ard-more, State of Oklahoma, or of any county or any political subdivision thereof and neither the faith and credit nor the taxing power of the City of Ardmore, the State of Oklahoma, or any other political subdivision is pledged to the payment of the principal and interest on such bonds. The Trust Estate is defined as: 1) all rights, title and interests of the ADA in and to the Increment Revenues; 2) all rights title and interest of the ADA in and to the Security Agreement; and 3) all funds and accounts created by the Indenture, as supplemented and amended, pledged to the Trustee under the Indenture as security for the Bonds.

¶ 12 The City of Ardmore signed a Security Agreement with the Ardmore Development Authority. The Security Agreement states that it is entered into in order to secure payment of the bonds and provide assurance that the tax increment revenues will be received by the ADA. Section 2 of the agreement provides that the City has agreed that, in consideration of the ADA issuing bonds for the purpose of developing, acquiring and constructing the Ardmore Airpark projects, the increment revenues will be paid directly to the ADA for deposit into the apportionment fund created under the General Bond Indenture. Section 5 provides that under Oklahoma law, the City may not become obligated to transfer money beyond its fiscal year and that therefore the covenants to transfer made by the City shall be on a year-to-year basis to be renewed by the annual appropriation for additional one-year periods on July 1 of each year until the principal and interest on all Bonds issued under the Indenture have been paid or the apportionment of the increment revenue has ended.

DISCUSSION

¶ 13 This Court previously found ad valo-rem tax increment financing to be facially constitutional in Okla. City Urban Renewal Auth. v. Medical Auth., 2000 OK 23, 4 P.3d 677. The Local Development Act was enacted to implement the provisions of Article 10, § 6C of the Oklahoma Constitution, which was adopted at an election held on November 6, 1990. Article 10 § 6C gives the legislature the authority to grant incorporated cities, towns or counties the ability to provide incentives, exemptions and other forms of tax relief for historic preservation, reinvestment or enterprise areas that are exhibiting economic stagnation or decline. Subsection (B) of § 6C allows the legislature to authorize cities, towns or counties to “use local taxes and local fees, in whole or in part, for specific public investments, assistance in development financing, or as a specific revenue source for other public entities in the area in which the improvements take place.” The city, town or county may direct the apportionment of the taxes and fees specified in the subsection for the purposes specified in the section.

¶ 14 Subsection (C) of Article 10, § 6C provides that the legislature may authorize any city, town or county to plan, finance and carry-out the development or redevelopment of areas determined by the governing body of such entity to be unproductive, undeveloped, underdeveloped or blighted. The city, town or county may by agreement jointly plan, finance or carry-out a development plan with any other public or private entity for one or more development projects within their respective boundaries. Section (D) of § 6C provides that any city, town or county may exercise the provisions of the section separately or in combination with powers granted by any other laws of this state.

¶ 15 The objective of tax increment financing is to use increased ad valorem tax revenue generated by the development project to pay the principal and interest on the tax increment bonds. Okla. City Urban Renewal v. Medical Authority at p. 683. Tax increment financing using ad valorem taxes assumes that the assessed property value of the increment area will increase because of the development project and that, absent the project, property values would not rise. Id. The plan is intended to create economically productive property where none presently exists by providing inducements for private commercial development. Id. For the purposes of allocation of ad valorem taxes, the Act requires that a base assessed value be established on all taxable real property within the boundaries of an increment district and that the amount of ad valorem taxes in excess of the base assessed value is the “increment” paid to an apportionment fund established for the purpose of payment of project costs, including retirement of principal, interest or premiums due in connection with bonds, loans notes or other indebtedness incurred to finance project costs. Id.

¶ 16 In Okla. City Urban Renewal Auth. v. Medical Auth., 2000 OK 23, 4 P.3d 677, we held that the ordinance in question created a debt because it attempted to bind future legislative bodies to make apportionments through a clear promise that the payments would continue for a period of up to twenty-five years. Okla. City Urban Renewal at 687. We said that “[ajbsent a repeal of the ordinance [which is not anticipated by the Act until all project costs have been satisfied or 25 years have passed], the municipality is obligated to apportion taxes to retire tax increment bonds for perhaps as long as twenty-five years.” Id. at 686.

¶ 17 We distinguished the ordinance in Okla. City Urban Renewal, which provided that monies “shall be apportioned” for a period not to exceed twenty-five years, and was therefore an unconditional pledge of the funds, from language that had been approved in Matter of the Application of Capitol Improvement Authority, 1998 OK 25, 958 P.2d 759, cert. den. 525 U.S. 874, 119 S.Ct. 174, 142 L.Ed.2d 142 (1998), where there was a mere expression of the “intent” to continue payments. In App. of Capitol Improvement Auth., we held that highway improvement bonds were not “debts” within the meaning of article 10 § 25 because future legislatures were not bound to appropriate funds for their retirement. The full faith and credit of the state was not pledged where the legislature had expressed its intent to appropriate monies to retire the debt created, because there was the prospect but not the promise of future appropriations. Id at p. 687.

¶ 18 The amendments to the Local Development Act and Ordinance No. 2700 do not contain the offending language of Okla. City Urban Renewal Auth. that “purported to bind future city councils by requiring that the tax increment district be left in place until after the bonds had been repaid.” Here, the ordinance creating the tax increment district can be revoked or amended at any time by subsequent action of the governing body. The City of Ardmore amended its ordinance creating the increment district to comply with the amendments to the Local Development Act and remove language that would have obligated the City to apportion the ad valorem tax increments for up to twenty-five of years. The amended ordinance incorporates the provisions of the Local Development Act by reference, and recognizes that the ordinance and tax increment district can be revoked or amended at any time by the subsequent actions of the City Commission. Ordinance 2700, section 9.

¶ 19 Recently, this Court found constitutional a tax increment district created by the City of Guymon. In City of Guymon v. Butler, 2004 OK 37, 92 P.3d 80, (mandate issued June 17, 2004), we rejected an attack on Increment District No. 1, City of Guymon, finding that it did not create a prohibited debt within the meaning of Okla. Const., Art. 10 § 26. In City of Guymon the Board of County Commissioners of Texas County contended that the ad valorem tax increment district created by the City Of Guymon under the Local Development Act was unconstitutional because, among other things, it created a prohibited debt within the meaning of Art. 10 § 26 of the Oklahoma Constitution. The City of Guymon and the Guymon Industrial Authority sought a writ of mandamus ordering the Board of County Commissioners to disburse a tax increment in the amount of $448,589.53 and to strictly comply with section 862 of the Local Development Act for the duration of Increment District No. 1, City of Guymon.

¶ 20 In that ease, as in the case at bar, the ordinance creating the increment district had been amended in order to comply with Oklahoma City Urban Renewal. We affirmed the trial court’s decision that the Project Plan and Increment District were adopted and approved in compliance with the Local Development Act and the Oklahoma Constitution against a challenge by the County that the City’s ordinances were in violation of Art. 10 § 26. We said that if the City enacted its ordinances in compliance with Art. 10 § 6C, its actions did not violate the Constitution. City of Guymon, 2004 OK 37 at 21.

¶ 21 City of Guymon v. Butler approved a tax increment district where the ordinance was amended to remove the offending language of Okla. City Urban Renewal Authority. In Okla. City Urban Renewal v. Medical Authority, we said that the question presented when Art. 10 § 26 is considered is “whether the municipality incurs a financial obligation after the year contracted to be paid from taxies levied and collected in subsequent fiscal years.”

¶ 22 In the case at bar, the City has not obligated itself to transfer money beyond its fiscal year, and the covenants to transfer are to be on a year-to-year basis, to be renewed by the annual appropriation for additional one-year periods on July 1 of each year until the principal and interest on the bonds has been paid or the apportionment has ended. The ordinance can be amended or the increment district terminated at any time by action of a subsequent governing body. We find that, under the authority of City of Guymon v. Butler, the tax increment district adopted by the City of Ardmore complies with provisions of the Oklahoma Constitution and the Local Development Act.

¶ 23 As to the bonds, the ADA is the sole entity liable for repayment. Section 863(G) of the Local Development Act provides that a tax apportionment bond or note issued pursuant to the provisions of that section is not a debt, liability, or obligation of the city, town or county creating or approving the plan, project or increment district. That section specifically provides that the bond does not give rise to a charge against the general credit or taxing powers of such city, town or county and is not payable except as provided by the Local Development Act. Bonds or notes issued pursuant to the provisions of section 863 are not general obligations of the state and have no claim on the revenues or resources of the state. A bond or note issued pursuant to the provisions of section 863 must state those restrictions on its face.

¶ 24 The obligation to repay the bonds lies solely on the Ardmore Development Authority, a public trust; not on the City of Ardmore. Previous decisions of this Court have held that the indebtedness by the issuance of revenue bonds under a public trust is the indebtedness of the trust, not the City and that a public trust does not violate Art. 10 § 26. See, Grimes v. City of Oklahoma City, 2002 OK 47 ¶¶ 19, 20, 49 P.3d 719, 726-727; Arthur v. City of Stillwater, 1980 OK 64, 611 P.2d 637, 641. See also, Morris v. City of Oklahoma City, 1956 OK 202 23, 299 P.2d 131, 136-137.

REMAINING ISSUES

¶ 25 This Court recently decided, in City of Guymon v. Butler, 2004 OK 37, 92 P.3d 80, that the consent of each of the taxing jurisdictions levying ad valorem taxes within a tax increment district is not required by Art. 10 § 6C. Protester Jerry Fent raises several arguments which are addressed to the ODFA’s issuing the bonds. In essence, Fent’s argument is that the ODFA’s issuing of the bonds on behalf of the Ardmore Development Authority implicates the State of Oklahoma.

¶ 26 Protester Fent argues that ODFA’s issuing the bonds violates Okla. Const. Art. 10 § 9, which prohibits ad valo-rem taxes being used for a state purpose; that the “trust” corporate veil of the Oklahoma Development Authority as an entity separate from the State should be pierced; that the state cannot loan money or extend credit to any municipality or political subdivision of the state; that the State cannot assume the debt of a municipality; and that Art. 10, § 6 C applies only to cities and towns and not to the State.

¶ 27 Having reviewed the transaction before us, we find that the credit of the state is not implicated by the City of Ardmore’s ad valorem tax increment district and that therefore Fent’s arguments are without merit. Title 74 O.S.2001 § 5062.10 authorizes the ODFA, which is a public trust, to purchase obligations of political subdivisions throughout the state. Title 60 O.S. § 176.1(A)(2) specifically provides that a public trust shall be presumed for all purposes of Oklahoma law to exist as a legal entity separate and distinct from the settlor and from the governmental entity that is its beneficiary.

¶ 28 The issuance of the bonds on behalf of the Ardmore Development Authority is not for a “state purpose” and the proceeds from the bonds will not be used for any project that is owned or created by the state. There is nothing in any of the instruments before us in the record to indicate than any of the ad valorem tax revenue will be used for any state purpose. The approval of the ODFA-issued bond by the governing body of the ODFA states that the bond proceeds shall be used for the purpose of paying or reimbursing the Ardmore Development Authority for the costs of establishing a rail spur and related projects in Ardmore, Oklahoma.

¶ 29 The ODFA characterizes the transaction as a “conduit transaction” whereby the buyer of the bonds looks only to the ADA for repayment of the bond principal and interest. The Resolution adopted by the directors of the ODFA on October 31, 2001states that the ADA requested the ODFA to issue its bonds to fund a rail spur and related projects in the Ardmore Industrial Airpark in Ardmore, Oklahoma.

¶ 30 Section 863(G) of the Local Development Act specifically provides that a tax apportionment bond issued pursuant to its provisions are not general obligations of the state and have no claim on the revenues or resources of the state. Any bond or note issued under section 863 must state those restrictions on its face. The bond proceeds are for a project of the City of Ardmore, authorized under the Local Development Act and Okla. Const., Art. 10 § 6C, operated by the Ardmore Development Authority. That the ODFA will issue the bonds does not change the nature of the project.

CONCLUSION

¶ 31 We find that the tax increment district created by the City of Ardmore complies with the Oklahoma Constitution, Art. 10 § 6C and the Local Development Act. Under the Local Development Act, the tax increment district created by the City of Ardmore may be repealed or amended at any time by the action of a subsequent governing body and the City is not obligated to apportion ad valorem taxes beyond its fiscal year. Only the ADA, a public trust, is indebted on the bonds and, as a public trust, its debt does not violate Art. 10 § 26. .

ORIGINAL JURISDICTION ASSUMED; PROPOSED BOND ISSUE APPROVED.

¶ 32 CONCUR: WATT, C.J., HODGES, HARGRAVE, KAUGER, WINCHESTER, EDMONDSON, JJ.

¶ 33 CONCUR IN DEFERENCE TO STARE DECISIS: OPALA, V.C.J., LAVENDER, J.

¶ 34 DISSENT: BOUDREAU, J.

      . Findings of the Ardmore Tax Increment District Finance Review Committee. The eligible costs include: 1) costs of implementing and administering the plan, including but not limited to, professional service costs, financing costs and fees, administrative costs, organizational costs, etc.; 2) costs of installation and or improvement of utilities including, but not limited to, water, sewer, gas and electric facilities; 3) costs of acquisition and/or renovation of land, structures, facilities, buildings and improvements; and 4) miscellaneous costs and/or reimbursements of costs advanced in preparation and approval of the plan.

      . We are here considering 62 O.S.2001 § 850 et. seq. The act has been subsequently amended. For example, amendment to sec. 859 appears at Laws 2002 ch. 476 § 2; subsequent amendments to sections 853, 854, 855, 856, 858, 859, 861, 862, 863 and 867 appear at Laws 2003, ch. 255; subsequent amendment to sections 853 and 856 at Laws 2003 ch. 433 §§ 6, 7.

      . Section 856(C) provides:
      It is the intention of the Legislature in adopting the Local Development Act that no long-term contractual obligation be created by the mere adoption of an ordinance or resolution establishing an increment district. Notwithstanding any provision contained in an ordinance, resolution or project plan, an ordinance or resolution establishing an increment district shall constitute a legislative act and may be repealed, modified or amended at any time during the term of the increment district, by subsequent action of the governing body. However, nothing in the Local Development Act shall restrict the ability of:
      1. Any city, town or county to:
      a. Issue debt in accordance with the applicable provisions of Article X of the Oklahoma Constitution, and any statutes enacted in connection therewith, and
      b. Use incremental revenues derived from an increment district to pay principal, interest or premium associated with such indebtedness; or
      2. Any public entity, other than a city, town or county to:
      a) issue tax apportionment bonds or notes in accordance with Section 863 of this title or to issue other types of revenue bonds or notes in accordance with other applicable provisions of Oklahoma law, and
      b) use incremental revenues derived from an increment district to pay principal, interest or premium associated with such indebtedness. Laws 2000, ch. 351 § 2.

      . This citation to Supp.1999 is in error. The amended ordinance was adopted on Dec. 27, 2001 and recites that it is enacted to ensure compliance with Okla. City Urban Renewal Authority, and amendments made by the legislature in May 2000 to the Local Development Act by House Bill 2635 pursuant to the Okla. City Urban Renewal Authority case.

      . Article X sec. 6C provides, in pertinent part;
      § 6C. Tax relief for historic preservation, reinvestment or enterprise areas-Economic stagnation or decline-Use of local taxes and fees for public investments-Development or redevelopment of unproductive, etc. areas.

      B. The Legislature, by law, may authorize that the cities, towns, or counties may specifically use local taxes and local fees, in whole or in part, for specific public investments, assistance in development financing, or as a specific revenue source for other public entities in the area in which the improvements take place and may direct the apportionment of the taxes and fees specified in this subsection for the purposes specified in this section. The Legislature may establish for this subsection, the same procedures and limitations authorized in subsection A of this section.”

      . The County argued that the City’s ordinances creating the Project Plan and Increment District forced the county to accept a smaller amount of taxes, which results in the County's surrender of its power of taxation and is in essence a debt for the county that cannot be repaid within a year, and that all of this was accomplished without a vote of the people. 2004 OK 37 ¶ 21, 92 P.3d 80.

      . Section 5 of the Security Agreement between the City and the ADA provides:
      "It is hereby acknowledged that under Oklahoma Law, the City may not become obligated to transfer money beyond its fiscal year (July 1 through June 30) and therefore the covenants to transfer made herein by the City shall be on a year-to-year basis to be renewed by the annual appropriation for additional one year periods on July 1 of each years until such time as the principal of and interest on all Bonds issued under the Indenture have been paid or the apportionment of the Increment Revenue has ended.”