author: PETRA JIMENEZ MAES, Justice.

text:
    STATE OF NEW MEXICO EX REL. CHILDREN, YOUTH AND FAMILIES DEPARTMENT, Petitioner-Petitioner, v. Janet MERCER-SMITH and James Mercer-Smith, Respondents-Respondents.
    NO. S-1-SC-35427
    Supreme Court of New Mexico.
    Filing Date: December 20, 2018
    Walz and Associates, Jerry A. Walz, Albuquerque, NM, for Petitioner.
    Comeau, Maldegen, Templeman & Indall, LLP, Larry D. Maldegen, William Phelps Templeman, Stephen J. Lauer, Santa Fe, NM, Dan Cron Law Firm, P.C., Daniel Robert Cron, Santa Fe, NM, for Respondents.
   PETRA JIMENEZ MAES, Justice.

{1} While the parties in this case litigated contempt proceedings over the course of seven years, the children at the center of the case aged out of the system and became peripheral to a nearly $4,000,000 judgment in favor of Respondents Janet and James Mercer-Smith (the Mercer-Smiths), who had pleaded no contest to allegations of abuse against their two minor daughters Julia and Rachel. This case was initiated in 2001 as an abuse and neglect proceeding and turned into a dispute over whether the Children, Youth and Families Department (CYFD) had violated the district court's decision that Julia and Rachel could not be placed with former employees of a group home where they had been residing. After protracted litigation, the district court held CYFD in contempt for violating its placement decision and, almost four years later, imposed the sanction for the violation, ordering CYFD to pay the Mercer-Smiths more than $1,600,000 in compensatory damages and more than $2,000,000 in attorney fees and costs. The award was based on the district court's determination that the violation of the placement decision resulted in the loss of the Mercer-Smiths' chance of reconciliation with Julia and Rachel. We hold that the purpose for which the district court exercised its contempt power was not remedial in nature and therefore cannot be upheld as a valid exercise of civil contempt power. Accordingly, we reverse the contempt order and vacate the award in its entirety.

I. BACKGROUND

{2} This case began in early 2001 and was not fully resolved until January 2012, when the final judgment was entered. The record indicates that nearly every aspect of the proceeding was heavily litigated and highly contentious. What follows is the background information most relevant to the issues before this Court. Additional factual development will be done, as needed, in the context of our discussion of those issues.

{3} In February 2001, James (Father) and Janet (Mother) Mercer-Smith's three daughters-Julia, 13; Rachel, 12; and Alison, 8-were taken into CYFD custody based on allegations of sexual abuse of Julia and Rachel at the hands of Father. The abuse and neglect petition also alleged that Mother knew or should have known of the abuse but failed to protect her daughters.

{4} Six months later on August 30, 2001, Father pleaded no contest to allegations that he "touched his children Julia and Rachel in a way that made them feel uncomfortable and which they reasonably perceived as sexual." Mother pleaded no contest to allegations that she "knew or should have known that her husband ... touched their children Julia and Rachel in a way that made them feel uncomfortable and which they reasonably perceived as sexual and she did not take reasonable steps to protect the children from further harm." Based on the pleas, the district court entered a judgment and disposition adjudicating the children to be abused pursuant to NMSA 1978, Section 32A-4-2(B)(2) (1999). The Mercer-Smiths were ordered to comply with a treatment plan approved by the district court. Among other things, the plan contemplated family therapy and visitation, if appropriate, at the daughters' discretion. Although both Julia and Rachel expressed that they had no desire to return to their parents' home, the goal of the treatment plan at that time was reunification. Alison, the youngest daughter, was returned to her parents' custody in November 2001 and was later dismissed from the case.

{5} The initial judicial review hearing was held on November 7, 2001. The district court found that it was in Julia's and Rachel's best interests to remain in the legal custody of CYFD. The court ordered CYFD to obtain a report from Julia's psychiatrist and Rachel's therapist in anticipation of the next hearing, addressing "why Julia and Rachel are refusing to go home and not wanting visits and what is in their best interests in those regards." The order memorializing the November 7, 2001 hearing was filed on March 21, 2002. At the next hearing on December 10, 2001, the district court ordered that Julia and Rachel begin individual sessions with Dr. Charles Glass, a psychologist retained by CYFD, who would submit a detailed report for the next hearing regarding their progress in therapy. The order memorializing the December 10, 2001 hearing was filed on March 22, 2002.

{6} The district court also ordered Julia and Rachel to participate in mediation with the Mercer-Smiths, which occurred on April 5, 2002. The mediator's memorandum of understanding submitted to the court shortly thereafter reflects that the mediation process had yet to be completed. Therefore, on April 9, 2002, the parties stipulated that the "permanency plan should remain reunification until the mediation process is completed by the parties." However, in May 2002, CYFD filed a report with the district court indicating that reunification was "no longer a viable plan." The report also recommended that individual sessions between the daughters and Dr. Glass cease due, in part, to a breach of confidentiality by Dr. Glass. On July 11, 2002, CYFD filed another report with the court, reiterating its position that reunification was "no longer a viable plan." The report also indicated that the mediation process had been completed, "with no change in the prognosis for reunification" and recommended a change in the permanency plan to planned permanent living arrangements (PPLA) for Julia and Rachel. According to the social worker, the recommended change to PPLA was a result of the Mercer-Smiths' failure to "address the issues that have been at hand since the inception of this case." Specifically, Father refused to acknowledge the factual basis of his no contest plea and instead focused on convincing case workers that "he [was] not responsible for any problems that his family has experienced and that the girls' allegations of sexual abuse [were] the result of confusion and false memories that have been created by one or more of their therapists." Additionally, Mother purportedly took the position that Father was not guilty of the abuse alleged by Julia and Rachel. The social worker reported that Julia and Rachel "continue to be adamant about not wanting to reunify with their parents." At that time, CYFD reported that Julia and Rachel were living at the Casa Mesita Group Home in Los Alamos.

{7} At a highly contentious hearing on August 15, 2002, the attorney for the Mercer-Smiths insisted that reunification had not been successfully attempted. The district court noted that all attempts to get Julia and Rachel to participate in therapy had failed and that there had been no progress at all toward reunification. Counsel for CYFD stated that Julia and Rachel did not want any involvement with their parents because they felt that they were being accused of wrongdoing and because their parents had not taken responsibility for the abuse inflicted upon them. The district court acknowledged that the daughters' best interests and "perspective" were "paramount." Counsel for the Mercer-Smiths asked the court to order that Julia and Rachel participate in ten family therapy sessions for the purpose of resolving issues between them and the Mercer-Smiths. The guardian ad litem (GAL) insisted that Julia and Rachel were "adamantly opposed to continued therapy" and reiterated CYFD's position-Julia and Rachel felt as though they were on trial and the proceedings had become about what they had done, rather than the abuse their parents had inflicted. Counsel for CYFD stated that it was CYFD's position that it was not in Julia's and Rachel's best interests to go forward with family therapy since the purpose of it was unclear, given that they were adamant about not wanting to reunify with the Mercer-Smiths. Counsel for CYFD also reminded the court that the summary treatment plan adopted on August 30, 2001, specified that Julia and Rachel would not be required to visit with the Mercer-Smiths unless they wished to do so and that reunification would occur only "if appropriate." Julia and Rachel were permitted to address the court and read statements that they had prepared. Excerpts from those statements follow.

Julia: ... I have not had the opportunity as yet to speak with you face to face about the issues in our case. I do not think the mediation helped in the least .... I for one came out of the sessions angrier with [the Mercer-Smiths] than before. ... As far as I'm concerned our family will never be able to be repaired. Mainly for two reasons. One because Jan and James are unwilling to let the past go and concentrate on the future and two, because I'm not ready to listen to them tell me how my memories are planted and that everything is my fault. My hate toward them has become far worse over the last couple of months. ... If I had my way, I would want their parental rights terminated, but I'm not sure that will happen. ... I hope this letter will bring some insight to our case from one of the people the court seems to have forgotten.
Rachel: ... I have recently participated in mediation sessions with my parents and during these sessions I felt as though I was not, what I was saying was not really being heard. It seemed to me as though Janet and James are still not taking responsibility. They said that my memories are not accurate. This caused me to leave the sessions feeling more angry and more hurt than I was before. I know that family therapy has been suggested, but I don't think that this would be beneficial unless they are able to accept things and take responsibility. I don't think that there is a purpose in therapy. ... And I know returning to my [parents'] home is not what I want, it simply wouldn't work and it would be impossible unless they were able to take responsibility and I think that under the plan of [PPLA], I would be able to begin to have a life that is as close to normal as it could be under the circumstances.

{8} Attempting to find a middle road through the morass, the district court ordered that the permanency plan be changed to PPLA but also ordered family therapy "to attempt to resolve and bring some closure to some of these issues between the girls ... and their parents." To that end, Julia and Rachel were ordered to participate in ten therapy sessions each with Mother only. The change in the permanency plan to PPLA meant that reunification was no longer a viable option and therefore not a goal of any treatment plan. See 8.10.9.7(L) NMAC (" 'Planned permanent living arrangement (PPLA)' is a permanency plan established by the court for a youth in [CYFD] custody who is age 16 or older once reunification, adoption, permanency guardianship and placement with a fit and willing relative have been ruled out."). On April 30, 2004-almost two years after the August 15, 2002 hearing-the court reduced to writing its findings, reflecting a change in the permanency plan from reunification to PPLA.

{9} In the judicial review and/or permanency hearing report filed with the district court in July 2003, CYFD reported that having completed the more structured therapy living situation at Casa Mesita Group Home, Julia and Rachel were ready to transition into regular non-relative foster homes in the Los Alamos area. CYFD sent the Mercer-Smiths a letter dated June 5, 2003, informing them that Rachel would be placed with Gay and Dwain Farley and Julia would be placed with Jennifer and Eric Schmierer after both couples had become licensed as foster parents. On June 30, 2003, the Mercer-Smiths filed an objection to these placements, arguing that they would be inappropriate because Gay Farley and Jennifer Schmierer had been therapists at Casa Mesita Group Home where Julia and Rachel had been residing.

{10} The district court held four hearings over the course of three months in 2003 to determine the propriety of the proposed placements. At one of those hearings on August 19, 2003, the district court affirmatively stated that CYFD had no duty to support reconciliation between Julia and Rachel and the Mercer-Smiths. Although the district court acknowledged that reconciliation may be, in a broader sense, in the best interests of Julia and Rachel, the court nonetheless concluded the following:

I understand that reconciliation of the parents is not part of the permanency plan. I can accept that as [an] uncontroverted fact. It's clear to me that reconciliation with the parents is not something, a goal of [CYFD] in the [PPLA].
...
There's no duty on the part of [CYFD] to support reconciliation with the parents at this point and I find that as a fact.

{11} At the last of the three hearings on September 9, 2003, the district court ruled that the proposed placements would be inappropriate in light of the therapeutic relationships between Gay and Jennifer and the children. The court entered its findings of fact and conclusions of law and decision on November 3, 2003 (Placement Order). In part, the district court found that Gay and Jennifer, who were both licensed clinical counselors, served as therapists for Julia and Rachel while they lived at Casa Mesita Group Home. Because of the patient-therapist relationships that formerly existed, the court determined that the proposed placements would constitute "dual relationships," which are prohibited by the code of ethics that governs clinical counselors in New Mexico. Accordingly, the court concluded that the proposed placements constituted an abuse of discretion and would not be permitted.

{12} Because Julia and Rachel could not be placed with the Farleys and Schmierers as a result of the Placement Order, CYFD placed them with Martin and Jeanne Ritter. However, on April 27, 2004, during the annual permanency and presentment hearing, counsel for CYFD reported that because it could not find suitable foster parents for Julia and Rachel in Los Alamos, the children had transitioned into a semi-independent living arrangement in February 2004 and were renting a room from Melissa Brown and her husband. Upon inquiry from the Mercer-Smiths' attorney about the Browns, counsel for CYFD explained that Melissa Brown was the daughter of Gay and Dwain Farley, was a licensed foster parent, and had not been previously involved in the case. The district court judge responded, "So [CYFD] found a way to get around my ruling?" Counsel for CYFD apologized and stated that it was not CYFD's intent to disrespect the court or the court's Placement Order and explained that the Ritters requested that Julia and Rachel be moved because the placement was not working out as a result of transportation issues. The GAL added that she asked the daughters for the names of friends and other people that they knew who might be willing to become licensed so that they could remain in Los Alamos. While there were many people with whom the daughters had contact in Los Alamos, it was the opinion of the GAL that because of the Mercer-Smiths' status in the community, people did not want to get involved since everyone the daughters approached had turned them down. The only people who came forward were the Farleys' daughter and her husband. Thus, the issue became whether to move Rachel and Julia from Los Alamos to find a different placement. The district court responded:

I can't imagine [t]hat the Mercer-Smiths are [of] such status in the community ... that there is not a family in the community that's healthy, willing and able to take care of these children. It's just truly amazing to me. I've never seen anything quite like it and find it quite disturbing, the efforts [CYFD] made to try to circumvent the decision that this court made in my decision.

{13} Three months later on July 30, 2004, the Mercer-Smiths filed a motion to initiate civil and criminal contempt proceedings. The motion named several individuals and CYFD as an entity as alleged contemnors. The Mercer-Smiths alleged that Rachel and Julia had been, for all practical purposes, placed with the Farleys and Schmierers despite the district court's ruling that doing so was an abuse of discretion. Their motion indicated that the Mercer-Smiths had hired a private investigator to observe their daughters' comings and goings from the Farley and Schmierer households and to observe their daily activities. Based on the information gathered, the Mercer-Smiths contended that "CYFD created a sham to mask the true caretaker relationships between the girls [and] the Farleys and the Schmierers in contravention" of the district court's Placement Order.

{14} While the parties litigated the contempt proceedings, Julia and Rachel reached the age of majority and aged out of the system-Julia in 2005 and Rachel in 2006. After legal custody of both daughters ended and was no longer an issue, this case remained unresolved for almost six more years.

{15} On July 10, 2006, CYFD filed a motion to dismiss both the civil and criminal contempt proceedings. The district court entered an order on August 29, 2006, dismissing several named individuals from the contempt proceedings and ruling that criminal and civil contempt would proceed only as to counsel for CYFD and CYFD as an entity. On November 6, 2006, the district court entered an order dismissing all claims of criminal contempt. The order notes that there remain "civil contempt remedies which can be granted based on the actions of the parties."

{16} The bench trial on the civil contempt issues occurred on November 9, 2006. On January 3, 2008, the district court entered its findings of fact, conclusions of law, and order holding CYFD in contempt of court. The district court found that the Farleys had a significant and ongoing relationship with Rachel such that Rachel was "placed" into their home by CYFD and the Farleys were Rachel's foster parents. Similarly, with respect to Julia, the district court found that the Schmierers had a significant and ongoing relationship with Julia such that Julia was "placed" into their home by CYFD and the Schmierers were Julia's foster parents. Accordingly, the district court concluded that CYFD's conduct was in direct violation of the court's Placement Order and held CYFD in contempt. The district court did not hold counsel for CYFD in contempt.

{17} The district court commenced a five-day bench trial to determine damages on May 31, 2011, and also held a hearing on October 19, 2011, where additional evidence and argument was considered. On December 9, 2011, the district court entered its findings of fact and conclusions of law on contempt damages. The court concluded that the Mercer-Smiths were injured by CYFD's contemptuous conduct and awarded Father damages of $616,000-$100,000 for past emotional distress, $200,000 for future emotional distress, $200,000 for loss of enjoyment of life, $56,000 for past psychological expenses, and $60,000 for future psychological expenses. Mother was awarded damages of $1,000,000-$200,000 for past emotional distress, $400,000 for future emotional distress, and $400,000 for loss of enjoyment of life. Additionally, the district court awarded the Mercer-Smiths $1,859,096 in attorney fees plus $152,213 in tax and $175,826 in litigation expenses. In total, the award equaled $3,803,135.

{18} The Court of Appeals affirmed the district court's contempt order and award of damages, attorney fees, and costs. State ex rel. Children, Youth & Families Dep't v. Mercer-Smith , 2015-NMCA-093, ¶ 1, 356 P.3d 26. CYFD filed a petition for writ of certiorari in this Court, asserting that the Court of Appeals erred in: (1) upholding the district court's determination of contempt contrary to legal authority; (2) upholding the district court's award of emotional distress damages for civil contempt in violation of CYFD's sovereign immunity; (3) upholding the district court's decision to deem admitted two requests for admission contrary to legal authority, public interest, and the integrity of the judicial process; (4) concluding that the contempt damages are analogous to tort damages but refusing to limit the damages pursuant to the New Mexico Tort Claims Act, NMSA 1978, §§ 41-4-1 to -30 (1976, as amended through 2015); (5) not reversing the damages award based on the doctrine of unclean hands; (6) affirming the award of attorney fees, tax, and costs to counsel for the Mercer-Smiths for work performed in post-contempt proceedings; and (7) upholding a decision that is contrary to public interest. All seven contentions relate to two overarching issues that we address in this opinion-whether CYFD was properly held in contempt and, if so, whether the resulting award of damages, attorney fees, and costs was proper. We granted CYFD's petition for certiorari pursuant to Article VI, Section 3 of the New Mexico Constitution and NMSA 1978, Section 34-5-14(B) (1972).

II. DISCUSSION

A. Standard of Review

{19} Whether the district court exercised its contempt power consistent with the purposes of civil contempt is a mixed question of fact and law that we review de novo. See Papatheofanis v. Allen , 2009-NMCA-084, ¶ 8, 146 N.M. 840, 215 P.3d 778. Where there is an appropriate civil contempt, the sanction itself is reviewed for an abuse of discretion. Tue Thi Tran v. Bennett (Tran ), 2018-NMSC-009, ¶ 30, 411 P.3d 345. "An abuse of discretion occurs when the court's ruling is clearly against the logic and effect of the facts and circumstances of the case or is based on a misunderstanding of the law." Id. (internal quotation marks and citation omitted).

B. Overview of Contempt Law in New Mexico

{20} Courts have inherent power and statutory authority to impose remedial or punitive sanctions for contempt of court. Concha v. Sanchez , 2011-NMSC-031, ¶¶ 21-26, 150 N.M. 268, 258 P.3d 1060 ; see also NMSA 1978, § 34-1-2 (1851). Contempts of court can be civil or criminal, and the "major factor" in determining how to classify a particular contempt "is the purpose for which the power is exercised." Tran , 2018-NMSC-009, ¶ 33, 411 P.3d 345 (internal quotation marks and citation omitted). "Criminal contempt proceedings are instituted to punish completed acts of disobedience that have threatened the authority and dignity of the court and are appropriate even after the contemnor is no longer acting contemptuously." Concha , 2011-NMSC-031, ¶ 26, 150 N.M. 268, 258 P.3d 1060. Civil contempt, on the other hand, is remedial in nature and serves "to preserve and enforce the rights of private parties to suits and to compel obedience to the orders, writs, mandates and decrees of the court." Tran , 2018-NMSC-009, ¶ 33, 411 P.3d 345 (internal quotation marks and citation omitted).

{21} Consistent with the various purposes for which a court may exercise its contempt power, a court may impose punitive sanctions for criminal contempt, remedial sanctions for civil contempt, or both. The court may not, however, impose criminal penalties on a person who has not been afforded the protections of the criminal law, " 'including the requirement that the offense be prove[n] beyond a reasonable doubt.' " Concha , 2011-NMSC-031, ¶ 26, 150 N.M. 268, 258 P.3d 1060 (quoting Hicks v. Feiock , 485 U.S. 624, 632, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988) ); cf. id. ("[C]riminal contempt is a crime in the ordinary sense; it is a violation of the law." (internal quotation marks and citation omitted) ). Acts that constitute criminal contempt can take a variety of forms, including (1) any sort of disturbance that "actually obstructs or hinders the administration of justice or tends to diminish the court's authority," (2) "misconduct of court officers," and (3) disobedience of an order of the court. Rule 1-093(B)(1) NMRA.

{22} "Civil contempt sanctions may be imposed by honoring the most basic due process protections-in most cases, fair notice and an opportunity to be heard." Concha , 2011-NMSC-031, ¶ 25, 150 N.M. 268, 258 P.3d 1060. If a court is exercising its civil contempt power, it may impose compensatory sanctions or coercive sanctions, as both are remedial in nature. Tran , 2018-NMSC-009, ¶ 35, 411 P.3d 345. "Compensatory sanctions may include damages or attorney's fees and are imposed for the purpose of compensating a party for pecuniary losses sustained due to the contempt." Id. ¶ 36 ; see also State ex rel. Dep't of Human Servs. v. Rael , 1982-NMSC-042, ¶ 6, 97 N.M. 640, 642 P.2d 1099 ("With civil contempt, remedial punishment for the benefit of the plaintiff is measured in some degree by the pecuniary injury caused by the acts of disobedience." (internal quotation marks and citation omitted) ). "Coercive sanctions may include fines, imprisonment, or other sanctions designed to compel the contemnor to comply in the future with an order of the court." Tran , 2018-NMSC-009, ¶ 37, 411 P.3d 345 (internal quotation marks and citation omitted). "Because the purpose of [this type of] civil contempt sanction[ ] is to compel compliance with the court's orders and not to punish, the continuing contempt sanctions end when the contemnor complies." Concha , 2011-NMSC-031, ¶ 25, 150 N.M. 268, 258 P.3d 1060.

C. The District Court Did Not Exercise Its Contempt Power Consistent With the Purposes of Civil Contempt

{23} The classification of contempt in this case is not based on the initiation of the contempt proceedings in the context of a civil case, the dismissal of the criminal contempt portion of the Mercer-Smiths' motion, or all parties proceeding since that time as if dealing with civil contempt. See Tran , 2018-NMSC-009, ¶ 34, 411 P.3d 345 (stating that this Court is not "bound by the parties' characterization of the contempt as civil or criminal"). Instead, as set forth above, "we look to the nature and purpose of the punishment, rather than the character of the acts to be punished, as a controlling factor." Concha , 2011-NMSC-031, ¶ 32, 150 N.M. 268, 258 P.3d 1060 (internal quotation marks and citation omitted).

{24} The district court awarded the Mercer-Smiths compensatory damages for past and future emotional distress, loss of enjoyment of life, and past and future psychological expenses. In support of the award, the district court found that "there continued to be viable prospects for reconciliation between [the Mercer-Smiths] and their daughters Julia and Rachel" before the hearing that resulted in the district court's Placement Order. Additionally, the district court found that because of CYFD's contempt of the Placement Order, "the likelihood of any meaningful form of reconciliation ... was greatly reduced to the point of being remote and effectively eliminated." Based on the district court's findings, the intended purpose of the contempt proceedings was to preserve and enforce the Mercer-Smiths' chance of reconciliation with Julia and Rachel, which was allegedly undermined by CYFD's violation of the Placement Order. However, at the time that the contempt proceedings were initiated, the district court had already "accept[ed] ... as an uncontroverted fact" that CYFD had "no duty ... to support reconciliation." Thus, as we explain in further detail below, because efforts toward reunification and reconciliation were no longer being required by the district court, the contempt proceedings were not, in fact, instituted for the remedial purpose of preserving and enforcing the Mercer-Smiths' chances of reconciliation. Therefore, the resulting contempt order and award of damages, attorney fees, and costs cannot be upheld as a valid exercise of civil contempt power.

{25} In their motion to institute contempt proceedings, the Mercer-Smiths noted that they had objected to the proposed placements with the Farleys and Schmierers on three grounds: first, that placing their daughters with Gay and Jennifer would result in "dual relationships" in violation of ethics rules that bind counselors and therapists; second, that the Farleys and Schmierers were not supportive of the Mercer-Smiths' attempts to achieve reconciliation with their daughters; and third, that the possibility of future reconciliation would be undermined by the placement. The district court's Placement Order reflects its findings that the placements would constitute dual relationships as contemplated by relevant ethics rules. However, the district court made no findings indicating that the placements were inappropriate for any other reasons, including that they might undermine future prospects for reconciliation between Julia and Rachel and the Mercer-Smiths. In fact, although the Mercer-Smiths tendered proposed findings based on its arguments that the proposed placements would undermine reconciliation, the district court refused them. The court's refusal to adopt these particular findings is tantamount to a finding against the Mercer-Smiths on those issues. Jones v. Beavers , 1993-NMCA-100, ¶ 18, 116 N.M. 634, 866 P.2d 362 ; see also Sanchez v. Mem'l Gen. Hosp. , 1990-NMCA-095, ¶ 33, 110 N.M. 683, 798 P.2d 1069 ("[R]efusal of a requested finding has the legal effect of a finding against the party who submitted the request."). Therefore, the district court's subsequent ruling that CYFD's violation of the Placement Order resulted in the loss of the Mercer-Smiths' chances of reconciliation was an abuse of discretion and cannot be sustained.

{26} Additionally, by the time that the Placement Order was entered, the treatment plan in place, which was approved by the district court, no longer required Julia and Rachel to have any contact whatsoever with their parents via visitation or family therapy. In fact, the treatment plan required no action at all with respect to either Father or Mother, except for the requirement that they pay child support. In August 2002, prior to approving that treatment plan, the district court had already changed the permanency plan from reunification to PPLA and ordered additional therapy sessions between Julia and Rachel and Mother for the purpose of attempting to resolve the ongoing issues between them. However, the district court apparently accepted CYFD's recommendation not to continue therapy between Father and the daughters, which is tantamount to a finding that it was not in their best interests. Subsequently, on July 1, 2003, when the annual permanency hearing took place, the therapy between the daughters and Mother had been completed and no additional therapy sessions were ordered. Testimony from Dr. Glass subsequently established that after family therapy ceased, it was clear that efforts at reconciliation had failed. By not requiring additional therapy-or any contact whatsoever-between Julia and Rachel and the Mercer-Smiths, there was no mechanism by which reconciliation might be achieved, thus eliminating any chance of reconciliation that CYFD could have had a duty to support. In short, as of July 2003, no efforts at either reunification or reconciliation were being ordered by the district court. The district court's oral remark that there was "no duty on the part of [CYFD] to support reconciliation with the parents" at the August 19, 2003 hearing is consistent with this conclusion. Therefore, when the contempt proceeding was initiated in July 2004, it could not have been for the purpose of preserving or enforcing any chance of reconciliation that the Mercer-Smiths had-that opportunity had passed.

{27} Because the contempt proceedings could not have been for the purpose of preserving or enforcing any right that the Mercer-Smiths had, the only other possible remedial purpose would have been to coerce CYFD into compliance with the Placement Order. See El Paso Prod. Co. v. PWG P'ship , 1993-NMSC-075, ¶ 28, 116 N.M. 583, 866 P.2d 311 ("[C]ivil contempts are those proceedings instituted to preserve and enforce the rights of private parties to suits and to compel obedience to the orders, writs, mandates and decrees of the court[.]" (emphasis, internal quotation marks, and citation omitted) ). It is clear, however, that coercion was not the intended purpose either. When the district court learned at the April 27, 2004 hearing that Julia and Rachel had been placed with Melissa Brown, the court expressed its disappointment that CYFD had "found a way to get around [its] ruling" but did not order a change in placement. Even three months later, when the Mercer-Smiths moved to initiate civil and criminal contempt proceedings based on CYFD's violation of the Placement Order, the district court did not order CYFD to find an alternate placement. Instead, the district court allowed Julia and Rachel to remain in the independent living situation with Melissa Brown until they aged out of the system. Only then did the district court finally hold CYFD in contempt. It took the district court over three and one-half years to adjudicate the contempt proceedings once it was apprised of the placement in April 2004. It took another almost four years for the district court to impose a sanction for the violation of the Placement Order. Because of the inordinate amount of time that it took to adjudicate the contempt proceedings, placement of Julia and Rachel was no longer an issue and CYFD never had an opportunity to cure its non-compliance. By the time that the district court entered the almost $4,000,000 award in favor of the Mercer-Smiths, the sanction imposed could no longer be fashioned in such a way to compel CYFD to comply with the Placement Order. The time for the opportunity to impose a coercive sanction had already lapsed.

{28} Based on the foregoing, we conclude that the contempt proceedings in this case were not instituted either to preserve and enforce the rights of the Mercer-Smiths or to compel obedience to the district court's Placement Order. Accordingly, the almost $4,000,000 award could not have been remedial and was, therefore, purely punitive in nature. The punitive nature of the award in this case seems obvious-once remedial sanctions were no longer available to the district court, the purpose of the award was "to punish [a] completed act[ ] of disobedience that ... threatened the authority and dignity of the court." Concha , 2011-NMSC-031, ¶ 26, 150 N.M. 268, 258 P.3d 1060. Punitive sanctions, however, can only be imposed for criminal contempt of court and only if the alleged contemnors were afforded adequate due process. See id. ("A criminal contempt defendant is ... entitled to due process protections of the criminal law, ... including the requirement that the offense be prove[n] beyond a reasonable doubt." (internal quotation marks and citation omitted) ). There is nothing in the record below indicating that the district court afforded CYFD these protections once the criminal contempt portion of the proceedings was dismissed. Accordingly, the district court's contempt order cannot be affirmed as a valid exercise of civil or criminal contempt power.

{29} As we have done in the past, we remind courts of their duty to exercise their contempt powers cautiously. Int'l Minerals & Chem. Corp. v. Local 177, United Stone & Allied Prods. Workers , 1964-NMSC-098, ¶ 18, 74 N.M. 195, 392 P.2d 343 ; accord Concha , 2011-NMSC-031, ¶ 30, 150 N.M. 268, 258 P.3d 1060. Because the "power of a court is so broad[,]" it is "uniquely liable to abuse." Concha , 2011-NMSC-031, ¶ 29, 150 N.M. 268, 258 P.3d 1060 (internal quotation marks and citation omitted). When the purpose for exercising the contempt power is punitive in nature, it should not be stretched to fit some sort of remedial motivation. A court should determine, from the outset, the purpose for which it is exercising its contempt power so that it can fashion an appropriate remedy. Id. ¶ 45 ("A judge's exercise of the contempt power must be tailored to the contemptuous conduct, exerting just enough judicial power to right the wrong; no more, no less."). The district court in this case failed to abide by these mandates.

III. CONCLUSION

{30} The district court did not exercise its contempt power for the purpose of preserving the Mercer-Smiths' chance of reconciliation with Julia and Rachel or for the purpose of coercing CYFD into compliance with its Placement Order. Therefore, the contempt order cannot be upheld as a proper use of civil contempt power; accordingly, we reverse the contempt order. Because the compensatory damages and award of attorney fees and costs cannot stand under an improper contempt ruling, we vacate the entire award. For the same reason, we deny the Mercer-Smiths' request for attorney fees incurred as a result of the proceedings in this Court.

{31} IT IS SO ORDERED.

WE CONCUR:

JUDITH K. NAKAMURA, Chief Justice

EDWARD L. CHÁVEZ, Justice, retired, Sitting by designation

JENNIFER E. DELANEY, District Judge, Sitting by designation

JOHN J. ROMERO JR., District Judge, Sitting by designation


source: Caselaw Access Project

author: ¶11 Reif, J., not participating.

license: Public Domain

text:
    Jon CHRISTIAN, Petitioner-Appellee, v. Daisy CHRISTIAN, Respondent-Appellant.
    Case No. 115,474
    Supreme Court of Oklahoma.
    FILED December 4, 2018
    George H. Brown, Brown & Gould PLLC, Oklahoma City, OK, for Daisy Christian, Appellant.
    MaryGaye LeBoeuf, Oklahoma City, OK, for Jon Christian, Appellee -and-E.J. Buckholts II and Carl Buckholts, Ellis & Buckholts, Duncan, OK, for Jon Christian, Appellee.
    GURICH, V.C.J.
    Facts & Procedural History
    ¶1 Jon Christian (Husband) and Daisy Christian (Wife) were divorced following a four-day trial in the Stephens County District Court. A Decree of Dissolution of Marriage memorializing the trial court's findings was filed on June 30, 2016. Both parties filed motions on July 15, 2016, requesting clarification and/or modification of the Decree. Husband also filed a post-judgment motion requesting an award of attorney fees and costs.
    ¶2 On September 29, 2016, the trial court held a hearing on the parties' respective motions. Although the trial judge sustained Husband's motion to clarify the decree by entering an order nunc pro tunc, he further determined Wife's motion was "not timely filed." Separate journal entries were entered for each motion and filed of record on October 3, 2016.
    ¶3 Wife commenced the present appeal on October 27, 2016. The sole order attached to the petition in error was the Decree of Dissolution of Marriage. An order was issued by the Court of Civil Appeals following case assignment directing Wife to "file an amended petition in error, containing the trial court's October 3, 2016, order denying the motion for new trial, no later than November 15, 2017." Wife timely complied with COCA's directive.
    ¶4 On January 22, 2018, COCA issued its opinion affirming the trial court's denial of Wife's motion for new trial. Specifically, the appellate court concluded:
    Wife filed a "Motion for New Trial/Motion to Reconsider" on July 15, 2016, more than ten, but less than thirty, days following the entry of the Decree. The trial court denied the motion in an order filed October 3, 2016, finding it without merit and untimely filed. Wife filed a Petition in Error on October 27, 2016, seeking review.
    If this Court considers Wife's motion to be one for a new trial, it is ineffective, because it was filed more than ten days after the final Decree was filed .... Therefore, we consider Wife's motion to be one to modify or vacate the Decree, pursuant to 12 O.S.2011, §§ 1031 and 1031.1. Further, such filing, made more than ten days following the Decree, does not operate to extend the time to appeal the Decree.
    ....
    ....Consequently, the June 30, 2016, Decree dividing the marital assets is beyond appellate review.
    Wife filed a petition for rehearing, urging the appellate court to reconsider its finding that her appeal of the Decree had been filed out of time. Wife's petition informed COCA that it had failed to consider 12 O.S. 2011 § 2006(A) when calculating the ten-day time limit for filing a motion for new trial under 12 O.S. 2011 § 653(A). On March 28, 2018, COCA unamimously denied Wife's request for reconsideration of the opinion. Wife filed a petition requesting certiorari review, which we granted. After reviewing the record and relevant statutes, we hold the trial judge erroneously concluded Wife's motion for new trial was untimely by failing to account for the statutory time computation requirements in 12 O.S. 2011 § 2006(A).
    Standard of Review
    ¶5 When this Court is faced with a question of statutory interpretation, we apply a de novo standard of review. Legarde-Bober v. Okla. State Univ., 2016 OK 78, ¶ 5, 378 P.3d 562, 564. When reviewing a statute, the Court's primary goal is to determine the legislative intent through the "plain and ordinary meaning" of the statutory language. In re Protest of Hare, 2017 OK 60, ¶ 10, 398 P.3d 317, 319-20. We will only employ rules of statutory construction when legislative intent cannot be ascertained (e.g., in cases of ambiguity). Odom v. Penske Truck Leasing Co, 2018 OK 23, ¶ 18, 415 P.3d 521, 528. Our test for determining if a statute contains an ambiguity is whether its language is susceptible to more than one meaning. Am. Airlines, Inc. v. State ex rel. Okla. Tax Comm'n, 2014 OK 95, ¶ 33, 341 P.3d 56, 64. Applying these principles to the present case, we find no ambiguity in the plain words of the statutes.
    Analysis
    ¶6 The Oklahoma Legislature has vested litigants with the right to pursue relief from a final civil judgment by filing a motion within the specified period of time. Title 12 O.S. 2011 § 653 sets out the time limitations for bringing a motion seeking a new trial:
    A. Unless unavoidably prevented, an application for a new trial by motion, if made, must be filed not later than ten (10) days after the judgment, decree or appealable order prepared in conformance with Section 696.3 of this title has been filed. More than ten (10) days after the judgment, decree, or appealable order which conforms with Section 696.3 of this title has been filed, an application for a new trial by petition may be filed in conformance with the provisions of Section 655 of this title.
    B. If the moving party did not prepare the judgment, decree, or appealable order, and Section 696.2 of this title required a copy of the judgment, decree, or appealable order to be mailed to the moving party, and the court records do not reflect the mailing of a copy of the judgment, decree, or appealable order to the moving party within three (3) days, exclusive of weekends and holidays, after the filing of the judgment, decree, or appealable order, the motion for new trial may be filed no later than ten (10) days after the earliest date on which the court records show that a copy of the judgment, decree, or appealable order was mailed to the moving party.
    C. A motion for new trial filed after the announcement of the decision on all issues in the case but before the filing of the judgment or decree shall be deemed filed immediately after the filing of the judgment or decree.
    The Decree of Dissolution reflected service on both parties the same day it was filed. Thus, under § 653(A), Wife had ten (10) days from June 30, 2016, to file a motion seeking a new trial. Reading this provision alone would establish a deadline of July 10, 2016; however, the temporal constraints in § 653(A) must be read in harmony with 12 O.S. 2011 § 2006(A). See Rogers v. Quiktrip Corp., 2010 OK 3, ¶ 11, 230 P.3d 853, 859 (noting "different provisions must be construed together to effect a harmonious whole and give intelligent effect to each").
    ¶7 Section 2006(A)(1) reads as follows:
    In computing any period of time prescribed or allowed by this title , by the rules of any court of this state, or by order of a court of this state, the day of the act, event, or default from which the designated period of time begins to run shall not be included . The last day of the period so computed shall be included, unless it is a legal holiday as defined by Section 82.1 of Title 25 of the Oklahoma Statutes or any other day when the office of the court clerk does not remain open for public business until the regularly scheduled closing time, in which event the period runs until the end of the next day which is not a legal holiday or a day when the office of the court clerk does not remain open for public business until the regularly scheduled closing time. Except for the times provided in Sections 765, 990.3, 1148.4, 1148.5, 1148.5A, and 1756 of this title, when the period of time prescribed or allowed is less than eleven (11) days, intermediate legal holidays and any other day when the office of the court clerk does not remain open for public business until the regularly scheduled closing time, shall be excluded from the computation . (emphasis added).
    Because the time limit prescribed by § 653(A) is only ten-days, weekends, legal holidays, and days when the court clerk is either closed or closes early, are required to be omitted when computing the statutory deadline for filing a motion for new trial.
    ¶8 The Christian Decree was filed on Friday, June 30, 2016. Under § 2006(A) the date of filing is excluded when establishing Wife's deadline. In addition, a total of five (5) days must be excluded from the computation-July 2-3, 2016 (Saturday and Sunday), the Fourth of July holiday, and July 9-10, 2016 (Saturday and Sunday). When these days are omitted from the calculation, Wife's deadline for filing a motion for new trial under § 653(A) was Friday July 15, 2016, the date Wife filed her motion. Applying this principle to the present case, there is no other conclusion to reach but to find the motion for new trial was timely filed. The trial judge should have afforded Wife a full and fair opportunity to present the issues raised in her motion and its attachments.
    Conclusion
    ¶9 Because the trial court concluded Wife's motion was untimely, we reverse the order denying her motion for new trial and vacate the opinion of COCA. The matter is remanded to the trial court to proceed in a manner consistent with this opinion.
    TRIAL COURT'S ORDER DENYING MOTION FOR NEW TRIAL IS REVERSED; COCA OPINION VACATED; MATTER REMANDED TO THE TRIAL COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION
    ¶10 Combs, C.J., Gurich, V.C.J., Kauger, Winchester, Edmondson, Colbert, Wyrick, Darby, JJ., concur;

      Order Denying Motion for New Trial, Orig. Rec., at 1159. The trial court also summarily ruled Wife's motion lacked merit, without affording a full and fair opportunity to address the issues raised in the motion and its attachments.

      Opinion, at 941-43 (COCA Div. IV, Jan. 22, 2018).

   ¶11 Reif, J., not participating.


author: COMBS, J.:

text:
    In the MATTER OF the REINSTATEMENT OF Carol Rose GOFORTH to Membership in the Oklahoma Bar Association and to the Roll of Attorneys
    SCBD 6633
    Supreme Court of Oklahoma.
    FILED January 23, 2019
    Carol Rose Goforth, Petitioner/Pro Se.
    Stephen L. Sullins, Assistant General Counsel, Oklahoma Bar Association, Oklahoma City, Oklahoma, for Respondent.
   COMBS, J.:

¶ 1 On April 4, 2018, the Petitioner, Carol Rose Goforth, filed her Petition for Reinstatement requesting she be readmitted as a member of the Oklahoma Bar Association (OBA) pursuant to Rule 11, Rules Governing Disciplinary Proceedings, 5 O.S. 2011, Ch. 1, App. 1-A (RGDP). The record reflects the Petitioner graduated from the University of Arkansas School of Law in 1984 and was admitted to practice law in Oklahoma on October 18, 1984. She resided in Tulsa, Oklahoma where she worked for the law firm Doerner, Stuart, Saunders, Daniel and Anderson from October 18, 1984, through May 1, 1989. On May 15, 1989, she moved to Newark, New Jersey to accept a full-time teaching position at Seton Hall School of Law. She remained there until the summer of 1993 when she moved to West Fork, Arkansas to accept a full-time teaching position at the University Of Arkansas School Of Law in Fayetteville. She is currently a University Professor and teaches a range of business law, and practical transactional skills classes with a focus on corporations, unincorporated entities, securities regulation and transactional practice skills. The record indicates she has not been licensed to practice law in any other state.

¶ 2 On July 19, 1990, Petitioner was suspended from membership in the OBA for failure to pay membership dues for the year 1990. One year later, this Court ordered her name stricken from the OBA membership rolls. After filing her petition the Professional Responsibility Tribunal (PRT) held a hearing pursuant to Rule 6, RGDP. The Petitioner testified she regretted letting her bar license lapse but her career has been focused solely on teaching and she was even discouraged from retaining her license. She explained the law school faculty was divided between the higher paid doctrinal course teachers and the licensed, sometimes adjunct teachers, who were regarded as clinical or practical teachers. She was encouraged not to be regarded as a clinical or practical teacher and therefore she let her license lapse. At the time, there was no benefit in keeping her law license and it appeared even detrimental to her career. She also testified that she relied upon the letter sent to her on September 12, 1991, from the OBA. The letter notified her that her name had been stricken from the roll of attorneys. The last paragraph of the letter also stated the letter may be disregarded if she had no intention to practice law in Oklahoma in the future.

¶ 3 The Petitioner's educational philosophy has changed over the years. She now believes there is a real need to provide law students with transactional skills training. Her ultimate goal is to expand the legal education at the University of Arkansas School of Law. She intends to initiate a supervised law clinic for upper-level law students interested in working with entrepreneurial clients. This will likely include accepting pro bono clients in the state of Arkansas. She will need to be licensed in Arkansas in order to reach this goal. After reinstatement of her Oklahoma license she will pursue her Arkansas license through reciprocity. Her goal is not to practice law in Oklahoma nor will she practice law in Arkansas for profit. Any clients taken will be on a pro bono basis in an academic setting. Her desire for reinstatement lies purely with helping her students develop transactional skills to enhance their education.

¶ 4 The PRT unanimously recommends the Petitioner be reinstated. It found by clear and convincing evidence the Petitioner had shown she possesses good moral character sufficient to be admitted to the OBA, she possesses competence in the learning of the law required for readmission, and she has not engaged in the unauthorized practice of law. The PRT also recommends the Petitioner should pay all fees and expenses of the investigation, including the cost of the original and one copy of the transcript as well as requiring her to obtain twelve hours of continuing legal education and payment of her bar dues for the year in which she is reinstated. It did not recommend the Petitioner take and successfully pass the regular bar examination given by the Board of Bar Examiners of the OBA. The Respondent, OBA, waived the filing of its answer brief and recommended the adoption of the PRT's findings.

STANDARD OF REVIEW

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

At the conclusion of the hearing held on the petition for reinstatement, the Trial Panel of the Professional Responsibility Tribunal shall file a report with the Supreme Court, together with the transcript of the hearing. Said report shall contain specific findings upon each of the following:
....
(c) Whether or not the applicant possesses the competency and learning in the law required for admission to practice law in the State of Oklahoma, except that any applicant whose membership in the Association has been suspended or terminated for a period of five (5) years or longer, or who has been disbarred, shall be required to take and successfully pass the regular examination given by the Board of Bar Examiners of the Oklahoma Bar Association. Provided, however, before the applicant shall be required to take and pass the bar examination, he shall have a reasonable opportunity to show by clear and convincing evidence that, notwithstanding his long absence from the practice of law, he has continued to study and thus has kept himself informed as to current developments in the law sufficient to maintain his competency. If the Trial Panel finds that such evidence is insufficient to establish the applicant's competency and learning in the law, it must require the applicant to take and pass the regular bar examination before a finding as to his qualifications shall be made in his favor.

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

ANALYSIS

I. Moral Fitness

¶ 6 Except for her suspension in 1990 for failure to pay dues, the record is silent as to any disciplinary actions taken against the Petitioner. Eight letters were admitted as evidence which strongly supported a finding that Petitioner possessed good moral character. These letters were written by various deans and professors of the universities where she has worked as well as members of the bar. Testimony at the hearing also supported Petitioner's good moral character. No contrary evidence was presented. The PRT found Petitioner had shown by clear and convincing evidence she possessed the good moral character to be readmitted to the OBA. After an examination of the record, we agree with this finding.

II. Professional Competence Sufficient for Reinstatement

¶ 7 Rule 11.5, RGDP, requires a petitioner for reinstatement to show they possess the competency and learning in the law required for admission. If they have been suspended or terminated for more than 5 years, there is a rebuttable presumption they will be required to retake the regular bar examination. In determining competency, our precedent has placed an emphasis on law-related work history following suspension. We have also considered other ways a petitioner has kept abreast of the law including the completion of continuing legal education courses and the reading of bar journals.

¶ 8 In In re Reinstatement of Bodnar , this Court noted some of our previous opinions had rejected a finding of competency when the petitioner's preparation had consisted mainly of completing only twelve to twenty-four hours of continuing legal education courses prior to petitioning for reinstatement. 2016 OK 12, ¶ 23, 367 P.3d 916. We held "if practicing attorneys must complete twelve hours a year, taking one class and reading the Oklahoma Bar Journal for three months is certainly insufficient to meet the burden for showing competency." Id. Our prior precedent addressed in the opinion included, In re Reinstatement of Turner, 1999 OK 72, 990 P.2d 861, and In re Reinstatement of Hardin, 1996 OK 115, 927 P.2d 545.

¶ 9 In Turner , a lawyer petitioned for reinstatement four years after his name was removed from the roll of attorneys for failure to pay his bar dues and failure to maintain his continuing legal education requirements. Turner , 1999 OK 72, ¶ 2, 990 P.2d 861. Mr. Turner had completed twenty-four hours of continuing legal education three years prior to filing his petition. Id. ¶ 10. He also contended he had read the Oklahoma Bar Journal, as well as other legal publications. Id. We held, Mr. Turner failed to prove by clear-and-convincing evidence he possessed the requisite legal skills for reinstatement. Id. ¶ 20. This Court also refused to give any weight to his work experience after his suspension because Mr. Turner had been blatantly practicing law without a license. Id.

¶ 10 In Hardin , a lawyer resigned from the Oklahoma Bar Association in 1990 pending disciplinary proceedings. Hardin , 1996 OK 115, ¶ 1, 927 P.2d 545. In 1995, he petitioned for reinstatement. Mr. Hardin presented evidence to support his competency in the law. His evidence consisted of reading the Oklahoma Bar Journal and taking eighteen hours of continuing legal education courses, all in the year preceding the filing of his petition. Id. ¶ 6. We held he failed to prove by clear and convincing evidence he now possessed the requisite legal skills to be reinstated. Id. ¶ 12.

¶ 11 By contrast, other opinions have given great weight to a petitioner's work experience and approved reinstatement even though the petitioner had not completed many hours of continuing legal education. In In re Reinstatement of Jones , a seasoned lawyer resigned in 1997 during disciplinary proceedings and petitioned for reinstatement in 2004. 2006 OK 33, ¶¶ 1, 6, 142 P.3d 380. After her resignation, she took various non-legal jobs. Id. ¶ 11. The record reflects she completed almost twenty hours of continuing legal education the year prior to filing her petition. Id. ¶ 12 ; Brief in Support of Reinstatement, p. 7 (filed December 12, 2005; SCBD 4961). She also read the Oklahoma Bar Journal over the two years before filing her petition. Id. This Court noted over the "past year" she had received hands-on supervised legal experience. Jones , 2006 OK 33, ¶¶ 11-12, 142 P.3d 380. We held, she had shown her competence and learning in the law to qualify her for readmission without retaking the bar examination. Id. ¶ 12.

¶ 12 In another case, a lengthy absence from the practice of law did not prevent reinstatement when the lawyer continued taking continued legal education courses and their non-legal work experience was considered. In In re Reinstatement of Gill , a lawyer was licensed to practice law in Oklahoma in 1979 and was later suspended for failure to pay dues in 1983. 2016 OK 61, ¶¶ 1, 2, 376 P.3d 200. She was also licensed in 1978 to practice law in California and did so from 1981 through 1999. Gill, 2016 OK 61, ¶ 1, 376 P.3d 200. From 2001 through 2013, she worked for an urban land use planning company. Id. ¶ 8. She placed her California bar license on inactive status in 2002, but continued to take continuing legal education courses while working for the company. Id. ¶ 7-8. She was not practicing law for the company, however, her duties included drafting and managing contracts, assisting the management of the company's legal teams and performing work concerning environmental compliance. Id. ¶ 8. In 2014, she moved back to Oklahoma and performed clerical and administrative tasks as well as supervised legal research for a law firm. Id. ¶ 11-12. The following year she petitioned for reinstatement. Id. ¶ 1. Since 2015 she had also completed twenty-four hours of continuing legal education. Id. ¶ 14. The PRT recommended reinstatement and this Court agreed finding she possessed the competency and learning in the law required for reinstatement without re-taking the bar examination. Id. ¶ 22.

¶ 13 In the present matter, the Petitioner has contributed to her legal community in many ways including serving as the Arkansas Liaison to the Corporate Laws Committee of the American Bar Association (ABA) and serving as an Official Observer to the Uniform Limited Liability Company Act Draft Committee of the Uniform Law Commission. Since leaving Oklahoma in 1989, she has been continuously engaged in the full-time teaching of law at ABA accredited law schools. The Petitioner was promoted to University Professor at the University of Arkansas School of Law in 2012. Prior to her promotion, she worked as a professor of law, associate dean and acting dean at the university. During this time, the Petitioner also wrote three books/chapters and forty-four distinct journal articles on a variety of legal topics. In addition, she attended numerous conferences and presentations throughout the years but she did not keep track of how many hours of continuing legal education credits she would have been eligible to receive.

¶ 14 Over the entirety of the Petitioner's time teaching there was only one year in which she did not teach at least six credit hours at an ABA accredited law school. Her teaching load for most years was between eleven and thirteen credit hours. Under Rule 7 of the Rules for Mandatory Continuing Legal Education (MCLE), six hours of continuing legal education credit may be earned for each semester hour taught at an ABA accredited law school. Rule 7, Reg. 3.4, MCLE, 5 O.S. 2011, Ch. 1, App. 1-B. Her regular teaching schedule therefore amounted to an equivalent continuing legal education of between sixty-six to seventy-eight hours each year. The Petitioner's continuing legal education equivalency clearly exceeds the annually required twelve hours for licensed lawyers in Oklahoma.

¶ 15 The PRT found the Petitioner possessed the required competence and learning of the law and recommended her reinstatement. We agree with this recommendation. The Petitioner's extensive contributions and work experience qualify her to be readmitted to the practice of law in Oklahoma without the necessity of re-taking the regular bar examination.

III. Unauthorized Practice of Law

¶ 16 Rule 11.1, RGDP provides a mechanism for determining whether a petitioner has engaged in the unauthorized practice of law. Paragraph (a) of the rule requires the petitioner to submit an affidavit, attached to the petition for reinstatement, from each court clerk of the several counties in which he or she resided after suspension or termination of the right to practice law, establishing the petitioner has not practiced law in their respective courts during that period. Petitioner submitted her affidavit wherein she attests to not having engaged in the unauthorized practice of law since her suspension. The affidavit also states she has contacted the counties in New Jersey and in Arkansas where she resided but they are unable to provide an affidavit affirming she has not practiced law in those counties because they have no information concerning who has appeared as counsel. She provided an affidavit from Tulsa County, Oklahoma wherein the Court Clerk attests the Petitioner has not appeared before any judge in the county since her suspension. She also provided a letter from the Arkansas Supreme Court confirming she has never been reported to the Unauthorized Practice of Law Committee in that State. Rhonda Langley, the Investigator for the General Counsel's Office of the Oklahoma Bar Association, testified at the June 19, 2018, PRT hearing. She explained her process for determining whether a petitioner has engaged in the unauthorized practice of law. She found no cause for concern.

¶ 17 Petitioner attested to all her activities since her suspension. Her activities included being asked to participate in a corporation that was in the process of being formed. She was offered the title of Vice President of Law and Policy. The position was not to be compensated and her primary role was to advocate for responsible regulation in the crypto currency community. She confirmed that her role would be outside of the corporation's legal department and she was to consult with the corporation's counsel when requested. In a May 10, 2018, letter to the bar investigator, she indicated she was not comfortable in doing all the duties the corporation was wanting her to do without having a license to practice law and this concern had been one of her earlier reasons for pursuing reinstatement. However, the letter also informed the investigator that this business has now folded and therefore was no longer a driving reason for pursuing reinstatement. Since 1998, she has also performed pro bono work for a local Legal Services office. Her work is uncompensated and she has no interaction with the office's clients. Her work consists of providing research and consultation to the licensed attorneys who work there.

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

MCLE, BAR DUES, AND APPLICATION TO ASSESS COSTS

¶ 19 An affidavit from the OBA's MCLE Administrator states the Petitioner does not owe any MCLE credit or any MCLE fees. An affidavit from the OBA's Director of Administration states the Petitioner will owe only her current membership dues of two hundred and seventy-five dollars ($275.00) for the year of her reinstatement. The OBA filed an Application to Assess Costs, pursuant to Rule 11.1 (c), RGDP. The application requests the Petitioner pay, on a date certain, the amount of two hundred and thirty-two dollars and ninety-three cents ($232.93) for the expenses related to this investigation. It indicates the Petitioner has already been invoiced directly for the costs of the transcript of the proceedings. The record also reflects no payments have ever been expended from the Clients' Security Fund on the Petitioner's behalf.

CONCLUSION

¶ 20 The Petitioner has complied with the rule-mandated requirements for reinstatement. We hold the Petitioner has met her burden of proof and established by clear and convincing evidence her eligibility for reinstatement without examination. Within thirty days of the date of this opinion Petitioner shall pay the costs incurred in this proceeding in the amount of two hundred and thirty-two dollars and ninety-three cents ($232.93) as required by Rule 11.1 (c), RGDP. She shall also be required to pay the current year's (2019) OBA membership dues. Upon payment of the costs assessed and her 2019 membership dues, the Petitioner shall be reinstated to membership in the Oklahoma Bar Association and her name shall be added to the roll of attorneys. Following reinstatement she shall complete mandatory continuing legal education in the same manner as other members of the bar.

PETITION FOR REINSTATEMENT IS GRANTED; PETITIONER IS ORDERED TO PAY COSTS

¶ 21 ALL JUSTICES CONCUR

      Ex. 27, Jt. Hearing Exhibits, for the PRT hearing held June 19, 2018; Supreme Court Order S.C.B.D. 3693 (July 19, 1990).

      Ex. 28, Jt. Hearing Exhibits, for the PRT hearing held June 19, 2018; Supreme Court Order S.C.B.D. 3693 (September 10, 1991).

      Tr. at 64, 57-58, In re Reinstatement of: Carol Rose Goforth (SCBD #6633; June 19, 2018).

      Id. at 57-58.

      Id. at 58.

      Id.

      Id. at 57.

      Ex. 29, Jt. Hearing Exhibits, for the PRT hearing held June 19, 2018.

      Id.

      Tr. at 58, In re Reinstatement of: Carol Rose Goforth (SCBD #6633; June 19, 2018).

      Petitioner's Brief in Support of Reinstatement, filed November 20, 2018, p.5.

      Id.

      Tr. at 68, In re Reinstatement of: Carol Rose Goforth (SCBD #6633; June 19, 2018).

      Id. at 59-60.

      Id. at 63, 66.

      Id. at 63; Report of the Trial Panel , filed November 2, 2018, p.2.

      Tr. at 62, 68-69, In re Reinstatement of: Carol Rose Goforth (SCBD #6633; June 19, 2018); Petitioner's Brief in Support of Reinstatement , filed November 20, 2018, pp.9-10.

      Exs. 1-8, Jt. Hearing Exhibits, for the PRT hearing held June 19, 2018.

      Tr. at 11, 12, 18, 21-22, 24, 39, In re Reinstatement of: Carol Rose Goforth (SCBD #6633; June 19, 2018).

      Petition for Reinstatement , filed April 4, 2018, Ex. C., Affidavit, p.7.

      Id. , Ex. A., Affidavit, p.1.

      Id. , Ex. C., Affidavit, p.1.

      Id.

      Id. at pp.3-6.

      Petitioner's Brief in Support of Reinstatement , filed November 20, 2018, p.12.

      Id.

      Id.

      Ex. 16, Jt. Hearing Exhibits, for the PRT hearing held June 19, 2018.

      Id.

      Ex. 19, Jt. Hearing Exhibits, for the PRT hearing held June 19, 2018.

      Ex. 20, Jt. Hearing Exhibits, for the PRT hearing held June 19, 2018.

      Tr. at 75, In re Reinstatement of: Carol Rose Goforth (SCBD #6633; June 19, 2018).

      Id. at 79.

      Ex. 17, Jt. Hearing Exhibits, for the PRT hearing held June 19, 2018.

      Ex. 18, Jt. Hearing Exhibits, for the PRT hearing held June 19, 2018.

      Ex. 17, Jt. Hearing Exhibits, for the PRT hearing held June 19, 2018.

      Ex. 9, Jt. Hearing Exhibits, for the PRT hearing held June 19, 2018.

      Ex. 10, Jt. Hearing Exhibits, for the PRT hearing held June 19, 2018.


author: HUDSON, JUDGE: KUEHN, J., SPECIALLY CONCURRING: ROWLAND, JUDGE, SPECIALLY CONCURRING:

text:
    STATE of Oklahoma, Appellant, v. Myratia COOPER, Appellee.
    Case No. S-2017-1150
    Court of Criminal Appeals of Oklahoma.
    FILED December 13, 2018
   HUDSON, JUDGE:

¶1 On June 23, 2017, Myratia Cooper (hereinafter "Appellee") was charged in the District Court of Pittsburg County, Case No. CF-2017-482, with one count of Larceny of Domestic Animal. Appellee was bound over at preliminary hearing on this count. Appellee thereafter filed a motion to dismiss alleging that 21 O.S.Supp.2016, § 1716(B), the statute upon which this charge was based, was unconstitutional because it was duplicative of parallel statutory provisions declaring dogs as personal property subject to the general prohibition against larceny of personal property. 21 O.S.2011, §§ 1717 -18. Appellee argued that Section 1716(B) was unconstitutional because "the crime for which the Defendant has been charged is vague and impossible for the ordinary person to understand the penalty [that] he or she may face or the level of proof that is required to convict."

¶2 The State filed a responsive pleading opposing the motion to dismiss and a hearing was held on the matter November 1, 2017. At the conclusion of this hearing, the Honorable Tim Mills, Associate District Judge, granted the motion to dismiss, finding Section 1716(B) unconstitutional. Judge Mills then ordered the case stricken from the upcoming jury trial docket, formally dismissed the case and exonerated Appellee's bond.

¶3 Appellant, the State of Oklahoma, now appeals. We exercise jurisdiction pursuant to 22 O.S.2011, § 1053.1 which provides for an automatic appeal of judgments holding statutes unconstitutional in criminal cases. For the reasons discussed herein, we reverse the district court's ruling, reinstate Appellee's case and remand for trial. See State v. Johnson , 1992 OK CR 72, ¶¶ 3-5, 877 P.2d 1136, 1142-43 (opinion on rehearing).

BACKGROUND

¶4 The State's evidence at preliminary hearing showed that on June 21, 2017, Appellee stole a registered miniature Aussie female puppy from the back of a flatbed truck parked in front of the McAlester tag agency. Kassandra Scott, the dog's owner, had tied the dog to the back of the truck frame using a leash. The dog was in the shade and secured to the back of the truck, which had a horse trailer attached, when Scott went inside the tag agency to conduct her business.

¶5 When she returned, Scott discovered her dog was gone. Only the dog's unlatched leash remained. Scott estimated being inside the tag agency for only five or six minutes. Scott testified that she did not give anyone permission to take the animal and that the dog was not able to unlatch the leash on its own. The dog was valuable: Scott purchased the animal for $900.00 but an area breeder had recently offered $1,500.00 for the dog.

¶6 Video footage from the tag agency's surveillance camera showed a woman getting out of a truck, crawling onto the flatbed and taking Scott's dog. Jeremy Busby, a master patrolman with the McAlester Police Department, viewed the video surveillance and received information about the location of the suspect's truck. Officer Busby proceeded to that location and, a few minutes after arriving, observed Appellee exiting her residence with the dog in tow.

¶7 When Officer Busby pulled alongside Appellee on the street, she began rapidly (and loudly) telling him that the dog had been abused. Officer Busby, however, observed no signs of abuse and returned the dog to Scott. Appellee later contacted the McAlester Police Department and complained about the dog's alleged abuse. This occurred roughly twenty-four (24) hours after Appellee took the dog.

ANALYSIS

¶8 The district court dismissed the Larceny of Domestic Animal charge against Appellee based upon its view that Title 21 O.S.Supp.2016, § 1716(B), the statute supporting the charge, conflicted with 21 O.S.2011, §§ 1717 and 1718. This ruling was premised upon defense counsel's argument that this conflict rendered Section 1716(B) unconstitutionally vague. Defense counsel argued-and the district court agreed-that these statutes could not co-exist without causing confusion concerning which penalty Appellee may face or the crime which she must defend against, thus resulting in a constitutional violation.

¶9 A challenge to the constitutionality of a statute is a question of law we review de novo . Weeks v. State , 2015 OK CR 16, ¶ 16, 362 P.3d 650, 654. In the present case, the district court's ruling was premised on the view that Section 1716(B) and Sections 1717 - 1718 proscribe the same conduct. The district court's interpretation of these statutes was wrong as a matter of law. See State v. Gilchrist, 2017 OK CR 25, ¶ 14, 422 P.3d 182, 185 (matters of statutory interpretation are reviewed de novo ).

¶10 To summarize, Oklahoma law contemplates two separate and distinct ways to prosecute the theft of a dog, i.e., either as a general larceny crime under §§ 1701, 1717 and 1718 or as a larceny of domestic animal charge under § 1716(B). The district court erroneously proceeded in this case as though the larceny of domestic animal statute proscribes essentially the same conduct as the general larceny statutes. Beyond the obvious differences in punishment, cf. 21 O.S.Supp.2016, § 1705 (punishment for grand larceny); 21 O.S.2011, § 1706 (punishment for petit larceny); 21 O.S.Supp.2016, § 1716(B) (punishment for larceny of dog), the two statutory regimes have different origins, proscribe different conduct, have different elements and thus require different proof for conviction. This case presents an issue of statutory interpretation relating to these larceny crimes. When the differences in these larceny crimes are understood, there is no constitutional vagueness problem arising from Appellee's prosecution under Section 1716(B).

¶11 We have held:

Statutes are to be construed to determine the intent of the Legislature, reconciling provisions, rendering them consistent and giving intelligent effect to each. Statutes are to be construed according to the plain and ordinary meaning of their language. When interpreting statutory provisions, our paramount concern is to give effect to the Legislature's intention. We consider the plain and ordinary language of a statute, other statutes involving the same or similar subjects, and the natural or absurd consequences of any particular interpretation. We try to reconcile the language of general statutes with more specific statutory provisions, to give effect to each.

Moss v. Okla. Dept. of Corrections , 2016 OK CR 23, ¶ 18, 403 P.3d 379, 383 (internal citations and quotations omitted). Section 1716(B) makes it a crime to "steal any dog, sheep or goat[.]" This provision is part of a specialized larceny statute addressing the theft of domestic animals and implements of husbandry. This crime originated in territorial days to punish professional thieves who stole cattle from large herds-particularly in the western counties-as well as other domestic animals "from the owners thereof with the intent to appropriate the same to their own use." Cox v. Terr. , 1909 OK CR 104, 2 Okl.Cr. 668, 675, 104 P. 378, 381. The general larceny statutes were viewed as inadequate to address this widespread problem and "[t]he legislature deemed this crime of stealing domestic animals a more serious offense than grand larceny." Hughes v. Terr. , 1899 OK 23, ¶ 7, 8 Okla. 28, 56 P. 708, 710. In 2002, the Legislature added dogs to the list of domestic animals subject to the protections of Section 1716. See 21 O.S.Supp.2002, § 1716.

¶12 Under the current version of the statute, the State is not required to prove the value of the property stolen in order to obtain a conviction. Additionally, "[t]he word 'steal' as used in Section 1716 includes all the elements of larceny as that offense existed at common law. " Lasater v. State , 1987 OK CR 46, ¶ 5, 734 P.2d 317, 318 (emphasis added). Thus, "stealing, as here defined, is the wrongful or fraudulent taking and removing of personal property, by trespass, with a felonious intent to deprive the owner thereof, and to convert the same to his, the taker's own use. " Sneed v. State , 1937 OK CR 52, 61 Okl.Cr. 96, 102, 65 P.2d 1245, 1247 (emphasis added). Accord Lasater , 1987 OK CR 46, ¶ 5, 734 P.2d at 318. We have explained that the "intent to steal" element for this crime "encompasses two concepts: intent to deprive the owner permanently; and intent to convert to the taker's own use. " Grissom v. State , 2011 OK CR 3, ¶ 53, 253 P.3d 969, 987-88 (emphasis added).

¶13 Section 1716(B) stands in stark contrast to the general larceny statutes set forth in Title 21. Title 21 O.S.2011, § 1701 defines larceny as "the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof." We have interpreted Section 1701 to require a showing of intent to deprive the owner of the property permanently. See Grissom , 2011 OK CR 3, ¶ 49, 253 P.3d at 987 ; Dean v. State , 1988 OK CR 258, ¶ 5, 764 P.2d 1355, 1357 ; Carson v. State , 1925 OK CR 296, 30 Okl.Cr. 438, 439-40, 236 P. 627, 628 ; Dickson v. State , 1924 OK CR 316, 28 Okl.Cr. 378, 379-80, 231 P. 315 ; OUJI-CR (2d) 5-93 (2003 Supp).

¶14 The general larceny crime is also divided into grand larceny and petit larceny depending upon the value of the property taken and whether it was taken from the person of another. 21 O.S.2011, § 1703 (larceny is divided into two degrees: grand larceny and petit larceny); 21 O.S.Supp.2016, § 1704 (grand larceny is larceny committed when the value of the property taken exceeds $1,000.00 or when such property, although not of value exceeding $1,000.00 is taken from the person of another; larceny in all other cases is petit larceny).

¶15 Title 21 O.S.2011, § 1717 further provides that "All animals of the dog kind, whether male or female, shall be considered the personal property of the owner thereof, for all purposes." Title 21 O.S.2011, § 1718 states that:

The taking of personal property of the kind defined in Section 1717 of this title, accomplished by fraud or stealth, and with the intent to deprive another thereof, is hereby defined as larceny and punishable in the same manner and to the same degree as in larceny of other descriptions of property .

Id . (emphasis added). In other words, the theft of a dog may be prosecuted under the general larceny statute, i.e., Section 1701, as larceny of personal property.

¶16 So what's the difference between prosecuting the theft of a dog under the general larceny statute as opposed to a prosecution initiated under the larceny of domestic animal statute? Our case law provides the answer. We have recognized that the general larceny statute contained in Section 1701 gives the word "larceny" a much broader meaning than at common law. This distinguishes the general larceny crime from the requirements for larceny of domestic animal set forth in Section 1716 which largely mirror the common law definition of larceny:

"[T]he Legislature has modified the [common law] meaning of the word 'larceny' as used in [ Section 1701 ], so that the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof, is larceny, regardless of whether or not it was taken for the purpose of ... converting it to the use of the taker. Therefore while stealing and larceny at common law were synonymous terms, our statute has given to the word "larceny" a much broader meaning than it then had; while "steal" or "stealing" has not been defined by our statutes, and must be construed according to its common-law meaning.

Sneed , 61 Okl.Cr. at 102, 65 P.2d at 1247-48 (emphasis added).

¶17 Thus, to support a conviction under Section 1716, "it is necessary to allege and prove the ownership of the animal stolen, and a felonious intent on the part of the taker to deprive the owner thereof and to convert the same to his, the taker's, own use ." Taylor v. State , 1952 OK CR 15, 95 Okl.Cr. 98, 111, 240 P.2d 803, 817 (emphasis added). Consistent with this interpretation, we have held that the elements of the crime of Larceny of Domestic Animals are 1) trespassory; 2) taking; 3) carrying away; 4) domestic animals; 5) of another; 6) with the intent to steal . Lasater , 1987 OK CR 46, ¶ 5, 734 P.2d at 318 (emphasis added). The general crime of larceny, by contrast, refers to the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof permanently, regardless of whether or not it was taken for the purpose of converting it to the use of the taker . This interpretation is consistent with the maxim that "[t]he legislature is presumed not to do a vain act[,]" Johnson , 1992 OK CR 72, ¶ 3, 877 P.2d at 1142 (opinion on rehearing), and with the rules of statutory construction discussed earlier. When these provisions are construed in this manner, "they are in perfect harmony[.]" Sneed , 61 Okl.Cr. at 102, 65 P.2d at 1247-48.

¶18 To summarize, Larceny of Domestic Animals as defined by 21 O.S.2011, § 1716 is a separate and distinct crime from the general crime of Larceny set forth in Section 1701, et seq . The requirements for each crime are well-established in our case law interpreting the statutory language for both crimes. "A statute is not unconstitutionally vague if reasonable people would know their conduct is at risk." Weeks , 2015 OK CR 16, ¶ 18, 362 P.3d at 655. In the present case, we easily find that 21 O.S.2011, § 1716 gives fair notice of the proscribed activity such that the public would know what conduct is prohibited. The statute is thus not unconstitutionally vague. See Turner v. State , 1976 OK CR 108, ¶ 12, 549 P.2d 1346, 1350 (holding that Section 1716 is not unconstitutionally vague); Mooney v. State , 1973 OK CR 450, ¶ 9, 516 P.2d 1364, 1367 (same). Appellee failed to meet her burden to prove the statute is unconstitutional. See Weeks , 2015 OK CR 16, ¶ 17, 362 P.3d at 654.

¶19 At most, Appellee's constitutional challenge implicates the State's authority to select which charge is filed against her. Appellee ignores, however, that the State has broad discretion regarding which crime to charge. Childress v. State , 2000 OK CR 10, ¶ 18, 1 P.3d 1006, 1011 ("The decision regarding which criminal charge to bring lies within the wide parameters of prosecutorial discretion."). The Supreme Court has held that "when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants." United States v. Batchelder , 442 U.S. 114, 123-24, 99 S.Ct. 2198, 2204, 60 L.Ed.2d 755 (1979). This is so even where the prosecutor is influenced in his or her charging decision by the penalties available upon conviction. Id. , 442 U.S. at 125, 99 S.Ct. at 2205. Accord State v. Haworth , 2012 OK CR 12, ¶¶ 13-15, 283 P.3d 311, 316-17. Appellee has not alleged the type of discriminatory purpose or intent from the charging decision that would allow us to set aside on constitutional grounds the charge presented here. The district court thus erred when it granted Appellee's motion to dismiss the case.

DECISION

¶20 For the above and foregoing reasons, we hold that 21 O.S.2011, § 1716 is constitutional and that the district court erred in sustaining Appellee's motion to dismiss. Accordingly, we REVERSE the district court's ruling, REINSTATE Appellee's case and REMAND for trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch.18, App. (2018), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

LUMPKIN, P.J.: SPECIALLY CONCUR

LEWIS, V.P.J.: CONCUR IN RESULTS

KUEHN, J.: SPECIALLY CONCUR

ROWLAND, J.: SPECIALLY CONCUR

LUMPKIN, PRESIDING JUDGE: SPECIALLY CONCURRING

¶1 I concur but write separately to further explain aspects of the analyses set forth in the opinion.

¶2 I compliment my colleague for going the extra mile and dissecting the provisions of each of our larceny statutes. However, as I have set forth before, the U.S. Supreme Court has set out the preference to analyze constitutionality claims not facially but as applied.

¶3 This Court reviews constitutional challenges to the face of a statute under a de novo standard of review. Weeks v. State , 2015 OK CR 16, ¶ 16, 362 P.3d 650, 654 (performing de novo review where statute challenged on its face as opposed to an as applied challenge). However, "[f]acial challenges are disfavored." Washington State Grange v. Washington State Republican Party , 552 U.S. 442, 450, 128 S.Ct. 1184, 1191, 170 L.Ed.2d 151 (2008). Instead, the preference is to employ an as-applied analysis. Ayotte v. Planned Parenthood of N. New England , 546 U.S. 320, 328-29, 126 S.Ct. 961, 967, 163 L.Ed.2d 812 (2006) ("[T]he 'normal rule' is that 'partial, rather than facial, invalidation is the required course,' such that a 'statute may ... be declared invalid to the extent that it reaches too far, but otherwise left intact.' ") (quoting Brockett v. Spokane Arcades, Inc ., 472 U.S. 491, 504, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985) ).

¶4 The opinion identifies the true issue in this case and that is prosecutorial discretion in the election of which statute to use as a basis for a criminal charge. The Oklahoma Legislature recognized and provided for the reconciliation of these types of decisions when it enacted 21 O.S. 2011, § 11 which allows only one charge when an act which can be prosecuted in optional ways is only allowed to be charged once. Merely having optional ways to file a charge does not impact the constitutionality of the statute.

KUEHN, J., SPECIALLY CONCURRING:

¶1 I concur in the Majority's thorough opinion. I write to emphasize my agreement with the Majority's decision to review this facial challenge to the constitutionality of a statute de novo under Weeks v. State , 2015 OK CR 16, ¶ 16, 362 P.3d 650, 654. Appellee's claim that the statute was vague is unquestionably a facial constitutional challenge. Courts, including this Court, may wish to limit our analysis in individual cases to avoid speculation and broadly deciding facial challenges. Washington State Grange v. Washington State Republican Party , 552 U.S. 442, 450-51, 128 S.Ct. 1184, 1190-91, 170 L.Ed.2d 151 (2008). However, where a statute is clearly challenged on its face-where under no set of circumstances could the statute be valid-that is the precise issue we must decide, and our review is de novo . Id ., 552 U.S. at 449, 128 S.Ct. at 1190 ; Weeks , 2015 OK CR 16, ¶ 16, 362 P.3d at 654. I commend the Majority for doing so.

ROWLAND, JUDGE, SPECIALLY CONCURRING:

¶1 I concur in Judge Hudson's thorough and erudite opinion and its comprehensive treatment of the terms "larceny" and "steal" as used in our statutes. I write to further stress the point that a statute is not unconstitutional or otherwise infirm simply because it punishes as a felony conduct which may also constitute a misdemeanor under a different statute, or vice-versa. See State v. Haworth, 2012 OK CR 12, ¶ 19, 283 P.3d 311, 318 (reversing trial court's dismissal for insufficient evidence where vehicular death could be charged as either felony manslaughter or misdemeanor negligent homicide); Ward v. State , 1981 OK CR 52, ¶ 11, 628 P.2d 376, 379 (rejecting an Equal Protection challenge based on fact that pointing a firearm may be charged as either a felony or misdemeanor). Furthermore, in 2016 the Oklahoma Legislature added Section 234 to Title 22 allowing prosecutors to charge all but a handful of felonies as misdemeanors, at their discretion and after consideration of several factors set forth in the statute.

¶2 Cooper's specific complaint in the district court was that 21 O.S.Supp.2016, § 1716(B) is unconstitutionally vague and the trial court agreed and granted her motion to dismiss the charge. "As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Weeks v. State , 2015 OK CR 16, ¶ 18, 362 P.3d 650, 655 (quoting Kolender v. Lawson , 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) ). There is nothing remotely vague about either of the statutes at issue here. Both prohibit snatching a dog which does not belong to you, and the fact that such conduct may constitute a felony or misdemeanor in no way changes the fact that "ordinary people can understand" that taking someone else's dog is against the law.

LEWIS, VICE PRESIDING JUDGE, CONCURRING IN RESULTS:

¶1 The Opinion reaches the correct result in finding that 21 O.S.2011, § 1716 is constitutional and that the district court erred in finding that it was not. The Opinion, however, engages in needless verbal and legal gymnastics to conclude that larceny of a dog as personal property, 21 O.S.2011, § 1717 -18, and larceny of a dog as a domestic animal, 21 O.S.Supp, § 1716(B), contain different elements. This does not make one of the statutes unconstitutional.

¶2 As the Opinion finally states, the State has discretion regarding which crime to charge even when an act violates more than one criminal statute and the two different criminal statutes provide for divergent penalties.

Childress , 2000 OK CR 10, ¶ 18, 1 P.3d at 1011 ; Haworth , 2012 OK CR 12, ¶¶ 13-15, 283 P.3d 311, 316-17.

¶3 Although I find that the correct result was reached, I find it unnecessary to delve into a complete scholarly article finding that stealing and larceny are different under Oklahoma statutes. I, therefore, concur in result only.

      The State is represented in this appeal by the Pittsburg County District Attorney's Office. On September 4, 2018, the Attorney General of Oklahoma filed an amicus curiae brief in support of the District Attorney's arguments in this case. However, Appellee failed to file a response brief with this Court in accordance with our Rules. See Rules 1.2(A)(3)(c) and 3.4(C), Rules of the Oklahoma Court of Criminal Appeals , Title 22, Ch.18, App. (2018). Several months after Appellee's brief was due we directed Appellee, through her counsel, to file an answer brief in this appeal within twenty (20) days of the date of our Order. See Order Directing Appellee To File Answer Brief And Notice To Attorney General Of Constitutional Challenge To Statute In This Case , No. S-2017-1150 (Okl. Cr., Lumpkin, P.J., Jul. 13, 2018) (unpublished). Instead of complying with this directive, Appellee's counsel filed a response brief that was again untimely and that did not substantially comply with our Rules for the formatting of appellate briefs. We ordered Appellee's response brief stricken, found that Appellee had waived her right to file a response brief and directed the case be submitted for decision. See Order Striking Brief of Appellee , No. S-2017-1150, (Okl.Cr., Aug. 15, 2018) (unpublished).

      Title 21 O.S.Supp.2016, § 1716(A) makes it a crime to "steal any horse, jackass, jennet, mule, cow, hog or implement of husbandry as defined in Section 1-125 of Title 47[.]"

      This portion of Grissom addressed the elements for the crime of Larceny of Automobile (21 O.S.2001, § 1720 ) which, like Larceny of Domestic Animals and Larceny of Domestic Fowls (21 O.S.2011, § 1719 ), uses the word "steal" as part of its statutory definition.

      Oddly, the uniform jury instruction committee recently eliminated the first element, i.e., "trespassory," from the definition of Larceny of Domestic Animals. See In re: Adoption of the 2014 Revisions to the Oklahoma Uniform Jury Instructions-Criminal (Second Edition) , 2014 OK CR 15, --- P.3d ----. The committee comments state that "[t]he distinction between stealing and larceny was eliminated by 21 O.S.2011, § 1730, which provides that they mean the same thing, and therefore, the element of 'trespassory' has been deleted from" the uniform instruction for Larceny of Domestic Animals. OUJI-CR (2d) 5-100, Committee Comments (2015 Supp.). Title 21 O.S. § 1730 was enacted in 1967 and, by its express terms, applies only to the crimes set forth in 21 O.S. § 1727 (Entering With the Intent to Steal Copper ) and 21 O.S. § 1728 (Possession, Receiving or Transporting Stolen Copper ). See Oklahoma Session Laws 1967, S.B. 388, ch. 105, §§ 1, 2, & 4, emerg. eff. April 24, 1967. Section 1730 thus did not eliminate the distinction between stealing and larceny with respect to Section 1716 as discussed above. Indeed, the Comments to the current uniform instruction for Section 1727 recognize this fact, stating that: "the word 'steal' as used in Section 1727 is defined as larceny under Sections 1701 and 1704 ; 'steal' does not have the meaning in Section 1727 that it has under Sections 1716, 1719, and 1720." OUJI-CR (2d) 5-105, Committee Comments.
      Although we have held that the word "steal" ordinarily needs no explanation in jury instructions, we have specifically approved of the following definitional explanation of this term: "Where the word 'steal' is used it means to take and carry away the property of another with the felonious intent to deprive the owner thereof, and to appropriate the same to one's own use." Darnell v. State , 1962 OK CR 23, ¶ 17, 369 P.2d 470, 473-74. OUJI-CR (2d) 5-106, by contrast, defines "Intent to Steal" as: "Purpose forever to deny the person in rightful possession of the use or value of property." This particular definition is not consistent with our holding today concerning the crime of Larceny of Domestic Animals but is consistent for use with the larceny crimes contained in Section 1727 and Section 1728.


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