October Tulsa Lawyer by Tulsa County Bar Association

Health Issues & the Law

TULSA LAWYER

A Message from

Jim Milton 2019-2020 TCBA President

Cannabis Accounting: The Economic Landscape, Business and Tax Planning By Ryan Berry Senior State Tax Attorney at Polston Tax Resolution and Accounting

Pg. 14

Pg. 26 Evolution

of Mental Health Care

Durand Crosby, J.D., Ph.D. Chief of Staff and Chief Operating Officer Oklahoma Department of Mental Health and Substance Abuse Services

In this Issue

October 2019

Healthy Lifestyle and Attorney Performance A CLE EVENT

2019 Holiday Challenge - Natalie Sears, Chair

2019 Fall & Winter CLE Schedule

Summary of ABA 2019 Annual Meeting Molly Aspan, Tulsa County Bar Association Delegate to the ABA House of Delegates

Litigation Section- What's Coming Up? Section Chairs, Robert Mitchener, III and Robert J. Winter, both of Pray Walker, P.C

TCBF Golf Giving: Tulsa Lawyers for Children

VP's Corner - Brace Yourselves! Kara Vincent

Food Truck Friday - Oct. 11th!

Courhouse Badges Update - Action Needed

Bankruptcy CLE Details

Animal Law Committee: Supporting Pets and People By Katy Inhofe, Chair

Santa Paws

Court Assistance Program Is Back! Beth Nellis, ACP CAP Coordinator

Employment Law CLE - Sign up now!

Santa Brings a Law Suit

Utilizing Paralegals in Tulsa County By Bobbye Meisenheimer ACP, Secretary, TCBA Paralegal Section

OK DOCKETS - New Member Benefit!

Luncheon Review - Sponsor Thank You

In Memory of...

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Classifieds

Tulsa Lawyer 1

A Message from the President

Jim Milton

The Value of Our Organization

Annual Luncheon If you missed the TCBA’s Annual Luncheon, you missed a very good event. The event took place at the newly-refurbished Tulsa Club, in its ballroom on the 9th floor. Our speaker was C. David Shepherd, a retired Marine, retired FBI agent, national speaker, and CEO of Readiness Resource Group, a veteran-owned small business founded in 2007 and based in Las Vegas. Mr. Shepherd provided a captivated audience with interesting stories and succinct advice for dealing with active shooter scenarios. The Annual Luncheon provided the TCBA and Tulsa County Bar Foundation with an opportunity to showcase great work performed in the past year by excellent members. The awards given at the luncheon are summarized in the September issue of the Tulsa Lawyer. Take a look, and let these members know that they are appreciated. And, consider volunteering. If you see something that you would like to be a part of, or volunteer for, or if you have some ideas of what YOUR Tulsa County Bar Association should be doing, give me a call, or reach out to the staff.

Departed Members During the Annual Luncheon, I mentioned several of our members who passed away over the past year. But I pointed out that I did not have time to read the whole list. I think it is important to honor those who have passed these roads before us. These attorneys are trailblazers. They helped form how law is practiced in the Tulsa region today. Our legal professionals are known as collegial and professional. To maintain that standard, it helps to remember in whose footsteps we travel. Our staff tells me that the following are the TCBA members we lost in the last year: • • • • • • • • • • • • • • • • • • • • •

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J. Kenton “Kent” Francy Douglas L. Taylor Gary D. Underwood John Coffee Harris, II George Luis Carrasquillo William Christopher “Bill” Jackson R. Hayden Downie (Past President of the TCBA) Thomas Ryan Professor James “Jim” Thomas John Patrick “Pat” Cremin Richard E. Comfort H. Gregory Maddux Arthur Berl Fleak Margaret Swimmer Tommy Lee Holland Veronica Powell Surrell Donald Erwin Herrold J. Daniel Morgan (Past President of the TCBA) John Leslie Arrington, Jr. Samuel Field Phillips Daniel, Jr. (Past President of the TCBA) Clifford Russell Magee

This list includes two lawyers from my firm -- Margaret Swimmer and Pat Cremin. The list also includes a former law partner, Sam Daniel. There are three former TCBA presidents on the list: Daniel, Hayden Downie, and Dan Morgan. Each of these lawyers are no doubt remembered by fellow members of the TCBA. I'd like to see our TCBA continue to remember our members who pass each year, much in the way the OBA reads the list of departed members each year at its Annual Meeting. I've attended the OBA Annual Meeting for years. The reading of the list of departed members remains the most meaningful part of the meeting for me. Special Events This year, a number of TCBA's committee chairs are repeating in their roles, providing helpful continuity to our Association. Sabah Khalaf and Tim Rogers are repeating as co-chairs of the Special Events Committee. This committee will again assist with planning happy hours, parties, and an upcoming food truck event. As a guy who can't plan a party to save my life, I can tell you that Sabah and Tim fill a very valuable role with the TCBA. I would ask each of you to support their efforts. But don't attend their events just to support them. Attend to visit with or get to know other TCBA members. This is an important part of maintaining Tulsa lawyers' standard of collegiality and professionalism. You might even run into some of our judges. Membership Kara Pratt is also continuing in an important role for the TCBA, as chair of the Membership Committee. The Membership Committee looks for ways to enhance your membership experience. Much of this committee's work occurs each year during the TCBA's Membership Appreciation Month. The events during Membership Appreciation Month represent another useful and important opportunity to get to know other Tulsa lawyers.If you are a natural party planner (which I'm not, but I think we've established that already), then you should volunteer to serve on one or both of these committees -- Special Events or Membership. Sabah, Tim, and Kara would be grateful for the help. Get involved Ok, you've heard this from just about every organization in which you've ever been a member. And you are trained to be skeptical and ask questions. So you ask, why should I get involved in the TCBA? (Thanks for that open ended question!) If you are a new lawyer, you should get involved to meet other lawyers, find mentors, develop relationships, find resources. If you are a more experienced lawyer, you should get involved to maintain those same relationships,

meet newer lawyers, and give back the type of mentoring you received earlier in your career. In my book, that's the value of our Association. Continuing Legal Education While I see the mentoring relationships as a key value of the TCBA, some would argue that free CLE makes the membership worthwhile. Sure, I get that. Here's another twist on that same idea: If you want to teach at a CLE seminar, there's nowhere better to refine your skills than through the TCBA's CLE program. Call Lizzie Stafford, who is returning as CLE Committee chair. Volunteer to serve on the committee, or to give a presentation. I volunteered to make a TCBA presentation on an appellate-law issue years ago, as a young associate, when my friend and former law partner Jon Brightmire asked me if I'd be interested. The TCBA provided a great opportunity for me to get into teaching CLE. I know a number of other lawyers who got their start as CLE instructors the same way. And nothing keeps your legal skills current like teaching. These days, my CLE teaching is focused on coming up with something interesting to teach at Henry Will's Annual Estate Planning seminar. Henry is one of the greats. He looks for opportunities to mentor younger lawyers. For me, that's taken the form of opportunities to teach at his annual seminar. I'm challenged each year to come up with something interesting. I think I've got a good topic for this year. I'll be talking about pretermitted heirs. Sounds interesting, right? I'll do my best to find some new and interesting angles on this issue As you are reading this column (if you've made it this far!), it is time to sign up for the TCBA's fall free CLE programs. Go online and sign up. Sincerely, Jim Milton TCBA President, 2019-2020

Please join the TCBA Monday, November 11th as we march in the Tulsa Veteran's Day Parade! Watch emails for more details.

Everyone is weclome!

TCBA Continuing Legal Education - Don't Miss This!

Healthy Lifestyle as a Pathway to Peak Attorney Performance By John Lieber, JD, RNP

Peak Attorney Performance means a lawyer is functioning at the highest level of her or his competence. Peak Attorney Performance includes: • • •

Thinking that is clear, creative and focused A mental attitude of confidence and control Physical energy and stamina

October 29th & 30th See page 6 for registration details!

Good health, as influenced by a healthy lifestyle, contributes to all of the performance factors mentioned above. What is a healthy lifestyle? It includes: • • • •

Healthy Eating Regular Physical Activity Stress Management Adequate Sleep

How can you include these healthy lifestyle components into your busy life? •

Healthy eating habits include portion control, limiting junk food and eating more fruits and vegetables.

•

Regular physical activity is more of a challenge, because it requires your precious time. The key to success is finding something you enjoy doing. If you can spare 75 minutes a week for vigorous physical activity (such as running, singles tennis, swimming laps or aerobic dancing) or 150 minutes a week for moderate physical activity (such as walking, water aerobics, doubles tennis or general gardening), you will meet the recommendations for cardiovascular fitness.

•

Stress management exercises that are easy to learn and easy to do include relaxation breathing, mindfulness and guided imagery.

•

Getting the recommended 7 to 8 hours of sleep can be a challenge, but it can be done. Try to set a specific bedtime that will enable you to get enough sleep, stick to that schedule and turn of all phones, computers and TV’s 30 minutes before bedtime. If you are already practicing a healthy lifestyle, then congratulations. Your colleagues probably notice how your lifestyle increases your energy level and your performance as an attorney. If you think your lifestyle could be healthier, then try some of the ideas listed above, or talk to a friend or health care professional about how you can get started.

John Lieber is a Tulsa attorney and registered nurse. His law practice has focused on litigation, real estate and general business matters. His nursing work includes leading workshops for law firms, bar associations, employers and community groups on a variety of health topics such as healthy eating, stress management, stroke prevention and diabetes education. Jlieber75@cox.net

2019 HOLIDAY CHALLENGE Natalie Sears, Chair

I put a spell on youuuuu, and now you’re mine….. Ah, October. One of my personal favorite months. The cool weather has (hopefully) arrived, the leaves will start changing colors soon, fall candles will be burning, Oktoberfest will be later this month….. Before I start daydreaming of fall, I want to remind everyone of all the great opportunities to give back to those in need this holiday season. The Holiday Challenge is here again, and I want the TCBA to rally together to adopt as many families as we can! The TCBA was Family & Children’s Services second largest family adopter last year – enough so, they ran out

of families to adopt! It is always such a wonderful feeling giving back to those in need. If you haven’t adopted a family yet in years past, I would highly recommend doing so. You can choose a small family to start – no commitment is too small!! Here are the details: The process is simple. You can either choose to donate money, or you can choose to be matched with a specific family in need. Here’s how it works:

Cash: Send your tax deductible donations payable to TCBF and note “Holiday Challenge” on your payment. Cash donations will be accepted through December 6, 2019 .-or"Adopt a Family” • Select the family size that you or your team want to “adopt” and Family & Children’s Services will match your team with a family in need; •

• •

Submit your team’s information (names and contact information) and size of family you wish to “adopt” via email to nsears@cordelllaw.com;

Once matched, you will be given a list of requested items from your “adopted” family. The items requested for your “adopted” family will need to be gift wrapped and dropped off to either TCBA or Family & Children’s Services in Tulsa by December 11, 2019; Family & Children’s Services will distribute the gifts to your “adopted” family!

If you would like to “adopt” a family, please contact me by November 8th so we can start the matching process with Family & Children’s Services. If you’d like to get involved in more than one way, please feel free to reach out to me at nsears@cordelllaw.com so I can give you information on how to get involved.

All 2019 sponsors will be recognized in the Tulsa Lawyer Magazine as being totally awesome people with generous hearts (so let me know if you would prefer your donation to remain anonymous). Let’s show our Tulsa area children in need that they are not forgotten. Please join us and let’s make the 2019 Holiday Challenge a huge success!

BASIC PROBATE & ESTATE PLANNING Presenter - Mark Darrah

2.0 Hours CLE

• Learn the basics of handling a probate or estate administration from beginning to end. • Materials include all the basic forms on needs to file for simple estates. • Gain insight how to use simple shortcuts to avoid procedural traps.

TUESDAY NOVEMBER 5 Tulsa Lawyer 5

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CLE REGISTRATION NOW OPEN SPACE IS LIMITED AND PRE-REGISTRATION IS REQUIRED

REGISTER ONLINE AT: WWW.TULSABAR.COM ALL SEMINARS WILL BE HELD AT THE TULSA CO. BAR CENTER 1446 S BOSTON AVETULSA, OK 74119 QUESTIONS? CONTACT TAMI WILLIAMS AT 918-584-5243 EXT 1002 OR TAMIW@TULSABAR.COM Pre-registration is required.- Seminars are subject to change.Materials will be emailed to pre-registered attendees before the seminar. Paper copies are not provided. * CLE includes a 1.5 HR lunch break ** Seminar limited to 20 participants

^ Snacks Provided # Lunch Provided

NON-MEMBER RATES 0 (REFUNDS ISSUSED ONLY IF REQUESTED 24-HOURS PRIOR TO START OF SEMINAR)

All courses are available to audit (no credit given). Non-Member Audit Rates: 1-3.0 HRS = $5; 4.0+ HRS = $10.

Summary of ABA 2019 Annual Meeting Molly Aspan, Tulsa County Bar Association Delegate to the ABA House of Delegates

I was honored to serve as the Tulsa County Bar Association Delegate at the 2019 ABA Annual Meeting held in San Francisco this August. The ABA released its 2019 Profile of the Legal Profession at the annual meeting. While the growth of the legal industry has slowed in recent years, the number of lawyers nationwide has grown an average of 1.7% each year since 2000, for a 32% increase. However, Oklahoma joins Alaska as one of two states that has lost lawyers since 2000, as the number of lawyers in Oklahoma in 2019 is 5% less than the number of lawyers in Oklahoma in 2000. The Profile of the Legal Profession also contains other demographic information along with data on lawyer wages, legal education, federal judges, pro bono, legal technology, lawyer well-being, and lawyer discipline, and it can be accessed online at americanbar.org/news/reporter_resources/profile-ofprofession/. The annual meeting also included a financial drive to benefit the ABA Legal Opportunity Scholarship Fund, led by Former ABA President and Oklahoma attorney William G. Paul offering a $50,000 House of Delegates matching gift challenge. The ABA Legal Opportunity Scholarship Fund provides financial assistance to 10-20 diverse students each year. Thank you to Mr. Paul for his generosity and for making Oklahoma proud! Additionally, new policies were adopted by the ABA House of Delegates at the annual meeting on an array of topics, such as immigration law, marijuana law, free speech on campus, and pay equity. The ABA House of Delegates is made up of 594 members representing state and local bar associations, ABA entities, and ABA-affiliated organizations. The following is a summary of the major resolutions approved by the House of Delegates. If anyone would like further information on any of these resolutions or reports, please do not hesitate to reach out to me. • Encourages online providers of legal documents to adopt the ABA Best Practice Guidelines for Online Legal Document Providers.

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• Urges Congress, state, local, territorial, and tribal legislatures to enact legislation and appropriate adequate funding to ensure equal access to justice for Americans living in rural communities by assuring proper broadband access is provided throughout the United States. • Urges all private and public universities and colleges to uphold the principles of free expression on university and college campuses to promote freedom of debate and thought, and to protect that freedom when others attempt to restrict it. • Encourages state, local, and territorial jurisdictions that do not presently have a central panel system to consider establishing that model of state administrative law adjudications in appropriate cases. • Encourages federal, state, and local governments to consider taking measures to maximize the ability of all Administrative Adjudicators to render decisions, freely, fairly, and independent of agency interference. • Urges Congress to make the ameliorative provisions of the First Step Act retroactive and urges the President and Attorney General to take action to implement the provisions of the Act. • Urges Congress to repeal the statutory exclusion of dental care and dentures from Medicare and expressly add coverage of comprehensive dental and oral health services to the Medicare program. • Urges all lawyers who provide advance care planning as part of their estate planning services to take into account the eight principles that were developed through the John A. Hartford Foundation funded project. • Urges Congress to enact legislation to resolve the conflict between some state and federal law over marijuana regulation and to update federal marijuana policy.

• Urges states, local, territorial, and tribal governments to enact statutes, rules, or regulations and judges to promulgate policies to limit the possession of firearms in courthouses and judicial centers to only those persons necessary to ensure security. • Urges all legal employers of lawyers to implement and maintain policies and practices to close the compensation gap between similarly situated male and female lawyers. • Urges each state’s highest court and those of each territory and tribe, to study and adopt jurisdictionally appropriate proactive management-based regulatory (PMBR) programs to enhance compliance with applicable rules of professional conduct and supplement existing disciplinary enforcement mechanisms. • Supports legislation creating the establishment of a Copyright Small Claims Program, with authority to adjudicate copyright small claims as a lower-cost, less time-consuming alternative to federal court litigation of copyright claims. • Urges federal courts to interpret the clause “where the defendant has committed acts of infringement and has a regular and established place of business,” in the special venue statute, 28 U.S.C. § 1400(b) when

applied to Abbreviated New Drug Application (ANDA) litigation under 35 U.S.C. § 271(e)(2) to mean a district in which the defendant who filed an ANDA application is anticipated to commit acts of infringement. • Supports the principle that a patentee may recover lost profits under 35 U.S.C. § 284 resulting from foreign activity incidental to domestic infringement of a patent pursuant to 35 U.S.C. § 271(f). • Urges the United States Government, state, territorial, and tribal governments to take a leadership role in addressing the issue of climate change and urges Congress to enact and the President to sign appropriate climate change legislation. • Urges courts and lawyers to address the emerging ethical and legal issues related to the usage of artificial intelligence in the practice of law. • Urges business enterprises to implement the guidance set forth in the report “Share Space Under Pressure: Business Support for Civic Freedoms and Human Rights Defenders; Guidance for Companies,” published jointly by the Business and Human Rights Resource Centre and the International Service for Human Rights in September 2018.

continued on next page...

• Urges all governments to prioritize dignity rights in crafting, implementing, and enforcing laws, policies, regulations, and procedures. • Urges the United States Government to enforce fully and consistently the Arms Export Control Act and the Foreign Assistance Act, particularly the Human rights provisions thereof. • Urges Congress to ensure that the health care delivered by the Indian Health Service (IHS) is exempt from government shutdowns and federal budges sequestrations on par with the exemptions provided to the Veterans Health Administration. • Urges Congress, states, and territories to enact legislation that would provide stronger remedies and protections against pay discrimination on the basis of sex (including gender and gender identity), race and ethnicity and for employees with disabilities to help overcome the persistent barriers that continue to impede the achievement of pay equality. • Supports the constitutionality of the Indian Child Welfare Act (ICWA) in the effort to strengthen tribal jurisdiction over their child welfare system, uphold tribal kinship and set standards specific for American Indians/Alaska Natives child and youth placement. • Urges the Department of Justice to retain—as a minimum threshold—existing policy protections, as codified at 28 C.F.R. § 50.10, that limit federal law enforcement in obtaining information from, or records of, members of the news media, and that limit federal law enforcement in questioning, arresting, or indicting members of the news media. • Advocates the requirement of all law enforcement agencies to adopt regulations similar to the standards set by the Commission on Police Officer and Standard Training (POST). • Urges federal, state, local, territorial, and tribal governments to refrain from imposing upon medical facilities or healthcare providers’ requirements that are not medically necessary or have the purpose or effect of burdening patients’ access to healthcare services. • Urges the United States Government, and Governments around the world to promote the human right to a basis income by increasing the funding, development, and implementation of basic income strategies to prevent infringement of this right. 10 Tulsa Lawyer

• Urges courts, as well as their respective bar associations, to carefully review their policies on use and admittance of cellphones in courthouses, to ensure meaningful access to our judicial system, balancing the security risks posed by cellphones with the needs of litigants, and in particular, those who are self-represented or of lower income. • Urges states, counties, tribal and local governments to enact legislation to ensure that any proceeds they receive from the current opioid litigation be used for remedying the harm resulting from the opioid epidemic. • Urges Congress to enact legislation to amend the Ethics in Patient Referrals Act of 1989 (commonly known as the Stark Law) to modernize the law and encourage the adoption of value-based payment arrangements and other coordinated care arrangements that will lower costs to the Medicare program and improve the quality of services to its beneficiaries. • Emphasizes the rights of parents and children to family integrity and family unity and the maintenance of family connectedness if a child does need to enter foster care. • Urges the United States and other countries to take measures in response to the crimes committed against the Rohingya by the Burmese/Myanmar military. • Recommends that the Executive Office for Immigration Review amend 8 C.F.R. § 1003.1(h) and establish, through rulemaking, standards and procedures for the Attorney General certification process. • Recommends that the Executive Office for Immigration Review continue the implementation of an integrated, system-wide electronic filing and case management system nationwide, with adequate funding from Congress. • Recommends that the Department of Homeland Security (DHS) codify the core requirements of the 2009 Parole Directive into regulation. • Recommends that the Circuit Court of Appeals establish or expand pro bono programs to provide pro bono representation to pro se appellants to help efficiently resolve immigration cases. • Recommends that the Executive Office for Immigration Review amend regulations to eliminate the automatic termination of voluntary departure when an applicant petitions for judicial review under 8 C.F.R. § 1240.26(i) and also to implement an automatic stay of removal or deportation pending judicial review by the U.S. Circuit Court of Appeals for the pendency of the appeal period.

Litigation Section- What's Coming Up?

Section Chairs, Robert Mitchener, III and Robert J. Winter, both of Pray Walker, P.C For membership year 2018-2019, the Litigation Section of the TCBA held monthly meetings providing free CLE focusing on litigation practice skills. The section received presentations from attorneys Shane Henry (Opening Statements), Ken Underwood (Investigation of a Personal Injury Claim), and Roger Dodd (CrossExamination). To kick off membership year 2019-2020, Shane Henry presented CLE on Trial Techniques. For the upcoming membership year, new Litigation Section Chairs Robert Mitchener, III and Robert J. Winter, both of Pray Walker, P.C., are working to schedule presentations on using technology during depositions and trial, insight from the Oklahoma Bar Association Civil Procedure and Evidence Code Committee, a case study on partnership by conduct, and a Question and Answer session with several Tulsa County judges and attorneys to discuss the most common do’s and don’ts in the courtroom.

Litigation Section meetings will be held on the third Thursday of every month during the noon lunch hour at the TCBA. It looks to be an exciting year for the Litigation Section so please plan to attend future meetings.

TCBF Golf:

Giving

Greg Gordon, TCBA Executive Director met with the Tulsa Lawyers for Children board members. The TCBF presented them with $2,000 from the charity golf tournament. Pictured L-R: Daniel Carter, Conner & Winters; Amber Cornelius; The Needham Companies; Allen Smallwood, private practice and TLC board president; Greg Gordon, TCBA Executive Director; Rachel Thompson, Bank of Oklahoma; Elizabeth Hocker, Executive Director - TLC; Thomas Kirby, retired from ONEOK; John Rule, Gable Gotwals. Tulsa Lawyer 11

VP's Corner: BRACE YOURSELVES… CHRISTMAS IS COMING!

Kara Vincent, TCBA Vice President 2019-2020 I read a meme recently (I’m writing this at the end of August) that said there were only 18 weeks left until Christmas. My first thought was that I need to unfriend the person who shared it. I mean, who needs that kind of reminder. My second thought was that I need to start shopping now, and I’m not joking. If I start now, maybe I’ll eliminate some of the stress that the holidays can bring – ‘cause we can’t eliminate our extended family members…am I right? Seriously, if I can’t stop Aunt Mildred from talking about her gall bladder procedure AGAIN over dinner, maybe I can mitigate anxiety in other ways before I ring in the New Year.

Committee, feel free to reach out to Natalie Sears at nsears@ cordelllaw.com and she can give you more information.And, now we’ve reached the portion of the article with the fine print which would be read at two times the regular speed on a vehicle or drug commercial: All 2019 sponsors will be recognized in the Tulsa Lawyer Magazine as being totally awesome people with generous hearts (so let Natalie Sears know if you would prefer your donation to remain anonymous).

And, while we’re on the subject of Christmas (I realize that you’ve been dragged into the subject by me, but hang in there), let’s talk about some people that should be on your list and mine – the clients receiving care from Family & Children’s Services. These families have basic needs that hopefully you and I will never have to worry about…like food, clothing, and shelter. I’m sure each of you reading this wants to help. Lucky for us, the TCBA’s Children and the Law Committee has an easy way to do just that - it’s the 2019 TCBA Holiday Challenge!

HAPPY HOLIDAYS!  (in approximately 18 weeks)

Please join in and let’s make the 2019 Holiday Challenge a huge success! Come on, you know you want to…

For the past several years, the Children and the Law Committee has hosted this event for the TCBA members. Last year, we were able to raise a little over $1,200 AND our members adopted 25 families. This year, the Committee is hoping to improve on both of those figures. The process for contributing to the cause is easy and you can help us accomplish our new goal by either donating cash or adopting a specific family in need. Please check out all the details on page 5 of this issue of Tulsa Lawyer! This is a great opportunity for law firms or groups of lawyers to adopt a family and rally behind something other than a strong billable hour. This is also an opportunity for individuals or groups who don’t have extra time for shopping and wrapping to donate cash and know they are helping someone in need. There are multiple ways to make a difference in the lives of these families. If you’ve read this article and are compelled to be involved in the Holiday Challenge in more than one way, or you would like to get involved in the Children and the Law Tulsa Lawyer 13

Cannabis Accounting: The Economic Landscape, Business and Tax Planning By Ryan Berry, Senior State Tax Attorney at Polston Tax Resolution and Accounting The effects of medical marijuana in Oklahoma have spread rapidly across the state’s economic landscape in the first year of the law’s infancy. While the legislation’s primary intent aims to provide medicinal relief to a wide array of ailments for those individuals who are approved for a state-issued license, the economic impact of the revenue generated by cannabis businesses has created a market specialized in maximizing this greenery through tax planning and accounting. One of the major difficulties cannabis businesses face in relation to increasing their bottom line is the federal restrictions outlined in 26 U.S. Code §280E. This statute bars businesses from taking their deductions or credits for any revenue they generate if the business, or any of its activities, consists of trafficking in controlled substances which is prohibited by federal law. The only expenses they are allowed to claim are those associated with cost of goods sold. Although people have been advocating strongly for marijuana to be removed from Schedule I of the Controlled Substances Act for years, it currently remains listed as an illegal substance and therefore falls into the restrictions of this code section.

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Practically speaking, this creates two issues that cannabis businesses must navigate around. First, it prevents them from deducting many of their expenses, other than their cost of goods sold, from the gross revenue on their tax returns. Second, with many banks being backed by the FDIC, a federal agency, banks are becoming increasingly hesitant from opening and maintaining bank accounts for businesses that deposit and transfer funds from transactions involving the sale of cannabis. In order to address the 280E obstacle, cannabis businesses have been exploring a business model that has been around since California first legalized marijuana, the use of management companies. Under this structure, cannabis businesses will pay large sums of money to these management companies that operate under a separate FEIN. Then the management company claims its income as revenue generated from managing or consulting in order to avoid disclosing its affiliation with marijuana related transactions. This separation aims at allowing the management company freedom to now claim deductions and credits that would otherwise be disallowed by the business. While this does create the potential to circumvent §280E, failing to disclose the true nature of the revenue also forms the very real possibility of opening both the business and management company up for both significant legal exposure and audits on the businesses’ tax returns. In Alternative Health Care Advocates et al. v. Commissioner of Internal Revenue, 151 T.C. 13, Tax Court decided to disallow this very strategy that resulted in the taxpayer owing over $500,000 in taxes to the IRS after Tax Court viewed both entities as subject to 280E. While there will likely be future cases that address this and other issues cannabis businesses face, it does help reiterate the need for continued efforts to advocate for Congress to repeal 280E or remove marijuana from Schedule I of the Controlled Substances Act.

The utilization of a management company comes with similar risks when trying to open a bank account with a financial institution that is also a member of the FDIC as it forces the management company to conceal the true nature of its business and its connection to cannabis activity. However, cannabis businesses in Oklahoma have other avenues when it comes to owning a bank account that avoids the legal implications associated with implementing a management company structure. An alternative avenue for a cannabis business to secure a bank account is to research and identify financial institutions unassociated with the FDIC as they don’t have the same federal regulations the other banks would otherwise be subject to. State-charted credit unions show some promise for the cannabis industry in Oklahoma. Credit unions are not backed by the FDIC and are categorized as either statechartered or federally chartered. Federally chartered credit unions are subject to the regulatory authority of the National Credit Union Administration (NCUA). State-charted credit unions are subject to their respective state’s regulation and guidelines and must adhere to NCUA regulations as well if they are affiliated. The Oklahoma Banking Department is tasked with supervising various state-charted financial institutions, including credit unions, throughout the state. Many credit unions are working on measures to incorporate businesses involved in the cannabis industry into their policies to provide access to business checking and savings accounts. I changed this part due to the fact we know of some FCU’s that offer bank accounts to cannabis businesses. There is likely going to be frequent and consistent change regarding medical marijuana in the coming years, and it will require continuing research and restructuring by businesses in the industry to stay current on all the laws and regulations it is affected by. In an absence of legislative direction on a myriad of topics within the industry, a well-crafted accounting plan and business structure may provide successful arguments to overcome pushback by state and federal agencies.

Ryan Berry’s current position as Senior State Tax Attorney allows him to do two things he enjoys: making a difference in his clients’ lives and using his legal knowledge to make people’s lives easier. Ryan’s parents are business owners and their entrepreneurial spirit continues to challenge and encourage him. After receiving his Bachelor of Business Administration at Oklahoma Baptist University he went on to receive his Juris Doctorate from the University of Tulsa College of Law. While attending law school Ryan saw a job opportunity for Polston Tax and felt compelled to apply. Now Ryan is the Senior State Tax Attorney and is tasked with overseeing cases. Ryan continues to utilize and hone his tax knowledge by presenting to organizations throughout the year: • • • • • •

Speaker at the Oklahoma City Tax Breakfast Speaker at the South Oklahoma City Lawyers Association meeting Speaker at the Tulsa Title & Probate Lawyers Association meeting Speaker at the OSHBA Remodelers Council meeting Speaker at the Creek County Bar meeting Speaker at the Tulsa County Bar meeting

Law Firms, such as Polston Tax Resolution and Accounting, are valuable resources to consider when it comes to creating and implementing tax plans to maximize revenue while also utilizing safeguards to shield against any impending audits that may occur given the unique situation the cannabis industry finds itself in. Tulsa Lawyer 15

Courthouse Badges: Reminder to Take Action All courthouse security badges expired August 31st. Renew now! TCSO is now issuing badges! • Everyone needs to turn in their old or expired badges in order to recieve the new badge. • All renewals must include a signed and notarized oath to receive authorization receipt with your TCBA membership renewal information and payment. • Badges will be valid 09/01/19-08/31/20 as renewal is returning to a one-year period. • Non-TCBA members must also submit a signed and notarized oath and payment of $150. Oaths can be found online.

Current Developments in Bankruptcy Law Tuesday, November 12th 12 PM - 1.0 CLE Hour Speakers:

Sam Bratton Doerner, Saunders, Daniel & Anderson, LLP Sidney K. Swinson GableGotwals

Topics covered include: • • •

Case law update Rules changes Hot topics & emerging issues

• The authorization receipt will be mailed unless you make other arrangements to pick it up. • This receipt must be presented at the Sheriff’s Office, along with a photo ID, and your old or expired badge to have your picture and fingerprints taken and to receive your access badge. New badges will be valid until the expiration date of August 31, 2020.

* NOTICE REGARDING COURTHOUSE BADGES * We are aware that some of the badges issued by the Tulsa County Sheriff’s Office in October 2017 listed an incorrect expiration date. We believe that all badges issued by the TCSO from September 2017 through current have an expiration of August 31, 2019. We will be including renewal information in our membership packages, which you will receive in August. Tulsa Lawyer 17

Animal Law Committee Supporting Pets and People By Katy Inhofe, Chair

We don’t meet to look at pictures of our pets on our phones; we work to educate the Bar and public about the benefits of the human-animal bond in the judicial system and our community. We also support efforts by local nonprofits to positively impact the lives of animals and people. (Sharing pet photos after the meeting is optional.) Court Dogs at Law Day Luncheon This is the second year that the Animal Law Committee hosted the Court Dogs (formally known as the Tulsa County District Attorney’s Special Dog Unit) at the Law Day Luncheon on May 3, 2019. Court Dogs and their handlers greeted interested bar members and guests across from the registration table. Visitors learned that children who may have suffered physical, sexual and/or emotional abuse can have a Court Dog as their partner

18 Tulsa Lawyer

in the courthouse to help relax them and to provide them with a sense of security. The Animal Law Committee enjoyed hosting the Court Dogs to educate the bar and the community about these special dogs’ role in the judicial system and we look forward to them joining us at the Law Day Luncheon next year!

year. Each donation of $100 pays for an intake exam, vaccinations and flea and tick treatment for a pet going into temporary foster care. A donation of $45 pays for a spay/neuter before a pet is returned to its owner. Thanks to Amelia’s and the generous bar members who supported Lawyers Against Pawverty! Donations can still be made to Tulsa County Bar Foundation; please specify Lawyers Against Pawverty. Santa Paws is back!

Lawyers Against Pawverty Each year the Animal Law Committee chooses and promotes a worthwhile local organization that positively impacts both animals and people. This year we chose to support Pause4Paws. Pause4Paws is a local nonprofit that helps people struggling with mental illness, addiction or homelessness who need urgent medical, mental health or addiction treatment by providing short term foster care for their pets. The Committee hosted Eat Out For A Cause on June 18 at Amelia’s Restaurant in the Brady District in conjunction with the TCBF Outreach Committee. The Committee raised $1,750 this

For a donation of $25, furry family members can get their photos with Santa Claus in front of a beautifully decorated tree. All proceeds go to Spay Oklahoma, a nonprofit that provides low cost spay and neuter services to help prevent pet suffering and reduce dog and cat overpopulation. Last year we raised $750 to support this important cause. We will hold Santa Paws again this year on November 9, 2019 from 9:00 a.m – 2:00 p.m., in plenty of time to get your holiday cards out. To schedule your photo or to volunteer to help Santa and pets, contact Tami Williams at tamiw@tulsabar.com or 918-584-5243. Monthly Meetings The Animal Law Committee meets monthly on the third Wednesday of each month. To join the committee, email Tami at tamiw@tulsabar.com

Santa Paws is Coming to Town With a $25 donation, your furry family members can have their picture taken with Santa Claus in front of a beautiful holiday tree. The Santa photo-op will he held on Saturday November 9, 2019 from 9:00 a.m – Tulsa in 2004 in response to Oklahoma’s serious pet 2:00 p.m. at the Tulsa County Bar Center. overpopulation problem. More than 60 percent of pets Please schedule your holiday photo session become unwanted and will be abandoned or end up online at tulsabar.com or by emailing Tami Williams at in pounds, shelters, or research labs. Spay Oklahoma offers affordable low-cost spay and neuter services tamiw@tulsabar.com. from professional licensed veterinarians to help prevent The Animal Law Committee is hosting this holiday unwanted births and pet suffering and reduce dog and event and all proceeds will benefit Spay Oklahoma. cat overpopulation. Spay Oklahoma is a non-profit organization founded in Tulsa Lawyer 19

Court Assistance Program Is Back!

Beth Nellis, ACP CAP Coordinator To paraphrase legendary baseball player, Lou Gehrig's famous 1939 speech at Yankee Stadium, I truly feel like "the luckiest (wo)man on the face of the Earth" because I am the paralegal who was given the opportunity to participate in the Court Assistance Program ("CAP") and work alongside the many dedicated attorneys who have enabled CAP not just to survive but to thrive since its formation in 2010. It is hard to believe that nearly a year ago, the CAP's pro bono program was about to end, due in part to changes on the Small Claims "Bench" and the dissolution of the original partnership with Legal Aid Services of Oklahoma ("LASO"). At that time, a few people argued (what attorneys are supposed to do best!) that the program had seen some success, it had reached fewer needy Tulsans than expected, and sadly, it had run its course. However, the numbers told a different story altogether. Consider the following facts. Between October 2010 and August 2019 (which included partial years) 576 pro bono attorneys managed 976 cases and logged an impressive 1,899.25 hours worth of legal counsel at an average billable equivalent of $577,116.00 (based on an average of $300.00 per hour). Their service to the community was undeniably significant as their work through CAP helped to protect the most needy and vulnerable Tulsans from homelessness. This unprecedented success of a pro bono program captured the attention of both the Tulsa bar and city's lawmakers, and the program garnered additional support at the state level from the Oklahoma Bar Foundation and the Oklahoma Supreme Court Access to Justice Commission. As a result of CAP's dedication and resolve to help disadvantaged Tulsans, TCBA offered to work with CAP through its Pro Bono Committee to strengthen the program even more. At this point, in addition to my role Intake Coordinator, I was offered the position of CAP Coordinator as the CAP expanded coverage to all four days of the Forcible Entry & Detainer ("Eviction") Dockets and eliminated the U.S. Citizenship requirement utilized by LASO in order to reach as many disadvantaged Tulsans as possible. Once the citizenship requirement was negated, Tulsa's long overlooked but nonetheless rapidly growing Hispanic community, felt empowered enough to seek CAP's assistance. Another critical component of CAP, a live training seminar for pro bono attorneys and paralegals, was recorded and made available for viewing at the TCBA along with the training manual on the defense of FED cases. TCBA Staff has made 20 Tulsa Lawyer

training even more accessible by providing "thumb drives" to firms interested in training large numbers of their staffs at one event. These developments have allowed the program to grow and flourish even more. As a result of the structured entry into this pro bono program, the CAP's pro bono volunteers now come from all fields of law. Initially, some attorneys erroneously believed that they could not participate in the program because they were required to have experience in property or real estate law or that they should be skilled in social work. Attorneys who have an interest in participating now know that the CAP pro bono volunteers do not need these sorts of backgrounds. Program volunteers can come from any area of the law and still participate so long as they good listeners and good communicators who are patient and tolerant and can "think fast on their feet", which is no more than expected of any lawyer in any area of law. The CAP program requirements are simple and straightforward. Volunteers appear only once a month on the FED Docket but may appear more often. Several of the CAP volunteers have become regulars and often appear numerous times each month because the experience is both stimulating and rewarding. Volunteers describe their experiences as varied and often quite challenging. Participants have ample opportunity for courtroom representation ("bench trials"), networking with their peers, judges and others in the legal profession. However, the greatest reward is knowing they have made a difference in the lives of our most vulnerable citizens as the FED ("Eviction") Docket is generally the last step in the process before they become homeless. The numbers do not lie. Pro bono volunteers have literally saved hundreds of families from becoming homeless. People often ask me why I work in this Court Assistance Program. The simple answer is that by working with CAP I make a positive difference in the lives of my fellow Tulsans, and I help to strengthen my profession's belief in justice for all. I cannot cite every case but I will tell you of one case that I shall always remember. A disabled couple in their 40's, living in public housing, was recommended to CAP during a routine FED Docket call; the wife was terminally ill and her husband was a double amputee confined to a wheelchair. The Tulsa Housing Authority mistakenly believed that the couple had removed and sold THA's refrigerator and replaced it with

another one. The wife tearfully told me during Intake that the couple only wanted to remain in their apartment because she "wanted to die in her own home". During the bench trial, the CAP volunteer proved that the couple had not removed and sold the refrigerator but that the serial number which correctly identified the refrigerator on THA records was in error. Cleared of the false accusation, the grateful couple was able to return to their home where the wife peacefully passed within a few weeks. Not long after his wife's passing, the husband returned to the courthouse and in tears, thanked me, the CAP and asked that I especially thank the pro bono volunteer attorney who had kept his dying wife from losing her home within days of her passing. Thanks to CAP, his wife had been allowed to die in peace in her own home. This is the sort of impact the CAP program has had in our community.

The Court Assistance Program has been and continues to be an essential part of our justice system. Tulsa County had over 18,000 eviction cases filed in 2018 alone. Over an eight month period in 2019, Tulsa County has risen from 11th to 10th in the nation number of filed evictions. Until recently the effected tenants were invisible, but the CAP pro bono volunteers have changed this situation. The CAP program has been and continues to be a great success, and I am passionate that it should continue to grow and flourish as it is the ONLY one of its kind in Oklahoma. The people who compose the CAP program are some of the brightest and best in the profession, and they are making a true difference in the lives of so many disadvantaged citizens who otherwise would have no one to defend their legal rights. One of our most dedicated pro bono volunteers says his goal

continued on next page...

Special Thanks to our CAP Volunteers!

(L to R):Andy Shank, Heidi Shadid, Sloan Lile, Nathalie Cornett, and Judge Ann Keele IMPRESSIVE! Andy Shank and collectively as Eller & Detrich from January 2019 through August 2019: • Andrew Shank has appeared 9 times, managed 20 cases, logged 19.50 hours at an average billable equivalent of $5,850.00 • Eller & Detrich has appeared 27 times, managed 60 cases, logged 56.00 hours at an average billable equivalent of $16,800.00 • Total "Team Pro Bono" contribution: 36 appearances, managed 80 cases, logged 75.50 hours at an average billable equivalent of $22,650.

Helen Callahan Cassia Carr Nathalie Cornett Mac Finlayson Shane Henry Brian Huddleston Sloan Lile Kimberly Moore Beth Nellis Ashley Ogle Michael Pacewicz Mike McCann Heidi Shadid Andy Shank Vani Singhal Aaron Tifft Cassandra Oliver-Divens Jim Proszek & Steve Soule, co-founders of CAP.

is to recruit at least one new CAP volunteer each month in 2019. I believe it can be and will be done because of such generous TCBA members as himself. At the recent TCBA Annual Meeting & Awards Luncheon, Outstanding Pro Bono Individual and Outstanding Pro Bono Firm awards were bestowed on Andrew Shank, Eller & Detrich, and the Eller & Detrich Firm ("Team Pro Bono") for their astonishing contributions to CAP! I want to not only applaud the CAP program and its wonderful pro bono volunteers but also to encourage all non-participating attorneys to become involved. We only ask for one appearance on the Forcible Entry & Detainer ("Eviction") Docket per month, and the time spent there will affect the clients for months and years to come. CAP training is free, highly accessible through the TCBA and includes one hour free CLE and the training manual. Most new volunteers will "shadow" experienced attorneys on the actual FED ("Eviction") dockets before being asked to appear on his/her own. FED ("Eviction") Dockets are held Monday, Tuesday, Thursday and Friday at 2:00 p.m. in Courtroom 112 at the Tulsa District Courthouse. During the "docket call", Judge Deborrah Ludi-Leitch recommends cases to the CAP volunteer. I provide those case files to the attorney and then complete Intake before introducing the tenant to the attorney. The volunteer conducts an interview, begins negotiating with the landlord or representative,

shares information with the tenant and resolves the case. These cases only last ONE day--there are no continued or rescheduled cases. Should negotiations fail, the attorney requests a "bench trial" but all cases are resolved that specific day by 5 pm. If you are interested in the Court Assistance Program ("CAP") or would like further information, please contact me at bethnellis@cox.net or 918-760-3945 (voicemail or text). YOU CAN MAKE A DIFFERENCE AND CAP CAN MAKE A DIFFERENCE FOR YOU!

Tulsa Lawyer Magazine

Contact tulsabarnews@yahoo.com

Employment Law Update: Important Developments in Federal & State Law

Presented by Chris Thrutchley, GableGotwals

November 4, 2019 12:00PM 1.0 Credit Hour

Learn the valuable and new information regarding: • Developments at the State Level • Developments at the Tenth Circuit • Developments at SCOTUS • Principle Takeaways

Santa Brings a Law Suit

The Tulsa County Bar Foundation, in conjunction with the TCBA, is gearing up for its ever-popular “Santa Brings a Law Suit” clothing drive. The drive annually provides business attire to men and women in need so they may make the best possible impression during a critical job interview or their first day of work. The legal community is particularly well “suited” for this task as so many of us wear professional attire every day. If you have professional or business casual clothes for men or women – suits, dresses, skirts, blouses, dress pants and shirts, ties, belts, shoes, etc. – please begin to put them aside for the benefit of needy and deserving Tulsans.

24 Tulsa Lawyer

MONDAY, NOVEMBER 4 THROUGH THURSDAY, DECEMBER 16

Drop-off your donations during regular business hours: TULSA COUNTY BAR 1446 South Boston, Tulsa, OK 74119 All items should be clean, on hangers and ready to wear. At the conclusion of this year’s drive, the TCBF’s Community Outreach Committee will deliver the clothing to Tulsa area charitable organizations. Past organizations include Women In Recovery, First Step Men’s Program, Phoenix Rising, 12 & 12, John 3:16 Mission, and Resonance Women’s Center, all of which truly appreciate and utilize your donations of professional attire to better our community. Your generosity is greatly appreciated (and tax deductible.) Tax receipts will be made available if you leave your name, mailing address, and a general description of the items donated at the time you drop off your donations. Let’s have a wonderful holiday season, and build on the past success of this drive by cleaning out our closets and helping Tulsans get back to work!

Ashley R. Webb, Community Outreach Committee Chair, Tulsa County Bar Foundation Riggs, Abney, Neal, Turpen, Orbison & Lewis, Inc.

Utilizing Paralegals in Tulsa County By Bobbye Meisenheimer ACP, Secretary, TCBA Paralegal Section In October, 2019, the Paralegal Section of TCBA will proudly celebrate the tenth anniversary of its creation. Tulsa is the only county in Oklahoma that can claim a separate paralegal section which is recognized by its bar association. Tulsa is also home to the National Association of Legal Assistants (NALA), which is one of the organizations that conducts voluntary certification and advanced certification tests for paralegals. Prior to computerization of the NALA certification test, candidates would sit for two full days with only a pencil on their desk and a proctor observing them taking the various sections of the test. Sound familiar? According to the Bureau of Labor Statistics, “the employment of paralegals and legal assistants is projected to grow 12 percent from 2018 to 2028, much faster than the average for all occupations.”1 Tulsa Community College has been the forerunner in offering a paralegal training program to interested students. According to the TCC website, “the Program is approved by the American Bar Association Standing Committee on Paralegals, is an institutional member of the American Association for Paralegal Education, and is the only regionally accredited, degree granting Paralegal Studies Program in Green County.” In Tulsa, paralegals can be found working in not only law firms, but also hospitals, corporate legal departments, court systems, and even title companies and real estate offices. However, are paralegals being underutilized in the Tulsa legal community? Formal school programs include advanced legal research and writing, along with training in specialized areas such as contracts and real property law. There are a lot of talented paralegals in the Tulsa area that can contribute to your company’s profitability and productivity. Whether a paralegal has had on-the-job or formal training, they should be given the opportunity to show you their many talents. 2

1 Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, Paralegals and Legal Assistants, retrieved from https://www.bls. gov/ooh/legal/paralegals-and-legal-assistants.htm (visited September 8, 2019).

Upcoming Meeting Dates: TUESDAY, November 5 Trial Preparation for Paralegals by Shane Henry, Henry & Dow Thursday, January 9 Immigration Law by Marvin Lizama, Lizama Law Thursday, March 5 Medical Marijuana Law Updates by John Hickey, Hall Estill

Tulsa Community College. (2019). 2018-2019 Tulsa Community College Catalogue, retrieved from https://www.tulsacc.edu/programs-and-courses/academic-programs/paralegal-studies-aa (visited September 9, 2019).

facebook.com/ tulsacountybar

@tulsabar Tulsa Lawyer 25

Evolution of Mental Health Care Durand Crosby, J.D., Ph.D. Chief of Staff and Chief Operating Officer Oklahoma Department of Mental Health and Substance Abuse Services

“If you do not know where you come from, then you don't know where you are. If you don't know where you are, then you don't know where you're going. If you don't know where you're going, you're probably going wrong." ~Terry Pratchett

Sometimes the best way to understand something is to understand the history of how it came to be. This applies to understanding the nature of civil commitment law, and mental health law in general. Therefore, this article presents a brief summary of the history of mental health treatment in the United States, as well as the evolution of mental health laws pertaining to civil commitment.

Lynn Dix. Ms. Dix, who was an author, teacher, and the Superintendent of Army Nurses for the Union during the Civil War, took a job teaching inmates at a prison in Massachusetts following the war. There she found the conditions for the mentally ill to be inhumane. She noted that they were intermingled with dangerous criminals, chained, starved, often left naked, and frequently physically abused. Ms. Dix began travelling to other prisons, noting similar conditions In colonial days, people with mental illness were and advocating for improved conditions and “moral often viewed to be possessed, or in need of religion.1 As treatment”3 for those with mental illness. Her efforts a result of these negative attitudes and stigmatization, culminated in the creation of more than 30 psychiatric people with mental illness were often left to be tended hospitals throughout New England.4 to by their families, placed in poorhouses, or “warned With the creation of mental health hospitals, out”2 of their community. The general idea was to minimize the trouble caused to the community – not to conditions for the treatment of those with mental illness treat those who were mentally ill. If the individual was began to slightly improve. However, an issue arose as quiet and did not bother those around him or her, they to how individuals were admitted to these hospitals. were generally left alone. However, if they committed A case highlighting this issue involved Elizabeth crimes, created a disturbance or caused a nuisance, they Packard. Mrs. Packard was married to a Calvinist would often be imprisoned. Frequently, people with minister named Theophilus Packard, who was fourteen mental illness were placed in jails where they would years older and was said to be “cold and domineering.”5 they were kept in unsanitary conditions with violent Although the couple had six children, their marriage criminals. was not a happy one. Elizabeth Packard would often A movement toward reform began in the mid-1800s, spearheaded by the efforts of Dorothea 3 1

Deutsch, Albert (1937). The Mentally Ill in America: A history of their care and treatment from Colonial times. N. Y.: Doubleday.

See, e.g., in 1779 the Vermont State Legislature passed a series of laws: one law requiring, that towns care for their citizens, and another stating that they could exclude transients who were “not of a quiet and peaceable behavior” so long as the town warned the person they were not eligible for aid. Benton, Josiah Henry (1911), Warning Out in New England, Boston: W.B. Clarke. 26 Tulsa Lawyer

Moral treatment was developed by French psychiatrist Philippe Pinel which is premised on the belief that the mentally ill need care and kindness for their conditions to improve. This movement was a departure of the traditional treatments, such as physical restraints and bloodletting. Weiner, D. B. (1979). The apprenticeship of Philippe Pinel: A new document, ‘Observations of Citizen Pussin on the insane.’” The American Journal of Psychiatry, 136(9), 1128-1134.

Michel, Sonya (1994). “Dorothea Dix; or, the Voice of the Maniac.” Discourse. 17 (2): 48–66

Hartog, Hendrik (1989). “Mrs. Packard on Dependency.” Yale Journal of Law & Humanities. 1: 79-103.

express her personal opinions, which were contrary to those of her husband on a number of issues such as religion, child rearing, family finances, and slavery (Elizabeth was an abolitionist).6 In 1860, as a result of her expressing view that differed from his, Theophilus Packard claimed that Elizabeth was insane, and had her committed to the state’s psychiatric hospital.7 At that time, a husband could have his wife committed without either a public hearing or her consent. Mrs. Packard spent the next three years at the Jacksonville Insane Asylum in Jacksonville, Illinois. She was eventually given a jury trial for the determination of her sanity. After a five-day trial, the jury took only seven minutes to find that Elizabeth was sane. Following her legal victory, Elizabeth Packard began fighting for the civil rights of those accused of mental illness, culminating in the passage of the “Bill for the Protection of Personal Liberty” in 1867 which guaranteed all people accused of insanity the right to a public hearing.8 Despite the need for a public hearing, getting individuals admitted to mental health facilities remained relatively easy for many years. The so-called “institutional inpatient care model,” where many patients lived in hospitals and were treated by professional staff was considered the most effective way to care for the mentally ill, and was often considered desirable by families struggling to care for mentally ill relatives.9 Under this model, the U.S. saw a rise in the number of individuals placed in psychiatric hospitals to over 500,000.10 However, this form of care, often referred 6

Himelhoch, Myra Samuels; Shaffer, Arthur H. (1979). “Elizabeth Packard: Nineteenth-Century Crusader for the Rights of Mental Patients.” Journal of American Studies. 13 (3): 345–375.

Pouba, Katherine; Tianen, Ashley (2006). “Lunacy in the 19 Century: Women’s admission to Asylums in the United States of America. Oshkosh Scholar. 1: 95, 98, 102. th

Lombardo, Paul A. (1992). “Mrs. Packard’s Revenge.” Biolaw. 2: 792-6.

to as simply warehousing individuals, began to draw criticism following a number of exposés describing harsh living conditions and civil rights violations of those confined to mental health institutions.11 Efforts towards deinstitutionalization began to emerge, particularly in the form of civil rights litigation, with courts examining the conditions necessary for states to hold mentally ill individuals against their will. The ability of states to hold individuals involuntarily comes from their police power, which gives states the power to regulate and enforce order to protect the safety of its citizens, and through it acting as parens patriae, which is the state’s public policy power to act as the “parent” to protect those who are unable to protect themselves.12 A seminal case in the area of civil rights for the mentally ill was Lessard v. Schmidt.13 In Lessard, the court found that Wisconsin's civil commitment statutes were unconstitutional, holding that “the interests in avoiding civil commitment are at least as high as those of persons accused of criminal offenses.” The court stated that before someone can have their liberty interest (freedom) taken, they must be afforded the same due process rights as those accused of a crime – namely: notice of the “charges” justifying detention, a right to a jury trial, representation by an attorney, hearsay evidence must be excluded, the privilege against self-incrimination, and the right to present and cross-examine witnesses.14 Moreover, the stated that involuntary commitment is only permitted when the individual is dangerous, either to himself or others.15 Subsequent to Lessard, the U.S. Supreme Court also found in a series of cases that involuntary commitment constitutes a significant deprivation liberty

beds. A report from the Office of Research and Public Affairs, Treatment Advocacy Center.

Novella, E.J. (2010). Mental health care and the politics of inclusion: a social systems account of psychiatric deinstitutionalization. Theor Med Bioeth, 31: 411-427. See also, Deutsch, Albert (1949). The Shame of the States; and Mike Gorman, Oklahoma Attacks its Snake Pit (1948).

Knapp, M., Beecham, J., McDaid, D., Matosevic, T., Smith, M. (2011). The economic consequences of deinstitutionalisation of mental health services: lessons from a systematic review of European experience. Health and Social Care in the Community, 19(2): 113-125.

Addington v. Texas, 441 U.S. 418, 426 (1979).

Lessard v. Schmidt, 349 F. Supp. 1078 (D. Wis. 1972).

Id. at 1090.

Id. at 1093.

Fuller, Doris A., Sinclair, Elizabeth, Geller, Jeffrey, Quanbeck, Cameron, and Snook, John. (2016). Going, Going, Gone: Trends and consequences of eliminating state psychiatric

Tulsa Lawyer 27

requiring due process protection.16 Moreover, the Court has stated that the reason for confining an individual must be more than just the fact that the individual is displaying abnormal or idiosyncratic behavior.17 In fact, the Court has stated that mental illness alone does not justify the State confining a person against their will.18 If a person is not dangerous, and can live safely on their own or with the help of family or friends, the State has no Constitutional authority to hold them, even if it is wanting to do so in order to improve the person’s living conditions. 19Further, because of the magnitude of the liberty interest involved, the state must show that a person is dangerous as a result of mental illness by clear and convincing evidence, more than just by a mere preponderance, before it can involuntary commit an individual.20 Children also have a substantial liberty interest against being confined. In Parham v. J.R., the Court examined the Georgia mental health laws which allowed for parents to voluntarily admit their children to mental health hospitals, without the consent of the child. 21 The Court stated that because of the risk inherent in the parental decision to have a child institutionalized for mental health care was great, it held that the child should be afforded due process prior to confinement.22 However, in the case of children, the Court held that the level of due process required could be satisfied by a neutral factfinder, such as a medical professional, and that a judge or jury was not necessary.23 But does personal liberty involve more than just personal freedom? This issue was address in Vitek v. Jones, which involved a convicted felon being transferred from a state correctional facility to a state

See, e.g., Foucha v. Louisiana, 504 U.S. 71 (1992); Addington, 441 U.S. at 426; Jackson v. Indiana, 406 U.S. 715 (1972); In re: Gault, 387 U.S. 1 (1967).

Addington, 441 U.S. at 426-27.

O’Connor v. Donaldson, 422 U.S. 563 (1975).

Id. at 575.

Addington, 441 U.S. at 432-33.

Parham v. J.R., 442 U.S. 584 (1979).

Id. at 606.

Id. at 606-09.

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mental health hospital.24 In Vitek, Larry Jones was convicted of robbery and sentenced to the Nebraska state prison. While in prison he was placed in solitary confinement, where he set his mattress on fire, burning himself severely. After he was treated for his burns, Jones was transferred to a state mental health hospital to treat his mental illness. Mr. Jones filed a lawsuit claiming that transferring him without affording him due process protections violated his liberty interest. The State of Nebraska countered that because Mr. Jones was confined to State prison, he did not have a liberty interest, and therefore, no due process rights were implicated. The Court disagreed, stating that “the loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement.”25 It recognized associated with being labeled mentally ill stating that “commitment to a mental hospital and create adverse social consequences.”26 It therefore concluded that while a criminal conviction can extinguish certain individual rights, such as the right to freedom, it does not authorize the State to classify an individual as mentally ill and subject him to involuntary psychiatric treatment without affording him due process protections.27 A person’s liberty interest also extends to the right to refuse medication, even if the person is involuntary committed. Forcibly injecting medication into a nonconsenting person’s body is a substantial interference with that person’s liberty.28 The Oklahoma Supreme Court has held that legally competent individuals involuntarily committed to a mental hospital have the right to refuse consent to medication.29 But are involuntary committed individuals legally competent? The court has stated that involuntary commitment does not necessarily mean that a person is incapable of appropriately deciding whether to consent to medication.30 Moreover, there is a presumption that each person is legally competent until specifically 24

Vitek v. Jones, 445 U.S. 480 (1980).

Id. at 492.

Id.

Id. at 493-4.

Washington v. Harper, 494 U.S. 210 (1990)

Walters v. Western State Hospital, 864 F.2d 695 (1988); and In re: the Mental Health of K.K.B., 609 P.2d 747 (1980).

Id. at 749.

Tulsa Lawyer 29

determined otherwise in a court proceeding.31 The court has stated that the right to refuse medication specifically extends to the use of psychotropic drugs, which the court notes are “intrusive in nature and an invasion of the body,” and can lead to many serious side effects.32 Further, the court has held that absent an emergency, the use of psychotropic medications to control or for punishment violates the 8th Amendment protection against cruel and unusual punishment.33

the mental illness or by the fact that long periods of confinement have already been served, as this would be subtracted from any criminal sentence. There must be a substantial probability that the medication will enable the defendant to become competent without substantial undermining side effects.

• The medication must be necessary to However, if an emergency situation does exist, restore the defendant's competency, with such as where the individual poses an immediate no alternative, less intrusive procedures danger to self or others, involuntary medication may be available that would produce the same results. 34 permitted. Due process is still required, but a judicial hearing is not required.35 Instead, it is sufficient to have administrative hearing procedures in place where the • The administration of the drugs is medically appropriate—that is, in the patient's best medical decision-makers as to whether forced medication is interest in light of his medical condition. necessary are neutral, and not a part of the individual’s treatment team.36 In fact, the Court has stated that a person’s interests are adequately protected, possibly Unless all four requirements are met, the individual better served, by allowing the decision of whether cannot be forced medicated, absent other compelling to medicate with medical professionals instead of a reasons (such as for safety of the individual or others). judge.37 Advances in the treatment of mental illness, along If an emergency does not exist, the State must with the enforcement of the civil rights of those with show a compelling State interest in order to force mental illness, has led to a decline in from those medicate. For example, in the situation of forced committed to institutions from over 50,000 in the 1950s medication to render a mentally ill competent to stand to less than 40,000 today.39 Note that all of the cases trial, the Court requires a specific four part finding.38 discussed above involve a weighing of the individual’s Specifically, the court must find: interest versus that of the State. Becoming aware of • An important government issue must be at stake and this balance and seeing involuntary commitment as an only a case by case inquiry can determine whether the infringement on personal liberty can help explain our government's interest is mitigated by the possibility current civil commitment statutes and the procedures of a long civil commitment for the treatment of required before placing a person into a mental health hospital. 31

43A O.S. §1-105.

In re: the Mental Health of K.K.B., 609 P.2d at 749; Harper, 494 U.S. at 229.

Id. at 751.

Washington v. Harper, 494 U.S. 210 (1990); Riggins v. Nevada, 504 U.S. 127 (1992).

Harper, 494 U.S. at 228.

Id.

Harper, 494 U.S. at 231; Parham v. J.R., 442 U.S. 584

Sell v. U.S., 539 U.S. 166 (2003).

(1979).

See, Fuller, Doris A., Sinclair, Elizabeth, Geller, Jeffrey, Quanbeck, Cameron, and Snook, John. (2016). Going, Going, Gone: Trends and consequences of eliminating state psychiatric beds. A report from the Office of Research and Public Affairs, Treatment Advocacy Center

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GET YOUR MAMMOGRAM!

October is Breast Cancer Awareness Month

OK DOCKETS - New Member Benefit! OK Dockets is a web service that scans your entire list of state court cases on OSCN for updates multiple times a day. If a pleading is filed, an order entered, or any other manner of update appears on your case's docket, you'll receive an email showing exactly what happened. Updates can be copied to your paralegal, secretary, or associate attorney

to ensure everyone in your office knows when an update occurs. OK Dockets also has an online portal showing you the flow of your practice as it happens. All updates from your cases are aggregated in the online portal, which allows you to spend seconds reviewing all of your cases instead of hours checking OSCN.Â This product was created by local Oklahoma lawyers for the specific problems they found in managing state cases on OSCN. To share what they built with other local lawyers, they are partnering with the Tulsa County Bar Association to give all its members a 10% discount. Sign up at www.okdockets.com and use the code TCBA10.

Don't miss out!

Tulsa Lawyer 31

Thank You to the Sponsors of the Annual Meeting & Awards Banquet Presenting Sponsors MidFirst Private Bank LexisNexus