Terra Extraneus

UPDATE****3/26*** The Court withdrew its order on a 5-4 vote to restudy the internet access issue. Hopefully, the Court will retain the new rule requiring exercise of care when putting individual identification information in public pleadings. But, internet access to court files should be retained.
******************

The Oklahoma Supreme Court, though not unanimously, hurled the Oklahoma Court system backwards with such force the court system is now back in 1982. Pleadings are no longer available on line from the Oklahoma court system’s internet presence, the Oklahoma Supreme Court Network.

This action was imposed unilaterally by our highest and usually most sensible Court for the stated reason that it would protect privacy. Forgetting for the moment that the other way the Court addressed it, by passing a rule limiting personal and financial information disclosure, was the only effective way to address it, the Court’s fear of gadgetry was both humorous and sad.

Pleadings are public records that can be viewed at any Court Clerk’s office, so the court did not remove them from the public sphere, but just made them harder and more expensive to review, because now it takes a trip to the courthouse to view and copy the pleadings. The Court just reduced the convenience of review by eliminating the instant review possible on line. Because court dockets and court cases can still be searched on line, the pleadings can still be easily identified, as can the parties to law suits. Exact identification of parties might be harder, but that only is true until one makes the trip to the courthouse to review the pleadings.

Of course, only 80% of Oklahoma’s court system was ever on line, not all 77 counties were on line, and only in one or two counties could every pleading be accessed, although some access was available to pleadings in all the counties that made up the 80%. Nevertheless, our Court system seemed quite modern and efficient because of this access.

The great contradiction, and the humor, in our high court’s pull back from the 21st century, is that the unstated and underlying premise has to be that Oklahoma state court pleadings are somehow more valuable and more dangerous than federal court pleadings. Every federal court pleading in the United States, much less in the federal courts sitting in Oklahoma, unless under court ordered seal, can be downloaded for eight cents a page on the Pacer system.

The great sadness resulting from Oklahoma’s action is that because of the Court’s failure to reconcile the virtually complete access to federal pleadings with Oklahoma’s sudden phobia about access, the Oklahoma action seems to be reactionary and parochial.

No Comments

I attended the showing of this great movie twice, so far, with a bitter sweet attitude. The movie brought back many memories of my own debate career. My debate partners were among the finest people and greatest minds I have ever known. One would be famous during one of America’s most tragic times, one would be commercially successful beyond the ability of an Oklahoman to comprehend and only able to achieve that success away from the limitations we have placed on ourselves, one would be a great debate coach, and another would be a well respected minister. I met my wife because of debate. I travelled the United States because of debate and saw the great universities of the day. In the National Debate Tournament of 1976 in Boston, my partner and I, representing “SE Okie,” debated not one but two Harvard teams. While I may be unable to place myself in the shoes of the first nationally recognized black debaters, or comprehend the black experience in America, debate is another matter.

The movie, The Great Debaters, also reminded me of the fact that at one time in things intellectual, Oklahoma universities, like Oklahoma City University, were leaders. That has been lost and replaced by sports.

In part, it was lost because forensics education in Oklahoma was systematically dismantled. Without a forensics education system, no debate coaches were trained or qualified.

In Oklahoma, the large universities have always lagged behind the smaller ones in debate even if they excelled in sports.

While the University of Oklahoma attended the National Debate Tournament eleven times during the history of the tournament, from 1947 to 2007, Northeastern Oklahoma State University attended fifteen times, University of Central Oklahoma (formerly Central [Oklahoma] State University attended fourteen times and Southeastern Oklahoma State University attended ten times. In other words, to become the preeminent debate power in Oklahoma, OU must qualify teams to the NDT at least four more times. Also, the University of Oklahoma would have to do one more thing: win it at least once.

Only Southeastern Oklahoma State University has won the National Debate Tournament among Oklahoma higher educational institutions.

No Comments

One thing that distinguishes a “great” film from a “good” one for me is the discussion it prompts on the drive home, and whether I’m still thinking about the film the next day. Was it merely entertaining, or did I learn anything from it? Did it make me think?

I saw Denzel Washington’s The Great Debaters last night. It is a thoroughly entertaining movie, well acted and beautifully filmed, with a decent script. Even better, the movie continues to make me think, and has prompted me to dig a little deeper into the history of race relations and civil rights in 20th century Texas and Oklahoma.

The Great Debaters, which has received a Golden Globe nomination for best dramatic movie, is the true story of the debate squad of Wiley College, an African-American school in Marshall, Texas, in the Depression-era 1930s. Washington plays the debate coach, Melvin B. Tolson, and Forest Whitaker is a campus theologian and local minister who is the father of one member of the squad. Under Tolson’s tutelage, the Wiley debate squad gains national attention, and in a day when separate but unequal was the norm, invitations to compete against white teams (in the movie, when his debaters refer to white collegians, Tolson corrects them, saying they are “Anglo-Saxons”).

I competed in high school debate, and my blogging partner, Rod Heggy, went to college on a debate scholarship and competed in the National Debate Tournament. In an early scene, Tolson draws a square with chalk on the classroom floor, the “Hot Spot.” Students step into the Hot Spot to speak extemporaneously and field cross-examination questions. It reminded me of an exercise my own speech coach employed in which students were called to the platform, handed a large grocery sack which contained numerous items, and required to reach into the sack, pull something out and give an impromptu speech about that object.

However, despite the title, The Great Debaters is not primarily about collegiate debate. Debaters may complain that the movie fails to reveal much about the process and art of debating. They may observe, as some reviewers have, that the African-American debaters were conveniently assigned debate topics that always involved race relations and civil rights, and that they always drew the “right” side of those topics. True enough, but such comments miss the point.

The Great Debaters is not a story about college debate; it is about race relations in the generation immediately preceding the modern civil rights movement. The film uses college debating as a story device to illuminate the great race debate that has always been a prominent thread of American history. When the majority uses the force of law to deprive a minority of their God-given rights, how should the minority respond? Should they exercise moderation and patience? Should they employ civil disobedience? Resort to violence? The debaters wrestle with these questions on the platform and in real life. If the modern civil rights movement began in 1954 with Brown v Board of Education, The Great Debaters gives a glimpse of the sickening Jim Crow days of the segregated South in which the great civil rights leaders were born and raised.

Some (including Washington himself) have compared The Great Debaters to the slough of sports movies about small schools that win state championships against great odds. Others have placed it in the “great teacher” genre (To Sir With Love, Dead Poets Society, countless others). But most of the The Great Debaters does not occur in classrooms or at debate tournaments, but in the real world. One of the most haunting scenes is a confrontation between white and black families after the black family accidentally hits and kills a pig while driving down a country road. As that scene and others illustrate, a black man in the segregated South literally had no rights, for the “law” was squarely behind the white man, regardless of what he chose to do to a black man.

Another emotion-charged scene is a conversation between two young African-Americans, as they recall an earlier scene in which they witnessed a lynching. Volumes are spoken in the question one of the black teens asks: “I wonder what he did wrong?” referring to the man who had been lynched. What an atrocity to foster a culture in which racism is so pervasive that when a black teen witnesses the gruesome murder of a black man by a hate-filled white mob, he is led to wonder what the black man did wrong.

The movie prompted me to learn more about Melvin B. Tolson and James L. Farmer Jr. I was surprised to discover that Tolson spent the last 20 years of his life teaching at Langston University in Langston, Okla., just 30 miles from my home. James L. Farmer Jr., who in the movie is a prodigious 14-year-old college student, went on to become the founder of the Congress of Racial Equality. Farmer was a courageous freedom fighter who championed non-violent civil disobedience and who had a huge influence on the civil rights movement and on Dr. Martin Luther King Jr. Farmer’s philosophy of civil disobedience is foreshadowed in a stirring speech the young debater gives in the movie’s climactic scene.

The Great Debaters is a great movie. It is not a great exposition of college debating or classroom mentorship, and it brings nothing new regarding underdogs rising above humble beginnings. What it does do is depict an important chapter in race relations in our not-so-distant past, and introduce us to remarkable men like Tolson and Farmer. The inspirational story here is not about a debate contest won or lost, but about men and women such as these who did not allow legally enforced racism to prevent them from being the people God created them to be, and making their mark in this world.

* * * * *
MORE NOTES ON THE GREAT DEBATERS

• Another memorable scene is an argument that erupts between Farmer Sr. the theologian and Tolson the debate coach. The minister is concerned about Tolson’s left-wing politics. Tolson responds, “Jesus was a radical,” to which Farmer shouts back, “Are you comparing yourself to Jesus?” According to my research, that scene may misrepresent Farmer Sr. His son, Farmer Jr., did say that his father advocated a more moderate approach than the path of civil disobedience Farmer Jr. pursued. However, according to Tolson’s writings, it was in fact Farmer Sr. who presented “a vivid picture of Jesus the young rebel” in a 1938 Mother’s Day sermon.

• Denzel Washington also directed The Great Debaters. It is his second time in the director’s chair (after Antwone Fisher in 2002). The Great Debaters has some beautiful shots. One that particularly caught my eye is toward the end of the movie, when the debate team boards a train in Texas to head for the climactic debate at Harvard University. As the train leaves the station, it moves into the heavily wooded terrain of east Texas. Washington gives us an aerial view of acres of green trees into which the train disappears, except for billows of gray smoke pouring from the engine, marking the train’s path through the lush greenery. I loved that shot.

• Jurnee Smollett plays the first and only female member of the Wiley debate squad. I see from her bio that Smollett, 21, has been playing TV roles since she was 5, so she is already a veteran actor. She is not only beautiful but quite talented, and I expect her to become a star.

• Denzel Washington recently gave an interview about his Christian faith and the role his faith plays in his movie career. See: Denzel Washington’s Ministry of Movies.

No Comments

The District Attorney of Oklahoma County according to The Oklahoman has announced that the sellers at the Affair of the Heart craft show will not be prosecuted for violation of trademarks of the University of Oklahoma or Oklahoma State University. The District Attorney has not announced and has reserved on the issue, according to the newspaper, whether that office will prosecute representatives of OU or OSU for confiscating crafts displayed at Affair of the Heart that bore either or both school logos.

Obviously, I am not privy to what precisely what happened, and all I know of the facts came from the newspaper. But this incident bothered me. Trademark and copyright protection of late has become very edgy. Now frustrated with the deliberate machinery of the court system, or maybe in ignorance of it, it may be turning to something else.

Self-help repossession, of course, has been permitted to secured creditors under the Uniform Commercial Code for many years. Indeed, the leading case on self-help repossession, Williams v Ford Motor Credit Co., dates from 1982. The rule has been in such cases that self-help repossession remains lawful under the uniform commercial code for secured lenders if there is no breach of the peace. But in Williams, the court made it clear that if the car owner had objected to the repossession, it would have been a breach of the peace for Ford to proceed to repo the car.

There is no corresponding right of self-help repossession in trademark or copyright law. It is possible to get a court order permitting seizure of the infringing goods, especially in cases in which the infringing goods are in fact ringers, i.e., counterfeit knock offs. See, Lorillard Tobacco Co., Inc. v. A&E Oil, Inc., ___ F.3d ___, 2007 WL 2736622 (7th Cir. 2007)(counterfeit cigarettes with counterfeit tax stamps), in which a couple packs of the counterfeit cigarettes were purchased by Lorillard and then used as evidence to support a seizure order. This would have been the correct procedure for OU and OSU to follow. Also, they could simply have photographed the infringing items and then prepared lawsuits against the crafts people.

Both OU and OSU have so many lawyers in their employ that they own their own small law firms, and they no doubt employ many private law firms as well. Therefore, there would have been no excuse if in fact OSU and OU personnel wrongfully seized anything. If they seized anything without a court order and over the objection of anyone, it was a breach of the peace, and if they acted under color of state authority, it was a violation of civil rights statutes.

If the OU and OSU people, as alleged in one news story, had in their company a law enforcement officer, then that officer, too, breached the peace, because without a warrant or a court order and over the objections of anyone, even a bystander, the law enforcement officer was violating the civil rights of the owners. The law enforcement officer could have stood there and prevented disturbance of any evidence if a crime was being committed in the officer’s presence, while lawyers scrambled to obtain the appropriate court orders. While the Oklahoma Governmental Tort Claims Act might shield some the actors, or place dollar limits on some of the theories of recovery, it likely would not much impact a federal lawsuit under §1983.

The other thing that bothers me about all of this is that OU and OSU are public universities, not private businesses. They are political subdivisions of the State of Oklahoma. They survive on legislative appropriations, regardless of the profitability of their fund raising, their R&D programs (if any) or their sports programs. While that does not place their logos in the public sphere for random or unlicensed use, it does at least morally qualify their claims to protect those logos.

Moreover, both OU and OSU use their logos to brand high profile products, their multi-million dollar sports programs: revenues of $30 million for OU and $15 million for OSU. Legitimate public comment about those logos is lawful. Honoring one’s favorite team by creating a homemade craft incorporating one or both of the logos is just as much a fair comment as making fun of them. That a crafts hobbyist made a few extras and sold them at Affair of the Heart is hardly a threat to those logos, especially since they exist, as a practical if not a legal matter, partly in and partly out of the public domain.

No Comments

As everyone knows, Oklahoma but not Texas is in the 10th Circuit. Nevertheless, sometimes a federal court sitting in diversity jurisdiction in Oklahoma, for example, must apply Texas law because of a choice of law provision that is for some reason enforceable. Thus, it may not be all that helpful, as decisions go, for future guidance.

In Rash v J. V. Intermediate, Ltd, the 10th Circuit, under Texas law, held that a forfeiture of the fee owed to an agent is not to be automatically forfeited upon a finding of disloyalty to the principal, but is to be applied only to “clear and serious” violations of fiduciary duty. Not every agency relationship is fiduciary, but the one in this case was considered one by the district court and the 10th Circuit did not disagree.

Moreover, under Texas law, the 10th Circuit required that the forfeiture be considered the other relief accorded to the principal is a significant “equitable factor.” In other words, no double dipping allowed. However, the forfeiture might be appropriate to address damages not otherwise compensated.

This case is one more likely to be misquoted and over extended, and those faced with the typically draconian remedy of forfeiture of compensation should be alert to its limitations.

No Comments

The decision issued by the Supreme Court of Oklahoma on April 3 in Hagen v Watts Public Schools (Adair County), 2007 OK 19 at www.oscn.net, left me unsettled. I served as a member of the board of a public school district for four years and I have represented school districts as legal counsel in several instances. The Supreme Court should never have been involved in this and the opinion, especially the dissent, should never have been published. The statute that made it all happen, the Teacher Due Process Act, should never have been passed. The Teacher Due Process Act is going to make Oklahoma look bad and the courts that try to administer it are, in the long run will find themselves in a no win situation. This opinion is a perfect example of it all.

In this case, Hagen was a special education teacher. He slapped one of his special needs students. This slapping incident reminded me of the silliness during the Second World War that landed atop General George A. Patton. The school district fired Hagen. Hagen appealed the firing to the district court, although he admitted the facts of the incident, and the trial court ordered him reinstated. The school district appealed, why that was a priority in their budget will forever remain unknown, and the Oklahoma Supreme Court affirmed the trial court. The Supreme Court was not unified, however, and there was a written dissent.

The slapping of any student by a teacher or school official is not a good thing. But, in all likelihood, it does not rank as a heinous crime. It most likely can and should be dealt with in the confines of professional discipline, counseling, and training. What loss of perspective, what loss of emotional control, caused the school district to turn it into a firing and then into an appeal to the Supreme Court of Oklahoma? The dissent in the Supreme Court’s opinion suffered from the same loss of perspective and emotional control as the school board. It is rare to see such an emotional outburst from a Justice of any Supreme Court escape out into the public sector. The dissent defined the slapping incident as “assault and battery,” “ugly facts,” “mental and physical abuse” and “this teacher’s conduct was abusive.”

According to the dissent, the child’s brother and grandmother both testified they would have no trouble returning the child to the teacher’s classroom and admitted under oath that was sometimes the only to break up a tantrum. Apparently, somebody still had some perspective, even if it was not the Supreme Court dissenter or the school board. But, wait!! The Supreme Court dissenter did not like those folks either because he demanded to know why state child abuse authorities had not been called out to investigate their admitted willingness to use a slap now and then to control this child’s behavior. That such a comment was a bit of a foul ball should have seemed obvious to the Justice. For all the Justice knew, child abuse authorities had investigated and with a sense of perspective agreed a slap might be better than letting the kid run out into traffic in the middle of a tantrum.

Indeed, the dissent wanted to define “abuse,” even though it was not defined in the Teacher Due Process Act, in the same manner as in the “child abuse” statutes. The “child abuse” statutes of Oklahoma were endowed with a sense of perspective because “abuse” under those statutes must include, according to the footnotes of the dissent, an “injury.” The “injury” can be physical or mental. What is the “injury” that results from a slap? Either the word “injury” has no meaning, or it has to mean clinically observable and treatable damage. Clearly, a mere slap does not result in clinically observable and treatable damage. But, it does not matter to the dissent that there was no actual “injury,” because to the dissent, all harm no matter how slight is abuse and thereby damnable.

The trial court tried to re-inject perspective that had been lost by the school board and the majority of the Supreme Court did the same. But, neither will be thanked for that by those with no perspective, and ultimately, both will be asked to decide every personnel issue that arises in a school district under that silly statute.

No Comments

What’s your favorite Oklahoma City area attraction, amusement, facility or feature? Good comments from Charles Hill (of Dustbury), Michael Bates (of Batesline) and Nita Cearley (a TerraX charter commenter). Read their comments here: “OKC’s Transformation Amazing” – and add your own comment about what OKC has to offer.

No Comments

Tulsan Michael Bates (of Batesline) took his 10-year-old son on a short vacation trip to — Oklahoma City. Highlight of the trip was a day at Frontier City. Despite living in Oklahoma for decades, Bates had never been. Bates says they had a great time — even in 104 degree heat. If you have a kid or grandkid, you might be interested in Bates’ account of their Frontier adventure.

Michael, I hope you and your son can come back soon to see more of what Oklahoma City has to offer. Oklahoma City’s transformation from boring cow town to regional vacation destination is amazing. Bricktown is more fun when it’s not so hot. Come on a day when the Redhawks are in town so you can visit one of the best minor league ballparks in the nation. The National Memorial and adjacent museum is a must see. The zoo is excellent. It’s fun to walk or bike the perimeter of Lake Hefner. There are several excellent museums. A few minutes in one of the Mexican grocery stores on SW 29th is an interesting experience.

OKC residents — what attractions am I leaving off the list?

* * * * * *

UPDATE: Just came across another blogger on the TerraX blogroll who has visited OKC recently. My old friend David Fish, a professor at Ozark Christian College in Joplin, MO, who writes Random Thoughts From a Fish, passed through OKC recently. He and his family spent some time in Bricktown and visited the Memorial.

I live just about 4 hours away, but I had never visited. As I walked onto the grounds, where the Oklahoma City bombing took place…I was deeply moved. As I began to look at the names engraved on wall displays, my eyes teared up. Generally I can rein my emotions in fairly well, but I was overcome with extreme sadness.

3 Comments

Two “college students” broke NCAA and University rules and were “dismissed” from the football team of the University of Oklahoma this week. The state and local media have been overrun with stories about it and from the drying ink you would think a crisis of devastating consequences had been addressed.

Because I did not attend either OU or OSU, although I paid for someone else to obtain a degree from OU and I am paying for someone else to do the same at OSU, I have never been able to comprehend fully the emotions that seem to attach to these local teams. However, some of the most ardent fans, and sometimes the most annoying, also did not attend either school. Confront one of these fans about the reason(s) for their loyalty or fervor with great trepidation. I have theorized that some of this emotion is somehow linked to state pride rather than school pride. But, in any case, it is a great mystery.

Given the amount of money OU and OSU consume, the return on investment has been less than one might reasonably have expected. Given the economies of scale businesses, governments and the military have been able to achieve in Oklahoma through lower operating costs due to cheaper land, water, energy and labor, OU and OSU should have accomplished more than just a football heritage.

Neither OU nor OSU has ever won a national debate championship. Academic competition teams and research writing competitions are either not reported or are not being won. In either event, expectations should be high given the economics possible in Oklahoma and given their budgets. Oklahoma’s smaller regional universities have managed to be successful in these areas, and they assuredly have less budgetal depth than OU and OSU.

Thus, while the new scars on Oklahoma’s football powers will likely heal, and fans will likely be faithful in that eternal mantra of all sports fans, that next year will be the year, one has to wonder if it should ever be so for schools? Rather than ever and only worrying about whether a football player might succumb to temptation and sink the team or the program, should not, in the media and the public mind, these two schools be required to justify their budgets and their preeminence academically? Should not this justification be required often rather than only as an after thought?

I did not attend any of Oklahoma’s private universities, so there may be a rational limit to the theory, but should not anything non-academic achievable by private universities, including training NFL recruits, be left to them and the taxpayers relieved of the duty? I am not suggesting that sports programs are not legitimate educational program, indeed, to the contrary, we probably need them now more than in the past. But, we do not need government funded universities to compete for television contracts by recruiting football players rather than students.

No Comments

The Oklahoma Dept. of Transportation has published 89 state maps online, first published from 1873 to 2006. The old maps are especially interesting, to see what towns and highways were here, and which were not, way back when.
(Hat Tip: Batesline)

No Comments