author: LILE, Vice Presiding Judge.

text:
    2004 OK CR 20
    John David DUTY, Appellant, v. STATE of Oklahoma, Appellee.
    No. D 2002-1367.
    Court of Criminal Appeals of Oklahoma.
    April 23, 2004.

      James Bowen, Indigent Defense System, Sapulpa, OK, Attorneys for Defendant at trial.
    Jim Bob Miller, District Attorney, Richard Hull, Assistant District Attorney, McAlester, OK, Attorneys for the State at trial.
    James Bowen, Indigent Defense System, Sapulpa, OK, Attorneys for Appellant on appeal.
    W.A. Drew Edmondson, Attorney General of Oklahoma, David M. Brockman, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.
   OPINION

LILE, Vice Presiding Judge.

¶ 1 Appellant, John David Duty, was charged with First Degree Murder in violation of 21 O.S.2001, § 701.7, in Case No. CF-2002-243, in the District Court of Pittsburg County, on June 4, 2002. The State filed a Bill of Particulars alleging four aggravating circumstances: “the defendant was previously convicted of a felony involving the use or threat of violence to the person;” “the murder was especially heinous, atrocious or cruel;” “the murder was committed by a person while serving a sentence of imprisonment on conviction of a felony;” and “the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”

¶ 2 Duty indicated that he wished to enter a guilty plea to the crime and the Bill of Particulars; therefore, the Honorable Steven Taylor, District Judge, ordered a competency evaluation pursuant to Fluke v. State, 2000 OK CR 19, 14 P.3d 565, and Grasso v. State, 1993 OK CR 33, 857 P.2d 802. A physician at the Carl Albert Community Mental Health Center conducted an initial competency examination. The results of the evaluation conclude that Duty was competent.

¶ 3 After receiving the results of this examination, Duty’s counsel requested physicians from Eastern State Hospital complete an additional independent competency evaluation. The trial court granted the request, ordering that the evaluation answer the questions posed in 22 O.S.2001, § 1175.3 (E). After the evaluation, the physicians concluded that Duty was competent. The physicians, in a thorough report indicated that Duty understands that he is certain to receive the death penalty if he goes to trial and he understands the method of execution in Oklahoma. The report indicates that Duty understands his attorney’s role is to see that procedural issues are in order so that his desired sentence of death will be carried out.

¶ 4 Duty finds death a better option than being locked up for the rest of his life. The report indicates that Duty has never suffered from a mental disorder. However, the report indicates that if Duty were released he would be a danger to others because of his admitted belief that he would kill again. The report indicates that Duty understands that by entering a guilty plea he is waiving appeal rights.

¶ 5 After receiving the report, the trial court scheduled a post evaluation competency hearing. On October 28, 2002, a hearing has held. The trial court reviewed the competency evaluation reports after the parties stipulated to the results. Duty testified in his own behalf and was examined by the trial court. The trial court also questioned Duty’s counsel about Duty’s competence. The trial court concluded that Duty “is competent on all those issues and all the points raised by the statute involved and by the case law involved.”

¶ 6 After the hearing, the trial court proceeded to formal arraignment, and Duty entered his guilty plea to the crime before Judge Taylor. Judge Taylor conducted a thorough plea hearing and accepted the guilty plea finding that Duty understood the nature and consequences of his plea to the crime First Degree Murder and finding that there was sufficient factual basis for the plea. The trial court then allowed Duty to enter a guilty plea to the Bill of Particulars. The trial court accepted the plea after finding that Duty understood the consequences of the plea and after finding that there was sufficient factual basis for the aggravating circumstances. Judge Taylor set punishment at death. Duty indicated he understood his right to appeal and that he knew that this Court would review the sentence pursuant to mandatory sentence review.

¶ 7 Duty did not move to withdraw his plea; therefore, he has waived all but the statutorily mandated sentence review pursuant to 21 O.S.2001, § 701.13 and Rule 9.4, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2003). See Wallace v. State, 1995 OK CR 19, 893 P.2d 504, 510. This Court will determine “whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; and ... whether the evidence supports the ... judge’s finding of a statutory aggravating circumstance....” 21 O.S.2001, § 701.13 (C). This Court will also determine “whether Appellant is competent and has the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence.” See Grasso, 1993 OK CR 33, 857 P.2d at 805. Appellate Counsel has filed a brief in Duty’s behalf on Capital Mandatory Sentence Review. Issues not relevant to the mandatory sentence review are also included in the brief. The brief and Duty’s mandatory sentence review are now before the Court.

¶ 8 On December 19, 2001, Duty talked his cellmate, Curtis Wise, into acting as a hostage so Duty could be moved from the Disciplinary Unit to Administrative Segregation. According to Duty, Wise allowed Duty to tie his hands behind his back. But, after doing so, Duty strangled him to death. Duty stated that Wise struggled for his life and it took a while.

¶ 9 Our mandatory sentence review requires us to determine whether the evidence supported the aggravating circumstances. The fact finder need only to find the existence of one aggravating circumstance beyond a reasonable doubt in order for the death penalty to be considered. Torres v. State, 2002 OK CR 35, ¶ 6, 58 P.3d 214, 215.

¶ 10 In Proposition one, Duty states that the evidence was insufficient to establish the aggravating circumstance alleged in support of imposition of the death penalty. However, in this proposition, Duty attacks the constitutionality of the “continuing threat” aggravating circumstance. This issue is not a part of the mandatory sentence review; therefore, Duty has waived review of this issue. Suffice it to say that this Court has consistently rejected this claim and we find no reason to revisit this issue here.

¶ 11 To support the continuing threat aggravating circumstance, “the State must present evidence showing the defendant’s behavior demonstrated a threat to society and a probability that [the] threat would continue to exist in the future.” Turrentine v. State, 1998 OK CR 33, ¶ 77, 965 P.2d 955, 977, cert. denied, 525 U.S. 1057, 119 S.Ct. 624, 142 L.Ed.2d 562 (1998).

¶ 12 Duty killed his prison cellmate. During the plea hearing, Duty was adamant about the fact that he would kill again. He stated that he would kill a prison guard or another inmate if things did not go his way. The evidence supported this aggravating circumstance. Basically, Duty admitted that he would kill in order to get his way, thus he is a continuing threat to society.

¶ 13 In Proposition two, Duty argues that the aggravating circumstance requiring the murder to be especially heinous, atrocious or cruel is unconstitutional and that the evidence does not support the finding of its existence. The especially heinous, atrocious or cruel aggravating circumstance applies to those murders that are preceded by torture or serious physical abuse. McElmurry v. State, 2002 OK CR 40, ¶ 118, 60 P.3d 4, 28. We have consistently stated that under this definition, this aggravating circumstance is constitutional. Le v. State, 1997 OK CR 55, ¶¶ 41-45, 947 P.2d 535, 552-53. Evidence supporting this aggravating circumstance consisted of Duty’s own statements that Curtis struggled for his life and it took a while for him to become incapacitated. This is sufficient.

¶ 14 In Proposition three, Duty claims that the prior violent felony aggravating circumstance is unconstitutional because Duty’s prior violent felonies were too remote in time to be used to support this aggravating circumstance, and because this aggravator was duplicitous of the continuing threat aggravating circumstance.

¶ 15 In Bernay v. State, 1999 OK CR 37, ¶ 76, 989 P.2d 998, 1016 we held that prior violent felony convictions nearly forty years old were not barred as too remote to support this aggravating circumstance. We follow that holding here.

¶ 16 As far as being duplicitous, we addressed this issue in Green v. State, 1985 OK CR 126, ¶26, 713 P.2d 1032, 1040-41, cert. denied 479 U.S. 871, 107 S.Ct. 241, 93 L.Ed.2d 165 (1986), overruled on other grounds by Brewer v. State, 1986 OK CR 55, ¶ 51, 718 P.2d 354, 365, n. 1, and found that the aggravating circumstance was not duplicitous as applied. The same is true here. One aggravating circumstance focuses on a defendant’s pattern of violent criminal history while the other focuses on his future conduct. Green, 1985 OK CR 126, ¶ 26, 713 P.2d at 1042.

¶ 17 The fourth aggravating circumstance, that the murder was committed by a person while serving a sentence of imprisonment on conviction of a felony, is undisputed. The facts indicate that Duty was serving a sentence life imprisonment for the felony crime of Robbery or Attempted Robbery in Case No. CF-79-75 from the District Court of Jackson County, Oklahoma and sentences of life imprisonment for the felony crimes of First Degree Rape and Shooting with Intent to Kill in Case Nos. CF-78-12 and CF-78-13 from the District Court of Tillman County, Oklahoma. This aggravating circumstance is satisfied.

¶ 18 Duty waived his right to present mitigating evidence in this case and the trial court followed the procedures outlined in Wallace v. State, 1995 OK CR 19, 893 P.2d 504, cert. denied, 516 U.S. 888, 116 S.Ct. 232, 133 L.Ed.2d 160, and determined that Duty understood the consequences of waiving the presentation of mitigating evidence.

¶ 19 At the conclusion of the proceedings, the trial court sentenced Duty to Death. We find that there was sufficient evidence from which the trial court could have found the existence of the four aggravating circumstances. We further find that the death penalty was appropriate in this ease; it was not imposed under the influence of passion, prejudice, or any other arbitrary factor.

¶20 In Proposition four, Duty argues that the United States Supreme Court decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) requires that the aggravating circumstances be charged by Information or Indictment and that they be proven at Preliminary Hearing. This proposition was not raised at any time during the trial court proceedings. Furthermore, this proposition is not related to mandatory sentence review. Therefore, review of this issue is waived.

¶ 21 Pursuant to Grasso v. State, 1993 OK CR 33, 857 P.2d 802, 805, we have determined that “Appellant is competent and has the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence.” The thorough competency examination by the physicians of Eastern State Hospital clearly indicates that Duty has the capacity to understand what he is doing and to knowingly and intelligently waive his appellate rights. Duty is a long time prison resident who sees death as a better alternative to life without parole. The killing of his cellmate was a tool for his desire to die. Although it seems that Duty is using the State to assist him in suicide, the death penalty is clearly indicated in this case despite Duty’s personal wishes.

¶22 We find no irregularities warranting reversal of Duty’s conviction and sentence of death; therefore, the Judgment and Sentence of the trial court is, hereby, AFFIRMED.

JOHNSON, P.J., LUMPKIN and STRUBHAR, JJ., concur.

CHAPEL, J., concur in results.

      . 21 O.S.2001, § 701.12(1), (4), (6), & (7).

      . Duty was able to appreciate the nature of the charges against him; able to consult with his lawyer and rationally assist in the preparation of his case; Duty does not require treatment, but if released, he would pose a significant threat to the life or safety of himself or others.

      . In three prior cases where an appellant has "volunteered” for the death penalty, this Court has remanded the case for an evidentiary hearing and/or further competency evaluations. The three prior cases are distinguishable from this case.

        Grasso v. State, 1993 OK CR 33, 857 P.2d 802, was the first case where this Court had an opportunity to review a waiver of the statutory right to appeal a death sentence. We held that a trial court must make a determination of petitioner’s competency and his capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence. Because, the trial court had not made that determination, we remanded the case for a judicial determination of that issue.
      The next case from this Court was Wallace v. State, 1995 OK CR 19, 893 P.2d 504. This Court summarily remanded the case for an evidentiary hearing to determine whether the appellant had in fact waived all appeals except his mandatory sentence review, even though, the appellant had signed a waiver indicating that he did not want to appeal his conviction. The trial court had not made a determination that Wallace was competent to make that decision.
      In the third and most recent case, Fluke v. State, 2000 OK CR 19, 14 P.3d 565, Fluke requested a determination of competency, which was denied by the trial court. Therefore, this Court remanded the case for an independent competency evaluation for the purpose of aiding the trial court in determining: "was Fluke competent when he entered his guilty pleas and waived presentation of mitigation evidence during the Wallace hearing, and is he presently competent to waive his capital direct appeal.”
      In this case, the trial court’s conclusion that Duty "is competent on all those issues and all the points raised by the statute involved and by the case law involved” encompassed the waiver of the right to appeal which was explained during the proceedings and the second competency examination. The competency evaluations and conclusions of the trial court, in this case, clearly indicate that Duty is competent and capable of making the decision to waive his right to appeal; therefore, further hearings and evaluations are unnecessary.

      . Because Duty has waived his right to appeal by failing to move to withdraw his guilty plea, and after having been found competent to waive his right to appeal, no oral argument will be scheduled in this case. Having waived his right to appeal, Duty has also waived his right to oral argument pursuant to 21 O.S.2001, § 701.13 (D). Duty is entitled to Mandatory Sentence review only.

      . McElmurry v. State, 2002 OK CR 40, ¶ 84, 60 P.3d 4, 24-25.

      . This specific issue has been addressed and rejected by this Court in other cases. See Primeaux v. State, 2004 OK CR 16, 88 P.3d 893, & Johnson v. State, 1982 OK CR 37, ¶ 10, 665 P.2d 815, 819.


source: Caselaw Access Project

author: WINCHESTER, J.

license: Public Domain

text:
    2000 OK 47
    In re: INITIATIVE PETITION NO. 365 STATE QUESTION NO. 687.
    No. 94,155.
    Supreme Court of Oklahoma.
    June 20, 2000.

      Larry L. Oliver, Larry L. Oliver & Associates, P.C., Tulsa, Oklahoma, For Protestants.
    D. Kent Meyers, Oklahoma City, J. Lawrence Blankenship, Roger A. Strong, Paige S. Bass, Crowe & Dunlevy, Oklahoma City, Oklahoma, For Protestants Tom Hargus and James T. Tyler. |
    Marc Edwards, Heather L. Hintz, Robert N. Sheets, Oklahoma City, Phillips McFall McCaffrey MeVay & Murrah, P.C., Okla homa City, Oklahoma, For Proponents.
   WINCHESTER, J.

1 1 The protestants against Initiative Petition No. 865, State Question No. 687, move for summary disposition of the petition asking that we find it invalid as a matter of law. They claim that the petition is fatally defective on its face because the names of the proponents are not in the proper location on the petition, nor are they identified as proponents in conformance with 1994 Okla.Sess. Laws, ch. 147, § 2, codified in 34 O.S.Supp. 1999, § 2. In addition, the protestants filed two related motions. They moved to quash the "Notice of the Filing of State Question Number 687, Initiative Petition Number 865," published in the Daily Oklahoman on January 28, 2000, because the petition did not identify the proponents. The protestants also moved to strike Janet Halliburton and the Oklahoma Coalition Against Cockfighting, Cynthia Armstrong and Jenice Keisling as parties to the legal challenge to the petition. We hold that the petition is in substantial compliance with the statute, and we deny the protestants' motions.

- 12 Janet Halliburton and Oklahoma Coalition Against Cockfighting filed Initiative Petition 865 (the petition) with the Oklahoma Secretary of State on September 18, 1999. The petition seeks to prohibit cockfighting, making it a felony to hold or encourage a cockfight or to keep birds for fighting purposes and also making it a misdemeanor to be a spectator at a cockfight. In a letter to this Court dated January 10, 2000, the Secretary of State, Mike Hunter, informed the Court that he had received twelve boxes of signature pamphlets for the petition from Janet Halliburton, Oklahoma Coalition Against Cockfighting, P.O. Box 780378, Oklahoma City, Oklahoma, 73178. Pursuant to 34 0.S$.Supp.1999, 8(C), the secretary certified the total number of signatures from the 5,388 pamphlets to be 99,809. The secretary also certified the total number of votes cast, which was 878,585, for the state office receiving the highest number of votes at the last general election, which was for the office of governor. The Oklahoma Constitution, Article 5, § 2, provides that eight percent of the legal voters can propose any legislative measure. The eight percent is based upon the total number of votes cast at the last general election for the state office receiving the highest number of votes at that election. Therefore, the proponents needed 69,887 signatures to bring the matter to a vote of the people.

T3 On January 23, 2000, the Secretary of State published notice of the filing of the petition. The publication gave notice that any citizen of the State of Oklahoma could file a written protest of the petition or a written objection to the signature count in the office of the Clerk of the Supreme Court of the State of Oklahoma, with a copy directed to the proponents of the petition. This notice was a publication of an order of this Court. That order recognized Janet Hali-burton and the Oklahoma Coalition Against Cockfighting as the proponents of the petition. The order and its contents are required by 1992 Okla.Sess.Laws, ch. 92, § 7, codified in 34 0.S.Supp.1999, 8.

14 The petition places the name of the proponents after the lines for signatures instead of before, which is the statutory placement, and the proponents are not specifically designated proponents. The issue is whether the failure of the proponents of an initiative petition to identify themselves as proponents and the failure to place this information before the signature lines is significant enough to invalidate the whole initiative process. Title 34 provides the general provisions for initiative and referendum. Section 2 provides the form for the initiative petition. That section begins, "The form of initiative petition shall be substantially as follows...." In construing § 2, this Court has held that the procedure prescribed by the statute is not mandatory, but is sufficient if substantially followed. In re Initiative Petition No. 176, 1940 OK 214, 102 P.2d 609, 612. That case explains that, "If the end aimed at can be attained the procedure followed will be sustained. Clerical and mere technical errors are to be disregarded." In re Initiative Petition No. 176, 1940 OK 214, 102 P.2d at 612. Citing In re Initiative Petition No. 176, and In re Initiative Petition No. 224, 1946 OK 215, 197 Okla. 482, 172 P.2d 324, this Court reaffirmed that substantial compliance with the provisions of the statutes with reference to initiative petitions is sufficient. In re Initiative Petition No. 249, 1950 OK 238, ¶ 8, 222 P.2d 1082, 1085.

¶ 5 In re Initiative Petition No. 176 involved questioned signatures. On many pamphlets, the person who signed line number 1, wrote out his residence, followed by the name of the city or town, written in full, followed by the abbreviation "Okla." The subsequent signers on the pamphlet, when from the same city or town, would indicate that by a ditto mark under the name of the city or town in the line above. After those pamphlets were delivered to the County Commissioner of Oklahoma County, who supervised the circulation of the petition, either he or one of his clerks or secretaries wrote in the name of the city or town and the state over the ditto marks before filing the petition with the Secretary of State. The protestants wanted all of these names stricken. They contended that where the addresses of the signers did not appear on the pamphlets when verified by the circulator, and were supplied or written in by some person after the pamphlet had left the possession of the cireulator, the signatures did not substantially comply with § 2. Section 2 required the form of the petition to include that "my residence or post office are correctly written after my name." In addition, the protestants claimed that the pamphlets did not substantially comply with § 6 of title 384, which required each circulator by affidavit to state that "I believe that each [signer] has stated his name, postoffice address, and residence correctly...." The Court held that in the absence of evidence of willful fraud or guilty knowledge on the part of the cireulator, the signatures should be counted unless the residence and postoffice addresses of the signers were entirely supplied or written in after the petitions were verified by the circulator. In re Initiative Petition No. 176, 1940 OK 214, 102 P.2d at 611-612.

T6 Before the 1992 amendment to § 2, the statute provided that the petition, after including an exact copy of the title and text of the measure being submitted to the voters, must contain the following:

Residence Post Office ______ If in the city, street and number. (Here follow forty numbered lines for signatures.)" "Name

The 1992 amendment to § 2, 1992 Okla.Sess. Laws, ch. 92, $ 2, added above the line for name and residence: "Name and Address of Proponents (not to exceed three)." A proponent is one who offers or proposes something. Since the statute adds the parenthetical "not to exceed three," we may infer that the legislature did not require that all proponents of an initiative petition include their names and addresses. The protestants argue from the fact that the legislature chose to make the word "proponent" plural, that at least two proponents must be named. We do not agree. A petition may have only one proponent, and that proponent need not find another to meet the requirements of the . statute.

T7 The protestants contend that the names of the proponents were not included on the petition, as required by § 2, because the name, Janet Halliburton, and the organization name, Oklahoma Coalition Against Cockfighting, were placed after the signatures. The protestants argue that the signature lines are not a part of the petition because 1992 Okla.Sess.Laws, ch. 92, § 3, codified at 34 0.S.Supp.1999, 3, provides in pertinent part: "Each initiative petition and each referendum petition shall be duplicated for the securing of signatures, and each sheet for signatures shall be attached to a copy of the petition. Each copy of the petition and sheets for signatures is hereinafter termed a pamphlet."

T8 Section 2 begins, "The form of initiative petition shall be substantially as follows...." It ends, "Here follow twenty numbered lines for signatures." The provisions in § 3 do not exclude the signatures from being a part of the petition. The purpose of the requirement to attach the signatures is not to differentiate between the petition and the signatures. The purpose is to assure that the signature sheets are attached so that the voters are able to conveniently examine the exact wording of the proposal.

T9 Using the rule cited from In re Initiative Petition No. 176, we review the facts of the matter before us. The last lines of the petition, on the bottom of the page numbered for twenty signatures, read:

RETURN THIS PETITION TO:

Janet Halliburton
Oklahoma Coalition Against Cock fighting
P.O. Box 780878
Oklahoma City, OK 73178

To be valid, this information must substantially comply with the requirements of § 2 of title 34.

" 10 The protestants argue that the legislative intent in requiring the identity of the proponents on the face of the initiative petition was to publicize who is legally responsible for the proposed petition. Although this is possible, it is merely speculation. It is also possible that the legislature intended to make it easier for the Secretary of State to immediately identify the proponents. The same year § 2 was amended, § 8 was also amended. The amendment to § 8 added that the proponents of an initiative petition could withdraw the petition upon written notification to the Secretary of State any time before its final submission. Upon the proper notification from the proponents, the Seere-tary of State is allowed to begin the counting process before the ninety day period of obtaining signatures has ended. 1992 Okla. Sess.Laws, ch. 92, § 7, codified at 34 O.S.Supp.1999, 8. The amendment to § 8 lends support to the inference that the legislature interded the $ 2 amendment to aid the Secretary of State in identifying the proponents. Identification of the proponents by the Secretary of State to withdraw the petition before the ninety day period has elapsed is not an issue in this case.

'I 11 Section 8 requires that when a citizen desires to circulate a petition initiating a proposition of any nature, that person must file a true and exact copy of the same in the office of the Secretary of State, before it is cireulated or signed by electors. By the definition set out above, such an action makes that citizen the proponent of the measure. The Secretary of State on September 13, 1999, sent Janet Halliburton, Oklahoma Coalition Against Cockfighting, a letter acknowledging receipt of the petition pursuant to § 8, and informed them of the date, December 13, 1999, that the signed petition pamphlets would become due. On January 10, 2000, the Secretary of State sent his certification to this Court that twelve boxes of signature pamphlets for State Question Number 687, Initiative Petition Number 365, were received from Janet Halliburton, Oklahoma Coalition Against Cockfighting. The clear implication of this identification is that these were the proponents of the petition, and their names were correctly identified in this Court's order, which was subsequently published as notice to all. No other party came forward claiming to be the proponents. The protestants argue that the Secretary of State made an incorrect assumption. We do not agree.

112 Regarding the petition itself, the fact that the proponents' names were included at the very end of the signatures instead of before the signatures is a technical violation not a substantive one. In addition, failing to include "Name and Address of Proponents" above the names of Janet Halliburton and Oklahoma Coalition Against Cockfighting, although making their position as proponents clearer, is also a technical violation since the very title of the organization and the fact that the pamphlets were to be returned to them implies that they were the proponents of the petition. If there were any doubt, checking with the Secretary of State, who recognized Halliburton and the group as proponents, would clarify that doubt. Given the facts, the omission of the phrase "Name and Address of Proponents" is not a substantive violation.

T 13 The protestants, Hargus and Tyler, in their brief in support of the motion, characterize Community Gas and Service Co. v. Walbaum, 1965 OK 118, 404 P.2d 1014, as an analogous case. In that case a municipal initiative petition was held invalid because it did not contain the warning clause required by 34 0.8.1961, 3, informing the signors, "It is a felony for anyone to sign an initiative or referendum petition with any name other than his own, or knowingly to sign his name more than onee for the measure, or to sign such petition when he is not a legal voter." The Court in Walbaeum observed that the evident purpose of the warning clause was to keep the petition free from the taint of duplicate, false, fraudulent and unauthorized signatures. The Court concluded that the clause was essential to guard against fraud, corruption or deception in the initiative and referendum process, and was therefore an indispensable requirement. The Court held that a failure to substantially comply with that requirement was fatal.

{ 14 We do not find Walbaum to be analogous to the facts concerning the petition we are considering. A failure to include the word "proponents" before the names of the proponents, and the placing of the names of the proponents after the signature lines instead of before, are not essential to guard against fraud, corruption or deception in the initiative and referendum process. The purpose of the process is that the people be able to exercise the legislative power reserved by them and guaranteed to them by Article 5, § 1 of this state's constitution. On its face, it would appear that 99,809 voters signed the petition after considering the measure and desiring to present it to their fellow voters for an election. This Court will be careful not to thwart that process for an error that is neither fraudulent, corrupt nor deceptive. We observe that the protestants knew well who the proponents in this process were, in spite of their objections to the contrary.

[ 15 We do not find any of the arguments of either of the two groups of protestants on this motion to be persuasive to support a summary disposition of this petition. This finding also disposes of the motion to quash and the motion to strike, because the basis for the arguments is the same. Accordingly, the motion for summary disposition, the motion to quash and the motion to strike are DENIED.

1 16 HARGRAVE, V.C.J., HODGES, LAVENDER, OPALA, KAUGER, and BOUDREAU, JJ., concur.

T 17 WATT, J., dissents.

{ 18 SUMMERS, C.J., not participating.

      . § 2. Initiative Petition-Form-Time for Filing. The form of initiative petition shall be substantially as follows:
      INITIATIVE PETITION
      To the Honorable ____________, Governor of Oklahoma (or To the Honorable ___________, Mayor, Chairman of County Commissioners, or other chief executive officers, as the case may be, for the city, county or other municipality): We, the undersigned legal voters of the State of OKla-homa (and of the district of , county of ___, or city of ___, as the case may be), respectfully order that the following proposed law (or amendment to the constitution, ordinance, or amendment to the city charter, as the case may be) shall be submitted to the legal voters of the State of Oklahoma (or of the district of , county of , or city of ___________, as the case may be) for their approval or rejection at the regular general election (or regular or special city election), to be held on the day of , 19-, and each for himself says: I have personally signed this petition; IL.am a legal voter of the State of Oklahoma (and of the district of , county of city of as the case may be); my residence or post office are correctly written after my name. The time for filing this petition expires ninety days from (insert date when petition is to be opened for signatures). (This for State initiative. For county, city, or other municipality the length of time shall be ninety days.) The question we herewith submit to our fellow voters is: Shall the following bill (or proposed amendment to the Constitution or resolution) be approved? (Insert here an exact copy of the title and text of the measure.) Name and Address of Proponents (not to exceed three)
      Name Residence ___________ Post Office If in the city, street and number.
      (Here follow twenty numbered lines for signatures.)

      . In addition, the number of lines was changed from forty to twenty: "(Here follow twenty numbered lines for signatures.)"

      . The motion to strike the names of Jenice Keis-ling and Cynthia Armstrong appears to be based on an Entry of Appearance filed February 4, 2000. The attorneys for the proponents filed this document that read: "The undersigned attorneys hereby appear for Janet Halliburton and the Oklahoma Coalition Against Cockfighting in the case." Keisling and Armstrong are not mentioned in the body of the document. Below the identification of the attorneys, is the wording, "Atiorneys for Jenice Keisling and Cynthia Armstrong." Such identification does not make Keisling and Armstrong proponents in this case. We regard that information as surplusage. Keis-ling and Armstrong filed a document objecting to the count of signatures made by the Secretary of State. We leave the determination of their status to object to the count of signatures to the merits of the case.


text:
    2000 OK 49
    Steve RENNER, individually, and d/b/a S & S Electrical Contractors, et al., Appellees, v. NATIONAL AMERICAN INSURANCE COMPANY, et al., Appellants.
    No. 94,461.
    Supreme Court of Oklahoma.
    June 19, 2000.
   ORDER

{1 On February 25, 2000, the district court granted a motion for summary adjudication of four out of the five plaintiffs' claims. One plaintiff's claims remained pending in the district court, as did the defendants' counterclaims against this plaintiff. Defendants National American Insurance Company and Wes Star Construction, Inc. (appellants) appealed. The appellants were directed to show cause why the appeal should not be dismissed. The Court then granted an extension of time within which to

obtain certification of the order pursuant to Okla. Stat. tit. 12, $ 994 (1991). The appellants were unable to obtain the certification.

T2 Section 994 requires when an order adjudicates fewer than all the claims of all the parties, the district court must expressly determine "that there is not just reason for delay" and expressly direct "the filing of a final judgment" in order to invoke this Court's jurisdiction. The district court has not made the necessary finding or directed the filing of a final judgthent. For these reasons, the February 25, 2000 order is not appealable.

13 The appeal is dismissed for lack of an appealable order and appellees' motion for an appeal-related attorney's fee and costs is denied. However, this Court's ancillary cognizance conferred by article 7, section 4 of the Oklahoma Constitution is invoked and the effectiveness of the February 25, 2000 adjudication is stayed until judgment complying with Okla. Stat. tit. 12, § 681 (1991), is entered or until the February 25, 2000 order is properly certified pursuant to Okla. Stat. tit. 12, § 994 (1991).

T4 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 19TH DAY OF JUNE, 2000.

15 VOTE ON DISMISSAL OF APPEAL :

16 SUMMERS, C.J., HARGRAVE, V.C.J., HODGES, LAVENDER, OPALA, KAUGER, WATT, AND WINCHESTER, JJ., CONCUR,

T7 BOUDREAU, J., CONCUR IN RESULT.

18 VOTE ON PUBLISHING ORDER :

T9 SUMMERS, C.J., HARGRAVE, V.C.J., HODGES, LAVENDER, OPALA, WATT, AND WINCHESTER, JJ., CONCUR.

110 KAUGER AND BOUDREAU, JJ., DISSENT.


author: LAVENDER, J.

text:
    2000 OK 46
    Martin UPTON, Plaintiff/Appellee, v. STATE of Oklahoma ex rel. DEPARTMENT OF CORRECTIONS, and Oklahoma Merit Protection Commission, Defendants/Appellants.
    No. 91,618.
    Supreme Court of Oklahoma.
    June 20, 2000.

      Michael T. Oakley, Oklahoma Department of Corrections, Joseph L. McCormick, Oklahoma Merit Protection Commission, Oklahoma City, OK, for the appellant.
    Michael R. Green of Stites and Green, Tulsa, OK, for the appellee.
   LAVENDER, J.

T1 Today's cause presents a question of first impression, ie., whether the Oklahoma Department of Corrections [State or DOC] can terminate Upton [employee or ap-pellee] while he is receiving compensation (temporary total disability) for an on-the-job injury under the terms of the Workers Compensation Act, 85 0.9.1994 1 et seq.

FACTS AND PROCEDURAL HISTORY

12 The facts in the case are undisputed. Upton, a DOC employee, suffered an on-the-job injury on March 25, 1996 for which he was awarded temporary total disability [TTD] under the terms of 85 0.S.1991 22. Due to the nature of his injury employee also received leave without pay from May 11, 1996 until September 8, 1997 under the provisions of the Oklahoma Personnel Act, specifically 74 0.8.1994 840-2.21(A). On the last mentioned date DOC terminated Upton for being absent from his work for more than one year. Although employee was receiving TTD when he was discharged, DOC contended his dismissal was justified under the authority of 74 0.8.1994 840-2.21(D).

T3 Upton sought Merit Protection Commission [Commission] review of his termination. There he asserted his dismissal violated the terms of 85 0.9$.1994 5(B), which proscribe absentecism-based discharge of an employee who is receiving TTD. The Commission upheld Upton's dismissal by order dated December 24, 1997. Employee appealed to the district court which reversed the Commission's order, holding that § 5(B) of the Workers Compensation Act [WCA] prohibited Upton's termination solely for absenteeism (in excess of one year) since he was receiving TTD. State next brought this appeal. The Court of Civil Appeals affirmed the district court's decision. Certiorari was sought and granted.

HI

STATE CANNOT TERMINATE EMPLOYEES WHILE THEY ARE RECEIVING TEMPORARY TOTAL DISABILITY UNDER PROVISIONS OF THE WORKERS COMPENSATION ACT

T4 Resolution of State's appeal requires the Court to construe the provisions of 85 0.9$.1994 5(B) and 74 0.S8.1994 840-2.21(D), which on first examination appear in conflict. Since today's cause implicates the meaning and intent of legislative enactments and there are no disputed facts, it poses only a question of law. Hence, the applicable standard of review is de novo.

15 The contested provision of the Oklahoma Personnel Act provides that State "may" terminate an employee absent from work for more than one year. The statutory language does not mandate termination but rather permits it under guidelines to be promulgated by the Office of Personnel Management [OPM]-the agency legislatively commissioned to implement the Act. When the Legislature crafted the provisions of § 840-2.21(D) in issue, neither enacted legislation nor Oklahoma's extant jurisprudence condemned an employer's discharge of an employee who was receiving TTD, so long as the discharge was not retaliatory. In 1992 the Legislature amended the WCA [specifically 85 0.8.1994 5 ]. In so doing it altered established legal precedent and denied an employer the right to dismiss an employee while he/she is receiving TTD. It is the later expression of legislative will evidenced in the 1992 amendment of § 5 which creates the tension that lies at the heart of Upton's cause.

16 It is fundamental that statutory construction begins with ascertainment of legislative intent which is often manifested in the law's stated purpose. The best evidence of legislative intent is the statutory language itself. Only after legislative objectives are determined, are rules of construction-as delimited by Oklahoma's extant jurisprudence-applied to facilitate conformation of the statutes' language to the ascertained intent. When construing what appears to be contradictory statutory syntax, the Court is required, where possible, to construe the relevant provisions together in order to give foree and effect to each. Words are not always to be given their literal meaning but rather must be understood through the lens of legislative intent exemplified in the statute's avowed purpose. Only when an irreconcilable conflict is found to exist between two statutes will the Court hold one of them to be repealed by implication.

I 7 The Legislature's intent in enacting the Oklahoma Personnel Act [Act], 74 0.8.1991 840-1.1 et seq., is evinced in the Act's purposes set forth in § 8$40-1.2. There it is declared:

"It is ... the general purpose of this act to establish for the state a system to recruit, select, develop and maintain an effective and responsive work force; ... to provide for adequate and reasonable protection and security for those who have entered and will enter into the service of the state..."

To accomplish the Act's delineated aims the legislature charged the OPM with responsibility for its "efficient and effective enforcement."

T8 The Workers Compensation Act-the other enactment in issue today-embodies multiple legislative objectives. At its broadest level the WCA is intended to spare Oklahoma employees-both public and private-the necessity of expensive and speculative trials for work-related injury and to protect employers from excessive judgments. The purpose of 85 0.S8.1994 5 is to protect employees who seek the WCA's benefits. It has been held to proscribe retaliatory discharges, i.e., dismissals based in significant part upon the exercise of rights granted under the WCA. The provision in § 22 for the payment of temporary total disability has been held to have as its objective compensation of the claimant/employee for loss of wages during the time of healing from an on-the-job injury. Doubtless, the 1992 amendment of § 5 evinced legislative intent that a claimant was to be accorded protection from discharge based solely upon absenteeism while receiving TTD-ie., during the "healing" period.

T9 As further evidence of the legislative intent encompassed within the two acts at issue here, we reviewed the process by which the OPM met its charge to prepare rules (and amendments thereof) to satisfy the mandate of § 8$40-2.21(D). OPM proposed guidelines-implementing § 840-2.21(D)-in 1993. Amended Rule 530:10-15-10()}(2) & (8), Permanent Rules of the Office of Personnel Management, provides in pertinent part:

"(2) If an employee does not return to the original position or an alternate position within 1 year after the start of leave without pay, the Appointing Authority may terminate the employee under Section 840-7b(D)." An Appointing Authority that uses Section 840-Tb(D) * as authority to terminate an employee shall give the employee a copy of (k) of this Section. Termination of permanent classified employee under this Section is subject to the preter-mination hearing requirements of Section 840-6.4 of Title 74 of the Oklahoma Statutes.
(3) If Section 5(A)(2) [now 85 O.S8. 5(B) ] of Title 85 of the Oklahoma Statutes prevents the Appointing Authority from terminating the employee, the Appointing Authority shall place the employee on leave without pay according to that law. The rights and benefits of this Section and
Section 8$40-7b(D) * shall no longer apply." [Emphasis added.]
[* Section $40-7b(D) is now renumbered as § 840-2.21(D).]

The amended rule's text demonstrates cognizance of the 1992 amendment-which forbids termination of an employee who is receiving TTD-to 85 0.8.1991 5. When OPM proposes rules in fulfilment of a statutory mandate, the rules-process requires their submission to the Legislature for approval [which can be evidenced by the Legislature's failure to disapprove the same]. The Legislature chose not to disapprove proposed Amended Rule 530:10-15-10()(2) & (8), which further evidences its intent that the two acts-85 0.8. 5(B) and 74 0.8. 840-2.21-be understood in conjunction with each other.

{10 It is within the ambit of the identified purposes and intent that the Court views the provisions of the two acts in issue. Also, we are mindful that because of the Workers Compensation Act's remedial nature, it should be accorded liberal construction in favor of those entitled to its benefits.

With the identified legislative intents in mind, we now construe the suggested conflicting language of 85 0.8.1994 5(B) and 74 0©.S.1991 840-2.21(D) to harmonize their terms. To the extent that the provisions of § 840-2.21(D) can be construed to permit an employee's discharge while he/she is receiving TTD, an irreconcilable conflict exists between § 840-2.21(D) and § 5(B). Because the later-in-time amendment of § 5 reflects the most recent legislative pronouncement regarding absenteceism-based termination of employees-be they private or public-who are receiving TTD, the former is repealed by implication, but only to the extent of any inconsistency.

112 Today's holding does not render 74 0.S8.1991 840-2.21(D) void of legal significance. Under its terms State may still terminate employees solely because they are absent from work for periods of time longer than one year when they are receiving forms of compensation-other than TTD-allowed under the terms of the WCA, e.g., temporary partial disability. By construing § 840-2.21(D) as the Court does today, both § 840-221(D) and § 5 remain viable and effective legislative pronouncements. The delimitation of the scope of each statute resolves any conflict between the two. The legislatively-declared purposes of both statutes are now achieved and State's employees are afforded the protection accorded employees in the private sector when they seek and receive temporary total disability under the terms of the Workers Compensation Act.

III

SUMMARY

113 Today's pronouncement addresses a conflict between two statutes governing State's right to terminate-solely because, of absenteeism-an employee who is receiving temporary total disability. The later-in-time declaration of legislative intent is today given effect with the result that the provisions of 74 0.9.1994 840-2.21(D) are repealed to the limited extent they are inconsistent with the provisions of 85 0.98.1994 5(B). Section 840-2.21(D) remains efficacious insofar as it governs State's right to terminate absent employees who are receiving forms of compensation-other than TTD-authorized under the terms of the Workers Compensation Act.

T 14 Upon certiorari earlier granted,

THE COURT OF CIVIL APPEALS OPINION IS VACATED AND THE DISTRICT COURTS DECISION IS AFFIRMED.

1 15 All Justices concur.

      . Temporary Total Disability is the "healing period or that period of time following accidental injury, when an employee is totally incapacitated for work due to illness resulting from injury." Oklahoma Natural Gas Co. v. Davis, 181 Okla. 530, 75 P.2d 435, 436 (1938).

      . The pertinent terms of 74 O.S.1994 840-2.21 are:
      "D. An employee on leave without pay pursuant to the provisions of this section shall have the right to be returned to his or her original position in accordance with rules promulgated by the Office of Personnel Management. If it is found necessary for the good of the state to fill the position during the period the employee is on leave without pay the employee filling the position shall vacate the position upon the return of the employee on leave without pay, subject to layoff, transfer or demotion rights earned under the Oklahoma Personnel Act, Section 840.1 et seq. of Title 74 of the Oklahoma Statutes and rules of the Office of Personnel Management. The right to return to the original position shall expire one (1) year from the date of the start of leave without pay. If the employee has not returned to the original position of the employee or some other position within the agency within one (1) year from the date of the start of leave without pay, the employee may be separated in accordance with the Oklahoma Personnel Act and rules of the Office of Personnel Management." added.] [Emphasis

      . The pertinent terms of 85 O.S.1994 5(B) are:
      "No person, firm, partnership, corporation, or other entity may discharge any employee during a period of temporary total disability solely on the basis of absence from work." [Emphasis added.]

      . State ex rel. Dept. of Human Services v. Baggett, 1999 OK 68, 990 P.2d 235, 238.

      . "May" is permissive as contrasted with "shall" which is mandatory in nature. See Tate v. Browning-Ferris, 1992 OK 72, 833 P.2d 1218, 1229.

      . Although § 840-2.21(D) was enacted in 1988-the OPM rules effective when Upton was discharged-were adopted in 1993, the year after § 5(B) was first enacted.

      . Pierce v. Franklin Electric Co., 1987 OK 34, 737 P.2d 921, 924. A "retaliatory" discharge is one based upon an employee's exercise of rights granted under the workers' compensation statutes. Id. at 922.

      . For the amended provisions of 85 O.S.1994 5(B), see supra note.

      . Wilson v. Wilson, 1999 OK 65, 987 P.2d 1210, Welch v. Simmons, 190 Okla. 611, 126 P.2d 89, 91 (1942).

      . Sharp v. Tulsa County Election Bd., 1994 OK 104, 890 P.2d 836, 839.

      . Ledbetter v. Okla. Alcoholic Bev. Laws Enforcement Com'n., 1988 OK 117, 764 P.2d 172, 179; Eason Oil Co. v. Corp. Com'n., 1975 OK 14, 535 P.2d 283, 286.

      . Protest of Chicago, R.I. & P. Ry. Co., 137 Okla. 186, 279 P. 319, 322 (1929).

      . Id.

      . 74 O.S.1991 840-1.2.

      . 74 O.S.1991 840-1.6.

      . Fox v. Dunning, 1927 OK 79, 255 P. 582, 585-86.

      . Wallace v. Haliburton Co., 1993 OK 24, 850 P.2d 1056, 1058;Thompson v. Medley Material Handling, Inc., 1987 OK 2, 732 P.2d 461, 463.

      . Galey & Molloy v. Belt, 1940 OK 271, 102 P.2d 868.

      . For the amendment's terms see supra note.

      . The adopted rule impliedly acknowledges the effect of Oklahoma's extant jurisprudence which holds that if State discharges an employee in violation of § 5 of the WCA, its conduct qualifies as a statutory tort from which the state has no immunity. Gunn v. Consol. Rural Water & Sewer Dist. No. 1, 1992 OK 131, 839 P.2d 1345, 1349-50; see also Jarvis v. City of Stillwater, 1983 OK 88, 669 P.2d 1108, 1110.

      . The required gubernatorial approval of the proposed Rule 530:10-15-10() was secured on May 17, 1993 and legislative approval occurred on May 24, 1993, when no legislative disapproval was voiced.

      . Tulsa Rig & Reel Mfg. Co. v. Pritchett, 176 Okla. 262, 55 P.2d 777 (1936).

      . See City of Sand Springs v. Dept. of Public Welfare, 1980 OK 36, 608 P.2d 1139, 1151, which holds that when an irreconcilable conflict exists between statutes, the later modifies the earlier.

      . For the scope of temporary total disability, see 85 O.S.1991 22(4).

      . For analysis comparable to that adopted by the Court today, see Lucas v. State ex rel. Dept. of Human Services, 9 P.3d 89, 2000 OK CIV APP 79, 2000 WL 943361.


author: CARL B. JONES, Chief Judge:

text:
    2000 OK CIV APP 79
    In re Petition of Betty LUCAS for Judicial Review relative to her Termination by Oklahoma Department of Human Services, requesting review of decision rendered by the Oklahoma Merit Protection Commission, Betty Lucas, Plaintiff/Appellee, v. State of Oklahoma ex rel. Oklahoma Department of Human Services, Defendant/Appellant.
    No. 91,901.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Oct. 22, 1999.
    Certiorari Denied June 15, 2000.

      Roy Dickinson, Norman, Oklahoma, for Appellee.
    Charles L. Waters, General Counsel, Charles M. Jackson, Department of Human Services, Oklahoma City, Oklahoma, for Appellant.
   OPINION

CARL B. JONES, Chief Judge:

1 1 Appellee Betty Lucas (employee) was a classified employee with the Department of Human Services (DHS) and sustained an on-the-job-injury on June 12, 1990. The employee was on continuous leave without pay from DHS from June 12, 1998 until July 29, 1996 when DHS terminated the employee due to the employee's inability to return to work after a continuous period of one year of leave without pay pursuant to 74 O.S. Supp. 1994 840-2.21(D). The parties have stipulated to the following facts throughout all the various tribunals in this matter. Prior to her termination, the employee was adjudicated 25% permanently partially disabled on December 21, 1995. On April 23, 1996, the employee filed a motion to reopen the workers' compensation case due to a change of condition for the worse. Counsel agreed that they would be bound by the findings of the employee's neurosurgeon. The neurosurgeon issued his report on June 4, 1996, finding that the employee was temporarily totally disabled from a change of condition for the worse. The employee filed a request for leave without pay on May 16, 1996. DHS did not act upon the employee's request for leave and terminated her on July 29, 1996, for failure to report for duty.

T2 The employee appealed to the Merit Protection Commission. Her appeal was heard by an administrative hearing officer who upheld the DHS decision to discharge Lucas. The administrative hearing officer found that 74 O.S. Supp.1994 840-2.21 controlled over 85 O.S. Supp.1994 5 and permitted the employee's discharge. On December 24, 1996, the employee began an action for judicial review in the district court pursuant to 75 O.S. Supp.1992 818. The trial court reversed the administrative law judge finding that the employee was unlawfully terminated, entitled to a second period of disability under § 840-2.21, and awarded back pay, costs and attorney fees to the employee. DHS appeals. We note that DHS did not address the issue of the award of back pay in its brief and we will not address that matter on appeal. DLB Energy Corp. v. Oklahoma Corp. Comm., 1991 OK 5, ¶ 5, 805 P.2d 657, 659.

T3 On appeal, DHS argues three propositions of error; 1) the trial court erred in determining that 74 O.S. Supp.1994 804-2.21 and 85 O.S. Supp.1994 5 prohibit the employee's discharge; 2) the trial court erred in determining that the employee was entitled to a second period of disability; and 3) the trial court erred in awarding attorney fees and costs to the employee.

#4 On appeal, the district court and this Court apply the same standard when reviewing an administrative record. An order of an administrative agency may not be disturbed on appeal unless erroneous under 75 O.S. 1991 322.

T5 DHS contends that 85 O.8. Supp.1994 5 does not prevent the State of Oklahoma from discharging an employee pursuant to 74 O.S. Supp.1994 840-2.21(D), even if that employee is on temporary total disability at the time of her discharge. This issue requires this Court to construe both statutes in deciding this issue. The basic rule of statutory construction is to discover the intent of the Legislature and if possible construe the statutes to render them consistent. State ex rel. Porter v. Ferrell, 1998 OK 41, ¶ 6, 959 P.2d 576-77. Title 74 O.S Supp. 1994 840-2.21 provides in pertinent part:

"A. If a state employee, ... is absent because of an illness or injury arising out of and sustained in the course of his or her employment with the state, and for which workers' compensation benefits have been filed, the employing agency shall place the employee on leave without pay if the employee so requests; ...
D. An employee on leave without pay pursuant to the provisions of this section shall have the right to be returned to his or her original position in accordance with rules promulgated by the Office of Personnel Management. ... The right to return to the original position shall expire one (1) year from the date of the start of leave without pay. If the employee has not returned to the original position of the employee or some other position within the agency within one (1) year from the date of the start of leave without pay, the employee may be separated in accordance with the Oklahoma Personnel Act and rules of the Office of Personnel Management."

Title 85 O.S. Supp.1994 5(A)(2) provides:

"A.... 2. No person, firm, partnership or corporation may discharge an employee during a period of temporary total disability solely on the basis of absence from work."

Title 74 O.S. Supp.1994 804-2.21 clearly provides that after a worker's compensation claim has been filed an employee may request a leave of absence of one year without pay and upon expiration of that year the employee must return to work or be terminated. Title 85 O.S. Supp.1994 5 prevents termination of an employee during a period of temporary total disability. Neither of these two statutes references each other, however, the Merit Protection Rule 530:10-15-49 interpreting § 804-2.21 expressly states in pertinent part:

"(a) Purpose. The Purpose of this section is to interpret Section 840-2.21 of Title 74 of the Oklahoma Statutes (Section 840-2.21)... ...
(P)(3) If Section 5(A)(2) of Title 85 of the Oklahoma Statutes prevents the Appointing Authority from terminating the employee, the Appointing Authority shall place the employee on leave without pay according to that law. The rights and benefits of this Section and Section 840-2.21 shall no longer apply."

This interpretation is further supported by Gunn v. Consolidated Rural Water & Sewer, 1992 OK 181, 839 P.2d 1345, in which the Oklahoma Supreme Court determined that the provisions of § 5 apply to governmental employees.

$6 In determining whether § 5 applies here, we requested the parties to file additional briefs on whether the lack of an adjudication of a period of temporary total disability affected the applicability of § 5. Both parties responded that even without an adjudication, the physician's report conclusively established by stipulation that Lucas was temporarily totally disabled at the time of her termination for the purpose of this appeal. If an administrative rule is clear and unambiguous, there is no need to resort to rules of construction to comprehend its meaning. Coppola v. Fulton, 809 P.2d 1291, 1296. The clear language of Merit Protection Rule 580:10-15-49 provides that if § 5 applies then the rights and benefits of § 804-2.21 are no longer applicable. We find that the provisions of § 5 are applicable here and that the employee could not be terminated during her period of temporary total disability.

T7 The second proposition of error is whether 74 O.S. Supp.1994 840-2.21 allows an employee to have a second entitlement of leave without pay due to a worsening of condition. As discussed above and pursuant to the Merit Protection Rule 530:10-15-49, when § 5 is applicable, the rights and benefits enunciated in § 804-2.21 are no longer applicable. The trial court erred in granting the employee a second term of leave without pay.

T8 The final proposition of error is the trial court's award of attorney fees and costs to the employee. Title 75 O.S. Supp. 1992 318 allows attorney fees if the trial court determines that the proceeding to review brought by the agency was frivolous. In this instance, the proceeding to review was brought by the aggrieved party, the employee, and not the agency,. The trial court erred in finding that attorney's fees and costs should be awarded to the employee.

T9 AFFIRMED IN PART AND REVERSED IN PART.

T 10 HANSEN, P.J., and ADAMS, J., concur.


author:
GARRETT, Judge:
      JONES, P.J., dissents:

text:
    2000 OK CIV APP 68
    JADCO MANAGEMENT CORPORATION, a Delaware corporation, and John R. Armstrong, Plaintiffs/Appellants, v. FEDERAL INSURANCE COMPANY, Defendant/Appellee, and Chubb & Son, Inc., d/b/a Chubb Group of Insurance Companies, Consolidated Insurance Agency, Inc., and Bill Wilson, Defendants.
    No. 91,275.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Feb. 4, 2000.
    Rehearing Denied March 3, 2000.
    Certiorari Denied May 16, 2000.

      C. Rabon Martin, Tulsa, Oklahoma, for Appellants.
    Roger R. Williams, Donald B. Bolt, III, Tulsa, Oklahoma, for Appellee.
   OPINION

GARRETT, Judge:

1 Appellee, Federal Insurance Company (Federal), insured Jadeo Purchasing Corporation (Purchasing) and Jadeo Development (Development), a related company, against loss of crude petroleum due to theft. Purchasing filed an insurance claim with Federal, claiming large quantities of crude petroleum had been stolen from its facility in Tussey, Oklahoma. Federal denied the claim.

T2 Appellant, John R. Armstrong, sole shareholder, director and officer of the Jadeo companies, and Purchasing sued Federal and the other defendants under a theory of Federal's failure to deal fairly and in good faith on its insurance claim. Federal moved to dismiss Purchasing because its corporate charter had been suspended, due to its failure to pay its Oklahoma Franchise Tax, pursuant to 68 0.9$.1991 1212(c). Federal moved to dismiss Armstrong on the grounds he is not the real party in interest because he is not a named insured. Purchasing moved to substitute Jadco Management Corporation (Management) as party plaintiff, stating that on January 1, 1992, Purchasing transferred all of its assets to Management. The trial court granted Federal's motions to dismiss. Management and Armstrong filed a motion for new trial, which the trial court denied. This appeal followed. On June 15, 1999, the Supreme Court dismissed Management's appeal, and ordered the remainder, if any, of the appeal to proceed.

I 3 The only issue in this appeal is whether Armstrong has stated a claim against Federal for breach of the duty to deal fairly and in good faith with its insured, which resulted in Armstrong's suffering emotional distress. He contends the failure of Federal to deal fairly with regard to the insurance claim damaged the value of his stock in the related corporations, causing him to suffer severe emotional distress. He also argues the only real issue is foreseeability and contends "it is easily and clearly foreseeable that, where a corporation has but one stockholder, officer and director, a breach of the duty to deal fairly and in good faith with regard to the corporation's claim is likely to cause emotional distress to that individual."

[4 Acknowledging that "under traditional approaches, one who has suffered damage from tortious breach of a duty arising from contract, must be in contractual privity with the tort-feasor to maintain an action", Armstrong requests this Court to make new law in Oklahoma, "recognizing that a person who has foreseeably suffered injury as the result of the commission of a tort would have a right to recover damages, traditional notions of privity aside." He contends that although the duty of good faith and fair dealing with regard to insurance contracts arises from a covenant implied by law, all persons are subject to a general duty to abstain from injuring the property of another, under 76 O.S. 1991 1. He also contends that pursuant to Timmons v. Royal Globe Ins. Co., 1982 OK 97, 653 P.2d 907, 911, the duty to deal fairly and in good faith is owed by the insurer to both the insured and third parties. [Emphasis supplied.]

1 5 In response, Federal contends this case is controlled by Wittenberg v. Fidelity Bank, N.A., 1992 OK 165, 844 P.2d 155. In Wittenberg, the Supreme Court held the majority stockholders of two banks were not the real parties in interest and did not state a claim for which they could be granted relief. The Court held that the parties entitled to the benefits of the litigation were the banks themselves, not the stockholders of the banks. The Court said:

The facts reveal that any wrong done was one suffered by the Bank of Inola and the Bank of Commerce Choteau ... [Alny loss to the appellants was the result of the loss to the bank. "Generally, stockholders cannot maintain or defend an action to redress wrongs done to a corporation as a corporation is a legal entity, separate and distinct from its stockholders." Barnett v. Bodley, 348 P.2d 502, 505 (Okla.1959). The appellants have the further disability of being former stockholders and yet claim that they are entitled to damages for a loss in the value of their stock because of a wrongful act against a corporation in which they were stockholders.

T6 The Wittenberg Court, at page 158, quoted approvingly from Mainord v. Sharp, 1977 OK CIV APP 29, 569 P.2d 546, 548, in which the prosecuting party was still a stockholder:

The privilege of doing business in corporate form is granted by statute. This privilege carries many benefits including the limits on personal liability to the stockholders investment. One cannot simultaneously claim the benefits of corporate form and escape the Habilities of that insulation. No claim is made that the legal title to the alleged debt is not in the corporation or that the corporation is nonexistent. As such it cannot be ignored. The real party in interest rule is designed to protect the defendant by insuring that the party with the legal right to sue brings the action. Oklahoma Wildlife Federation, Inc. v. Nigh, 518 P.2d 310 (Okl.1972).
Mainord v. Sharp, 569 P.2d 546, 548 (Okla.App.1977). The appellants cannot under these facts circumvent the rule by pleading tort law. [Emphasis supplied.]

In reviewing an order sustaining a motion to dismiss, this Court examines the issues de novo. Miller v. Miller, 1998 OK 24, 956 P.2d 887. A motion to dismiss for failure to state a claim upon which relief can be granted will not be sustained unless it appears without doubt the plaintiff can prove no set of facts in support of the claim for relief. Id., at 894. If relief is possible under any set of facts which can be established and are consistent with the allegations, a motion to dismiss should be denied. Miller v. Miller, supra, citing Lockhart v. Loosen, 1997 OK 103, 948 P.2d 1074; Indiana National Bank v. State Department of Human Services, 1994 OK. 98, 880 P.2d 371.

T8 In the instant case, Armstrong allegedly suffered a loss because of the loss to the corporations in which he held the stock. He was not Federal's insured or a party whom Federal intended to protect when the coverage went into effect. Armstrong's entire relationship with Federal arises only because of the insurance policy between various Jadeo corporations and Federal. Federal, therefore, has no direct liability to Armstrong, and the implied covenant to deal fairly and in good faith cannot be extended to him because he pleads an action in tort. The "third parties" in Timmons, supra, referred to injured passengers of Timmons' airplane who might have claims against Tim-mons, the insured. They were not majority stockholders of corporations set up to avoid personal liability. Moreover, the Timmons Court stated Timmons' liability to the third parties had been discharged by the insurance company. "Here we consider the Hability of the insurer to the insured party for failure to deal fairly and act in good faith with its insured." [Emphasis supplied.] Timmons, 653 P.2d at 911.

T 9 The trial court correctly held Federal's motion to dismiss should be sustained. Accordingly, the trial court properly denied Armstrong's motion for new trial. We decline Armstrong's invitation to make new law in Oklahoma. To do so would not, in our opinion, constitute sound public policy.

T 10 AFFIRMED.

{ 11 JONES, P.J., dissents.

{12 BUETTNER, J., concurs.

JONES, P.J., dissents:

[1 As I1 read Timmons, lack of privity is no longer a bar to this action, as Timmons specifically speaks to third parties.

      . The other defendants were dismissed as parties by the trial court and are not part of this appeal.

      . § 1. Rights of others must be respected
      Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his rights.


author: HANSEN, Viee-Chief Judge:

text:
    2000 OK CIV APP 60
    TOTAL ACCESS, INC., Plaintiff/Appellant, v. CADDO ELECTRIC COOPERATIVE, an Oklahoma Rural Electric cooperative; and Caddo Electric Cooperative Enterprises, Inc., a corporation, Defendant/Appellees.
    No. 93,845.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    April 7, 2000.

      B. Wayne Dabney, Bret D. Davis, Oklahoma City, for Plaintiff/ Appellant.
    John W. Garland, Anadarko, for Defendant/Appellees.
   OPINION

HANSEN, Viee-Chief Judge:

{1 Plaintiff/Appellant, Total Access, Inc. (Total), seeks review of the trial court's order granting the motion to dismiss of Defendant/Appellees, Caddo Electric Cooperative and Caddo Electric Cooperative Enterprises, Inc. (collectively Caddo). Total, an Internet service provider, sued Caddo for injunctive and declaratory relief, alleging the acts of Caddo in operating an Internet service provider were ultra-vires and not within the powers conferred upon rural electric cooperatives by the Rural Electric Cooperative Act, 18 0.98.1991 § 487 et seq. Caddo moved to dismiss on the grounds Total lacked standing to bring this action, the trial court lacked subject matter jurisdiction, and Total failed to state a claim upon which relief could be granted. The trial court granted the motion and dismissed the action. Total appeals without appellate briefs in conformance with the procedures for the appellate accelerated docket, Okla. Sup.Ct. R. 1.86, 12 0.S.Supp. 1996, Ch. 15, App. 1.

12 We will review a disposition by dismissal under a de novo standard. Patel v. OMH Medical Center, Inc., 1999 OK 33, 48, 987 P.2d 1185. "The purpose of a motion to dismiss is to test the legal sufficiency of the pleadings, not to evaluate the underlying facts. The question before us is hence whether, taking all of plaintiff's allegations as true, [it] is precluded from recovering as a matter of law." Id. A motion to dismiss is the proper method for testing a party's standing. In re Estate of Geller, 1999 OK CIV APP 45, 980 P.2d 665, 668. Total's standing does not depend on the merits of its contention Caddo's conduct is illegal; the proper inquiry is whether Total alleges injury to a legally protected interest as contemplated by statutory or constitutional provisions. Independent School Dist. No. 9 of Tulsa County v. Glass, 1982 OK 2, 639 P.2d 1233, 1287.

T3 An action in the nature of quo warranto may be brought when a corporation "abuses its power or intentionally exercises powers not conferred by law." 12 0.8.1991 § 1582. The parties disagree as to who has standing to bring such an action. Caddo points to 18 0.8.1991 § 1018 as allowing only the corporation itself, a shareholder, or the Attorney General to assert a corporation's lack of power or capacity to do an act. Total does not allege it is a shareholder or member of Caddo. Rather, it points to 12 0.8.1991 § 1538 as authorizing it to prosecute the case because it claims an "interest adverse to the franchise, gift or grant, which is the subject of the action." Total argues it is a competitor and therefore has "an interest adverse to [Caddo's] illegal internet service provider" sufficient to provide standing.

T4 The quo warranto statute, 12 0.8.1991 § 15833, is ambiguous as to who may claim an interest adverse to the franchise, gift, or grant which is the subject of the action when such a claim challenges a corporate act as ultra vires When faced with ambiguity, we will apply rules of statutory construction to discern legislative intent. TRW/Reda Pump v. Brewington, 1992 OK 31, 829 P.2d 15, 20.

T5 The Oklahoma General Corpora? tions Act, 18 00.98.1991 § 1001 et seq., provides in § 1018 that no act of a corporation shall be invalid because it was ultra vires, but the lack of capacity or power of a corporation to act may be asserted (1) by a shareholder in an action to enjoin the corporation from performing acts or transferring property, (2) by the corporation in an action against an officer or director for loss or damage due to unauthorized acts, and (8) by the Attorney General in an action to dissolve the corporation or enjoin it from transacting unauthorized business. The maxim of statutory construction, "expressio unius est ex-clusio alterius" means that the expression of one thing is the exclusion of another. Greenberg v. Wolfberg, 1994 OK 147, 890 P.2d 895, 906. It is "applicable only where in the natural association of ideas the contrast between a specific subject matter which is expressed and one which is not mentioned leads to an inference that the latter was not intended for inclusion in the statute." There is such an contrast between the situations where assertion of ultra vires acts is specifically authorized and those situations not mentioned as to lead to the inference the Legislature intended to exclude the authority to assert lack of corporate authority to act in any situation not expressly mentioned in § 1018. Total's action may only be brought by the Attorney General, a shareholder or member of Caddo, or Caddo itself. Total lacks standing to bring the action.

16 Total cites Okla. Gas & Elec. Co. v. Okla. Elec. Coop . (OG & E), 1973 OK 158, 517 P.2d 1127, as an example of a case where a competitor was allowed to challenge a cooperative's intrusion into alleged illegal areas. In that case, OG & E alleged OEC invaded its franchise granted by the City of Norman. In the instant case, however, there is no franchise, gift, or grant, which is the subject of the action. Therefore, 12 0.8.1991 § 1583 is inapplicable and 18 0.8.1991 § 1018 is controlling. Accordingly the trial court's order dismissing the case is AFFIRMED.

ADAMS, J., concurs; JOPLIN, J., dissents.


text:
    2000 OK CIV APP 62
    Julius R. BRINKLEY, a/k/a Bob Brinkley, Plaintiff/Appellee, v. Duane L. LITTLE, a/k/a Duane Little, and Nancy J. Little, Husband and Wife, Defendants/Appellants.
    No. 92,486.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    April 27, 2000.
    As Corrected May 1, 2000.
   ORDER

T1 NOW on this 27th day of April, 2000, the above-styled matter comes on for consideration, and the Court FINDS:

1. On March 3, 2000, this Court filed its opinion in the above-styled matter affirming the trial court's order granting judgment to Plaintiff/Appeliee Julius R. Brinkley, a/k/a Bob Brinkley on Brinkley's claims for recovery of sums allegedly due under a construction contract with Defendants/Appellants Duane L. Little, a/k/a Duane Little, and Nancy J. Little, Husband and Wife, and for foreclosure of liens securing such payment. '
2. On March 10, 2000, Brinkley filed a motion for attorney's fees as appellate prevailing party on his lien foreclosure claim. 42 0.8. § 176.
3. On April 19, 2000, Brinkley and the Littles filed a Joint Motion to Dismiss this appeal, representing settlement of the controversy inter se.
4. The appellate courts are not required to dismiss an appeal on representation of settlement by the parties after an appellate decision on the merits. See, eg., Goldman v. Goldman, 1994 OK 111, 5, 883 P.2d 164, 166. The parties joint motion to dismiss the appeal should therefore be denied.
5. However, insofar as Brinkley's motion for appellate attorney's fee remains pending, on representation of settlement of the underlying controversy, and on Brinkley's joinder on the motion to dismiss, the motion for appellate attorney's fees should be dismissed.

12 Insofar as the parties' joint motion seeks dismissal of the appeal, the motion to dismiss is consequently DENIED. Insofar as the parties' joint motion seeks dismissal of Brinkley's motion for appellate attorney's fees, the motion to dismiss is GRANTED.

13 DONE IN CONFERENCE OF THE COURT OF CIVIL APPEALS this 27th day of April, 2000.

T4 CAROL M. HANSEN, Vice-Chief Judge.

15 JONES, J., and JOPLIN, J., concur.


text:
    2000 OK CIV APP 77
    George F. FORTNA, Petitioner, v. U.S. EXPRESS, INC.; and the State Insurance Fund; and the Workers' Compensation Court, Respondents.
    No. 94,007.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    May 12, 2000.

      Seott Ash, Tulsa, Oklahoma, for Petitioner.
    Vickie Akermann, Tulsa, Oklahoma, for Respondents.
   OPINION

HANSEN, Viee-Chief Judge:

11 The facts in this case are not in dispute. Claimant was an early morning courier employed by Respondent, U.S. Express, Ince. Each work day he would leave his home and go directly to his first "pick up" of the day. The last stop on his route was Respondent's office where he would deliver what he had picked up. Claimant used his own vehicle on the established route and was paid $100.00 a week for the deliveries.

12 Claimant was injured in an automobile accident on the way to his first pick up. He sought compensation for temporary total and permanent partial disability and vocational benefits for the injuries he sustained. The trial court found his injuries were not compensable because he was on his way to work. The court found his employment did not commence until he reached the first pick up point, basing its reasoning on Ferraton v. Bob Howard Auto Mall, 1998 OK CIV APP 154, 970 P.2d 196. We disagree.

13 In Ferraton the claimant was injured in an automobile accident while driving a vehicle provided by his employer from his workplace to his residence in another town. It was not mandatory that the claimant use a company vehicle and he was not paid for the gasoline used in the auto while commuting to and from his hometown. The Court emphasized that it is generally recognized injuries sustained by a worker while going to and coming from the workplace do not "arise out of" the employment. The decision further recognizes one of the exceptions to this general rule arises where the job necessitates travel. These exceptions rest on the law's awareness that in certain situations both the employer and the employee derive mutual benefit from the inclusion of travel in the course of employment. Christian v. Nicor Drilling Company, 1982 OK 76, 653 P.2d 185. In Ferraton, the claimant's job did not require travel. He remained on his employer's lot and sold cars. Ferraton was simply going home after work when he was injured.

14 This Ferraton seenario is easily distinguishable from the case at hand. A deliveryman injured in traffic is entitled to compensation. Wallen v. Carriker, 1937 OK 400, 70 P.2d 100. Where the nature of an employee's work makes it necessary for him to drive and such driving is a risk reasonably incident to his employment, the fact that an employee uses his own car rather than a vehicle owned by his employer does not preclude compensation. See, Austin Drilling Company v. Rice, 1980 OK CIV APP 28, 616 P.2d 446; Oklahoma Natural Gas Company v. Williams, 1981 OK 147, 689 P.2d 1222.

T5 If the undisputed facts do not support the workers' compensation order, the order will be vacated. Barre v. TCIM Services, 1998 OK CIV APP 179, 971 P.2d 874. Claimant had no other reason for being on the route he was on when the accident occurred, other than his employment. This is not a going and coming case. Claimant was on the job. The court erred in finding Claimant was not in the course of his employment when he was injured.

16 ORDER VACATED AND CASE REMANDED WITH INSTRUCTIONS FOR FURTHER PROCEEDINGS TO DETERMINE THE NATURE AND EXTENT OF CLAIMANTS INJURIES AND AWARD COMPENSATION ACCORDINGLY,.

T7 ADAMS, J., and JOPLIN, J., concur.


author: HANSEN, Vice-Chief Judge:

text:
    2000 OK CIV APP 82
    Lawrence D. PRICE, Petitioner, v. AIR TULSA, INC., Employers of Wausau, and The Workers' Compensation Court, Respondents.
    No. 94,089.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    May 26, 2000.
    Gus Farrar, Tulsa, Oklahoma, for Petitioner.
    Chad Whitten, Tulsa, Oklahoma, for Respondents.
   OPINION

HANSEN, Vice-Chief Judge:

1 1 The sole issue in this appeal is whether the trial court erred in applying the graduated scale of benefits in 85 OS.Supp.1999 22(8)(b) separately to injuries to different body parts instead of to the total percentage of disability arising from the same accident. We hold it did and reverse, following the rationale of six published unanimous opiniqns of all four divisions of the Court of Civil Appeals.

2 The trial court found Petitioner, Lawrence D. Price (Claimant), sustained an accidental personal injury to his cervical spine, right knee, and left foot arising out of and in the course of his employment with Respondent, Air Tulsa, Inc. (Employer), on October 15, 1996. It awarded permanent partial disability compensation for 138.9 weeks at $205.00 per week.

13 Although the record does not indicate how the trial court calculated the total of 133.9 weeks, the parties agree the trial court applied the provisions of 85 0.S.8upp.1999 22(8)(b)(1) separately to each of the injured body parts. Claimant contends the statutory reduction should be applied to the total percentage of disability resulting from this one accident, so that the number of weeks of compensation would be 169.4 rather than 138.9. Employer argues the Legislative intent was to treat multiple body part injuries separately when calculating the percentage of disability.

I 4 The six cases cited above have uniformly held the schedule of benefits provided in § 22(8)(b)(1) should be applied to the total percentage of impairment arising from the same accident. In Richardson, 990 P.2d at 309, the Court further held "where those disabilities are to body parts having different compensation bases, the court shall organize the individual disabilities with the compensation bases in increasing order before applying section 22(8)(b)."

1 5 The rules of Richardson and its predecessor cases apply to the facts of this case. We hold the trial court erred in failing to use the total percentage of impairment arising from the same accident in calculating benefits pursuant to § 22(8)(b). The trial court's order is VACATED and this matter is REMANDED with instructions to enter an award in favor of Claimant for 169.4 weeks of permanent partial disability compensation.

16 ADAMS, J., and JOPLIN, J., concur.

      . Stice v. McDonnell Douglas, 1997 OK CIV APP 11, 935 P.2d 1195, Sharitt v. American Airlines, 1998 OK CIV APP 74, 962 P.2d 663 (cert. denied, May 27, 1998), McCarter v. Rainbo Baking Co., 1998 OK CIV APP 78, 964 P.2d 918 (cert. denied, June 3, 1998), Rhea v. Southwest Cupid, 1998 OK CIV APP 97, 969 P.2d 1000, Walker v. Independent School Dist. No. 1 of Tulsa County, 1999 OK CIV APP 93, 989 P.2d 1054, and Richardson v. Bartlett Collins Co., 1999 OK CIV APP 105, 990 P.2d 305 (cert. denied, Sept. 14, 1999).