SCOTUS SAYS TAKINGS CLAUSE APPLIES TO ALL PROPERTY

The U.S. Supreme Court has ruled that the Takings Clause applies to personal property as well as real property. In the words of Chief Justice Roberts, “The Fifth Amendment applies to personal property as well as real property. The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home.”

Read the Opinion here.

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OKLAHOMA APPEALS COURT ISSUES JOINT CUSTODY CLARIFICATION

A division of the Oklahoma Court of Civil Appeals has ruled that a Trial Judge can award Joint Custody of minor children over the objection of one of the parents.

There have been a wealth of decisions by the Oklahoma Supreme Court that allowed the termination of Joint Custody because of continuous acrimony between the parties. This has led some to believe that Joint Custody should not, or cannot, be ordered if it appeared that the parties could not operate with a high degree of cooperation.

In Bilyeu v. Bilyeu, the Court noted that the parties were quite hostile to one another during the Divorce proceedings, but also noted that both were totally devoted parents, capable of cooperation in the best interests of the children after the stresses of the proceedings were gone. Believing that Joint Custody was in the best interest of the children, the Court ordered Joint Custody over the objection of the mother. On Appeal, the Appeals Court determined that the vast majority of the past cases were not initial custody determinations, but were requests to modify a Decree after there was a demonstrated pattern of hostility not related to Court proceedings.

You can read the opinion here.

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OK. SUPREMES SIDE WITH HOMEOWNER ON TAX SALE NOTICE ISSUE

The Oklahoma Supreme Court has sided with the owner of land that was sold by the County for unpaid property taxes.

The facts were not in dispute:

-The property owner obtained title to the property in 2001;

-The owner stopped paying property tax In 2006;

-The County sold the property for unpaid taxes in 2010, after publishing notice under the statute, and certified mailing notice to the address provided by the owner;

-The owner had moved away from the property prior to 2010;

-The certified mail was returned marked “Not Deliverable as Addressed. Unable to Forward.

The Supreme Court held that bare compliance with the service statute was insufficient in this case.  To pass constitutional muster, the County must look to see if actual notice can be achieved in some other way. The fact that the tax sale purchaser was able to contact the owner after the sale indicated that the difficulty of giving actual notice in this case would not have been great.

In spite of the ruling in this particular case, property owners should be warned that if your mailing address is different than the property address, the owner should notify the County Assessor and Treasurer of the proper mailing address. If a Court makes a determination that the County reasonably did all it could, the property could be lost. Even if successful, consider the thousands this owner spent recovering the property, at which point he then had to pay all the back taxes with interest.

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Oklahoma Adds to “Slayer” Statute

By now, it is fairly well known that a person who kills another cannot legally inherit, or financially gain, from the victim. Effective November 1, 2015, the list of persons covered by the provisions of the law will grow.

Under the current law, no person who is “convicted of murder in the first degree, murder in the second degree, or manslaughter in the first degree, as defined by the laws of this state, or the laws of any other state or foreign country, of having taken, caused, or procured another to take, the life of an individual” may inherit from the victim, or collect any benefit payable or transferable by reason of the death. This would include proceeds of life insurance policies, money accounts with a “pay on death” provision or survivorship interest in jointly held property.

Under the amended version of the statute, anyone who has been “convicted of abuse, neglect or exploitation of a vulnerable adult” is also prohibited from deriving any benefit from the death of the victim, whether or not the death was caused by the actions of the person so convicted.

While these amendments seem very straightforward, there will undoubtedly be challenges at some point in the future, especially in cases where the victim expresses a voluntary intent to include the offender in a distribution after the conviction occurs.

Find more information at the Oklahoma Law Website

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Nuts and Bolts of the Oklahoma Power of Attorney

I am often contacted by someone who says “I need to get a Power of Attorney for my mom”. My first question is “What is her current mental state?” About half the time, the response is that Mom has deteriorated in recent years, and has trouble with memory, not only about happenings, but about people, including family. At this point I have to tell the caller that it’s too late for a Power of Attorney, which is something given, not something taken.

A Power of Attorney is something that must be given by a person who is mentally competent to a person chosen by the person given the Power. The person who is granted the Power is referred to as the Attorney in Fact (AIF). The person giving the Power is the “Grantor”. The Power states the limits of the power (little “p”) granted to the AIF. In granting the Power (capital “P”), the person has choices to make as to the scope of powers granted, and the duration of the Power.

SCOPE OF POWERS

The powers granted fall into one or both of two categories. Financial powers, which often allow the AIF to sign and enforce agreements, write checks, enter into business transactions and make other business or financial decisions on behalf of the person granting the Power, are the most common powers given. Additionally, the Power of Attorney can grant medical powers, which allow the AIF to make routine and everyday medical decisions which do not include end of life decisions. Medical powers often allow the AIF to choose the Doctors, Hospitals and other health care providers, as well as approve medication changes for the person giving the power. Often the medical powers specify that they may be exercised only if the grantor is not capable of making the decisions for him/herself.

DURATION OF POWERS

The issue of when a POA becomes effective and terminates usually centers on four happenings: the execution of the Power; a valid revocation; the loss of mental capacity of the Grantor; the death of the Grantor. A POA always terminates with the death of the Grantor or the valid revocation of the Power by the Grantor. To be valid, the revocation must be in writing, and must be executed while the Grantor has full mental capacity. Subject to these terminating events, the duration of the Power depends on the type of Power given. There are three types.

A General POA takes effect immediately upon execution and terminates upon the death or mental incapacity of the Grantor.

A Durable POA only takes effect upon the loss of mental capacity by the Grantor, and continues until the death of the Grantor, or until it is trumped by the imposition of a Guardianship by an appropriate Court.

A General Durable POA takes effect immediately upon execution and remains in effect, even if the Grantor loses mental capacity, until valid revocation, subsequent Guardianship or the death of the Grantor.

Powers of Attorney must fall under one of the three “Duration” types, and must specify the extent of the powers, whether financial, medical or both, and must be executed while the Grantor has full mental capacity. As for the caller, whose Mom is beyond the point of capacity, the only solution is to make application to the Court for a Guardianship.

Find more information at the Oklahoma Law Website

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OKLAHOMA DUI OFFENDERS COULD FACE VEHICLE FORFEITURE

Effective November 1, 2014, multiple DUI offenders and people who cause death or bodily injury while under the influence could face forfeiture of their motor vehicles. An amendment to the punishment provisions of the DUI law paves the way for the drastic consequences.

First, a couple of important notes regarding the DUI laws:

DUI is the abbreviation for “Driving Under the Influence”, and includes not only alcohol, but also drugs. And not only illegal drugs, but lawfully prescribed medication and over the counter substances.  Anything that, acting by itself or in conjunction with other things inside one’s body, causes that person to have his/her driving ability significantly impaired, can be the culprit.

Secondly, “Actual Physical Control” of a motor vehicle while under the influence, is a form of DUI.  Being in control of an operable motor vehicle, running or not, on or near a public street is treated as a DUI.

Beginning November 1, 2014, any person convicted of DUI or APC who, within the 10 years prior to the offense, was previously convicted of a DUI or APC, and either the current offense or the past offense involved the death or serious bodily injury of another; OR

Any person convicted of a third or subsequent felony DUI or APC,  is subject to having the vehicle forfeited to the state.

To commence forfeiture proceedings, the District Attorney must file Notice of an Intent to Forfeit Motor Vehicle, and then must file the Motion to Forfeit Motor Vehicle no later than 30 days after the Guilty verdict, or plea of Guilty or No Contest.  If the Motion is filed before the conclusion of the criminal proceedings, the Motion cannot proceed until the criminal proceedings are complete.  Notice must be given to any person known or believed to have a lien interest or ownership interest in the vehicle.

At the hearing, anyone claiming an ownership interest must prove that he/she has a good faith, bona fide ownership interest in the vehicle, that he/she is not the person convicted of the offense and that he/she did not know, and could not have known, that the vehicle would be operated or controlled by one under the influence.

The vehicle may be forfeited, and ordered sold if needed to satisfy valid liens, if the Court finds that the forfeiture will serve any of the following purposes:

–Incapacitation of the person from re-offending;

–Protection of the safety and welfare of the public;

–Deterrence of other potential offenders;

–Expression of public condemnation of the serious or aggravated nature of the offense;

–Satisfaction of monetary amounts owed for fines and costs.

If the vehicle is forfeited, the vehicle would then be sold, and the proceeds apportioned as follows:

–To satisfy a lienholder;

–To the costs of conducting the sale;

–To any impound expense, including towing and storage;

–To satisfy the ownership interest of one who has made the proof;

–To criminal penalties, fines and costs;

–To the District Attorney’s office, to the extent of 25% of the remaining proceeds;

–The balance, if any, will be deposited in a Drug Abuse Education and Treatment Fund.

Find more information at the Oklahoma Law Website

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Find more information at the Oklahoma Law Website

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OKLAHOMA COURTS TO GET UNIFORM PRIVACY RULES

Change is coming to the system of access to Oklahoma Court Records. The current system is a hodgepodge, to put it mildly. Under the current scenario, Court records are accessible for the State’s 13 largest Counties through the Oklahoma Court Information System at http://www.oscn.net. Records for the other Counties, along with some Municipal and Tribal Courts through the Oklahoma District Court Records System, at http://www.odcr.com. For both systems anyone can see the Dockets (list of events) for any case, beginning with the date such records were electronically recorded, which is different for each County. For OCIS Counties, anyone can also see images of the actual documents filed, from and after the date the County began scanning the documents. The same is true for ODCR Counties, but only if you have a paid subscription. The individual Court Clerks decide, up to a pint, which records scanned and made available. (Records of Adoptions, Guardianships and Mental Health Cases, among others, are required to be sealed)

A few years ago, the Oklahoma Supreme Court issued rules that require a single uniform system for electronic storage and access to District Court Records. The pilot program (Noble County) is currently being tested. Now, however, discretion is being taken away from the Court Clerks in determining what records will be made available. Effective November 1, 2014, the Oklahoma Supreme Court is being charged with the implementation of uniform rules that will apply to all District Courts. These new rules could dramatically impact how people should approach their lawyers in the drafting an filing of documents.

Here are some examples:
-A person pleading guilty or no contest to a felony is required to complete and sign a Record of Plea form. This form contains the full name, date of birth, address and Social Security Number of the Defendant;
-In child custody cases, a wage assignment is sometimes filed, to allow for direct withholding of child support from the wages of the payor. This form contains the names, dates of birth and Social Security Numbers of the parties and the minor children;
-Orders amending birth certificates for name changes and other actions must contain, name, date and place of birth, and other information for the issuing authority to amend the records.

Once the new rules are in place and implemented, every public document filed in any Oklahoma Court, will be scanned and made available to anyone with a computer anywhere in the world. The best advice to anyone is to avoid the rush and begin practicing vigilance now. Tell your lawyer you want to review every document that will be filed at the Courthouse, and look for the inclusion of any personal identification data. If it is there, see if it can be redacted, at least partially (only the last 4 digits of account numbers and Social Security numbers). If not, see if it will be a “public record” accessible by internet download. In extreme cases, you can ask your attorney to file the document(s) under seal. This will cost more money, and will require extra care, but will be well worth it in the long run.

Finally, pay attention to the rules creation process. Prior to implementation, the Supreme Court will publish proposed rules, and ask for comments and input from the public. The best way around a bad rule is to prevent it from being enacted in the first place.

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